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David Christa Constr., Inc. v Board of Educ., Amityville Union Free School Dist. 2007 NY Slip Op 30337(U) March 14, 2007 Supreme Court, Suffolk County Docket Number: 0017403 Judge: Emily Pines Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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Short Form Order

Supreme Court - State of New York
Commercial Division, Part 46, Suffolk County
Moltion Date: Submit Date: MotionNo.:

o 8-2007 02-08-2007 009 MD

DAVID CHRISTA CONSTRUCTION, INC., Plaintiff,

ATTORNEYS Milber Makris Plousadis & Seiden LLP Three Barker Avenue, Sixth Floor White Plains, New York 10604

-against-

Action #1 Ernstrom &: Dreste, LLP Index Number: 17403-01 180 Canal View Blvd. Suite 600 Rochester, New York 14623-2849 Bruno, Gerlko & Soriano 445 Broad Hollow Road, Suite 220 Melville, New York 11747 Kernan Professional Group, Of Counsel 1310 Utica Street, Box 750 Oriskany, New York 13424

BOARD OF EDUCATION, AMITYVILLE UNION FREE SCHOOL DISTRICT; SPECTOR ASSOCIATES, LLP; INTERCOUNTY ROOFING CORP.; SUMART RESTORATION CORP.; ORISKA INSURANCE COMPANY; FERRAN DEVELOPMENT CORP.; HVAC INCORPORATED; AND EMPIRE INTERIOR SYSTEMS, INC., Defendants.
v

John E. Osbom, P.C. 245 Fifth Avenue, 2YdFloor New York, NY 10016
L'Abbate, Balkan, Colavita & Contini, LLP 1050 Franklin Avenue Garden City, New York 11530 O'Connor, Redd & Sklarin LLP
200 Mamaroneck Avenue

ORISIKA INSURANCE COMPANY,
Plaintiff, Action #2 Index Number 02360-01

-againstSPECTOR ASSOCIATES, LLP., s/h/a SPECTOR ARCHITECTS and DAVID CHRISTA CONSTRUCTION COMPANY, INC.,
Defendants.
v

White Plains, New York 10601 Canfield, Madden & Ruggiero, LLP 42-24 Douglaston Parkway Douglaston,,New York 11363 Russo, Fox & Karl 400 Townline Road Hauppauge, New York 11788

Defendant, ORISKA INSURANCE COMPANY ("ORISKA")moves, by Notice of Motion (motion sequence number 009) for an Order, pursuant to CPLR !S 3025(b), authorizing such Defendant to file and serve an Amended Answer to the Cross-Claims asserted against OR1,SKA in Action # 1, by

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Co-Defendant BOARD OF EDUCATION, AMITYVILLE UNION FEE SCHOOL DISTRICT ( "SCH30L DISTRICT") . The specific amendment sought would allow ORISKA to assert: the affirmative defenses of release,,waiver and estoppel against the SCHOOL DISTRICT, based on the fiact that ORISKA has tendered the SCHOOL DISTRICT the full amount of its performance bond. `This is a construction litigation, which arises out of a renovation project for the School District. ORISKA issued a performance bond for the roofing subcontractor, INTERCOUNTY ROOFING, INC. "IN'TERCOUNTY". ) Both INTERCOUNTY and subsequently ORISKA were declared in default by the SCHOOL DISTRICT and are named as Defendants in Action # 1, where the Plaintiff, general contractor, DAVID CHRISTA CONSTRUCTION, INC., has alleged that ORISKA's default and failure of perfo-mance caused damage to the general contractor, as well as to the SCHOOL DISTRICT`S property. In the SCHOOL DISTRICT`S Answer in Action # 1 , it alleged three Cross-Claims against ORI!;KA. These state, in 9ertinent part, that ORISKA, as surety, undertook to complete the 9erformanc:e of INTERCOUNTY`S work when INTERCOUNTY defaulted, that O R I S K A ' s work on the roof was faulty; and that ORISKA failed to (completeperformance of the project as required. Those claims were asserted against ORISKA on January 8, 2 0 0 3 . ORISKA served and filed an Answer- to the Cross-Claims, dated June 1 3 , 2 0 0 3 , in which it alleged six affirmative defenses and two counterclaims against the SCHOOL DISTRICT. Both counterclaims seek reimbursement from the SCHOOL DISTRICT for the amounts paid on the performance bond.
?he !SCHOOL DISTRICT opposes t h e motion, on t h e grounds of laches

and lack of merit. Specifically, the District asserts that ORISKA's irst Answer to its Cross-Claims was served in April, 2 0 0 3 and that ORISKFi has already moved and has been granted the opportunity to amend its pleading in its motion of July 10, 2 0 0 3 . According to the School 11istri.ct, the allegation that the bond was accepted "without :reservation" has been raised now for the first time almost. four years following ORISKA's first Answer. In the interim, the School District has engaged in extensive discovery. As argued, the assertion of new :?actual allegations at this stage is prejudicial to the SCHOOL DISTRICT, especially when ORISKA provides no evidentiary or factual

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support f o r its claims. In addition, the SCHOOL DISTRICT states that the defenses of waiver and release do not apply for amounts over and above the bond, where the surety has actually taken over the work of its principal, as ORISKA did in this case. In support of this assertiori, the SCHOOL DISTRICT annexes the deposition testimony of two SCHOOL DISTRICT witnesses setting forth evidence of ORISKA' s presence on the jobsite, following INTERCOUNTY'S default:. In Reply, ORISKA's counsel annexes proof of payment of the face amount of the bond and states that his client intends to dispute the SCHOOL DISTRICT'S assertion that ORISKA peirformed work on the construction project. dhile leave to amend a pleading is to be freely granted, in the absenze of surprise or prejudice and laches alone is insufficient cause for denial, an inordinate, unexplained delay coupled with lack of merit gives the Court little basis for granting such application. see, Comsewome Union Free School District v Allied-Trent Roofing. Systems Inc., 15A.D. 3d 523,790 N.Y.S. 2d 220 ( 2d Dep't 2005); Sewkarrenv DeBellis, 11A.D. 3d 445,783 N.Y.S. 2d

758 (2d Dep't 2004); SRN Corp. v Glass, 244 A.D. 2d 545,664 N.Y.S. 2d 357 (2d Dep't 1997).
dhile there is no dispute between the parties to this motion that ORISK4 paid the SCHOOL DISTRICT the penal sum of its bond, there is simpl-y. no excuse for the almost four year delay before the surety raised the issue which it seeks to interpose in an Amended Answer. Indeeld, the fact of the payment is set forth in ORISKA's April, 2003 Count?rclaims against the SCHOOL DISTRICT. Accordingly, the issue was clearly being considered when ORISKA interposed its first Answer, which it amended without opposition three months later. This fact is coupled with the argument set forth in the SCHOOL DISTRICT'S opposition papers that release and waiver will not apply to relieve a surety, when it has taken over the principal's contract, caused further problems to the roof, and defaulted itself, subjecting it to poten-ial liability in excess of the penal sum of the bond. see,

Internaitional Fidelitv Ins. Co. v Counw of Rockland, 98 F. Supp. 2d 400 (S.D.N.Y. 2000).
' ' e party seeking leave to serve an amended pleading must make rh

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Joyce v McKenna Associates, Inc., 2 A.D. 3d 592 (2d Dep't 2003); Morgan v Prospect Park Associates Holdings, L.P., 251 A.D. 2d 306 (2d Dep't 1998). The evidentiary showing must be
an evidentiary showing establishing merit to its proposal.

made by one with actual knowledge of the facts surrounding the proposed amendment. Id. The statement of ORISKA's counsel in his reply papers that his client intends to dispute the assertion that ORISK4 was on the job is insufficient to raise an issue where countcsredby the deposition testimony of two witnesses reading from job progress records.
I n sum, ORISKA's inexcusable delay in presenting the affirmative

defenses of waiver and release when the underlying facts are contained i n its counterclaims of almost four years ago, and its failure to present any evidence to support the basis for such defense in light 2f the factual allegations of the SCHOOL DISTRICT that ORISKA did indeed take over the work of its principal, provide this Court with no basis for granting the motion to amend. Accordingly, ORISKA's notion to Amend its Answer to assert the proposed Cross-Claims against the School District is hereby denied. This constitutes the DECISION and ORDER of the Court.
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