Matter of Batkier v City Univ. of N.Y.
Annotate this CaseDecided on August 30, 2006
Supreme Court, Kings County
In the Matter of the Claim of Joseph Batkier, Maria Batkier, Monica Batkier, Nicole Batkier, Oleg Gorelik, Faina Gorelik, Yelena Gorelik, Michael Gorelik, Madeline Klings, Lawrence Quitman, Marina Trubitsky, Lubov Pyatigorskaya, Plaintiffs,
against
City University of New York, Kingsborough Community College, and Plato General Construction, Westway Industries, Inc., Vertex Corp., and Attri Enterprises, Defendants.
32460/02
Francois A. Rivera, J.
By notice of motion filed on November 3, 2005, defendant Attri Enterprises (hereinafter, Attri) moves for an order dismissing plaintiffs' complaint and all cross-claims or counterclaims raised against it. Plaintiffs oppose the motion.
On August 15, 2002, plaintiffs commenced the instant action by filing a summons and complaint with the King's County Clerk's office. On October 4, 2002, plaintiffs amended the complaint to add Westway Industries, Inc. (hereinafter Westway) as a defendant.
On May 17, 2005, plaintiffs again amended the complaint to add Attri as a defendant. On June 23, 2005, Plato General Construction (hereinafter Plato) and Westway, represented by the same counsel, served a verified answer containing a cross-claim against Attri. On July 19, 2005, defendant Attri served an answer which contained cross-claims against Plato and Westway.
By notice of motion filed on October 24, 2005, defendants Plato and Westway moved pursuant to CPLR § 3212 for an order dismissing each plaintiff's complaint and all cross-claims against it. By decision issued March 7, 2006, this court denied Plato's motion in its entirety for failure to show entitlement as a matter of law; reserved decision on Attri's instant motion; and granted Westway's motion to dismiss the complaint of every plaintiff except for Lubov Pyatigorskaya and MurreyWeinshenker. The court did so because every plaintiff, except for [*2]Lubov Pyatigorskaya and MurreyWeinshenker, executed general releases in Westway's favor. This is an action brought by the plaintiffs for alleged personal injuries and property damage caused by construction work performed by the defendants near their homes in Brooklyn, New York. Joseph Batkier owned a home at 1804 Shore Boulevard, Oleg Gorelik's home is at 1812 Shore Boulevard, Madeline Klings' home is at 181 Pembroke Street, Denis Trubitsky's home is at 171 Pembroke Street, Lubov Pyatigorskaya's home is at 175 Pembroke Street, and Murray Weinshenker's home is at 1810 Shore Boulevard. All of these homes are located within the immediate vicinity of Kingsborough Community College (KCC).
Specifically, plaintiffs allege that all the defendants, including Attri, performed construction activities for the benefit of KCC near plaintiffs' respective homes. These activities were ongoing and continuous and caused the release of noxious fumes, dust and unhealthy odors adversely affecting their health. Plaintiffs also allege, among other things, that the continuous construction work caused significant property damage including cracks in the structure and damage to the foundation of their respective homes.
Attari's motion papers include their counsel's supporting affirmation and six annexed exhibits. The exhibits include plaintiffs' amended summons and verified complaint, Attri's verified answers, Plato and Westway's verified answer, the note of issue, plaintiffs' response to Attri's demand for a bill of particulars, and an affidavit from Attri's president.
CPLR §2214(a) provides in pertinent part that a notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor. Relief in the alternative or of several different types may be demanded.
Attri's motion papers contain no legal citations. Inasmuch as issue has been joined, the court presumes the motion is made pursuant to CPLR § 3212 and looks to the affirmation of Attri's counsel for the basis of the relief requested. Attri's counsel contends that plaintiffs' complaint should be dismissed because the claims are time barred and because Attri, through its president, disputes the factual claims alleged therein. The motion papers are silent with regard to Plato and Westway's cross-claims. Plato and Westway's motion, filed on October 24, 2005 sought, inter alia, summary judgment dismissing Attri's cross-claim against it. Plato and Westway's motion also serves to oppose that branch of Attri's motion seeking dismissal of Plato and Westway's cross-claims against it.
Attri claims that plaintiffs' complaint and bill of particulars do not allege a specific date of loss, do not specifically delineate the personal or property damage they each suffered, and do not set forth the specific acts of Attri's alleged negligence. CPLR §3013 requires a pleading to be sufficiently specific to give the court and the other party notice of the transactions or occurrences intended to be proved and the necessary elements of each cause of action. A violation of this section may support a motion for dismissal or a motion for a more definite statement pursuant to CPLR § 3024(a). Attri, however, does not seek dismissal of plaintiffs' complaint based solely on the alleged lack of specificity. Instead, Attri contends that the aforementioned lack of specificity in the complaint, and plaintiffs commencement of the action on May 17, 2005, supports dismissal of the complaint as untimely because the plaintiffs did not show that Attri's acts of negligence occurred after May 16, 2002. The argument is premised on the unsupported assumption that the applicable statute of limitations is three years.
A party asserting that a statute of limitations is applicable has the burden of proving it (Brush v Olivo, 81 AD2d 852 [2nd Dept. 1981]). It is, therefore, Attri's burden to show the [*3]triggering date for measuring the expiration of the statute of limitations. Although defendant claims that plaintiffs did not indicate the triggering date in their complaint, it is still the movant's burden to show that the statute of limitations has expired.
Plaintiffs' complaint alleges that for more than two years and continuing up to the date of the commencement of the action, Attri negligently engaged in construction activities which caused them personal and property damage. Assuming, arguendo, that a three year statute of limitations applies, the court cannot determine from the motion papers presented that the complaint is untimely.
Attri's supporting exhibits include an affidavit from Shri Attri, the president of Attri, which attests to the work Attri performed at KCC commencing sometime in 2002. He admits that his facts are derived from reviewing certain records. He does not claim personal knowledge of these facts and does not identify or include the pertinent records from which he derived them. In sum, he describes the work Attri performed and denies the acts that the plaintiffs claim Attri did. It is noted that he does not specifically state the date when Attri commenced or ceased working at KCC.
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Guiffirda v Citibank, 100 NY2d 72 [2003]). A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 923 [1993]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hosp., supra., 68 NY2d at 324).
It is axiomatic that summary judgment is a drastic remedy which should not be granted where triable issues of fact are raised and cannot be resolved on conflicting affidavits (Brunetti v. Musallam, 11 AD3d 280 [1st Dept 2004]). Shri Attri's affidavit simply demonstrates the existence of triable issues of fact.
Attri's motion to dismiss plaintiffs' complaint and all cross-claim or counterclaims against it is denied. This constitutes the decision and order of the court.
_________________________
J.S.C.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
