FILED: BRONX COUNTY CLERK 11/24/2015 10:21 AM
`FILED: BRONX COUNTY CLERK 112015 10:21 ‘
`NYSCEF DOC. NO. 249
`NYSCEF DOC. NO. 249
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`IND
`EX NO.
`20812/20123
`INDEX NO. 20812/2012E
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`WYSCEF:
`11/24/2015
`RECEIVED NYSCEF: 11/24/2015
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`EXHIBIT A
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`FILED: BRONX COUNTY
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`Nur_sCE;§*_,g2oc. NO. 219
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`INDEX NO. 20812/20l2E
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`Case Disposed
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`Settle Order
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`Fiied Papers
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`LIZBE I G0.NZALEZ,J.S.C.
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF BRONX: PART 10c
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`Michelle Scuorzo,
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`Plaintiff,
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`Index No 20812/2012B
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`DECISION and ORDER
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`-against
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`Luqman Safdar, Fayyaz Ahmad, Big Apple Car, Inc.,
`Response Corp., Transca.re Ambulance Corp,
`John Doe, Jane Doe and ABC Corp,
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`Defendants.
`________________________________________________________________ --)(
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`Recitation pursuant to CPLR § 22l9(a) of the papers considered in reviewing the underlying
`motion to amend the complaint:
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`Notice of Motion and annexed Exhibits .............................................................................. ..l
`Notice of Cross-Motion and annexed Exhibits.................................................................... ..2
`Affirmation in Opposition and annexed Exhibits ................................................................ ..3
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`Plaintiff Scuorzo claims that she sustained serious injuries as a result of the defendants’
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`negligence. Ms. Scuorzo alleges that Bank of America entered into a contract with Big Apple
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`Car, Inc. (“Big Apple”) to transport bank employees through “subcontractor” black cars. The
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`plaintiff, a pedestrian, was struck on 3/1 1/ 10 by a vehicle transporting bank employees that was
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`owned by defendant Fayyaz Ahmad and driven by defendant Luqman Safdar, Big Apple
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`Subcontractors.
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`The plaintiff commenced an action against the defendants and now seeks leave to amend
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`the complaint to add three new causes of action against defendant Big Apple for breach of
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`contract and violations of New York General Business Law §§ 349 and 350. Ms. Scuorzo
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`maintains that she is an intended third—party beneficiary. The plaintiff claims that Big Apple
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`breached the contract by failing to procure auto liability insurance.
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`The plaintiff further
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`maintains that Big Apple engaged in false advertising and deceptive practices by breaching the
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`contract.
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`Defendant Big Apple cross—movcs for sanctions pursuant to 22 NYCRR 130-1.1 for costs
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`relative to the plaintiffs motion to amend and the defendant’s cross—motion.
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`It contends that it
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`procured the proper insurance but had it failed to do so, the plaintiff is not an intended third-
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`party beneficiary and therefore lacks standing.
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`DISCUSSION
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`A party may amend his or her pleadings by setting forth additional or subsequent
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`transactions or occurrences at any time by leave of court. (CPLR § 3025[b].) Granting the
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`amendment of a pleading is within the sole discretion of the court. (Pellegrino v NYC Transit
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`Authority, 177 AD2d 554 [2‘“’ Dept 1991].) Although it is freely granted in the absence of
`prejudice or surprise to the opposing party (Spritzer v Schussel, 48 AD3d 233, supra, quoting
`Loomis v Civerm Corinna Canslr. Corp, 444 NYS2d 571 [l981]), leave should “not be granted
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`upon mere request without appropriate substantiation.” (Guzman 12 Mike is Pipe Yard, 35 AD3d
`266 [l“ Dept 2006], ciflrrg Brennan v City ofNew York, 99 AD2d 445 [l984].)
`In the context of a third-party beneficiary claim,
`the plaintiff must establish; 1) the
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`existence of a valid and binding contract between other parties; (2) that the contract was intended
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`is sufficiently immediate...to indicate the
`to [it]
`the benefit
`that
`[its] benefit, and (3)
`for
`assumption by the contracting parties of a duty to compensate [it]
`if the benefit
`is lost."
`(Mandarin Trading Lid 1: Wz'ldem'!ein, 16 NY3d 173 [2009] citing Mendel 1: Henry Phipps Plaza
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`W., 1m:., 6 NY3d 783, 786, 811 NYS2d 294, 844 NE2d 748 [2006].)
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`The plaintiff claims that Big Apple breached its contractual obligations by failing to
`procure auto liability insurance coverage in the amount of $1,000,000 plus excess coverage in
`the amount of $5,000,000 as marketed, advertised and contracted with Bank of America. By
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`way of opposition, the defendant proffers its Response to Plaintiffs Demand for Insurance
`Information and policies to establish that
`the insurance was timely procured. The Court
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`accordingly finds that there was no breach of contract.
`In any event, the plaintiff lacks privity and standing to challenge any purported breach of
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`contract between Big Apple and Bank of America since she is not an intended third-party
`beneficiary. Section 3.12 of Schedule A requires Big Apple’s subcontractors to operate vehicles
`in a safe manner to assure the safety of passengers, the general public, the driver and the vehicle.
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`three classes of intended contract
`that Schedule A thus creates
`The plaintiff submits
`beneficiaries: 1) Bank of America and its employees, agents and servants; 2) the owners and
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`Id
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`drivers of the subcontracted vehicles comprising the Big Apple fleet that provided services
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`pursuant
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`to the contract; and 3) persons injured by the Big Apple fleet while transporting
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`passengers pursuant to the contract. The plaintiffs argument is belied by her moving papers,
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`which attach a copy of the contract.
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`The best evidence of the intent to bestow a benefit upon a third—party is the language of
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`the contract itself. (767 Third Ave LLC v Orix Capitai Markets. LLC, 26 A.D.3d 216 ll“ Dept
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`2006].) Paragraph 27.12 of the contract plainly states:
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`This Agreement shall be binding upon, and inure to the benefit of
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`the Parties and their respective permitted successors and assigns.
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`Except as expressly set
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`forth in this Agreement and with the
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`exception of the Affiliates of the Bank of America, the Parties do
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`not
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`intend the benefits of this Agreement
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`to inure to any third
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`party, and nothing contained herein shall be construed as creating
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`any right, claim or cause of action in favor of any such other third
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`party, against either of the Parties hereto.
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`Paragraph 28.1 of the contract further states in pertinent part:
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`This Agreement, the Schedules, and other documents incorporated
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`herein by reference, is the final, full and exclusive expression of
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`the agreement of the Parties and supersedes all prior agreements,
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`understandings, writings,
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`proposals,
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`representations
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`and
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`communications, oral or written, of either Party with respect to the
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`subject matter hereof and the transactions hereby.
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`After careful consideration and review, the Court finds that the plaintiff lacks standing to
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`sue for any purported breach of contract. The Court denies the plaintiff’s motion to amend in its
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`entirety for lack of merit. The Court notes that the proposed causes of action that allege that the
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`defendant violated General Business Law §§ 349 and 350 relevant
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`to “deceptive business
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`practices and false advertising” are similarly “without appropriate substantiation.” (Guzman v
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`Mike is Pipe Yard, 35 AD3d 266, supra.)
`The defendant’s cross-motion is granted. The plaintifi shall pay costs in the amount of
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`$250 to defendant Big Apple within 45 days.
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`A copy of this Order with notice of entry shall be served within 30 days.
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`This is the Decision and Order of the Court.
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`Dated: March 19, 2015
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`So ordered,
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`Hun.‘ liixhelli
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