Old Crompond Rd., LLC v County of Westchester
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Old Crompond Rd., LLC v County of Westchester 2019 NY Slip Op 34694(U) June 28, 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 07/08/2019 04:19 PM ----NYSCEF DOC. NO. 84 INDEX NO. 57579/2016 RECEIVED NYSCEF: 07/08/2019 To To commence commence the the statutory statutory time for for appeals appeals as of of right right time (CPLR (CPLR 5513[a]), 5513(a]), you are are advised to serve serve a copy copy advised of this this order, order, with with notice notice of of entry, entry, upon upon all parties. parties. of SUPREME SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK YORK COUNTY OF WESTCHESTER WESTCHESTER COUNTY PRESENT: HON. SAM SAM D. WALKER, WALKER, J.S.C. J.S.C. PRESENT: x -------------------------------------------------------------------------J< OLD OLD CROMPOND CROMPOND ROAD, ROAD, LLC, Plaintiffs Plaintiffs DECISION AND AND ORDER ORDER DECISION IndeJ<No. 57579/2016 Index No. 57579/2016 -against-againstMotion Sequence Sequence 3 Motion COUNTY OF WESTCHESTER, WESTCHESTER, COUNTY Defendants. Defendants. -------------------x ---------------------------------------------------------------------------J< The following following papers papers were were considered considered on the the County County of Westchester's Westchester's motion motion for for The summary judgment pursuant summary judgment pursuant to CPLR CPLR 3212: 3212: · Notice of of Motion/Affirmation/Exhibits Motion/Affirmation/EJ<hibits A-K A-K Notice Memorandum of Law in Support Support Memorandum Affidavit in Opposition/Exhibits Opposition/EJ<hibits 1-11 Affidavit Affirmation in Reply/Exhibits Reply/EJ<hibits L-M Affirmation Memorandum Memorandum of Law Law in Reply Reply 1-13 1-13 9 10-21 22-24 22-24 25 25 the foregoing foregoing papers, papers, it is ordered ordered that that the the motion motion is DENIED. DENIED. Upon the The plaintiff, plaintiff, Old Crompond Crompond Road, Road, LLC ("OCR") ("OCR") filed filed this this action action on May 27, The 2016, alleging alleging two two causes causes of of action action against against the defendant, defendant, County County of of Westchester Westchester (the (the 2016, "County"). The The County County previously previously filed a motion motion for for dismissal dismissal of of the complaint complaint against against it "County"). due to failure failure to state state a claim claim and OCR OCR filed a cross-motion cross-motion seeking seeking an order order pursuant pursuant due CPLR 3025[c] 3025[c] to serve serve and file file an amended amended complaint complaint to conform conform the the pleadings pleadings to to CPLR proof. This This Court Court granted granted OCR's OCR's motion motion to serve serve and file an amended amended complaint complaint by the proof. 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 24, 2018. 2018. October The first first cause cause of of action action in the amended amended complaint complaint alleges alleges that that in or about about 2007, 2007, The OCR was was designated designated and approved approved to develop develop and construct construct a twenty-six twenty-siJ< unit OCR [* 1] 1 of 5 FILED: WESTCHESTER COUNTY CLERK 07/08/2019 04:19 PM NYSCEF DOC. NO. 84 INDEX NO. 57579/2016 RECEIVED NYSCEF: 07/08/2019 Affordable Affirmatively Affirmatively Furthering Fair Housing ("AFFH") project on Old Crompond Affordable County's plan to Road, Yorktown Heights, New York. The project was part of the Cou-nty's satisfy its requirements per a stipulation of settlement settlement in a federal develop 750 units to satisfy law suit. The County agreed to perform and pay for certain site work and infrastructure infrastructure required by the project; to have county contractors, Housing Action Counsel "(HAC"), purchasers for the units, and to otherwise aid market the project, find and vet qualified purchasers in the financing, sale and closing of the units. OCR alleges that the County agreed that only three bedroom units were to be constructed. fulfillment of its construction construction obligation, OCR alleges that, on April 17, 2013, in fulfillment County, contracted with Bradhurst Bradhurst Construction ("Bradhurst") to perform the site the County ·scheduled completion date of six months and that OCR was a third-party third-party work, with a scheduled beneficiary of such contract. 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 alleges that despite despite numerous numerous requests for the County to speed the construction construction along despite the ability of the County to take actions to insure ·compliance compliance with the and despite contract, the County failed to take action and such failure resulted in a two-year two-year delay consequential damages damages in an amount to be determined, determined, but in excess of and consequential $250,000,00. $250,000.00. OCR alleges in the second cause of action that the County required OCR to retain the services of HAC and had an obligation under its Marketing Plan to insure that consultant was competent competent and qualified, qualified, which the County failed to do or did so such consultant representations of the County negligently. OCR alleges that, despite the promises and representations availability of qualified purchasers purchasers and available available financing financing for closings and 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 for financing and/or and/or could not meet HUD require·ments, requirements. Therefore, Therefore, the project, which should have closed out in 2014, still had requirements. August 2015 and the length of time between contract contract and three units unclosed as of August inordinate and greater greater than provided or estimated. estimated. OCR alleges that the closing was inordinate obligation under its approved Marketing Plan to preliminarily preliminarily market County also had an obligation [* 2] 2 of 5 ') FILED: WESTCHESTER COUNTY CLERK 07/08/2019 04:19 PM NYSCEF DOC. NO. 84 INDEX NO. 57579/2016 RECEIVED NYSCEF: 07/08/2019 the units and review and supervise supervise the HAC to insure fulfillment fulfillment of HAC's obligations, obligations, neither neither of which it did. OCR alleges that it was damaged damaged by the County's contract and County's breach of contract misrepresentations, by being forced misrepresentations, forced to incur excess carrying costs and loss of use of the proceeds proceeds of sales for up to two years and reduced sales prices in an amount amount to be determined but in excess of $350,000.00. $350,000.00. determined Prior to this Court's Court's Dedsion Decision on those motions, the County County filed the instant summary judgment. argues that OCR fails to identify identify the motion for summary judgment. The County argues breached provisions third-party beneficiary provisions of any alleged contract; that OCR is not a third-party beneficiary to Bradhurst contract contract and that even if it were a third-party beneficiary to the Bradhurst Bradhurst third-party beneficiary the Bradhurst County is not the proper defendant; defendant; that there is no enforceable contract, the County enforceable contract between the parties for marketing marketing and/or and/or financing between financing the finished units and any claims representations outside the four corners of the sale agreement agreement are barred based upon representations merger clause. by the merger opposition, OCR submits submits an affidavit Deluca ("Deluca"), ("Deluca"), a member member In opposition, affidavit from Neil Deluca complaint was not answered in of OCR, stating that the amended amended complaint answered and that the County is in default for failure Deluca states that the default failure to file an answer answer to the amended complaint. complaint. Deluca County's obligation obligation to perform infrastructure infrastructure work is contained in a tripartite contained in tripartite agreement agreement County's known as the Sales Agreement Agreement between the County, OCR and Crompond Crompond Crossing Development Fund Company, Inc., a not-for-profit not-for-profit entity associated Housing Development associated with HAC, agent for the development. development. the marketing agent Deluca contends contends that the County and/or Deluca and/or its contractor contractor created a critical path confirming the time frame infrastructure, which frame for the completion completion of the infrastructure, schedule, confirming addendum to the contract of sale, providing a time frame for the constituted an addendum completion which the original contract contract did not contain. Deluca Deluca avers that, based upon completion this agreed time schedule, schedule, OCR proceeded to construct construct the 26 affordable affordable housing units, market them and close on them in January January 2014 and the County was so as to be able to market construction schedule. schedule. The affiant affiant asserts asserts that that the County County did not well aware of the construction [* 3] 3 of 5 complv with the schedule schedule and that the contract contract with Bradhurst Bradhurst should have contained contained a comolv FILED: WESTCHESTER COUNTY CLERK 07/08/2019 04:19 PM NYSCEF DOC. NO. 84 INDEX NO. 57579/2016 RECEIVED NYSCEF: 07/08/2019 time of the essence essence clause, or liquidated damages damages or an enforceable enforceable schedule. He contends contends that the County had options, none of which it took. took . -Deluca .Deluca also asserts asserts that HAC, the marketing marketing consultant, consultant, designated designated by the County, had no expertise; expertise; was incompetent incompetent to market market the units and should never have been designated designated by the County. That negligent and/or andlor improper improper designation designation was itself a breach of the Marketing Plan, made part of the Sales Agreement. Agreement. Deluca Deluca states further further that the implementat ion and processing implementation processing of applicants applicants was terrible terrible and the County County failed to meet its contractual contractual obligations obligations to complete complete the infrastructure infrastructure by December December 2013 and failed to meet its obligations obligations of marketing marketing and supervision supervision pursuant pursuant to the Marketing Plan as required by HUD. Discussion A party seeking judgment bears the initial burden of seeking summary summary judgment demonstratin demonstratingg its entitlement entitlement to summary summary judgment matter of law. judgment as a matter affirmatively affirmatively (Winegrad v v (Winegrad New York Univ. Med. Ctr., Ctr., 64 NY2d 851, 851,853 [1985); Alvarez Alvarez v Prospect Prospect Hospital, 68 853 [1985]; NY2d 320 [1986]). [1986)). If a sufficient sufficient prima facie showing is made, the burden then shifts to the non-moving non-moving party to come forward with evidence evidence to demonstrate demonstrate the existence existence of of a material issue of fact requiring a trial. {CPlR (CPlR 3212[bJ); 3212[b)); see also, Vermette v Kenworth Kenworth Truck Truck Company, 68 NY2d 714, 717 [1986]). [1986)). The parties' competing competing contentions contentions are viewed in in the light most favorable favorable to the party opposing opposing the motion. (Marine Midland Midland Bank, N.A. v Dino & Artie's Artie's Automatic Automatic Transmission Co., 168 AD2d 610 [2d Dept 1990]). 1990)). As previously previously stated, this Court granted granted OCR's motion to amend the complaint complaint and the amended amended complaint complaint was filed October October 24, 2018. However, the note of issue was filed prior to this Court's Court's previous Decision and Order, requiring the County to file the motion for summary summary judgment judgment within the time required by the Differentiate Differentiatedd Case Managemen Managementt Rules. Prior to this Court's Decision and Order Order on the motion to dismiss and motion for leave to amend, the County made a motion for summary summary judgment. judgment. However, the County failed to serve or file a response response to the amended amended complaint complaint and [* 4] therefore, therefore, the motion is considered considered premature premature ~ecause because it was made prior to service of of 4 of 5 an answer to the amended comolaint (.c;ee FILED: WESTCHESTER COUNTY CLERK 07/08/2019 04:19 PM NYSCEF DOC. NO. 84 INDEX NO. 57579/2016 RECEIVED NYSCEF: 07/08/2019 Dept 1982) see also Schoenborn Schoenborn v Kinderhill 563, 89 AD2d AD2d 901 [2d Dept Kinderhi/1 Corp., 98 AD2d AD2d 831,832 [3d Dept Dept 1983)). 1983)). 831,832 Since this this Court Court may may have have created created confusion confusion in its prior prior Decision Decision and Order, Since Order, by stating toward that the County motion for for summary summary judgment judgment stating toward the end that County had already already filed a motion which decided when when it was was fully fully submitted; the attorneys attorneys reached out to the the which would would be decided submitted; the reached out Court was told told that that the motion was still pending transferred to this this Court and was motion was pending and was was being being transferred Court's the original original complaint complaint and not the Court's calendar; calendar; and the current current motion motion referred referred to the amended complaint, the Court will allow allow the County to file an answer answer to the amended amended complaint, the Court the County the amended complaint. complaint. Accordingly, foregoing, it is Accordingly, based based on the foregoing, ORDERED that motion for for summary denied. ORDERED that the motion summary judgment judgment is denied. The plaintiff plaintiff shall shall serve serve and file an answer answer to the amended amended complaint complaint within The within ten days of the of this Decision and Order. Order. The parties are directed appear before days the filing filing of this Decision The parties directed to appear before this Court on July Courtroom 1403 1403 for this Court July 24, 2019 2019 at 9:30 a.m. in Courtroom for a conference conference on the matter. matter. The foregoing constitutes The foregoing constitutes the Opinio Opinio Order Court. Order of the Court. Dated: White Plains, New New York Dated: White Plains, York June 28, 2019 2019 June SAM D. WALKER, . SAM WALKER, J.S.C. J.S.C. 5 [* 5] 5 of 5
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