Everlast Drywall Constr., Inc. v Westmere Fire Dist.

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Everlast Drywall Constr., Inc. v Westmere Fire Dist. 2018 NY Slip Op 33738(U) December 14, 2018 Supreme Court, Albany County Docket Number: Index No. A00455/2014 Judge: Roger D. McDonough 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] ALBANY COUNTY CLERK 12/27/2018 03:46 PM INDEX NO. A00455/2014 NYSCEF DOC. NO. 46 STATE RECEIVED NYSCEF: 12/27/2018 NEW YORK OF COURT SUPREME DRYWALL EVERLAST OF ALBANY COUNTY CONSTRUCTION, INC., Plaintiff, AND DECISION -against- Index RJI THE WESTMERE MUTUAL FIRE INSURANCE COMPANY INSURANCE COMPANY No.: ORDER A00455/2014 01-17-124854 LIBERTY DISTRICT, INSURANCE No.: SAFECO COMPANY, OF AMERICAN, GENERAL OF AMERICA, Defendants. (Supreme Court, Albany All County Purpose Term) Appearances: LAW (Carl 172 OF CARL OFFICE Attorneys for J. DePalma, State TORRE, York A, Defendants Wager, Jericho York that documents motion, moves defendants compalling they within the Counsel) Suite 309 11753-2702 McDonough, Plaintiff indicate of Esq., Quadrangle, New D. & LLP for (Patricia GARY GAMELL, RITTMASTER, Attorneys Roger 13021 LENTZ, Jericho, of Counsel) Esq., Street New Auburn, 100 J. DEPALMA Plaintiff have J.: to provide no moved answers. time to that portion frame. At to dismiss the plaintiff Alternatively, responses. discovery objection a reasonable defendants defendants' to strike of the or on the complaint. 2 of 9 Dafendants motion return The seeks oppose that date grounds seeks the for motion production of plaintiff a Court order but of s discovery dismissal included a [*FILED: 2] ALBANY COUNTY CLERK 12/27/2018 03:46 PM INDEX NO. A00455/2014 NYSCEF DOC. NO. 46 of limitations statute the and RECEIVED NYSCEF: 12/27/2018 complaiñt. Defendant the stipulations, Plaintiff defense. opposes return defendant's the cross-motion. all three for date opposes motion Pursuant motions was and parties' to the adjourned cross-moves to amend multiple to October requests 2018.' 10, Background Plaintiff LLC ("DooleyMack"). a project work 2012 wherein msinkins due plaintiff under bonds Insurance the affirmative the served, defense instant the the instant latest Plaintiff that filed contract with House Phase was plaintiff could from have on March Lien DooleyMack all ("the II", terminated a Mechanic's pay on to DooleyMack DooleyMack to promptly of America The Insurance was already due. amoüñts undisputed as surety, ("Safeco") roles played by defendants, of America Company payment issued Liberty are entirely unclear complaint. amended litigation in June of limitations. of 2014. motion 2012. the Fire York, DooleyMack. Company General of statute in October defendants and proposed and that of DooleyMack. on behalf commenced Plaintiff the Insurance reveals obligated with contract of 2011. under were Westmere in April of New Constructors to be a subcontractor Project, 28, January defendants Company complaint record payment that that Safeco performance from was plaintiff's Defendant, Mutual Project it indicated plaintiff The as DooleyMack plaintiff District contract the 2012. for called Fire into 28, on the The and contract entered known an entity "Westmere on January performed 21, as the Plaintiff Project with The known Project"). the a contract had Eventually, The Defeñdsñts' 2014. plaintiff four nearly of served years after of time and answers upon demands discovery the included demands discovery were ensued. practice Discussion PlaintiiPs Discovery Plaintiff of plaintiff's plaintiff's counsel the absence that the necessitates queries, 1 In the maintains Motion mainkins Plaintiff's of any objection his passage that a finding that final significant emails defenAnts' and telephone submission consists of or claim of prejudice, affirmation. -2- 3 of 9 answers calls Court repeated be stricken. demonstate an affirmation the defendants' will made overlook Additions!!y, his on ignorance good October the faith 12, 2018. untimeliness of [*FILED: 3] ALBANY COUNTY CLERK 12/27/2018 03:46 PM INDEX NO. A00455/2014 NYSCEF DOC. NO. 46 to resolve efforts delayed further parties mªin±±in that will they plaintiff's and The is equally as well attention and/or conclude that defendants' Dept. displeased counsel's willful were 2004]). Rather, result of both resolution. AddManally, the a proposed scheduling as a predictable respond. status Both of the then parties Under case. the order, discovery order the are notes some time ago the the were a March in the and cannot before from the the both Court failed Court the Court Court the to provide and that 13 AD3d York, strikes for with to as to the of a Court violatioñ defendets' of striking remedy matter discovery shovdñg responses of any their Court's Court of New query absence basic an insufficient of 2017) 5, 2018 to make to the the directed November by to dismiss years matter discovery that centumacious. v City bring parties extreme been in maintain to supply the Jenkins (see, (due circsñsta-.ces, that has of money motion had Nevertheless, as there the to ignore proceeded finds Court. the to properly that and in bringing to provide failure have willful defendants The a waste their unwillingness delay unwillingñcss Court defendants defendants' from denies was discovery defendants Finally, Court clearly contumacious counsel's the that of 2017. constitute here. that is warranted and these Court that lengthy Order would exist stresses with of pleadings striking event actioñs/inactioñs a discovery securing the in the that rñaiñ‡ain up to June demands discovery counsel their as plaintifPs failures [2"d that discussions defcñses responses to dismiss responses 342 of limitations In reply, Court to the Defenan+s intervention. in settlement responding discovery complaiñt. court without engagement statute clear provide motion dispute the by the of the light the RECEIVED NYSCEF: 12/27/2018 answer is wholly inappropriate. As reserves alternative to the decision Motion complaint of New York's Lien maintain that plaintiff one from year defendants the further to Dismiss to Amend Cross-Motion Plaintiff's of a Court Law was date order campalling Court the responses, discovery time. at this Defendants' relief brought in the form obligated, on which maintain the that final the on Statute of Limitations Grounds and Plaintiffs Complaint a single of failing pursuant payment key date cause of action to meet trust to Lien under is March -3- 4 of 9 against Law defendants fund requirements, § 77, to commence plaintiff's 21, all 2012 contract when becema plaintiff for violations Defendants this action due. filed within The the subject [*FILED: 4] ALBANY COUNTY CLERK 12/27/2018 03:46 PM INDEX NO. A00455/2014 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 12/27/2018 Mechanic's Lien. commenced by March 180 the inter requires, date of claim accrual. commenced that is clearly until late action was a claimant of 2014, fire also that is clearly the complaint until late that Town June of Law § 18 months had was not under untimely of been to have action the that timely within action As been note district the district. mªi"+•in defendants to have commenced a fire contend as to the had defandants against dekadsats 2013 action actually The a lawsuit file 21, the not untimely. Accordingly, June that actually Town § 180. Law plaintiff In opposition, claim and untimely. They origiñl been theory. 1306, caselaw action was pleading. As patently version [4th Grandview Dept. to the State bond merit. Finance as this must claim, was Court Defendants' Law the sole be dismissed the the § 137 has first cause of action as against said not been unpersuasive -4- 5 of 9 and of action cause rather has from Company, Notice the of action did motion set forth defendant, the not in not has pursued as there above against are also Plaintiff unrelated cause an even filing a 158 AD3d of Claim to serve a in said Westmere Fire defendant. persuaded statcmcat sole Insurance set forth the merit. to refrain on wholly as to the conclusory was v Acadia reasons the merit plaintiff to induce Com. be denied must without that to bring without but the disputed complaint grounds. of li=ltedons reliance for Additionally, of limitations is wholly Grove that a bond commenced. a.mended is wholly not failure litigaticñ in the established statute action any Plaintiff's 2018]). complaint complain.t without of theory the of estoppel on statute said after to add maintaim on their based of action clearly of the took years claim applicability estoppel four causes have be dismissed unpersuasive. Accordingly, the defendants Kotecki's amended proposed that the plaintiff's defendants that (see, that that However, 1307-1308 approximately defense has plaintiff Rather, the in order plaintiff Additionally, arguments. claiming note the claim. limitaticns stress must challenge an allegation timely District, finds violation from until further complaint meaningfully of to amend cross-moved trust statute defendants Court The law to dismiss In reply, has be estopped should motion estoppel lien defeñdañts' dafand-+= instant its expand of validity the As September by assert the 2013. that alta, co===enced timely 21, mai=+=ln defendants 2014, defendants Accordingly, that regarding not said the necessarily cause of action applicability is of the prior an interpretation that [*FILED: 5] ALBANY COUNTY CLERK 12/27/2018 03:46 PM INDEX NO. A00455/2014 NYSCEF DOC. NO. 46 this RECEIVED NYSCEF: 12/27/2018 Court provide the District approved plaintiff's by the prejudice and/or the Plaintiff has not Mutual has as from motion it was the titles to dismiss entirely said and unclear the General causes be granted to the Court original motion the of action as to both what the Care failure as it pertains pleadiñg, defendants. Court proposed From if any, of Court must v Inc. Center. to state notes Liberty amended as complaiñt Court finds the onset of the said plaintiff Additionally, the defeñdants of a cause that to defendents, of America. of said or prejudiced way of Action The Company involvement, Belair a Campe complaiñt. of the defendants allegations the complaint's caption that 2018]). to State Insurance from Dept. evidence Finally, of merit, (see, Fire precedent be in any insufficient complaint [3d bond. to Wee+=en condition the devoid the docu=entary would been when and under they have Failure to amend complaints of both must for defêñdañts' as to claim patently 1265 1263, cross-motion Company dropped AD3d acknowledged explicitly opposition any Insurance plaintiff well raised is not by the defendants upon and contents that an amended to Dismis_s instant the filing 161 Inc.. completed of the as there claim to serve Motion has bond ine=nhent persuaded demonstrated In sum, the cross-motion Defendants' by and Agency. Insuring action pleading. a=ended surprise grant less been of 2012 December much alleged, adequately partially purported was in terms meritless is patently not has it was dispute, project the Court the Further, plaintiff's surprised as to when proof claim with not Cool it. of said in light Further, with Court bond involved have adopt. would that defendets' practice motion had as to the litigation. The to be lacking Based parties' remaining arguments and/or unnecessary in merit upon ORDERED the that foregoing plaintiff's and requests to reach for in light relief have of the Court's been considered and found findings. it is hereby motion to dismiss further -5- 6 of 9 is hereby denied in its entirety; and it is [*FILED: 6] ALBANY COUNTY CLERK 12/27/2018 03:46 PM INDEX NO. A00455/2014 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 12/27/2018 ORDERED that at a Court counsel is hereby Westmere Fire granted ORDERED plaintiff serve may action ("bond ORDERED This shall returned without notice and The Court is an E-file motion Order the matter, papers. shall applicable to the not The the in the the constitute provisions for and on statute complaiñt failure and to state it is further limitations of the as to defendant, a cause and Compey of General will not of the of that Order action is Insurance Decision a copy and Order CPLR respecting filing, -6- 7 of 9 The to enter of this and and Rule entry that cause second of it is further delivery 2220. and this to the with decision original Decision Order Clerk County under or filing rule with the and Court. is directed Decision the alleging extent denied. who of the provide of the to the solely complaint; is otherwise and a copy Safeco amended s counsel transmit entry proposed ad=d=ts plaintiff Court against solely Decision granted is hereby cross-motion for counsel signing a.m. complai-t of the Insurance cross-motion plaintiff's to serve will of action Mutual camplaint set forth constitute is being of entry. plaintiff's that the to dismiss Liberty an amended claim") at 11:00 it is further and that to dismiss cause s motion as to defendants, of America; Company plaintiff that 3, 2019 with discussions pending it is further and District; first to compel motion on January motion as to the granted ORDERED hereby adandan+=' that on the reserves to be held conference ORDERED grounds Court the Decision and Order and County Order notice with Clerk. As hard copies of the of a copy of the Decision any Counsel notice is not of entry. order and relieved from this and [*FILED: 7] ALBANY COUNTY CLERK 12/27/2018 03:46 PM INDEX NO. A00455/2014 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 12/27/2018 ENTER. Dated: New Albany, December York 2018 14, Roger Papers Considered2: 1. Plaintiff's Notice of Motion Supreme Court Pleading or Strike to McDonough D. Justice Compel Discovery, April dated, 10, 2018; 2. Affirmation of Carl 3. Affirmation of Patricia 4. Affirmation Reply Defendants' 5. J. A. of Carl 6. Affirmation 7. Plaintiff's 8. Affirmation of Carl 9. Affirmation of Patricia A. Patricia Notice of Wager, J. Wager, A. Wager, 20183; June with exhibi8; 2018; with 2018, 14, anñéxed 2018; 11, 14, annexed exhibits; 2018; 17, August with 2018, 17, September dated Esq., 7, June August dated Esq., 2018, June dated Esq., dated DePalma, dated dated Dismiss, 10, June Esq., DePalma, to April dated Esq., Cross-Motion, J. dated Esq., Motion of Notice of DePalma, annexed with 2018, 25, exhibits; annexed exhibits; 10. Affirmation Reply of Carl J. DePalma, dated Esq., October 2018. 12, ____ 2 respective The The Court discovery defendants' motion. challenging to file defense did not a sur-reply. counsel's defendants' consider Sur-replies counsel Additionally, permission memoranda submitted also of law in of support their positions. 3 plaintiff's parties moving did Similarly, are not recognized not secure the counsel's by plaintiff's Court did sur-reply. -7- 8 of 9 the counsel's not consider on affirmation sur-reply CPLR or consent plaintiff's this Court. or this cot=sel's Court's sur-reply

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