Old Crompond Rd., LLC v County of Westchester

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Old Crompond Rd., LLC v County of Westchester 2019 NY Slip Op 34693(U) December 31, 2019 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 01/07/2020 02:08 PM NYSCEF DOC. NO. 117 INDEX NO. 57579/2016 RECEIVED NYSCEF: 01/07/2020 To commence commence the statutory statutory time time for for appeals appeals as of of right right (CPLR (CPLR 5513[a]}; 5513[a]); you are are advised advised to serve serve a copy copy of this this order; order; with with notice notice of of entry, entry, upon upon all parties. parties. of SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK YORK SUPREME COUNTY OF WESTCHESTER WESTCHESTER COUNTY PRESENT: HON. SAM SAM D. WALKER, WALKER, J.S.C. J.S.C. PRESENT: -------------------x -------------------------------------------------------------------------x OLD OLD CROMPOND CROMPOND ROAD, ROAD, LLC, Plaintiffs Plaintiffs DECISION DECISION AND AND ORDER ORDER -against-againstIndex Index No. 57579/2016 57579/2016 Motion Motion Sequence Sequence 4 COUNTY COUNTY OF WESTCHESTER, WESTCHESTER, Defendants. Defendants. · --------x ---------------------------------------------------------------------------x The following following papers papers were were considered considered on the the County County of of Westchester's Westchester's motion motion for for The summary judgment pursuant summary judgment pursuant to CPLR CPLR 3212: 3212: Notice Notice of of Motion/Affirmation/Exhibits Motion/Affirmation/Exhibits A-L A-L Memorandum Memorandum of of Law Law in Support Support Affidavit in Opposition/Exhibits Opposition/Exhibits 1-8 Affidavit Affirmation in Opposition/Exhibits Opposition/Exhibits 1-2 Affirmation Memorandum of of Law Law in Opposition Opposition Memorandum Memorandum Memorandum of of Law Law in Reply Reply 1-14 15 16-24 16-24 25-27 25-27 28 28 29 29 Upon Upon the the foregoing foregoing papers, papers, it is ordered ordered that that the motion motion is DENIED. DENIED. The plaintiff, plaintiff, Old Crompond Crompond Road, LLC ("OCR") ("OCR") filed filed this this action action on May May 27, The 2016, alleging alleging two causes causes of of action action against against the the defendant, defendant, County County of of Westchester Westchester (the 2016, "County"). "County"). The The County County previously previously filed filed a motion motion for for dismissal dismissal of of the the complaint complaint against against it due due to failure failure to state state a claim claim and OCR OCR filed filed a cross-motion cross-motion seeking seeking anorder an order pursuant pursuant to CPLR CPLR 3025[c] 3025(c] to serve serve and file an amended amended complaint complaint to conform conform the the pleadings pleadings to the proof. proof. This This Court Court granted granted OCR's OCR's motion motion to serve serve and file an amended amended complaint complaint by Decision and Order Order dated dated October October 18, 2018 2018 and the the amended amended complaint complaint was was filed filed on Decision October 2018. October 24, 24,2018. The The first first cause cause of of action action in the the amended amended complaint complaint alleges alleges that that in or about about 2007, 2007, OCR OCR was was designated designated and approved approved to develop develop and construct construct a twenty-six twenty-six unit unit I [* 1] 1 of 7 FILED: WESTCHESTER COUNTY CLERK 01/07/2020 02:08 PM NYSCEF DOC. NO. 117 INDEX NO. 57579/2016 RECEIVED NYSCEF: 01/07/2020 Affordable project on Old Crompond Crompond Affordable Affirmatively Affirmatively Furthering Fair Housing ("AFFH") project County's plan to Road, Yorktown Yorktown Heights, New York. The project was part of the County's satisfy its requirements requirements per a stipulation stipulation of settlement settlement in a federal develop 750 units to satisfy infrastructure law suit. The County agreed to perform and pay for certain site work and infrastructure contractors, Housing Action Counsel "(HAC"), required by the project; to have county contractors, qualified purchasers purchasers for the units, and to otherwise otherwise aid market the project, find and vet qualified County agreed that in the financing, sale and closing of the units. OCR alleges that the County constructed. only three bedroom units were to be constructed. fulfillment of its construction construction obligation, OCR alleges that, on April 17, 2013, in fulfillment contracted with Bradhurst Bradhurst Construction Construction ("Bradhurst") ("Bradhurst") to perform the site the County contracted scheduled completion completion date of six months and that OCR was a third-party third-party work, with a scheduled beneficiary of such contract. OCR asserts that the work took substantially substantially longer due to beneficiary inexcusable delays by Bradhurst Bradhurst and was not completed completed until the fall of 2014. OCR inexcusable despite numerous numerous requests for the County to speed the construction construction along alleges that despite despite the ability of the County to take actions to insure insure compliance compliance with the and despite two-year delay contract, the County failed to take action and such failure resulted in a two-year consequential damages damages in an amount amount to be determined, determined, but in excess of and consequential $250,000.00. $250,000.00. County required OCR to OCR alleges in the second cause of action that the County Marketing Plan to insure that retain the services of HAC and had an obligation under its Marketing consultant was competent competent and qualified, qualified, which the County County failed to do or did so such consultant despite the promises and representations representations of the County negligently. OCR alleges that, despite availability of qualified qualified purchasers purchasers and available available financing financing for closings as to the availability commencing December December 2013, such purchasers purchasers could not easily be found due to the commencing defendant's and HAC's incompetence incompetence and failure to abide by the Marketing Plan defendant's requirements, or if found could not qualify qualify for financing financing and/or and/or could not meet HUD requirements, requirements. Therefore, Therefore, the project, which should have closed out in 2014, still had requirements. contract and August 2015 and the length of time between contract three units unclosed as of August inordinate and greater greater than provided or estimated. estimated. OCR alleges that the closing was inordinate under its approved Marketing Plan to preliminarily preliminarily market County also had an obligation under 2 [* 2] 2 of 7 FILED: WESTCHESTER COUNTY CLERK 01/07/2020 02:08 PM NYSCEF DOC. NO. 117 INDEX NO. 57579/2016 RECEIVED NYSCEF: 01/07/2020 the units units and review review and supervise supervise HAG HAC to insure insure fulfillment fulfillment of of HAC's HAC's obligations, obligations, neither neither of which which it did. OCR OCR alleges alleges that that it was was damaged damaged by the County's County's breach breach of contract contract and misrepresentations, misrepresentations, by being being forced forced to incur incur excess excess carrying carrying costs costs and loss of of use of of the proceeds proceeds of of sales sales for for up to two years years and reduced reduced sales sales prices prices in an amount amount to be determined determined but in excess excess of of $350,000.00. $350,000.00. Prior Prior to this this Court's Court's Decision Decision and Order Order denying denying the the motion motion to dismiss dismiss and granting granting the motion motion to amend amend the complaint, complaint, the County County filed a motion motion for for summary summary judgment. judgment. This This Court Court issued issued a Decision Decision and Order Order dated dated June June 28, 2019, 2019, denying denying the motion judgment, finding motion for for summary summary judgment, finding that that the County County failed failed to serve serve or file file a response response to the amended amended complaint complaint and therefore, therefore, the the motion motion for for summary summary judgement was judgement was premature premature because because it was was made made prior prior to service service of of an answer answer to the the amended amended complaint complaint (see (see Johnson Johnson v Boro Boro Medical Medical Center Center Local Local No. 563, 89 AD2d AD2d 901 [2d Dept Dept 1982] 1982] see also also Schoenborn Schoenborn v Kinderhi/1 Kinderhill Corp., 98 AD2d AD2d 831, 832 [3d Dept Dept 1983]). 1983]). The The Court Court further further stated stated that that it may may have created created confusion confusion in its prior prior Decision Decision and Order, Order, by stating stating that that the the County County had already already filed filed a motion motion for for summary summary judgment judgment which which would would be decided decided when when it was was fully fully submitted; submitted; the the attorneys attorneys reached reached out out to the the Court Court and was was told that that the the motion motion was was still pending pending and was was being being transferred transferred to this Court's Court's calendar. calendar. That That motion motion referred referred to the the original original complaint complaint and not the the amended amended complaint complaint and the Court Court allowed allowed the County County to file an answer answer to the amended amended complaint. complaint. The The County County now now files files another another motion motion for for summary summary judgment the amended amended judgment on the complaint. complaint. The The County County argues argues that that OCR OCR cannot cannot establish establish any any legal legal right right to bring the the action, action, as it is not a third-party third-party beneficiary beneficiary to any any contract contract of of the the County's, County's, nor nor can it show show that that the the County County breached breached any any provision provision of of an agreement agreement relating relating to the housing housing development, development, whether whether the OCR OCR was was a party party to the contract contract or not. The The County County asserts asserts that that OCR OCR has not raised raised a proper proper claim claim in the first first cause cause of action action for for breach breach of of contract, contract, since since OCR OCR alleges alleges that that the the County County breached breached a contract contract that that the County County had with with Bradhurst, Bradhurst, under under which which OCR OCR claims claims it was was a third-party third-party beneficiary. beneficiary. However, However, the the alleged alleged breaches breaches concern concern Bradhurst's Bradhurst's performance performance under under 3 [* 3] 3 of 7 FILED: WESTCHESTER COUNTY CLERK 01/07/2020 02:08 PM NYSCEF DOC. NO. 117 INDEX NO. 57579/2016 RECEIVED NYSCEF: 01/07/2020 that would be against that agreement. agreement. Therefore, Therefore, the first first cause cause of of action, action, if it exists, exists, would against Bradhurst Bradhurst and not the County. County. The The County County further further asserts asserts that that OCR OCR does does not have status as a third-party third-party beneficiary status beneficiary to that that agreement. agreement. The The County County asserts asserts a second second cause cause of action, action, which which it contends contends is equally equally deficient, deficient, in that, that, it claims claims that that the County County breached breached a contract contract related related to the marketing marketing The County and financing financing of the affordable affordable housing housing units. The County asserts asserts that that OCR OCR named named the wrong party, since with HAC for wrong since OCR OCR contracted contracted with for the marketing marketing and financing financing of the affordable housing Additionally, HAC is a not-for-profit affordable housing units. Additionally, not-for-profit corporation, corporation, separate separate from the county with HAC was at OCR's county and OCR's OCR's contract contract with OCR's own expense expense and separate separate from any agreement from any agreement with the County. County. In opposition, that the motion opposition, OCR OCR asserts asserts that motion should should be dismissed dismissed procedurally procedurally as time was filed more time barred barred because because it was more than than 120 days days after after the filing filing of the note note of of issue issue and also judgment. OCR that the also as duplicative duplicative of a prior prior motion motion for for summary summary judgment. OCR contends contends that grounds grounds for for this this motion motion are virtually virtually identical identical to the grounds grounds in the prior prior motion motion and in a separate motion judicata as to the issues separate motion to dismiss dismiss and such such denials denials are res judicata issues raised. raised. OCR that the complaint forth valid causes OCR also also asserts asserts that complaint sets forth causes of action. action. It contends contends while the that that the County County provided provided a critical critical path time time line for for completion completion of of the the work work and while with Bradhurst, County County claims claims that that such such schedule schedule is not part part of the contract contract with Bradhurst, it is a document document contemplated contemplated by and contained contained within within the contract. contract. Neil Deluca Deluca ("Deluca''), ("Deluca"), a member member of OCR, OCR, asserts asserts that that OCR's OCR's claim claim is that that the County County failed failed in its obligation obligation to complete complete the construction construction on time time and its failure failure to enforce enforce its contract contract with Bradhurst Bradhurst or to have effective effective enforcement enforcement provisions provisions in the contract. contract. As to the second second cause cause of action, action, Deluca Deluca further further asserts asserts that that the County's County's had an obligation wa? qualified obligation to certify certify that that the designated designated Marketing Marketing Consultant Consultant wa~ qualified and experienced and to monitor monitor the Marketing Marketing Plan of the Consultant, Consultant, experienced County argues argues that that OCR's OCR's procedural procedural contentions contentions are without merit In reply, the the County without merit asserts that that there there is no material material issue issue of fact fact with respect to the the plaintiff's plaintiff's first first cause cause and asserts with respect action because because the critical critical path schedule schedule cannot cannot create create an addendum addendum or amendment amendment of action only date date for for completion completion of the Sales Sales Agreement was December December 30, 2014, 2014, and the only Agreement was which deadline deadline was The County County also also asserts asserts that that there there is no material material issue issue of fact fact which was met. The 4 [* 4] 4 of 7 FILED: WESTCHESTER COUNTY CLERK 01/07/2020 02:08 PM NYSCEF DOC. NO. 117 INDEX NO. 57579/2016 RECEIVED NYSCEF: 01/07/2020 with respect to the cause of action, since limited obligations obligations relating relating fulfilled its limited since it fulfilled of action, second cause the second with respect Agreement Sales Agreement the Sales of the to marketing marketing the units and OCR OCR cannot point to any provision of any provision cannot point the units that breached. County breached. the County that the Discussion Discussion A party party seeking summary judgment bears the initial initial burden burden of of affirmatively affirmatively judgment bears seeking summary judgment as a matter demonstrating its entitlement entitlement to summary matter of of law. (Winegrad (Winegrad v summary judgment demonstrating New York Univ. Med. Ctr., 64 NY2d 851, 853 853 [1985]; [1985]; Alvarez Prospect Hospital, Hospital, 68 Alvarez v Prospect New shifts to then shifts the burden [1986]). If a sufficient prima facie made, the burden then showing is made, facie showing sufficient prima NY2d 320 [1986]). of a existence of the existence the non-moving party party to come demonstrate the evidence to demonstrate with evidence forward with come forward the non-moving see also, Vermette material issue issue of fact fact requiring requiring a trial. (CPLR (CPLR 3212[b]); 3212[b]); see Vermette v Kenworth Kenworth material Company, 68 NY2d NY2d 714, 717 [1986]). [1986]). The The parties' parties' competing competing contentions contentions are Truck Company, Midland the motion. the party viewed light most most favorable party opposing opposing the motion. (Marine (Marine Midland favorable to the viewed in the light AD2d 610 Dino & Artie's Transmission Co., 168 AD2d 610 [2d Dept Dept Automatic Transmission Artie's Automatic Bank, N.A. v Dino 1990]). 1990]). time barred the motion As an initial initial matter, matter, the not finds motion is time barred or that the finds that does not Court does the Court barred due due to res judicata. The Court Court determined determined that that it bore bore some some responsibility responsibility for for any judicata. The barred judgment motion deciding the confusion in the posture of the the case case in deciding the last last summary summary judgment motion and posture of confusion permitted the County to file answer to the the amended amended complaint. complaint. This This motion motion could file an answer the County permitted that Decision never be timely under OCR's OCR's standard standard because because the Court rendered rendered that Decision the Court timely under never already been of issue granting motion to amend note of issue had already been the note when the complaint when the complaint amend the the motion granting the the since the timely, since filed. motion to be timely, judgment motion summary judgment for a summary way for was no way There was filed. There the notice amended complaint complaint was was filed filed more more than days after after the notice of of issue issue was forty-five days than forty-five amended the note Therefore, the County County would move to vacate note of of issue issue and the vacate the would have had to move filed. Therefore, with delays plaintiff refile, which simply take take up valuable Court resources resources with delays in the valuable Court would simply which would plaintiff judgment motion disposition of the case. The Court did not decide decide the prior summary summary judgment motion on the prior The Court the case. disposition for than a motion different than the merits merits and the motion to dismiss dismiss is different motion for for a motion standard for the standard summary judgment. summary judgment. Upon viewing viewing the the evidence evidence in a light light most most favorable favorable to the the non-moving non-moving party party Upon bestowing (Pearson v Dix McBride, McBride, LLC, 63 AD 3d 895, 895 [2d Dept Dept 2009]), 2009]), and upon upon bestowing AD3d (Pearson Diner Corp., 215 benefit of of every every reasonable reasonable inference inference to that party (Rizzo (Rizzo v Lincoln Lincoln Diner 215 that party the benefit 5 [* 5] 5 of 7 FILED: WESTCHESTER COUNTY CLERK 01/07/2020 02:08 PM NYSCEF DOC. NO. 117 INDEX NO. 57579/2016 RECEIVED NYSCEF: 01/07/2020 AD2d Court denies denies the motion first cause cause of AD2d 546, 546 [2d Dept Dept 1995]), 1995]), the Court motion as to the first action, second cause cause of action. action. action, but grants grants the motion motion as to the second OCR asserts asserts that that Bradhurst violated its contract contract with the County County and the the County County Bradhurst violated failed to enforce despite the critical critical path schedule schedule that that was was referred failed enforce such such contract, contract, despite referred to in asserts that that the critical critical path schedule schedule is not part of the contract. contract. Although, Although, the County County asserts contract and the Bradhurst schedule is referred Bradhurst contract, contract, a progress progress schedule referred to in the contract sufficient to raise issue as to the contemplated OCR's opposition opposition is sufficient contemplated by the contract. contract. OCR's raise an issue schedule whether OCR third-party beneficiary that contract. contract. schedule and also whether OCR is an intended intended third-party beneficiary of that In determining third-party beneficiary status, the Court Court may circumstances as determining third-party beneficiary status, may look look at the circumstances agreement (Alevo/1 (Alevoll v Farley, Dept 1996]). 1996]). U[T]he well as the agreement Farley, 223 AD2d AD2d 613, 614 614 [2d Dept "[T]he obligation the third-party expressly stated stated in the the contract" contract" obligation to the third-party beneficiary beneficiary need not be expressly (/d.). argues that, even even if OCR OCR is a third-party third-party beneficiary, that it is not the (/d.). The The County County argues beneficiary, that correct should seek seek redress with Bradhurst, County may correct defendant defendant and OCR OCR should redress with Bradhurst, the County may also be a possible for its alleged alleged failure failure to enforce enforce its contract. contract. Such Such redress possible defendant defendant for redress is not of law. prevented prevented as a matter matter of The cause of action relates relates to the County's The second second cause of action County's failed failed to ensure ensure that that HAC was properly qualified qualified to perform perform its function properly oversee properly function and the County's County's failure failure to properly oversee HAC's work. The The Sale Sale Agreement merger clause, bars any HAC's Agreement contains contains a merger clause, which which bars any consideration of claims claims not contained contained in the Agreement, Agreement, such such as OCR's OCR's claim claim as to the consideration of OCR had independently contracted with HAC prior list of qualified qualified applicants. applicants. Further, Further, OCR independently contracted prior to Sale Agreement Agreement and knew knew at the time the Sale time of the Sale Sale Agreement Agreement that that HAC would would be the marketing consultant. consultant. Therefore, reliance on the representations representations made made by marketing Therefore, there there was was no reliance the County County as to HAC's HAC's qualifications qualifications and such would barred by the merger clause. would be barred the merger clause. Additionally, shown that that HAC was was not qualified qualified and that that it did Additionally, the County County has not shown meet the eligibility eligibility requirements requirements in the marketing marketing plan, nor that not meet that the County County failed failed to supervise and oversee oversee under under the marketing the Sale Sale Agreement. Agreement. supervise marketing plan in the Accordingly, based based on the the foregoing, foregoing, it is Accordingly, ORDERED that that the the motion motion for for summary summary judgment granted in part part and denied denied ORDERED judgment is granted in part. 6 [* 6] 6 of 7 FILED: WESTCHESTER COUNTY CLERK 01/07/2020 02:08 PM NYSCEF DOC. NO. 117 INDEX NO. 57579/2016 RECEIVED NYSCEF: 01/07/2020 The The parties parties are directed directed to appear appear before before the Settlement Settlement Conference Conference Part on February 9:30 a.m .... February 18, 2020 2020 in Courtroom Courtroom 1600 1600 at 9:30 The foregoing The foregoing constitutes constitutes the Opinion, Opinion, Decision Decision and Order Order of of the Court. Court. Dated: York Dated: White White Plains, Plains, New New York December December 31, 2019 2019 N. SAM D. WALKER, WALKER, J.S.C. J.S.C. 7 [* 7] 7 of 7

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