The following e-filed documents, listed by NYSCEF document number (Motion 004) 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 92, 93, 94, 95, 96, 97, 98, 99 were read on this motion to/for JUDGMENT — SUMMARY. DECISION + ORDER ON MOTION Plaintiff’s motion for summary judgment and to dismiss defendant’s counterclaims is denied. Background Plaintiff is a scaffolding company and defendant is a general contractor. Plaintiff contends that it installed a sidewalk shed and scaffolding at a construction project located at 504 West 141st Street in Manhattan at defendant’s request. It claims that it did this work pursuant to a contract with defendant and performed all services under this agreement. Plaintiff observes that it discovered that defendant had a third-party remove the scaffolding instead of plaintiff and that the materials used for the scaffolding were never returned (plaintiff estimates the value of the materials to be $39,800). According to plaintiff, defendant emailed it on February 6, 2019 to remove the scaffolding but plaintiff refused to do so because it had not yet been paid by defendant. It claims that over $70,000 is due, which includes the missing materials as well as other fees. Plaintiff now moves for summary judgment on its account stated cause of action and insists that defendant’s counterclaims are frivolous. In opposition, defendant observes that plaintiff’s motion is based, in part, on an alleged order of preclusion that is not, in fact, an order of preclusion. The order in question (a Court decision on a motion brought by plaintiff) only compelled defendant to provide discovery which defendant claims it has done. Defendant contends that plaintiff has willfully exaggerated the lien in question and is not entitled to recover. Defendant attaches the affidavit of its president (Vedat Rexhepi) who claims that the scaffolding was up starting in December 2017 (NYSCEF Doc. No. 96, 8). Mr. Rexhepi claims he asked plaintiff to take down the scaffolding in December 2018 over the phone and that he made numerous requests over the ensuing months, but plaintiff initially did not respond (id.
10-12). He explains that he wanted the scaffolding to be taken down before the weather warmed up to allow defendant to restart the construction project (id. 17). Mr. Rexhepi insists that because plaintiff refused to take down its scaffolding, it could not complete the work on the job site and the owner of the building got upset (id.
