Bd. of Managers of the 125 N. 10th Condo. v. 125North10, LLC
| Decision Date | 26 January 2016 |
| Parties | BOARD OF MANAGERS OF the 125 NORTH 10TH CONDOMINIUM, Plaintiff, v. 125NORTH10, LLC d/b/a 125 North 10 LLC, 125N 10 d/b/a 125North10 LLC, 125 N 10 d/b/a 125North10 MM, LLC, Savanna Services L.L.C d/b/a Savanna Partners d/b/a Savanna Fund, Christopher Schlank, Nicholas Bienstock a/k/a Nicholas c. Bienstock a/k/a Nicholas Churnham Bienstock, Peter Petron, John Fraser a/k/a John R. Fraser, Investcorp International Holdings Inc. d/b/a Investcorp, Ryder Construction, Inc., Carl Jaccarino, Robert M. Reich, LLC, Robert M. Rich, Anthony Cucich Architects d/b/a A. Cucih Architects, Anthony Cucich a/k/a Anthony A. Cucich, Scarano Architect, PLLC d/b/a Scarano & Associates, Sharon Engineering P.C. d/b/a Sharon Engineering, P.C., Ronan Sharon, Penmark Realty Corporation d/b/a Penmark Realty Corp. d/b/a Penmark, Core Group Marketing LLC d/b/a Core Group Marketing, LLC, S. Schwartz Engineering, PLLC d/b/a S. Schwartz Associates LLC d/b/a Schwartz S d/b/a S. Schwartz Associates Consulting Engineers, Simon Schwartz, Frank Seta & Associates, LLC, Saeid S. Seta a/k/a Frank Seta, "John Doe No.1 Through John Doe # 10, Inclusive, the Last Ten Names Being Fictitious and Unknown to Plaintiff, The Persons or Parties Intended Being the Persons or Corporations or Entities Who Provided Construction Services and/or Design and Fabrication Services at the Premises Described Herein, Defendants. |
| Court | New York Supreme Court |
51 Misc.3d 585
25 N.Y.S.3d 825
BOARD OF MANAGERS OF the 125 NORTH 10TH CONDOMINIUM, Plaintiff,
v.
125NORTH10, LLC d/b/a 125 North 10 LLC, 125N 10 d/b/a 125North10 LLC, 125 N 10 d/b/a 125North10 MM, LLC, Savanna Services L.L.C d/b/a Savanna Partners d/b/a Savanna Fund, Christopher Schlank, Nicholas Bienstock a/k/a Nicholas c. Bienstock a/k/a Nicholas Churnham Bienstock, Peter Petron, John Fraser a/k/a John R. Fraser, Investcorp International Holdings Inc. d/b/a Investcorp, Ryder Construction, Inc., Carl Jaccarino, Robert M. Reich, LLC, Robert M. Rich, Anthony Cucich Architects d/b/a A. Cucih Architects, Anthony Cucich a/k/a Anthony A. Cucich, Scarano Architect, PLLC d/b/a Scarano & Associates, Sharon Engineering P.C. d/b/a Sharon Engineering, P.C., Ronan Sharon, Penmark Realty Corporation d/b/a Penmark Realty Corp. d/b/a Penmark, Core Group Marketing LLC d/b/a Core Group Marketing, LLC, S. Schwartz Engineering, PLLC d/b/a S. Schwartz Associates LLC d/b/a Schwartz S d/b/a S. Schwartz Associates Consulting Engineers, Simon Schwartz, Frank Seta & Associates, LLC, Saeid S. Seta a/k/a Frank Seta, "John Doe No.1 Through John Doe # 10, Inclusive, the Last Ten Names Being Fictitious and Unknown to Plaintiff, The Persons or Parties Intended Being the Persons or Corporations or Entities Who Provided Construction Services and/or Design and Fabrication Services at the Premises Described Herein, Defendants.
Supreme Court, Kings County, New York.
Jan. 26, 2016.
Jennifer J. Bock, Esq., Law Firm of Elias C. Schwartz, PLLC, Great Neck, Andrea Roschelle, Esq., Sean Pappas, Esq., Starr Associates LLP Attorneys for Sponsor Defendants Third–Party Plaintiff, New York, John Hannum, Esq., Hannum Feretic Prendergast & Merlino, LLC, Attorneys for Defendant/Third–Party Plaintiff,
Ryder Construction, Inc., New York, Jason S. Samuels, Esq., Farrell Fritz, P.C., Attorneys for Third–Party Defendant, KNS Building Restorations, Inc., Uniondale, Daniel P. Mevorach, Esq., Gallo Vitucci Klar LLP, Attorneys for Third–Party Defendant, Hi–Lume Corporation, New York, Leigh H. Sutton, Esq., Morris Duffy Alonso & Faley, Attorneys for Third–Party Defendant, Castle Construction Group, Inc., New York, Sunny M. Sparano, Esq., Marshall, Dennehey, Warner, Coleman & Goggin, Attorneys for Third–Party Defendant, Doortec Architectural Metal & Glass, Roseland, Joseph E. Gulmi, Esq., Bushell, Sovak, Ozer & Gulmi LLP Attorneys for Third–Party Defendant, Maspeth Steel Fabricators. Inc., New York, Richard H. Petersen, Esq., Law Office of James J. Toomey, Attorneys for Third–Party Defendant, M & D Fire Door, New York, Deluca & Forster, Attorneys for Third–Party Defendant, ADS Windows, Inc., Cranford, Gartner & Bloom, P.C., Attorneys for Third–Party Defendant, Stucco Specialists, Inc., New York, Aschettino Struhs LLP, Attorneys for Third–Party Defendant, Williamsburg Parquet Flooring, White Plains, Alan S. Russo, Esq., Russo & Toner, LLP, Attorneys for Third–Party Defendant, H2L Millwork Construction Corp., New York, Gutman Weiss, P.C., Attorneys for Third–Party Defendant, Roz–A–Lite Electrical Contracting, Inc., Brooklyn, Henri A. Demers, Esq., Ahmuty, Demers & McManus, Attorneys for Third–Party Defendant, Dynamic Sheet Metal, LTD., Albertson, Thomas M. Kenny, Esq., Riker, Danzig, Scherer, Hyland & Perretti LLP, Attorneys for Third–Party Defendant, Brook Plumbing & Heating Corp., New York, Wilson Elser, Shorav Kaushik, Wilson Elser Moskowitz, Edelman & Dicker, LLP, Attorneys for Third–Party Defendant, Imperial Painting & Fireproofing Inc. d/b/a The Gold Group, New York, attorney for plaintiffs.
CAROLYN E. DEMAREST, J.
"Second third-party defendants" Hi–Lume Corporation (Motion Sequence ("MS") 18), Maspeth Steel Fabricators, Inc. (MS19), M & D Fire Doors ("M & D Installers") (MS20), Roz–A–Lite Electrical Contracting, Inc. (MS21), Williamsburg Parquet Flooring Co. (MS22), Dynamic Sheet Metal LTD. (MS23), KNS Building Restorations, Inc. ("KNS Building") (MS24), Capitol Fire Sprinkler CPO, Inc. (MS25), H2L Millwork Construction Corp. ("H2L Millwork") (MS26), Imperial Painting & Fireproofing, Inc., d/b/a The Gold Group (MS27), Stucco Specialists, Inc. (MS28), ADS Windows, Inc. (MS29), Doortec Architectural Metal & Glass (MS30), Brook Plumbing & Heating Corp. (MS31) and Castle Construction Group, Inc. (MS32) move to dismiss the amended third-party complaint ("Sponsors' Complaint") of 125North 10, LLC, Savanna Services LLC, Christopher Schlank, Nicholas Bienstock, Peter Petron, John Fraser, and Investcorp International Holdings Inc. (collectively, "Sponsors") against Ryder,1 for failure to state a cause of action, and the second third-party complaint against them ("Ryder Complaint")2 by Ryder Construction Inc. ("Ryder"), for failure to
state a cause of action and the causes of action having no merit (collectively, motion sequences 18–32 are
referred to as the "Motions").3 Ryder also moves (MS16) for default judgment, pursuant to CPLR 3215, against Mulroy Masonry, Inc. ("Mulroy") and Shabco Construction Services, Inc. ("Shabco").4
BACKGROUND
The plaintiff Board of Managers of the 125 North 10th Condominium brought this action, inter alia, against the Sponsors which have third party claims against, among other parties, Ryder, which was the construction manager and general contractor on the construction of 125 North 10th Street, Brooklyn, New York, an 86–unit luxury condominium (the "Project").5 The Ryder Complaint seeks indemnification and the cost of defending the Sponsors' Complaint from numerous subcontractors on the Project. Fifteen subcontractors moved to dismiss the Sponsors' Complaint against Ryder, to dismiss the three causes of action alleged in the Ryder Complaint against them, and any cross-claims that were asserted by any of the other subcontractor defendants.6 The two causes of action in the Sponsors' Complaint are for common law indemnification and breach of contract. The three causes of action in the Ryder Complaint are for declaratory judgment that the subcontractor defendants are contractually required to defend and indemnify Ryder against all or some of the claims asserted by the Sponsors, contractual indemnification, and common law indemnification. The numerous cross-claims by the defendants in the Ryder Complaint sound in indemnity, contribution, and breach of contract.
DISCUSSION
As each of the movants has moved to dismiss the cross-claims asserted against it, and there is no opposition to that aspect of
the motions, the motions are granted to the extent that all cross-claims asserted against the movants in the answers to the Ryder Complaint are dismissed.
The first cause of action in the Ryder Complaint seeks a declaratory judgment that, pursuant to the trade contracts between the subcontractors and Ryder, each of the movants is obligated to defend and indemnify Ryder with respect to the Sponsors' claims7 against Ryder, including
reimbursement for all past, present and future attorney's fees and costs in defending the claims of construction defects, as well as indemnification to Ryder for all damages recovered against Ryder for construction defects in connection with the work performed on the Project. In motion sequences 24 and 26, citing to BGW Dev. Corp. v. Mount Kisco Lodge No. 1552 of the Benevolent & Protective Order of Elks of the United States, 247 A.D.2d 565, 568, 669 N.Y.S.2d 56 (2d Dept.1998), KNS Building and H2L Millwork argue that the first cause of action must be dismissed as it is duplicative of Ryder's second cause of action for contractual indemnification. Although Ryder does not address this issue in opposition to MS 24, in opposition to MS 26, Ryder argues that, "the declaratory judgment action is separate and apart from the causes of action for contractual and common law indemnification as it seeks the Court's intervention in determining the rights and other legal relations of the parties to a justiciable controversy. See CPLR § 3001." However, Ryder has not identified what other "rights" and "legal relations" it seeks to have the court determine. As the first cause of action seeks a declaratory judgment for contractual indemnification, and the second cause of action seeks contractual indemnification based upon the same contracts and claims of damages, the first cause of action is duplicative of the second cause of action and is unnecessary (see BGW, 247 A.D.2d at 568, 669 N.Y.S.2d 56 ). Accordingly, the first cause of action in the Ryder Complaint is dismissed as duplicative (see id. ).
The second cause of action in the Ryder Complaint seeks contractual indemnification from each of the subcontractors in the event that the Sponsors recover any judgment against Ryder
and reimbursement for all attorney's fees and costs in this litigation. In MS 20, M & D Installers move for summary judgment...
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