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Inter Connection Electric, Inc. v. VII 752 West End Owner LLC

Sup Ct, New York County

June 28, 2013

INTER CONNECTION ELECTRIC, INC., Plaintiff
v.
VII 752 WEST END OWNER LLC, 752 PARIS WEA LLC, 752 PARIS WEA-II LLC, HELIX PARTNERS, HP BUILDERS, WILLIAM LOZITO, JOSEPH LOZITO, MATTHEW BROWN, NEW YORK COMMUNITY BANK, REMCO MAINTENANCE LLC, and JOHN DOES 1-200, intended to be (i) their heirs, devisees, and personal representatives, and his, their, or any of their successors in right, title, and interest, the names of the last two hundred defendants being unknown to plaintiff, the person or parties intended to be any person in possession of or claiming interest in or lien against the property described in the verified complaint, whose interest may not be protected under applicable emergency rent laws, or (ii) the owners, officers, directors, shareholders, and/or members of defendant VII 752 WEST END OWNER LLC, whose names are currentl'y unknown to plaintiffs but will be discovered during the course of discovery in this action, Defendants Index No. 102985/2012

Unpublished Opinion

DECISION AND ORDER

LUCY BILLINGS, J.S.C.

I. BACKGROUND

Plaintiff seeks to recover payment for the work plaintiff undertook as a subcontractor on a construction project where defendant HP Builders LLC was the general contractor and defendant VII 752 West End Owner LLC was the owner. Defendants Helix Partners, HP Builders LLC, William Lozito, Joseph Lozito, and Matthew Brown move to dismiss plaintiff's First through Sixth and Eighth Claims for Relief under C.P.L.R. § 3211(a) (1), (5), and (7). Plaintiff opposes defendants' motion and cross-moves to join a defendant and to amend the complaint. C.P.L.R. §§ 1001 (a), 1002 (b), 3025 (b) .

II. THE PROPOSED JOINDER AND AMENDMENTS

Plaintiff cross-moves to join Helix Group, Inc., as a defendant and substitute three claims for relief for plaintiff's original eight claims. The proposed First Claim for Relief, which mirrors the Third Claim for Relief in the original complaint, alleges a breach of contract against HP Builders LLC and Helix Group, Inc., in addition to Helix Partners, the only defendant originally sued for a breach of contract.

The proposed Second Claim for Relief, which mirrors the Sixth Claim for Relief in the original complaint, alleges unlawful diversion of a statutory trust fund under New York Lien Law § 77(2) against Helix Group, Inc., in addition to the original defendants Helix Partners, HP Builders LLC, William Lozito, Joseph Lozito, and Matthew Brown. The proposed Third Claim for Relief, which mirrors the Eighth Claim for Relief in the original complaint, alleges violations of the Prompt Payment Act, N.Y. Gen. Bus. Law § 756-a, against defendant Helix Group, Inc., in addition to Helix Partners and HP Builders LLC, the defendants originally sued for diversion of a trust fund.

III. APPLICABLE STANDARDS

C.P.L.R. § 3025(b) permits amendments to a complaint as long as they do not unfairly surprise or otherwise substantially prejudice defendants, Kocourek v. Booz Allen Hamilton Inc., 85 A.D.3d 502, 504 (1st Dep't 2011); Jacobson v. McNeil Consumer & Specialty Pharms., 68 A.D.3d 652, 655 (1st Dep't 2009); Thompson v. Cooper, 24 A.D.3d 203, 205 (1st Dep't 2005); Zaid Theatre Corp. v. Sona Realty Co., 18 A.D.3d 352, 354-55 (1st Dep't 2005), and the proposed claims for relief, as alleged, are meritorious. Sabo v. Alan B. Brill, P.C., 25 A.D.3d 420, 421 (1st Dep't 2006); Thompson v. Cooper, 24 A.D.3d at 205; Zaid Theatre Corp. v. Sona Realty Co., 18 A.D.3d at 355; Watts v. Wing, 308 A.D.2d 391, 392 (1st Dep't 2003). Plaintiff bears the burden to demonstrate the merits of its proposed claims for relief through admissible evidence. Greentech Research LLC v. Wissman, 104 A.D.3d 540, 541 (1st Dep't 2013); Zaid Theatre Corp. v. Sona Realty Co., 18 A.D.3d at 355; Pacheco v. Fifteen Twenty Seven Assoc, 275 A.D.2d 282, 284 (1st Dep't 2000); Non-Linear Trading Co. v. Braddis Assocs., 243 A.D.2d 107, 116 (1st Dep't 1998) . See Sepulveda v. Dayal, 70 A.D.3d 420, 421 (1st Dep't 2010);. Spence v. Bear Stearns & Co., 264 A.D.2d 601, 602 (1st Dep't 1999).

Upon defendants' motion to dismiss plaintiff's claims pursuant.to C.P.L.R. § 3211(a)(1), the court may not rely on facts alleged by defendants to defeat the claims unless the evidence is in admissible documentary form, demonstrates the absence of any significant dispute regarding those facts, and completely negates the allegations against defendants. Lawrence v. Graubard Miller, 11 N.Y.3d 588, 595 (2008); Leon v. Martinez, 84 N.Y.2d 83, 8.7-88 (1994); Greenapple v. Capital One, N.A., 92 A.D.3d 548, 550 (1st Dep't 2012); Correa v. Orient-Express Hotels, Inc., 84 A.D.3d 651 (1st Dep't 2011). The court may grant defendants' motion to dismiss claims under C.P.L.R. § 3211(a)(1) only where the admissible documentary evidence utterly refutes plaintiff's allegations and conclusively establishes a defense as a matter of law. Goldman v. Metropolitan Life Ins. Co., 5 N.Y.3d 561, 571 (2005); Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326 (2002); 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 152 (2002); McCullv v. Jersey Partners, Inc., 60 A.D.3d 562 (1st Dep't 2009). If the documentary evidence demonstrates the absence of any claim, that conclusion bars repleading. Meimeteas v. Carter Ladvard & Milburn LLP, 105 A.D.3d 643 (1st Dep't 2013); Montefiore v. Sola, 292 A.D.2d 241, 242 (1st Dep't 2001); Fischbein v. Beitzel, 281 A.D.2d 167 (1st Dep't 2001).

Upon defendants' motion to dismiss claims pursuant to C.P.L.R. § 3211(a)(7), the court must accept the complaint's allegations as true, liberally construe them, and draw all reasonable inferences in plaintiff's favor. Walton v. New York State Dept. of Correctional Servs., 13 N.Y.3d 475, 484 (2009); Nonnon v. City of New York, 9 N.Y.3d 825, 827 (2007); Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d at 326; Wadiak v. Pond Mat., LLC, 101 A.D.3d 474, 475 (1st Dep't 2012). The court may dismiss a claim under C.P.L.R. § 3211(a)(7) only if the allegations completely fail to state a claim. Leon v. Martinez, 84 N.Y.2d at 88; Harris v. IG Greenpoint Corp., 72 A.D.3d 608, 609 (1st Dep't 2010); Frank v. DaimlerChrvsler Corp., 292 A.D.2d 118, 121 (1st Dep't 2002).

IV. PERMITTING JOINDER OF THE PROPOSED ADDITIONAL DEFENDANT

Plaintiff proposes to join Helix Group, Inc., as a defendant pursuant to C.P.L.R. § 1001(a), citing the bid documents plaintiff submitted for its contract for electrical work, addressed to either "Helix Group" or Helix Partners, and signed and approved by defendant William Lozito. Aff. of Jeff Z. Skowronski Ex. A. Plaintiff alleges that it entered the contract with "the entire Lozito 'empire, '" which undertook responsibility for payments to plaintiff, explaining why plaintiff's proposals and invoices were to "Helix Group, " Helix Partners, or HP Builders LLC. Skowronski Aff. ¶ 20.

The indiscriminate use of various related entities' names and evident mutual acceptance of this practice may be construed as blurring the distinction among those entities. E.g., F. Garofalo Elec. Co. v. Glick Dev. Affiliates, 188 A.D.2d 326 (1st Dep't 1992). The bid documents addressed to "Helix Group, " whether referring to Helix Group, Inc., specifically or the entire Lozito business "empire" that includes Helix Group, Inc., Helix Partners, and HP Builders LLC, directly contradict defendants' insistence that HP Builders LLC, the general contractor, is the only entity against which plaintiff, an electrical contractor, may claim. At minimum this documentary evidence favors ...


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