Gonzalez v. Fidelity & Deposit Co. of Md.

Gonzalez v Fidelity & Deposit Co. of Md. (2014 NY Slip Op 05040)

Gonzalez v Fidelity & Deposit Co. of Md.

2014 NY Slip Op 05040

Decided on July 3, 2014

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 3, 2014
Friedman, J.P., Sweeny, Andrias, Saxe, Kapnick, JJ.

20712/12 12918A 20508/12 12918

[*1] Valentin Sixto Castillo Gonzalez, Plaintiff-Appellant,

v

Fidelity and Deposit Company of Maryland, et al., Defendants, Galaxy G.C. Group, LLC, etc., Defendant-Respondent.



Patricio Marquez, et al.,Plaintiffs-Appellants, -against-Fidelity and Deposit Company of Maryland, et al., Defendants, Galaxy G.C. Group, LLC, etc., Defendant-Respondent.

Law Offices of William Cafaro, New York (Bill Cafaro of counsel), for appellants.

Farrell Fritz, P.C., Uniondale (Heather P. Harrison of counsel), for respondent.

Orders, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered April 5, 2013, and on or about April 5, 2013, which granted defendant Galaxy G.C. Group, LLC's (Galaxy) motions to dismiss the complaints insofar as asserted against it, and denied plaintiffs' respective cross motions for leave to amend the complaints, unanimously affirmed, without costs.

The court properly granted defendant Galaxy's motions to dismiss the initial complaints, as those pleadings failed to allege facts sufficient to show that plaintiffs were the intended third-party beneficiaries of any wage and benefits provisions set forth in the general contract (see Oursler v Women's Interart Ctr. , 170 AD2d 407 [1st Dept 1991]; Alicea v City of New York , 145 AD2d 315, 317-318 [1st Dept 1988]). Because the proposed amended complaints suffer from the same deficiencies, the court also properly denied leave to amend (see Davis & Davis v Morson , 286 AD2d 584, 585 [1st Dept 2001]).

We do not consider plaintiff's arguments under the Davis-Bacon act since they were raised for the first time on appeal.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 3, 2014

DEPUTY CLERK