Hoboken Wood Flooring Corp. v Fischoff

[*1] Hoboken Wood Flooring Corp. v Fischoff 2005 NY Slip Op 52154(U) [10 Misc 3d 1065(A)] Decided on December 21, 2005 Supreme Court, Nassau County Austin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 21, 2005
Supreme Court, Nassau County

Hoboken Wood Flooring Corporation d/b/a HOBOKEN FLOORS, Plaintiff,

against

Gary C. Fischoff, Defendant, GARY C. FISCHOFF, Third-party Plaintiff, RAGONESI FABRICATION, STEVE VAUGHN, JANE VAUGHN and ALPHA INTERIORS AND DESIGN, Tird-party Defendants.



13434-05



COUNSEL FOR PLAINTIFF

Richman & Levine, Esqs.

666 Old Country Road

Garden City, New York 11530

COUNSEL FOR DEFENDANT

(and third-party Plaintiff)

Steinberg, Fineo, Berger & Fischoff, P.C.

40 Crossways Park Drive

Woodbury, New York 11797

(for third-party Defendant Ragonesi)

Mirotznik & Associates, LLC

2115 Hempstead Turnpike

East Meadow, New York 11554

(for Steve Vaughn, Jane Vaughn and Alpha Interiors and Design)

Farber, Brooks & Zane, LLP

1565 Franklin Avenue - Suite 300

Mineola, New York 11501

Leonard B. Austin, J.

Defendant/Third-party Plaintiff Gary Fischoff ("Fischoff") moves to remove this action from District Court to Supreme Court.

BACKGROUND

Fischoff is the owner of a one-family house in Roslyn which was undergoing major renovations.

Plaintiff Hoboken Wood Flooring Corporation ("Hoboken") supplied materials to Fischoff in connection with the renovation. When Fischoff failed to pay for the materials, Hoboken commenced an action in the Nassau County District Court to recover the amount due for the materials.

Fischoff retained the Third-party Defendant Ragonesi Fabrication ("Ragonesi") as the general contractor to substantially remodel and expand the first and second floors of his house.

The third-party complaint alleges that Ragonesi retained Third-party Defendant Steve Vaughn ("Vaughn"), as its agent, to supervise and coordinate the construction. Vaughn is alleged to be the sole shareholder of Third-party Defendant Alpha Interiors and Design ("Alpha"). Alpha is alleged to be the corporate alter ego of Vaughn.[FN1]

At some point, during the course of the work, Fischoff terminated Ragonesi asserting that it was not performing the work in a timely and workmanlike manner, in accordance with the architects plans and specifications and in accordance with applicable building codes.

The first cause of action in the third-party complaint is for breach of contract [*2]against Ragonesi. Fischoff seeks to recover the costs incurred to repair and remedy the improperly performed work and to finish the job.

The second cause of action in the third-party complaint seeks to recover for rain damage to the basement of the premises and damage to Fischoff's personal property resulting from the Ragonesi, Vaughn and Alpha's negligence in failing to properly secure the premises from rain. Fischoff also seeks to recover the cost of additional living expenses incurred as a result of his being unable to occupy the basement due to this damage.

The third cause of action in the third-party complaint alleges that money that Vaughn requested payment for work either in cash or by checks payable to cash. Fischoff alleges that several of the checks payable to cash were actually delivered to, and cashed by Third-party Defendant Jane Vaughn and not used to pay for work done on the project. Fischoff alleges that Jane Vaughn did not work on this project and that the transfer of the funds to Jane Vaughn constitutes a fraudulent transaction. Fischoff claims that Jane Vaughn should be required to return those funds to Fischoff.

Fischoff seeks to remove this action from District Court to Supreme Court because the damages demanded on the first and second causes of action alleged in the

third-party complaint exceed the monetary jurisdictional limit of the District Court. District Court Act §201.

DISCUSSION

Fischoff moves for removal pursuant to CPLR 325. CPLR 325 has four subsections. CPLR 325(c) and (d) are not relevant to this action. CPLR 325(c) permits the removal of a case to a court of limited jurisdiction upon the consent of the parties and subject to the monetary jurisdictional limit of the lower court. CPLR 325(d) permits the court to transfer a case to a lower court without the consent of the parties subject to the monetary jurisdiction of the court in which the action was initially commence. In Nassau County, CPLR 325(d) permits the Supreme and County Courts to transfer actions to District Court. 22 NYCRR 202.13(h). Obviously, these provisions, which permit removal to a lower court are not relevant to this action.

CPLR 325(a) permits the Supreme Court to transfer an action brought in an improper court to the proper court. See, Brooks v. Board of Higher Education, 113 Misc 2d. 494 (Sup.Ct. N.Y.Co. 1982), where the Supreme Court transferred an action against the City University of New York to the Court of Claims. This section is not relevant to this claim. No one asserts that the claim brought by Hoboken against Fischoff is beyond the jurisdictional limit of the District Court.

CPLR 325(b) permits the Supreme Court to remove to itself, on motion, an action brought in a lower court where the action was properly commenced in a lower court and the court in which the action is pending "...does not have jurisdiction to grant the relief to which the parties are entitled." Fischoff seeks to remove this action to Supreme Court on the grounds that the ad damnum in the third-party complaint is beyond the $15,000 jurisdictional limit of the District Court. District Court Act §201.

In addition, the third-party complaint may very well be an improper impleader. CPLR 1007 permits impleader "...against a person not a party who is or may be liable to that defendant for all or part of the plaintiff's claim against the defendant." The liability of [*3]the third-party Defendant must "...arise from or be conditioned upon the liability asserted against the third-party plaintiff in the main action." BBIG Realty Corp. v. Ginsberg, 111 AD2d 91, 93 (1st Dept. 1989). See also Lucci v. Lucci, 150 AD2d 649 (2nd Dept. 1989); and Rausch v. Garland, 88 AD2d 1021 (3rd Dept. 1982).

Even though the third-party plaintiff may recover damages from the third-party Defendant in excess of those sought by plaintiff, the liability of the third-party defendant to the third-party plaintiff must bear some relationship to the liability of the defendant to the plaintiff. See, George Cohen Agency, Inc. v. Donald S. Perlman Agency, Inc., 51 NY2d 358 (1980); and Erbach Finance Corp. v. Royal Bank of Canada, 203 AD2d 80 (1st Dept. 1994).

A third-party action is not separate from the original action. Reese v. Harper Surface Finishing Systems, 129 AD2d 159 (2nd Dept. 1987); and Rogowski v. Royce W. Day Co., Inc., 130 Misc 2d 801 (Sup.Ct. Albany Co. 1986). The purpose of third-party practice is to permit the defendant to bring before the court all parties who may share in defendant's responsibility to plaintiff. See, Dole v Dow Chemical Co., 30 NY2d 143 (1972); and Reese v. Harper Surface Finishing Systems, supra.

The Court cannot determine, from reading the third-party complaint, whether there is any relationship between Hoboken' claims for goods sold and delivered and the third-party claim. The third-party complaint does not seek contribution or indemnification from Hoboken. The first cause of action in the third-party complaint alleges that Ragonesi breached its contract with Fischoff. It is not clear whether Ragonesi's breach of contract is in any way related to the materials Hoboken delivered to the job. It is equally unclear how Hoboken's delivery of materials to the job is related to the second cause of action in the third-party complaint which seeks damages resulting from Ragonesi, Vaughn and Alpha's negligently securing the property against the rain. Finally, there does not appear to be any relationship between the third cause of action in the third-party complaint which seeks to recover money allegedly paid to Jane Vaughn and Hoboken's delivery of materials to the job.

The only nexus between Hoboken's claim and those contained in the third-party complaint is that they arise out of the same construction project.[FN2]

On the present record, it would be inequitable and an abuse of discretion to remove Hoboken's District Court action for goods sold and delivered in which it seeks

damages of less than $15,000 and have it become entangled in the dispute between the homeowner and the contractor regarding the entire project.

It may very well be that the appropriate relief is to sever and remove the

third-party action while permitting Hoboken's claim against Fischoff to proceed in District Court. That cannot be determined on this record.

Accordingly, it is,

ORDERED, that the motion to remove this action from District Court is denied [*4]with leave to renew upon proper papers.

This constitutes the decision and Order of the Court.

Dated: Mineola, NY _____________________________

December 21, 2005 Hon. LEONARD B. AUSTIN, J.S.C. Footnotes

Footnote 1: Fischoff alleges that Alpha Interiors and Design is a domestic corporation. The records of the New York Department of State reflect that there has never been such a corporation active or inactive, foreign or domestic.

Footnote 2:The exact nature of the claims asserted in Hoboken's complaint are unknown since a copy of the summons and complaint were not annexed to the papers submitted in support of this motion.