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Ocean Steel Corp. v. Connell Hospitality LLC

Superior Court of New Jersey, Law Division, Union

April 18, 2018

OCEAN STEEL CORPORATION, Plaintiff,
v.
CONNELL HOSPITALITY LLC, TOCCI BUILDING CORPORATION INC., and MARLBORO GROUP INTERNATIONAL, LLC, Defendants.

          Sarah B. Biser, Esq. and Steven J. Link, Esq for plaintiff, Ocean Steel Corporation (Fox Rothschild LLP)

          Peter J. Smith, Esq. for defendant, Connell Hospitality LLC (Connell Foley LLP)

          OPINION

          HON. ROBERT J. MEGA, J.S.C.

         This matter comes before the Court on defendant, Connell Hospitality LLC's (hereinafter "Connell Hospitality") motion to dismiss plaintiff, Ocean Steel Corporation's (hereinafter "Plaintiff' or "Ocean Steel") Complaint pursuant to Rule 4:6-2(e). In the alternative, Connell Hospitality seeks to stay Count I (Foreclosure of Construction Lien) of Ocean Steel's Complaint, pending the outcome of mandatory, binding arbitration between Connell Hospitality and co-defendant, Tocci Building Corporation Inc. (hereinafter "Tocci").[1] Ocean Steel opposes Connell Hospitality's motion.

         Facts

         The following facts are derived from the parties' pleadings, briefs and oral arugment. For the purposes of the instant motion, "all facts alleged in the complaint and legitimate inferences drawn therefrom are deemed admitted." Rieder v. Department of Transp. 221 N.J.Super. 547, 552 (App. Div. 1987) (citations omitted).

         The Parties

         Ocean Steel is a Delaware corporation with a place of business located at 53 Shaw Road, Conklin, New York 13748.

         Connell Hospitality is a New Jersey limited liability company with a place of business located at 200 Connell Drive, Berkeley Heights, New Jersey 07922.

         Tocci is a Massachusetts corporation with a place of business located at 660 Main Street, Woburn, Massachusetts 01801.

         Marlboro Group International, LLC, (hereinafter "Marlboro") is a New York limited liability company with a place of business located at 28 East 28th Street, Concourse, New York 10016..

         The Site Project

         The underlying matter arises out of a construction project for the construction of an Embassy Suites Hotel in Berkeley Heights, New Jersey, located at 250 Connell Drive, Berkley Heights, New Jersey (hereinafter the "Site Project"). The Site Project is an over 18, 000 square foot, all-suite hotel. At all times relevant to Ocean Steel's Complaint, Connell Hospitality is the owner of the real property known as 250 Connell Drive, Berkley Heights (the "Property").

         The real property known as 250 Connell Drive, Berkley Heights was transferred from the Connell Company to Connell Hospitality LLC on or about March 21, 2014. Therein, the property is designated as Block 4301, Lot 1.012. Id. (emphasis added).

         On or about January 19, 2015, Connell Hospitality entered in a construction contract with Tocci to build the Site Project ("Connell-Tocci Prime Contract"). Section 5.2 of the Connell-Tocci Prime Contract authorized Tocci to hire subcontractors approved by Connell Hospitality and its architect, Raintree Architecture, Inc. (hereinafter "Raintree Architecture").

         On or about February 12, 2015, Tocci entered into a subcontract with Ocean Steel ("Tocci-Ocean Steel Subcontract") for $1, 514, 000.00 to supply and install structural steel for the Site Project. The Tocci-Ocean Steel Subcontract is formally known as "Standard Form of Agreement Between Construction Manager and Trade Contractor."

         Ocean Steel claims that it performed additional work pursuant to certain change orders totaling $646, 572.93 of additional structural settle material and services provided for the Project. Accordingly, Ocean Steel contends the total amount of the Tocci-Ocean Steel Subcontract, including change orders, is $2, 160, 572.93.

         Ocean Steel contends that it completed its entire scope of work, plus certain change orders in accordance with all plans and specifications by September 1, 2016. Despite this, Ocean Steel alleges that Tocci has only paid $1, 993, 219.12 of Ocean Steel's billed work, leaving an outstanding contract balance of $167, 353.81. Ocean Steel demanded payment from Tocci for the unpaid balance, but Tocci refused to tender same.

         Ocean Steel's November 30, 2016 Construction Lien

         As a result of the foregoing, Ocean Steel filed a Construction Lien Claim for $167, 353.81 in the Union County Clerk's Office on November 30, 2016 (the "November 30, 2016 Construction Lien"). The November 30th Construction Lien was recorded as Instrument Number 3095.

         The November 30, 2016 Construction Lien was lodged against "the real property of Connell Hospitality LLC [...] described as Block 4301, Lot 1.12 (emphasis added) on the tax map of the Berkeley Heights, County of Union, State of New Jersey, and also known as 250 Connell Drive, Berkeley Heights, N.J. 07922."

         Ocean Steel's December 1, 2016 Construction Lien

         On December 1, 2016, Ocean Steel filed a second Construction Lien Claim for $167, 353.81 in the Union County Clerk's Office.

         The December 1, 2016 Construction Lien was lodged against "the real property of 200 Connell LLC [...] described as Block 4301, Lot 1.11 (emphasis added) on the tax map of the Berkeley Heights, County of Union, State of New Jersey, and also known as 250 Connell Drive, Berkeley Heights, N.J. 07922..."

         Connell Hospitality Terminates ...


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