| Construction by Singletree, Inc. v Lowe |
| 2008 NY Slip Op 08287 [55 AD3d 861] |
| October 28, 2008 |
| Appellate Division, Second Department |
| Construction by Singletree, Inc., Plaintiff, v Sheldon Lowe,Appellant, and J.C. Construction Management Corp., Respondent. |
—[*1] Arnold & Porter LLP, New York, N.Y. (H. Peter Haveles, Jr., and Anthony Boccanfuso ofcounsel), for respondent.
In an action to foreclose a mechanics' lien, the defendant Sheldon Lowe, trustee under SheldonLowe declaration of trust dated January 15, 1999, appeals, as limited by his brief, from so much of anorder of the Supreme Court, Suffolk County (R. Doyle, J.), dated December 11, 2006, as grantedthose branches of the motion of the defendant J.C. Construction Management Corp. which were forsummary judgment dismissing so much of his second cross claim as sought to recover compensatoryand liquidated damages for breach of warranty.
Ordered that the order is affirmed insofar as appealed from, with costs.
This appeal pertains to issues arising from the construction of a home by the defendant J.C.Construction Management Corp. (hereinafter J.C.) for its client, the defendant Sheldon Lowe, trusteeunder Sheldon Lowe declaration of trust dated January 15, 1999 (hereinafter Lowe). A subcontractorfor the construction project commenced the underlying action against Lowe and J.C. to recover moneyit was allegedly owed in connection with the project. Lowe cross-claimed against J.C., alleging, interalia, that he was entitled to recover compensatory damages for breach of warranty, emanating fromJ.C.'s allegedly improper installation of the flooring and insulation systems in the home, as well aspayment pursuant to a liquidated damages clause that had been added to the contract between himselfand J.C.[*2]
After the completion of discovery, J.C. moved for summaryjudgment dismissing, inter alia, the claims to recover liquidated and compensatory damages for breachof warranty, as set forth in Lowe's second cross claim, arguing that there was no evidence tosubstantiate Lowe's breach of warranty claim and that the liquidated damages clause was anunenforceable penalty clause. In opposition, Lowe, inter alia, provided affidavits from purportedexperts in the flooring and air-conditioning industries, who opined that the flooring and insulationsystems installed in Lowe's home were faulty, and estimated the likely repair costs for each.
Contrary to Lowe's contention, J.C. established its prima facie entitlement to judgment as a matterof law in connection with so much of Lowe's second cross claim as was to recover compensatory fordamages for breach of warranty by establishing that it did not breach any material term set forth in thecontract between it and Lowe. In opposition to J.C.'s prima facie showing, Lowe failed to raise atriable issue of fact. The Supreme Court did not improvidently exercise its discretion in declining toconsider the affidavits of the purported experts proffered by Lowe, since Lowe failed to identify theexperts in pretrial disclosure and served the affidavits after the note of issue and certificate of readinessattesting to the completion of discovery were filed in this matter (see Rodriguez v Sung Hi Kim, 42 AD3d 442, 442-443 [2007]; Wager v Hainline, 29 AD3d 569, 571[2006]; Gralnik v Brighton BeachAssoc., 3 AD3d 518 [2004]; Concetto v Pedalino, 308 AD2d 470, 470-471[2003]).
Our dissenting colleague disagrees with this holding, arguing that CPLR 3101 (d) (1) (i) appliesonly to an expert whom a party intends to call at trial, and ought not have precluded the trial court fromconsidering previously undisclosed expert opinions submitted in opposition to a motion for summaryjudgment. We note, however, that the purpose of summary judgment is to determine whether there aregenuine issues necessitating a trial. As such, "one opposing a motion for summary judgment mustproduce evidentiary proof in admissible form sufficient to require a trial of material questions of fact onwhich he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirementof tender in admissible form" (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
As it is undisputed that Lowe failed to identify any experts in pretrial disclosure whom he intendedto call to testify at trial concerning whether the work was faulty or the extent of his allegedcompensatory damages arising from that breach of warranty, and did not proffer any explanation forsuch failure, it was not an improvident exercise of discretion for the Supreme Court to have determinedthat the specific expert opinions set forth in the affidavits submitted in opposition to the motion forsummary judgment could not be considered at trial. That circumstance, coupled with Lowe's failure todemonstrate how the facts set forth in the experts' affidavits could otherwise be established at trial,justified the Supreme Court's conclusion that Lowe failed to adequately establish the existence of amaterial issue of fact necessitating a trial in response to J.C.'s prima facie showing of entitlement tojudgment as a matter of law. Accordingly, summary judgment dismissing so much of Lowe's secondcross claim as was to recover compensatory damages for breach of warranty was properly awarded toJ.C. (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).
J.C. also established its prima facie entitlement to judgment as a matter of law in connection withLowe's liquidated damages claim. Although the parties to an agreement may provide for the payment ofliquidated damages upon breach of the agreement, such a provision will only be upheld if the amountfixed is a reasonable measure of the probable actual loss in the event of a breach, and the actual losssuffered is difficult to determine precisely (see Truck Rent-A-Ctr. v Puritan Farms 2nd, 41NY2d 420, 423-424 [1977]; Willner v Willner, 145 AD2d 236, 239-240 [1989]). Here, theliquidated damages clause is unenforceable under any circumstances since the damages fixed are [*3]disproportionate to the injury, actual loss is susceptible of calculation and,as admitted by Lowe in his deposition, the sole purpose of the subject provision was to improperlysecure J.C.'s performance of the agreement by compulsion (see Truck Rent-A-Ctr. v PuritanFarms 2nd, 41 NY2d at 425; Evangelista v Ward, 308 AD2d 504, 505 [2003]; IrvingTire Co. v Stage II Apparel Corp., 230 AD2d 772, 773-774 [1996]; Willner v Willner,145 AD2d at 241). Lifson, J.P., Ritter and Florio, JJ., concur.
Carni, J., concurs in part and dissents in part and votes to modify the order by deleting theprovision thereof granting that branch of the motion of the defendant J.C. Construction ManagementCorp. which was for summary judgment dismissing so much of the second cross claim as was torecover compensatory damages for breach of warranty, and remitting the matter to the Supreme Court,Suffolk County, for a new determination of that branch of the motion upon taking into account theexpert affidavits submitted by the defendant Sheldon Lowe, trustee under Sheldon Lowe declaration oftrust dated January 15, 1999, and, as so modified, to affirm the order insofar as appealed from, withthe following memorandum.
Carni, J. (dissenting in part). In granting that branch of the motion of the defendant J.C.Construction Management Corp. (hereinafter J.C.) which was for summary judgment dismissing somuch of the appellant's second cross claim as was to recover compensatory damages for breach ofwarranty, the Supreme Court did not consider the affidavits from the appellant's experts on the groundsthat the appellant failed to identify such experts during pretrial disclosure and the affidavits were notserved until after the filing of the note of issue.
The preliminary conference stipulation and order which governed both pretrial disclosure and thefiling of the note of issue provided that "expert disclosure shall be provided by all parties pursuant toCPLR 3101."
The provision of the CPLR which was referenced in the trial court's preliminary conference orderand stipulation is entitled "Trial Preparation," and provides in pertinent part as follows: "Upon request,each party shall identify each person whom the party expects to call as an expert witness at trialand shall disclose in reasonable detail the subject matter which each expert is expected to testify."(CPLR 3101 [d] [1] [i] [emphasis added].)
Therefore, the trial court's order, read in conjunction with CPLR 3101 (d) (1) (i), only required thedisclosure of experts retained for the purpose of providing testimony at the time of trial. Here, theappellant submitted affidavits from experts for the purpose of raising a material issue of fact inopposition to the motion of the defendant J.C. for summary judgment dismissing his cross claims. CPLR3101 (d) (1) (i) simply does not require the disclosure of experts or consultants that are retained andutilized by a party for purposes other than providing trial testimony.
Accordingly, I respectfully disagree with my colleagues to the extent that the majority holds thatCPLR 3101 (d) (1) (i) requires the disclosure of consultants or experts retained for the purpose [*4]of opposing a summary judgment motion. There is no requirement that anexpert or consultant who provides an affidavit for the limited purpose of opposing a summary judgmentmotion be the same expert trial witness who testifies at the subsequent trial. Even if CPLR 3101 (d) (1)(i) applied to these affidavits, it is well settled that this provision does not require a party to respond to ademand for expert witness information at any specific time in any event (see Cutsogeorge v HertzCorp., 264 AD2d 752, 753 [1999]). Were we concerned with expert trial witnesses on the eve oftrial, which we are not, we would undertake the consideration of whether the alleged noncompliancewith the statute was intentional or willful (see Cutsogeorge v Hertz Corp., 264 AD2d at 753).However, such consideration is not necessary under the procedural posture of this case.
In my view, the applicability of CPLR 3101 (d) (1) (i) to the employment of experts opposing asummary judgment motion is contrary to the express language of the statute and beyond its clearlegislative intent.
Therefore, I would delete the provision of the order granting that branch of J.C.'s motion whichwas for summary judgment dismissing so much of the appellant's second cross claim as was to recovercompensatory damages for breach of warranty and remit the matter to the Supreme Court for a newdetermination on that branch of the motion, based upon the complete record, inclusive of the appellant'sexpert affidavits.