PALERMO MASON CONSTRUCTION, INC. v. Aark Holding Corp.
| Decision Date | 16 December 2002 |
| Citation | 300 A.D.2d 458,752 N.Y.S.2d 99 |
| Parties | PALERMO MASON CONSTRUCTION, INC., Respondent-Appellant,<BR>v.<BR>AARK HOLDING CORP., Also Known as AARK CONSTRUCTION CORP., Defendant, and<BR>HOME DEPOT U.S.A., INC., Appellant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is modified, on the law, by deleting the provision thereof denying the motion for summary judgment and substituting therefor a provision granting that motion; as so modified, the order is affirmed, with costs to Home Depot U.S.A., Inc., the complaint is dismissed insofar as asserted against that defendant, and the action against the remaining defendant is severed.
In September 1993 the defendants Home Depot U.S.A., Inc. (hereinafter Home Depot), and Aark Holding Corp., also known as Aark Construction Corp. (hereinafter Aark), entered into a general construction contract for the construction of a Home Depot store located in Middletown, New York. The plaintiff, Palermo Mason Construction, Inc. (hereinafter Palermo), was a masonry subcontractor hired by Aark to construct the outer masonry walls, concrete footing, and foundation walls. However, during the construction of the store in December 1993, masonry walls constructed by Palermo collapsed. A series of lawsuits followed, during which Palermo obtained a default judgment against Aark for unpaid contract balances. The judgment remained unsatisfied, even though Home Depot paid Aark in full under the general construction contract. Thus, Palermo commenced this action against Aark and Home Depot, asserting, inter alia, intended third-party beneficiary claims under the general construction contract.
Contrary to Palermo's contention, neither Home Depot nor Aark intended their contract to benefit Palermo as a third-party beneficiary (see Port Chester Elec. Constr. Corp. v Atlas, 40 NY2d 652; Lake Placid Club Attached Lodges v Elizabethtown Bldrs., 131 AD2d 159; cf. Key Intl. Mfg. v Morse/Diesel, Inc., 142 AD2d 448). Consequently, Palermo cannot recover directly from Home Depot the unpaid balance of its subcontract with Aark (see Port Chester Elec. Constr. Corp. v Atlas, supra). This is especially true where, as here, Home Depot had paid Aark in full under the terms of their contract. Accordingly, the Supreme Court properly denied Palermo's cross motion for leave to amend its complaint to assert an additional third-party beneficiary claim since the proposed amendment was devoid of merit (see Leszczynski v Kelly & McGlynn, 281 AD2d 519). For the same reasons, the Supreme Court erred in denying that branch of Home Depot's motion...
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