Summary Judgment Denied In Light Of Plaintiff’s Role In Defendant’s Delayed Performance

Posted: May 5, 2025 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Categories Breach of Contract, Remedies/Damages, Summary Judgment

Summary Judgment Denied In Light Of Plaintiff’s Role In Defendant’s Delayed Performance

On April 11, 2025, in Seymour v. Hovnanian, Index No. 154579/2016, Justice Melissa A. Crane denied plaintiff’s motion for summary judgment seeking an order directing defendants (the “Hovnanians”) to immediately repair and remediate personal property damaged by repairs the Hovnanians had made to an adjoining property.

Justice Crane began by noting that, on an earlier summary judgment motion by plaintiffs, she had ordered the Hovnanians to remove toxic lead and dust that the repairs had caused to infiltrate plaintiffs’ property. But plaintiffs delayed inventorying their damaged personal property (referred to as the “soft contents”) and, on the eve of trial, belatedly offered new experts and increased their demand by millions of dollars, leading to the vacatur of the note of issue and the reopening of discovery. Slip op., pp. 2-4.

Plaintiffs then brought their second summary judgment motion, seeking the Hovnanians’ immediate performance, which the Court, noting plaintiffs’ role in the delay, denied:

Even if this were not a successive summary judgment motion, the court still denies the motion. While plaintiffs are entitled to replace or repair ‘soft contents’ at the Hovnanian's expense under the License Agreement, plaintiffs have not eliminated all triable issues of fact relating to the value of the soft contents, the repair costs, and to what degree plaintiffs' own delays contributed to these costs. . . .

. . . the court declines to order defendants to immediately advance payment for soft contents remediation. That is, the court is not extending the specific performance directives in the July 2020 interim order to require defendants to advance the piecemeal costs for remediating the soft contents. Given the significant delays and unreasonable remediation demands on the part of plaintiffs, this issue cannot be determined until after trial.

Slip op., pp. 4-5.

Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning breach of contract, property remediation or summary judgment.