Old Crompond Rd., LLC v County of Westchester

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Old Crompond Rd., LLC v County of Westchester 2018 NY Slip Op 34258(U) October 18, 2018 Supreme Court, Westchester County Docket Number: Index No. 57579/2016 Judge: Sam D. Walker 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: WESTCHESTER COUNTY CLERK 10/19/2018 03:33 PM NYSCEF DOC. NO. 62 INDEX NO. 57579/2016 RECEIVED NYSCEF: 10/19/2018 commence the statutory statutory To commence time appeals as of of right right time for for appeals (CPLR 5513[a]), 5513[a]), you are (CPLR advised serve a copy advised to serve copy of this order, order, with with notice of notice of upon all parties. parties. of entry, upon SUPREME SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK YORK COUNTY OF WESTCHESTER WESTCHESTER COUNTY PRESENT: HON. SAM D. WALKER, WALKER, J.S.C. J.S.C. PRESENT: ______________________________________________________ -------------------x ------------------------------------------------------------------x OLD CROMPOND CROMPOND ROAD, ROAD, LLC, OLD Plaintiffs Plaintiffs DECISION AND AND ORDER ORDER DECISION Index No. 57579/2016 57579/2016 Index Motion Sequence Sequence 1 & 2 Motion -against-againstCOUNTY OF WESTCHESTER, COUNTY WESTCHESTER, Defendants. Defendants. ______________________________________________________ ---------------------x ---------------------------------------------------------------------------x The following papers papers were considered on the defendant's motion to dismiss, dismiss, The following were considered defendant's motion pursuant the complaint: pursuant to CPLR CPLR 3211(a)(7) 3211(a)(7) and the plaintiff's plaintiff's cross-motion cross-motion to amend amend the complaint: Notice of Motion/Affirmation/Exhibits A-F of Motion/Affirmation/Exhibits A-F Notice Memorandum of Law in Support Support Memorandum of Law of Cross-Motion/Affidavit/Exhibits 1-6 Notice Notice of Cross-Motion/AffidavitlExhibits Memorandum of Law in Opposition Opposition Memorandum Affirmation Opposition to Cross-Motion/Exhibits Cross-Motion/Exhibits G-J Affirmation in Opposition Memorandum of Law Law in Opposition Opposition to Cross-Motion Cross-Motion Memorandum Reply Affirmation Reply Affirmation 1-8 9 10-17 10-17 18 19-23 19-23 24 25 Upon the foregoing papers, it is ordered ordered that that the motion motion is granted. granted. Upon foregoing papers, The plaintiff, Old Crompond Crompond Road, LLC ("OCR") ("OCR") filed this action action on May 27, The plaintiff, filed this 2016, alleging alleging two two causes causes of action action against against the defendant, defendant, County County of of Westchester Westchester (the 2016, "County"). · "County"). The first first cause cause of action alleges about 2007, OCR was of action alleges that that in or about 2007, OCR was designated designated and The approved to develop construct a twenty-six twenty-six unit unit Affordable Furthering approved develop and construct Affordable Affirmatively Affirmatively Furthering Fair Housing Housing ("AFFH") ("AFFH") project project on Old Crompond Crompond Road, Yorktown Heights, New New York. Fair Yorktown Heights, York. [* 1] 1 of 7 FILED: WESTCHESTER COUNTY CLERK 10/19/2018 03:33 PM NYSCEF DOC. NO. 62 INDEX NO. 57579/2016 RECEIVED NYSCEF: 10/19/2018 The project was part of the County's County's plan to develop 750 units to satisfy its requirements per a stipulation stipulation of settlement settlement in a federal law suit and that the County requirements infrastructure required by the agreed to perform and pay for certain site work and infrastructure contractors market the project, find and vet qualified purchasers purchasers project; to have county contractors for the units, and to otherwise aid in the financing, sale and closing of the units. OCR constructed. alleges that the County agreed that only three bedroom units were to be constructed. OCR alleges that, on April 17, fulfillment of its construction 17, 2013, in fulfillment construction obligation, the County contracted with Bradhurst Construction Construction ("Bradhurst") to perform the site completion date of six months and that OCR was a third-party third-party work, with a scheduled scheduled completion beneficiary beneficiary of such contract. OCR asserts that the work took substantially substantially longer longer due to inexcusable delays by Bradhurst and was not completed until the fall of 2014. OCR inexcusable actions to insure alleges that despite numerous requests for the County to take actions Bradhurst complied with the contract, the County failed to take action and such failure two-year delay and consequential consequential damages damages in excess of $250,000.00. $250,000.00. resulted in a two-year County breached the contract OCR alleges in the second cause of action that the County affordable housing units built in Yorktown related to the marketing and financing of affordable representations of the County and Heights. OCR alleges that, despite the promises and representations availability of qualified qualified purchasers purchasers and its Housing Action Counsel "(HAC") as to the availability available financing for closings commencing commencing December December 2013, such purchasers purchasers could qualify for financing and/or could not meet financing and/or not easily be found, found. or if found could not qualify HUD requirements. Therefore, Therefore, the project still had three units unclosed as of August August inordinate and greater greater 2015 and the length of time between contract and closing was inordinate than provided or estimated. 2 [* 2] 2 of 7 FILED: WESTCHESTER COUNTY CLERK 10/19/2018 03:33INDEX PM NYSCEF DOC. NO. 62 NO. 57579/2016 RECEIVED NYSCEF: 10/19/2018 ns as to County's misrepresentatio misrepresentations OCR alleges that the delay was due to the County's incompetent administration administration of the process, the inadvisability inadvisability of all available purchasers, incompetent of the units having three bedrooms or a combination combination thereof. OCR contends that as a ns, it was forced to incur result of the County's breach of contract and misrepresentatio misrepresentations, excess carrying costs and loss of use of the proceeds of sales for up to two years and $350,000.00. reduced sales prices in excess of $350,000.00. against it due to The County, now files this motion for dismissal complaint against dismissal of the complaint failure to state a claim, arguing that the plaintiff plaintiff fails to identify the breached provision of plaintiff is not a third-party third-party beneficiary beneficiary to the Bradhurst any alleged contract; that plaintiff contract; that even if the plaintiff plaintiff was a third-party third-party beneficiary beneficiary to the Bradhurst Bradhurst contract, contract between enforceable contract the County is not the proper defendant; that there is no enforceable the parties for marketing and/or and/or financing the finished units; and any claims based upon representations outside the four corners of the sale agreement, are barred by the representations merger clause. pursuant to CPLR In opposition, OCR filed a cross-motion seeking an order pursuant 3025[c] to serve and file an amended amended complaint complaint to conform the pleadings pleadings to the proof. OCR asserts that the complaint complaint Sets causes of action. As set forth in the sets forth valid causes affidavit of Neil Deluca, DeLuca, a member member of OCR contends contends that the County County chose to fulfil affidavit. its obligation to provide certain infrastructure infrastructure improvements improvements to and for the proposed development, through Bradhurst, the County provided a critical path time line for development, construction of December 2013, and OCR scheduled scheduled its construction completion of the work by early December affordable units to coincide with that completion date, so as to be able to twenty six affordable the twenty commence sales of the units by January January 2014. OCR argues argues that its claim is that the commence 3 [* 3] 3 of 7 FILED: WESTCHESTER COUNTY CLERK 10/19/2018 03:33 PM INDEX NYSCEF DOC. NO. 62 NO. 57579/2016 RECEIVED NYSCEF: 10/19/2018 County County failed in its obligation to complete complete the constructio construction of the n on time and part of the problem problem was its failure to enforce its contract with Bradhurst Bradhurst or to have effective enforceme nt provisions in the contract. OCR asserts that, to the extent that the enforcement the complaint is unclear on this point, it has submitted a proposed amended complaint, which clarifies the position. OCR OCR also states that it was under the impression that the marketing consultant designated by the County to market and sell the twenty six units, was an agency of the designated the County, County, but later discovere discoveredd in discovery that it is an independe independent Therefore,, the nt entity. Therefore the allegation allegationss as to the failure to adequatel adequatelyy market and process applicants applicants for closing closing alleged alleged an incorrect connection between HAC and the County. However, OCR contends that the County is still liable for improper and delayed marketing and processing of of applicants applicants because it had an obligation to certify that the designate designatedd Marketing Consultan ed and an obligation to monitor the Marketing Consultantt was qualified and experienc experienced Plan Plan of the consultant consultant.. OCR argues that the County did not comply with its obligation obligationss under the County Marketing Plan, as contained in a tripartite sales agreemen agreementt among among OCR, the County and a division of HAG. HAC. OCR OCR further asserts that the proposed amended complaint complaint clarifies that the first cause of action alleges the County's non-perfo non-performance agreementt and not not the the nonnonrmance of its agreemen performan ce of the Bradhurst contract and specifies a correct theory of liability with performance with regard regard to HAG. HAC. OCR alleges that the amendme amendment nt is timely and proper and contends that that there is no prejudice to the County, since the facts which support the amended pleading pleading are already known to the defendant defendant and the note of issue has not been filed. filed. 4 [* 4] 4 of 7 FILED: WESTCHESTER COUNTY CLERK 10/19/2018 03:33 PM NYSCEF DOC. NO. 62 INDEX NO. 57579/2016 RECEIVED NYSCEF: 10/19/2018 Discussion Discussion Practice Law Law and Rules Rules provides, provides, in relevant relevant part part that, Rule 3211 of the Civil Practice "[a) party party may move move for for judgment more causes causes of action asserted asserted "[a] judgment dismissing dismissing one or more of action against [it) on the ground ground that: against that: pleading fails cause of action action ... ..."" (7) the pleading fails to state state a cause [a) [71). [7]). (N.Y. Civ. Prac. L. & R. 3211 [aJ Under CPLR CPLR 3211 (a)(7), (a)(7), initially initially "[t]he "[t)he sole criterion is whether whether the pleading pleading Under sole criterion states a cause cause of corners factual factual allegations allegations are discerned discerned of action, action, and if from from its four four corners states which together manifest manifest any any cause cause of of action action cognizable cognizable at law law .... ...."" which taken taken together Guggenheimer v. v. Ginzburg, Ginzburg, 43 NY2d NY2d 268, 275 [1977)). [1977]). Guggenheimer (see motion to dismiss dismiss for On a motion failure cause of of action, action, the court court must must view view the challenged pleading pleading in the light light the challenged failure to state state a cause most favorable favorable to the the non-moving non-moving party, and determine determine whether whether the facts most facts as alleged alleged fit within legal theory Brevtman v Olinvil/e Olin ville Realty, Realty, LLC, 54 AD3d AD3d 703 within any any cognizable cognizable legal theory (see Brevtman Dept 2008); also EBC EBC 1, 1, Inc. v Goldman, Goldman, Sachs Sachs & Co., 5 NY3d NY3d 11, [2005]; [2005); [2d Dept 2008]; see also Leon v Martinez, Martinez, 84 NY2d NY2d 83 [1994]). [1994]). Leon Thus, motion to dismiss dismiss pursuant pursuant to CPLR CPLR 3211 (a) (7) will not succeed succeed if, Thus, a motion taking all facts facts alleged alleged as true affording them every possible possible inference inference favorable taking true and affording them every favorable to nonmoving party, the complaint complaint states states in some recognizable form form any any cause cause of of some recognizable the nonmoving action known to law (see Leon Leon v Martinez, Martinez, supra; Fisher v DiPietro. DiPietro. 54 AD3d action known supra; Fisher AD3d 892 [2d Dept 2008]; 2008); Shava Shava B. Pac., LLC LLC v Wilson. Elser, Moskowitz, Moskowitz, Edelman Edelman & Dicker, LLP, 38 Dept AD3d 34, [2d Dept 2006)). "Indeed, AD3d Dept 2006]). "Indeed, a motion motion to dismiss dismiss pursuant pursuant to CPLR CPLR 3211 (a)(7) must be denied denied 'unless been shown shown that material fact fact as claimed claimed by the pleader must 'unless it has been that a material the pleader to be one unless it can be said that no significant exists one is not a fact fact at all and unless said that significant dispute dispute exists [* 5] 5 of 7 regarding it"'. it'''. (Bokhour (Bokhour v GT/ GTI Retail Retail Holdings, Holdings, Inc., 94 AD3d 683 [2d Dept Dept 2012]). AD3d 682, 683 2012)). regarding FILED: WESTCHESTER COUNTY CLERK 10/19/2018 03:33 PM NYSCEF DOC. NO. 62 INDEX NO. 57579/2016 RECEIVED NYSCEF: 10/19/2018 cross-motion seeking complaint pursuant pursuant seeking to amend the complaint Here, OCR has filed a cross-motion submitted an amended conform the pleading to the proof proof and has submitted to CPLR 3025[c] to conform complaint in that regard. complaint conform a pleading to the proof proof pursuant pursuant to CPLR 3025[c1 3025[c] should be "'Leave to conform absent prejudice prejudice or surprise surprise resulting from tlie the delay'" (Worthen-Caldwell (Worthen-Caldwell freely granted absent 2010][citations v Special Touch Home Care Services, Inc., Inc., 78 AD3d 822 [2d Dept 2010J[citations "should whether such a motion should be granted, the court "should determining whether omitted]). In determining consider how long the party seeking the amendment amendment was aware of the facts upon which consider the motion was predicated, predicated, whether reasonable excuse for the delay delay was offered, and whether a reasonable whether prejudice resulted therefrom" (ld. @ 823). 'Additionally, 'Additionally, "[t]he legal sufficiency sufficiency therefrom" (Id. whether prejudice examined unless the insufficiency insufficiency or lack of merit is or merits of a pleading will not be examined AD3d doubt'" (Lucido v Mancuso, 49 AD 3d 220, 227 [2d Dept 2008]). clear and free from doubt"' Therefore, a plaintiff plaintiff seeking leave to amend the complaint complaint is not required to Therefore, determine court need only determine establish the merit of the proposed amendment (ld.). 'The 'The court amendment (/d.). whether insufficient" to state a cause of action or "palpably insufficient" amendment is "palpably whether the proposed amendment opposing party wishes to test defense, patently devoid of merit"' merit'" (Id. (ld. @ 245). If the opposing defense, or is patently summary the merits of the proposed cause of action, that party may later move for summary judgment (ld.). judgment (Id.). Here, there is no discernable discernable prejudice to the County in an amendment amendment of the complaint as proposed and the County did not claim any prejudice. Further, the complaint proposed amended palpably insufficient insufficient complaint to be palpably amended complaint Court does not find the proposed to state a cause of action or patently patently devoid of merit. Taking all facts alleged as true and inference favorable nonmoving party, the amended amended favorable to the nonmoving affording them every possible inference 6 [* 6] 6 of 7 FILED: WESTCHESTER COUNTY CLERK 10/19/2018 03:33 PM NYSCEF DOC. NO. 62 INDEX NO. 57579/2016 RECEIVED NYSCEF: 10/19/2018 complaint some recognizable form a cause not complaint states states in some recognizable form cause of action action known known to law. It has not been shown that a material material fact claimed by the pleader to be one one is not not a fact been shown that fact as claimed the pleader fact at all and no significant The County already filed a motion motion for for significant dispute dispute exists exists regarding regarding it. The County has already fully submitted. submitted. Therefore, Therefore, the summary judgment, judgment, which when it is fully summary which the Court Court will decide decide when Court dismiss based based on Court grants grants OCR's OCR's cross-motion cross-motion and denies denies the County's County's motion motion to dismiss amended complaint. complaint. the amended Accordingly, based on the Accordingly, based the foregoing, foregoing, it is ORDERED that that the defendant's defendant's motion motion to dismiss dismiss is denied, denied, and it is further ORDERED further ORDERED that plaintiff's motion motion for leave to serve serve and file an amended amended ORDERED that the plaintiff's for leave complaint complaint is granted. granted. The plaintiff shall shall serve serve and file the amended amended verified The plaintiff verified complaint complaint within within twenty twenty days the entry this Decision days of of the entry of of this Decision and Order. Order. The foregoing foregoing constitutes constitutes the Opinion, Opinion, Decision Decision and Order of the The Order of the Court. Court. Dated: White White Plains, Plains, New New York Dated: York October 18, 2018 2018 October JL . [* 7] 7 of 7. SAM D. WALKER, WALKER, J.S.C. J.S.C.

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