Southern Wine & Spirits of Am., Inc. v Impact Envtl. Eng'g, PLLC

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Southern Wine & Spirits of Am., Inc. v Impact Envtl. Eng'g, PLLC 2009 NY Slip Op 33405(U) November 5, 2009 Supreme Court, New York County Docket Number: 650489/08 Judge: Barbara R. Kapnick 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. [* 1] ·- suf'ReuecouRT oFtHesTATE oF ,NEw..voRK -~- -NewvoeK:.couNri· _ - . . BMB~R; KAM~ICK• ~ . Pile(. .: i . : . • ~t&1 < Index Number : 650489/2008 ...· .. . ·. -~ · I SOUTHERN WINE & SPIRITS OF NDEXNO. : vs. I . . I IMPACT ENVIRONMENTAL i \ftOTION DATE SEQUENCE NUMBER : 001 MOTION 'SEq; .- i DISMISS ACTION ·- . . ~ MOTIOl'l I . NO. ._ cAf:·NQ•.· · _ ................,__ ·.·...;.;...... . -._ ~- ... __::j Th_el===============d iotion ·to/for ~.....-..,.,;.,,.......,_...,;..;_...................-"'"'"'" .. -·: ... . ; i _ Notict of Motitin/ ·Otder. to Sho~ C4us. ...,. Affidavits -"- ~xhibits . ~ .. . ._t : - --. -. . . · :: . . . :·.·· F · LED _- I . .·:. ~·-.- - ·-~~- .... . . · .- . -Nov 06 ... 2009 ~ . . _·-. .. . . ._ NEWYORK ._ COUf\ITYCl.SRK"S OFFICE . .:~ . :. . :_.-·:·' .-· ..: •. _ PA.,.,tnJP· • _:, [* PAGE 2 0F4 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 39 ----------------------------------------x SOUTHERN WINE & SPIRITS OF AMERICA, INC., SOUTHERN WINE & SPIRITS OF NEW YORK, INC. and SYOSSET PROPERTY PARTNERS, LLC, DECISION/ORDER Index No. 650489/08 Mot i on Seq . No. 001 Plaintiffs, - against IMPACT IMPACT IMPACT IMPACT IMPACT ENVIRONMENTAL ENVIRONMENTAL ENVIRONMENTAL ENVI RONMENTAL ENVIRONMENTAL ENGINEERING , PLLC, CONSULTING INC., REMEDIATION, INC., SOLUTIONS CORP., and CLOSURES, INC., FILED Nov 06 2009 Defendants. NEW YORK COUNTY CLERK'S OFFICE ------- -- ---------~---------------------x BARBARA R. KAPNICK, J.: In this action, plaintiffs Southern Wine & Spi rits of America, Inc., Southern Wine & Spirits of New York, Inc., and Syosset Property Partners , LLC (collectively, usouthern") seek to recover damages against defendants Impact Environmental Engineering, PLLC, Impact Environmental Consulting Inc., I mpact Environmental Remediation, Inc., Impact Environmental Solutions Corp ., and Impact Environmental Cl osures, Inc . (collectively, " Impact") for breach of contract (first cause of action) and negligence/gross negligence (second cause of action ). Defendants now move to dismiss the Complaint on the ground that plai nt iff s have fai l ed to comply with a condition precedent to filing this lawsuit. Specifically, the General Terms and Conditions annexed to the parties' agreements (and incorporated by reference therein) provide, in relevant part, as follows: [* PAGE30F4 3] The CLIENT shall make no claim for professional negligence, either directly or in a third - party claim against [Impact Environmental Consulting, Inc . ( "IEC")] unless the CLIENT has first provided IEC with a written certification executed by an independent design professional currently practicing in the same discipline as IEC. The certification shall: a) identify the name of the professional; b) specify each and every act or omission that the certifier contends is a violation of the standard of care identified in t h is Agreement; c) state in complete detail the basis for the cert ifier's opinion that each such act or omiss ion constitutes such a violation. This certificate shall be provided to IEC not less than thirty (30) calendar days prior to the presentation of any claim or t he institution of anv arbi trat i on or judicial proceeding [emphasis supplied] . Pla intiffs do not d ispute that such a written certification was not provided prior to the filing of this action on December 11, 2008, but argue that thi s Court should find that they complied with the condition precedent by providing a wri tten Certification to Impact on February 6, 2009, more than thirty (30) days prior to plaintiffs' filing o f a n Amended Complaint on or about March 31, 2009. While plaintiffs correctly n ote that "[a] claim asserted in an amended pleading is [generally] deemed to have been interposed at the time the claims in the original (CPLR § 203 [ f] ) , pleading were interposed," and that plaintiffs' Compl a int may thus "relate back" claims in the Amended to the original Complaint for purposes of the Statute of Limitations, the filing o f an Amended Complaint cannot cure plaintiffs' f ailure to comply with their contractual requirement t o provide the certification "to IEC not l ess than thirty (30) calendar days prior to the presentation of any c l a im or the institution of any . . . judicial proceeding." 2 [* PAGE40F4 4] Accordingly, based on the papers submitted and the oral argument held on the record on September 23, 2009, this Court finds that plaintiffs have failed to comply with a condition precedent to the filing of this action, and thus t he Complaint must be dismissed. The Clerk may enter judgment accordingly without costs or disbursements. Plaintiffs' request that this Court expressly provide that said dismissal is without prejudice to their right to commence a new action subject to the protections of CPLR § 205(a) is denied. 1 This constitutes the decision and order of this Court. c:fiiJ!lt . Date, NovemberS 2009 FILED Nov 06 2009 NEW YORK COUNTY CLER~S OFFICE l Pursuant to CPLR § Barbara R. Kapnick J .S .C. BARBARA R. KAPNICK J.s.c. 20S(a), [i]f an action is t imely commenced and is terminated in any other manner than ... a final judgment upon the merit s, the plaintiff, . .. may commence a new action upon the same transaction or occurrence o r series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such s i x-month period .. . Howeve r , it i s not clear from the papers submitted wheth e r or not plaintiffs' claim f or negligence was timely commenced at the time of commencement of the instant action. 3

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