Rombouts Ave, LLC v Blue Sea Constr. Co. LLC

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Rombouts Ave, LLC v Blue Sea Constr. Co. LLC 2017 NY Slip Op 30221(U) February 1, 2017 Supreme Court, New York County Docket Number: 157586/2015 Judge: Jeffrey K. Oing 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 02/03/2017 03:44 PM 1] NYSCEF DOC. NO. 66 INDEX NO. 157586/2015 RECEIVED NYSCEF: 02/03/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL PART 48 ----------------------------------------x ROMBOUTS AVE, LLC, Plaintiff, Index No.: 157586/2015 -against- Mtri Seq. No. 003 BLUE SEA CONSTRUCTION CO. LLC, OCEANHILL LLC, THE NEW YORK CITY HOUSING AUTHORITY and "John D'oe #1" to "John Doe # 10", Both Inclusive, the Names of the Last 10 Defendants, Being Fictitious, Said Defendants' True Names Being·Thereby Intended to Designate Parties Whom Have or.Claim to Have Some Lien or Interest In or Upon the Funds Due or to Become Due Under the Public Improvement Contract That is the Subject of This Action, BLUE SEA .DEVELOPMENT CORPORATION, LLC, ROSENBERG HOUSING GROUP INC., DUVERNAY + BROOKS LLC and PENNROSE PROPERTIES LLC, LES BLUESTONE and AVERY SEAVEY, DECISION AND ORDER Defendants. ----------------------------------------x JEFFREY K. OING, J. : Reliefs Sought Defendants, Blue Sea Construction ~o. LLC ("Blue Sea"), Oceanhill LLC ("Oceanhill~), Blue Sea Development Corporation, LLC ("Blue Sea Development"), ~osenberg Housin~ Group Inc. ("RHG"), Duvernay +Brooks, LLC ("D+B"), Pennrqse Properties LLC ("Pennrose"), Les Bluestone, and Avery Seavey (collecti~ely, "moving defendants"), move for the following reliefs: (a) pursuant to CPLR 7503, staying'this action an'd compelling J 2 of 7 [*FILED: NEW YORK COUNTY CLERK 02/03/2017 03:44 PM 2] NYSCEF DOC. NO. 66 INDEX NO. 157586/2015 RECEIVED NYSCEF: 02/03/2017 Page 2 of Index No.: 157586/2015 Mtn Seq. No. 003 6 plaintiff, Rombouts Ave, LLC, to arbitrate its fee dispute with defendant Blue Sea; and (b) pursuant to CPLR 2004 and 3012(d), I extending moving defendants time to respond to plaintiff's amended complaint until after a determination of this motion. Facts Plaintiff claims that on or about July 30, 2014 it entered into a subcontract agreement (the "subcontract") with Blue Sea, as general contractor, to provide labor and' materials for excavation and c9nstruction on a project known as Brooklyn's Prospect Plaza (the "project"), located in Bro9klyn at 1765 Prospect Place ·(the "property"). The New York City Housing Authority ("NYCHA") is the owner of the p~operty. NYCHA entered into a ground lease with Oceanhill as lessee, wherein Oceanhill agreed to construct public rental housing units. entered into.a development RHG, D+B, and Pennrose ag~eement (collect~vely, NYCHA also with Blue Sea Development, the "defendant developers") in which.they agreed to work on behalf of Oceanhill to develop the property under the plans specified for the project (Amended Compl. <JI 15) . The defendant developers also en_tered into a contract with Blue Sea pursuant to which Blue Sea would act as general contractor for the project (Amended Compl. <JI constructio~ 16). 3 of 7 services requ~red by the [*FILED: NEW YORK COUNTY CLERK 02/03/2017 03:44 PM 3] INDEX NO. 157586/2015 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 02/03/2017 Page 3 of Index No.: 157586/2015 Mtn Seq. No. 003 6 Plaintiff commenced this action against Blue Sea for breach of contract ·(first cause of action) to recover $848,795.38 for labor, ·services, ~nd materials it expended under the subcontract. In addition, plaintiff asserts claims against Blue Sea as well as Oceanhill and the defendant developers for unjust enrichment (second cause of action), quantum meruit (third cause of action), . I and'against all named defendants for violation of the New York State Lien Law, Article 3-A (fourth cause of action). Parties' Contentions Moving defendants argue that this action should be stayed because Blue Sea has elected to exercise its right to arbitrate disputes arising out of its subcontract with plaintiff. The arbitration clause in the subcontract provides the following: At the sole and exclusive option of the Contractor, any and all disputes arising out of the Subc6ntra6t Documents or the breach thereof shall be decided by arbitration in accordance'with the Construction Industry Arbitration Rules of the American Arbitration Association (AAA) and sb.all be conducted in New York, New York. At the Contractors election, any such proceeding may be self-administered without the involvement of the AAA. The award rendered by the arbitrator(s) shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. The Subcontractor shall have no right to demand arbitration of any dispute with the Contractor without the Contractors written consent. (Bluestone Aff., Ex. A, § 11.4). Blue Sea filed a Demand for. Arbitration with the American Arbitration Association ("AAA") 4 of 7 [*FILED: NEW YORK COUNTY CLERK 02/03/2017 03:44 PM 4] NYSCEF DOC. NO. 66 INDEX NO. 157586/2015 RECEIVED NYSCEF: 02/03/2017 \ Page 4 of Index No.: 157586/2015 Mtn Seq. No. 003 6 (the "Arbitration Demand") in July 2016 (Bluestone Aff., Ex. B). In the Arbitration Demand, Blue Sea seeks $2,817,119.55 in damages from plaintiff. In opposition, plaintiff argues that the arbitration provision in the subcontract does not cover pla·intiff' s claims against seven of the eight defendants because they are not signatories to the subcontract. Plaintiffs also argue that Blue Sea waived its right to arbitration by waiting almost two years after this dispute arose to seek arbitration, and that the arbitration should be stayed in favor of this action which was filed first. Lastly, plaintiff claims that its fourth cause of· action for violation of Article 3-A Trust Fund is not subject to arbitration. Discussion The amended complaint in this action clearly shows that plaintiff's claims against moving defendants arise out of the subcontract, with plaintiff seeking damages in the amount of ,. $848,795.38 under the subcontract in each cause of action. As such, plaintiff's claims against the moving defendants may be resolved in the arbitration between plaintiff and Blue Sea. Further, although the Article 3-A Trust Fund violation claim (fourth cause oi action) is not subject to arbitration, 5 of 7 [*FILED: NEW YORK COUNTY CLERK 02/03/2017 03:44 PM 5] NYSCEF DOC. NO. 66 INDEX NO. 157586/2015 RECEIVED NYSCEF: 02/03/2017 Page 5 of Index No.: 157586/2015 Mtn Seq. No. 003 prosecution of thi~ 6 claim should be stayed pending final resolution of the arbitration proceeding: Plaintiff's claim that Blue Sea waived its right to arbitration is unavailing. The record demonstrates that Blue Sea filed motions in response to plaintiff's complaint and amended complaint seeking a stay of this action pending mediation before the AAA as required under the subcontract (Bluestone Aff., Ex. A, § 11.1). The mediation was unsuccessful and Blue Sea filed the Arbitration Demand, with the AAA shortly thereafter (Bluestone Aff., ~~ 17-18). Therefore, under these circumstances, there was no waiver by Blue Sea of its right to arbitration under the I subcontract given that it was following the protocol set forth in the parties' subcontract. Ih addition, plaintiff'~ argument that the arbitration should be stayed because this action was filed before Blue Sea filed the Arbitration Demand is unavailing. The principle is well settled that when parties expressly agree to arbitrate their di~putes any issue that arises and falls within the purview of the arbitration agreement "must go to arbitration" (In the Matter of the Arbitration between Exercycle Corporation v Maratta, 9 NY2d 329 [1961]). Accordingly, it is hereby 6 of 7 [*FILED: NEW YORK COUNTY CLERK 02/03/2017 03:44 PM 6] NYSCEF DOC. NO. 66 INDEX NO. 157586/2015 RECEIVED NYSCEF: 02/03/2017 Page 6 of Index No.: 157586/2015 Mtn Seq. No. 003 6 ' ORDERED that the motion, pursuant to CPLR 7503, to stay this action is granted, and this action is hereby stayed; and it is further ORDERED that either party,may move to vacate or modify this stay upon the final determination of the arbitration proceeding pending before the AAA; and it is further ORDERED that moving defendants are directed to serve a copy of this order with notice of entry on the Trial Support Office (Room 158) . This memorandum opinion constitutes the decision and order of the Court. Dated: z.(t\(1HON. JHffWE~ ~:ofNHJG, J;S.C 7 of 7 J. s. c.

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