Trustees of the N.Y. City Dist. Council of Carpernters Pension Fund v Prime Contrs., Inc

Annotate this Case

Download PDF

Trustees of the N.Y. City Dist. Council of Carpernters Pension Fund v Prime Contrs., Inc 2021 NY Slip Op 31699(U) May 20, 2021 Supreme Court, New York County Docket Number: 157515/2020 Judge: Frank P. Nervo 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 05/20/2021 04:16 PM NYSCEF DOC. NO. 30 INDEX NO. 157515/2020 RECEIVED NYSCEF: 05/20/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK, PART IV -------------------------------------------------------------x TRUSTEES OF THE NEW YORK CITY DISTRICT COUNCIL OF CARPERNTERS PENSION FUND, et al DECISION AND ORDER Plaintiffs, Index Number -against- 157515/2020 PRIME CONTRACTORS, INC, et al Mot. Seq. 001 & 002 Defendants. -------------------------------------------------------------x NERVO, J.: This matter having been recently transferred to Part IV, and motions 001 and 002 seeking similar relief, the Court issues the instant order addressing both pending motions. Motion sequences 001 and 002 seek similar relief. By motion sequence 001, plaintiffs seek an extension of the time to serve defendant “John Doe No. 1,” as at the time of that motion the identity of John Doe 1 was unknown. Thereafter, in responses to plaintiffs’’ FOIL request, they learned the identity of John Doe 1, Fidelity Deposit Company of Maryland. In motion sequence 002, plaintiffs seek to amend their summons and complaint to include Fidelity Deposit Company of Maryland (hereinafter “Fidelity”) in place of “John Doe No. 1,” pursuant to CPLR §§ 1024 and 3025(b). Plaintiffs further seek to extend the time to serve Fidelity to 30 days from the Court’s instant order. No party has opposed either motion. 1 2 of 5 [*FILED: 2] NEW YORK COUNTY CLERK 05/20/2021 04:16 PM NYSCEF DOC. NO. 30 INDEX NO. 157515/2020 RECEIVED NYSCEF: 05/20/2021 CPLR § 1024 provides that an action may be maintained against an unknown party by “designating so much of his name and identity as is known.” It further provides that “[i]f the name or remainder of the name becomes known all subsequent proceedings shall be taken under the true name and all prior proceedings shall be deemed amended accordingly” (id.). At the commencement of this action, the identity of the surety that issued the payment bond for the subject construction project was unknown to plaintiffs. Following a FOIL request with the city agency plaintiffs believed contracted for the work, plaintiff learned that Fidelity issued a bond guaranteeing all wages and benefits for work performed on the project. Consequently, plaintiffs have established they exercised the requisite due diligence in attempting to ascertaining the identity of the unknown defendant (see generally Bumpus v. New York City Transit Auth., 66 AD3d 26 [2d Dept 2009]). CPLR § 306-b sets forth the deadlines to serve the summons and complaint and also provides for extensions of those deadlines upon good cause or in the interest of justice. Furthermore, CPLR 3025(b) provides that pleadings may be amended at any time, and leave is generally, absent prejudice, freely given, provided the amendment is not “palpably insufficient” (Edenwald Contracting Co. Inc. v. City of New York, 60 NY2d 957 [1983]; see also Bank of America N.A. v. DeNardo, 151 AD3d 1008 [2017]). 2 3 of 5 [*FILED: 3] NEW YORK COUNTY CLERK 05/20/2021 04:16 PM NYSCEF DOC. NO. 30 INDEX NO. 157515/2020 RECEIVED NYSCEF: 05/20/2021 Movants have shown good cause why the time to serve Fidelity should be extended, namely that the identity of Fidelity, as surety, was unknown to plaintiffs at the commencement of this action. Upon learning the identity of the surety, plaintiffs promptly sought to amend the pleadings and for an extension to serve the surety. Accordingly, it is ORDERED the motions are granted; and it is further ORDERED that movants shall serve the amended summons complaint, attached as exhibit E to the instant motion, upon defendants within 30 days of notice of entry of this decision and order; and it is further ORDERED that within ten days of its entry by the Clerk, Plaintiff shall serve a copy of this order with notice of entry on the County Clerk and the Clerk of the Trial Support Office, and it is further ORDERED that upon service on the County Clerk and Clerk of the Trial Support Office, the County Clerk and the Clerk of the Trial Support Office shall amend their records to 3 4 of 5 [*FILED: 4] NEW YORK COUNTY CLERK 05/20/2021 04:16 PM NYSCEF DOC. NO. 30 INDEX NO. 157515/2020 RECEIVED NYSCEF: 05/20/2021 reflect the new caption, which shall read: TRUSTEES OF THE NEW YORK CITY DISTRICT COUNCIL OF CARPENTERS PENSION FUND WELFARE FUND, ANNUITY FUND, APPRENTICESHIP, JOURNEYMAN RETAINING, EDUCATIONAL AND INDUSTRY FUND, TRUSTEES OF THE NEW YORK CITY DISTRICT COUNCIL OF CARPENTERS RELIEF AND CHARITY FUND, and THE CARPENTER CONTRACTOR ALLIANCE OF METROPOLITAN NEW YORK -againstPRIME CONTRACTORS, INC., and FIDELITY DEPOSIT COMPANY OF MARYLAND THIS C O N S T I T U T E S T H E D E C I S I O N A N D O R D E R O F T H E C O U R T. Dated: May 20, 2021 ENTER: ______________________________ Hon. Frank P. Nervo, J.S.C. 4 5 of 5

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.