`INDEX NO. 501269/2013
`FILED: KINGS COUNTY CLERK 04/13/2017 05:11 PM
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`INDEX NO- 501269/2013
`FILED: KINGS COUNTY CLERK 04312017 05: II”PM
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`RECEIVED NYSCEF: 04/13/2017
`NYSCEF DOC. NO. 120
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`FILED: KINGS COUNTY CLERK 04/13/2017 05:11 PM
`FILED: KINGS COUNTY CLERK 04312017 05:11 PM
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`INDEX NO. 501269/2013
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`FILED: KINGS COUNTY CLERK 04/13/2017 05:11 PM
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`NYSCEF DOC. NO. 120
`NYSCEF DOC. NO. 120
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`INDEX NO. 501269/2013
`INDEX NO. 501269/2013
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`R<.C«.IV«.D \IYSCEF: 04/13/2017
`RECEIVED NYSCEF: 04/13/2017
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`FILED: KINGS COUNTY CLERK 04/13/2017 05:11 PM
`FILED: KINGS COUNTY CLERK 04£E12017 05:11 PM
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`NYSCEF DOC. NO.
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`NYSCEF DOC. NO. 120
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`501269/2013
`INDEX NO. 501269/2013
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`RECEIVED NYSCEF: 04/13/2017
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS:
`TRIAL TERM PART COMM 4
`
`MB DIN CONSTRUCTION INC.,,
`
`Plaintiff,
`
`- against -
`
`INDEX NUMBER:
`
`501269/2013
`
`INC., AMERICAN SAFETY
`DELTA IRON & CONSTRUCTION,
`CASUALTY INSURANCE COMPANY, CITY OF NEW YORK & JOHN
`DOES lfllO AND OTHER SIMILARLY SITUATED,
`
`Defendants.
`
`360 Adams Street
`
`Brooklyn, New York 11201
`March 8, 2016
`Decision
`
`BEFORE:
`
`-
`
`HONORABLE LAWRENCE KNIPEL, Justice
`
`APPEARANCES:
`
`KING & KINGr LLP
`Attorneys for the Plaintiff
`629 5th Avenue
`
`7
`10803
`Pelham, New York
`BY:
`PETER M. KUTIL, ESQ., Of Counsel
`
`SAMAAN &
`WESTERMANNr SHEEY, KEENAN,
`AYDELOTT, LLP
`
`Attorneys for the Defendant American Safety
`333 Earle Ovington Blvd., Suite 702
`Uniondale, New York
`11553
`BY:
`ROBERT FRYMAN, ESQ., Of Counsel
`MICHAEL J. ROSENTHAL, ESQ., Of Counsel
`
`ANDREW MUCHMORE, ESQ.,
`Attorney for the Intervening Plaintifif
`217 Havemeyer Street, 4th Floor
`Brooklyn, New York
`11211
`
`NANCY A. MESSANO
`
`Official Court Reporter'
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`FILED: KINGS COUNTY CLERK 04/13/2017 05:11 PM
`FILED: KINGS COUNTY CLERK 0415,2017 05:11 PM
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`NYSCEF DOC. NO. 120
`NYSCEF DOC. NO. 120
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`INDEX NO. 501269/2013
`INDEX NO. 501269/2013
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`RnCnIVnD NYSCEF: 04/13/2017
`RECEIVED NYSCEF: 04/13/2017
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`Proceedings
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`THE COURT: All right,
`
`thank you, Counsel.
`
`Okay.
`
`Let me —— I am going to give you a decision on this right
`
`from the bench.
`
`I will write something out.
`
`Okay, upon the credible evidence adduced at trial
`
`this Court makes the following findings of fact and reaches
`
`the following conclusions of law.
`
`On July 30, 2010, MB
`
`Din entered into a number of contracts with Delta Iron for
`
`masonry related subcontracting work at 1605 Nelson Avenue
`
`in the Bronx.
`
`For identical work at the same premiSes one
`
`contract which contains a contract price of $1.7 million,
`
`another contract contains a contract price of $1.2 million
`
`which is typed in apparently later modified to sum of
`
`$825,000 which was written by hand.
`
`To complicate matters even further plaintiff MB
`
`Din submitted to the City of New York, Department of Design
`
`and Construction a request for approval of this work for
`
`the sum of $725,000.
`
`The DDC which is the Department of
`
`Design and Construction eventually approved plaintiff's
`
`work proposal for the proposed sum of $725,000 and the New
`
`York City Department of Labor Services issued a quote less
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`than $750,000 subcontract certificate.
`
`Work then proceeded and plaintiff was eventually
`
`removed from performance when the services of its general
`
`contractor Delta were terminated.
`
`It is uncontested that
`
`the plaintiff received payments in the sum of $644,000
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`FILED: KINGS COUNTY CLERK 04/13/2017 05:11 PM
`FILED: KINGS COUNTY CLERK 04m2017 05:11 PM
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`NYSCEF DOC. NO. 120
`NYSCEF DOC. NO. 120
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`INDEX NO. 501269/2013
`INDEX NO- 501269/2013
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`RflCflIVflD VYSCEF: 04/13/2017
`RECEIVED NYSCEF: 04/13/2017
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`Proceedings
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`toward payment of the contract price and an additional
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`$42,000 change order.
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`Plaintiff seeks compensation based upon the now
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`produced $1.7 million contract and an additional $42,000
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`for the change order.
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`Plaintiff claims that it completed
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`$1.5 million in value toward the work needed or i- which
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`works out to about 88 percent of the contract price.
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`The first issue and main issue really is that this
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`Court must address what was the contract price.
`
`In light
`
`of plaintiff's open public representations that the
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`contract price was only $725,000 and the municipal
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`approvals which were all predicated upon plaintiff's
`
`representations this Court finds that the plaintiff is now
`
`collaterally estopped from claiming that the contract price
`
`was anything more than the $?25,000 which plaintiff himself
`
`represented the contract price to be.
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`Even if full credit
`
`is afforded plaintiff's claim that 88 percent of the
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`contract work was completed, 88 percent of $725,000 is
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`$638,000 and by adding the additional $42,000 change order
`
`it results in a total sum of $680,000 owed for MB Din‘s
`
`work.
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`When the $644,000 already paid is subtracted from
`
`the net balance owing it only leaves a net balance from
`
`that number,
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`the net balance owing is only $36,000.
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`However, this Court cannot credit plaintiff's
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`FILED: KINGS COUNTY CLERK 04/13/2017 05:11 PM
`FILED: KINGS COUNTY CLERK 04m2017 05:11 PM
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`NYSCEF DOC. NO. 120
`NYSCEF DOC. NO. 120
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`INDEX NO. 501269/2013
`INDEX NO- 501269/2013
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`ReCeIVeD vYSCEF: 04/13/2017
`RECEIVED NYSCEF: 04/13/2017
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`Proceedings
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`claim to have completed 88 percent of the work or at least
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`to have proved that.
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`Plaintiff has failed to substantiate
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`this allegation.
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`The record herein is bereft of any
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`evidence that would corroborate or substantiate plaintiff's
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`claim in this regard.
`Plaintiff relies only upon his
`subjective conclusion and self serving estimate that one
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`and a half million dollars was -- of work was completed
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`prior to the time he left the project.
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`Furthermore, convincing evidence has been receive
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`indicating that the reasonable expenses incurred to
`
`complete the work of MB Din vastly exceeded $36,000.
`
`In
`
`fact the reasonable expenses of completing MB Din‘s work
`
`exceeded $36,000 by several hundreds of thousands of
`
`dollars.
`
`Accordingly verdict is rendered in defendant's
`
`favor as the payments already advanced more than satisfy
`
`sums owed under the contract and change order.
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`, And the
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`complaint is therefore dismiSSed.
`
`In light of this finding
`
`plaintiff Dean's complaint is likewise dismissed because MB
`
`Din has not realized any recovery herein.
`
`I signed a written order to that effect.
`
`Counsel, have a good day.
`“——
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`OFFICIA COURT REPORTER.
`
`nam
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`
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