NO. 19765- SUPREME COURT - STATE OF NEW YORK IAS...

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INDEX

NO. 19765-SUPREME COURT - STATE OF NEW YORK

IAS TERM PART 19 NASSAU COUNTY

PRESENT:HONORABLE LEONARD B. AUSTINJustice Motion RID: 3-28-

Submission Date: 5-Motion Sequence No. : 005/MOT D

EllA AL Y LlZZ and MARISA LlZZ,Plaintiffs,

- against -

ANGELO PIRONI ESTATES ATWOODBURY, PIRONI DEVELOPMENTCOMPANY, and PIRONI BUILDERSINC.,

Defendants.

------------------------------------------------------)(

EllA AL Y LlZZ and MARISA LlZZ,Plaintiffs,

- against -

COUNSEL FOR PLAINTIFFSPinks, Arbeit, Boyle & Nemeth , Esqs.140 Fell Court - Suite 303Hauppauge, New York 11788

COUNSEL FOR DEFENDANTS(for Pironi)Albanese & Albanese, LLP1050 Franklin AvenueGarden City, New York 11530

(for Angelo Putrino)Frank A. Doddato, P.660 Old Country Road - Suite 501Garden City, New York 11530

(for Flo Rite Gutters)Siben & Siben, Esqs.90 East Main StreetBayshore, New York 11706

AANITRON SYSTEMS , INC. , FLO-RITEGUTTER CO., RON GIBBONSSWIMMING POOLS , INC., MCM IRONWORKS, ANGELOfJU!RIf\O,

- cfor Ron . GiblJ.Q_r:. 1r:1!tlrJg__

~~~-.----._- ._---

aNs:ee-1f5f\P aGf(e: ancr Licltra, a, sernLABRIOLA FURNITURE Schwart, P.Defendants. 1475 Franklin Avenue

Garden City, New York 11530

LlZZ v. AANITRON SYSTEMS , INC. , et aI.Index No. 19046-

ORDER

The following papers were read on the motion of Defendants Angelo Pironi andPironi Development Co. for summary judgment:

Notice of Motion dated March 11 , 2005;Affdavit of Angelo Pironi sworn to on February 16 , 2005;Affirmation of Hyman Hacker, Esq. dated March 11, 2005;Affidavit of Marisa Lizza sworn to on April 22 , 2005;Affirmation of Steven Pinks, Esq. dated April 22 , 2005;Affirmation of Hyman Hacker, Esq. dated May 9, 2005;Affidavit of Angelo Pironi sworn to on May 9, 2005.

Defendants , Angelo Pironi and Pironi Development Company, move for summary

judgment.

BACKGROUND

The amended complaint in Action NO. 1 alleges nine (9) causes of action.

Defendant Angelo Pironi ("Angelo ), seeks summary judgment dismissing the amended

complaint on the ground that he is not personally liable on any of those causes of

action.

Angelo asserts that he is unaware of and has no business relationship to any

entity known as Pironi Development Company, a Defendant herein. He believes that

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Plaintiffs intended to name Pironi Developers Inc. as a Defendant in this action. Pironi

Developers Inc. ("Developers ) which is sued herein Pironi Development Company,

Plaintiffs ' attorneys submitted a supplemental affirmation in opposition to themotion dated June 2 , 2005. The motion was submitted on May 9, 2005. These papersare a sur-reply. Since a sur-reply is not permitted by the CPLR and the papers weresubmitted after the motion. was marked fully submitted, they were not read orconsidered in deciding this motion. See, Risucci v. Zeal Mgt. Corp. , 258 A.D. 2d 812

Dept. 1999).

LlZZ v. AANITRON SYSTEMS , INC. , et aI.,Index No. 19046-

asserts that it is entitled summary judgment because it was not involved in any of the

construction or other transactions which give rise to this liigation.

Several of the causes of this action arise from the construction of a single family

home ("Lizza residence ) for the Plaintiffs , Elia Aly Lizza ("Elia ) and Marisa Lizza.

("Marisa ) (collectively "Lizza

).

Defendants concede that Pironi Estates at Woodbury

("Woodbury ) was involved in the construction of the house and is properly named as a

Defendant in this action.

The other portion of this action relates to a joint venture agreement between Elia

and Defendant, Pironi Builders , Inc. ("Builders ), wherein the joint venturers agreed to

develop real property located at Polo Estates in Old Westbury and Yellow Coat Road in

Oyster Bay. The second cause of action alleges a breach of the joint venture

agreement. Pironi and Developers move to dismiss this cause of action because they

were not parties to the joint venture agreement.

DISCUSSION

Summary Judgment - Standard

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SI)mmQtju.dgmeF1t rRgtlc will=bS:grl"te-oo wteT-t.h

~~~~~~~~~~..~~~~

movant establishes that there are no triable issues of fact. Andre v. Pomeroy. 35

2d 361 (1974); Mosheyev v. Polevsky, 283 A.D.2d 469 (2 Dept. 2001); and

Akseizer v. Kramer, 265 A.D.2d 356 (2 Dept. 1999).

2 Woodbury asserts that its involvement in the construction of a one family homefor Lizza was far less than is alleged. Woodbury s involvement and potential liabilty isnot the subject of this motion.


The party seeking summary judgment must make a prima facie showing of

entitlement to judgment as a matter of law. Alvarez v. Prospect Hosp , 68 N. 2d 320

(1986); and Zuckerman v. City of New York, 49 N. 2d 557 (1980).

Once the party seeking summary judgment makes a prima facie showing of

entitlement to judgment as a matter of law, the party opposing the motion must come

forward with proof in evidentiary form establishing the existence of triable issues of fact

or establish an acceptable excuse for failng to do so. Id. Davenport v. County of

Nassau , 279 A.D.2d 497 (2 Dept. 2001); and Bras v. Atlas Construction Corp. , 166

A.D.2d 401 (2 Dept. 1991).

When deciding a motion for summary judgment, the court must determine if

triable issues of fact exist. Matter of Suffolk County DeDt. of Social Services v. James

, 83 N. 2d 178 (1994); and Silman v. Twentieth Century-Fox Film Corp. , 3 N.

395 (1957). The motion must be denied if the court has any doubt regarding the

existence of triable issues of fact. Freese v. Schwart, 203 A.D.2d 513 (2 Dept. 1994);

and Miceli v. Purex Corp. 84 A.D.2d 562 (2 Dept. 1984).

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~~~~~~~ ~~~~

the motion and must give that party all of the favorable inferences which can be drawn

from the evidence. Negri v. Stop & Shop. Inc. , 65 N. 2d 625 (1985); and Louniakov v.

R.O. D. Realty COrD. , 282 A.D.2d 657 (2 Dept. 2001).

LlZZ v. AANITRON SYSTEMS , INC., et aI.Index No. 19046-

First Cause of Action - Breach of Contract

The first cause of action alleges that Lizza entered into a contract with Angelo

Woodbury, Developers and/or Builders (collectively "Pironi") pursuant to which Pironi

agreed to construct a one family home for Lizza. Lizza alleges that Pironi breached the

contract since the house which was built had serious construction defects. Marisa

asserts that experts who have inspected the premises have concluded that the

construction defects are so severe that the premises cannot be repaired. Marisa states

that the entire structure must be demolished and rebuilt.

Marisa further asserts that Angelo agreed to oversee and supervise the

construction of the house for a fee and that the usual business formalities attendant to

this type of deal were not followed in this case because of the longstanding friendship

and business relationship between Angelo and Elia.

Elia is the owner of Carlo Lizza & Sons Paving, Inc. ("Paving

).

Paving had

previously performed asphalt work in connection with construction being performed by

Pironi.

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J:inally,Marisa- asser:that=hepa-yments:ere:::m :rGe:R;ATlD E:n9 )evel(;

~~~~~ -'-

not Builders.

The first element of a prima facie case of breach of contract is proof of the

existence of a contract between the Plaintiff and Defendant. Furia v. Furia , 116 A.D.

694 (2 Dept. 1986); and Sylmark Holdings Ltd. v. Silicone Zone International. Ltd. , 5

Misc.3d 285 (Sup. Ct. N.Y. Co. 2004). Plaintiff also has to allege the provisions of the


contract which are claimed to have been breached. Sud v. Sud , 211 A. 2d 423 (2

Dept. 1995); and Atkinson v. Mobil Oil Corp. , 205 A.D.2d 719 (2 Dept. 1994).

Woodbury admits that it was involved in the construction. However, Angelo

denies personal involvement in the construction. Developers also denies any

involvement in the construction.

As part of Lizza prima facie case, they must plead and prove with which Pironi

entity they had a contract. Lizza has failed to do this. Thus, Lizza has failed to

establish the first element of a cause of action for breach of contract; the existence of a

contract between Angelo and/or Developers and them.

Lizza asserts that Angelo was paid $80 000 to supervise the construction of the

Lizza residence. Lizza offers no evidence of Angelo supervising the construction or

that any payments were made to him for such services. Further, Lizza failed to provide

the Court with copies of any single check which was issued to Angelo or Developers on

account of the construction of the Lizza residence, the dates and amounts paid or the

method of payment.

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=Fh P ironi:ti.twbichsued:a=iU=lWgiGe:fgr:TIy=w-9r-klager; atera

~~~~~

or services in connection with the construction of the Lizza residence was Woodbury.

Summary judgment may be denied if the facts essential to defeat summary

judgment exist but cannot be stated because they are within the knowledge of the

moving party. Campbell v. City of New York, 220 A.D.2d 476 (2 Dept. 1995); and

CPLR 3212(f)). Lizza does not make such an argument.


This action relates to construction which was performed in 1997 and 1998. It has

been pending since 2001.

Lizza does not indicate that there is any discovery outstanding from Pironi or any

of the other Defendants which would establish that Angelo and/or Developers were

involved in the construction of the Lizza residence. Therefore, this does not provide

Lizza with a basis for the denial of Angelo and Developer s motion. See, Ward v. New

York City Housing Auth. , 18 A.D.3d 391 (1 Dept. 2005).

Since Angelo and Developers have made a prima facie showing of entitlement to

judgment as a matter of law and Lizza has not come forward with proof in evidentiary

form establishing the existence of triable issues of fact , summary judgment dismissing

the first cause of action against Angelo and Developers must be granted.

Second Cause of Action - Breach of Joint Venture Agreement

The second cause of action seeks damages for breach of a joint venture

agreement. The parties to the joint venture agreement are Elia and Builders.

A joint venture is combination of two or more persons or business entities for a

~~~~

speei.fiG-' Bi:sine8. venhJre See NatuzzbtRadady; kad:0 (-2

~~~~..."~~~

and 16 NY Jur2d Business Relationships 1935.

Since joint ventures are very similar to partnerships, they are governed by

partnership law. R.C. Gluck & Co. v. Tankel , 12 A.D.2d 339 (1 Dept. 1961); and 16 NY

Jur2d Business Relationships 1937.


The rights and obligations of the parties to a written joint venture agreement are

fixed by the agreement. See, Lanier v. Bowdoin , 282 N. Y. 32 (1939); and Levy v.

Leavitt, 257 N.Y. 461 (1931). A joint venture agreement is contract between the parties

to the joint venture agreement. Id. See also Pro Health Care Assoc.. LLP v. April , 3

Misc.3d 1017A, (Sup. Ct., Nassau Co. 2004); and Joachim v. Flanzig , 3 Misc.3d 371

(Sup. Ct. Nassau Co. 2004).

Angelo signed the joint venture agreement as President of Builders.

One may not maintain an action for breach of contract against a party with whom

they are not in privity. La Barte v. Seneca Resources Corp. , 285 A. 2d 974 (4 Dept.

2001); and M. Paladino. Inc. v. J. Lucchese & Sons Contracting Corp. , 247 A.D.2d 515

Dept. 1998).

In this case , the only one with whom Elia is in privity is Builders. Therefore , the

only part against whom Elia can maintain a cause of action for breach of the joint

venture agreement is Builders.

Since Angelo and Developers are not parties to the joint venture agreement, a

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-breaGn GQntraGaGtion.. may~not intned-agajnse nerefGre7. e:mGt4

~~~

for summary judgment dismissing the second cause of action against these Defendants

must be granted.

Third Cause of Action - Negligence

The third cause of action alleges that Pironi negligently supervised the

construction.


A breach of contract claim does not give rise to a separate cause of action in tort

unless the Defendant breached a legal duty separate and apart from its contractual

obligations. Clark-Fitzpatrick v. Long Island Rail Road Co. , 70 N. 2d 382 (1987), Old

Republic National Title Ins. Co. v. Cardinal Abstr Corp. , 14 A.D.3d 678 (2 Dept.2005); and 431 Conklin Corp. v. Rice , 181 A.D.2d 716 (2 Dept. 1992).

In this case , neither Angelo nor Developers had any involvement in the

construction of the Lizza residence. Neither the complaint nor the opposition provide

any evidence that Angelo or Developers had , or violated , any legal duties owed to

Lizza.

Accordingly, the summary judgment to Angelo and Developers dismissing the

third cause of action is warranted.

Fourth Cause of Action - Uniust Enrichment

This cause of action arises out of the Joint Venture agreement. Pursuant to the

terms of the Joint Venture Agreement, Elia was to transfer his ownership interest

propert located at Polo Estates in Old Westbury to the joint venture. The joint venture

-- -.

was- t"en tfH,jp.velop.the- l-ropertY7"se.U:i.t:l1d=plit:he:rofit l=e:oomf:1&iAFallege fl'a

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Developers and Angelo were unjustly enriched by the transfer of the property and

retention of the profits derived from the business of the joint venture.

The joint venture agreement also involved the construction of the Lizza residence

in Oyster Bay. Plaintiffs also seek recovery on the grounds that Developers and


Angelo unjustly received some financial benefit as a result of the construction of the

Lizza residence.

Angelo asserts that Elia never transferred title to Polo Estates to the joint

venture. Lizza does not contest this or offer any evidence indicating that the Polo

Estates property was , in fact , transferred to either Pironi or the joint venture.

Since title to Polo Estates was not transferred to the joint venture , title remains

with Elia, Angelo and Developers cannot have been unjustly enriched by a transaction

which did not occur.

To the extent that the claim attempts to obtain relief relating to the construction of

the Lizza residence , relief cannot be obtained on the theory of unjust enrichment

against Angelo or Developers.

In order to recover in unjust enrichment, a Plaintiff must prove that it performed

services for the Defendant which resulted in the Defendant receiving a benefit. Clark v.

Daby, 300 A.D.2d 732 (3 Dept. 2002); and Lakevile Pace Mechanical. Inc. v. Elmar

Realty Corp. , 276 A.D.2d 673 (2 Dept. 2000). In this case, Plaintiff has not provided

eFViceS"tf)...the.Defets

",.

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To the extent that this cause of action relates to the Lizza residence , Lizza is

seeking restitution , the recovery of money from the Defendants that they should not in

good conscience be permitted to retain. See Wiener v. Lazard Freres & Co. , 241

A.D.2d 114 (2 Dept. 1998). In this case, Angelo and Developers deny receipt of any

money from Lizza in connection with the construction of the Lizza residence. Lizza


does not place before the Court any evidence which would create questions of fact

necessitating a trial on this issue. Therefore , to the extent that the fourth cause of

action seeks to recover money from Angelo and/or Developers in connection with the

construction of the Lizza residence , the summary judgment must be granted and the

amended complaint dismissed as to them.

Fifth and Seventh Causes of Action - Breach of EXDress and ImDliedWarranty

Lizza alleges that Angelo and Developers breached express and implied

warranties that the Lizza residence would be habitable , skilfully constructed and

constructed without defects.

New York does not recognize a cause of action for breach of warranty relating to

the performance of services. Milau Assocs. Inc. v. North Avenue Development Corp.

42 N. 2d 482 (1977); Goldfarb v. Teitlebaum , 149 A.D.2d 566 (2 Dept. 1989); and

Verra v. Koluksuz, 74 A.D.2d 932 (3 Dept. 1980).

Marisa states in her affidavit in opposition to summary judgment that Angelo was

retained to oversee and supervise the construction of the Lizza residence. Overseeing

-.-= .

or supervising construction involves the provision of services.

Marisa never states precisely what Developers ' role was in connection with the

construction of the Lizza residence. To the extent that Developers was involved in the

supervision of the construction of the Lizza residence , it cannot be held liable because a

cause of action does not exist for breach of warranty relating to supervision.

The only implied warranties that apply to the construction of a new house are

LlZZ v. AANITRON SYSTEMS, INC., et aI.Index No. 19046-

those provided for by General Business Law Article 36-B. Fumarell v. Marsam

Development. Inc. , 92 N. 2d 298 (1998). Before commencing an action alleging

breach of the implied warranties contained in General Business Law Article 36- , the

homeowner must provide the builder with written notice of the breach no later than 30

days after the expiration of the warranty. General Business Law 777-a(4)(a). This

notice rule gives the builder a reasonable opportunity to inspect, test and repair the

portion of the home out of which the breach of warranty claims arises. Id. Failure to

provide the builder with written notice of the defect and the reasonable opportunity to

repair requires dismissal of the action. Rosen v. Watermil Develocment Corp. , 1 A.D.

424 (2 Dept. 2003); and Taggart v. Martano , 282 A.D.2d 521 (2 Dept. 2001). To the

extent that the fifth and seventh causes of action seek redress for breach of warranty

under General Business Law Article 36- , they must be dismissed since Lizza has not

alleged or established that they have given notice to Angelo or Developers of the

alleged defects or a reasonable opportunity to inspect, test and repair the defects which

is a condition precedent.

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j;o tAe fo. creasens-, gefendants motion r=mmaqtud9met=ismissi -,c

~~~

the fifth and seventh causes of action must be granted.

Sixth Cause of Action - Conversion

The amended complaint alleges that "the Defendants" converted certain building

materials that were to be use in the construction of the Lizza residence. More

specifically, this cause of action alleges that "the Defendants" converted cedar wood


that was to be used in the construction of the closets in the Lizza residence.

In order to establish a prima facie case of conversion , Plaintiff must establish that

it is the owner or has a superior right of possession to a specific , identifiable chattel , and

the Defendant is exercising control over this chattel in contravention of Plaintiffs rights.

Fiorenti v. Central Emergency Physicians. PLLC , 305 A. 2d 453 (2 Dept. 2003); and

Hart v. City of Albany, 272 A.D.2d 688 (3 Dept. 2000).

That is, in this case, Lizza has to prove that Angelo and/or Developers are

exercising control over the cedar wood in contravention of Lizza s rights. Lizza has not

done so.

The party opposing the motion for summary judgment must lay bare its proof

establishing that triable issues of fact exist. Silberstein. Miklos & Awad. P.C. v. Carson

10 A.D.3d 450 (2 Dept. 2004). If the party opposing the motion for summary judgment

fails to lay bear its proof to establishing the existence of a triable issue of fact , summary

judgment should be granted. Hoot GrD.. Inc. v. Caplan , 9 A.D.3d 448 (2 Dept. 2004).

Angelo and Developers deny that they are in possession of the cedar wood.

Lj:za.offers no.evjdenc that Angelg and/o Qevele afe pFeseAtIY*A""ever were

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possession of the cedar wood. Without proof in evidentiary form that Angelo and/or

Developers are or were in possession of the subject cedar wood, Lizza has failed to

establish the existence of triable issues of fact on their cause of action for conversion.

Therefore, summary judgment should be granted to Angelo and Developers dismissing

the sixth cause of action.


Eighth and Ninth Causes of Action

Angelo and Developers seek summary jUdgment dismissing the eighth and ninth

causes of action. Such relief is unnecessary.

These causes of action specifically seek damages from Defendant Ron Gibbons

Swimming Pools , Inc. in connection with problems relating to the swimming pool at the

Lizza residence. Since these causes of action do not seek damages against either

Angelo or Developers , the dismissal of these actions against said Defendants is

unnecessary inasmuch as these Defendants have no standing to raise these issues.

Accordingly, it is

ORDERED that the motion of the Defendants Angelo Pironi and Pironi

Developers Inc. sued herein as Pironi Development Company for summary judgment is

granted and the amended complaint is hereby dismissed as to these Defendants; and it

is further

ORDERED that counsel for the remaining parties are directed to appear for a

certification conference and to set a trial date on September 16 , 2005 at 9:30 a.

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-Ijs.constitutes tt:e deGjsjQn and-"Qrd

Dated: Mineola , NYJuly 27 2005

"-= -==-'== ==--===== "'="'==-/-

Hon. LEONARD B. AUSTIN , J.

ENTEREDAUG 0 1 2005

NAd AU COUNTYCOUNTY CLEftK' 6f1J1

NO. 19765- SUPREME COURT - STATE OF NEW YORK IAS...

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