Roco G.C. Corp. v. Bridge View Tower, LLC

• Decision Date: 28 November 2018
• Docket Number: Index No. 6672/09,2017–05262
• Citation: 89 N.Y.S.3d 201,166 A.D.3d 1031
• Parties: ROCO G.C. CORP., Plaintiff-Appellant, v. BRIDGE VIEW TOWER, LLC, Respondent, et al., Defendants; Michael Tam, Nonparty-Appellant.
• Court: New York Supreme Court — Appellate Division

166 A.D.3d 1031
89 N.Y.S.3d 201

ROCO G.C. CORP., Plaintiff-Appellant,
v.
BRIDGE VIEW TOWER, LLC, Respondent, et al., Defendants;

Michael Tam, Nonparty-Appellant.

2017–05262
Index No. 6672/09

Supreme Court, Appellate Division, Second Department, New York.

Submitted—June 15, 2018
November 28, 2018

Foster & Wolkind, P.C., New York, N.Y. (Peter B. Foster of counsel), for appellants.

Yan Wang Law Group, P.C., New York, N.Y. (James Anthony Wolff of counsel), for respondent.

WILLIAM F. MASTRO, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, ANGELA G. IANNACCI, JJ.

89 N.Y.S.3d 203

DECISION & ORDER

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, those branches of the motion of the defendant Bridge View Tower, LLC, which were for leave to serve and file an amended answer asserting a counterclaim sounding in fraud against the nonparty Michael Tam, and increasing the ad damnum clause for the counterclaims from the sum of $750,000 to the sum of $25,000,000 are denied, and the cross motion of the plaintiff and the nonparty Michael Tam to strike the amended answer and counterclaim filed by the defendant Bridge View Tower, LLC, on December 20, 2016, is granted.

This dispute arose from the construction of an 18–story residential condominium building by the defendant Whing Shing Construction, Inc. (hereinafter Whing Shing), on premises owned by the defendant Bridge View Tower, LLC (hereafter Bridge). On May 12, 2006, the plaintiff and Whing Shing entered into a written contract for a total contract price of $1,197,850.50 for plumbing and fire protection work. The contract stated that "[a]ll work must be completed by 12/31/06. " The contract was signed by "Mike Tam" as president of the plaintiff, and by the president of Whing Shing. The plaintiff claims that it was ordered off the job on December 13, 2007, after completing 95% of its work, and was paid the sum of $794,892.53, leaving the sum of $402,957.97 unpaid.

The plaintiff commenced this action in March 2009. The complaint, among other things, asserted a cause of action to recover damages for breach of contract. In April of 2009, Bridge served a joint answer with Whing Shing, asserting a counterclaim to recover damages for breach of contract arising from the plaintiff's alleged delay in performance. The ad damnum clause of the counterclaim demanded damages in the sum of $750,000.

In 2016, the parties appeared for preliminary conferences, and Bridge filed an amended answer on its own behalf on December 20, 2016, without leave of court. In January 2017, Bridge moved for leave to serve and file the amended answer in its capacity as a third-party beneficiary of the contract between the plaintiff and Whing Shing. Bridge reasserted the original counterclaim to recover damages for breach of contract and sought to add an additional counterclaim against the plaintiff and against a new party—the plaintiff's president, Michael Tam—alleging fraud. The additional counterclaim is based on the alleged false representation by the plaintiff and Tam to both Bridge and Whing Shing that they were...