Preview
FILED: NEW YORK COUNTY CLERK 01/13/2020 09:04 AM INDEX NO. 450179/2019
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 01/13/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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GLSC 48, LLC,
Plaintiff, AFFIRMATION IN
OPPOSITION TO
-against- DEFENDANT’S MOTION
TO DISMISS
CORE CONTINENTAL CONSTRUCTION, LLC
and BEST RAYMOND, Before: Hon. Arthur Engoron
Defendants. Return Date: January 30, 2020
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DOUGLAS J. BILOTTI, an attorney duly admitted to practice law before the Courts of
the State of New York, affirms the following under penalties of perjury:
1. I am the attorney for the Plaintiff, GLSC 48, LLC in the above captioned action.
Accordingly, I am fully familiar with the facts and circumstances set forth herein.
2. I respectfully submit this Affirmation in opposition to Core Continental
Construction, LLC’s (“Defendant”) motion to dismiss the Second and Third Causes of Action in
Plaintiff’s Complaint as Defendant fails to meet its burden of proof. Specifically, Defendant’s
motion to dismiss:
(i) Plaintiff’s Second and Third Causes of Action on the grounds that they are allegedly
repetitive of Plaintiff’s First Cause of Action should be denied as it is an attempt to
limit Plaintiff’s right to pleading in the alternative which is permitted by both the
CPLR and supported by the decisions of the Court of Appeals. Defendant’s attempt
to prevent Plaintiff’s alternative pleading is especially problematic (and ineffective)
when Defendant’s Answer flatly denied each of the allegations of Plaintiff’s First
Cause of Action, including the existence of a contract between the parties;
(ii) Plaintiff’s Third Cause of Action for failure to state a cause of action as a result of
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Plaintiff’s inclusion of the word “professional”, should be denied as Defendant’s
argument, simply put, states that Plaintiff’s pleading in overly inclusive by its
inclusion of the word “professional”, rather than demonstrating that the pleading is
deficient as a result of its failure to plead each of the elements of a negligence cause
of action; and
(iii) Plaintiff’s Third Cause of Action based upon statute of limitations should be denied
as the date upon which Defendant alleges that Plaintiff’s cause of action accrued is
inaccurate.
3. Each of the items summarized above is more fully addressed herein, and form the
basis of the denial of Defendant’s motion in its entirety.
FACTUAL AND PROCEDURAL BACKGROUND
4. For purposes of this motion, Plaintiff accepts Defendant’s recitation of facts for the
factual and procedural background of this action.
STANDARD OF REVIEW
5. The standard of review on a motion to dismiss pursuant to CPLR 3211(a)(7) has
been repeatedly and consistently framed as follows:
When determining a motion to dismiss, the court must “accept the
facts as alleged in the complaint as true, accord plaintiffs the benefit
of every possible favorable inference, and determine only whether
the facts as alleged fit within any cognizable legal theory.”
Goldman v. Metro. Life Ins. Co., 5 N.Y.3d 561, 570-71 (2005) (citations omitted); see also GPS
Global Pkg. Sol’ns, LLC v. 151 W. 17th St. Condo., 93 A.D.3d 463 (1st Dep’t 2012).
6. Defendant’s motion should be denied as it fails to meets its burden on a motion to
dismiss. Defendant does not demonstrate, or even allege, that Plaintiff’s Second and Third Causes
of Action do not “fit within any cognizable legal theory.” Instead, in an attempt to deny Plaintiff’s
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right to pleading in the alternative, Defendant states that the Plaintiff’s causes of action should be
denied as they are repetitive - - a necessity when multiple causes of arise out of the same set of
facts.
PLAINTIFF’S SECOND AND THIRD CAUSES OF ACTION
SHOULD NOT BE DISMISSED BECAUSE PLAINTIFF IS
ENTITLED TO PLEAD IN THE ALTERNATIVE
7. “Undeniably, a plaintiff is entitled to advance inconsistent theories in alleging a
right to recovery.” Cohn v. Lionel Corp., 21 N.Y.2d 559 (1968); see also CPLR §3014 (“Causes
of action or defenses may be stated alternatively or hypothetically.”) and CPLR §3017 (“Relief in
the alternative or of several different types may be demanded.”).
8. In New York University v. Continental Ins. Co., 87 N.Y.2d 308 (1995) the Court
of Appeals also recognized that several causes of action can arise out of the same set of facts when
it stated “[t]he very nature of a contractual obligation, and the public interest in seeing it performed
with reasonable care, may give rise to a duty of reasonable care in the performance of the contract
obligations, and the breach of that independent duty will give rise to a tort claim.”
9. Notwithstanding the language in the CPLR, as well as the decisions of the New
York State Court of Appeals permitting alternative pleading - - and permitted alternative causes of
action on a similar set of facts - - Defendant seeks to Plaintiff’s Second and Third Causes of Action.
10. In the event the language of the CPLR and Court of Appeals are not a sufficient
basis upon which to deny Defendant’s motion, in Joseph Sternberg, Inc. v. Walber 36th Street
Assoc., 187 A.D.2d 225 (1st Dept. 1993) the First Department overruled the trial court’s dismissal
of allegedly duplicative claims “where there is a bona fide dispute as to the existence of a contract
or where the contract does not cover the dispute in issue”.
11. A review of Plaintiff’s Complaint (see Defendant’s Exhibit “1”) and Defendant’s
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Answer (see Defendant’s Exhibit “2”) demonstrates “a bona fide dispute as the to the existence of
a contract”. Specifically, Plaintiff’s Complaint alleges at paragraph “6” thereof in pertinent part
as follows:
GLSC contracted with Core for Core to provide and perform all
work, labor, services and materials for the construction of the Hotel
as set forth in the AIA Document A101-1997, Conditions of the
Contract, Drawings, Specifications, Addenda, and other documents
relating to the construction project (“Construction Agreement”).
12. In its Answer, Defendant submitted a denial of all allegations regarding the
existence of a contract creating a bona fide dispute which would permit allegedly duplicative
claims as per the First Department’s decision in Joseph Sternberg, Inc., cited above. The pertinent
part of Defendant’s Answer is set forth below:
Defendant denies each and every allegation set forth in Paragraph
“6” of the Complaint, and further denies that Exhibit “A” annexed
thereto is a true and correct copy of an AIA Document A101-1997
executed by Plaintiff and Defendant.
13. Further, because the same set of facts may give rise to multiple causes of action,
the damages sought on those causes of action may also be similar, or the same. Plaintiff should
be entitled to maintain each of its causes of action, and the issue of duplicative claims can be
determined at a later point. As noted by the First Department it is the:
clear mandate of CPLR §§3014 and 3017 which permit, and in fact,
encourage pleading of claims and remedies in the alternative, as well
as New York practice which provides that the election of remedies,
if any, “need not be made until all the proof has been presented.”
Volt Systems Development Corp. v. Raytheon Co., 155 A.D.2d 309, 309 (1st Dept.
1989) (quoting 3 Weinstein-Korn-Miller, N.Y. Civ. Prac., par 3002.04 at 30-122
(1988).
14. By reason of the foregoing, it is respectfully submitted that Defendant’s motion be
denied in its entirety.
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PLAINTIFF DOES NOT SEEK TO ASSERT A
PROFESSIONAL MALPRACTICE CLAIM
15. Notwithstanding Defendant’s protestations, Plaintiff does not seek to assert a
professional malpractice claim against Defendant. Plaintiff’s Third Cause of Action is a claim for
negligence. Conspicuously absent from Defendant’s motion is any claim that Plaintiff failed to
assert the elements of a negligence cause of action. Rather, Defendant attacks the use of the
“professional” in the third cause of action. With the Court’s permission, Plaintiff will gladly
submit an amended pleading after removing the word “professional”. However, whether or not
the word “professional” remains in the pleading or not, the fact is that allegations in Plaintiff’s
complaint constitute a valid claim for negligence.
16. By reason of the foregoing, it is respectfully submitted that Defendant’s motion be
denied in its entirety.
PLAINTIFF TIMELY COMMENCED ACTION WITH RESPECT TO ITS
NEGLIGENCE CAUSE OF ACTION
17. Defendant’s claim that Plaintiff’s Third Cause of Action (negligence) should be
dismissed as this action was not timely commenced should also be denied. The fallacy in
Defendant’s argument is the date of the accrual of Plaintiff’s cause of action. Defendant
incorrectly uses the date that Defendant last performed work on the construction project as the
time from which Plaintiff’s negligence claim should begin to run. This is not a claim for a
mechanic’s lien where the date of last performance of services would be relevant. This is a
negligence cause of action, and the clock on the statute of limitations does not begin to run until
Plaintiff is damaged.
18. In Kronos, Inc. v AVX Corp., 81 NY2d 90 (1993) the Court of Appeals stated:
as a general proposition, a tort cause of action cannot accrue until an
injury is sustained (Schmidt v. Merchant Desp. Transp. Co., 270
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N.Y. 287, 300-301, supra; see generally, Siegel, NY Prac §40, at 47
[2d ed]). That, rather than the wrongful act of defendant or
discovery of the injury by plaintiff, is the relevant date for marking
accrual (Schmidt v. Merchants Desp. Transp. Co., supra, at 300).
The Statute of Limitations does not run until there is a legal right to
relief. Stated another way, accrual occurs when the claim becomes
enforceable, i.e., when all elements of the tort can be truthfully
alleged in a complaint (see, Jacobus v. Colgate, 217 N.Y. 235, 245;
Roldan v. Allstate Ins. Co., 149 A.D.2d 20, 26).
19. Accordingly, Defendant’s assessment of when the statute of limitations accrued in
this action is clearly incorrect. In order for the Defendant to demonstrate when the statute of
limitations began to run Defendant would need to show when Plaintiff sustained its injury.
Plaintiff was only aware of its injury when Defendant failed to remediate the work performed on
the building, and Plaintiff had to pay a third party to repair the work out of its pocket. Defendant
has not made such a demonstration, and cannot proffer any new evidence in its Reply papers.
20. Notwithstanding the absence of evidence supporting Defendant’s statute of
limitations defense, Plaintiff produces as Exhibit “A”1 hereto a copy of an Application for
Certification of Payment submitted by Manhattan Contracting Corp - - the company that repaired
Defendant’s work on the building - - demonstrating that Plaintiff and Manhattan Contracting Corp.
contracted for the remediation work on January 19, 2018. Plaintiff commenced this action less
than a month after the execution of the agreement with Manhattan Contracting Corp, and the
remediation work, and payments were made in 2018. Accordingly, the injury element of Plaintiff’s
cause of action did not accrue until 2018, and this action was commenced well within the statute
of limitations. Thus, the prevailing law, and documentary evidence produced demonstrate that
Defendant’s motion should be denied in its entirety.
21. By reason of the foregoing, it is respectfully submitted that Defendant’s motion
1
This exhibit was originally introduced by Samir R. Gandhi, a Manager of GLSC 48, LLC in his Affidavit of Facts
in support of default judgment sworn to March 13, 2019.
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should be denied in its entirety.
WHEREFORE, Plaintiff respectfully requests that the Court deny Defendant’s motion in
its entirety.
Dated: St. James, New York
January 13, 2020
_________________________________
DOUGLAS J. BILOTTI
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Preview
FILED: NEW YORK COUNTY CLERK 01/13/2020 09:04 AM INDEX NO. 450179/2019 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 01/13/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------X Index No. 450179/2019 GLSC 48, LLC, Plaintiff, AFFIRMATION IN OPPOSITION TO -against- DEFENDANT’S MOTION TO DISMISS CORE CONTINENTAL CONSTRUCTION, LLC and BEST RAYMOND, Before: Hon. Arthur Engoron Defendants. Return Date: January 30, 2020 -------------------------------------------------------------------X DOUGLAS J. BILOTTI, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following under penalties of perjury: 1. I am the attorney for the Plaintiff, GLSC 48, LLC in the above captioned action. Accordingly, I am fully familiar with the facts and circumstances set forth herein. 2. I respectfully submit this Affirmation in opposition to Core Continental Construction, LLC’s (“Defendant”) motion to dismiss the Second and Third Causes of Action in Plaintiff’s Complaint as Defendant fails to meet its burden of proof. Specifically, Defendant’s motion to dismiss: (i) Plaintiff’s Second and Third Causes of Action on the grounds that they are allegedly repetitive of Plaintiff’s First Cause of Action should be denied as it is an attempt to limit Plaintiff’s right to pleading in the alternative which is permitted by both the CPLR and supported by the decisions of the Court of Appeals. Defendant’s attempt to prevent Plaintiff’s alternative pleading is especially problematic (and ineffective) when Defendant’s Answer flatly denied each of the allegations of Plaintiff’s First Cause of Action, including the existence of a contract between the parties; (ii) Plaintiff’s Third Cause of Action for failure to state a cause of action as a result of 1 of 7 FILED: NEW YORK COUNTY CLERK 01/13/2020 09:04 AM INDEX NO. 450179/2019 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 01/13/2020 Plaintiff’s inclusion of the word “professional”, should be denied as Defendant’s argument, simply put, states that Plaintiff’s pleading in overly inclusive by its inclusion of the word “professional”, rather than demonstrating that the pleading is deficient as a result of its failure to plead each of the elements of a negligence cause of action; and (iii) Plaintiff’s Third Cause of Action based upon statute of limitations should be denied as the date upon which Defendant alleges that Plaintiff’s cause of action accrued is inaccurate. 3. Each of the items summarized above is more fully addressed herein, and form the basis of the denial of Defendant’s motion in its entirety. FACTUAL AND PROCEDURAL BACKGROUND 4. For purposes of this motion, Plaintiff accepts Defendant’s recitation of facts for the factual and procedural background of this action. STANDARD OF REVIEW 5. The standard of review on a motion to dismiss pursuant to CPLR 3211(a)(7) has been repeatedly and consistently framed as follows: When determining a motion to dismiss, the court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.” Goldman v. Metro. Life Ins. Co., 5 N.Y.3d 561, 570-71 (2005) (citations omitted); see also GPS Global Pkg. Sol’ns, LLC v. 151 W. 17th St. Condo., 93 A.D.3d 463 (1st Dep’t 2012). 6. Defendant’s motion should be denied as it fails to meets its burden on a motion to dismiss. Defendant does not demonstrate, or even allege, that Plaintiff’s Second and Third Causes of Action do not “fit within any cognizable legal theory.” Instead, in an attempt to deny Plaintiff’s 2 2 of 7 FILED: NEW YORK COUNTY CLERK 01/13/2020 09:04 AM INDEX NO. 450179/2019 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 01/13/2020 right to pleading in the alternative, Defendant states that the Plaintiff’s causes of action should be denied as they are repetitive - - a necessity when multiple causes of arise out of the same set of facts. PLAINTIFF’S SECOND AND THIRD CAUSES OF ACTION SHOULD NOT BE DISMISSED BECAUSE PLAINTIFF IS ENTITLED TO PLEAD IN THE ALTERNATIVE 7. “Undeniably, a plaintiff is entitled to advance inconsistent theories in alleging a right to recovery.” Cohn v. Lionel Corp., 21 N.Y.2d 559 (1968); see also CPLR §3014 (“Causes of action or defenses may be stated alternatively or hypothetically.”) and CPLR §3017 (“Relief in the alternative or of several different types may be demanded.”). 8. In New York University v. Continental Ins. Co., 87 N.Y.2d 308 (1995) the Court of Appeals also recognized that several causes of action can arise out of the same set of facts when it stated “[t]he very nature of a contractual obligation, and the public interest in seeing it performed with reasonable care, may give rise to a duty of reasonable care in the performance of the contract obligations, and the breach of that independent duty will give rise to a tort claim.” 9. Notwithstanding the language in the CPLR, as well as the decisions of the New York State Court of Appeals permitting alternative pleading - - and permitted alternative causes of action on a similar set of facts - - Defendant seeks to Plaintiff’s Second and Third Causes of Action. 10. In the event the language of the CPLR and Court of Appeals are not a sufficient basis upon which to deny Defendant’s motion, in Joseph Sternberg, Inc. v. Walber 36th Street Assoc., 187 A.D.2d 225 (1st Dept. 1993) the First Department overruled the trial court’s dismissal of allegedly duplicative claims “where there is a bona fide dispute as to the existence of a contract or where the contract does not cover the dispute in issue”. 11. A review of Plaintiff’s Complaint (see Defendant’s Exhibit “1”) and Defendant’s 3 3 of 7 FILED: NEW YORK COUNTY CLERK 01/13/2020 09:04 AM INDEX NO. 450179/2019 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 01/13/2020 Answer (see Defendant’s Exhibit “2”) demonstrates “a bona fide dispute as the to the existence of a contract”. Specifically, Plaintiff’s Complaint alleges at paragraph “6” thereof in pertinent part as follows: GLSC contracted with Core for Core to provide and perform all work, labor, services and materials for the construction of the Hotel as set forth in the AIA Document A101-1997, Conditions of the Contract, Drawings, Specifications, Addenda, and other documents relating to the construction project (“Construction Agreement”). 12. In its Answer, Defendant submitted a denial of all allegations regarding the existence of a contract creating a bona fide dispute which would permit allegedly duplicative claims as per the First Department’s decision in Joseph Sternberg, Inc., cited above. The pertinent part of Defendant’s Answer is set forth below: Defendant denies each and every allegation set forth in Paragraph “6” of the Complaint, and further denies that Exhibit “A” annexed thereto is a true and correct copy of an AIA Document A101-1997 executed by Plaintiff and Defendant. 13. Further, because the same set of facts may give rise to multiple causes of action, the damages sought on those causes of action may also be similar, or the same. Plaintiff should be entitled to maintain each of its causes of action, and the issue of duplicative claims can be determined at a later point. As noted by the First Department it is the: clear mandate of CPLR §§3014 and 3017 which permit, and in fact, encourage pleading of claims and remedies in the alternative, as well as New York practice which provides that the election of remedies, if any, “need not be made until all the proof has been presented.” Volt Systems Development Corp. v. Raytheon Co., 155 A.D.2d 309, 309 (1st Dept. 1989) (quoting 3 Weinstein-Korn-Miller, N.Y. Civ. Prac., par 3002.04 at 30-122 (1988). 14. By reason of the foregoing, it is respectfully submitted that Defendant’s motion be denied in its entirety. 4 4 of 7 FILED: NEW YORK COUNTY CLERK 01/13/2020 09:04 AM INDEX NO. 450179/2019 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 01/13/2020 PLAINTIFF DOES NOT SEEK TO ASSERT A PROFESSIONAL MALPRACTICE CLAIM 15. Notwithstanding Defendant’s protestations, Plaintiff does not seek to assert a professional malpractice claim against Defendant. Plaintiff’s Third Cause of Action is a claim for negligence. Conspicuously absent from Defendant’s motion is any claim that Plaintiff failed to assert the elements of a negligence cause of action. Rather, Defendant attacks the use of the “professional” in the third cause of action. With the Court’s permission, Plaintiff will gladly submit an amended pleading after removing the word “professional”. However, whether or not the word “professional” remains in the pleading or not, the fact is that allegations in Plaintiff’s complaint constitute a valid claim for negligence. 16. By reason of the foregoing, it is respectfully submitted that Defendant’s motion be denied in its entirety. PLAINTIFF TIMELY COMMENCED ACTION WITH RESPECT TO ITS NEGLIGENCE CAUSE OF ACTION 17. Defendant’s claim that Plaintiff’s Third Cause of Action (negligence) should be dismissed as this action was not timely commenced should also be denied. The fallacy in Defendant’s argument is the date of the accrual of Plaintiff’s cause of action. Defendant incorrectly uses the date that Defendant last performed work on the construction project as the time from which Plaintiff’s negligence claim should begin to run. This is not a claim for a mechanic’s lien where the date of last performance of services would be relevant. This is a negligence cause of action, and the clock on the statute of limitations does not begin to run until Plaintiff is damaged. 18. In Kronos, Inc. v AVX Corp., 81 NY2d 90 (1993) the Court of Appeals stated: as a general proposition, a tort cause of action cannot accrue until an injury is sustained (Schmidt v. Merchant Desp. Transp. Co., 270 5 5 of 7 FILED: NEW YORK COUNTY CLERK 01/13/2020 09:04 AM INDEX NO. 450179/2019 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 01/13/2020 N.Y. 287, 300-301, supra; see generally, Siegel, NY Prac §40, at 47 [2d ed]). That, rather than the wrongful act of defendant or discovery of the injury by plaintiff, is the relevant date for marking accrual (Schmidt v. Merchants Desp. Transp. Co., supra, at 300). The Statute of Limitations does not run until there is a legal right to relief. Stated another way, accrual occurs when the claim becomes enforceable, i.e., when all elements of the tort can be truthfully alleged in a complaint (see, Jacobus v. Colgate, 217 N.Y. 235, 245; Roldan v. Allstate Ins. Co., 149 A.D.2d 20, 26). 19. Accordingly, Defendant’s assessment of when the statute of limitations accrued in this action is clearly incorrect. In order for the Defendant to demonstrate when the statute of limitations began to run Defendant would need to show when Plaintiff sustained its injury. Plaintiff was only aware of its injury when Defendant failed to remediate the work performed on the building, and Plaintiff had to pay a third party to repair the work out of its pocket. Defendant has not made such a demonstration, and cannot proffer any new evidence in its Reply papers. 20. Notwithstanding the absence of evidence supporting Defendant’s statute of limitations defense, Plaintiff produces as Exhibit “A”1 hereto a copy of an Application for Certification of Payment submitted by Manhattan Contracting Corp - - the company that repaired Defendant’s work on the building - - demonstrating that Plaintiff and Manhattan Contracting Corp. contracted for the remediation work on January 19, 2018. Plaintiff commenced this action less than a month after the execution of the agreement with Manhattan Contracting Corp, and the remediation work, and payments were made in 2018. Accordingly, the injury element of Plaintiff’s cause of action did not accrue until 2018, and this action was commenced well within the statute of limitations. Thus, the prevailing law, and documentary evidence produced demonstrate that Defendant’s motion should be denied in its entirety. 21. By reason of the foregoing, it is respectfully submitted that Defendant’s motion 1 This exhibit was originally introduced by Samir R. Gandhi, a Manager of GLSC 48, LLC in his Affidavit of Facts in support of default judgment sworn to March 13, 2019. 6 6 of 7 FILED: NEW YORK COUNTY CLERK 01/13/2020 09:04 AM INDEX NO. 450179/2019 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 01/13/2020 should be denied in its entirety. WHEREFORE, Plaintiff respectfully requests that the Court deny Defendant’s motion in its entirety. Dated: St. James, New York January 13, 2020 _________________________________ DOUGLAS J. BILOTTI 7 7 of 7