United States District Court, S.D. New York
December 14, 2004.
MASSACHUSETTS BAY INSURANCE CO., Plaintiff,
SUNRISE BUILDING & REMODELING, INC, et al., Defendants.
The opinion of the court was delivered by: RONALD ELLIS, Magistrate Judge
MEMORANDUM OPINION & ORDER
Plaintiff Massachusetts Bay Insurance Company ("Mass Bay"),
provider of homeowner and/or personal property coverage to
homeowners Martin and Carol Koshakow, filed this complaint for
subrogation against contractor Sunrise Building & Remodeling,
Incorporated ("Sunrise") and Richau Mustacato Grippi Associates,
Inc. ("RMG"). This Court, in its September 14, 2004 Order,
granted Sunrise's motion for leave pursuant to rule 19(a) of the
Federal Rules of Civil Procedure to add third party defendant,
Danleigh Insulation and Supply Corporation ("Danleigh"). Mass Bay
now moves for leave pursuant to rule 15(a) to add third party
defendant, Danleigh, and original defendant Sunrise consents. For
the reasons set forth below, Mass Bay's motion is DENIED.
By contract, dated February 7, 2002, homeowners Martin and
Carol Koshakow retained defendant Sunrise as a general contractor
to perform renovation work on their home, located at 26 Farragut
Road, in Scarsdale, New York. See Affirmation of David S.
Huberman in Support of Plaintiff's Motion for Leave to Amend Complaint ("Huberman
Aff."), at 2. Sunrise later retained defendant Danleigh as
subcontractor. Sometime before January 19, 2003, the Koshakows
also retained defendant RMG as architects for the renovation
There was no contract between the Koshakows and Danleigh.
However, the February 7, 2002 contract between the Koshakows and
Sunrise explicitly states that "[t]he Contractor shall be
responsible for the acts and omissions of the Contractor's
employees, Subcontractors and their agents and employees, and
other persons performing portions of the Work under a contract
with the Contractor." Abbreviated Form of Agreement Between Owner
and Contractor ("Agreement"), ¶ 9.7 [attached as Exhibit A to the
affidavit of James W. Borkowski in Opposition to Plaintiffs'
Motion for Leave to Amend Complaint ("Borkowski Aff.")].
Furthermore, the agreement states that:
it should not be construed to create a contractual
relationship of any kind (1) between the Architect
and Contractor, (2) between the Owner and a
Subcontractor or Sub-subcontractor, or (3) between
any persons or entities other than the Owner and
Agreement, ¶ 7.2. On or about January 19, 2003, a pipe froze in
the Koshakows' home, resulting in one hundred and fifteen
thousand dollars ($115,000) in damages. Mass Bay asserts that
negligent planning and/or performance by Sunrise, Danleigh, and
RMG caused the damages. In this action for negligence, breach of
contract, and breach of express and/or implied warranty against
defendants, Mass Bay seeks to recover for the amount paid to the
Koshakows through their insurance policy. See Huberman Aff., at
Leave to amend a complaint "shall be freely given when justice
so requires." FED.R. CIV.P. 15(a); see also Monahan v. New York City Dept. of
Corrections, 214 F.3d 275, 283 (2d Cir. 2000) (pleadings provide
notice to the opposing party "of the claim or defense to be
litigated . . . `mere technicalities' should not prevent cases
from being decided on the merits") (citation omitted). The court
has broad discretion to determine whether to grant a motion to
amend. Kreinik v. Showbran Photo, Inc., 2003 WL 22339268, at *2
(S.D.N.Y. Oct. 14, 2003). However, the court will typically allow
the amendment if the movant has demonstrated "at least colorable
grounds for relief" absent a showing of "undue delay, bad faith
or dilatory motive . . ., undue prejudice to the opposing party
by virtue of the allowance of the amendment, [or] futility of
amendment." Id. (citations omitted); see also Anthony v.
City of New York, 339 F.3d 129, 138 (2d Cir. 2003).
Mass Bay has failed to demonstrate any colorable grounds for
relief against Danleigh. There was no contract between Danleigh
and the Koshakows. Furthermore, the Koshakows' contract with
Sunrise explicitly relieves Danleigh of any contractual
obligation to the Koshakows for work performed. Agreement, ¶¶
7.2, 9.7. In the absence of a contract, there can be no
contractual breach. As subrogee of the Koshakows, Mass Bay does
not have a recoverable breach of contract claim against Danleigh.
Similarly, regarding the proposed negligence, third-party
beneficiary, and breach of warranty claims, it is clear from the
contract between the Koshakows and Sunrise that the Koshakows
waived any rights that they may have had against Danleigh based
on a breach of fiduciary or other duty. Agreement, ¶¶ 7.2, 9.7.
Therefore, Mass Bay does not have recoverable negligence,
third-party beneficiary, or breach of warranty claims against
Danleigh. Accordingly, Mass Bay's motion for leave to add third
party defendant Danleigh is DENIED. SO ORDERED.
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