Mount Vernon — Westchester County Supreme Court Judge Sam D. Walker ruled in the favor of Councilman Andre Wallace in the case of Creative Direction Construction & Design, LLC.-v.-City of Mount Vernon. In addition to Judge Walker ruling the City of Mount Vernon must pay Councilman Andre Wallace’s company CDCD, the judge also raised questions about Mount Vernon Corporation Counsel Lawrence A. Porcari, Jr., Esq.’s ethic in his decision, Thursday.
Judge Walker wrote that Porcari, the City’s attorney should be mindful of the Rules of Professional Conduct, codifying the “Advocate Witness Disqualification Rule.” [(22 NYCRR 1200) rule 3.7(a)].
…the City’s attorney stated in his affirmation that he was trained in building code requirements, electrical code requirements, and fire code requirements, He also stated that he personally inspected the work performed by the plaintiff and found the work to be patently defective, deficient and incomplete. He further attached pictures detailing the condition of the building to his affirmation in support of the City’s claim. While the Court may deem the City’s attorney affirmation sufficient to raise questions of fact, however, the City’s attorney should be mindful of the Rules of Professional Conduct, codifying the “Advocate Witness Disqualification Rule.” [(22 NYCRR 1200) rule 3.7(a)].
In the issue of the accusations of not paying prevailing wages the judge ruled; the City still has no standing in this instance to raise this issue since no administrative (7 of 11) determination has been made that Creative Direction failed to pay prevailing wages to any employee on this project.
In the case of Councilman Wallace not finishing the Construction of the Emergency Operation Center’s Rooms and the accusations not paying prevailing wages as an excuse for the City of Mount Vernon not to pay the Councilman’s company CDCD the judge wrote; the plaintiff’s application for an Order pursuant to CPLR 3212, granting summary judgment to the plaintiff Creative Direction against defendant the City (10 of 11) in the sum of $234,065.09 plus interest at the statutory rate from August 29, 2014, is GRANTED.
Councilman Wallace will be addressing the case and the ruling at his press conference on the steps of City Hall, Friday morning at 10:30 A.M.
Mayor Richard Thomas sent Black Westchester a statement after our story ran
“The City of Mount Vernon is more than prepared to go to trial to defend the taxpayers’ wallets and the safety of our firefighters who are suffering from the disrepair of the Third Street Firehouse,” Mayor Thomas tells BW. “We are eager to resolve the issue of defective workmanship and failure to pay prevailing wage that this contractor has forced upon the City of Mount Vernon.”
Judge Walker ruled the City paid the entire contract price and the only payments that are outstanding are for change orders and retainage. Based upon the record, the City did not reject any of the labor and materials provided (5 of 11) nor did the City ever dispute Creative Direction’s invoices in the sum of $245,065.09. All the invoices were accepted by the City without objection.
“The judge’s order acknowledges the missing records and documents from Mount Vernon,” Mayor Thomas adds. “We believe these papers were part of the missing documents that were removed in an unauthorized manner during a late-night visit to the City’s planning and grant office. We have repeatedly stressed our concern over the numerous files and documents that have been removed from City Hall. We look forward to appearing on November 28th to further defend the taxpayers of Mount Vernon.”
On page 6 of the ruling, Judge Walker wrote; To succeed in defeating the plaintiff’s (Councilman Wallace) motion for summary judgment, the defendant (City of Mount Vernon) is required to produce evidentiary proof in admissible form establishing a triable issue of material fact, not mere conclusions, hope, unsubstantiated allegations or assertions, Zuckerman v. City
The parties are directed to appear before the preliminary conference part on November 28, 2016 at 9:30am in Courtroom 811 on the City’s counterclaim regarding the work done by the plaintiff being defective, deficient and incomplete. Payment of the plaintiff’s grant of $234,065.09, is to be held in abeyance pending the determination of a hearing on the City’s counterclaim. Barring any addition evidentiary proof in admissible form provided by the City of Mount Vernon on Monday, November 28th, this chapter should come to a conclusion once and for all.
While Mayor Thomas got back to us after the publishing of article, Corporation Council Porcari has still not made himself available for comment. Stay tuned to BW for more of this developing story, below is copy of entire ruling.
***updated Thursday, Oct 27th at 5:02 P.M. to include Mayor Thomas’ statement***