Nouveau Elevator Indus., Inc. v. Tracey Towers Hous. Co.

Full title: NOUVEAU ELEVATOR INDUSTRIES, INC., Plaintiff, v. TRACEY TOWERS HOUSING…

Court: SUPREME COURT STATE OF NEW YORK COUNTY OF BRONX

Date published: Apr 25, 2011

2011 N.Y. Slip Op. 34037 (N.Y. Sup. Ct. 2011)

Opinion

Index No.:381012/09

04-25-2011

NOUVEAU ELEVATOR INDUSTRIES, INC., Plaintiff, v. TRACEY TOWERS HOUSING CO., INC., a/k/a TRACEY TOWERS CO., INC., TRACEY TOWERS ASSOCIATES a/k/a TRACEY TOWERS ASSOCIATES, LP; RY. MANAGEMENT CO., INC., LEON D. DEMATTEIS CONSTRUCTION CORPORATION; NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE; NEW YORK CITY ENVIRONMENTAL CONTROL BOARD; NEW YORK CITY PARKING VIOLATIONS BUREAU; NEW YORK CITY TRANSIT ADJUDICATION BUREAU and "JOHN DOE #1 through "JOHN DOE # 10", the last ten names being fictitious and unknown to the plaintiff, the person or parties intended being the person or parties, if any, having or claiming an interest in or lien upon the Mortgage premises described in the Complaint, Defendants.

Ben R. Barbato

Present: Honorable

DECISION/ORDER

The following papers numbered 1 to 22 read on a motion for an Order granting default judgment and setting the matter down for inquest, noticed on September 15, 2009; cross-motion for an Order to compel acceptance of Verified Answer with Counterclaims, noticed on October 15, 2009; motion for an Order appointing a temporary receiver noticed on November 2, 2009; motion for an Order dismissing Verified Complaint, noticed on November 4, 2009, and duly transferred March 1, 2011.

Papers Submitted	Numbered
Notice of Motion, Affirmation & Exhibits	1, 2, 3
Notice of Cross-Motion, Affirmation & Exhibits	4, 5, 6
Affirmation in Opposition & Exhibits	7, 8
Notice of Motion, Affirmation & Exhibits	9, 10, 11
Affirmation in Opposition	12
Reply Affirmation & Exhibit	13, 14
Notice of Motion, Affirmation & Exhibits	15, 16, 17

Memorandum of Law (Andriola)	18
Affirmation in Opposition & Exhibit	19, 20
Reply Affirmation & Exhibit	21, 22

Upon the foregoing papers, and after reassignment of this matter from Justice Edgar G. Walker on March 1, 2011, the above stated motions are hereby consolidated for the purposes of this decision. Plaintiff, Nouveau Elevator Industries, Inc.(Nouveau), seeks an Order pursuant to CPLR §3215 as against Defendants, Tracey Towers Housing Co., Inc., a/k/a Tracey Towers Co., Inc., Tracey Towers Associates a/k/a Tracey Towers Associates, LP ("TTA"); R.Y. Management Co.,Inc.( R.Y. Management), Leon D. Dematteis Construction Corporation (Dematteis); New York State Department of Taxation and Finance; New York City Environmental Control Board; New York City Parking Violations Bureau; New York City Transit Adjudication Bureau granting entry of a default judgment; Defendants, Tracey Towers Housing Co., Inc., a/k/a Tracey Towers Co., Inc., Tracey Towers Associates a/k/a Tracey Towers Associates, LP (TTA); R.Y. Management Co., Inc.( R.Y. Management), Leon D. Dematteis Construction (Dematteis) seek an Order pursuant to CPLR §3215 compelling Plaintiff to accept Defendants' Verified Answer with Counterclaims; Plaintiff seeks an Order appointing a temporary receiver of that property known as 20 West Mosholu Parkway South & 40 West Mosholu Parkway South, Bronx New York 10468 a/k/a Block: 3251, Lot 490; Defendants, R.Y. Management Co.,Inc. (R.Y. Management), Leon D. Dematteis Construction Corporation (Dematteis), seek an Order pursuant to CPLR §3211 dismissing Plaintiff's Verified Complaint as against them.

The above captioned matter alleges the breach of a contract and the foreclosure of a mechanic's lien. Plaintiff Nouveau asserts that on September 29, 2006 they entered into a contract with R.Y. Management to supply elevator maintenance, repairs, material and service for those buildings and/or properties described above and which are, along with the contract, the subject matter of this law suit. It is alleged that Tracey Towers holds legal title to the subject property as general partner of and on behalf of TTA. It is further alleged that Dematteis is also a general partner of TTA and that R.Y. Management, at the time of the contract, was the managing agent of the property. Plaintiff alleges that Defendants breached their contractual obligation to Plaintiff in that they have failed to pay, pursuant to demand, the sum of $2,314,955.43 alleged to be due and owing Nouveau pursuant to said contract. Plaintiff, by Summons and Verified Complaint dated May 6, 2009, commenced the instant law suit. Plaintiff now seeks a default judgment as against the named Defendants and the appointment of a Temporary Receiver.

Settlement discussion between Plaintiff and Defendants constitute a reasonable excuse for Defendants' failure to answer Plaintiff's Verified Complaint, see CPLR §3012 (d); also see Vasquez v. Beharry 82 A.D.3d 649 (1^st Dept 2011). Further contrary to Plaintiff's position and Defendants' presentation of a meritorious defense Defendant is not required to demonstrate the existence of such defense, see Verizon New York, Inc. v. Chase Construction Company Inc., 63 A.D. 3d 521 (1^st Dept. 2009).

With respect to that portion of Plaintiff s motion requesting the appointment of a temporary receiver the court notes the Affirmation submitted is upon information and belief and is devoid of any meaningful demonstration that assets are being diverted or wasted to warrant the appointment of a temporary receiver. Such relief is reserved for those instances where it is necessary for the protection of the parties to the action from suffering irreparable harm. There has been no such demonstration presented for this court's consideration. See DiBona v. General Rayfin Ltd.. 45 A.D.2d 696 (1^st Dept. 1974), In re Armienti, 309 A.D.2d 659 (1^st Dept. 2003); In Re Harrison Realty Corp., 295 A.D. 2d 220 (1^st Dept. 2002).

In determining whether Plaintiff's Verified Complaint pleads a viable cause of action as against the Defendants, R.Y, Management and Dematteis ". . . the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail." 1414 Realty Corp. v. G & G Realty Co., 272 A.D.2d 309 (2^nd Dept. 2000) citing Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275. A reading of the Verified Complaint identifies the Defendant R.Y. Management as a disclosed agent of Tracy Towers at the time of the signing of the subject contract. While it has been determined that an obligation to perform pursuant to a contract may attach to one not in privity the general rule requires privity or its equivalent for the imposition of liability for non performance, see Strauss v. Belle Realty Co., 65 N.Y.2d 399; also see Henry v. Guastella & Associates, 113 A.D.2d 435 (4^th Dept. 1985). Further, when an agent acts on behalf of a disclosed principal, the agent will not be personally liable for a breach of contract unless there is clear and explicit evidence of the agent's intention to be personally bound, see Savoy Record Co. v. Cardinal Export Corp., 15 N. Y.2d 1.

Therefore it is

ORDERED, that Plaintiff, Nouveau Elevator Industries, Inc.'s, motion for an Order pursuant to CPLR §3215 as against Defendants, Tracey Towers Housing Co., Inc., a/k/a Tracey Towers Co., Inc., Tracey Towers Associates a/k/a Tracey Towers Associates, LP ("TTA"); R.Y. Management Co.,Inc.( R.Y, Management), Leon D. Dematteis Construction Corporation (Dematteis); New York State Department of Taxation and Finance; New York City Environmental Control Board; New York City Parking Violations Bureau; New York City Transit Adjudication Bureau granting entry of a default judgment is denied it is further

ORDERED, that Plaintiff, Nouveau Elevator Industries, Inc.'s, motion for an Order appointing a temporary receiver for that property known as 20 West Mosholu Parkway South & 40 West Mosholu Parkway South, Bronx New York 10468 a/k/a Block: 3251, Lot 490 is denied it is further

ORDERED, that Defendants, Tracey Towers Housing Co., Inc., a/k/a Tracey Towers Co., Inc., Tracey Towers Associates a/k/a Tracey Towers Associates, LP ( TTA); R.Y. Management Co., Inc.( R.Y. Management), Leon D. Dematteis Construction (Dematteis) cross-motion for an Order pursuant to CPLR §3215 compelling Plaintiff to accept Defendants' Verified Answer with Counterclaims is granted it is further

ORDERED, that Defendants, R.Y. Management Co.,Inc. (R.Y. Management), Leon D. Dematteis Construction Corporation (Dematteis), motion for an Order pursuant to CPLR §3211 dismissing Plaintiff's Verified Complaint as against them is granted.

__________________________

Hon. Ben R. Barbato, A.J.S.C.