Resetarits Constr. Corp. v. Norfolk S. Ry. Co.

215 N.Y.S.3d 825

229 A.D.3d 1362

RESETARITS CONSTRUCTION CORPORATION, Plaintiff-Respondent,

v.NORFOLK SOUTHERN RAILWAY COMPANY, Defendant-Appellant, et al., Defendant.

Philadelphia Indemnity Insurance Company, Intervenor-Respondent. (Appeal No. 1.)

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: July 26, 2024

Appeal from an order of the Supreme Court, Erie County (Timothy J. Walker, A.J.), entered April 13, 2023. The order granted plaintiff’s motion seeking leave to file and serve a first amended complaint and granted Philadelphia Indemnity Insurance Company’s motion to intervene.

COHEN & FREY P.C., ARDMORE, PENNSYLVANIA (TIMOTHY L. FREY, ADMITTED PRO HAC VICE, OF COUNSEL), AND ZDARSKY, SAWICKI & AGOSTINELLI LLP, BUFFALO, FOR DEFENDANT-APPELLANT.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOSEPH J. MANNA OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

ADAMS LECLAIR LLP, ROCHESTER (THEODORE M. BAUM OF COUNSEL), FOR INTERVENOR-RESPONDENT.

PRESENT: WHALEN, P.J., CURRAN, BANNISTER, DELCONTE, AND HANNAH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: These consolidated appeals arise from a construction contract dispute between defendant Norfolk Southern Railway Company (Norfolk) and plaintiff, Resetarits Construction Corporation (RCC). In appeal No. 1, Norfolk appeals from an order that granted RCC’s motion for leave to file and serve a first amended complaint and further granted the motion of the surety on RCC’s performance bond, Philadelphia Indemnity Insurance Company (PIIC), to intervene in the action. In appeal No. 2, Norfolk appeals from an order that denied its motion to dismiss the third cause of action in the first amended complaint and, further, denied its motion to dismiss PIIC’s intervenor complaint. We affirm in both appeals.

[1–3] With respect to appeal No. 1, "‘[l]eave to amend a pleading should be freely granted in the absence of prejudice to the nonmoving party where the amendment is not patently lacking in merit’" (DiGiacco v. Grenell Is, Chapel, 210 A.D.3d 1466, 1467, 176 N.Y.S.3d 818 [4th Dept. 2022]; see CPLR 3025 [b]), and "the decision whether to grant leave to amend a [pleading] is committed to the sound discretion of the court" (Brooks v. City of Buffalo, 209 A.D.3d 1270, 1271, 175 N.Y.S.3d 808 [4th Dept. 2022] [internal quotation marks omitted]), the exercise of which "will not be lightly disturbed" (Yonkers Lodging Partners, LLC v. Selective Ins. Co. of Am., 158 A.D.3d 732, 735, 72 N.Y.S.3d 104 [2d Dept. 2018]). The first amended complaint sought to add a third cause of action, for a judgment declaring that Norfolk terminated the underlying contract improperly or for convenience, either of which would, inter alia, vitiate Norfolk’s counterclaim for breach of contract seeking cure damages (see Paragon Restoration Group, Inc. v. Cambridge Sq, Condominiums, 42 A.D.3d 905, 906, 839 N.Y.S.2d 658 [4th Dept. 2007]; Fruin-Colnon Corp. v. Niagara Frontier Transp. Auth., 180 A.D.2d 222, 233, 585 N.Y.S.2d 248 [4th Dept. 1992]). Inasmuch as the proposed amendment is not patently lacking in merit, we reject Norfolk’s contention that Supreme Court abused its discretion in granting RCC’s motion for leave to amend its complaint.

[4–6] Norfolk also contends that the court abused its discretion in granting PIIC’s motion to intervene because that motion was untimely. We reject that contention. "[A] timely motion for leave to intervene should be granted … where the intervenor has a real and substantial interest in the outcome of the proceedings" (Jones v. Town of Carroll, 158 A.D.3d 1325, 1327, 72 N.Y.S.3d 657 [4th Dept. 2018], lv dismissed 31 N.Y.3d 1064, 77 N.Y.S.3d 332, 101 N.E.3d 974 [2018] [internal quotation marks omitted]). " In examining the timeliness of [a] motion [to intervene], courts do not engage in mere mechanical measurements of time, but consider whether the delay in seeking intervention would cause a delay in resolution of the action or otherwise prejudice a party’ " (id. at 1328, 72 N.Y.S.3d 657). We conclude that the court properly granted PIIC’s motion inasmuch as PIIC’s intervention "will not delay resolution of the action and [Norfolk] will not suffer prejudice" (id.; see Poblocki v. Todoro, 55 A.D.3d 1346, 1347, 865 N.Y.S.2d 448 [4th Dept. 2008]; Matter of Norstar Apts., Inc. v. Town of Clay, 112 A.D.2d 750, 751, 492 N.Y.S.2d 248 [4th Dept. 1985]).

With respect to appeal No. 2, Norfolk failed to preserve for our review its contention that RCC’s third cause of action seeking a declaratory judgment should be dismissed pursuant to CPLR 3211 (a) (4) because of a prior pending federal action between Norfolk and PIIC in which Norfolk seeks to enforce the surety bond (see generally Henry v. Buffalo Mgt. Group, Inc., 218 A.D.3d 1233, 1234, 193 N.Y.S.3d 522 [4th Dept. 2023]).

[7–11] We reject Norfolk’s contention that the court erred in denying its motion to dismiss the declaratory judgment cause of action pursuant to CPLR 3211 (a) (3) for lack of standing. "Where a CPLR 3211 (a) (3) motion is based upon an alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff’s lack of standing as a matter of law" (Wilmington Sav. Fund. Socy., FSB v. Matamoro, 200 A.D.3d 79, 89-90, 156 N.Y.S.3d 323 [2d Dept. 2021]). "To defeat a defendant’s motion to dismiss, the plaintiff has no burden of establishing its standing as a matter of law, but must merely raise a question of fact as to the issue" (id. at 90, 156 N.Y.S.3d 323; see Borrelli v. Thomas, 195 A.D.3d 1491, 1494, 151 N.Y.S.3d 275 [4th Dept. 2021]). "Standing is an element of the larger question of justiciability … The various tests that have been devised to determine standing are designed to ensure that the party seeking relief has a sufficiently cognizable stake in the outcome so as to cast[ ] the dispute in a form traditionally capable of judicial resolution" (Community Bd. 7 of Borough of Manhattan v. Schaffer, 84 N.Y.2d 148, 154-155, 615 N.Y.S.2d 644, 639 N.E.2d 1 [1994] [internal quotation marks omitted]; see Smith v. Hurley, 221 A.D.2d 981, 982, 634 N.Y.S.2d 334 [4th Dept. 1995]). "The most critical requirement of standing … is the presence of injury in fact—an actual legal stake in the matter being adjudicated" (Alloway v. Bowlmor AMF Corp., 188...