The following e-filed documents, listed by NYSCEF document number (Motion 001) 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36 were read on this motion for SUMMARY JUDGMENT. DECISION ORDER ON MOTION Upon the foregoing documents, the motion of plaintiff Louis L. Buttermark & Sons, Inc., individually, and as representative of all trust beneficiaries similarly situated (“Plaintiff”) for summary judgment is granted in accord with the following memorandum decision. Background This dispute arises from a contract dated August 12, 2016 (the “Agreement”) between defendant U.S. Tech Construction Corp. (“US Tech”), as general contractor, and Plaintiff, as subcontractor, to provide plumbing work, labor, services, and materials for a construction project located at 1589 Amsterdam Avenue, New York, New York (the “Project”), and owned by the Dormitory Authority of the State of New York. Defendants Anna Luis Asha Khaled and Leopoldo Baez are owners, and the Vice-President and Chief Executive Officer of US Tech, respectively (complaint
4, 6). On March 12, 2018, prior to commencement of this action, Plaintiff filed a Notice of Mechanic’s Lien with DASNY for non-payment in connection with the Project in the amount of $43,246.77 (the “Mechanic’s Lien”). The Mechanic’s Lien was extended for one year on March 7, 2019. Pursuant to Lien Law §21, Defendant Philadelphia Indemnity Insurance Company (the “Surety”) filed a surety bond to discharge that lien, under Bond #PB01773900161 (the “Discharge Bond”). Pursuant to State Finance Law §137(1), the Surety also posted a payment bond, under Bond No. PB01773900115 (the “Payment Bond”) in the amount of $3,572,000 in connection with the Project. Plaintiff commenced this action on December 12, 2018, asserting eight causes of action: (1) foreclosure of the Mechanic’s Lien as against the Discharge Bond; (2) breach of contract against US Tech; (3) unjust enrichment and quantum meruit against US Tech; (4) account stated against US Tech; (5) attorneys’ fees against US Tech; (6) diversion of trust funds pursuant to Article 3-A of the Lien Law against US Tech, Anna Luis Asha Khaled, and Leopoldo Baez; (7) demand for payment under the Payment Bond; and (8) attorneys’ fees against the Surety. On January 23, 2019, all the defendants appeared in the action by filing a joint answer denying Plaintiff’s claims and asserting five affirmative defenses (NYSCEF Doc. No. 4). Plaintiff now moves for summary judgment against US Tech and the Surety (“Defendants”), as follows: (i) against the Surety on the first cause of action for lien foreclosure, pursuant to the Discharge Bond; (ii) against US Tech on the second cause of action for breach of contract; (iii) against US Tech on the fourth cause of action for an account stated; (iv) against the Surety on the seventh cause of action pursuant to the Payment Bond; (v) against the Surety on the eighth cause of action for attorneys’ fees pursuant to State Finance Law 137.4 (c); (vi) setting this matter down for an inquest with respect to attorneys’ fees, and (vii) severing the remaining causes of action. Defendants oppose the motion. In support of its motion, Plaintiff submits an affirmation of its counsel, Leonard J. Catanzaro, Esq., dated August 6, 2019, supported by copies of: the summons and complaint; the Answer; Mechanic’s Lien and extension; Discharge Bond; and Payment Bond. Plaintiff also submits an affidavit of Louis L. Buttermark (“Buttermark”), dated August 6, 2019, President of the Plaintiff, which attaches copies of: the Agreement; an account analysis setting forth the amounts billed and payments received by Plaintiff; invoices and other requests for payments sent to US Tech; change orders and change order logs; copies of cancelled checks for payments from US Tech to Plaintiff; and emails and letters demonstrating the approval of change orders. Buttermark attests to: the formation of the Agreement between Plaintiff and US Tech; Plaintiff’s performance and furnishing of work, labor, services, and materials under the Agreement and approved change orders in the amount of $94,546.77; Plaintiff’s demands for payment; and US Tech’s failure to make payment in full, leaving a balance due and owing of $43,246.77. Defendants oppose the motion on the grounds that all controversies between the parties are subject to mandatory binding arbitration and Plaintiff must pursue its claims in arbitration rather than before this court. Defendants also dispute the amounts due to Plaintiff at this time. In support of their position, Defendants submit an affirmation of its counsel, Michael M. Rabinowitz, Esq., and the affidavit of Mohammed Aziz (“Aziz”), a project manager for US Tech, which is supported by a copy of the Agreement and a one-page document that Aziz represents is “US Tech’s accounting for Buttermark for the Project” (Aziz Aff. Exs. A-B). Aziz acknowledges that Plaintiff performed work and approved change orders for the Project and is currently owed payment (Aziz Aff.
