Bldg 44 Devs. LLC v Pace Cos. N.Y., LLC

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Bldg 44 Devs. LLC v Pace Cos. N.Y., LLC 2021 NY Slip Op 32777(U) December 23, 2021 Supreme Court, New York County Docket Number: Index No. 650390/2020 Judge: Andrea Masley 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. [* 1] INDEX NO. 650390/2020 NYSCEF DOC. NO. 307 RECEIVED NYSCEF: 12/23/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 48 ----------------------------------------------------------------------------------- X BLDG 44 DEVELOPERS LLC, Plaintiff, INDEX NO. 650390/2020 MOTION DATE N/A, N/A, N/A - V - THE PACE COMPANIES NEW YORK, LLC D/B/A THE PACE COMPANIES, MOTION SEQ. NO. 005 006 007 DECISION+ ORDER ON MOTION Defendant. ----------------------------------------------------------------------------------- X AMENDED THE PACE COMPANIES NEW YORK, LLC D/B/A THE PACE COMPANIES Third-Party Index No. 595631/2020 Plaintiff, -againstNOBLE CONSTRUCTION GROUP, LLC, RKI CONSTRUCTION LIMITED LIABILITY COMPANY D/B/A RKI CONSTRUCTION CORP., AUTOMATED LOGIC CORPORATION, XTREME MECHANICAL INSULATION, LLC, ELITE CONSUL TING SYSTEMS CORP., and PREMIER INSULATION SERVICES CORP., Defendants. -------------------------------------------------------------------------------- X HON. ANDREA MASLEY: The following e-filed documents, listed by NYSCEF document number (Motion 005) 184, 185, 186, 187, 188, 189, 190, 191,192,229,233,234,235,236,237,238,239,240,241,242,243,244,245,246, 247,248,249,294,301 DISMISS were read on this motion to/for The following e-filed documents, listed by NYSCEF document number (Motion 006) 193, 194, 195, 196, 197, 198,199,200,201,202,203,204,230,265,266,267,268,269,270,271,272,273,274,275, 276,277,278,279,280,281,296,302 DISMISSAL were read on this motion to/for The following e-filed documents, listed by NYSCEF document number (Motion 007) 205,206,207, 208, 209,210,211,212,213,214,215,216,217,218,219,231,250,251,252,253,254,255,256,257, 258,259,260,261,262,263,264,297,303 DISMISS were read on this motion to/for 650390/2020 BLDG 44 DEVELOPERS LLC vs. PACE COMPANIES NEW YORK, Motion No. 005 006 007 1 of 5 Page 1 of 5 [* 2] INDEX NO. 650390/2020 NYSCEF DOC. NO. 307 RECEIVED NYSCEF: 12/23/2021 Upon the foregoing documents, it is Third-Party Plaintiff Pace Companies New York, LLC d/b/a The Pace Companies (Pace) initiated this third-party action against five of its sub-contractors. Pace alleges against all subs: (7th Cause of action) breach of contract; (8th Cause of Action) breach of warranty; (Ninth Cause of Action) common law indemnification; (Tenth Cause of Action) contractual indemnification; and (Eleventh Cause of Action) contribution. For the reasons stated on the record on December 21, 2021, the motion of ThirdParty Defendant Xtreme Mechanical Insulation, LLC (05) is denied. In the Twelfth Cause of action, Pace seeks to pierce the corporate veil of ThirdParty Defendants Elite Consulting Systems Corp. (Elite) to reach Premier Insulation Services Corp. (Premier). For the reasons stated on the record on December 21, 2021, the motion of Elite and Premier (06) is granted to the extent that the action is dismissed against Premier. Pace's allegations in the Third-Party complaint are insufficient to support Pace's theory of piercing the corporate veil piercing. The motions of Third-Party Defendant Automated Logic Corporation (Automated) (07) and Elite and Premier (06) regarding standing are granted based on Robert v Ringerjeans, LLC, 165 AD3d 609, 610 [1st Dept 2018]. GBL §130(1)(b) prohibits an entity from conducting business under any name except its legal name unless the entity first "file[s] ... in the office of the secretary of state a certificate setting forth the name or designation under which business is carried on or conducted or transacted, its corporate, limited partnership or limited liability company name ... " GBL 130(9) prohibits an entity which has not complied with GBL §130(1)(b) "from maintaining an action or proceeding in any court in this state." 650390/2020 BLDG 44 DEVELOPERS LLC vs. PACE COMPANIES NEW YORK, Motion No. 005 006 007 2 of 5 Page 2 of 5 [* 3] INDEX NO. 650390/2020 NYSCEF DOC. NO. 307 RECEIVED NYSCEF: 12/23/2021 Third-Party plaintiff Pace initiated this action based on a contract with Pace Mechanical Corp., a company that has never existed. (NYSCEF 286, Amended ThirdParty Complaint ,T6.) The contract does not mention any other Pace entity unlike Unique Laundry Corp., 55 AD3d 382 (1st Dept 2008), a case relied upon by Pace. (NYSCEF 209, Pace Mechanical Corp. Contract with Automated; NYSCEF 270, Pace Mechanical Corp. Contract with Elite.) In Unique Laundry, plaintiff's registered name was "Unique Laundry Service, Inc." (Id.) The signature block read "Unique Laundry Corp.," a name that was never filed with the Secretary of State. (Id.) However, "Unique Laundry Service" appeared on the letterhead of the contract and thus plaintiff could proceed with the case. That the word "Pace" appears in the Pace Mechanical Corp. name does not save Pace's claim here. Pace's reliance on subsequent change orders with the proper Pace entity named is misplaced since the change orders are not mentioned in the Third-Party complaint. Moreover, the change orders begin with initial purchase order with Pace Mechanical Corp. Further, Pace's reliance on its merger between PCNY Inc. and a Delaware corporation having the same name with the surviving entity converted to a limited liability corporation named "The Pace Companies of New York, LLC" is also misplaced. (NYSCEF 286, Amended Third-Party Complaint ,T,T2-5.) This corporate merger has nothing to do with Pace Mechanical Corp. Finally, Pace cannot cure the problem by filing a certificate with the Secretary of State because the name Pace Mechanical Corp. contains the organizational modifier 650390/2020 BLDG 44 DEVELOPERS LLC vs. PACE COMPANIES NEW YORK, Motion No. 005 006 007 3 of 5 Page 3 of 5 [* 4] INDEX NO. 650390/2020 NYSCEF DOC. NO. 307 RECEIVED NYSCEF: 12/23/2021 "Corp." which is prohibited as a d/b/a by 19 NYCRR §156.4(c)(1 ). Indeed, Pace does not offer to do so, relying, instead, on its corporate merger theory. Accordingly, it is ORDERED that defendants are directed to submit the transcript to be so ordered; and it is further ORDERED that Third-Party Defendant Xtreme Mechanical Insulation, LLC's motion is denied and Xtreme is directed to file an answer within 30 days of the date of this decision. The remaining parties shall submit a PC Order on consent within 40 days. If the remaining parties cannot agree to a PC, the parties may submit competing parties. Proposed PCs shall be sent by email to SFC-Part48@nycourts.gov and efiled in NYSCEF. Remaining parties shall read the Part 48 rules; and it is further ORDERED that Third-Party Defendant Elite Consulting Systems Corp.'s motion to dismiss is granted and the action is dismissed against Elite in its entirety, with costs and disbursements to this defendant as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of this defendant; and it is further ORDERED that Third-Party Defendant Premier Insulation Services Corp.'s motion to dismiss is granted and the action is dismissed against Premier in its entirety, with costs and disbursements to this defendant as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of this defendant; and it is further ORDERED that Third-Party Defendant Automated Logic Corporation motion to dismiss is granted and the action is dismissed against Automoated in its entirety, with 650390/2020 BLDG 44 DEVELOPERS LLC vs. PACE COMPANIES NEW YORK, Motion No. 005 006 007 4 of 5 Page 4 of 5 [* 5] INDEX NO. 650390/2020 NYSCEF DOC. NO. 307 RECEIVED NYSCEF: 12/23/2021 costs and disbursements to this defendant as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of this defendant; and it is further ORDERED that the action is severed and continued against the remaining defendant; and it is further ORDERED that the caption be amended to reflect the dismissal and that all future papers filed with the court bear the amended caption; and it is further ORDERED that counsel for the moving party shall serve a copy of this order with notice of entry upon the Clerk of the Court (60 Centre Street, Room 141 B) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119), who are directed to mark the court's records to reflect the change in the caption herein; and it is further ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh)]. 12/23/2021 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ANDREA MASLEY, J.S.C. ~ CASE DISPOSED GRANTED • NON-FINAL DISPOSITION DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 650390/2020 BLDG 44 DEVELOPERS LLC vs. PACE COMPANIES NEW YORK, Motion No. 005 006 007 5 of 5 • • OTHER REFERENCE Page 5 of 5

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