BR 352E51, LLC v. Avo Constr.

• Decision Date: 16 August 2022
• Docket Number: Index Nos. 653869/2019,004
• Citation: 2022 NY Slip Op 32764 (U)
• Parties: BR 352E51, LLC, BEEKMAN REIM LLC, Plaintiffs, v. AVO CONSTRUCTION LLC, ELIZABETH MCDONALD, ROCCO BASILE Defendants.
• Court: New York Supreme Court

2022 NY Slip Op 32764(U)

BR 352E51, LLC, BEEKMAN REIM LLC, Plaintiffs,
v.
AVO CONSTRUCTION LLC, ELIZABETH MCDONALD, ROCCO BASILE Defendants.

Index Nos. 653869/2019, 004

Supreme Court, New York County

August 16, 2022

Unpublished Opinion

1

DECISION + ORDER ON MOTION

HON. DAKOTA D. RAMSEUR JUSTICE

The following e-filed documents, listed by NYSCEF document number (Motion 004) 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56 were read on this motion to/for DISMISS

Plaintiffs, BR 352E51, LLC and Beekman Reim LLC (plaintiffs), commenced this action seeking damages for breach of contract and negligence stemming from an agreement to perform construction work at the premises owned by plaintiff located at 352 East 51st Street, New York, New York (premises). Plaintiffs now move pursuant to CPLR 3211(a)(5) and (7) to dismiss defendants Elizabeth Mcdonald and Rocco Basile (collectively, the individual defendants), counterclaims for abuse of process. The motion is opposed. For the following reasons, plaintiffs' motion is granted.

By way of background, plaintiff commenced this action against co-defendant AVO Construction (AVO) related to construction work AVO performed at the premises. AVO was the general contract hired to perform work at the premises, including the construction on a penthouse unit on top of the existing building. Plaintiff thereafter filed the amended complaint asserting claims against the individual defendants pursuant to the New York State Lien Law, Article 3-A and conversion.

The individual defendants thereafter sought to dismiss plaintiffs claims pursuant to the Lien Law and conversion. Another justice of this court denied the individual defendant's motion, finding that:

"[d]efendants' argument for dismissal of plaintiffs' NYC Lien Law Article 3-A claim pursuant to CPLR 3211(a) (7) is not warranted, since plaintiffs are permitted to amend the complaint without leave of court to allege a Lien Law trust fund conversion claim during or after trial pursuant to CPLR 3025 (c)"

(BR 352E51, LLC v AVO Const. LLC, Sup St, New York County, Mar. 01, 2021, King, J., index no. 653869/2019).

2

The individual defendants then filed an answer, including two counterclaims for abuse of process. The counterclaims allege that by "[w]rongfully commencing and maintaining the action against [the individual defendants], [plaintiffs intend to do [the individual defendants] harm without excuse or justification" (NYSCEF doc. no. 49 at ¶65, ¶69). The counterclaims further allege that plaintiffs "[e]ngaged in the foregoing conduct and used civil process in a perverted manner to obtain a collateral objective" (id. at ¶ 66). The counterclaims further state that the individual defendants "[h]ave suffered special injury, including but not limited to damage to their reputation and payment of legal fees" (id. at ¶73). The individual defendants seek damages in "|a]n amount to be determined at trial, but anticipated to be in excess of $500,000, plus attorneys' fees, costs, expenses and disbursements" (id. at ¶74).

In support of their motion to dismiss the counterclaims, plaintiffs first argue that the individual defendants fail to state a claim for abuse of process in that the counterclaims fail to allege: a regularly issued process used by plaintiff; that the counterclaims allege an intent to do harm: and there is no allegation of use of process in a perverted manner to obtain a collateral objective. Plaintiffs further argue that the individual defendants fail to allege specific damages resulting from plaintiffs commencement of this action. Finally, plaintiff argues that plaintiff is entitled to dismissal of the counterclaims, as the identical matter was litigated in the individual defendants' motion to dismiss.

The individual defendants primarily argue...