ADDITIONAL CASES Amaracon Testing & Inspections, LLC, Third-Party Plaintiff v. International Fidelity Insurance Company, Third-Party Defendant The following papers have been read on this motion: Notice of Motion and Supporting Papers 1 Affirmation in Opposition to Motion and Supporting Papers 2 Reply Affirmation 3 DECISION AND ORDER Plaintiff Emtec Consultant, Professional Engineers, P.L.L.C.’s (“Plaintiff”) motion for an order, pursuant to CPLR §3212(b), awarding it summary judgment against Defendant Miller Engineering & Testing, Inc. (“Miller”) on the second cause of action in its amended complaint for breach of contract and fifth cause of action for quantum meruit, is determined as follows: This action arises out of the construction of a Home Depot store located at 3550 Hempstead Turnpike, Levittown, New York (the “Project”). Defendant Home Depot U.S.A., Inc., contracted with defendant Miller, as prime engineering contractor, to perform certain work relating to the Project. Defendant Miller subcontracted with the plaintiff to perform certain engineering and testing services in connection with the Project. On or about January 23, 2018, Plaintiff commenced this action by the filing of a Summons and Verified Complaint alleging, inter alia, that defendant Miller failed to pay the plaintiff the balance due for the testing and inspection services performed in accordance with the subcontract. On or about September 19, 2019, the plaintiff filed a prior motion for partial summary judgment on its second cause of action for breach of contract and fifth cause of action for quantum meruit against defendant Miller (Seq. 002). On or about April 28, 2020, Hon. Helen Voutsinas, while sitting as a Supreme Court Justice, issued a Decision and Order in which the Court, inter alia, granted the plaintiff partial summary judgment on the issue of defendant Miller’s liability for breach of contract and quantum meruit. Justice Voutsinas, however, awarded no damages, finding instead that issues of fact existed concerning the plaintiff’s charges to Miller and noting that the plaintiff admitted to billing errors. The Court also stated that a reasonable value needed to be established for the masonry inspections that were the basis of Plaintiff’s quantum meruit cause of action. Based on these findings, Justice Voutsinas did not grant Plaintiff summary judgment dismissing defendant Miller’s affirmative defenses for: 1) inflated charges; 2) balance due must be reduced; and 3) willful exaggeration of mechanic’s lien. All other affirmative defenses asserted by Miller were dismissed. The plaintiff now moves for summary judgment a second time on the causes of action for breach of contract and quantum meruit. However, the plaintiff’s second summary judgment motion, seeking precisely the same relief against defendant Miller as in its first summary judgment motion, violates the rule against successive summary judgment motions. “Successive motions for the same relief burden the courts and contribute to the delay and cost of litigation. A party seeking summary judgment should anticipate having to lay bare its proof and should not expect that it will readily be granted a second or third chance.” (Deutsche Bank Nat’l Tr. Co. v. Elshiekh, 179 AD3d 1017 [2d Dept. 2020]; Corvino v. Schineller, 168 AD3d 812, 812-813 [2d Dept 2019]). “Successive motions for summary judgment should not be made based upon facts or arguments which could have been submitted on the original motion for summary judgment.” (Vinar v. Litman, 110 AD3d 867, 869 [2d Dept 2013]). The narrow exception permitting successive summary judgment motions requires a showing of: “good cause, such as a showing of newly discovered evidence. However, evidence is not newly discovered simply because it was not submitted on the prior motion; rather, the evidence must not have been available to the party at the time it made its initial motion and could not have been established through alternate evidentiary means.” (P.J. 37 Food Corp. v. George Doulaveris & Son, Inc., 189 AD3d 858 [2d Dept 2020]). In this case, all of the plaintiff’s billing information contained in the numerous affidavits has been available to the plaintiff from the inception of this lawsuit. Neither correcting its accounting errors, nor re-calculating previously billed for services constitutes new evidence. Rather than presenting evidence that was not available to the plaintiff at the time it made its initial motion, the plaintiff’s successive motion practice has required the Court to review numerous affidavits from the plaintiff’s Special Inspections Manager, Anthony C. Musumeci. The initial affidavit submitted in connection with the plaintiff’s first motion failed to acknowledge any of the payments that defendant Miller had already remitted to the plaintiff. In this successive motion, the plaintiff has submitted two additional affidavits from Mr. Musumeci, leading to a total of four affidavits from that individual, and the plaintiff has failed to point to any newly discovered evidence or evidence that was not available to the plaintiff at the time it made its initial motion. Based on the foregoing, the plaintiff’s successive summary judgment motion must be denied. Moreover, defendant Miller’s opposition papers, which include an opposing affidavit from its project manager Gerald Gendron [NYSCEF Doc. No. 210] and invoices attached thereto [NYSCEF Doc. No. 211], raises issues of triable fact as to the plaintiff’s calculation of damages on its breach of contract and quantum meruit causes of action. Accordingly, the plaintiff is not entitled to summary judgment and this matter shall proceed to trial to determine damages. Accordingly, it is hereby ORDERED, that the plaintiff’s motion for an order pursuant to CPLR §3212(b) awarding it summary judgment against defendant Miller Engineering & Testing, Inc. on the second cause of action in its Amended Complaint for breach of contract and fifth cause of action in its Amended Complaint for quantum meruit, is DENIED; and it is further ORDERED, that all other requests for relief not specifically addressed herein are deemed DENIED. This constitutes the decision and order of the Court. Dated: August 29, 2022
