Active Retirement Community, Inc. v. Tritec/Klewin Constructors, L.L.C., 2009 NY Slip Op 31071 (N.Y. Sup. Ct. 5/5/2009)
| Decision Date | 05 May 2009 |
| Docket Number | Index No. 31510-2007,Mot Seq: 008MotD,Mot Seq: 007 MG,Mot Seq: 009MotD |
| Parties | ACTIVE RETIREMENT COMMUNITY, INC. d/b/a JEFFERSON'S FERRY, Plaintiff, v. TRITEC/KLEWIN CONSTRUCTORS, L.L.C, TRITEC BUILDING COMPANY INC., CASHIN ASSOCIATES, P.C, CASHIN TECHNICAL SERVICES, INCORPORATED, KLEWIN BUILDING OF NEW YORK, L.L.C, fife/a E&F WALSH BUILDING COMPANY, L.L.C, and CR. KLEWIN INTERNATIONAL, INC., Defendants. |
| Court | New York Supreme Court |
GARFUNKLE, WILD & TRAVIS, P.C. Great Neck, New York, Attorney for Plaintiff.
ZETLIN & DeCHIARA, L.L.P., New York, New York, Attorney for Defendants Cashin Associates and Cashin Tech.
MILBER MAKRIS PLOUSADIS & SEIDEN, L.L.P., Woodbury, New York, Attorney for Defendants Tritec.
LEWIS & GREER, P.C., Poughkeepsie, New York, Attorney for Defendants Klewin.
Upon the following papers numbered 1 to 46 read on these Motions: Notice of Motion and supporting papers (#007) 1-11; Notice of Cross Motion and supporting papers (#008) 12-15; Notice of Cross Motion and supporting papers (#009) 16-20; Affirmation in opposition and supporting papers 28-30; Affirmation in Reply and supporting papers 33-36; Affirmation in Reply and supporting papers 37-38; Exhibits (Memoranda of Law) 21-22; 25-27; 31-32; 39-40; 41-42; 43-44; 45-46; it is,
ORDERED that motion sequence #007 of the Defendants Cashin Associates, P.C. and Cashin Technical Services, Incorporated for an order pursuant to CPLR 3211 (a)(1), (a)(5) and (a)(7) to dismiss the Plaintiffs complaint or, in the alternative, for an order for summary judgment dismissing the complaint pursuant to CPLR 3212 is granted to the extent that all claims in the first amended complaint interposed against these Defendants are dismissed pursuant to CPLR 3212; and it is further
ORDERED that the cross claims interposed against the Defendants Cashin Associates, P.C. and Cashin Technical Services, Inc. are dismissed; and it is further
ORDERED that cross motion sequence # 008 of the Defendants Tritec/Klewin Constructors, L.L.C., Klewin Building Company of New York, L.L.C. f/k/a E & F Walsh Building Company, L.L.C., and C. R. Klewin International, Inc. for an order pursuant to CPLR 2215 and CPLR 3211 (a) (7) dismissing the fifth and sixth causes of action in the First Amended complaint is granted to the extent that the fifth and sixth causes of action are dismissed; and it is further
ORDERED that the request in cross motion sequence # 008 to dismiss the seventh cause of action is granted to the extent that this claim is derived from fraud and/or negligence but the seventh cause of action is not dismissed to the extent that it seeks damages for a breach of performance of a contract by the Defendants; and it is further
ORDERED that cross motion sequence #009 of the Defendant, Tritec Building Company, Inc., for an order pursuant to CPLR 3211 (a)(7) and CPLR 3016(b) dismissing the seventh cause of action in the Plaintiffs First Amended complaint is granted only to the extent that the seventh cause of action is derived from claims for fraud and negligence; and it is further
ORDERED that the Plaintiff's demand for attorneys fees contained in the "ad damnum" or "wherefore" clause of the first amended complaint as subdivision "h" is stricken; and it is further
ORDERED that the caption of this action is deemed amended to reflect the deletion of certain parties in this action and the parties are directed to file with the Court the previously signed stipulation permitting the Plaintiff to delete Defendants C.R. Klewin Northeast, L.L.C, Klewin Building Company, Inc., C.R. Klewin, Inc., Daniel Root, and James L. Coughlan from this action and the action is discontinued against those Defendants; and it is further
ORDERED that the caption in this action is amended with various Defendants deleted from the caption in accordance with this order and the caption shall henceforth read:
ACTIVE RETIREMENT COMMUNITY, INC. d/b/a JEFFERSON'S FERRY
Plaintiff
-against-
TRITEC/KLEWIN CONSTRUCTORS, L.L.C, TRITEC BUILDING COMPANY INC., KLEWIN BUILDING OF NEW
YORK, L.L.C, f/k/a E&F WALSH BUILDING COMPANY, L.L.C, and CR. KLEWIN INTERNATIONAL, INC
Defendants
and; it is further
ORDERED that the remaining parties to this action are directed to complete discovery in this matter and file a note of issue after all of the parties agree by written stipulation that discovery has been completed.
The Plaintiff herein, Active Retirement Community, Inc. d/b/a Jefferson's Ferry, initially commenced this action to recover damages for the alleged breach of contract with respect to the design and construction of a new facility known as Jefferson's Ferry Care Retirement Community (hereinafter "the Project" or "the retirement community") located at the intersection of Route 347 and Wireless Road in the Town of Brookhaven. The Plaintiff filed the summons and complaint on October 10, 2007. The original complaint subsequently was superceded by service of a first amended complaint.
Although the parties to this action entered into a written stipulation dated May 6, 2008, that stipulation was never submitted to the Justice formerly assigned to this matter and its contents were not "so ordered". Pursuant to that stipulation, the Plaintiff voluntarily discontinued this action as against the Defendants CR. Klewin Northeast, L.L.C, Klewin Building Company, Inc., CR. Klewin, Inc., Daniel Root, and James L. Coughlan. This Court directs that this action against Defendants CR. Klewin Northeast, L.L.C, Klewin Building Company, Inc., CR. Klewin, Inc., Daniel Root, and James L. Coughlan shall be discontinued by this order and this order directs that the caption be amended to reflect the deletion of these parties as Defendants in this action.
The Defendants, Cashin Associates, P.C. and Cashin Technical Services, Inc. (hereinafter "the Cashin Defendants"), have moved for dismissal of the action pursuant to CPLR 3211 and CPLR 3212 (motion sequence #007). The Plaintiff served its first amended complaint, dated June 5, 2008, after the motion to dismiss made by the Cashin Defendants under sequence # 007 was served upon all parties. The first, second and third causes of action in the amended complaint allege claims against the Cashin Defendants. On this motion, the Cashin Defendants allege that the Plaintiffs claims are time barred by the statute of limitations.
Generally, the service of an amended complaint moots the motion to dismiss, and if the moving party still objects to the sufficiency of the superceding amended pleading, that party then would bring a second motion to dismiss that addressed the new amended pleading (see, Samide v. Roman Catholic Diocese of Brooklyn, 194 Misc.2d 561, 754 N.Y.S.2d 164).
However, the Plaintiff has submitted a memorandum of law addressing the merits of the motion to dismiss (sequence # 007) brought by the Cashin Defendants to the extent that the arguments in the motion to dismiss apply to the amended complaint. Since the Cashin Defendants and the Plaintiff have elected to address the issues of fact and law raised by the claims interposed in the first amended complaint without submitting a new motion and the other parties have not objected, the Court will consider the motion to dismiss the causes of action interposed against the Cashin Defendants without requiring these Defendants to re-move for the same relief (see generally, IDT Corp. v. Morgan Stanley Dean Witter & Co., 16 Misc.3d 1127(A), 847 N.Y.S.2d 902).
The statute of limitations issues are not affected by the service of the amended complaint and the Court is not restricted from addressing motion sequence # 007 on its merits. Parties are given great latitude to chart their own course through litigation, and, since the parties wish to submit these issues following this procedure, there is no reason for this Court not to address the points raised by motion sequence # 007 (see, Stevenson v. News Syndicate Co., 302 N.Y. 81, 87, 96 N.E.2d 187; Chemical Bank v. Buxbaum, 76 A.D.2d 850, 428 N.Y.S.2d 523).
In addition to the motion by the Cashin Defendants, two other motions to dismiss by the remaining Defendants are returnable. The Defendants Tritec/Klewin Constructors, L.L.C, Klewin Building Company of New York, L.L.C. and C.R. Klewin International, Inc. have moved to dismiss the fifth, sixth and seventh causes of action of this amended complaint (motion sequence # 008). These causes of action allege claims sounding in fraud, negligent misrepresentation and breach of contract. The seventh cause of action in the first amended complaint also alleges that Tritec Building Company, Inc., C. R. Klewin International, Inc. and Klewin Building Company of New York, L.L.C. failed to complete work under a guaranty agreement.
The Defendants Tritec/Klewin Constructors, L.L.C, Klewin Building Company of New York, L.L.C. f/k/a E & F Walsh Building Company, L.L.C. and C. R. Klewin International, Inc. allege in motion sequence # 008 that the fifth and sixth causes of action for fraud and negligent misrepresentation, respectively, and the seventh cause of action under the guaranty should be dismissed as against them because no such claims exist as a matter of law when the only fraudulent and negligent misrepresentations relate to the performance of the contract. These Defendants have not moved to dismiss the breach of contract claim interposed by the Plaintiff.
The Defendant Tritec Building Company, Inc. is represented by different counsel than the other Defendants in this action and the attorneys for Tritec Building Company, Inc. have cross moved under motion sequence # 009 to dismiss the seventh cause of action in the Plaintiffs first amended complaint on the same grounds that the Defendants in motion sequence # 008 have raised. Prior to determining the ...
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