Sheats & Bailey, PLLC, Brewerton (Edward J. Sheats of counsel), for appellant.
Tesser & Cohen, New York (Stephen Winkles of counsel), for respondent.
MAZZARELLI, J.P., ACOSTA, SAXE, MANZANET–DANIELS, JJ.
Opinion
Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered September 22, 2014, which, among other things, granted plaintiff's motion for summary judgment on its Prompt Payment Act cause of action against defendant Global Precast, Inc., awarded plaintiff damages, plus interest, costs and disbursements, and severed the action as to defendant, unanimously reversed, on the law, without costs, the motion denied, and the award and severance vacated.
In this action alleging, among other things, defendant's violation of the Prompt Payment Act (General Business Law § 756 et seq. ), defendant did not waive its affirmative defenses by failing to disapprove plaintiff's invoices (see Donninger Constr., Inc. v. C.W. Brown, Inc., 113 A.D.3d 724, 725, 979 N.Y.S.2d 133 [2d Dept.2014] ). Because plaintiff failed to establish an absence of material issues of fact as to the merits of those defenses, its motion should have been denied, without regard to the sufficiency of defendant's proof in opposition to the motion (see Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 [2012] ).
Even if plaintiff had met its burden, defendant submitted
admissible evidence raising material issues of fact (see Metro Found. Contrs., Inc. v. Marco Martelli Assoc., Inc., 78 A.D.3d 594, 912 N.Y.S.2d 187 [1st Dept. 2010] ), including whether the two oral agreements at issue provided for certain billing cycles that superseded the provisions of the Act (see General Business Law § 756–a[1] ), and whether plaintiff improperly billed defendant on a time-and-materials basis in violation of alleged provisions of the agreements requiring price-per-square-foot billing (see § 756–a[2][a] [ii][4] ). Further, an issue of fact exists as to whether plaintiff failed to submit “contractually required documentation” with the invoices, thereby excusing defendant of its obligation to approve or disapprove the invoices within 12 business days (§ 756–a[2][a][ii] ; see Oppenheimer & Co. v. Oppenheim, Appel, Dixon & Co., 86 N.Y.2d 685, 690, 636 N.Y.S.2d 734, 660 N.E.2d 415 [1995] ).