ADDITIONAL CASES Titan Concrete, Inc., Third-Party Plaintiff(s) v. U.S. Concrete, Inc., USC- Jenna, LLC, Jenna Concrete Corporation, and Harlem River Concrete, Inc., Third-Party Defendant(s). DECISION This is an action for breach of contract, whereby defendant and third-party plaintiff, TITAN CONCRETE, INC. (“TITAN”) allegedly shipped “defective concrete” to the plaintiff, CITY AND COUNTY PAVING, CORP. (“CCPC”). Third-party defendants, U.S. CONCRETE, INC. and USC-JENNA, LLC (collectively hereinafter “USC”) now move pursuant to CPLR §2221 to reargue their prior motion for dismissal which was denied by this Court on May 9, 2019. After careful review of the motion papers, USC’s motion to renew and reargue is DENIED. USC’s motion for dismissal is DENIED as moot. BACKGROUND FACTS Sometime between July 2016 and December 2016 defective concrete was allegedly shipped to CCPC from its concrete supplier, TITAN. (Third-Party Complaint, 8). As a result, CCPC commenced the instant action against TITAN. Id. In turn, TITAN filed a third-party complaint against USC, one of several third-party defendants alleged to have manufactured the defective concrete. Id. at 14. USC moved for dismissal, and on May 9, 2019 this Court denied its motion on the grounds that there was an issue of material fact as to exactly when USC took control of the Harlem River Plant, the facility where the allegedly defective concrete was produced. (Wallace Affirmation, Ex. 1). This Court also found an issue of fact as to whether the “wash out” services may have had a role in the production of the allegedly defective concrete. Id. RENEW & REARGUE USC contends this Court overlooked, misapprehended, or misinterpreted the facts surrounding when USC took control over the Harlem River Plant. (See Third-Party Defendants’ Counsel’s Memorandum in Support, Pg. 13). Specifically, USC argues this Court overlooked affidavits detailing the acquisition of the lease to the Harlem River Plant. Id. USC also maintains this Court misinterpreted the purpose of the “washout” services, insisting the washouts were not involved in the production or sale of concrete, but rather in the clean-up of the remaining concrete in the trucks after deliveries were complete. Id. at Pg. 17. In opposition, TITAN argues USC’s motion to reargue is procedurally defective for failing to include all of the papers submitted on the prior motion. (Third-Party Plaintiff’s Memorandum in Opposition, Pg. 6). CPLR §2221(f) provides, “A combined motion for leave to reargue and leave to renew shall identify separately and support separately each item of relief sought.” Further, pursuant to CPLR §2001, a court may permit and disregard any mistake or defect, “if a substantial right of a party is not prejudiced.” A motion to reargue can only be granted upon, “a showing that the court overlooked or misapprehended the facts or law or for some reason mistakenly arrived at its earlier decision.” William P. Pahl Equipment Corp. v. Kassis, 182 A.D.2d (1st Dep’t 1992). Regardless of whether USC included all its prior moving papers in its current motion, TITAN has not established how it has been prejudiced from such a defect. Further, TITAN has also acknowledged the courts have since modified CPLR §2221(c) and provided more lenient standards for renew and reargue motions when dealing with e-filed cases. (See Third-Party Plaintiff’s Affirmation in Support, Pg. 12). Even if USC did not properly cite to all its moving papers, TITAN is at worst inconvenienced by having to sort through documents, but it has not been prejudiced with the loss of any substantial right. Notwithstanding possible procedural defects, this Court cannot grant USC’s motion as it has failed to establish how this Court overlooked, misapprehended, or misinterpreted any facts surrounding when USC took control over the Harlem River Plant and the washout services when it made its decision on May 9, 2019. MISAPPREHENSION — AFFIDAVITS The interpretation of a contract, “is a legal matter for the court, and [contract] provisions establish the rights of the parties and prevail over conclusory allegations of the complaint.” 805 Third Ave. Co. v. M.W. Realty Assocs., 58 N.Y.2d 447 (1983). The existence of ambiguity is determined by examining the “entire contract and considering] the relation of the parties and circumstances under which it was executed…” Riverside S. Planning Corp. v. CRP/Extell Riverside, L.P., 60 A.D.3d 61 (1st Dep’t 2008); quoting Kass v. Kass, 91 N.Y.2d 554 (1998). The affidavits USC believes were misinterpreted are unreliable. These affidavits reference several agreements that were executed in connection with a purchase agreement of the Harlem River Plant dated, August 10, 2016, a date during the period in which the concrete in question was shipped. (Ferrara Aff’d, Ex. 1). However, USC has refused to annex the full purchase agreement of the facility in its moving papers, instead it has only annexed the cover page of the purchase agreement with signatures on the following pages. Id. As this Court cannot read the full purchase agreement, it is therefore unable to read the entire contract, and thus unable to engage in contract interpretation to determine if any ambiguities exist in the terms surrounding when USC acquired and took control over the Harlem River Plant. MISAPPREHENSION — WASHOUT SERVICES USC reasons this Court misapprehended the relevancy or lack thereof of the washout services as it did not receive payment for any washout services, and because the washouts were not involved in the manufacturing process. (See Third-Party Defendants’ Counsel’s Memorandum in Support, Pg. 13). However, because the trucks delivering the concrete were cleaned sometime before or after making deliveries, the washouts are part of critical issues in this suit: (1) whether the concrete was in fact defective; and (2) if the concrete was defective, whether the defendants caused the defect. It is unclear if the trucks delivering the concrete were properly cleaned, and if they were not properly cleaned, whether a poorly performed washout could have led to a defect in the concrete. This Court has no knowledge of how the washouts were performed and whether any chemicals, agents, or compounds were used or omitted in the washouts. These issues can only be resolved through expert evidence which USC has not provided. As it remains unclear when USC took control of the facility, coupled with the fact that the washouts may have been performed at the facility in question, and could have caused the defect in the concrete, this case remains rife with material issues and should proceed to trial. CONCLUSION In sum, USC has failed to establish that this Court misapprehended or overlooked the facts or law when arriving to its conclusion to deny its motion for dismissal on May 9, 2019. Accordingly, it is ORDERED that third-party defendants, U.S. CONCRETE, INC., and USC-JENNA, LLC’s motion to renew and reargue is DENIED; it is further ORDERED that USC’s motion to dismiss is DENIED, and this Court reaffirms its Decision and Order on May 9, 2019. This constitutes the Decision and Order of this Court. Dated: September 5, 2019 Bronx, NY.
