Benfield Partners, Inc. v Home Record, LLC 2025 NY Slip Op 30107(U) January 13, 2025 Supreme Court, New York County Docket Number: Index No. 157656/2022 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 157656/2022 NYSCEF DOC. NO. 142 RECEIVED NYSCEF: 01/13/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ARLENE P. BLUTH PART 14 Justice ---------------------------------------------------------------------------------X INDEX NO. 157656/2022 BENFIELD PARTNERS, INC., MOTION DATE 12/09/2024 Plaintiff, MOTION SEQ. NO. 006 -v- HOME RECORD, LLC, 291 GRAND OWNER, LLC DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 006) 118, 119, 120, 121, 122, 123, 124, 125, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139 were read on this motion to/for VACATE/STRIKE - NOTE OF ISSUE .
Defendant Home Record LLC’s (“Home Record”) motion to strike plaintiff’s note of
issue is granted, and plaintiff’s cross motion for summary judgment is denied.
Background
Plaintiff Benfield Partners, Inc. (“Benfield”) is a contractor that claims it performed
renovations on a property located at 291 Grand Street in Manhattan for defendant Home Record
LLC (“Home Record”) in 2021.1 Benfield brought claims for breach of contract and account
stated and insists that it had a deal with Home Record for $247,687, was paid $90,000, and is
therefore still owed $157,687.
Home Record asserted the affirmative defenses of payment in full and inaccurate
statement of services rendered and claims that Benfield did not finish the work on time or in a
workmanlike manner.
1 Before this Court is also a related matter involving the same parties but a different property, Index Number 157655/2022. 157656/2022 BENFIELD PARTNERS, INC. vs. HOME RECORD, LLC ET AL Page 1 of 6 Motion No. 006
1 of 6 [* 1] INDEX NO. 157656/2022 NYSCEF DOC. NO. 142 RECEIVED NYSCEF: 01/13/2025
On September 4, 2024, Benfield filed a note of issue in which it certified that all
discovery was completed. On September 24, 2024, Home Record filed the instant motion to
strike plaintiff’s note of issue or, alternatively, to stay the deadline for filing a summary
judgment motion. Benfield opposes the motion to strike and cross-moves for summary judgment
on its two causes of action.
In support of its motion to strike the note of issue, Home Record points out that party
depositions have not yet occurred and there are substantial unresolved discovery issues. Primary
among these issues is that Benfield claims it sent thousands of pages of discoverable material to
Home Record, while Home Record claims it only received sixty-one pages. In its attorney’s
affirmation, Benfield doubles down and states that it offered to schedule post note of issue
depositions, although it did not believe them to be necessary.
In support of its cross motion for summary judgment, Benfield includes an affirmation
from Christopher Benfield (a principal of Benfield) and a spreadsheet.
Mr. Benfield states that the original agreed upon budget was $129,773 with an additional
$112,947 due from change orders for a total of $247,687.2 Mr. Benfield also states that Benfield
received two payments for a total of $90,000 for its work on the project. He further claims that
Benfield stopped working on the project because it was not receiving payments.
The spreadsheet attached by Benfield’s counsel shows an original budget of $129,773,
$4,967 for “adjust of allowance budgets,” and “total additional scope” of $112,947 for a total of
$247,687 (NYSCEF Doc. No. 132). From the total is subtracted two payments from Home
Record totaling $90,000 showing an outstanding total of $157,687 (id.). However, the
2 The Court notes that $129,773 added to $112,947 would be $242,720. 157656/2022 BENFIELD PARTNERS, INC. vs. HOME RECORD, LLC ET AL Page 2 of 6 Motion No. 006
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spreadsheet indicates that the payments actually totaled $97,987.50 when tax was included (id.).
The spreadsheet further states “percentages listed on all budgets starting from 2019 (id.).”
In opposition to Benfield’s motion for summary judgment, Home Record alleges there
are questions of material fact related to: the specific work requested by Home Record, the scope
and quality of work performed, the total payments made, whether all work was completed in
accordance with the parties’ agreement, the validity of the alleged change orders, the timeline of
performance, and the accuracy of plaintiff's billing records. Home Record claims that it made
five separate payments to Benfield totaling $359,078.25, which Benfield has not properly
credited.3
Discussion
Defendant’s Motion to Vacate the Note of Issue
22 NYCRR 202.21 (e) provides that a court may vacate a note of issue if it appears that a
material fact in the certificate of readiness is incorrect. Here, Benfield claimed in the certificate
of readiness that all known necessary discovery was completed. This is simply not the case. The
parties have not been deposed despite the Court ordering depositions (see NYSCEF Doc. No.
97), and there is a disagreement about the quantity and responsiveness of the documents Home
Record received.
Moreover, this part’s rules require that a note of issue can only be filed with permission
of the Court and this Court never set a note of issue deadline. The purpose of such a rule is to
avoid the instant motion practice—a situation where a plaintiff files a note of issue long before
discovery is completed. Clearly, Home Record is entitled to much more discovery.
3 This figure appears to be for both this project as well as the related project which is the subject of separate litigation. 157656/2022 BENFIELD PARTNERS, INC. vs. HOME RECORD, LLC ET AL Page 3 of 6 Motion No. 006
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The Court therefore grants Home Record’s motion to vacate the note of issue and Home
Record may proceed with discovery, both document discovery and depositions. However, as
Benfield represented in the certificate of readiness that all discovery is complete, and in these
motion papers its counsel affirms that depositions are not necessary, this Court believes Benfield
and finds that it is not entitled to seek any discovery from Home Record.
Plaintiff’s Cross-Motion for Summary Judgment
To be entitled to the remedy of summary judgment, the moving party “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 from the case” (Winegrad v New York
Univ. Med. Ctr., 64 NY2d 851, 853, 487 NYS2d 316 [1985]). The failure to make such a prima
facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers
(id.). When deciding a summary judgment motion, the court views the alleged facts in the light
most favorable to the non-moving party (Sosa v 46th St. Dev. LLC, 101 AD3d 490, 492 [1st Dept
2012]).
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Benfield Partners, Inc. v Home Record, LLC 2025 NY Slip Op 30107(U) January 13, 2025 Supreme Court, New York County Docket Number: Index No. 157656/2022 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 157656/2022 NYSCEF DOC. NO. 142 RECEIVED NYSCEF: 01/13/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ARLENE P. BLUTH PART 14 Justice ---------------------------------------------------------------------------------X INDEX NO. 157656/2022 BENFIELD PARTNERS, INC., MOTION DATE 12/09/2024 Plaintiff, MOTION SEQ. NO. 006 -v- HOME RECORD, LLC, 291 GRAND OWNER, LLC DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 006) 118, 119, 120, 121, 122, 123, 124, 125, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139 were read on this motion to/for VACATE/STRIKE - NOTE OF ISSUE .
Defendant Home Record LLC’s (“Home Record”) motion to strike plaintiff’s note of
issue is granted, and plaintiff’s cross motion for summary judgment is denied.
Background
Plaintiff Benfield Partners, Inc. (“Benfield”) is a contractor that claims it performed
renovations on a property located at 291 Grand Street in Manhattan for defendant Home Record
LLC (“Home Record”) in 2021.1 Benfield brought claims for breach of contract and account
stated and insists that it had a deal with Home Record for $247,687, was paid $90,000, and is
therefore still owed $157,687.
Home Record asserted the affirmative defenses of payment in full and inaccurate
statement of services rendered and claims that Benfield did not finish the work on time or in a
workmanlike manner.
1 Before this Court is also a related matter involving the same parties but a different property, Index Number 157655/2022. 157656/2022 BENFIELD PARTNERS, INC. vs. HOME RECORD, LLC ET AL Page 1 of 6 Motion No. 006
1 of 6 [* 1] INDEX NO. 157656/2022 NYSCEF DOC. NO. 142 RECEIVED NYSCEF: 01/13/2025
On September 4, 2024, Benfield filed a note of issue in which it certified that all
discovery was completed. On September 24, 2024, Home Record filed the instant motion to
strike plaintiff’s note of issue or, alternatively, to stay the deadline for filing a summary
judgment motion. Benfield opposes the motion to strike and cross-moves for summary judgment
on its two causes of action.
In support of its motion to strike the note of issue, Home Record points out that party
depositions have not yet occurred and there are substantial unresolved discovery issues. Primary
among these issues is that Benfield claims it sent thousands of pages of discoverable material to
Home Record, while Home Record claims it only received sixty-one pages. In its attorney’s
affirmation, Benfield doubles down and states that it offered to schedule post note of issue
depositions, although it did not believe them to be necessary.
In support of its cross motion for summary judgment, Benfield includes an affirmation
from Christopher Benfield (a principal of Benfield) and a spreadsheet.
Mr. Benfield states that the original agreed upon budget was $129,773 with an additional
$112,947 due from change orders for a total of $247,687.2 Mr. Benfield also states that Benfield
received two payments for a total of $90,000 for its work on the project. He further claims that
Benfield stopped working on the project because it was not receiving payments.
The spreadsheet attached by Benfield’s counsel shows an original budget of $129,773,
$4,967 for “adjust of allowance budgets,” and “total additional scope” of $112,947 for a total of
$247,687 (NYSCEF Doc. No. 132). From the total is subtracted two payments from Home
Record totaling $90,000 showing an outstanding total of $157,687 (id.). However, the
2 The Court notes that $129,773 added to $112,947 would be $242,720. 157656/2022 BENFIELD PARTNERS, INC. vs. HOME RECORD, LLC ET AL Page 2 of 6 Motion No. 006
2 of 6 [* 2] INDEX NO. 157656/2022 NYSCEF DOC. NO. 142 RECEIVED NYSCEF: 01/13/2025
spreadsheet indicates that the payments actually totaled $97,987.50 when tax was included (id.).
The spreadsheet further states “percentages listed on all budgets starting from 2019 (id.).”
In opposition to Benfield’s motion for summary judgment, Home Record alleges there
are questions of material fact related to: the specific work requested by Home Record, the scope
and quality of work performed, the total payments made, whether all work was completed in
accordance with the parties’ agreement, the validity of the alleged change orders, the timeline of
performance, and the accuracy of plaintiff's billing records. Home Record claims that it made
five separate payments to Benfield totaling $359,078.25, which Benfield has not properly
credited.3
Discussion
Defendant’s Motion to Vacate the Note of Issue
22 NYCRR 202.21 (e) provides that a court may vacate a note of issue if it appears that a
material fact in the certificate of readiness is incorrect. Here, Benfield claimed in the certificate
of readiness that all known necessary discovery was completed. This is simply not the case. The
parties have not been deposed despite the Court ordering depositions (see NYSCEF Doc. No.
97), and there is a disagreement about the quantity and responsiveness of the documents Home
Record received.
Moreover, this part’s rules require that a note of issue can only be filed with permission
of the Court and this Court never set a note of issue deadline. The purpose of such a rule is to
avoid the instant motion practice—a situation where a plaintiff files a note of issue long before
discovery is completed. Clearly, Home Record is entitled to much more discovery.
3 This figure appears to be for both this project as well as the related project which is the subject of separate litigation. 157656/2022 BENFIELD PARTNERS, INC. vs. HOME RECORD, LLC ET AL Page 3 of 6 Motion No. 006
3 of 6 [* 3] INDEX NO. 157656/2022 NYSCEF DOC. NO. 142 RECEIVED NYSCEF: 01/13/2025
The Court therefore grants Home Record’s motion to vacate the note of issue and Home
Record may proceed with discovery, both document discovery and depositions. However, as
Benfield represented in the certificate of readiness that all discovery is complete, and in these
motion papers its counsel affirms that depositions are not necessary, this Court believes Benfield
and finds that it is not entitled to seek any discovery from Home Record.
Plaintiff’s Cross-Motion for Summary Judgment
To be entitled to the remedy of summary judgment, the moving party “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 from the case” (Winegrad v New York
Univ. Med. Ctr., 64 NY2d 851, 853, 487 NYS2d 316 [1985]). The failure to make such a prima
facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers
(id.). When deciding a summary judgment motion, the court views the alleged facts in the light
most favorable to the non-moving party (Sosa v 46th St. Dev. LLC, 101 AD3d 490, 492 [1st Dept
2012]).
Once a movant meets its initial burden, the burden shifts to the opponent, who must then
produce sufficient evidence to establish the existence of a triable issue of fact (Zuckerman v City
of New York, 49 NY2d 557, 560, 427 NYS2d 595 [1980]). The court’s task in deciding a
summary judgment motion is to determine whether there are bona fide issues of fact and not to
delve into or resolve issues of credibility (Vega v Restani Constr. Corp., 18 NY3d 499, 505, 942
NYS2d 13 [2012]). If the court is unsure whether a triable issue of fact exists, or can reasonably
conclude that fact is arguable, the motion must be denied (Tronlone v Lac d'Amiante Du Quebec,
Ltee, 297 AD2d 528, 528-29, 747 NYS2d 79 [1st Dept 2002], affd 99 NY2d 647, 760 NYS2d 96
[2003]).
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Benfield failed to meet its burden on either its contract or account stated claims; there are
clearly material issues of fact. Benfield alleges a breach of contract cause of action, but no
contract has been produced or described in sufficient detail. Furthermore, Benfield’s exhibits are
not consistent in regard to what payments it purportedly received from Home Record. Curiously,
the spreadsheet states “percentages listed on all budgets starting from 2019” while the complaint
claims that all work took place in 2021, and there are no percentages listed on the spreadsheet.
Lastly, Benfield admits that it stopped working on the project before it was completed, which
raises additional issues of fact regarding the extent to which Benfield was in compliance with the
parties’ alleged agreement.
Regarding the part of Benfield’s cross-motion that seeks summary judgment on the
account stated claim, Benfield has neither annexed any change orders nor a single invoice as an
exhibit. It also did not allege the specific dates when payments were originally requested or how
much it requested from Home Record. Benfield clearly has not met its burden to show as a
matter of law on an account stated theory of recovery.
Accordingly, it is hereby
ORDERED that defendant’s motion to strike plaintiff’s note of issue is granted; and it is
further
ORDERED that plaintiff’s cross-motion for summary judgment is denied; and it is
ORDERED that plaintiff must sit for its initial deposition by February 21, 2025; if it is
determined that there were documents not produced that were demanded before the deposition,
then this Court may order another deposition if a motion seeking such relief is made; and it is
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ORDERED that plaintiff has waived its right to take defendant’s deposition or seek any
further discovery from defendant by representing that all discovery is complete or not necessary;
and it is further
ORDERED that the case is stricken from the trial calendar; and it is further
ORDERED that, within 15 days from the entry of this order, defendant Home Record LLC
shall serve a copy of this order with notice of entry on all parties and upon the Clerk of the General
Clerk’s Office, who is hereby directed to strike the case from the trial calendar and make all
required notations thereof in the records of the court; and it is further
ORDERED that such service upon the Clerk of the General Clerk’s Office shall be made
in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk
Procedures for Electronically Filed Cases (accessible at the “E-Filing” page on the court’s
website)].
ORDERED that the discovery conference is adjourned to March 17, 2025 at 10 a.m. By
March 10, 2025, the parties shall upload 1) a stipulation about discovery signed by all parties, 2)
a stipulation of partial agreement that identifies the areas in dispute or, 3) letters explaining why
no agreement about discovery could be reached. The Court will then assess whether a conference
is necessary (i.e., if the parties agree, then an in-person conference may not be required).
If nothing is uploaded by March 10, 2025, or if the documents submitted show that
inadequate progress has been made, the Court may adjourn the conference.
01/13/2025 DATE ARLENE P. BLUTH, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
GRANTED DENIED GRANTED IN PART x OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
157656/2022 BENFIELD PARTNERS, INC. vs. HOME RECORD, LLC ET AL Page 6 of 6 Motion No. 006
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