F.M.C. Constr., LLC v Heartland Dev. Corp.
Annotate this CaseDecided on June 5, 2006
Supreme Court, Richmond County
F.M.C. Construction, LLC, Plaintiff,
against
Heartland Development Corp., et. al, Defendants. STOP & SHOP SUPERMARKET, Plaintiff, HEARTLAND DEVELOPMENT CO, et. al. Defendants.
STOP & SHOP SUPERMARKET, Plaintiff, against
against
HEARTLAND DEVELOPMENT CO, et. al. Defendants.
103025/05
Judith N. McMahon, J.
This dispute concerns the construction of a new Stop & Shop Supermarket located at 2712-2754 Hylan Blvd., Staten Island, New York. The owner of the property is defendant Park Tysen Associates, LLC. Defendant Stop & Shop is the tenant. On April 16, 2004, defendant Heartland Development Corporation entered into a contract with Stop & Shop to be the general contractor on the project to build the new supermarket. Plaintiff F.M.C. was one of the subcontractors. The project went over budget and a dispute over payment occurred. In January, 2005, Stop & Shop stopped paying Heartland for the subcontractors' work and instead paid the subcontractors directly. In July, 2005, Stop & Shop stopped all payments to Heartland.
In August, 2005, Heartland commenced an action for breach of contract against Stop & Shop, F.M.C. and other subcontractors in the Superior Court of New Jersey. Approximately a week later, Stop & Shop commenced an action for breach of contract against Heartland in the Superior Court of New Jersey. These actions have been consolidated and discovery has already begun.
In October, 2005, F.M.C. commenced this lien foreclosure action against, inter alia, Heartland and Stop & Shop. In March, 2006, Stop & Shop commenced a second action in this court against Heartland and its officers on behalf of the class of Lien Law Article 3-A trust beneficiaries.
By notice of motion dated March 31, 2006, Heartland seeks to stay the first action on the ground that there is another action pending in New Jersey (CPLR 3211[a][4]). In opposition, F.M.C. asserts that it has a right to enforce its lien in this court because the property is located in Richmond County. F.M.C. and various other subcontractors contend that the first action should not be stayed as some of the subcontractors are not parties in the New Jersey actions. Additionally, the subcontractors argue that they will be extremely prejudiced by having to wait to be paid for their work until the determination of the New Jersey actions.
By notice of cross-motion dated May 8, 2006, Park Tysen, Stop & Shop and Travelers [referred to collectively as Stop & Shop] seek, inter alia, dismissal of Heartland's Mechanic's Lien in the first action. Stop & Shop contends that the verification of the Notice of Mechanic's Lien is defective. By notice of cross-motion dated May 18, 2006, Heartland seeks an order permitting it to file an amended Notice of Mechanic's Line nunc pro tunc. By notice of cross-motion dated May 24, 2006, F.M.C. seeks an order granting it a default judgment against Heartland on the ground that the verification of Heartland's answer is also defective, and thus, the [*2]pleading should be considered a nullity.
By notice of motion dated April 20, 2006, Heartland seeks to dismiss the complaint in the second action on the ground that there is another action pending in New Jersey (CPLR 3211[a][4]), or, in the alternative, to dismiss on the ground of forum non conveniens (CPLR 327). By notice of cross-motion dated May 23, 2006, Stop & Shop moved for a continuance and leave to conduct discovery prior to the determination of Heartland's motion (CPLR 3211[d]).
Where there is a prior action pending in another State and there is a question as to whether the parties can be afforded full relief therein, the preferred course is to stay the New York action pending a final determination of the prior action (see, Lawler v. TropWorld Casino and Entertainment Resort, 238 AD2d 383 [2d Dept. 1997]; SafeCard Servs. v. American Express Travel Related Servs. Co., 203 AD2d 65 [1st Dept. 1994]). Substantial, not complete, identity of parties is all that is required to invoke paragraph 4 of subdivision (a) of CPLR 3211 (see, White Light Prod. v. On The Scene Prod., 231 AD2d 90, 93 [1st Dept. 1997]; Barringer v. Zgoda, 91 AD2d 811 [3d Dept. 1982]). Additionally, it is not necessary that the precise legal theories presented in the first proceeding also be presented in the second proceeding (see, Matter of Feustel v. Rosenblum, 24 AD3d 549 [2d Dept. 2005]; Matter of Schaller v. Vacco, 241 AD2d 663 [3d Dept. 1997]). Rather, it is necessary only that the pleadings be based upon the same actionable wrong (see, Matter of Feustel v. Rosenblum, 24 AD3d 549, supra; JC Mfg v. NPI Elec., 178 AD2d 505 [2d Dept. 1991]).
Here, the New Jersey actions were commenced first, in good faith, and have been prosecuted with due diligence; furthermore, no party will suffer undue detriment or gain undue advantage by having those actions determined first (see, Trinity Products, Inc. v. Burgess Steel LLC, 18 AD3d 318 [1st Dept. 2005]). Additionally, the pleadings in all actions (New Jersey as well as this court) show that they all arise out of the same alleged actionable wrongs (see, Matter of Feustel v. Rosenblum, 24 AD3d 549, supra; White Light Prods. v. On The Scene Prods., 231 AD2d 90, supra). Finally, these actions should be stayed particularly since the New Jersey actions for breach of contract may well determine the underlying issue regarding the liens in these actions (see, Trinity Products, Inc. v. Burgess Steel LLC, 18 AD3d 318, supra).
On the court's own motion Actions No. 1 and 2 are consolidated for purposes of joint trial only is granted. Each case shall maintain its individual index number, calendar number and bill of costs and the order of opening and closing shall be reserved for the trial judge.
Accordingly, it is
ORDERED, that Heartland's motions in Action No. 1 and Action No. 2 to stay these actions pending resolution of the New Jersey actions are granted and these actions are stayed; and it is further
ORDERED, that the cross-motions are stayed pending further determination of this Court; and it is further
ORDERED, that Actions No. 1 and 2 are consolidated for the purpose of joint trial; and it is further
ORDERED, that the parties are to appear for a Status Conference on December 12, 2006, at 9:30 a.m.
E N T E R,
[*3]
Dated: June 5, 2006
J.S.C.
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