Dormitory Auth. of the State of N.Y. v A. Williams Trucking & Backhoe Trenching, Inc.

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Dormitory Auth. of the State of N.Y. v A. Williams Trucking & Backhoe Trenching, Inc. 2012 NY Slip Op 33393(U) March 9, 2012 Sup Ct, New York County Docket Number: 450133/2011 Judge: Anil C. Singh Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 03/19/2012 1] INDEX NO. 450133/2011 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 03/19/2012 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ANIL C. SINGH SUPREME COURT JUSTICE PART Justice Index Number : 450133/2011 DORMITORY AUTHORITY OF THE vs. A. WILLIAMS TRUCKING AND SEQUENCE NUMBER : 004 L/ INDEX N O . - - - - MOTION DATE _ _ __ MOTION SEQ. NO. - - - DISMISS The following papers, numbered 1 to _ _ , were read on this motion to/for Notice of Motion/Order to Show Cause - Affidavits Answering Affidavits - Exhibits ____________ Ui .. .;,:..._ Exhibits ------------------- Rep IyIng Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Upon the foregoing papers, it is ordered that this motion Is W ( [A_ tJ-- <::.-!"-~~ ._e9 ~ <:..>--cJ.-.() :.., I No(s).,_ _ __..~1No(s). ----~~--I No(s). _ _ _ ____.n-=-- <:::4< ~J.--- :.:;;. ¢ co .,, ...... CV'"J..i\..,.--. ;...- ..... 9 w u ffl ·-,, i= en ::::> .., 0 l- o w a::: a::: w w LL a::: ¢ ¢ >- ~ z ::::> 0 LL en ...J ...J I- c( u w w 3> a::: C) w z a::: en 3: - 0 w ...J en ...J c( 0 (.) LL z ~ 0 0 0 Ii= a::: :Eu.. Dated: AA IJJ&'L~ 3/-;.f, ~ 1. CHECK ONE: ¢ ¢······ ¢·· ¢ ¢·· ¢ ¢··· ¢· ¢ ¢··· ¢ ¢· ¢······ ¢ ¢··· ¢···· ¢· ¢· ¢ ¢· ¢·· ¢· ¢ ¢ ¢· ¢ ¢· ¢·· H(}N. D CASE DISPOSED 2. CHECK AS APPROPRIATE: ¢. ¢. ¢.. ¢ ¢.... ¢... ¢ ¢ ¢ ¢.. ¢ ¢ ¢ ¢ MOTION IS: 0 GRANTED 0 DENIED 3. CHECK IF APPROPRIATE: ................................................ 0 SETTLE ORDER 0DONOTPOST SUPREME 0 ,J.S.C. ~GH co~~~~)! DISPOSITION G~ IN PART 0 ::J OTHER SUBMIT ORDER 0 FIDUCIARY APPOINTMENT ~REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK : IAS PART 61 -------------------------------------x Dormitory Authority of the State of New York, Index Number: Plaintiff, 450133/2011 -againstA. Williams Trucking & Backhoe Trenching, Inc., Aspro Mechanical Contracting, Inc., CNA Surety Corporation d/b/a American Casualty Company of Reading, Pa., Dierks Heating Company, Inc., Future Tech Consultants of New York, Inc., Pyramid Fire Protection, Inc., Smi-Owen Steel Company, Inc., Stonewall Contracting Corporation, ADF South Carolina, Inc., Defendants. -----------------------------------x Anil C. Singh, J.: CNA Surety Corporation d/b/a American Casualty Company of Reading, Pa. (American Casualty) moves, pursuant to CPLR 3211 (a) (7), to dismiss the cross claim asserted against it by Stonewall Contracting Corporation (Stonewall) Parties and Their Allegations The action arises out the construction of the Bronx County criminal court complex (the Project) (complaint, financed and managed the Project (id.). ~ 1). Plaintiff It alleges that it hired defendants to perform construction work and construction-related services and that they failed "to perform in accordance with [* 3] their contractual obligations", resulting in the Project's completion being delayed from December 31, 2005 until February 2008 and causing increased construction costs In March 2001, SMI-Owen Steel Company, (id., Inc. entered into contract number DA 78798/1380909999 ~ 2). (SMI-Owen) (the SMI-Owen Contract) with plaintiff for structural steel work in connection with the Project ~ (id., 23). On March 25, ( ?002, American Casualty executed a performance bond (the Performance Bond) in connection with the SMI-Owen Contract in the amount of $27,850,000 (id.,~ 25). The complaint further alleges that, on December 10, 2003, SMI-Owen declared itself in voluntary default, that plaintiff accepted this default and demanded that American Casualty perform ~ under the Performance Bond (id., obligations, on January 29, takeover agreement 27). ~ Pursuant to its 2004, American Casualty executed a (the Takeover Agreement), agreed to hire A.J. McNulty & Co., Inc. under which it (McNulty) outstanding work under the SMI-Owen Contract (id., to complete the ~~ 29-31), but plaintiff asserts that the work was not completed in a timely and adequate manner (id., ~ 33). In December 2001, plaintiff entered into contract number DA 84173/1380909999 with Stonewall (the Stonewall Contract) for core and shell work on the Project and plaintiff contends that Stonewall failed to complete its work in a timely and adequate 2 [* 4] ¢· manner (id., ~~ 33-34). Stonewall interposed an answer to plaintiff's complaint, admitting that it entered into the Stonewall Contract and that it agreed to complete the work required, but denying that it had breached its contractual obligations and including a cross claim against American Casualty for contractual indemnification, asserting that American Casualty's, A. Williams Trucking & Backhoe Trenching, (Williams) and ADF South Carolina, Inc.'s (ADF) Inc.'s work at the project was responsible for any delay and that Article 13 of the Stonewall Contract provides it a right to contractual indemnity against other contractors and subcontractors ~~ 65, (Stonewall Answer, 77-79) Contractual Provisions Article 13.01 (E) of the SMI-Owen Contract and the Stonewall Contract provide that "[s]hould any other contractor ... sustain damage through any act or omission of the Contractor or any subcontractor, the Contractor shall reimburse said other contractor for all said damages and shall indemnify and hold the Owner harmless from all said claims." The Takeover Agreement provides in Article V that "[t]he parties do not intend, and no provision herein shall be construed, to create any third-party beneficiaries, or to confer, any benefit, or enforceable rights hereunder, than the parties hereto." 3 upon anyone other [* 5] -Stonewall contends that, under these provisions, American Casualty agreed to contractual indemnity for the work performed by McNulty, its contractor. Dismissal Standard In determining a motion to dismiss pursuant to CPLR 3211, the court must accept the facts as alleged in the complaint as true, accord them every possible favorable inference and determine whether the facts as alleged fit within any cognizable legal theory (Goldman v Metropolitan Life Ins. 570-571 (2005]). Co., 5 NY3d 561, Dismissal based upon documentary evidence is appropriate only where the "documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" (Leon v Martinez, 84 NY2d 83, 88 [1994]). However, allegations that are bare legal conclusions or are inherently incredible, or that are flatly contradicted by the documentary evidence, are not accorded such favorable inferences, and need not be accepted as true (Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81 [1st Dept 1999], affd 94 NY2d 659 [2000 l) . Contract Claim Against a Non-Signatory Stonewall contends that the contractual provisions in Article 13 give it a direct contract claim against American Casualty. However, Stonewall "was not a signatory to [the Takeover Agreement and, therefore], no cause of action for breach 4 . [* 6] -.~ ... of contract can be asserted against it" (Hampton Hall Pty Ltd. v Global Funding Servs., Ltd., ;82 AD3d 523, 524 denied 17 NY3d 707 [2011]; Balk v 125 W. [1st Dept], 92nd St. lv Corp., 24 AD3d 193 [1st Dept 2005]). Contractual Indemnity The right to contractual indemnity depends upon the language of the contractual provision (Smith v Broadway 110 Devs., LLC, AD3d 490, 491 [1st Dept 2011]; Lesisz v Salvation Army, 1050, 1051-1052 [2d Dept 2007]). 80 40 AD3d American Casualty signed the Takeover Agreement and this included an express provision stating that it did not create or confer any benefit on a third party. The general rule is that construction contracts consider third-party beneficiaries to be incidental beneficiaries and not able to enforce contractual rights, such as indemnification provisions (Port Chester Elec. Constr. Corp.· v Atlas, 40 NY2d 652, 656 [1976]; 283 AD2d 627, 628 (T~, Perron v Hendrickson/Scalamandre/Posillico [2d Dept 2001]). whether the contracting parti~s "The best evidence . . . of intended a benefit to accrue to a third party can be ascertained from the words of the contract itself" (Alicea v City of New York, 1988]; see also Artwear, Inc. Dept 1994]). 145 AD2d,315, v Hughes, 318 [1st Dept 202 AD2d 76, 81-82 [1st Where, as in this case, there is an explicit provision barring third-party beneficiary enforcement, "that provision is decisive" (Nepco Forged Prods. v Consolidated Edison 5 [* 7] r/ - '"f' Co. of N.Y., 99 AD2d 508, 508 [2d Dept 1984]; see also Mendel v Henry Phipps Plaza W., Inc., 16 AD3d 112, 113 [1st Dept 2005] affd 6 NY3d 783 [2006]). Accordingly, the portion of Stonewall's cross claim that seeks contractual indemnity against American Casualty is dismissed. Order It is, therefore, ORDERED that CNA Surety Corporation d/b/a/ American Casualty Company of Reading, Pa.'s motion to dismiss the cross claims asserted against it by Stonewall Contracting Corporation is granted and the said cross claims are dismissed. Dated:~ f' 2012 ENTER: =--- _Olc.--"'oi;;;;;;;;( J. s . c . SUP.HON. ANll.. C. SINGH --~~COURT JUSTICE 6

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