Airflex Indus., Inc. v Parco Constr. Corp.

Annotate this Case

Download PDF

Airflex Indus., Inc. v Parco Constr. Corp. 2019 NY Slip Op 33164(U) October 21, 2019 Supreme Court, New York County Docket Number: 650947/2019 Judge: O. Peter Sherwood 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] NEW YORK COUNTY CLERK 10/23/2019 03:18 PM INDEX NO. 650947/2019 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 10/23/2019 SUPREME COURT OF' THE STATE OF NEW YfJRK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 49 -----------·--------------------·----------X AIRFLEX INDUSTRIAL, INC., DECISION AND ORDER index No.: <150947/20) 9 Plaintiff, -againstPARCO CONSTRUCTION CORP., THE Rl~LA TED COl\lPANIES, INC., RELATED COMPANIES and its subsidiaries and affiliatt•s D!H/A RELATED and/or RELATED COMPANIES:. THE RELATED COMPANIES, L.P., HUDSON YARDS CONSTRUCTION LLC, EMY RETAIL PODIUM LLC and ERY DEVELOPER LLC, Motion Sequence No.: 00 I Defendants. --------------------------------------·---X O. PETER SHERWOOD, .J.: Under motion sequence OCH, defendants The Related Companies. Inc, (''Rdated"') and its susbsidiaries. Hudson Yards Construction LLC ('"!Judson Yards"). ERY Developer LLC ("'Developer''), and ERY Retail Podium LLC ("Retail Podium'') (collectively "defendants" or "Owner'') move ro dismiss the amended verified complaint ("Complaint") pursuant. to CPLR l l(a)(l) and \a)(7) based on documentary evidence and fr>r failure I. 10 state a daim. BACKGROUND A.s this is a motion to dismiss, the following facts arc taken from the Complaint and are accepted as true, PlaintiJY Airflcx Industrial. Inc. C'Airflex") is a family-o\vned corporation engaged in the fahrication and instal Inti on of specialty products fi)r high-end construction projects (Complaint f'.~f l-2 [Doc. No. l 4 ]). Pabco Construction Corp. ("'Pabco") is a New York corporation engaged in furnishing and installing exterior wali systems, interior drywall, and acoustical ceilings for high rise residential buildings and commercial spaces (id •;4), Pursuant to trade contract between Hudson Yards and Pabco, entered into on October 7, 2015 (the ..Trade Contract"). Hudson Yards served as the executive construction manger of the subject pn~ject (id). Related is the primary owner and developer involved in the Hudson Yards neighborhood redevelopment which has been touted as !he largest private real estate development in United States history (id ~I J:2), Upon 1 2 of 10 [*FILED: 2] NEW YORK COUNTY CLERK 10/23/2019 03:18 PM NYSCEF DOC. NO. 48 INDEX NO. 650947/2019 RECEIVED NYSCEF: 10/23/2019 infonnation and belie( Related is the owner ofreal properly within Hudson Yards. including 550 West 34Lh Street and 20 Hudson Yards {the "Prope11y") (id ~ll3). This suit arises from derendants' failures to pay f<H· \Vork perli.mncd by /\irflcx on cl construction project reforred to as "'Iludson Yards - Retail Podium & Overbuild'' (hcreinalh:r, rhe "Project"") (id •' l 4). Related employees \Vere directly involved in 1he Project and sen:rnl individuals with Related email addresses corresponded with Airflex and Pabco throughout the project (id). Related \Vholly owns or has complete control over nther tie fondants (id "15 ). Ov,:ncr. entered into a contract with Pabco \Vherein Lhe latter agreed to provide constrrn:tion \Vork and :,ervices tlJr certain of Owner's projects. including the Proper1y (id • 129). Pabco and t\irllcx subsequently discussed Airfkx's ability to v,ork as a suhcontractor on the Project with Pahco providing Airtkx with plans and specifications of Airflex's proposed work (id il30). Airlkx relied on Pahco '<-; plans and specification in calculating its bid for the Pn~icct (id 41 31 ). On or about l\la~· ! 5. 2015. Airflcx made a proposal to perform services on the Project and entered into two written subcontraclur purchasl.' orders with Pahco dated June 22, 2015 ("2015 Agreements .. ) (id l!J•·J::: 33 ). Pursuant to the 2015 Agreements·, Air flex was to perform work relating to fabri ...·ation and installation of 'Nall and other panels, and an aluminum ladder support system at a price or$ J 0 million. (id 4'34). On or around December 2015, Pabco pulled this work from 1\irllex without warning as the Owner expressed dissatisfaction with the initial architt:cl ·s designs and decided to put the required \Vork out fiJr ne\V hids despite the 2015 Agreements with Airflcx (id ~[J 5). Airtlcx made a nc\\ proposal for the work but was rejected (id '136). Owner. Pahco. and Airtkx did not discuss Airtlex 's proposal (id). On or around March L 20 l 6. Paben closed out the 1015 Agreements through a ··final PaymcnC to Airflcx for $173.06 7.31 for Airfkx ·s services in eonncction with the 2015 Agreements (id ~;37). The final amount paid to Airfkx for services under the 2015 Agreements was $:129,279.4 l (id). A irflcx and Pabco then entered into a new conln1e: for the Project (id ~[38}. On or about February 26. 2016. Airfkx entered into a new Subcontractor Pun:hase Order ( ··cumracC or .. Purchase Order") with Pabco for services to be performed on Lhe Project. whereby Airflex \vould furnish or furnish and install. (i) specified louvers. (ii) panels. {iii) a stainless steel canopy, and <iv) a rain-screen support system for the Project ('"Scope of Work'') (id ~J9). In exchange, Airflex was to he paid $3.552.836.00 (id ~[40). The Subcontractor Sum for the Conlwct (the "Contract Price .. ) was never reduced by mutual agreement or othcnvisc (id. ~141 ). Pahcu did 2 3 of 10 [*FILED: 3] NEW YORK COUNTY CLERK 10/23/2019 03:18 PM NYSCEF DOC. NO. 48 INDEX NO. 650947/2019 RECEIVED NYSCEF: 10/23/2019 not make a mistake as to the Contract Price when entering into this Agreement and Pabco wa'.' nor entitled to any offset or reduction as a result of the Final Payment to Airtlex fiJr previous services rcndacd und1:r the 20 l 5 Agrccm1:nts (id ~•'4243 ). During the term of the Contract. defendants directed Airtkx tn pcrfixm additional substantive vvork for \vfod1 Airlkx was to be paid pursuant 10 the Contact (the ··Extra Work'') (id 4144). Throughout the Project. defendants directed Air!lcx to expedite completion of its work, increase its workfixcc, and incur <>V-:rtimc expenses and custs (id ~:.+5). Further. throughout the Pn~ject. /\irtlcx.'s Scope of \Vork was changed due to delays. obstacles to perfrirmarn.:e, and non-confirming conditions caused by parties over 'vhom de!endams had controL and Air!lex rmuincly corrected other subcontracts' non-confonning \\Ork (id 4'j•:464 7 L A irtlex had direct dealings with both Pabco and Owner over payment disputes and alleges Lhat it is o\vcd millions of dollars fl.Jr Extra Work performed at (hvncr's request Ud •'4"48-49). Because of Pabco·s inexperience, mismanagement and failure to provide tirndy fidd dirnensi()ns. the Project schedule. and Airflex's anticipated fabrieathm and installation. was significanr!y delayed (id ~~-50-53). Due to these delays, Air!lex was directed to expedite work. incurring ove11inH; costs and ex1x·nses (id. ~[52). Despite AirFiex's offer to send a Held supcrvlsor h) help Pabco · s field rncasurements. Pabeo rejected the help. thereby causing further ddays (id ~.54 ). Failures tn provide ::,tructural materials and plans sufficient to support AirJkx 's work led to further delays and caused Airtkx to take on Extra Work outside of the agreed upon scope of work such as deveh1ping, furnishing, and installing "sub-steel" structmcs tn support 1'\irflcx·s steel canopy and undertaking a m•~ior louver redesign to satislY last minute changes (id •:ifti0-117}. Pabco and Owner han:~ failed to pay Air!lex frJr the Extra Work or the overtime expenses incurred (Id ~r~75 78. 99 I 04. I 08-1 l 7). As against <hvncr. plaintiff has alleged tvvo t.:mtses of action: (i) unjust enrichment. and iii) quantum meruit (id ~[''128-141). IL LEGAL STANDARD To succeed on a motion to dismiss pursuant to CPLR § 3211 (a) (I). the documentary evidence submitted that frmns the basis of a defense must resolve all factual issues and delinithc-ly dispose of the plainliff s daims (see 5 I I TV. 232"" Owners Corp. 1' Jennifi.:r Realty Co,, 98 NY2d 144, 152 [2002]: Rlondcr & Co .. Inc, v Cilihank NA .. 28 AD3d 180, i82 fl' 1 Dept 20061). A motion to dismiss pursuant to CPLR * 32 l I (a) (I) '"may be appropriately granted only where ihc documemary evidence lltkrly refutes plaintilrs factual allegations. conclusively establishing a 3 4 of 10 [*FILED: 4] NEW YORK COUNTY CLERK 10/23/2019 03:18 PM NYSCEF DOC. NO. 48 INDEX NO. 650947/2019 RECEIVED NYSCEF: 10/23/2019 defrnsc as a matter of law" (Mc( '11/lv v. Jersey Partners, Inc. 60 AD3d 562. 562 / I' 1 I kpt. 2009J ). The facts as alleged in the complaint are regarded as true, and the plaintiff is afforded the benefit of C\'Cry favorable inference (see Leon l' ;ifartine::. 84 NY2d 83, 87-88 r19941). Allcg~1tio11s consisting of bare legal conclusions as \Veil as factual claims flatly contradicted by d(lcurncntary e\'idence are not entitled to any such consideration (see e.g. Nisari 1· Rmnfo!m. 85 AP3d 987. 98CJ !2nd Dept 201 l j). CPLR ~ 32 J 1 ( aJ ( l) does not explicitly define "documentary evidence." As used in this statuhwy provision, '"d<)cumentary evidence' is a ·fozzy tcnn·. and \Vhat is documentary c\idence fix one purpose. might no! be documentary evidence for another·· (Fontane/fa AD3d 78. 8-l !2nd Dept 20!0j). 1· .loh11 Doe /. 73 '"[T}o be considered 'documentary.' evidence must he unarnhiguous anJ of undisputed authenticity"' (id at 86. citing Siegel. Practice Commentaries. McKinney's Cons. Lavvs of N. Y.. Book 7B, CPI .R 321 l: ! 0. at 2 I-22 ). Typically that means 'judicial records. as vvcll as documents reflecting out-of-court transactions such as mortgages, deeds. contracts. and ;.my other papers. the contents of which an; ·essentially undeniable.... (id al 84-85). On a motion to dismiss a plaintiffs claim pursuant to CPLR § 3211 (a) {7) for failure to state a cause of action, the court is not called upon to determine the truth of the allegalions (see, Campaign jor Fiscal !:'quiry v State. 86 NY2d 307. 317 [1995]: :!.19 Bromhray Curv 1· Alc.rand<.'r ·s. Inc., 4(1 NY2d 506. 509119791). Rather. the court is required l<i "aff(ml the pleadings a liberal construction, take the allegations of the complaint as true and provide plaintiff the benetit of every possible inference [citation omitted]. Whether a plaintiff can ultimatdy establish its allegations is not part of Lhc calculus in detem1ining a motion to dismiss'' (f:BC Iv Goldman, Sachs & Co., 5 NYJd l L 19 [2005]). The court's role is limited to detcnnining whether the pleading states a cause of action. not whether there is cvidemiary support to establish a meritorious cause of action (sec Uu,ggcnhcimcr v <an::hurg 43 NY2d 268, 275 I J 977J: Sokol v /,eader. 74 AD3d 1 l 80 I2d 1)1;.•pt 20101). 111. ARGVMENTS A. Defendants' Memorandum of Law in Support of Motion to Dismiss I. Plaintiff's Quasi-Contract Claims Should Fail as a Matter of Law Citirn1 casclaw, defendants arnue thal the "existence of a valid and enforceable \vritten .. ~ ~ contract governing a paiiicular subject matter ordinarily precludes recovery in quasi-contract fi.lr 4 5 of 10 [*FILED: 5] NEW YORK COUNTY CLERK 10/23/2019 03:18 PM NYSCEF DOC. NO. 48 INDEX NO. 650947/2019 RECEIVED NYSCEF: 10/23/2019 events arising out of the same subject matter .. (Clark-Fit:::patrick. Inc. r Long Js!und Railroad ( ·o .. 70 N'r'2d 382. 38811987] [conlrnctor·s quasi-contract claim for damages against owner dismissed as the court held it is impermissible "to seek damages in an action sounding in quasi contract where the suing party has fi.t!iy performed on a valid \\Tittcn agreement, the cxis1c111.:c of which is mitlisputcd. ~md the scope of which clearly covers the Jispmc bdween the partics"JJ. This rule applies to subcontractors "whose work on a project is governed hy a written suhcontrw.:(' (Kahock Dae1pri.H s. !JJc. v 'l'imc. Inc.. '27 AD.id 278 [!st Dept ::'.006]). If the p!aintilrs rights and 1 ohligations arc gon~rncd by a valid and cnfon:cabk contract it may not seek 10 expand or modif~ its rights by resort to quasi-comrncrual claims (Metro Elec. Mtg. Co. r I Jcrhert Constr. Co .. t .2 AD:2d 758. 759 12d Di.;~pt l 99:2j l. In Pa/mu Really Assoc.,·. Ltd v Bhi,v; 01.:cansidt! LLC. (59 MiscJd !20(! [:\][Sup. Ct. NY Cty. 20181) a sub-subcontractor entered into a sub-subcontract with another subcontractor in connection with a construction project and later sued the suhcontractur. prime contract and projc..:t owner in a payment dispute (id m 2--3 ). The owner successfully moved to dismiss the complaint arguing that the ex istencc of a contract between Lhc sub-subcontractor and the subcontractor barred an: quantum mcruit liability against the owner (id. at 3). rn its holding, the court stated that the "existence of an express agreement ... governing a particular subjc..::t matter precludes recovery in quasi-contract for events arising out of the same sul:iect 1rn.1ttt~r" (id). Here. defendants argue Airtlex entered a subcontract with Pabco which go\wns Airfle:-;·s rights anJ ohligations with respect to the Project including its claims for additional compcnsntion (Defendants IV1emornndum of Law in Support at 9 (Doc. No. 3T!). Defendants contend that, because Airlkx has admitted the subcontract constitutes a valid um! enforceable agreement and asscm:d breach of contract claims against Palx:o thereunder, its causes of action against th1.' ckfendants arc duplicati\'c of Airlkx 's contract-based claims and must be dismissed with prcjmfo.:c (id: Clark-Fit::patrick, Inc, 70 NY2d at 388: Palma Rt!alty Assocs. Lrd, 59 Misc3d 1:206(Al at *1-3). Finally. de!Cndanls argue the subcontracl incorporates by refence a provision from the Trade Contract \vhich expressly forhids Airflex from bringing this laivsui1 against Related. ECJ\t De\ eloper. and (hvncr (see Wallace Aff, Ex. 4, § 14.2(c): Ex. 5, *2.1.2L T'he Subcontmcl states that neither "Owner. the Component Ov,·ners, Lender. Architect, General Contractor or ECl'vt shall have any obligation to pay l)r to see that payment of any monies is made to any Subcontractor. .. " 5 6 of 10 [*FILED: 6] NEW YORK COUNTY CLERK 10/23/2019 03:18 PM NYSCEF DOC. NO. 48 INDEX NO. 650947/2019 RECEIVED NYSCEF: 10/23/2019 (\:Va!lace AfL Ex. 4 ~ !4.1(c): Ex. 5. ~ 2.1.2). Consequently. Airflex may not proceed with its claims against the motion defendants. 2. Defendants Do Not Own the Sub.feet Pro,ject or Premise"! Dcfondants also argue Airflc:-<'s quasi-contract claims hinge on allegating defendants have bencfittcd from Aidlex·s work on the Project (Defendants Memorandum of Law in Support nt 9). /\ir!kx cannot recover under this theory because ··ncitlll'.r Related. ECtvt, nor Dcvdoper owned the Project or the Premises'' and. consequently, could not have accepted any benefits or. been unjustly enriched at Airtlex 's expense (id). Defendants also argue that. ·'as a matter of puhlic record." Related. FCM. and Developer are not the Pn~iect's "owner'' (Wallace Aff.. Exs. 2. 3). Consequently. plaintiffs third and fom1h causes of action should he dismissed against defendants Related. FCM. and Developer (Dctcndants' Memorandum of La\v in Support, at 9~· !0J. B. Plaintiff's Memorandum of Law in Opposition I. The Qua~i-Contract CJaims Are Sufficiently Stat<-,d Without first addressing whether its quasi-contract claims are barred, plaintiff argues it has alleged facts showing Related was wrongly enriched at plaintiff's expense and that it is against equity and good conscience for Related to retain those benefits (Plaintiffs Memorandum in Opposition . at 4 [Doc. No. 45J). Airflex has stated a valid quantum meruit daim by alleging facts sho\ving it pcrfrirmed the services in good faith. Related aecepted those scrviLTS, and there was an CXfk'Ctation plaintiff would he compensated for the value of the services (id). The complaint specifically pk·adcd Rclstcd received millions of dollars in services beyond the scope of the Contract \vith Pahcl) (Complaint 'liil9, 21, 27, 49, 74, 76. 99, 102, l08, 112, 131, 137}. Plaintiff argues that de fondant Related's motion does not dispute that it retained the benefits of the scn·ices and that /\irl1ex performed them in good thith (Plaintiffs Memorandum in Opposition, at 4-5). Further . Related directly ordered and occasionally threatened Airtlex to perform the Extra Work. ·while simultaneously promising to pay for the Extra Work demanded Ud at 5). Pbintiff performed the r:xtra \Vork with the expectation thal it would he compensated (Complaint ir~:N--25. 44, 134 . 1381. Given these allegations. the claims can proceed against Related despite a lack ofcontractua! privity (Plaintiffs Memorandum in Opposition. at 5: citing Georgia Malone & Co. fm:. r Rieder. 19 NYJd 51 l, 516-18 f2012]). Plaintiff further maintains that "when a property Cl\vner knowingly receives and accepts the benefits of extra work in the perfonnance of a contract orally directed by the owner.... the owner 6 7 of 10 [*FILED: 7] NEW YORK COUNTY CLERK 10/23/2019 03:18 PM NYSCEF DOC. NO. 48 INDEX NO. 650947/2019 RECEIVED NYSCEF: 10/23/2019 is equitah!y bound to pay the reasonable value of the benefits, notwithstanding the provision of the contr~H:t that any extra work must be supported by a written authorization signed by the owner'· (citing 22A NY Jr 2d ( '0111mc1s 367). Such is the case- here as Related orally directed /\irlkx throughout the Prn.1cct lo ( i) fahrkatc, design and install a brnnd new louv.:r system. (ii} expedite its work. (iii) add work fon:l', {iv) not slow down or stop \V1)1'king in anticipation or change order approval. and (v) expt'ct payments on ail m1Htanding orders for costs. cquipmt'nt. and extra work pcrforrnt'd (Complaint ,;•: l 5. 18, 22-23, 44--48. 52-59, 63-64, 68· 73. 84 -88. 90-96. l 0 L !07· l 08. I ! l, l 29-J J l, l 36 L Plaintiff argues ii relied on Related instructions and \\·as caused to act at Rdated's whim (Plainliff's Memornndum in Opposition, al 6: citing Philliju International fm·esrmen!s /J( · 1· Pek1or. 117 AD3d l. 4 [I st Dept 2014]) 2. The Track Contract Does Not Preclude Qmtsi~Contract Claims :\~ainst Related Plaintiff next argues its agreement with Pabco does not preclude its claims against Related (Plain ti ff s Memorandum in Opposition. at 6). Plaintiff concedes it does not han' cnntracttw! privity \•;ith Related but asserts that its quasi-contract claims do not require such privity u;corgiu Malone, 19 NY3d al 517). Plaintiff also arguc:s Rdated's rdiancc on Palma Rt'al(r Aswc. Ll<f ts misplaced as there. unlike here. the complaint acknowkdged !he agreement bcl\\Ccn the suhcontrnctor and general contractor '·contained specific terms and condition:; obligating it to provide equipment and machinery" to the general contractor and, in !urn, that the general contractor has a specific obligation lo pay (59 Misc3d 1206[AI ). h1rther. in Palma, there were no specific. we!l-pkd allegations that the owner had: (i) induced the subcontractor to perfrmn \\Ork beyond the contrnci's scope. (ii) promised to pay for such work, (iii} had work performed at its demand, and (iv) had frequent and direct dealings \Vi th the snbcontraclor (Plaintiffs l'v1cmornndum in Opposition, at 7). Herc. because of the repeated dealings bet\vcen Airtkx and Rdatcd, the foct that the :\irflcx-Rdatcd relationship was not remote, and the Trade Cunlract's scope. Palma supports denial of Rdated ·s motion. The cases cited in suppon of the claim that the Trad'-' Contract precludes Airflcx from suing Related are off-base as each concerns contract claims brought against an entity with which the plaintiff lacked privity (Compare E. 5iiates Elec. Contractors. Inc v William L Cro11 Constr. Co .. 153 AD2d 512, 523 ! l st Dept I 989] and Braun Fquip. Co .. Inc. r Borelli Associates et al.. 220 AD2d 312 [I st Dept l 995 J wifh Georgia Molone & ('o. Inc .. l 9 NY3d 511 and Mandarin Trading v H1i/dcns1ei11, I 6 NY3d 173 120 l l J). 7 8 of 10 [*FILED: 8] NEW YORK COUNTY CLERK 10/23/2019 03:18 PM NYSCEF DOC. NO. 48 INDEX NO. 650947/2019 RECEIVED NYSCEF: 10/23/2019 3. The Claims Against All Related Defendants Should Proceed Plaintiff argues defendants· claim that they are not the technical "owner" of the Project should be rejected (Plaintiff's Memorandum in Opposition, at 8 9). The Hudson Yards DC\ dopmcnl Project is marketed. branded. sokL and hdd out as a Rclat<.'d Companies development and. as the complaint points out, each of the Related ddemiants opcrak from the same principal addn:ss. hav,'. ov1.·rlapping management and executives. the Related Companies website markets l ludson Yard Development Project, the Related Company's employees worked on the Pn:jcet and communicated \vi th Airl1cx. and defendants ER Y Developer. l ,I ,C and ER Y Retail Podium. LLC arc \Vholly owned subsidiaries of the Related Companies l Complaint •:~9. I l. 14. 15. l l-L 25 ). Further, the Pabco-Airllex conlracl refers to the Related Companies as .. Owner" (rd. Kornfeld Affirmation, Ex . .f). Plaintiff concludes by arguing that. becausc Related Companies wholly 0\\'11 and exercise foll control over all defendants. dismissing any uf the ddendants nl this stage would be improper and should he denied {Plaintiffs Memorandum in Opposition. at 9: citing Bd o(Managers ot'Arches at Cobbf11 Jliff Condo v Hicks & Warn:n. I.LC. 18 rvtisc3d 1103(/\) [Sup. Ct. Kings Cty. 2007]). IV. UISCl'SSION Where. as here. there is a valid and enforceable written contract that governs the partks' relations, recovery in qunsi-contracl (either unjust enrichment or quantum meruil) t(,r C\'ents arising oul of the same subject matter ordinarily is precluded ( ( '/ark-Fi1::11atrick Inc .. 70 NY 2d at 388 ). The subject matter of plaintiffs claim is governed by the Trade Contract. rhat contrai.:t is incorporated by reference into the Purchase Order het\vcen Pahco and Airflcx (Attached as Exhibit 4 and 5. respectively. of Wallace Aff. [Doc. No. J7]). Accordingly, the claims in quasi-contract must be dismissed. '.\.forcovcr. the Trade Contract bars these claims, Section 14.1(i) of the Tradt~ Contrncl states that nothing therein creates a relationship of contract or agency between any Owner. Component Owner. ECM. General Contractor, or Suhcontractor. It also provides that the Owner, Components Owners. ECM, and General Contractor have no obligation to supervise or deal with Subcontractors or their employees (Wallace AfC Ex. 4 § 14.11 i j). Section 14.2( c) states the Owner. Component Owners. Lender. Architect. General Contractor. or ECM have no obligations to pay or see that payment is made to subcontractors ··except as may otlwnvise be requin:d by applicahle law'' (Wallace AJI Ex. 4 ~ l4.2[c] [emphasis addedj). 1\irl1ex has citeJ no law requiring 8 9 of 10 [*FILED: 9] NEW YORK COUNTY CLERK 10/23/2019 03:18 PM NYSCEF DOC. NO. 48 INDEX NO. 650947/2019 RECEIVED NYSCEF: 10/23/2019 defendants to :mange their affairs othcnvise. Consequently, a dismissal of these ddendan!s pursuant to CPLR 321 Jja)( I) is proper. Plaintiffs breach of contract claims against Pabco, which an: not ut issue on this motion. survive. Accordingly. il is hereby, ORDERED that the motion to dismiss by defendant The R,•/aied ( 'ompanie.v. Inc. and its subsidiaries and ~1lfiliatcs. I ludwm Yard' Constru<'fion !JC !:'RY /)cwlopcr f.U' and ERr Retail Podi11n1 U.( ·is GRANTFD in its entirety and the complaint as to said defendants is DISl'vHSSED: and it is further Ol~DERED that the claims against Pabco Construction Corp .• which is no! a pany to this motion. shall continue. This constitutes the decision and order of the court DATED: October 2t, 2019 9 10 of 10

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.