| Rush v Swimming Pools by Jack Anthony, Inc. |
| 2012 NY Slip Op 06068 [98 AD3d 728] |
| August 29, 2012 |
| Appellate Division, Second Department |
| Jacqueline Rush et al., Appellants, v Swimming Pools byJack Anthony, Inc., Respondent. |
—[*1] Churbuck Calabria Jones & Materazo, P.C., Hicksville, N.Y. (Robert B. Churbuck ofcounsel), for respondent.
In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal, aslimited by their brief, from so much of an order of the Supreme Court, Nassau County(Warshawsky, J.), entered May 6, 2011, as granted those branches of the defendant's motionwhich were for summary judgment dismissing the first and fifth causes of action and deniedthose branches of their cross motion which were for summary judgment on the issue of liabilityon the first and fifth causes of action.
Ordered that the order is modified, on the law, by deleting the provisions thereof grantingthose branches of the defendant's motion which were for summary judgment dismissing the firstand fifth causes of action, and substituting therefor provisions denying those branches of themotion; as so modified, the order is affirmed insofar as appealed from, without costs ordisbursements.
The defendant was engaged by the plaintiffs to construct an in-ground swimming pool andspa on their property. In early July 2006, after the pool was built and filled with water, but whileseveral items were yet to be completed, the plaintiff John Rush entered the pool and realized thatthe shallow end of the pool was too shallow and extended too far. He immediately contacted thedefendant and made several complaints. After discussions, the defendant agreed to re-excavatethe pool to make it deeper and to absorb half of the labor cost associated with the project. Theplaintiffs agreed to pay the other half of the labor costs and to pay for a custom vinyl liner.
In late August 2006, the defendant re-excavated the pool, but the plaintiffs did not give finalapproval on the dimensions of the custom liner. Instead, in early September 2006, the plaintiffshad the unfinished pool inspected by another pool company, Haven Pools, which issued a reportciting numerous problems with the pool, including structural conditions and water loss. Thedefendant continued to seek final approval from the plaintiffs, warning that leaving the poolunfilled could create a "dangerous situation." The plaintiffs eventually contracted with HavenPools to build a gunite pool in place of the pool that the defendant had constructed.
The plaintiffs commenced this action, alleging, inter alia, breach of contract, and requestingan award of an attorney's fee. The defendant moved for summary judgment dismissing thecomplaint, and the plaintiffs cross-moved for summary judgment on the complaint. The SupremeCourt granted the defendant's motion and denied the plaintiffs' cross motion. The [*2]plaintiffs appeal from so much of the order as granted thosebranches of the defendant's motion which were for summary judgment dismissing the first andfifth causes of action and denied those branches of their cross motion which were for summaryjudgment on the issue of liability on the first and fifth causes of action. We modify.
Contrary to the conclusion of the Supreme Court, the defendant failed to establish its primafacie entitlement to judgment as a matter of law dismissing the first cause of action, whichsought damages for breach of contract. The defendant's submissions in support of its motion,including the report issued by Haven Pools which indicated that the work was performed by thedefendant in a less than skillful and workmanlike manner, failed to eliminate all triable issues offact with respect to the first cause of action (see Corrado v East End Pool & Hot Tub, Inc., 69 AD3d 900, 901[2010]). The defendant similarly failed to establish, prima facie, its entitlement to judgment as amatter of law dismissing the fifth cause of action, which sought an award of an attorney's fee(see General Obligations Law § 5-327 [2]). Since the defendant failed to meet itsinitial burden with respect to those branches of its motion which were for summary judgmentdismissing the first and fifth causes of action, the Supreme Court should have denied thosebranches of its motion (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853[1985]) regardless of the sufficiency of the opposition papers.
The plaintiffs contend that the Supreme Court also erred in denying those branches of theircross motion which were for summary judgment on the issue of liability on the first and fifthcauses of action. However, although the plaintiffs established their prima facie entitlement tojudgment as a matter of law by submitting, inter alia, expert affidavits, the evidence submitted bythe defendant was sufficient to raise a triable issue of fact as to whether the pool constructed bythe defendant complied with the parties' initial agreement and whether the substandard conditionscited by the plaintiffs' experts were the result of the plaintiffs' delay during the process ofre-excavation. Accordingly, the Supreme Court properly denied those branches of the plaintiffs'cross motion which were for judgment on the issue of liability on the first and fifth causes ofaction (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Skelos, J.P., Balkin,Lott and Miller, JJ., concur.