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Travelers Casualty and Surety Company of America v. Dipizio Constr. Co., Inc.

United States District Court, W.D. New York

May 7, 2015

TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, Plaintiff,
v.
DIPIZIO CONSTRUCTION COMPANY, INC., et al., Defendants

For Travelers Casualty and Surety Company of America, Plaintiff: Lawrence S. Novak, LEAD ATTORNEY, Benjamin D. Lentz, Torre, Lentz, Gamell, Gary & Rittmaster, LLP, Jericho, NY.

For DiPizio Construction Company, Inc., Boehmer Transportation Corp, Great Lakes Concrete Products, LLC, Bernard DiPizio, Laurice Boehmer, Defendants, Counter Claimants: Robert W. Michalak, LEAD ATTORNEY, HoganWillig, Getzville, NY.

For Travelers Casualty and Surety Company of America, Counter Defendants: Benjamin D. Lentz, Torre, Lentz, Gamell, Gary & Rittmaster, LLP, Jericho, NY.

CASE MANAGEMENT ORDER

DECISION AND ORDER

H. KENNETH SCHROEDER, JR., United States Magistrate Judge.

This case was referred to the undersigned by the Hon. Richard J. Arcara, in accordance with 28 U.S.C. § 636(b), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #20.

Travelers Casualty and Surety Company of America (" Travelers" ), commenced this action seeking payment of loss payments incurred on multiple performance and payments bonds issued subject to a general agreement of indemnity signed by the defendants. Dkt. #22.

Currently before the Court is defendants' motion to stay this proceeding pending resolution of cases pending in New York State Supreme Court, Erie County. Dkt. #30. For the following reasons, the motion is denied.

BACKGROUND

On April 25, 2012, DiPizio Construction Company (" DiPizio" ), entered into a construction contract with the Erie Canal Harbor Development Corporation (" ECHDC" ), for the Erie Canal Inner Harbor Project. Dkt. #30-1, ¶ 6. A performance bond and material payment bond in the amount of $19,784,000 (Bond No. 105594405), was issued by Travelers, as surety, and DiPizio, as principal, to the ECHDC as obligee. Dkt. #30-1, ¶ 7 & Dkt. #30-2, ¶ 5.

On May 8, 2013, ECHDC issued a notice of intent to terminate the contract with DiPizio. Dkt. #30-1, ¶ 8.

On May 13, 2013, DiPizio commenced a lawsuit against the ECHDC in New York State Supreme Court, Erie County (No. 602666/2013), seeking an injunction to stop ECHDC from terminating DiPizio's contract. Dkt. #30-1, ¶ 9. Following a hearing, the New York State Supreme Court denied the preliminary injunction on the ground that DiPizio would not suffer irreparable harm inasmuch as it possessed an adequate remedy at law, to wit, monetary damages. Dkt. #30-1, ¶ 10.

On July 22, 2013, ECHDC terminated the contract with DiPizio and made a claim against Travelers on the performance bond. Dkt. #30-1, ¶ 11.

On September 13, 2013, DiPizio commenced a defamation action (No. 801815/2013), against the New York State Urban Development Corporation d/b/a Empire State Development, the ECHDC, Sam Hoyt, ...


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