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Affiliated FM Insurance Co. v. Liberty Mechanical Contractors, Inc.

United States District Court, Second Circuit

August 27, 2013

AFFILIATED FM INSURANCE COMPANY, Plaintiff,
v.
LIBERTY MECHANICAL CONTRACTORS, INC. d/b/a LIBERTY MECHANICAL, INC., DE-CON MECHANICAL, LLC d/b/a DE-CON MECHANICAL CONTRACTORS, LLC d/b/a DE-CON PLUMBING, LLC, Defendants. LIBERTY MECHANICAL CONTRACTORS, INC. d/b/a LIBERTY MECHANICAL, INC., DE-CON MECHANICAL, LLC d/b/a DE-CON MECHANICAL CONTRACTORS, LLC d/b/a DE-CON PLUMBING, LLC, Third Party Plaintiffs,
v.
ROBERT ETTINGER & ASSOC. a/k/a ETTINGER & ASSOC. Third Party Defendant. LIBERTY MECHANICAL CONTRACTORS, INC. d/b/a LIBERTY MECHANICAL, INC., DE-CON MECHANICAL, LLC d/b/a DE-CON MECHANICAL CONTRACTORS, LLC d/b/a DE-CON PLUMBING, LLC, Second Third-Party Plaintiffs,
v.
MILLENNIUM MASONRY, INC., AND VICTAULIC COMPANY Second Third-Party Defendants.

OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge.

Plaintiff Affiliated FM Insurance Company ("Affiliated"), as subrogee under its insurance policy with Greenwich Club Residences LLC ("Greenwich Club"), commenced this negligence action against Defendants Liberty Mechanical Contractors, LLC ("Liberty") and De-Con Mechanical LLC ("De-Con") (collectively, "Defendants") to recover damages caused by Defendants' allegedly negligent installation of plumbing joints in a building located at 88 Greenwich Street in Manhattan ("88 Greenwich"). Defendants now move to amend their Answer to interpose the affirmative defense of statute of limitations. For the reasons set forth in the remainder of this Opinion, the motion is GRANTED.

FACTUAL BACKGROUND

A. The Underlying Claim for Damages

On March 29, 2011, according to Plaintiff's Complaint, one of the plumbing joints in 88 Greenwich ruptured and separated, causing thousands of gallons of water to flood the building. (Compl. ¶ 15). 88 Greenwich was built in the 1920's, and had been used for office and commercial purposes until approximately 2000, when it was converted to residential purposes, for which it continues to be used today. (Compl. ¶¶ 9-10).

In 1999, during the conversion of 88 Greenwich from commercial to residential rental units, the then-owner of the building, Black Diamonds, LLC ("Black Diamonds"), subcontracted with Defendants to perform plumbing services. (Affidavit of Deborah Del Sordo dated June 17, 2013 ("Del Sordo Aff."), Exhs. B, F). These services included the installation of "a new 5-inch water riser running from the basement to the top floors, as well as certain collateral connections required to fill various fire suppression and domestic water tanks in the building." (Compl. ¶ 12; Del Sordo Aff., Exh. F). The Complaint alleges that in or about 2001, the plumbing equipment was installed. (Compl. ¶ 13). The Complaint does not, however, include any facts concerning the process by which the plumbing equipment was installed, nor does it allege any services provided by Defendants after the installation was complete.

Black Diamonds sold the building to 88 Greenwich Owner LLC ("Greenwich Owner") in 2005, during which time the property was converted from a residential rental building to a condominium, with Greenwich Owner serving as condominium sponsor. (Compl. ¶¶ 10-11; Del Sordo Aff., Exh. N; Declaration of Nancy Del Pizzo, dated June 28, 2013 ("Del Pizzo Decl."), Exh. S).[1] In August 2008, the Board of Managers of Greenwich Club became the current owner. (Compl. ¶ 14; Del Pizzo Decl., Exh. U; but see Del Sordo Aff., Exh. B (testimony that sponsor Buttonwood/Thor Entities was in control of 88 Greenwich in March 2011)).

Plaintiff issued an insurance policy (the "Policy") to Greenwich Club that was in effect at the time of the March 29, 2011 plumbing failure, and that covers the damage sustained to the property as a result of the alleged failure. (Compl. ¶ 8). In its Complaint, Plaintiff alleges that the plumbing joint failure resulted in damages exceeding $1.6 million, and that are currently expected to reach $1.65 to $1.85 million. (Compl. ¶ 21). Pursuant to the Policy, Plaintiff paid Greenwich Club, and consequently became subrogated to any claims Greenwich Club has against third parties, to the extent of Plaintiff's payment. (Compl. ¶¶ 20-21; see also Del Pizzo Decl., Exh. T).

B. Procedural History

On July 2, 2012, Plaintiff filed a one-count negligence complaint against Defendants. (Dkt. # 1). In that Complaint, Plaintiff sought to recoup any payments it had made or would make to Greenwich Club under the Policy to cover damages from the plumbing failure. (Compl. ¶ 26). On August 8, 2012, Defendants filed their Answer. (Dkt. # 7). In August and October of that year, Defendants filed third-party complaints against the mechanical engineer on the project and the manufacturer of the pipe, respectively. (Dkt. # 9, 17).[2] Those third-party defendants, in turn, filed cross-claims against Defendants. (Dkt. # 11, 20).

The Court filed an initial case management plan and scheduling order (the "Initial Scheduling Order") on October 25, 2012. (Dkt. # 16). Among other things, the Initial Scheduling Order specified that fact and expert discovery would be completed by May 1, 2013, and that motions to amend the pleadings or join additional parties would be due within 45 days of the Order. ( Id. ). At the request of the parties, and as a result of logistical and other complications attributed to Hurricane Sandy, the Court issued an amended case management plan and scheduling order (the "Amended Scheduling Order") on January 30, 2013, which, among other things, (i) extended the discovery deadlines for a period of approximately eight weeks and (ii) specified that motions to amend or join would be due within 45 days of the date of the Order. (Dkt. # 25; see also Dkt. # 26 (parties' request for extension)).

By letter dated May 22, 2013, the parties sought and received a further extension of the deadlines set forth in the Amended Scheduling Order. (Dkt. # 31). Pursuant to the Court's endorsement of that letter, fact discovery was scheduled to close on July 16, 2013; expert discovery was to be completed by November 8, 2013; and the parties were required to be ready for trial by December 1, 2013. ( Id. ).

C. The Instant Motion

In or about May 2013, Defendants determined that they had a potential statute of limitations defense if the relevant accrual date under New York law were deemed to be the date of completion of performance, rather than the date of injury. In sworn affidavits submitted in support of the instant motion to amend, Defendants' counsel advanced various reasons for the delay in raising a limitations defense. (Dkt. # 38, 44).[3] Counsel sourced several of these reasons to the amount of time that had passed since Defendants installed the plumbing equipment. ( See, e.g., Del Sordo Aff. ¶¶ 6, 7, 10). According to counsel, the only records in Defendants' possession as to work completed at 88 Greenwich were De-Con's subcontract with Black Diamonds and some shop drawings. ( Id. ¶ 6). In addition, ...


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