NGH Group, Inc. v. Butler

2025 NY Slip Op 33401(U)

• Court: New York County Court, Suffolk County
• Decided: September 18, 2025
• Docket: Index No. 624032/2023
• Status: Unpublished

Opinion

NGH Group, Inc. v Butler 2025 NY Slip Op 33401(U) September 18, 2025 County Court, Suffolk County Docket Number: Index No. 624032/2023 Judge: Evan M. Zuckerman 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. SHORT FORM ORDER INDEX NO. 624032/2023

COUNTY COURT - STATE OF NEW YORK I.A.S. l ERM. PART 68 - SUFFOLK COUNTY PRESENT: HON. EVAN M. ZUCKERMAN Acting Jud! e County Court ORIG. RETURN DATE: JANUARY 23, 2025 FINAL SUBMISSION DATE: AUGUST 7. 2025 THE NGH GROUP, INC. MTN. SEQ.#: 010 MOTION: MD Plaintiff, CROSS-MOT. ORIG. RET. DATE: MARCH 11, 2025 FINAL SUBMISSION DATE: AUGUST 7, 2025 -agains - MTN. SEQ. #: 011 X-MOTION MG SANA BUTLER, ATTORNEY FOR PLAINTIFF: Defendant. GRESHIN, ZIEGLER & AMICIZIA, P.C. 199 EAST MAIN STREET- SUITE TWO SMITHTOWN, NEW YORK 11787 (631) 265-2550

SELF-REPRESENTED DEFENDANT_: SANA BUTLER 2588 7th AVENUE-APARTMENT 2E NEW YORK, NEW YORK 10039

Upon the follo• ving papers numbered 1 to _ 7 _ read on defendant's motion FOR S.A NCTIONS PURSUANT TO 22 NYCRR 130-1.1 , and plaintiff's cross-motion DISMISSING DEFENDANT'S COUNTERCLAIMS AND FOR_ SUMMARY JUDGMENT. Notice of Motion, Affirmation n Support and supporting papers 1-3 ; Notice of Cross-Motion, Affirmations in Opposition an l in Support 4-6 ; Defendant's Affirmation in Reply_]_ ; it is,

ORDERED that de fend ant's motion for sanctions against plaintiff and for dismissal of the complair t as frivolous is DENIED, and it is further

ORDERED that pl,iintiffs cross-motion to dismiss defendant's seven counterclaims for fraud, I >reach of contract, declaratory judgment, accounting , fraudulent inducement, b each of duty of good faith and fair dealing, and intentional infliction of en otional distress is hereby GRANTED, and it is further

ORDERED that pl,1intiffs cross-motion for summary judgment in its favor on its claims in the comp aint is hereby GRANTED.

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This action is for onies due for private investigation services rendered to defendant by plaintiff pur uant to a Client Services Agreement entered into by the parties, dated January 31, 2023. There is a long procedural history and numerous motions associated with his matter, which need not be fully discussed herein for the purpose of deciding t is motion and cross-motion.

This action was co menced by plaintiff The NGH Group, Inc. (hereinafter "NGH") by summons and complaint filed on September 27, 2023, to recover $5,953.75 allegedly owe by defendant Sana Butler (hereinafter "Butler") for NGH's services, plus ac rued interest, costs and attorney's fees. One day earlier, on September 26 2023, Butler commenced a small claims action in Suffolk County District C urt - Third District for $5,000.00, seeking to recover monies she had already aid to NGH for its services (part of a $10,000.00 retainer paid). By Order ated January 2, 2024 (Quinlan, J.), Supreme Court granted NGH 's motion to consolidate the Supreme Court action with the District Court action and ordered that the complaint in the District Court action be treated as a counterclaim and a swer in this action.

On September 24, 2024, Butler brought a motion in Supreme Court to amend her answer to inc ude seven counterclaims, which motion was granted by Order dated October 21, 2024 (Quinlan, J .). By Order dated June 5, 2025, the matter was removed fro Supreme Court and assigned to this Court, pursuant to CPLR 325 (d).

Butler has now m ved for: (1) sanctions against NGH pursuant to 22 NYCRR § 130-1.1; and 2) dismissal of NGH's complaint as frivolous. NGH opposes the motion and ross-moves to dismiss Butler's counterclaims and for summary judgment in its favor on its claims against Butler.

OT/ON FOR SANCTIONS AND DISMISSAL

For purposes of th Rules of the Chief Administrator of the Courts (22 NYCRR § 130- 1.1 [c]), c nduct is frivolous if:

(1) it is completely ithout merit in law and cannot be supported by a reasonable ar ument for an extension, modification or reversal of existing law;

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(2) it is undertaken rimarily to delay or prolong the resolution of the litigation, or to h rass or maliciously injure another; or

(3) it asserts materi I factual statements that are false.

NGH's complaints eks to recover monies for services it provided to Butler, the provision of which se ices are not in dispute. That Butler has asserted a defense to NGH's claims nd alleges that it "waived all outstanding balances" on her account does not ren er the complaint frivolous within the meaning of 22 NYCRR § 130-1.1 (c) (se Perna v Reality Roofing, Inc. , 122 AD3d 821 [2d Dept 2014]; Freight Brokers GI bal Servs., Inc. v Molfetta, 90 AD3d 828 [2d Dept 2011]). Thus, Butler's mo ion for sanctions and for dismissal of NGH's complaint as frivolous is hereby DE IED.

GH'S CROSS-MOTION

1. Summary Judgment

With respect to NG 's cross-motion for summary judgment in its favor, summary judgment is ad astic remedy and should only be granted in the absence of any triable issues of fa t (see Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223 [1978]; Andre v Pomeroy, 35 NY2d 361 [1974]). It is well-settled that the proponent of a summary j dgment motion must make a prima facie showing of entitlement to judgment a a matter of law, tendering sufficient proof to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] Seidman v Indus. Recycling Props., Inc. , 52 AD3d 678 [2d Dept 201 OJ). Failure o make such a showing requires a denial of the motion, regardless of the sufficie cy of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 53 [1985]). Once such a showing has been made, the burden then shifts to the arty opposing the motion which must produce evidentiary proof in admi sible form sufficient to require a trial of the material issues of fact (Roth v Ba eto, 289 AD2d 557 [2d Dept 2001 ]; Rebecchi v Whitmore, 172 AD2d 600 [2d Dept 1991 ]; O'Neill v Town of Fishkill, 134 AD2d 487 [2d Dept 1987]). To defe ta motion for summary judgment, a party opposing such motion must lay bar his proof in evidentiary form; conclusory allegations are insufficient to raise atria le issue of fact (see Friends of Animals, Inc. v Associated Fur Mfrs., 46 Y2d 1065 [1979]; Burns v City of Poughkeepsie, 293 AD2d 435 [2d Dept 2002 ). A motion for summary judgment should be denied where the facts are in dis ute or where conflicting inferences may be drawn from

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the evidence (see Chimb v Bolivar, 142 AD3d 944 [2d Dept 2016]; Benetatos v Comerford, 78 AD3d 730 [2d Dept 2010]).

In determining the ights and obligations of the parties to a contract, it is well-established that "aw itten agreement that is complete, clear and unambiguous on its face ust be enforced according to the plain meaning of its terms" (Greenfield v Phil/ s Records 98 NY2d 562, 569 [2002]; RIS Assoc. v N. Y. Job Dev. Auth., 98 NY2d 9, 32 [2002]). "In construing a contract, one of a court's goals is to avoid an inter retation that would leave contractual clauses meaningless" (Two Guys from Harrison-N. Y. v S.F.R. Realty Assoc. , 63 NY2d 396, 403 [1984]). The ai of the court when interpreting a contract is to arrive at a construction that gives fai meaning to all of its terms and provisions, and to reach a "practical interpretation f the expressions of the parties so that their reasonable expectations will be reali ed" (see Pellot v Pellot, 305 AD2d 478 [2d Dept 2003]; Gonzalez v Norrito, 256 02d 440 [2d Dept 1998]; Joseph v Creek & Pines, Ltd. , 217 AD2d 534, 535 [2d D pt], Iv dismissed 86 NY2d 885 [1995], Iv denied 89 NY2d 804 [1996]; see als Matter of Matco-Norca, Inc., 22 AD3d 495 [2d Dept 2005]; Tikotzky v City of ew York, 286 AD2d 493 [2d Dept 2001]; Partrick v Guarniere, 204 AD2d 70 [2d Dept], Iv denied 84 NY2d 810 [1994]). "If the language of the agreeme t is free from ambiguity, its meaning may be determined as a matter of law on the asis of the writing alone without resort to extrinsic evidence" (Salemo v Od ardi, 41 AD3d 574, 575 [2d Dept 20071). As it is a question of law whether r not a contract is ambiguous (W W W. Assoc. v Giancontieri, 77 NY2d 15 [19901), a court must first determine whether the agreement at issue on its face is reasonably susceptible to more than one interpretation (see Chima Assoc. v Paul, 66 NY2d 570 [1986]).

Here, the Court fin s that the Client Services Agreement in question is unambiguous on its face ith respect to the obligations of the parties. NGH was to provide investigatory s rvices at the request of Butler and Butler was to pay NGH for the services pe armed. The Client Services Agreement is also unambiguous with respe t to: (1) Butler's obligation to pay invoices in full when they were presented to h r; (2) the accrual of interest at the rate of 18% interest per annum on any invoic snot paid; and (3) Butler's obligation to pay collection costs and reasonable att rney's fees. Thus, NGH has made a prima facie showing of entitlement to judgment as a matter of law on its claims for monies due for services provided under the Client Services Agreement, plus interest, costs and reasonable attorney' fees. The burden now shifts to Butler to establish by evidentiary proof in admi sible form that there are material issues of fact in dispute

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requiring a trial.

Butler claims that t e monies she owed were "waived" by NGH and attaches an email exchange betwe n the parties in support of this argument. However, even if the Court determi ed that these emails are admissible evidence, which they are not, the emails d not establish that NGH waived Butler's obligation to pay the outstanding balan e of $5,973.75. Rather it appears that NGH offered to waive the outstanding bal nee as an accommodation, under two conditions: (1) Butler confirmed she and er family no longer needed NGH's services; and (2) the $10,000 retainer she paid would constitute full payment for the services NGH had provided. While the retur email from Butler confirmed the family's decision to terminate NGH's services Butler did not agree to the second condition in the email. Instead, she state she was writing "to dispute the attached 2/17/23 invoice as it relates to the $10,000 retainer billed activity" (Exhibit "D" to Affirmation in Reply). Fu her, Butler subsequently brought a small claims action in an attempt to recover$ ,000 of the $10,000 she had paid to NGH as a retainer. Thus, it is clear that Butle did not accept NGH's offer as it pertained to the $10,000 retainer she had paid and no waiver occurred.

The Court finds tha NGH has made a prima facie showing of entitlement to judgment as a matter of I w (see e.g. Alvarez v Prospect Hosp. , 68 NY2d at 324), and Butler has not come orth to establish the existence of any material issues of fact which require a trial the action. It is undisputed that Butler breached the terms of the Client Servic s Agreement by failing to remit the outstanding balance despite demands thereto , and that there is a balance due and owing NGH of $5,953.75, plus interest. ccordingly, NGH's cross-motion seeking summary judgment against Butler i the amount of ~5,853.75, plus interest at the rate of 18% from February 17, 2 23, along with costs and reasonable attorney's fees is hereby GRANTED. NGH may submit an affirmation of legal services with the proposed judgment so th t the Court may fashion an award of reasonable attorney's fees to NGH in accordance with the Client Services Agreement.

2. Dismissal of Butler's C , unterclaims

Regarding NGH's ross motion to dismiss Butler's counterclaims, as to the claims of fraud (first and fth causes of action), the Court finds that Butler has failed to plead fraud with ufficient particularity pursuant to CPLR 3016 (b). In addition, the only fraud cl imed arises from an alleged breach of contract, which claims are duplicative an based on the same facts as the breach of contract

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counterclaim (see Town f North Hempstead v Corona Realty Holding, LLC, 212 AD3d 863, 865 [2d Dept 023). Accordingly, the first and fifth counterclaims are dismissed.

With regard to Butler's second counterclaim, the essential elements of a cause of action to recove damages for breach of contract are the existence of a contract, one party's perf rmance pursuant to the contract, the other party's breach of its contractual bligations, and damages resulting from the breach (see 25 Bay Terrace Assoc., LP. v Public Serv Mut. Ins. Co. , 194 AD3d 668 [2d Dept 2021]; WMC Realty Corp. v City of Yonkers, 193 AD3d 1018 [2d Dept 2021]). "It is well settled that a contr ct is to be construed in accordance with the parties' intent, which is generally iscerned from the four corners of the document itself. Consequently, 'a written greement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms' " (MHR Capital Partners LP v Pre stek, Inc., 12 NY3d 640, 645 [2009], quoting Greenfield v Phil/es Records, Inc., 9 NY2d 562, 569 [2002]; see 25 Bay Terrace Assoc., L.P. v Public Serv Mut. Ins. C ., supra; CDC Dev Props., Inc. v American Ind. Paper Mills Supply Co., Inc., 18 AD3d 623 [2d Dept 2020]).

Here, Butler alleg s that NGH breached the Client Services Agreement by failing to: (1) perform the nvestigative services; (2) provide regular progress updates; and (3) deliver a y tangible work product or case file. These allegations are not supported and ar refuted by the invoice annexed to the complaint as Exhibit "B." It shows that NGH performed investigative services between January 23, 2023, and February 1 , 2023, all of which were detailed on the February 17, 2023 invoice. Not only w re the investigative services performed, but Butler was given an update of what ervices were performed in the detailed invoice provided approximately three wee s after the services began. With respect to the delivery of "any tangible work pro uct or case file," the Client Services Agreement does not expressly require such a elivery. Further, the Agreement expressly states "NO report, evidence or wor product of any kind will be furnished or released unless and until all out tanding invoices are paid in full ," which Butler failed to do. Thus, the second cou terclaim for breach of contract is dismissed.

As to the third cou terclaim for declaratory judgment, it is also duplicative of the breach of contract ounterclaim (see USRC Forest Hills, LLC v 68-60 Austin Street Realty Corp, 232 03d 746 [2d Dept 2024]), and is dismissed.

As to the fourth co nterclaim for an accounting, there was no fiduciary

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relationship between the parties. Instead , the relationship was an arms-length transaction between a fir providing investigatory services for a fee and its client, merely a contractual rela ionship. It is well settled that parties engaged in an arms-length business tra saction are not fiduciaries (see OppenheimerFunds v TD Bank N.A., 2014 NY lip Op 30379 [U] at* 11 [and cases cited therein]). In the absence of a fiducia relationship, Butler has no cause of action for an accounting (see Saunde s v AOL Time Warner, 18 AD3d 216, 217 [1st Dept 2005]; JRAP Enters. v Z caro Constr. , LLC, 2021 NY Misc. LEXIS 5145, *3-4 [Sup Ct, Suffolk County 021]). Thus, the fourth counterclaim for an accounting is dismissed.

With respect to th sixth counterclaim for a breach of the duty of good faith and fair dealing, NGH's lleged conduct and Butler's purported damages are the same as those pleaded i Butler's breach of contract counterclaim. Therefore, the sixth counterclaim is dup icative of Butler's breach of contract counterclaim and is dismissed (see Cortazar v Tomasino, 150 AD3d 668, 670 [2d Dept 2017]).

Butler's seventh unterclaim alleges the intentional infliction of emotional I distress. To state this clr·m, Butler must allege: (1) extreme and outrageous conduct; (2) intent to cau e, or disregard of a substantial probability of causing, severe emotional distres ; (3) a causal connection between the, conduct and injury; and (4) severe emotional distress (see Howell v New York Post Co., 81 NY2d 115, 121 [1993]; B mat v Williams, 81 AD3d 679 [2d Dept 2011]). NGH argues that the concluso allegations complained of by Butler fail to establish this claim. Further, NGH alle es that the conduct complained of, statements allegedly made by NGH's counsel at a preliminary conference, were privileged and, in any case, were not sufficient! outrageous or extreme to support a claim for intentional infliction of emotional dis ress. This Court agrees that, even if the statements were not privileged, the allege conduct is not sufficiently outrageous or extreme in degree "as to exceed all ounds of decency" (Fischer v Maloney, 43 NY2d 553, 557 [1978]; see also Ho ell v New York Post Co. , supra; Dain v Dame, 82 AD3d 1338 [3d Dept 2011]; Bu on v Matteliano, 81 AD3d 1272 [4th Dept 2011]). Thus, the seventh counterclai for the intentional infliction of emotional distress is dismissed.

For the foregoing reasons, Butler's motion for sanctions against NGH and dismissal of the complai tis hereby DENIED. NGH's cross-motion for summary

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judgment in its favor and r dismissal of Butler's counterclaims is hereby GRANTED.

This constitutes th decision and Order of the Court.

Dated: September 18, 2 25

X FINAL DISPOSITI N _ _ NON-FINAL DISPOSITION

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