United States District Court, E.D. New York
SUPERIOR SITE WORK, INC., DIVERSIFIED CONSTRUCTION CORP., HARRISON AVENUE PROPERTIES LLC, Plaintiffs,
NASDI, LLC, Defendant. NASDI, LLC, Third Party Plaintiff,
CASE FOUNDATION COMPANY, THE CITY OF NEW YORK, and THE NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, Third Party Defendants.
& Associates, P.C. Attorneys for the Plaintiffs By Saul
D. Zabell, Esq., Of Counsel
Law Office of John E. Osborn, P.C. Attorneys for the
Defendant and Third Party Plaintiff By: Daniel H. Crow, Esq.,
& Abramson Attorneys for the Third Party Defendant Case
Foundation Company By Alan H. Winkler, Esq., Of Counsel
York City Law Department, Office of Corporation Counsel
Corporation Counsel for Third Party Defendants the City of
New York and the New York City Department of Parks and
Recreation By Amanda M. Papandrea, Assistant Corporation
MEMORANDUM OF DECISION AND ORDER
D. SPATT United States District Judge
action arises out of a contract dispute between the parties.
The contract concerned work related to the Ocean Breeze
Indoor Athletic Facility in Staten Island, New York (the
“Ocean Breeze Project”). The City of New York
(the “City) and the New York City Department of Parks
and Recreation (the “Parks Department”)
contracted with NASDI, LLC (“NASDI”) to build the
Ocean Breeze Project. NASDI allegedly subcontracted with
Superior Site Work, Inc. (“Superior”),
Diversified Construction Corp. (“Diversified”),
and Case Foundation Company (“Case”). NASDI
allegedly leased office space from Harrison Avenue Properties
LLC (“Harrison”) during the project.
before the Court are three motions: 1) a motion by Case to
either dismiss the third party complaint or hold the third
party action in abeyance pursuant to the abstention doctrine;
2) a motion by the City and the Parks Department to hold the
entire action in abeyance, or, in the alternative, for a
judgment on the pleadings on the third party complaint
pursuant to Federal Rule of Civil Procedure (“Fed. R.
Civ. P.” or “Rule”) 12(c); and a motion by
Superior, Diversified and Harrison to strike NASDI's
third party complaint pursuant to Rule 12(f), or, in the
alternative, to sever the third party action pursuant to Rule
following reasons, the Court grants Case's motion to hold
the third party action in abeyance; grants the City and the
Parks Department's motion in part and denies it in part;
and denies the motion to strike or sever as moot.
procedural history is drawn from the pleadings filed with
this Court, the motions filed by the parties, and affidavits
and exhibits attached to those motions. Namely, the Court
notes that the parties included, as exhibits attached to
their memoranda of law, the New York State Supreme Court
complaints for two cases mentioned below. The Court can take
judicial notice of those filings. See Kramer v. Time
Warner, Inc., 937 F.2d 767, 774 (2d Cir. 1991)
(“[C]ourts routinely take judicial notice of documents
filed with other courts, . . . not for the truth of the
matters asserted in the other litigation, but rather to
establish the fact of such litigation and related
filings”); Staehr v. Hartford Fin. Servs.
Group, 547 F.3d 406, 424-25 (2d Cir. 2008) (holding it
was proper for the district court to take judicial notice of,
inter alia, state court complaints).
November 20, 2012, Case brought an action in New York State
Supreme Court, Richmond County, against NASDI and its surety
bonding company, for money that Case claims it was owed on a
subcontract (“the NYS bond action”). Case alleged
breach of contract claims against NASDI and a payment bond
claim against NASDI and its surety bonding company, seeking
$2, 228, 777.64 for work performed on the Ocean Breeze
January 22, 2015, Case brought a second action in New York
State Supreme Court, Richmond County. This was a public
improvement lien action against NASDI and the City (the
“NYS lien action”). Case amended its complaint to
include Superior as a defendant. Case sought payment for the
work it had performed on the Ocean Breeze Project pursuant to
a contract with NASDI, and to foreclose on a public
improvement lien filed in connection with that project. NASDI
filed crossclaims in the NYS action against Superior and the
City, where it alleged that Superior and the City were
responsible for Case's damages under a theory of
indemnification. NASDI further set forth contractual defenses
to Case's recovery.
instant action was brought by Superior, Diversified, and
Harrison against NASDI, on February 14, 2014. The complaint
against NASDI alleges claims for breach of contract, and
unjust enrichment in the alternative. NASDI asserted a
counterclaim against Superior for defective and incomplete
work. The Court entered a scheduling order on November 6,
2014, providing that new parties should be joined by January
9, 2015. (ECF No. 28).
filed two motions to dismiss. The Court granted in part and
denied in part the first motion to dismiss, and denied its
second motion to dismiss. During that time, Superior,
Diversified and Harrison filed two amended complaints.
filed its first answer on March 11, 2016, which was an answer
to the second amended complaint. On March 25, 2016, NASDI
filed a third party complaint against Case, the City and the
Parks Department. NASDI brought various claims sounding in
breach of contract and indemnification.
23, 2016, Case filed a motion to dismiss NASDI's third
party complaint against it based upon the abstention
doctrine. Case asked in the alternative that the Court stay
the third party action.
24, 2016, the City and the Parks Department filed a motion
for a judgment on the pleadings. The City and the Parks
Department also asked, in the alternative, that the Court
stay the entire matter.
22, 2016, Superior, Diversified, and Harrison filed a motion
to strike NASDI's third party complaint as procedurally
improper, or, in the alternative, to sever it.
The Relevant Facts
March 5, 2010, NASDI entered into a contract with the City
and the Parks Department to build the Ocean Breeze Project at
625 Father Capodano Boulevard, Staten Island, New York 10305.
On June 30, 2010, NASDI entered into a subcontract with Case.
Case agreed to perform certain construction work involving
furnishing and installing auger cast piles for the Ocean
Breeze Project's foundation.
December 16, 2010, NASDI entered into a contract with
Superior. Pursuant to its contract with NASDI, Superior, as a
subcontractor, was to install the concrete foundation for the
Ocean Breeze Project. Diversified is a wholly owned
subsidiary of Superior. NASDI and Diversified entered into a
contract where Diversified agreed to negotiate with
subcontractors to get lower subcontracting prices for the
Ocean Breeze Project, and in exchange Superior would receive
fifty percent of NASDI's cost savings. Diversified
alleges that it secured lower priced subcontractors, and that
NASDI bought out ...