Orchard Hotel, LLC v Flintlock Constr. Serv. LLC

Orchard Hotel, LLC v Flintlock Constr. Serv. LLC 2017 NY Slip Op 04894 Decided on June 15, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 15, 2017
Acosta, P.J., Richter, Feinman, Webber, Kahn, JJ.
850044/11 -4305N 4304 4303

[*1] Orchard Hotel, LLC, Plaintiff-Respondent,

v

Flintlock Construction Service LLC, Defendant-Appellant,



D.A.B. Group, LLC, et al., Defendants, Brooklyn Federal Savings Bank, et al., Defendants-Respondents.

Hollander Law Group, Great Neck (Anthony P. DeCapua of counsel), for appellant.

Morrison Cohen LLP, New York (Brett D. Dockwell of counsel), for Orchard Hotel LLC, respondent.

O'Reilly, Marsh & Corteselli P.C., Mineola (James G. Marsh of counsel), for Brooklyn Federal Savings Bank and State Bank of Texas, respondents.

Orders, Supreme Court, New York County (Charles E. Ramos, J.), entered May 19, 2014, which denied as moot plaintiff's and defendants Brooklyn Federal Savings Bank and State Bank of Texas's motions to dismiss defendant Flintlock Construction Service LLC's amended answer, unanimously reversed, on the facts, without costs, and the matter remitted for a determination of the motions on the merits. Order, same court and Justice, entered December 27, 2016, which denied Flintlock's motion to lift the stay of the action, unanimously modified, on the facts, to lift the stay so as to allow Flintlock to prosecute those claims asserted in the amended answer filed August 28, 2013 that remain pending and for a determination on its motion for an order of attachment, and otherwise affirmed, without costs.

In the December 2016 order, the court acknowledged that its May 2014 orders denying as moot the motions to dismiss the relevant claims in Flintlock's 2013 amended answer were in error because the court failed to consider the sufficiency of those claims, mistakenly considering the allegations in a 2012 proposed amended answer. The court also found that as a result of those erroneous orders, pending a determination of this appeal, Flintlock did not possess valid causes of action allowing for the lifting of the stay and consideration of its motion for an order of attachment, and the court noted that Flintlock's sole remedy might lie in application for relief to this Court.

In light of the above, we reverse the May 2014 orders, lift the stay, and remit the matter to [*2]the court for a substantive determination on the merits of the motions to dismiss the 2013 amended answer and Flintlock's motion for an order of attachment (see e.g. Bucci v Village of Port Chester , 22 NY2d 195, 204 [1968]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 15, 2017

CLERK