J.T. Magen & Co Inc. v. Nissan N. Am., Inc.

2025 NY Slip Op 32017(U)

Opinion

J.T. Magen & Co Inc. v Nissan N. Am., Inc. 2025 NY Slip Op 32017(U) June 6, 2025 Supreme Court, New York County Docket Number: Index No. 160497/2017 Judge: Joel M. Cohen 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. 160497/2017 NYSCEF DOC. NO. 1545 RECEIVED NYSCEF: 06/06/2025

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 03M -----------------------------------------------------------------------------------X J.T. MAGEN & COMPANY INC. (COUNTERCLAIM- INDEX NO. 160497/2017 DEFENDANT),

Plaintiffs, MOTION DATE 05/09/2025

-v- MOTION SEQ. NO. 020 NISSAN NORTH AMERICA, INC.,GEORGETOWN ELEVENTH AVENUE OWNERS, LLC (COUNTERCLAIM DECISION + ORDER ON PLAINTIFF) (CROSSCLAIM-PLAINTIFF), PHILADELPHIA MOTION INDEMNITY INSURANCE COMPANY, GARY FLOM, VEN NILVA,

Defendants. -----------------------------------------------------------------------------------X

NISSAN NORTH AMERICA, INC. Third-Party Index No. 596017/2018 Plaintiff,

-against-

ACIM NY, LLC, ALIM MY, LLC

Defendants. --------------------------------------------------------------------------------X

GEORGETOWN ELEVENTH AVENUE OWNERS, LLC Second Third-Party (COUNTERCLAIM PLAINTIFF) (CROSSCLAIM-PLAINTIFF) Index No. 596014/2018

Plaintiffs,

MISTRAL ARCHITECTURAL METAL & GLASS, INC., F.R.P. SHEET METAL CONTRACTING CORP.

Defendants. --------------------------------------------------------------------------------X

HON. JOEL M. COHEN:

The following e-filed documents, listed by NYSCEF document number (Motion 020) 1536, 1537, 1538, 1539, 1540, 1541, 1542, 1543 were read on this motion for LEAVE TO FILE .

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Plaintiff J.T. Magen & Company, Inc. (“JTM” or “Plaintiff”) moves for leave to file a

motion for summary judgment. For the reasons discussed below, Plaintiff’s motion is granted.

PROCEDURAL HISTORY

The Court previously denied Plaintiff’s first motion for summary judgment in 2019

(NYSCEF 460), Plaintiff’s first request for leave to file a second motion for summary judgment

(NYSCEF 753), and Plaintiff’s request to vacate the order denying that request (NYSCEF 769),

which was upheld by the First Department (NYSCEF 776). Thereafter, the Court granted in large

part Defendants Defendants/Counterclaim-Plaintiffs Nissan North America, Inc. (“Nissan”),

Philadelphia Indemnity Insurance Company (“PIIC”), and Georgetown Eleventh Avenue

Owners, LLC’s (“Georgetown,” collectively, “Counterclaim-Plaintiffs”) motions for summary

judgment, reserving the determination of damages for trial (NYSCEF 1042). After that decision

was upheld by the First Department (NYSCEF 1330), the parties agreed that the Court could

determine the damages for Counterclaim-Plaintiffs’ willful lien exaggeration claim without trial,

and the Court did so (NYSCEF 1525).

As a result, the only remaining issue for trial is the amount of damages for Counterclaim-

Plaintiffs’ fraud claim. Trial is set to begin on July 21, 2025.

DISCUSSION

The Court has discretion to permit Plaintiff to make a belated motion for summary

judgment upon good cause shown (CPLR 3212 [a]). Good cause may be found where

intervening decisions in the case raise new grounds to seek summary judgment or narrow the

scope of the issues such that consideration of the motion serves judicial economy (see Trump Vil.

Section 3, Inc. v New York State Hous. Fin. Agency, 307 AD2d 891, 893-94 [1st Dept 2003]).

JTM contends that no trial would be required if it prevails on its proposed motion, which is

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directed to certain categories of damage it argues cannot be recovered as a matter of law. Further,

many of JTM’s arguments are premised on the Court’s intervening decisions invalidating its

liens and awarding damages for willful exaggeration, and thus could not have been raised at an

earlier time. In particular, JTM asserts that Counterclaim-Plaintiffs cannot recover punitive

damages as a matter of law, that the fraud damages would duplicate damages already awarded,

and that large sums of the amount sought cannot have been caused by JTM’s conduct, including

disbursements for the work of nonparty contractors.

The proposed motion, if it has merit, would serve the interests of judicial economy by

obviating the need for trial altogether. Though the trial date is near, there is sufficient time for

Counterclaim-Plaintiffs to frame a response to the limited issues raised in Plaintiff’s proposed

motion. In sum, it is in the interest of the parties, the Court, and, perhaps most importantly,

prospective jurors whose time will be preserved—to avoid the time and expense of trial if that is

the appropriate result.

Accordingly, it is

ORDERED that Plaintiff’s motion is granted; it is further

ORDERED that Plaintiff is granted leave to move for summary judgment by Order to

Show Cause with memorandum of law in support on or before June 9, 2025, with opposition

brief due June 20, 2025, and reply brief due June 25, 2025.

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This constitutes the decision and order of the Court.

6/6/2025 DATE JOEL M. COHEN, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

X GRANTED DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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