Buffalo Drilling Co., Inc. v Hotel Ithaca, LLC

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Buffalo Drilling Co., Inc. v Hotel Ithaca, LLC 2017 NY Slip Op 33181(U) November 22, 2017 Supreme Court, Broome County Docket Number: EFCA2017001646 Judge: Molly Reynolds Fitzgerald Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] BROOME COUNTY CLERK 11/22/2017 12:45 PM NYSCEF DOC. NO. 61 INDEX NO. EFCA2017001646 RECEIVED NYSCEF: 11/22/2017 At a Motion Term of the Supreme Court of the State of New York, held in and for the Sixth Judicial District, at the Broome County Courthouse, Binghamton, New York on the 20th day of October, 2017. PRESENT: HON. MOLLY REYNOLDS FITZGERALD JUSTICE PRESIDING STATE OF NEW YORK SUPREME COURT : COUNTY OF BROOME ---------------------------------------------------------------BUFFALO DRILLING COMPANY, INC., Plaintiff, DECISION AND ORDER v. Index No.: EFCA2017001646 RJI No.: 2017-1231-M HOTEL ITHACA, LLC, WILLIAM H. LANE INCORPORATED, and LIBERTY MUTUAL INSURANCE CO., Defendants. - ---------------------------------------------------------------Plaintiff and Defendant, William H. Lane Incorporated (hereinafter Lane), entered into a subcontract agreement dated December 19, 2014. Buffalo Drilling Company, Inc. . . (the subcontractor) agreed to provide all labor, materials and equipment necessary to complete the drilled concrete piers (caissons) work at the Hotel Ithaca located at 120 South Aurora Street, Ithaca, NY. Lane (the general contractor) agreed to pay Buffalo Drilling Company, Inc. (hereinafter Buffalo) the sum of $465,750. owed the sum of $185,043. Plaintiff alleges it is Buffalo filed a mechanic's lien on February 8,2016. Liberty Mutual Insurance Co. filed an undertaking in the sum of $203,547.30 to discharge the lien. An action to foreclose the lien was commenced on May 27,2016. Buffalo now moves to amend the complaint. 1 of 6 [*FILED: 2] BROOME COUNTY CLERK 11/22/2017 12:45 PM NYSCEF DOC. NO. 61 INDEX NO. EFCA2017001646 RECEIVED NYSCEF: 11/22/2017 PROCEDURAL HISTORY The action was commenced on May'27, 2016. Defendants served an answer and counterclaim on Jul,y 1, 2016. An answer to counterclaim was filed on July 14, 2016. On July 15, 2016 defendants moved to change venue to Broome County, to dismiss the action against Hotel Ithaca, LLC and to amend the complaint to substitute Liberty Mutual Insurance Company in place of Liberty Mutual Group, Inc. The Hon. Timothy J. Walker, Erie County Acting Supreme Court Justice, granted the motion in its entirety .. In support of its motion to amend, plaintiff submitted a Notice of Motion for Leave to Amend Complaint dated September 12, 2017, Affirmation in Support of Motion by Samuel A. Alba, Esq., dated September 12, 2017, with attached exhibits, including the proposed amended complaint. An Affirmation by Albert J. Milius, Jr., Esq., dated October 13, 2017 was submitted in opposition to the motion. A Reply Affirmation by Samuel A. Alba, Esq., dated October 19, 2017 was filed in further support of the motion~ Both parties filed memorandum of law in support of its position. Oral argument was heard on October 20,2017. LEGAL DISCUSSION Plaintiff proposes defendants 1. to add six new causes' of action and name 8 additional As a general rule, leave to amend a pleading should be freely granted in the All proposed new causes of action are based on the following facts: a settlement' conference was held on June 13, 2017, wherein defendant advised plaintiff it hired a consultant to allocate the delay in the project to the various subcontractors. Defendant further advised plaintiff that it owed it money for its delay in completing its work. Plaintiff was under the impression that this conference was the contract required mediation. Negotiations were fruitless given the above facts and the meeting ended 2 2 of 6 [*FILED: 3] BROOME COUNTY CLERK 11/22/2017 12:45 PM NYSCEF DOC. NO. 61 INDEX NO. EFCA2017001646 RECEIVED NYSCEF: 11/22/2017 absence of prejudice to the non-moving party where the amendment is not patently lacking in merit, Davis v South Nassau Communities Hosp., 26 NY3d 563, 580 (2015); Ferguson v Hart, 151 AD 3d 1242, 1243 (2017). There has been no alleged prejudice to defendants, however, defendants' contend the proposed amendments lack merit. This Court will address the merit of each proposed amendment. First cause of action-to foreclose the mechanic's lien Defendants do not object to the first cause of action. This is a restatement of the action in the origin complaint to foreclose a mechanic's lien. This is a valid cause of action. Second cause of action-implied covenant of good faith and fair dealing for failure to negotiate in good faith Initially, plaintiff proposed to add this cause of action against defendant Lane and two other newly named defendants, Cooper Carry, Inc. and Hotel Ithaca, LLC. In its reply, plaintiff stated this was a clerical error and agreed to limit the cause of action to defendant Lane only. Plaintiff asserts that Lane breached the implied covenant of good faith and fair dealing for its contumacious failure to negotiate in good faith, or at all. Specifically, plaintiff charges: Lane threatened to move to dismiss the complaint if plaintiff failed to "engage in non-binding mediation; it took 9 months to schedule whatplaintiff's mediation2; once at this conference/mediation, counsel believed was Lane did not negotiate but instead asserted abruptly. 2 There is a dispute as to whether this was a meeting or a mediation. 3 3 of 6 [*FILED: 4] BROOME COUNTY CLERK 11/22/2017 12:45 PM NYSCEF DOC. NO. 61 INDEX NO. EFCA2017001646 RECEIVED NYSCEF: 11/22/2017 that plaintiff owed it money for delaying the project (Lane's counterclaim). In appropriate circumstances, an obligation of good faith and fair dealing onthe part of a party to a contract may be implied and, if implied will be enforced. the implied obligation is in aid and furtherance In such instances of other, terms of the contractual relationship, Murphy v American Home Prods. Corp., 58 NY2d 293, 304 (1983). However, plaintiff has not specified any contractual provision in the December 19, 2014 subcontract agreement requiring the parties to negotiate. Paragraphs 2.9.1-2.9.6 of the agreement reference the subcontractor's legal right to file a lien and prosecute a foreclosure action on its mechanic's lien. Article 12 refers to disputes, whether they be judicial, administrative, arbitration or other. Article 17.1 states that jurisdiction shall be in the Courts of the State of New York, Broome County. The 'agreement does not contain a term requiTing the parties to negotiate. As such, this cause of action lacks merit. Third cause of action-breach of contract for failure to negotiate in good faith Plaintiff alleges that Lane breached its contractual duty to negotiate in good faith. Parties may require one another to negotiate in good faith as a condition precedent to initiating litigation, Board ofMgrs. of Paradise Harbor at Piermont Landing Condominium v Dutch Hill Realty Corp., 68 AD3d 696, 697 (2009). A contractual duty ordinarily will not be construed as a condition precedent absent clear language showing that the parties intended to make ita condition, Mullany v Munchkin Enters., Ltd., 69 AD3d 1271, 1274 (2010). The December 19, 2014 subcontract agreement does not contain a clause to negotiate in good faith. This cause of action lacks merit. Fourth cause of action-guantummeruit 4 4 of 6 and Fifth cause of action-unjust [*FILED: 5] BROOME COUNTY CLERK 11/22/2017 12:45 PM NYSCEF DOC. NO. 61 INDEX NO. EFCA2017001646 RECEIVED NYSCEF: 11/22/2017 enrichment • 5 5 of 6 j [*FILED: 6] BROOME COUNTY CLERK 11/22/2017 12:45 PM NYSCEF DOC. NO. 61 INDEX NO. EFCA2017001646 RECEIVED NYSCEF: 11/22/2017 violence to settled principles of contract law which limit a contracting party's liability to those damages that are reas'onably foreseeable at the time the contract is formed, Board of Educ. of Hudson City School Dist. v Sargent, Webster, Crenshaw & Folley, 71 NY.2d 21, 28 (1987). A complaint couched upon a pure breach of contract complaint which alleges economic loss ~ only, fundamentally seeks contribution and therefore fails to state a cause . . of action, Tempforce, Inc. v Municipal Hous. Auth. of City of Schenectady, 222 AD2d 778, 780 (1995). A requestto amend a complaint will be freely given. However, denia.1is appropriate if the moving party fails to make a evidentiary showing that the proposed amendments have merit, Trump on the Ocean, LLC v State of New York, 79 AD3d 1325, 1327 (2010). Plaintiff failed to make an evidentiary showing that the amendments have merit. The motion to amend the.complaint is denied; in its entirety. This constitutes the Decision and Order of this Court. Dated: Novemberz..'Z.-2017 HON. MO Y REYNOLDS FITZGERALD SUPREME COURT JUSTICE cc: Samuel A. Alba, Esq. Albert J. Milius, Jr., Esq. Judith E. Osburn, Broome County Chief Court Clerk 6 6 of 6

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