list? 2015 SUPREME COURT STATE OF NEW YORK COUNTY OF MONROE B. THOMAS GOLISANO Plaintiff, vs. Index 2015/10706 VITOCH INTERIORS, LTD., ARTHUR VITOCH, and NORMA GOLDMAN Defendants. SpedalTenn Ap?l21,2016 Appearances Glenn E. Pezzulo, Esq. Culley, Marks, Tanenbaum Pezzulo, LLP 36 Main Street, Suite 500 Rochester, NY 14614 David Rothenberg, Esq. Geiger and Rothenberg, LLP 45 Exchange Street, Suite 800 Rochester, NY 14614 Decision Rosenbaum, Defendants by Notice of Motion seek an order pursuant to CPLR 3212 granting summaryjudgment. Plaintiff opposes defendants? motion for summary judgment on the basis that triable'issues of fact exist, and the motion is premature . Discussion: Plaintiff hired defendants to refurbish his 240 foot luxury yacht ?My Laurel? between November 7, 2013 and December 18, 2013 while the boat was docked in South Florida. (Complaint, Def. Ex. A) The parties had an oral agreement whereby Defendant Goldman allegedly agreed to an hourly-rate of $140 per hour, but that all materials would be provided at her cost without markup. (Complaint 10-12; Golisano depo. 1.2/23/15 58,76,83,132?136; see also Aff?d Golisano dated 4?7?16; Seles 3?28?16; Diekmann 4-9?16) According to plaintiff, the crux of the lawsuit is ?simply about price? regarding the materials markup. (Golisano depo. Pg. 122) Plaintiff claims that at a July 2014 meeting Defendant Goldman refused to provide invoices to prove or refute the alleged markups, and admitted to marking up the labor for mechanical things. (159,160,161) Plaintiff accepted the work, albeit with noted complaints, and made final payment in June 2014. One month later, at a meeting in July 2014 plaintiff told Defendant Goldman?that he would sue. (165). Plaintiff commenced his action by filing the summons and complaint on September 25, 2015. The complaint alleges two causes of action, Breach of Contract and Unjust Enrichment and seeks $400,000 in damages. Defendant Goldman in her affidavit dated January 27, 2016 avers: - 7. In other words, for every item sold to the plaintiff, he was charged less than the manufacturer?s suggested retail price, or less than the normal price that would have been charged by Vitoch, applying their usual and customary markup. 8. In 2007 and 2009 I did design and decorating Work for plaintiff in connection with his Rochester residence located in Mendon, New York. 9. When I did work on plaintiff?s residence, I billed him an hourly rate for my time, plus charges for all of the goods sold. The pricing for the goods was-based'on a discount from the manufacturer?s suggested retail price, or theusual 2 and customary markup applied by Vitoch Interiors, LTD. 10. My billing practice for the refurbishment of the Laurel was exactly the same as the practice that had been - employed by mewhen I did work on plaintiff?s residence on 2007 and 2009. Defendant Goldman affirms plaintiff?s claim that there was an agreement he would be billed less than the full markup. However, the parties differ in regards to whether the agreement provided that plaintiff would be billed Defendant Goldman?s actual cost. Defendant Goldman states: categorically deny that I ever promised plaintiff that there would be zero markup on all the items sold and delivered for installation on the Laurel. (Reply aff?d 4?18?16 1113) She avers that she followed the same protocol on plaintiff?s home. renovations as done here, that is to charge separately for her time and for the products used which products she discounted from list or manufacturer?s suggested retail price. (Id. 1115). Plaintiff in' opposition has submitted his affidavit, that of his wife, Monica Seles, and Mark Diekmann, the yacht captain, all averring that at the DeCember 2013 meeting Defendant Goldman assured plaintiff that she would charge plaintiff her cost without markup for ?materials, furnishings, and fabrics? for the project. (Golisano aff?d dated 4/7/16; Seles 3/28/16 and Diekmann 4/9/16). Plaintiff Golisano further smeits, I trusted that Defendants were complying with our agreement that I would be charged their cost for all goods/materials. Because of the even dollar amounts Defendant Goldman requested each time, I also understood that I was making advance payments for the goods/materials and that my advance payments were approximate amounts she thought the goods/materials being ordered would cost her. I requested a meeting Defendant Goldman and another representative from Defendant Vitoch in July 2014 (one month after final payment) for the purpose of reviewing their charges and determining whether or not they had 3 complied with their agreement to charge me their cost for the goods/materials. At the meeting, I requested that Defendants provide me with documentation showing their actual cost for the goods/materials, but they refused to provide any such invoices or other documentation. (Golisano aff?d Summary Judgment: . It is well settled law that ?the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.? (Alvarez v. Prospect Hosp., 68 320, 324, (1986)(citations omitted). ?Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers.? (E). On a motion for summary judgment, the Court must view the evidence as true, and in a light most favorable to the nonmoving party. (Hartford v. General Accident, 177 1046, (4th Dept., 1991). The Court?s function is ?issue finding rather than issue determination." (Patton v. Matusik, 16 1072, (4th Dept., 2005). Once the movant meets its initial burden, the non-moving party ?must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact.? (Zuckerman v. New York, 49 557, 565 (1980). The opponent must ?lay bare his proofs (in admissible form) and make an evidentiary showing that there exist genuine, triable issues of fact.? (Oats v. Marino, 106 289, 291, (1St Dept., 2008). Defendants seek summary judgment dismissing the action pursuant to UCC Article 2 on the basis that plaintiff accepted the goods sold and delivered, paid the contract price, and his sole remedyunder Article 2 is an action arising out of non?conforming goods which is not applicable here. (Rothenberg affi?m 01?28?16 pgs. For this Court to reach that determination, the Court must find as a matter of law that the oral contract between the parties is 4 i predominantly one for the sale of goods, thus controlled by the UCC Article 2. Defendant as movant on a motion for summary judgment has the burden upon a sufficient evidentiary showing to ?demonstrate the absence of any material issues of fact.? (Alvarez, supra). Even assuming defendants had met their initial burden, which they have not, triable issues of fact exist, both as to whether the UCC applies, and if it applies whether it wOuld bar plaintiff?s action. The test adopted by priorjudicial determinations ?is whether the agreement is ??predominantly?? one for the sale of goods or for the providing of services." (Citations omitted, Levin Hoffman Fuel Company, 94 640, (.1st Dept. 1983). Here, the alleged?oral contract was for both goods and services. It is undisputed that Defendant Goldman was providing her services and expertise to refurbish the interior of plaintiff?s yacht. Plaintiff submits that he retained Defendant Goldman because of her ?expertise in the field of interior design and because of the excellent interior design services she had provided to me?on two separate occasions.? (Golisano aff?d 1115). Accepting plaintiff?s version of why Ms. Goldman was retained to perform the work, it appears that the agreement was predominantly one for service rather than the sale of goods. Plaintiff claims that he selected defendant for her expertise in interior decorating which included her expert determination as to what products should be used to accomplish the job, both practical for type of installation as well as aesthetically pleasing. From plaintiff?s perspective, the importance of the agreement was Defendant Goldman?s expertise rather than the purchase of the products she used." Plaintiff submits that he paid estimated bills for goods and Services prospectively. - Under a factually similar scenario, where a buyer purchased an alarm system made up of wires, bells, transistors etc. installed by seller, the majority found an issue of fact whether the agreement was one for the sale of goods controlled by the UCC or predominantly for services. (Back O?Beyond v. Telephonic Enterprises, 76 897 (2an Dept. 1980); See also Buffalo Municipal Housing v. Elio Products, 164 969, (4th Dept. 1990). The dissent disagreed and claimed the installation was ?merely an incidental feature of the transaction,? but the ?essence of the transaction remained the purchase of goods. (E). 5 . Similarly, the Court found a question of fact existed whether a contract for the materials and installation of a farm silo was in ?essenceone for services or one for the sale of goods.? (Farm Automation Corp. v. Senter, 84 757 (2an Dept. 1981). Applying those principals here, issues of fact exist whether this contract between the parties was predominantly one for services or one for goods. (Buffalo Municipal Housing, supra). Secondly, upon determination of the factual issue regarding application of the UCC rules, even asSuming that there is a determination that the UCC applies, issues of fact would remain as to whether relief is barred under the UCC, whether defendants breached their UCC duty of good faith, and the price term of the contract and reasonableness thereof. (Koeniq Iron Works v. Sterling, 1999 US. Dist. LEXIS 3973, 18 (SD. N.Y. 1999); Feld v. Henry, 37 466, 471 (1975); U.C.C. Lastly, plaintiff submits that defendants rather than provide discovery, prematurely filed the motion for summary judgment. Plaintiff submits that discovery which is in the possession of . defendants including ?the terms of the oral agreement relating to the payment terms; all work performed by Defendants; the prices Defendants were charged and paid for the goods/materials used and the prices Defendants, in turn, charged Plaintiff for them." (Brief pg 13, 14). Plaintiff claims the discovery is necessary to establish he was never made aware of the markups, rather he was led to believe by Defendant Goldman that Defendants were complying with the agreement. Although the discovery plaintiff seeks is necessary for the prosecution of his case, his position that the discovery is necessary to oppose the motion is deemed moot by this Court?s determination that issues of fact exist. Accordingly, defendants? motion for summary judgment is denied. This constitutes the opinion and decision of the Court pursuant to CPLR 4213. Any relief requested by the Parties, but not specifically 6 granted herein is denied. Counsel for Plaintiff shall submit the order on notice. Dated: {/09 I'va'bz? I MATTHEW A. ROSENBAUM Supreme Court Justice