| Lipco Elec. Corp. v ASG Consulting Corp. |
| 2014 NY Slip Op 03237 [117 AD3d 688] |
| May 7, 2014 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Lipco Electrical Corp. et al.,
Respondents, v ASG Consulting Corporation et al., Appellants. (Action No. 1.) ASG Consulting Corp. et al., Plaintiffs, v Action Electrical Cont. Co. Inc., Also Known as Action Electrical Contracting Company, Inc., et al., Defendants. (Action No. 2.) |
Robinson Brog Leinwand Greene Genovese & Gluck, P.C., New York, N.Y. (Felicia S. Ennis and Alan M. Pollack of counsel), for appellant.
Levy, Tolman & Costello, LLP, New York, N.Y. (Robert J. Costello of counsel), for respondents.
In two related actions, inter alia, to recover damages for breach of contract, the defendants in action No. 1 appeal from so much of an order of the Supreme Court, Nassau County (Driscoll, J.), entered June 11, 2012, as denied their motion for summary judgment dismissing the complaint in action No. 1.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint in action No. 1. The defendants relied principally upon the plaintiffs' alleged judicial admissions of contract illegality, but "[c]ounsel's argument or opinion cannot constitute a judicial admission" (Rahman v Smith, 40 AD3d 613, 615 [2007]). There remains a triable issue of fact as to whether ASG Consulting Corp., a defendant in action No. 1, is a "successor" to TAP Electrical Consulting Service, Inc., also a defendant in action No. 1, within the meaning of Labor Law § 220-b (3) (b), thereby rendering illegal the contracts upon which action No. 1 is partially based (see Lipco Elec. Corp. v ASG Consulting Corp., 117 AD3d 687 [2014] [decided herewith]; see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Dillon, J.P., Hall, Cohen and Hinds-Radix, JJ., concur.