Opinion
No. 014338–08.
2009-07-31
FERRANDINO & SON, INC., Plaintiff, v. WHEATON BUILDERS, INC., LLC and HE2 Project Development, LLC, Defendants. Wheaton Builders, Inc., LLC, Third Party Plaintiff, Utica Mutual Insurance Company, Third Party Defendants, Ferrandino & Son, Inc., Plaintiff, Utica Mutual Insurance Company and Wheaton Builders, Inc., LLC, Defendants. Utica Mutual Insurance Co., Plaintiff, Ferrandino & Son, Inc., Ferrandino & Son Environmental, Inc., Kaf Realty, Inc., Giavanna Realty, Inc., Peter Ferrandino, and Karen Ferrandino, Defendants. Ferrandino & Son, Inc., Plaintiff, v. Utica Mutual Insurance Company and Wheaton Builders, Inc., LLC, Defendants. Supreme Court Of The State Of New York County Of Oneida. Utica Mutual Insurance Co., Plaintiff, v. Ferrandino & Son, Inc., Ferrandino & Son Environmental, Inc., KAF Realty, Inc., Giavanna Realty, Inc., Peter Ferrandino, and Karen Ferrandino, Defendants.
Gathman & Bennett, LLP, for Plaintiff. Furman, Kornfeld & Brennan, LLP, Herrick & Feinstein, Esqs., Westermann Sheehy Keenan Samaan & Aydelott, LLP, for Defendant.
Gathman & Bennett, LLP, for Plaintiff. Furman, Kornfeld & Brennan, LLP, Herrick & Feinstein, Esqs., Westermann Sheehy Keenan Samaan & Aydelott, LLP, for Defendant.
TIMOTHY S. DRISCOLL, J.
Papers Read on these Motions:
By Decision dated March 12, 2009, the Court (Austin, J.) granted a motion to join these actions for trial, and directed that the new caption would be as it appears above.
Notice of Motion, Affirmation in Support, Affidavit in Support and Exhibits ... x Rule 19a Statement.........................x
Notice of Motion, Affidavit in Support, Amended Complaint and Exhibits ....... x
Memorandum of Law in Support of Defendant HE2's Motion to Dismiss..........x Defendant Wheaton Builders' Memorandum of Law in Opposition.........................x Notice of Cross Motion, Affirmation in Opposition/Support, Affidavit of P. Ferrandino and Exhibits .........................x Affirmation of M. Kuzow.........................x Reply Affidavit.........................x Reply Affirmation in Response Affidavit of P. Ferrandino and Exhibits...........x
Affidavit of S. Levine and Exhibits.........................x
These matters are before the Court for decision on 1) the motion filed by Plaintiff Ferrandino & Son, Inc. (“Ferrandino” or “Plaintiff”) in Action Number 2 on November 3, 2008, 2) the motion filed by Defendant HE2 Project Development, LLC (“HE2”) in Action Number 1 on November 3, 2008, and 3) the cross motion filed by Ferrandino on January 14, 2009 in Action Number 1, all three of which were submitted on May 28, 2009.
For the reasons set forth below, the Court 1) denies Ferrandino's motion for summary judgment; 2) grants HE2's motion to dismiss the fourth and fifth causes of action in the amended complaint against HE2; and3) denies Ferrandino's motion for leave to serve a proposed second amended complaint.
This Court assumed responsibility for these cases, and these motions, on May 8, 2009.
BACKGROUND
A. Relief Sought
In its Motion, Ferrandino moves for summary judgment, pursuant to CPLR § 3212.
In its Motion, HE2 moves for an Order, pursuant to CPLR § 3211(a)(1)(7), dismissing the amended complaint (“Complaint”) against HE2.
In its Cross Motion, Ferrandino moves, pursuant to CPLR § 3025(b), for leave to serve a second amended complaint. B. The Parties' History
In February of 2007, Ferrandino and the Defendant Wheaton Builders, Inc., LLC (“Wheaton”), entered into an AIA Standard form contract, pursuant to which Ferrandino agreed to install—for the sum of $2.523 million—a concrete superstructure for a condominium complex located in Brooklyn, New York.
The foregoing AIA “A105” contract defines the operative “Contract Documents” as including: (1) “this Agreement” [the signed A105 form] “signed by the owner and contractor,” (2) certain attached Exhibits “A” through “H,” and (3) “AIA Document A205, General Conditions of the Contract for Construction of a Small Project, current edition.”
In conjunction with the contract, the Defendant Utica Mutual Insurance Company (“Utica”) issued a Subcontract Performance Bond in the sum of $2.523 million. The bond agreement identifies Wheaton as the “project construction manager” (Bond Cover Sheet), and further provides that the terms of the underlying subcontract were to be incorporated into the bond agreement. The bond agreement further states that Utica's surety obligations were to be contingent and conditioned upon the absence of “Construction Manager Default.” “Construction Manager Default” is defined as, inter alia, “[f]ailure of the Construction Manager, which has neither been remedied nor waived, to pay the Subcontractor or to perform and complete or comply with the other terms thereof.”
Significantly, Article 4 of the A105 form contract—which generally governs payment—has been edited with cross outs and refers the reader to a signed “Exhibit I” titled, “Contract Clarifications/Changes to AIA Standard [A105] form of Agreement * * *.' “ Exhibit “I” contains language that, “[p]rogress payments to be made on a monthly basis * * *.”
On or about May 22, 2008, Ferrandino submitted a progress payment application to Wheaton—“payment application 7”—in the principal sum of $400,000.00. The application was subsequently approved by Wheaton in mid-June 2007, in the reduced and adjusted amount of $328,292.10.
As the work progressed, the parties' relationship became increasingly strained as disagreements arose relating to Ferrandino's performance. Wheaton raised objections to quality and timeliness of Ferrandino's work product, while Ferrandino countered that any delays which ensued were attributable to Wheaton's inability to conclude preliminary foundation work and the issuance of various municipal “stop work” orders between November of 2006 and June of 2008. The parties were also embroiled in an ongoing disagreement with respect to the concrete “pour” and/or “turn over cycle” rate required by the contract.
By letter dated June 25, 2008, immediately after Ferrandino had poured concrete on the sixth floor, Wheaton formally notified Ferrandino that it was terminating the subcontract “for cause,” effective July 2, 2008, based on enumerated “substantial breaches” of the agreement. Wheaton advised Ferrandino that after “careful review”—and based on the concurring opinions of its Project Architect and Structural Engineer-it had determined that Ferrandino's work was faulty and that it would be unable to complete the project in accord with the contract specifications. The June 25 letter also provides that “[b]y copy of this letter and simultaneous delivery to your surety, Utica Mutual Insurance Company of a default notice we are hereby demanding that Utica Mutual Insurance Company step in and complete the balance of the Ferrandino contract Work.”
By separate letter dated July 3, 2008, Wheaton also advised Ferrandino that because of its allegedly defective work, and pursuant to “Section 7.3.2” of the AIA General Conditions form “A205”, it was exercising its “right to withhold payment in its entirety for Application 7.” Notably, the letter—which contains a litany of allegedly incomplete and/or defective work items—quotes section 7.3.2 as stating in part that the owner may withhold any Application for Payment in whole or in part, or, because of subsequently discovered evidence, may nullify all or part of an Application for Payment previously issued, because of, inter alia, a) defective Work not remedied and b) evidence that the work will not be completed within the contract Time. Significantly, Wheaton had previously sent a similar letter to Ferrandino in May of 2008 in which he cited the same provision and advised Ferrandino that, due to defective work that was not remedied, Wheaton was withholding Payment Number 6 and deposited that sum into an escrow account.
Upon receipt of Wheaton's June 25 and July 3 letters, Ferrandino's president—Peter Ferrandino—responded with a seven-page letter addressed to Wheaton's principal Steven Levine, which disputes Wheaton's factual claims of deficient performance. While Mr. Ferrandino's letter briefly objects to Wheaton's purportedly wrongful withholding of “Payment “7”, and generally demands payment of “all sums owed” (allegedly $838,735.00), the Ferrandino letter does not refer to section 7.3.2. Wheaton thereafter retained a new contractor to complete the work.
By summons and complaint (“Complaint”) dated August 2008, Ferrandino commenced the action (Action No. 2) against Wheaton and Utica. According to Ferrandino, by failing to make prompt and timely payment within the “monthly” period allegedly prescribed by the contract, Wheaton—as “Construction Manager”—breached the main contract and was therefore in “default” within the meaning of the Bond Agreement as well. At approximately the same time, Ferrandino commenced another, related action against Wheaton and HE2, an entity which, in that action, Ferrandino has identified as the “project manager” in connection with the job.
Ferrandino's allegations in Action No. 1 include that 1) Wheaten failed to deliver timely access to the job site; 2) several “stop work” orders were issued by the City of New York which delayed the preliminary foundation work; and 3) after Ferrandino poured concrete on the sixth floor, Wheaton wrongfully repudiated the contract and barred Ferrandino from the work site.
With respect to movant HE2, Ferrandino has alleged in its fourth cause of action that HE2 tortuously and in bad faith, induced Wheaton to breach the subcontract by deliberately making false statements to Wheaton about Ferrandino's job performance and misrepresenting the cement “pour cycle” requirements contained in the subcontract. Ferrandino's related, fifth cause of action asserts that HE2 and Wheaton both interfered with the subcontract, and then together maliciously conspired to terminate Ferrandino's contract rights so as to procure for themselves, among other things, certain unspecified “benefits and advantages” which supposedly flowed from “hiring a different Contractor.” C. The Parties' Positions
Ferrandino now moves for summary judgment and declaratory relief on its bond claim in Action No 2. Ferrandino submits that Wheaton has failed to fulfill a condition precedent under the surety bond, by failing to tender payments to Ferrandino pursuant to the contract, thereby terminating any obligation of the surety (Utica) or Ferrandino under the bond.
HE2 has moved pursuant to CPLR § 3211(a)(7) for dismissal of the fourth and fifth causes of action in Action No 1, submitting that the amended complaint fails to state a cause of action for tortious interference with a contract, or conspiracy based on the alleged tortious interference.
Finally, Ferrandino has cross moved—also in Action No 1—for leave to serve a second, amended complaint pursuant to CPLR § 3025(b). While submitting that the amended complaint is sufficient with respect to the counts against HE2, Ferrandino provides an affidavit of Peter Ferrandino dated January 7, 2009 that, Ferrandino submits, provides additional facts that should satisfy the Court as to the sufficiency of the amended complaint against HE2. RULING OF THE COURT A. Ferrandino's Motion for Summary Judgment
The party seeking summary judgment must establish an entitlement to judgment as a matter of law. Alvarez v. Prospect Hosp., 68 N.Y.2d 320 (1986); Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). If the party moving for summary judgment fails to establish a prima facie entitlement to judgment as a matter of law, the motion must be denied. Winegrad v. New York University Medical Center, 64 N.Y.2d 851 (1985); Widmaier v. Master Products, Mfg., 9 AD3d 362 (2d Dept.2004); and Ron v. New York City Housing Auth., 262 A.D.2d 76 (1st Dept.1999). CPLR § 3212(b) further requires that, in ruling on a motion for summary judgment, the court must determine if the movant's papers justify holding as a matter of law “that there is no defense to the cause of action or that the cause of action or defense has no merit.” In making this determination, the Court must view the evidence submitted by the moving party in a light most favorable to the non-movant. Marine Midland Bank, N.A. v. Dino & Artie's Automatic Transmission Co., 168 A.D.2d 610 (2d Dept.1990). The Court may only grant summary judgment when there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. Friends of Animals, Inc. v. Associated Fur Mfrs., 46 N.Y.2d 1065 (1979).
Ferrandino's summary judgment motion in Action No 2 is essentially based on the theory that: (1) payment “7” was allegedly due no later than June 30, 2007; (2) Wheaton's failure to make payment prior to June 30 constitutes a now irremediable, “construction manager default;” and (3) the presence of “construction manger default” constitutes the failure of a condition precedent to Utica's surety duty to act, thereby releasing it from its bond obligations as a matter of law. See generally, Oppenheimer & Co. v. Oppenheim, Appel, Dixon & Co., 86 N.Y.2d 685, 690 (1995). The Court disagrees.
Preliminarily, the Court finds that the parties' submissions are incomplete and inconclusive with respect to whether certain attachments and materials actually constitute the governing documents incorporated by reference into the parties' signed agreement. Indeed, both sides have produced and rely upon certain unsigned and/or “draft” documents which bear post-execution, AIA copyright creation dates.
For its part, Ferrandino has submitted, inter alia: (1) the signed, three-page AIA A105 contract form, (2) exhibits “A” through “H” thereto, as referenced in Article “1” of the A105 form, and (3) an unsigned, undated draft copy of the far lengthier, A205 “general conditions” form. Although the signed, A105 document incorporates the A205 “general conditions” form into the parties' agreement, the copy produced by Ferrandino is unexecuted, undated and conspicuously marked “draft” on each of its seven pages. Further, that document bears an AIA creation date of May, 2008—indicating that it was generated over a year after the parties' agreement was executed in February of 2007. Moreover, while the signed, A105 form provides that the “current” “AIA document A205” was to be incorporated by reference into the parties' agreement, it not clear to the Court whether the draft document attached to the complaint is the AIA form which was “current” when original contract documents were executed in February of 2007. In sum, the Court cannot determine whether that draft constitutes the final permutation which the parties actually incorporated into their agreement. See generally County of Orange v. Carrier Corp., 57 AD3d 601, 602 (2d Dept.2008) (doctrine of incorporation by reference requires that the paper to be incorporated into the written instrument by reference must be so described in the instrument that the paper may be identified beyond all reasonable doubt); Shark Information Services Corp. v. Crum and Forster Commercial Ins., 222 A.D.2d 251, 252 (1st Dept.1995) (same).
The Court's conclusion that summary judgment is inappropriate is buttressed by Wheaton's reliance on yet another and different, unsigned version of the same, A205 “general conditions” document—albeit one marked with edits and underlining. That document also bears a post-execution, AIA creation date of April, 2008. More significantly, Wheaton's conflicting version of the A205 “general conditions” form contains the disputed paragraph “7.3.2”—which was referred to in Wheaton's May and July, 2008 progress payment withholding notices, i.e., Wheaton's submission contains the “general condition” provision expressly authorizing the project owner to withhold progress payments based on, inter alia, “subsequently discovered evidence” of defective work. The “draft” version of the same, A205 document submitted by Ferrandino omits reference to section 7.3.2. In sum, although surety bonds—like all contracts—are to be strictly construed in accordance with their terms, Walter Concrete Const. Corp. v. Lederle Laboratories, 99 N.Y.2d 603, 605 (2003), a court cannot enforce a contract when, as here, it is unable to determine as a matter of law what the parties agreed to do. Mellen & Jayne, Inc. v. AIM Promotions, Inc., 33 AD3d 676, 678 (2d Dept.2006); see Matter of 166 Mamaroneck Ave. Corp. v. 151 E. Post Rd. Corp., 78 N.Y.2d 88, 91 (1991).
Nor is the Court persuaded by Ferrandino's assertion that, as a matter of law, section 7.3.2 was never made part of the parties' contract. Notwithstanding Ferrandino's current assertions relative to section 7.3.2., the record contains no contemporaneously generated, documentary evidence establishing that it ever previously made this claim, i.e., the claim that section 7.3.2. was simply not part of the subcontract. This is so despite the fact that Wheaton had previously withheld a prior progress payment—and expressly relied on the very same, A205 provision as its authority for doing so. Notably, a review of Mr. Ferrandino's July 7 letter, in which he discussed and analyzed various contract provisions, indicates that he was fully conversant with the agreement's terms and conditions.
Contrary to Ferrandino's reply assertions, Mr. Ferrandino's July 7, 2007 correspondence does not raise any relevant objection to Wheaton's reliance on section 7.3.2. Rather, that letter argues instead that Wheaton's “substantial breach” claims were factually incorrect. The July 7 letter does contain a one-sentence, concluding reference to Wheaton's withholding of progress payment 7—but that sentence neither mentions section 7.3.2, nor asserts at any point that the provision was never made part of the agreed-upon, general contract conditions. Nor does the Ferrandino letter specifically assert that the withholding of payment 7 was improper based upon Wheaton's alleged failure to timely remit that sum within the “monthly” payment deadline allegedly contained in the subcontract.
Significantly, because the parties to an agreement know best what they meant, the practical interpretation of a contract by the parties to it for any considerable period of time before it comes to be the subject of controversy is deemed of great, if not controlling, influence. Coliseum Towers Associates v. County of Nassau, 2 AD3d 562, 564 (2d Dept.2003); see also, Federal Ins. Co. v. Americas Ins. Co., 258 A.D.2d 39, 44 (1st Dept.1999). It is notable as well that the Bond agreement qualifies the definition of “construction manager default” by providing, in sum and substance, that conduct otherwise qualifying as a “default” may be subject to waiver.
In any event, Ferrandino's claims relative to the untimeliness of Wheaton's alleged progress payment lacks definitive support in the contract documents. As to “Payment,” the signed, AIA document A105 directs the reader to an attached, Exhibit “I”, which includes an unelaborated statement to the effect that “[p]rogress payments to be made on a monthly basis.” The foregoing contract language, however, does not prescribe a specific methodology establishing precisely how the monthly progress payments were to be made—much less from what specific event, date or occurrence the governing time period is to be measured. Moreover, because performance bonds are governed by the usual rules of construction of adhesion contracts, contractual time limitations contained therein are to be strictly construed against the surety. Incorporated Village of North Hills v. AVR Links Development Corp., 33 AD3d 588 (2d Dept.2006); Johnson City Cent. School Dist. v. Fidelity and Deposit Co. of Maryland, 226 A.D.2d 990, 993 (2d Dept.1996); see also Triboro Hardware & Supply Corp. v. Federal Ins. Co., 45 AD3d 134, 139–140 (2d Dept.2007).
Ferrandino also contends, inter alia, that there are internal inconsistencies in the conflicting “A205” document submitted by Wheaton, thereby undermining its potential authenticity as a final draft. Even if there is some merit to this assertion, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but rather must first affirmatively demonstrate the merit of its own claim or defense. Fromme v. Lamour, 292 A.D.2d 417 (2d Dept.2002); see also, Vittorio v. U–Haul Co., 52 AD3d 823 (2d Dept.2008); Falah v. Stop & Shop Companies, Inc., 41 AD3d 638 (2d Dept.2007). In sum, triable issues of fact have been presented with respect to the parties' contract and bond agreement which cannot be summarily resolved upon the submissions currently before the Court. Accordingly, the Court dismisses Ferrandino's motion for summary judgment. B. HE2's Motion to Dismiss
HE2 moves to dismiss the complaint, as applicable to HE2, in Action No. 1 pursuant to CPLR § 3211(a)(7). For the reasons set forth below, the Court grants that motion.
It is well-settled that the Court must deny a motion to dismiss the Complaint under CPLR § 3211(a)(7) for failure to state a cause of action if the factual allegations contained in the Complaint constitute a cause of action cognizable at law. Guggenheimer v. Ginzburg, 43 N.Y.2d 268 (1977); 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144 (2002). When entertaining such an application, the Court must liberally accept the pleading, and accept the facts alleged as true and accord to the Plaintiff every favorable inference which may be drawn therefrom. Leon v. Martinez, 84 N.Y.2d 83 (1994).
HE2's motion involves only Ferrandino's fourth and fifth causes of action in its complaint in Action No. 1. Those causes of action allege that HE2 tortiously induced Wheaton to breach the subcontract, and that Wheaton and HE2 entered into a conspiracy to maliciously terminate Plaintiff's contractual rights. Neither of these allegations states a cause of action
To succeed on a cause of action to recover damages for tortious interference with contract, the plaintiff must establish, inter alia, the existence of a valid contract between it and a third party, and that the defendant intentionally procured the third party's breach of that contract without justification. Dome Property Management, Inc. v. Barbaria, 47 AD3d 870, 871 (2d Dept.2008); see Lama Holding Co. v. Smith Barney Inc., 88 N.Y.2d 413, 424 (1996); Foster v. Churchill, 87 N.Y.2d 744 (1996); Alvord and Swift v. Stewart M. Muller Const. Co., Inc., 46 N.Y.2d 276, 281–282 (1978); Trans–World Trading, Ltd. v. North Shore University Hosp. at Plainview, ––– AD3d ––––, 2009 Slip Op. 5958 (2d Dept., July 21, 2009) (lower court properly denied plaintiff's motion for leave to amend complaint to add cause of action for tortious interference). The plaintiff must also allege that the contract would not have been breached ‘but for’ the defendant's conduct. This is a strict pleading requirement. Burrowes v. Combs, 25 AD3d 370, 373 (1st Dept.2006); Schuckman Realty, Inc. v. Marine Midland Bank, N.A., 244 A.D.2d 400, 401 (2d Dept.1997); Washington Ave. Associates, Inc. v. Euclid Equipment, Inc., 229 A.D.2d 486, 487 (2d Dept.1996); M.J. & K. Co., Inc. v. Matthew Bender and Co., Inc., 220 A.D.2d 488, 490 (2d Dept.1995)see also, 68 Burns New Holding, Inc. v. Burns Street Owners Corp., 18 AD3d 857, 858 (2d Dept.2005); Risley v. Rubin, 272 A.D.2d 198, 199 (1st Dept.2000). Finally, although the Court must construe the allegations in the complaint liberally on a motion to dismiss, a plaintiff must support his claim with more than mere speculation to avoid dismissal of a claim based on tortious interference with contract. Burrowes v. Combs, supra, at 373; Chestnut Hill Partners, LLC v. Van Raalte, 45 AD3d 434, 435 (1st Dept.2007); see also, R.I. Island House, LLC v. North Town Phase II Houses, Inc., 51 AD3d 890, 896 (2d Dept.2008); Black Car and Livery Ins., Inc. v. H & W Brokerage, Inc., 28 AD3d 595 (2d Dept.2006).
Here, even construing plaintiff's allegations liberally as it must, New York Civil Liberties Union v. State, 4 NY3d 175, 180 (2005); Blume v. A & R Fuels, Inc., 32 AD3d 811, 812 (2d Dept.2006), the Court concludes that the claims that Ferrandino advances are speculative and conclusory. Burrowes v. Combs, supra, at 373; Edward B. Fitzpatrick, Jr. Const. Corp. v. Suffolk County, 138 A.D.2d 446, 449 (2d Dept.1988). More particularly, Ferrandino's amended complaint relies on attenuated assertions and general conclusions to establish a purported causative link between HE2's conduct and Wheaton's alleged breach of the subcontract. S.A.E. Motor Parts Co., Inc. v. Tenenbaum, 226 A.D.2d 518, 519 (2d Dept.1996); Coughlin v. Neefus, 153 A.D.2d 78, 81 (3d Dept.1990); Edward B. Fitzpatrick, Jr. Const. Corp. v. Suffolk County, supra. Ferrandino advances the theory that, inter alia, HE2 wrote a disparaging letter to Wheaton in April of 2008, which inaccurately assessed its job performance and misconstrued relevant “pour cycle,” contract requirements. These claims—even as amplified by the affidavits submitted on the motion, Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635 (1976)—offer no more than scant speculation and unelaborated conjecture in support of the theory that HE2's negative statements wrongfully induced Wheaton to breach the subcontract. Burrowes v. Combs, supra, at 373; see J.S. Gourmet, Inc. v. Bretton Woods Home Owners Ass'n, Inc., 11 AD3d 583, 586 (2d Dept.2004); Edward B. Fitzpatrick, Jr. Const. Corp. v. Suffolk County, supra.
Indeed, the amended complaint never plainly alleges that “but for” the offending conduct relied upon, Wheaton would not have terminated the contract. Burrowes v. Combs, supra, at 373. Nor does the record otherwise support the unstated implication that, absent HE2's allegedly wrongful conduct, the alleged breach would not have occurred.
The parties' roles with respect to the performance of the contract further dilute the inference that HE2's unlawfully or tortiously procured Wheaton's alleged breach. Actionable interference must be intentional, not merely negligent or incidental to some other, lawful, purpose. Don King Productions, Inc. v. Smith, 47 Fed.Appx. 12, 15 (2d Cir.2002); see Alvord and Swift v. Stewart M. Muller Const. Co., Inc., supra, 46 N.Y.2d at 281–282. Here, HE2 was not a stranger to the transaction that gratuitously imparted negative commentary with no ostensible, lawful purpose. To the contrary, Ferrandino's own complaint describes HE2 as the “project manager” responsible for “supervising construction operations”—a contractual function which, as depicted by Ferrandino itself, entailed construction oversight, and presumably, the monitoring, supervision and/or evaluation of contractor performance. Thus, HE2 was necessarily involved with the interactions among the parties and would be expected to express opinions about the quality and progress of the work.
Further undermining Ferrandino's assertions of tortious intent are two pre-termination letters attached to Wheaton's opposition papers authored by the consulting architect and engineering firm. These letters—one of which was written in November of 2007—describe Ferrandino's work as inadequate and substandard.
In sum, the allegations advanced here—and the transactional history chronicled by the documents submitted—depict no more than the typical sort of discord encountered in construction disputes where delays and complications have soured the parties' working relationship. E.g., Alvord and Swift v. Stewart M. Muller Const. Co., Inc., supra. In light of the foregoing, the Court concludes that the fourth cause of action in the complaint fails to state a cause of action against HE2 for tortious interference.
The fifth cause of action, sounding in conspiracy, essentially repeats and recasts the same tortious interference theory set forth in the fourth cause of action—albeit with a permutation that the Defendants' conspiratorial objective was to procure for themselves the benefit of hiring a different Contractor. The complaint alleges that Wheaton and HE2 conspired to induce a breach of the contract (to which Wheaton was already a party)—and that, with the knowledge and consent of Wheaton, HE2 made the allegedly false claims included, inter alia, in its April 16, 2008 letter to Wheaton. This cause of action is also deficient as a matter of law.
New York does not recognize an independent cause of action for civil conspiracy to commit a tort. Salvatore v. Kumar, supra, 45 AD3d at 563;Laura Corio, M.D., PLLC v. R. Lewin Interior Design, Inc., 49 AD3d 411, 412 (1st Dept.2008); see also Small v. Lorillard Tobacco Co., Inc., 94 N.Y.2d 43, 57 (1999); Alexander & Alexander of New York, Inc. v. Fritzen, 68 N.Y.2d 968, 969 (1986); Cash v. Titan Financial Services, Inc., 58 AD3d 785, 787 (2d Dept.2009); Sokol v. Addison, 293 A.D.2d 600, 601 (2d Dept.2002); Pappas v. Passias, 271 A.D.2d 420, 421 (2d Dept.2000). Rather, such claim stands or falls with the underlying tort, in this case Ferrandino's tortious interference claim. Salvatore v. Kumar, 45 AD3d 560 (2d Dept.2007); Sokol v. Addison, supra; Pappas v. Passias, supra. Ferrandino's conspiracy claim is plainly derivative of its underlying tortious interference claim. In light of the Court's decision to dismiss the tortious interference claim, therefore, the dismissal of the conspiracy claim is similarly warranted. Salvatore v. Kumar, supra.
The Court is not persuaded by Ferrandino's assertion that the “thrust” of the fifth cause of action differs from the fourth cause of action because “the Fifth Cause of Action is directed toward the Bond claim asserted on behalf of Wheaton as against Ferrandino and [Utica] as Bond surety.” The relevant allegations make no meaningful reference to any conspiratorial effort to generate a bond claim, but rather, state that the objective of the conspiracy was to terminate Ferrandino's contract rights and/or to secure the undescribed “benefits and advantages” flowing from the retention of another contractor.
In light of the above, the Court concludes that counts four and five fail to state a cause of action against HE2 and grants HE2's motion to dismiss those counts as to HE2. C. Ferrandino's Motion for Leave to Serve a Second Amended Complaint
Lastly, Ferrandino has cross moved for leave to serve the proposed, second amended complaint attached to its motion papers. While leave to amend is to be freely given, CPLR § 3025(b); see Edendale Contr. Co. v. City of New York, 60 N.Y.2d 957, 959 (1983); Kinzer v. Bederman, 59 AD3d 496, 497 (2d Dept.2009), a court should nevertheless deny the motion when, inter alia, the insufficiency and lack of merit of the plaintiff's proposed amendment are clear and free from doubt. See Lucid v. Mancuso, 49 AD3d 220, 226–227 (2d Dept.2008); Norman v. Ferrari, 107 A.D.2d 739, 740 (2d Dept.1985); Kinzer v. Bederman, supra; Rosenblum v. Frankl, 57 AD3d 960, 961 (2d Dept.2008); Scofield v. DeGroodt, 54 AD3d 1017, 1018 (2d Dept.2008); Smith–Hoy v. AMC Property Evaluations, Inc., 52 AD3d 809, 811 (2d Dept.2008).
Additionally, a plaintiff must demonstrate that the proposed amendments to the complaint are not palpably insufficient or patently devoid of merit. Zeleznik v. MSI Const., Inc., 50 AD3d 1024, 1025 (2d Dept.2008); see Brunetti v. Musallam, 59 AD3d 220, 223 (1st Dept.2009); Lucido v. Mancuso, supra; Joyce v. McKenna Associates, Inc., 2 AD3d 592 (2d Dept.2003); Ripepe v. Crown Equipment Corp., 293 A.D.2d 462, 463 (2d Dept.2002). This is particularly so where, as here, the application was made in response to a motion to dismiss. Clark v. Trois, 21 AD3d 439, 400 (2d Dept.2005); see Darbonne v. Goldberger, 31 AD3d 693, 696 (2d Dept.2006). The decision whether to grant leave to amend a pleading rests within the court's discretion. Pergamino v. Roach, 41 AD3d 569, 572 (2d Dept.2007).
The Court, in its discretion, concludes that the tortious interference and civil conspiracy claims are still plainly lacking in sufficiency and merit. See Zeleznik v. MSI Const., Inc., supra; Trans–World Trading, Ltd. v. North Shore University Hosp. at Plainview, supra; Chestnut Hill Partners, LLC v. Van Raalte, supra, at 435; Lupski v. County of Nassau, 32 AD3d 997, 999 (2d Dept.2006); Laura Corio, M.D., PLLC v. R. Lewin Interior Design, Inc., supra, 49 AD3d at 412. Accordingly, the Court denies Ferrandino's motion for leave to serve a second amended complaint.
The Court has considered Ferrandino's remaining contentions and concludes that they are lacking in merit.
Accordingly, it is,
ORDERED, that the motion of Plaintiff–Ferrandino for summary judgment, pursuant to CPLR § 3212, in Action No 2 is denied; and it is further,
ORDERED that the motion of Defendant–HE2 for an Order, pursuant to CPLR § 3211(a)(7), dismissing the fourth and fifth causes of action against HE2 in Action No 1 is granted; and it is further,
ORDERED that the cross motion of Plaintiff–Ferrandino, pursuant to CPLR § 3025(b), for leave to serve a proposed, second amended complaint in Action No 1 is denied.
All matters not decided herein are hereby denied. This constitutes the decision and order of the Court.
The Court reminds counsel of their required appearance at the conference before the Court on August 3, 2009 at 9:30 a.m.