Joseph L. Balkan, Inc. v. Loguidice

2025 NY Slip Op 33018(U)

• Court: New York Supreme Court, New York County
• Decided: August 5, 2025
• Docket: Index No. 650017/2022
• Status: Unpublished

Opinion

Joseph L. Balkan, Inc. v Loguidice 2025 NY Slip Op 33018(U) August 5, 2025 Supreme Court, New York County Docket Number: Index No. 650017/2022 Judge: Lyle E. Frank 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. 650017/2022 NYSCEF DOC. NO. 150 RECEIVED NYSCEF: 08/05/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LYLE E. FRANK PART 11M Justice ---------------------------------------------------------------------------------X INDEX NO. 650017/2022 JOSEPH L. BALKAN, INC., MOTION DATE 04/24/2025 Plaintiff, MOTION SEQ. NO. 004 -v- DOMINICK LOGUIDICE, XINOS CONSTRUCTION CORP. DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 004) 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149 were read on this motion to/for JUDGMENT - SUMMARY .

Background

This action arises out of allegations defendants failed to pay plaintiff in full for performed

construction services. Plaintiff, Joseph L. Balkan, Inc. (“plaintiff”) is a New York based

plumbing and sewer company. Defendants Dominick Loguidice and Xinos Construction Corp.

(“defendants”) hired plaintiff to perform services at defendants’ property located at 236 East

74th Street, New Yok, NY 10021.1

On or about September 24, 2018, plaintiff and defendants entered into an agreement

whereby plaintiff agreed to replace and lower defendants’ sewer pipe in exchange for payment of

$36,500.00 (the “Original Contract”). On August 2, 2019, plaintiffs allege defendants revised the

scope of work, and on August 20, 2019, entered into another agreement (“Change Order 1”) in

which plaintiff was to install a sewer line inside the basement of the property. On August 26,

2019, plaintiff alleges the parties entered into a further agreement stemming from the Original

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Contract (“Change Order 2”) whereby the parties acknowledged that more workers were

required for rock breaking than the original estimate contained in Change Order 1. Change Order

2 stated that the work described therein was in “[a]ddition to proposal number 44188 [the

Original Contract] due to client request to lower sewer requiring additional rock breaking.”

Defendants’ amended answer contains a counterclaim for breach of warranty. Plaintiff

moves for summary judgment on Defendants’ counterclaim. Defendants’ cross-move to amend

the counterclaim and for summary judgment on Plaintiff’s contractual claim for attorney’s fees.

Standard of Review

Under CPLR § 3212, a party may move for summary judgment and the motion “shall be

granted if, upon all the papers and proof submitted, the cause of action or defense shall be

established sufficiently to warrant the court as a matter of law in directing judgment in favor of

any party.” CPLR § 3212(b). Once the movant makes a showing of a prima facie entitlement to

judgment as a matter of law, the burden then shifts to the opponent to “produce evidentiary proof

in admissible form sufficient to establish the existence of material issues of fact which require a

trial of the action.” Stonehill Capital Mgt. LLC v. Bank of the W., 28 N.Y.3d 439, 448 (2016).

The facts must be viewed in the light most favorable to the non-moving party, but conclusory

statements are insufficient to defeat summary judgment. Id.

Discussion

Contractual warranties are limited to the sales of goods and do not apply to agreements

for the performance of services nor transactions deemed to be predominantly service oriented

(Milau Associates v North Ave. Development Corp., 42 NY2d 482, 398 NYS2d 882, 368 NE2d

1247 [1977]). Since the Original Contract and change orders at issue in this case are primarily

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for the performance of services, not the furnishing of goods, the breach of warranty claim fails.

Therefore, the counterclaim for breach of warranty is dismissed.

In addition, the motion to amend the counterclaim to change it from a warranty claim to

one for an implied promise to provide services in a certain manner is simply a change in

semantics. It does not change the nature of the claim, which the Court is dismissing. Therefore,

the motion to amend is denied.

Finally, Defendants move for summary judgment on Plaintiff’s contractual attorney’s

fees claim. Defendants argue that the only agreements with an attorney’s fees provision are the

Original Contract and Change Order 1. Defendants further argue that they have paid the entire

balance of the Original Contract and Change Order 1. Therefore, Defendants argue, the

attorney’s fees claim must be dismissed.

It is correct that the Original Contract, as well as Change Order 1, contained a provision

that stated: “Client reneging on payment terms will be responsible for lawyer fees in the sum of

30% of the amount unpaid.” Nevertheless, Change Order 2 clearly stated the proposal was an

“[a]ddition to proposal number 44188 [the Original Contract],” which Plaintiff argues would

include the provision within the Original Contract that concerned attorney’s fees. Accordingly, at

the very least, there is a question of fact as to whether the attorney’s fees provision applies to

Change Order 2. Therefore, Defendants’ cross-motion for summary judgment on the attorney’s

fees claim is denied.

Accordingly, it is hereby

ORDERED and ADJUDGED that Plaintiff’s motion for summary judgment dismissing

the counterclaim is granted and the counterclaim is dismissed; and it is further

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ADJUDGED that Defendants’ cross motion to amend the counterclaim is denied; and it

is further

ADJUDGED that Defendants’ cross motion for summary judgment is denied; and it is

further

ADJUDGED that any other request for relief in the motion and cross motion is denied.

8/5/2025 DATE LYLE E. FRANK, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

□ □ GRANTED DENIED X GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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