Doka USA Ltd. v IA Constr. Mgt., Inc.

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Doka USA Ltd. v IA Constr. Mgt., Inc. 2021 NY Slip Op 32323(U) November 15, 2021 Supreme Court, Kings County Docket Number: Index No. 506122/21 Judge: Leon Ruchelsman 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] KINGS COUNTY CLERK 11/15/2021 03:10 PM NYSCEF DOC. NO. 59 INDEX NO. 506122/2021 \ RECEIVED NYSCEF: 11/15/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM: COMMERCIAL 8 ------------------------ ------ - ~----- X [)OKA USA LTD. , .Plaintiff, Decision and order Ind~x No. 506122/21 - against IA CONSTRUCTION MANAGEMENT, INC., AMANT l?ROPERTTES, LLC, AMANT FOUNDATION PROPERTIES, LLC, METRO ELECTRIC CONTRACTORS INC., PARK PLUMBING &. MECHANICAL, INC. , and EUROC:RAFT CONTRACTING LLCr Defendants, -- ------ ------------. ---~-- -------- -x IA CONSTRUCTION MANAGEMENT INC., Third;...Party Plaintiff, November 15, 2021 - against JOHN O'HARA, INC., and PARATUS GROUP II, :CNC., Third-Party Defendants, ------ . -. -.----- .. - ·-----.- .. --·- .. ---.--. -- . --x PRESENT: HON. LEON RUCHELSMAN The third party defendant Paratus Group II Inc., has moved seeking to· dismiss the third party complaint pursuant to CPLR §3211. Ths:: third party plaintiff IA Construction Management Inc., [hereinafter 'IACM'] opposes the motion. submitted by the parties and arguments held. Papers were After reviewing all the arguments this ce.ui::t 110w makes· the following deteri;ninatioo. The defendant/thircl. party pia:i.ntiff IACM., the general contractor at a construction site located at 306 Maujer Street in Kings County, entere.d into a subcontract with plaintiff boka USA Ltd., to provide concrete form:work. 1 of 6 'DOka instituted this law$u:Lt [*FILED: 2] KINGS COUNTY CLERK 11/15/2021 03:10 PM NYSCEF DOC. NO. 59 INDEX NO. 506122/2021 RECEIVED NYSCEF: 11/15/2021 alleged they have not been paid and is owed $361,142.75. IACM initiated a third party action against Paratus, the owner's representative at the construction site. The third party complaint alleges that Paratus in fact owes the money to Doka and seeks indemnification and subrogation in the amount of any judgement Doka obtains. The third party complaint asserts three causes of action, namely unjust enrichme·nt, l:::Jreach .of a covenant of good faith and fair dealing and tortious interference. Paratus has moved seeking to dismiss the third party complaint on the grounds the third party complaint fails to allege any valid causes of action. The motion is opposed. Conclusions of Law It is well settled that upon a motion to dismiss the court must determine, accepting the allegations of the counterclaim as tru.e, whether the party can succeed upon any reasonable view of those facts (Davids v. State, 159 AD3d 987, 7 4 NYS3d 288 [ 2d Dept., 2018]). Further, the allegations of the counterclaim are deemed t:i::ue arid all reasonable inferences rrtay be drawn in favor of the plaintiff (Dunleavy v. Hilton Hall Apartments Cd., LLG, 14 AD3d 4 7.9, 78 9 .NYS2<:i. 164 [2d Dept., 2.005]) • counterclaim wil.l later survive a motion for Whether the summary- judgtnent, or whet;.her the party will ultimately be able to prove- its claims, of 2 2 of 6 ""'''•--·--·-·---------------------------------- [*FILED: 3] KINGS COUNTY CLERK 11/15/2021 03:10 PM NYSCEF DOC. NO. 59 INDEX NO. 506122/2021 RECEIVED NYSCEF: 11/15/2021 course, plays no part in the determination of a pre-discovery CPLR §3211 mot ion to dismiss ( ~ , EBC I, Inc. v, Goldman Sachs: & Co., 5 NY3d 11, 799 NYS2d 170 [20Q5]) ~ Turning to the cause of action .for a breach of imp1ied covenant of good faith and fair dealing, it is well settled that cause of action is premised upon parties to a contract exercising good faith while performing the terms of an agreement (Van Valkenburgh Nooger & Neville v. Hayden Publishing Co., 30 NY2d 34, 330 NYS2d 329 [1972]). IACM argues that "clearly there was a contract and IACM was obligated, as well as Paratus, to perform the construction, the oversight, as well as payment for work arid While materials (see, Memorandum in Opposition, pages 13,14). that is certainly true in a general sense, there was no. contract entered between !ACM and Paratus to permit a cause of action for a breach of duties that are contractual in nature. Indeed, the entire covenant is implied within every contract (P.T. Contracting Corp., v. Trataro·s Construction Inc., & L. 29 AD3d 763, Thus, without the existence .of 816 NYS2d 508 [2d Dept., 2006]). a contract there can be no implied covenant (Lakeville Pace Mechanical Inc., v. Elmar Realty Corp. 1 276 AD2d 673, 714 NYS2d 338 [2d Dept., 2000]). Therefore; the language of the third party complaint that there was ah "implied covenant of good faith and fair dealing'' that \'governed the work and services provided 3 3 of 6 [*FILED: 4] KINGS COUNTY CLERK 11/15/2021 03:10 PM NYSCEF DOC. NO. 59 INDEX NO. 506122/2021 RECEIVED NYSCEF: 11/15/2021 to Pa·ratus for t.h·e project'' (.see_, Third Party -Complaint, -1 23'):. fails to allege any contract between IAMC and Paratu:s sufficient to encompass and breach of any such covenant.. Therefore, the motio:n ~eeking te> dis~iss this cause of action is ·granted. Next, i t is well settled that the elE,3:ments of a caus.e of action alleging tortious interfe.rence wi.th contract ate: the (1) --existence of. a valid co-_ntra,_qt between 1;:h_e pii;i,i_ntif.f ari.d. _-a. third party, (2) the defendant's knowledge o;f that c;:ontract, (3) th.e defendant's intentional procurement of· a third-par"ty' s hreach of ·that contract without j·usti·ficatior t, and" (4) damages (Anethsia Associates of Mount Kisco, LLP v. Northern Westchester Hospita1. Center; 59 AD3d. 473, 873 NYS2d 679 [2d Dept., 20 • -9·] ") • -In this cas-e. the: third party· compia-int does no:t all-e9e Paratus ind_uc~d Doka to breach the contract at all. t.ha-t, Rather, _the cornplaint alleges that Paratus "pu·rpose·ly and intentionally iIJ.te_~fered with the co·ntraqt between IACM and Doka, by routine.ly dE!nying or failing even to process payments owed to Dokal' (see, '.l'hi±:d Party ·complaint, 'i[' however, i·f ctoe·s ·not al.lege of Patatus. That alle9ation m:ight be true, 28). ·any tortious interference on the part That allegation asserts, perhaps, wrongdoing on the part:. of Parat us, however., fails to allege that Paratu·s induced Do_ka to breach the. -cohtract, a necessary component of tortious interference. 4 4 of 6 [*FILED: 5] KINGS COUNTY CLERK 11/15/2021 03:10 PM NYSCEF DOC. NO. 59 INDEX NO. 506122/2021 RECEIVED NYSCEF: 11/15/2021 Therefore , the motion seeking to dismiss the tortious interferen ce claim is granted~ Lastly, to prevail on a claim of unjust enrichmen t the party must prove the other party was enriched at that party;s expense and that it is against equity and good conscienc e to allow the other party to retain what is sought to be recovered {Alpha/Om eqa Concrete Corp., v. Ovation Risk Planners Inc., 197 AD3d 1274, _NYS3d~ [2d Dept., 2021_]). It is well settled that failure to pay a bill due can constitute unjust enricb.men t (Wigging v. Garden City Golf Club, 2017 WL 4898285 [EDNY 2017], Str:eit v. Bushnell, 424 F.Supp2d 633 [SONY 2006]). However, even if true that Paratus promised to pay Doka's bill or gave the appearanc e such bills would be paid Paratus did not retain a benefit to which they are not entitled. Specifica lly, Paratus is not the owner of the property and was merely acting as an agent of the owner. Thus, any benefit improperly retained accrues to t:he owner, not Paratus. IACM argues that since Paratus was the agent of the owner then Paratus somehow was unjustly enriched by failing to pay Doka. However, merely he·ing the agent of the owner does not mean Paratus rtraintaine d any benefit at all. To assert otherwise , would. essential ly equate agency with ownership and the third party complaint fails to allege any such relations hip. Consequen tly, to the extent IACM has any claims 5 5 of 6 [*FILED: 6] KINGS COUNTY CLERK 11/15/2021 03:10 PM NYSCEF DOC. NO. 59 INDEX NO. 506122/2021 RECEIVED NYSCEF: 11/15/2021 they should be directed toward the owner and not P.3.ratus. Therefore, there can be no question that no such improper conduct can be attributed to Paratus. Consequently, the motion seeking to dismiss the unjust enrichment cause of action is granted. Thus, the entire third party complaint is hereby dismissed. So ordered. ENTER: DATED: November 15, 2021 Brooklyn. N.Y. t Hon. Leon Ruchelsman JSC 6 6 of 6

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