USC-NYCON, LLC v. Prime Mix Corp.

• Decision Date: 23 October 2020
• Docket Number: Index No.: 501467/2019
• Parties: USC-NYCON, LLC and FERRARA BROS., LLC, Plaintiffs, v. PRIME MIX CORP., PRIME MIX CORP., d/b/a BROOKLYN READY MIX, PRIME MIX GC II, INC., PRIME MIX GC II INC., d/b/a BROOKLYN READY MIX, PRIME MIX GC, LLC, and PRIME MIX GC, LLC d/b/a BROOKLYN READY MIX, Defendants.
• Court: New York Supreme Court

2020 NY Slip Op 33796(U)

USC-NYCON, LLC and FERRARA BROS., LLC, Plaintiffs, v. PRIME MIX CORP., PRIME MIX CORP., d/b/a

BROOKLYN READY MIX, PRIME MIX GC II, INC.,

PRIME MIX GC II INC., d/b/a BROOKLYN READY MIX,

PRIME MIX GC, LLC,

and PRIME MIX GC, LLC d/b/a BROOKLYN READY MIX, Defendants.

Index No.: 501467/2019

New York Supreme Court

FILED: October 26, 2020

RECEIVED: November 16, 2020

October 23, 2020

NYSCEF DOC. NO. 101

At an IAS Term, Part 34 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse thereof at 360 Adams St., Brooklyn, New York on the 23^rd day of October 2020.

PRESENT: HON. LARA J. GENOVESI, J.S.C.

DECISION & ORDER

Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion:

NYSCEF Doc. No.:

Notice of Motion/Cross Motion and

Affidavits (Affirmations) Annexed

20-28, 32-41,

Opposing Affidavits (Affirmations)

43-46,

Reply Affidavits (Affirmations)

__________

Introduction

Plaintiffs, USC-NYCON, LLC AND Ferrara Bros., LLC, move by notice of motion, sequence number one, pursuant to CPLR § 3211(a)(7) to dismiss defendant's counterclaims, or in the alternative, pursuant to CPLR 3024(b) to strike the allegations "as scandalous and prejudicial". Defendant, Prime Mix Corp., opposes plaintiff's motion and cross-moves, sequence number two, for an order staying discovery pending the court's decision on the motion to dismiss, and pursuant to 22 NYCRR § 130-1.1 for attorney's fees and expenses.¹

Background

The parties were retained on a construction project for the Virgin Hotel, in New York, New York. Plaintiff was hired by general contractor Flintock Construction Services, LLC (Flintock) and concrete subcontractor BMNY Contracting Corp., (BMNY) to provide concrete for the construction project (see NYSCEF Doc. # 23, Complaint at p 3). Issues arose with the concrete, which plaintiff contributed to BMNY's poor workmanship. Plaintiffs allege that defendants tortuously interfered with plaintiff's contract to supply ready-mixed concrete to the project, induced BMNY and Flintock to breach their contract, and tortuously interfered with plaintiff's business relationship with BMNY and Flintock. The parties entered into a contract dated January 16, 2018, which addressed past due balances owed to plaintiff and future production and delivery of ready-mixed concrete for the project (see id. at 3-4). Plaintiff alleges that defendant, Prime Mix, another concrete supply company, knowingly solicited business from BMNY and Flintock, causing them to breach their contract with plaintiff (see id.).

Defendant, Prime Mix alleges that it was retained by BMNY and Flintlock to provide concrete for the project, after plaintiffs were terminated from the project (see NYSCEF Doc. # 24, Amended Answer). Prime Mix alleges that plaintiffs were terminated from the project by BMNY and Flintock after multiple industry required concrete tests revealed that the ready mixed concrete supplied by plaintiff was substandard (see id at ¶ 9-10). Defendant avers that BMNY and Flintock approached a new supplier, but the supplier was allegedly intimidated by the plaintiffs, who threatened "to undercut its jobs throughout New York, and caus[e] trouble with its suppliers of materials required to manufacture concrete", causing them to refuse the job (id. at ¶ 14). Prime Mix maintains that at this time, it was approached by BMNY and Flintock, and agreed to supply concrete to the project (see id. at ¶ 15).

Prime Mix further alleges that plaintiffs learned of this new contract and "embarked on the same brazen scheme to force Prime Mix to withdraw from supplying concrete to the project" (id.). A representative of plaintiff allegedly met with the principal of Prime Mix.

Similar to his conversations with the previous supplier, Ferrara said to Cholowsky that there should be an arrangement whereby if a US Concrete controlled concrete supplier has a dispute with a general contractor, then Prime Mix should agree not to take on that job, and US Concrete/Ferrara (or NYCON) will offer the same "courtesy" to Prime Mix. Further. Ferrara advised Cholowsky that, if Cholowsky refused his proposal, and did not remove Prime Mix from the Project, Ferrara would use US Concrete's influence and market share to cause Prime Mix's materials suppliers to breach their agreements with Prime Mix, and otherwise not supply materials to Prime Mix, essentially shuttering its business.... Cholowsky did not bow to this unlawful pressure,and Prime Mix continued to deliver concrete to the Project - concrete that fully complied with, and indeed exceeded, the required concrete specifications for the Project.

US Concrete/Ferrara, true to its unlawful threat, contacted Prime Mix's suppliers and informed them, among other statements harmful to Prime Mix, that if they continued to supply to Prime Mix, they would also lose the US Concrete/Ferrara business. Prime Mix discovered these improper statements, and US Concrete/Ferrara was successful in causing Prime Mix to suffer supply issues along with the suppliers altering the payment terms of its supply. This resulted in substantial damages to Prime Mix, which has been able to struggle through these difficulties and remain in business. For a time, Ferrara was successful, Prime Mix's suppliers refused to provide the materials Prime Mix required in order to manufacture concrete and altered payment terms away from the industry standard terms. While they ultimately agreed to resume supplying Prime Mix, the damage had been done, and continues as the supply terms were altered based on US Concrete/Ferrara's conduct. Prime Mix suffered substantial economic damages as well as reputational damage.

(id. at ¶ 16-19).

Prime Mix maintains that plaintiffs' parent company US Concrete and its subsidiaries have approximately 50% market share of New York City concrete market and have attempted to "corner the market" of providing concrete to construction companies (id. at ¶ 3).

Procedural History

Plaintiff commenced the instant action by e-filing a summons and verified complaint on January 22, 2019. Defendants appeared in this action by filing a notice of appearance on March 21, 2019. The parties stipulated to extend the time to answer. Issue was joined by service of an answer on or about April 3, 2019. On April 23, 2019,defendants filed an amended answer with Counterclaims. Plaintiffs rejected the counterclaims pursuant to CPLR §§ 3013 and 3014 as "so indefinite, overly-broad and rambling that Plaintiff's counsel could not formulate any meaningful response thereto" (NYSCEF Doc. # 21, Affirmation in Support, quoting NYSCEF Doc. # 25). Defendant's counterclaims allege:

FIRST CAUSE OF ACTION

Tortious Interference With Contract

21. Prime Mix repeats and realleges the foregoing allegations as if set forth at length herein.

22. Plaintiffs were aware of Prime Mix's contracts with suppliers of sand, stone, and cement among others.

23. Plaintiffs wrongfully interfered with Prime Mix's contracts with its suppliers and otherwise assisted and encouraged Prime Mix's suppliers to breach their agreements with Prime Mix and refuse to provide materials that Prime Mix requires in order to make concrete.

24. As a result of Plaintiffs' interference with Prime Mix's suppliers, Prime Mix was unable to make concrete and defaulted on certain of its obligations to its customers and its reputation in the highly competitive construction industry has been damaged.

25. By reason of the foregoing, Prime Mix is entitled to have judgment against Plaintiffs in an amount to be determined at trial together with interest, costs and disbursements of this action.

SECOND CAUSE OF ACTION

Tortious Interference With Prospective Economic Advantage

26. Prime Mix repeats and realleges the foregoing allegations as if set forth at length herein.

27. The aforementioned conduct of Plaintiffs, including wrongfully interfering with Prime Mix's contracts with its suppliers otherwise assisting and encouraging Prime Mix's suppliers to breach their agreements with Prime Mix and refuse to provide materials that Prime Mix requires in order to make concrete, constitutes, inter alia, tortious interference with Prime Mix's prospective economic advantage.

28. As a result of Ferrara's interference with Prime Mix's suppliers, among other things Prime Mix was unable to make concrete and defaulted on certain of its obligations to its customers and its reputation in the highly competitive construction industry has been damaged.

29. The actions of Plaintiffs were willful, wanton, malicious and/or in reckless disregard of Prime Mix's rights.

30. By reason of the foregoing, Prime Mix is entitled to have judgment against Ferrara in an amount to be determined at trial together with interest, costs and disbursements of this action.

(NYSCF Doc. # 24, Amended Answer with Counterclaims).

Thereafter, plaintiff filed a reply to counterclaims (see NYSCEF Doc. # 26).

After a preliminary conference, the parties stipulated to a briefing schedule with respect to the counterclaims, wherein defendants had until June 14, 2019 to decide whether they were going to amend their counterclaims. On June 17, 2019, defense counsel wrote that they would not amend their counterclaims. Thereafter, plaintiff made the instant motion to dismiss the counterclaims or to strike them.

Discussion

Motion to Dismiss Counterclaims

Plaintiff first moves pursuant to CPLR § 3211(a)(7) to dismiss defendants' counter claims. "When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), thestandard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action" (Bennett v. State Farm Fire & Cas. Co., 161 A.D.3d 926, 78 N.Y.S.3d 169 [2 Dept., 2018], quoting Sokol v Leader, 74 A.D.3d 1180, 904 N.Y.S.2d 153 [2 Dept., 2010]). "[T]he pleading must be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable...