God's Battalion of Prayer Pentecostal Church, Inc. v. Hollander, 2009 NY Slip Op 51939(U) (N.Y. Sup. Ct. 8/27/2009)
| Decision Date | 27 August 2009 |
| Docket Number | 001056/2009 |
| Citation | 2009 NY Slip Op 51939 |
| Court | New York Supreme Court |
| Parties | GOD'S BATTALION OF PRAYER PENTECOSTAL CHURCH, INC., Plaintiff, v. LARRY B. HOLLANDER, HOLLANDER & STRAUSS, LLP, HOLLANDER & STRAUSS AS SUCCESSOR TO HOLLANDER, STRAUSS & MASTROPIETRO, LLP, ROPAL CONSTRUCTION CORP., CHARLES CROSS, ANDREW PALADINO, PAUL ALONGI AND AXA GLOBAL RISKS U.S. INSURANCE COMPANY as successor to COLONIA INSURANCE COMPANY, Defendants. |
This motion by defendant Larry B. Hollander, Hollander & Strauss, LLP, Hollander & Strauss as Successor to Hollander, Strauss & Mastropietro, LLP ("Hollander & Strauss") and this affirmation by defendants Ropal Construction, Charles Cross and Angelo Paladino ("Ropal Construction") in support of movants and requesting similar relief including sanctions pursuant to pursuant to CPLR 8303-a and 22 NYCRR 130-1.1 is granted as provided herein.
This motion by defendants Paul Alongi and AXA Global Risks U.S. Insurance Company as Successor to Colonial Insurance Company "AXA") for an order pursuant to CPLR 3211(a)(1), (3), (5) and (7) dismissing the complaint against them is granted as provided herein.
In this action commenced on January 21, 2009, the plaintiff God's Battalion of Prayer Pentecostal Church, Inc. ("the Church") seeks to recover of the defendants for violations of the Canons of Professional Ethics, violation of Judiciary Law § 487, money had and received, fraud, prima facie tort and unjust enrichment based upon alleged overpayments which it alleges it was fraudulently compelled to make for its construction project at its church on account of the defendants' dishonest conduct vis a vis it, its surety and the courts. It also seeks to recover of defendant Hollander and his firm for his alleged interference with a prospective non-party witness in a related ongoing proceeding.
The moving defendants seek dismissal of the complaint pursuant to CPLR 3211(a)(1) as barred by documentary evidence; pursuant to CPLR 3211(a)(3) for lack of standing; pursuant to CPLR 3211(a)(5) as barred by the doctrines of collateral estoppel, res judicata and judicial estoppel and as untimely; and, pursuant to CPLR 3211(a)(7) for failure to state a claim. They also seek sanctions.
The pertinent facts are as follows:
The plaintiff Church owns property at 661 Linden Boulevard in Brooklyn. In 1996, it sought to expand its facilities and to that end, hired the architectural firm Miele & Associates, P.C. ("Miele") to prepare the plans and to supervise and oversee the construction. Construction bids were solicited and allegedly on account of pressure by Miele, on or about August 29, 1996, the Church contracted with the defendant Ropal construction to do the work. The contract provided that the project would cost $1,650,000 and that it would be completed by August, 1997, and ready for the school's opening in September. It required Ropal Construction to provide the Church with a payment and performance bond which was issued by the defendant AXA. It also required Ropal Construction to submit monthly requisitions certifying under oath that all prior subcontractor bills for labor and materials had been paid and as to each line item, certifying the gross amount of the work performed, the percentage of completion, and the remaining balance due as provided in the requisition forms.
The Church alleges in this action that in August, 1997, the construction project was not finished as promised and that Ropal Construction in fact lacked the financial resources to complete it. It further alleges that in early 1998, contractors who had been hired by Ropal Construction began walking off the job claiming that they had not been paid. The Church alleges that on or about May 7, 1998, Newco Ironworks filed a Mechanic's Lien in the amount of $31,000; that on or about June 29, 1998, Andy Piping filed a Mechanic's Lien in the amount of $23,035; and, that in October, 1998, Williams Elevator Company refused to install elevators claiming that it was owed $157,581, even though Ropal Construction's requisition forms indicated that the Church had already paid it $174,258 for Williams Elevators' work and that only $36,742 worth of work remained outstanding. The Church alleges that as of October, 1998, it had paid Ropal Construction $1,550,000 of the total contract price of $1,650,000 and that Ropal Construction had in fact submitted a certified requisition statement which indicated that the project was 93.9% complete and that only $101,102 worth of work remained, however, the subcontractors' outstanding claims as reflected by Newco Ironworks, Andy Piping and Williams Elevator Company's liens and demands totaled in excess of that amount, i.e., $ 211,000. The Church alleges that on October 30, 1998, Ropal Construction submitted a requisition form seeking payment of $192,982.09 and that on November 30, 1998, it filed a Mechanic's Lien against the Church in that amount. It alleges that that lien was fraudulent and was in fact contradicted by the history of Ropal Construction's requisitions. It claims that Ropal Construction only filed that lien to coerce it into paying the aforementioned unpaid Mechanic's Liens. The Church alleges that in November, 1998, and again in January, 1999, it declared Ropal Construction in default and served a notice on its surety, the defendant AXA. It further alleges that on February 8, 1999, Williams Elevator Company filed a Mechanic's Lien in the amount of $157,581.
On or about February 17, 1999, Ropal Construction commenced an action to foreclose on its Mechanic's Lien and in response, the Church sought to have the lien discharged as exaggerated. As counsel to Ropal Construction, defendant Hollander sought to stay that action and to proceed to arbitration, which was granted by order dated August 4, 1999. In arbitration, Ropal Construction allegedly maintained that it was Miele who as the Church's fiduciary agent had decided what payments to make and Miele in fact testified as such on behalf of Ropal Construction. The Church maintained that it was not liable to Ropal Construction because its requisitions as well as its Mechanic's Lien were fraudulent and exaggerated. It also maintained that Ropal Construction, Miele and Hollander were making fraudulent representations to the Arbitrator. By determination dated January 25, 2002, the arbitrator concluded that Miele's certifications were binding on the Church and accordingly found in favor of Ropal Construction in the amount of $154,907 plus interest in the amount of $44,093, for a total of $198,990.
In this action, the Church alleges that the arbitrator blatantly miscalculated by finding that only $1, 459,766 of $1,673,834 had been paid, leaving a balance owed to Ropal Construction of $189,937. The Church alleges that an additional approximately $ 100,000 had been paid but "was overlooked and lost somewhere by the arbitrators." Despite the Church's opposition to the award's confirmation and its motion to vacate the arbitrator's award, it was confirmed by the Supreme Court, Kings County by order dated March 26, 2002 and on April 9, 2002, judgment was entered in Ropal Construction's favor in the amount of $ 198,990.00 plus interest and costs totaling $203,132.75. The Church moved to stay entry of judgment and to reargue the court's March 26, 2002 order arguing, inter alia, that the arbitrator had erroneously based his decision on the architect's rubber stamping "every false and fraudulent requisition that [Ropal Construction] submitted;" that it was entitled to damages on account of Ropal Construction's willful and deliberate exaggeration of its Mechanic's Lien; and, that the Arbitrator failed to afford it credit for $95,984 in payments to Ropal Construction. The Church alleged that Ropal Construction and AXA were "attempting to manipulate the court to perpetrate an enormous fraud on" it. By order of the Supreme Court, Kings County dated May 22, 2002, the Church's motion was denied. On appeal, by order dated May 19, 2003 the Appellate Division, Second Department affirmed the Supreme Court's decision. On June 17, 2003, the Church issued a check to Ropal Construction's attorney defendant Hollander & Strauss in the amount of $224,921.45.
The Church alleges that in the interim, the surety AXA hired the engineering firm Cashin Associates, P.C., to act as its agent to oversee completion of the construction and that its engineer employee Larry Britt was assigned to that task. The Church alleges that in the course of his investigation, Britt encountered "substantial obstruction and lack of cooperation" from Ropal Construction, owing to its attorney defendant Hollander & Strauss' interference, as a result of which on or about August 26, 1999, the Church had to bring suit against AXA to procure performance under the bond, the completion of the project and to recover under the performance bond for damages suffered as a result of Ropal Construction's breach. The Church alleges that only when Hollander undertook representation of AXA did it counterclaim against it "for losses in connection with the labor, services and materials furnished in connection with the completion of the project." In response to AXA's motion for partial summary judgment, the Church argued that it should not be held liable for damages in excess of the contract price; that it was entitled to a credit for the monies Ropal Construction recovered in arbitration; that Ropal Construction should be held liable to AXA for any losses it sustained; and, that the Arbitrator had erred in its assessment of Ropal Construction's Mechanic's Lien. Ultimately, by order dated March 17, 2003, the Supreme Court, Kings County granted AXA partial summary judgment dismissing the complaint against it, finding that "the arbitration award in favor of defendant's principal [Ropal Construction] under the performance bond, as confirmed by the court, preclude[d] any possible...
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