Opinion
Index No. 150702/2019 Motion Seq. No. 006
08-11-2023
O'KEEFFE'S INC. D/B/A SAFTI FIRST, Plaintiff, v. 400 TIMES SQUARE ASSOCIATES, LLC,BRF CONSTRUCTION CORP., SCOTT 42 DEVELOPMENT, LTD, CACTUS ON NINTH, LLC, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NES EQUIPMENT SERVICES CORPORATION D/B/A NES RENTALS, KENSEAL CONSTRUCTION PRODUCTS OF MARYLAND INC. N/K/A HD SUPPLY CONSTRUCTION SUPPLY, LTD., TANNER BOLT & NUT INC., FENSTE INC Defendants.
Unpublished Opinion
MOTION DATE 03/31/2023
DECISION + ORDER ON MOTION
JOEL M. COHEN, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 006) 205, 206, 207, 208, 209, 210, 211,212, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 224, 225, 226, 227, 228, 229, 230, 231,232, 233, 234, 235, 236, 237, 238, 239, 240, 241, 242, 243, 244, 245, 246, 247, 248, 249,250,251,252, 253, 254, 255, 256, 257, 258 were read on this motion to AMEND COMPLAINT
Plaintiff O'Keeffe's Inc. d/b/a Safti First's ("Plaintiff' or "O'Keeffe's") motion to amend is granted. Defendants 400 Times Square Associates, LLC ("400 Times Square") and BRF Construction Corp.'s ("BRF Construction" [collectively "Defendants"]) cross-motion for summary judgment vacating Plaintiff s notice of lien and notice of pendency is denied as moot.
In light of Plaintiff's discontinuance of its claim to foreclose on its lien, Plaintiff should take any steps necessary to ensure that the lien and notice of pendency are withdrawn.
BACKGROUND
Plaintiff claims it was not paid for fire-rated glass and framing products it provided for a construction project at 400 W. 42nd Street. Defendants, the owner and general contractor, claim Plaintiff was paid. Significant discovery has been completed by the parties.
Plaintiff moves for leave to file an Amended Verified Complaint. The proposed Amended Verified Complaint seeks to add additional defendants; assert additional factual allegations; withdraw the Second Cause of Action to foreclose on a mechanics lien; and add quasi-contract causes of action for quantum meruit, promissory estoppel and conversion (NYSCEF 207 [redline of Proposed Amended Complaint]). Defendants oppose and cross-move for summary judgment vacating Plaintiffs notice of lien and notice of pendency.
The Court granted Defendants' request to submit a reply brief in further support of their cross-motion (NYSCEF 255, 257).
The majority of Defendants' reply was an unauthorized sur-reply to Plaintiffs motion to amend. On May 17, 2023, Plaintiff objected to Defendants' reply (NYSCEF 258). The Court will not consider the Reply other than Point III (Comm. Div. Rule 18 [22 NYCRR 202.70]).
DISCUSSION
CPLR 3025(b) provides that "[a] party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court." "Motions for leave to amend should be freely granted, absent prejudice or surprise ... unless the proposed amendment is palpably insufficient or patently devoid of merit" (MBIA Bis. Corp, v Greystone & Co., Bic., 74 A.D.3d 499, 499 [1st Dept 2010] [citations omitted]). The movant "need not establish the merit of its proposed new allegations" (Id. citing Lucido v Mancuso, 49 A.D.3d 220, 227 [2d Dept 2008]), as long as the proposed claims pass the threshold of basic legal sufficiency assuming the truth of the factual allegations (Olam Corp, v Thayer, 2021 N.Y. Slip Op. 30345[U] [N.Y. Sup Ct, New York County 2021]).
Here, Plaintiff seeks to assert quasi-contract claims in lieu of its lien foreclosure claim against Defendants. Plaintiff has submitted evidence and caselaw to support its contention that it can seek relief under quasi-contract theories (Blandford Land Clearing Corp. v Natl. Union Fire Ins. Co. of Pittsburgh, Pa., 260 A.D.2d 86, 94 [1st Dept 1999][collecting cases]). At this juncture, the Court does not find that the proposed amendment is "legally insufficient" on its face (Casanas v Casanas, 215 A.D.3d 443 [1st Dept 2023] citing Reyes v BSP Realty Corp., 171 A.D.3d 504, 504 [1st Dept 2019]). Thus, leave to amend is granted.
Finally, Defendants' cross-motion for summary judgment is moot in light of Plaintiff s amendment removing its lien foreclosure claim (Majuc v New York County Di st. Attorney's Off., 214 A.D.3d 563 [1st Dept 2023] citing Hearst Corp, v Clyne, 50 N.Y.2d 707, 714 [1980]).
Accordingly, it is
ORDERED that Plaintiffs motion to amend is GRANTED; it is further
ORDERED that Defendants motion for summary judgment is DENIED as moot; it is further
ORDERED that Plaintiff file its Amended Complaint within seven (7) days of this decision and order; it is further
ORDERED that Defendants respond to the Second Amended Complaint within twenty-one (21) days.
This constitutes the decision and order of the Court.