PIZZAROTTI LLC v. PHIPPS CO BDC LLC SG (2021)

The following e-filed documents, listed by NYSCEF document number (Motion 007) 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203, 204, 205, 206, 207, 208 were read on this motion to STAY.

This is a breach-of-contract action brought in 2018 by plaintiff Pizzarotti, LLC (as construction manager of a project to build a residential skyscraper in lower Manhattan) against subcontractors of Pizzarotti on the project and their principals. This suit is related to an action pending before Justice Andrea Masley of the Commercial Division of this court between Pizzarotti and the owner on the project (third-party defendant here FPG Maiden Lane LLC). Pizzarotti now moves to stay this action pending the resolution of the Commercial Division action. Defendant Phipps & Co., and the other Phipps defendants, cross-move to consolidate the two actions. The motion and cross-motion are denied.

DISCUSSION

Pizzarotti asserts that its damages in this case will depend on the extent of its liability in the Commercial Division action (if any) for construction delays involving the defendants here. Therefore, Pizzarotti contends, its claims here should await resolution of the Commercial Division action. This argument has several problems.

Most obviously, FPG's counterclaims in the Commercial Division action—asserting the damages claims on which Pizzarotti now bases its request for a stay—were filed in June 2019. Yet Pizzarotti did not bring the present stay motion until the end of February 2021. In the interim, the parties to this action filed multiple motions, and engaged in numerous conferences with the court, without a suggestion that Pizzarotti's entitlement to damages in this action would depend on the outcome in the Commercial Division action.

Indeed, Phipps previously moved in this action to compel further discovery about the components and calculation of Pizzarotti's claimed damages. Yet Pizzarotti still did not take the position that its damages here would largely turn on its potential liability in the Commercial Division action resulting from the conduct of defendants here. (See NYSCEF No. 160 [opposition to motion to compel].) Pizzarotti represents that after this court's granting in part the motion to compel, Pizzarotti asserted in May 2020 (for the first time) that an aspect of its claimed damages here would relate to the resolution of the Commercial Division action. (See NYSCEF No. 180 at ¶ 7; NYSCEF No. 184 at 5.) But another nine months—and three discovery conferences—then elapsed before Pizzarotti finally filed this motion to stay.

To be sure, Pizzarotti's delay in raising the issue of the relationship between the claims and defenses in the two actions would not necessarily warrant denial of the motion to stay, standing alone. But it does not stand alone.

For example, it is not clear—and Pizzarotti does not clarify—what Pizzarotti's potential exposure is in the Commercial Division action for delays related to the subcontract at issue in this action; or what the magnitude of that exposure is relative to the sources of damages that Pizzarotti had previously identified here.

This lack of clarity is unsurprising, given the sheer scope of the Commercial Division action. As FPG points out in opposing Phipps's cross-motion, that action involves claims and counterclaims for tens or even hundreds of millions of dollars, encompassing the full scope of a (hugely delayed) project to build a 58-story residential skyscraper in lower Manhattan. FPG's subcontractor-management-related counterclaims against Pizzarotti in the Commercial Division action, themselves only one aspect of the multi-sided disputes among the many parties there, appear to relate a host of different alleged delays on different subcontracts. Pizzarotti does not discuss whether it would even be possible for any damages award obtained by FPG against Pizzarotti to break out damages incurred for delays on particular subcontracts. Nor does Pizzarotti explain what would preclude it from later bringing a freestanding indemnity claim against defendants here based on liability Pizzarotti incurred in the Commercial Division action.

The scope and complexity of the Commercial Division action also suggest that the action will take years more to resolve fully in the trial court, let alone on appeal. On Pizzarotti's position here, its claimed damages against defendants here would be fully ascertainable only once Pizzarotti's liability (if any) in the Commercial Division action is finally determined; and this action would presumably have to remain stayed throughout. Such significant delay would be inequitable to defendants here. They are not even involved in the Commercial Division action.

Pizzarotti contends that these considerations should be balanced against the fact that continuing with this action (assertedly) entails a “duplication of efforts and a consequent waste of court time,” and the possibility of “inconsistent rulings on cases against each single subcontractor for the project.” (NYSCEF No. 184 at 7.) The court does not understand what would prevent Pizzarotti from using in the Commercial Division evidence that it developed here (or vice versa); nor why the risk of inconsistent results is sufficiently likely, and sufficiently serious, to warrant staying this action for years to come. That is particularly true given that the issues in play here are, at most, a tiny piece of the disputes in the Commercial Division action.

In these circumstances, an open-ended stay of this action pending the resolution of the Commercial Division action is not warranted. And given the disparity in size and complexity of this action and that one, and the lack of overlap among the parties to the two proceedings, consolidating the two cases would not result in the more efficient adjudication of either one. If anything, the opposite is true.

Accordingly, for the foregoing reasons, it is hereby

ORDERED that Pizzarotti's motion under CPLR 2201 to stay proceedings in this action pending the resolution of the related Commercial Division action is denied; and it is further

ORDERED that the Phipps Defendants' cross-motion under CPLR 602 to consolidate this action with the related Commercial Division action is denied; and it is further

ORDERED that the parties both to the main claim and to the third-party claim in this action shall meet and confer about an appropriate schedule for depositions in this case, and shall appear before this court for a telephonic status conference on May 10, 2021.

Gerald Lebovits, J.