Hamlet on Olde Oyster Bay Home Owners Association, Inc. v. Holiday Organization, Inc., 2007 NY Slip Op 34253(U) (N.Y. Sup. Ct. 12/24/2007)
| Decision Date | 24 December 2007 |
| Docket Number | Motion RID: Motion Seq. 2-3-30-07,Motion Seq. 3-4-20-07,1647-04/,006/MOT D.,Motion Seq. 4-4-20-07,004.,005.,Motion Seq. 5-6-25-07,Motion Sequence No.: 002.,Motion Seq. 6-6-25-07,003. |
| Citation | 2007 NY Slip Op 34253 |
| Parties | THE HAMLET ON OLDE OYSTER BAY HOME OWNERS ASSOCIATION, INC, THE HAMLET ON OLDE OYSTER BAY VILLA CONDOMINIUM, THE HAMLET ON OLDE OYSTER BAY CARRIAGE HOME CONDOMINIUM, and HARVEY SHERMAN, LOUIS LUFT and RITA LITVACK, on behalf of themselves and all other persons similarly situated, Plaintiff, v. THE HOLIDAY ORGANIZATION, INC., THE HAMLET ON OLDE OYSTER BAY DEVELOPMENT CORP., THE HAMLET ON OLDE OYSTER BAY, LLC, THE HAMLET ON OLDE OYSTER BAY DEVELOPMENT CO., LLC, O.B. VENTURES CORP., GERALD MONTER, ELLIOT MONTER, MARILYN MONTER, RICHARD SPIRIO, JOSEPH MANCINO, JOHN BRANSFIELD, JR., JEFFREY WALL, R.PATRICK QUINN, MICHAEL PUORRO, RON BLOOMFIELD, HOLIDAY MANAGEMENT ASSOCIATES, INC., THE HAMLET OF OLDE OYSTER BAY FOOD AND BEVERAGE CORP., HOLCOM INCORPORATED, SCHIFFER MANAGEMENT GROUP, JOSEPH GILL SCHIFFER, SIDNEY B. BOWNE & SONS, LLP, DANE C. KENNY, ROBERT M. SWEDROE ARCHITECTS & PLANNERS, ROBERT M. SWEDROE, CHARLES A. DIGIOVANNA ARCHITECT and CHARLES A. DIGIOVANNA, Defendant, |
| Court | New York Supreme Court |
Marc H. Schneider, P.C Garden City, New York, COUNSEL FOR PLAINTIFF,
(for The Hamlet Defendants) Rosenberg, Calica & Birney, Esqs. Garden City, New York, (for Charles A. DiGiovanna Architects and Charles A. DiGiovanna) Milber, Makis, Plousadis & Seiden, LLP Garden City, New York, Kreig Associates, P.C. Dix Hills, New York, McManus, Collura & Richter, P.C. New York, New York, COUNSEL FOR DEFENDANT.
Defendants, The Holiday Organization, Inc., The Hamlet on Olde Oyster Bay Development Corp., The Hamlet on Olde Oyster Bay, LLC, The Hamlet on Olde Oyster Bay Development Co., LLC, O.B. Ventures Crop., Gerald Monter, Elliot Monter, Marilyn Monter, Richard Spirio, Joseph Mancino, John Bransfield, Jr., Jeffrey Wall, R. Patrick Quinn, Michael Puorro, Ron Bloomfield, Holiday Management Associates, Inc., and The Hamlet on Olde Oyster Bay food and Beverage Corp. (collectively the "Hamlet Defendants"), move pursuant to CPLR 3211(a)(1), (5) and (7) to dismiss certain portions of the amended complaint, for an order granting reargument of this Court's order dated July 7, 2006, and upon reargument, severing and dismissing certain portions of the breach of contract actions, for an order granting renewal and, upon renewal, dismissing certain causes of action, resettling and clarifying the Court's July 7, 2006 order and for sanctions pursuant to 22 NYCRR Part 130.
Plaintiffs cross-move to renew and reargue this Court's July 7, 2006 order and, upon renewal and reargument reinstating certain causes of action. Plaintiffs also crossmove to correct and substitute a page of the "Revised Class Action Complaint."
Defendants, Sidney B. Bowne & Sons, LLP and Dane C. Kenny (collectively "Bowne Defendants), cross-move for an order pursuant to CPLR 3211(a)(1),(5) and (7) dismissing a portion of the amended complaint.
Defendants, Charles A. DiGiovanna Architect and Charles B. DiGiovanna, move for an order pursuant to CPLR 3211(a)(1),(3), (5) and 7 dismissing all causes of action in the amended complaint alleged against said Defendants.
A. Prior Motion
The Hamlet on Olde Oyster Bay Cove ("Hamlet") is a planned, up-scale gated community in Plainview. Hamlet consists of three types of housing, "Sagamore" homes which are owned in fee, Hamlet Villa which consists of townhouse condominiums and Hamlet Carriage Homes which are also condominiums. Owners of all three types of homes are automatically members of Plaintiff, The Hamlet on Olde Oyster Bay Home Owners Association, Inc. ("HOA"). Owners of Villa units are also members of the Hamlet on Olde Oyster Bay Villa Condominium Owners Association. Owners of Carriage House units are also members of the Hamlet on Olde Oyster Bay Carriage Home Condominium Homeowners Association.
Plaintiff, Rita Litvack, is an owner of a Sagamore home. Plaintiff, Harvey Sherman, is an owner of a Villa condominium unit. Plaintiff Louis Luft is an owner of a Carriage Home condominium unit. They are alleged to represent the interests of each of member of their putative classes respectively. The HOA brings this action relating to
the common areas of the development.
This action was commenced in October 2004. The complaint was 222 pages long and alleged 89 separate causes of action. Defendants Charles A. DiGiovanna, Charles A. Digiovanna Architect, Sidney B. Bowne & Sons, LLP, Dane C. Kenny, Robert M. Swedroe Architects & Planners and Robert M. Swedroe appeared by answering the complaint.
The Hamlet Defendants appeared by moving to dismiss many of the causes of action alleged in the complaint. By order dated July 7, 2006, this Court granted the Hamlet Defendants' motion to the extent of dismissing the second, fourth, fifth, eighth, tenth, twelfth, fourteenth, sixteenth, thirty-third, thirty-fourth, thirty-fifth, thirty-sixth, thirtyseventh, thirty-eighth, thirty-ninth, forty-eighth, forty-ninth, fiftieth, fifty-first, fifty-second, fifty-third, fifty-fourth, sixty-eight, sixty-ninth, seventieth, seventy-first, eighty-fifth, eighty sixth, eighty-seventh, eighty-eighth and eighty-ninth causes of action in their entirety, dismissing all of the causes of action alleged against Defendants Joseph Mancino, John Bransfield, Jr., Jeffrey Wall, R. Patrick Quinn and Michael Puorro, dismissing the eleventh, thirteenth and fifteenth causes of action against Defendants Schiffer Management Group and Joseph Gill Schiffer. In addition, the Court granted Plaintiffs leave to serve an amended complaint regarding their breach of warranty causes of action within 30 days of the date of the order. The remainder of The Hamlet Defendants' motion was denied. The order set the matter down for a preliminary conference on September 20, 2006.
2. Subsequent Proceedings
After the Court issued its July 7, 2006 order, Plaintiffs retained new counsel. The preliminary conference was adjourned several times to permit Plaintiffs' new counsel to obtain the file and become familiar with the issues involved in the action.
At a conference, the Court suggested that, in view of the July 7, 2006 order which dismissed many of the causes of action, Plaintiffs should serve a new complaint. The new complaint, as contemplated by the Court, would omit the dismissed causes of action and the general allegations contained in the complaint that related to the dismissed causes of action and the parties against whom the action had been dismissed. Additionally, the caption would be amended to omit, the Defendants against whom the action had been dismissed.
Plaintiffs' new counsel was to prepare a proposed amended complaint and provide a copy of it to the attorneys for the remaining Defendants. If all parties agreed to the new complaint, it would be deemed served and the Defendants would then interpose an answer.
While incoming counsel for Plaintiffs prepared a proposed amended complaint and provided a copy to the attorneys for the Defendants, the Defendants did not agree to accept it.
In March 2007, Plaintiffs served an "Amended Class Action Complaint" or "Revised Class Action Complaint" ("Amended Complaint"). The only difference between the two documents is their designation.
The Amended Complaint is 235 pages and pleads 93 causes of action. All of the Defendants except Robert M. Swedroe and Robert M. Swedroe Architects & Planners move to dismiss the Amended Complaint.
3. The Amended Complaint
This Court's July 7, 2006 order found that the breach of contract actions included factual allegations that should properly have been plead as causes of action for breach of warranty. The court gave the plaintiff 30 days from the date of the order to serve an Amended Complaint which would separately plead the breach of warranty causes of action. Plaintiffs' Amended Complaint does not comply with that order.
The Amended Complaint adds breach of warranty actions.1 The remainder is virtually identical to the original complaint. The Amended Complaint alleges all 278 paragraphs of the complaint relating to the status of the parties, their relationship to the HOA, Sagamore, Villa and Carriage House units and the facts alleged to support the various causes of action. The fifth through ninety-third causes of action in the Amended Complaint simply reallege the very same causes of action alleged in the complaint, including those that were dismissed the by this Court's July 7, 2006 order.2
In this motion, Plaintiffs seek to substitute and correct page 1 of their current pleading to change its designation from "Amended Class Action Complaint" to "Revised Class Action Complaint."
This motion must be denied. The CPLR does not provide for "revised" pleadings. CPLR 3011 defines pleadings to include complaint and an answer. CPLR 3025 permits the service of amended and supplemental pleadings. Any change to the original pleading is an amendment. Siegel, New York Practice 4' §237. Since the pleading served by Plaintiffs adds causes of action, it is properly designated an Amended Complaint.
The first issue the Court must resolve is whether Plaintiffs were permitted to serve the Amended Complaint since, when they did, it was without obtaining leave from Court or their adversaries.
This Court's July 7, 2006 order granted Plaintiffs leave to replead only the breach of warranty causes of action. Those cause of actions had to be replead within 30 days of the order. This was not done.
CPLR 3025(a...
To continue reading
Request your trial