The following e-filed documents, listed by NYSCEF document number (Motion 004) 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 169, 171, 172, 173, 174, 175 were read on this motion to/for JUDGMENT — SUMMARY. DECISION + ORDER ON MOTION Defendants’ motion for summary judgment dismissing the complaint is denied. Background This action arises out of the Build It Back program, an endeavor created in the wake of Superstorm Sandy to help homeowners repair and reconstruct their homes. Homeowners could choose a pre-approved contractor (such as plaintiff) to do this work and the contractor would be paid through a separate agreement with the City of New York. Here, plaintiff says it was supposed to be paid in connection with the reconstruction of a home in Breezy Point. Defendants make clear that payment was contingent on a final audit. In support of their motion for summary judgment, defendants insist that plaintiff has been paid what it is owed. Defendants contend that after a comprehensive audit of the subject project, it determined that plaintiff was due a final additional payment amount of $12,378.81 in addition to the $630,133.52 already released. Defendants maintain that the remaining payment sought by plaintiff, over $60,000, was rejected due to insufficient documentation or deficiencies in the work. They argue that plaintiff is not due any more payment from this project. In opposition, plaintiff argues that defendants did not include any information from someone with personal knowledge in support of their motion. It also contends that defendants admit that over $60,000 was withheld. Plaintiff maintains that defendants’ submissions require the Court to make credibility determinations and so summary judgment is inappropriate. In reply, defendants contend that their submissions are admissible and that the documents submitted are business records. They also argue that plaintiff did not contest any of disputed payments or deductions. Discussion To be entitled to the remedy of summary judgment, the moving party “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact from the case” (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853, 487 NYS2d 316 [1985]). The failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers (id.). When deciding a summary judgment motion, the court views the alleged facts in the light most favorable to the non-moving party (Sosa v. 46th St. Dev. LLC, 101 AD3d 490, 492, 955 NYS2d 589 [1st Dept 2012]). Once a movant meets its initial burden, the burden shifts to the opponent, who must then produce sufficient evidence to establish the existence of a triable issue of fact (Zuckerman v. City of New York, 49 NY2d 557, 560, 427 NYS2d 595 [1980]). The court’s task in deciding a summary judgment motion is to determine whether there are bonafide issues of fact and not to delve into or resolve issues of credibility (Vega v. Restani Constr. Corp., 18 NY3d 499, 505, 942 NYS2d 13 [2012]). If the court is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied (Tronlone v. Lac d’Amiante Du Quebec, Ltee, 297 AD2d 528, 528-29, 747 NYS2d 79 [1st Dept 2002], affd 99 NY2d 647, 760 NYS2d 96 [2003]). The Court denies the motion as there are material issues of fact about whether plaintiff is due additional monies. Defendants’ basis for the motion is the result of the final audit (NYSCEF Doc. No. 144). That letter, dated November 7, 2022, contends that over $60,000 was “disallowed for reasons previously explained” (id.). The Court cannot find, as a matter of law, that defendants’ findings are credible and that plaintiff has no right to seek the amounts it demands. In other words, defendants’ position is that they believe plaintiff is not entitled to any more money for various reasons, including that various documentation was not included or that the work was inadequate. And plaintiff contends it is owed more money. Thus, there is a contested issue of material fact — how much, if anything, is still due. The Court cannot decide to believe one side or the other on a summary judgment; a fact finder must make that determination — which party to believe-after trial, where the fact finder can listen to testimony and cross examination, among other things. A trial is necessary to assess whether or not defendants were justified in declining to pay plaintiff any more money or, whether plaintiff is due additional money (whether in whole or in part). The Court cannot simply agree with defendants’ assertions on these papers. They will have to sufficiently demonstrate why they declined to pay certain amounts and, of course, plaintiff will have to meet its burden to show the amounts it seeks to recover. Simply put, summary judgment is not appropriate where the parties disagree about the essential facts at issue in this case. Accordingly, it is hereby ORDERED that defendants’ motion for summary judgment is denied. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED X DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: February 6, 2023
