United States District Court, S.D. New York
OPINION AND ORDER
EDGARDO RAMOS, U.S.D J.
Design, LLC (“Specrite” or
“Plaintiff”) brings this action against Elli N.Y.
Design Corp. (“Elli”), J. Kokolakis Contracting
Inc. (“Kokolakis”), and Liberty Mutual Insurance
Company (“Liberty Mutual, ” collectively, the
“Defendants”), alleging that Elli breached an
agreement under which Plaintiff performed labor and furnished
materials in connection with a contract for a public
improvement project. Specrite also seeks to foreclose on a
lien and asserts a claim against the discharge of lien bond
acquired to insure it (the “Lien Foreclosure
Claims”). Before the Court is Kokolakis and Liberty
Mutual's motion to stay Counts I and II of the Complaint,
pending the outcome of a related action in New York County
Supreme Court. For the reasons set forth below, Kokolakis and
Liberty Mutual's motion is GRANTED.
August 2, 2012, Kokolakis entered into a public improvement
contract (the “Contract”) with the Dormitory
Authority for the State of New York (“DASNY”) for
a project known as the Bronx Mental Health Redevelopment,
Children's Center, Bronx, New York (the
“Project”). Complaint (“Compl”), Doc.
1, ¶¶ 8, 16; Trif Decl. Ex A, at 1‒2. On
April 28, 2014, Kokolakis entered into an agreement (the
“Subcontract”) with Elli wherein Elli agreed to
fabricate and install architectural woodwork, casework, and
millwork for the Project. Answer at 8; Trif Decl. Ex. A, at
23. The Subcontract expressly allows Kokolakis to
“deduct any monies due or to become due” to Elli
in case of Elli's default. Id. at 14. Sometime
thereafter, Elli, in turn, entered into an agreement with
Specrite (the “Specrite Subcontract”) pursuant to
which Specrite agreed to furnish certain labor and materials
for the Project. Compl. ¶ 8.
allegedly breached the Specrite Subcontract by failing to pay
Specrite the full amount due for labor performed and
materials furnished for the Project. Id. at ¶
11. On March 14, 2016, Specrite filed with the DASNY a Notice
of Lien for Public Improvement (the “Lien”),
claiming that Elli owed $109, 763.91 for work performed under
the Specrite Subcontract. Id. at ¶¶
13‒14. Subsequently, Liberty Mutual issued a bond,
bearing the bond number 015049636, discharging the Lien (the
“Discharging Bond”). Id. at ¶ 18.
Related State Action
March 21, 2016, Elli filed a contract breach claim against
Kokolakis and Liberty Mutual in the Bronx County Supreme
Court (“State Court Action”), seeking to recover
$221, 716.77 due under the Subcontract. Trif Decl., Ex. B. On
June 27, 2016, Kokolakis and Liberty Mutual filed an answer
to the state court complaint, denying the breach claim, and
counterclaiming that Elli breached the Subcontract by, among
other things, “performing its scope of work in a poor
and unworkmanlike manner and failing to cure its defaults
under the Subcontract.” Id., Ex. C, at 6.
September 12, 2016, the State Court Action was transferred to
New York County pursuant to the parties' stipulation.
Id., Ex. D. On July 7, 2016, the parties commenced
discovery in the State Court action. Id., Ex. E
August 3, 2016, Specrite filed this action to recover money
due under the Specrite Subcontract. Compl. (Doc. 1). In the
Complaint, Specrite asserts eight causes of action, two of
which are relevant to this motion: Count I is a claim for
foreclosure of the Lien, and Count II is a claim to recover
under the Discharging Bond (together with Count I, the
“Foreclosure Claims”). Id. at 3‒5.
Elli answered on September 29, 2016. Doc. 20. In the same
document, Elli also asserted cross-claims against Kokolakis
and Liberty Mutual for breach of the Subcontract, asking to
recover $221, 716.77. Id.
October 25, 2016, Kokolakis and Liberty Mutual filed the
instant motion to stay the Foreclosure Claims. Doc. 28.
is “not a matter of right, ” even where
irreparable injury might result. Virginian Ry. Co.,272 U.S. 658, 672 (1926). Rather, it is “an exercise of
judicial discretion, ” and “[t]he propriety of
its issue is dependent upon the circumstances of the
particular case.” Id. at 672‒73. Yet the
Court's discretion is not unguided. Kappel v.
Comfort,914 F.Supp. 1056, 1058 (S.D.N.Y. 1996). A court
may stay proceedings in one suit to abide by the proceedings
in another even if the parties or the issues in the two cases
are not identical. Ca ...