On October 14, 2010, in the case of Biscuits & Bath Companies, LLC v. Freudenberg Building Systems, Inc., et al. (New York County Supreme Court, Index No. 604027-2006), Plaintiff Biscuits & Bath (“B&B”) defeated defendant Freudenberg Building System’s (“Freudenberg”) motion for summary judgment. Robinson Brog attorney Michael Korn argued in opposition to the motion on behalf of B&B.
B&B is the leading doggy day care company in all of Manhattan. Freudenberg is a manufacturer of rubber flooring products. B&B’s claims against Freudenberg include breach of contract/breach of warranties arising from the repeated failures of Freudenberg’s rubber flooring that was installed at B&B’s retail locations. Freudenberg’s motion for summary judgment sought to dismiss all of B&B’s causes of action, asserting primarily that B&B acted as its own general contractor during the entire process of purchasing and installing the rubber flooring product, and therefore, B&B was responsible for any problems that occurred. Mr. Korn’s opposition to the dismissal motion established that B&B did not act as its own general contractor, that Freudenberg sold B&B rubber flooring that was not fit for B&B’s intended use, and that the improper flooring caused B&B significant damages.
On the record in open court, Justice Marcy Friedman denied Freudenberg’s motion, stating that Freudenberg had failed to sustain its prima facie burden entitling it to judgment as a matter of law. The Court specifically made sure to include in its decision that the substantive arguments raised for the first time in Freudenberg’s reply were not considered by the Court. B&B’s opposition papers specifically provided the Court with case law on this point, as Mr. Korn anticipated that Freudenberg would attempt such a tactic in its reply.
Freudenberg’s motion having been denied in its entirety, the action is now scheduled for mediation and an eventual trial.
