First & 91 LLC v 1765 First Assoc. LLC

[*1] First & 91 LLC v 1765 First Assoc. LLC 2009 NY Slip Op 50639(U) [23 Misc 3d 1108(A)] Decided on April 6, 2009 Supreme Court, New York County Cooper, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 6, 2009
Supreme Court, New York County

First & 91 LLC, Plaintiff,

against

1765 First Associates LLC, Leon D. Dematteis Construction Corporation, New York Crane & Equipment Corporation and Sorbara Construction Corporation, Defendants.



108543/08



For the Plaintiff First & 91 LLC

Jaroslawicz & Jaros, LLC

225 Broadway, 24th Floor

New York, NY 10007

(212) 227-2780

For Defendant New York Crane

Wilson, Elser, Moskowitz, Edelman & Dicker LLP

By Glen J. Fuerth

150 East 42nd Street

New York, NY 10017

(212) 490-3000

For Third-Party Defendant Testwell

Lawrence, Worden, Rainis & Bard, P.C.

By Jeffery Bard

425 Broad Hollow Road

Suite 120

Melville, NY 11747 (631) 694-0033

For Third-Party Defendants the City and Department of Buildings

Fabiani, Cohen & Hall, LLP

By Andrew Wiener

570 Lexington Avenue, 4th Floor

New York, NY 10022

(212 ) 644-4420

For Defendant/Third-Party Defendant Leon D. Dematteis Construction

Smith, Mazure, Director, Wilkins, Young & Yagerman, P.C.

By Mark Levi

111 John Street, 20th Floor

New York, NY 10038

Matthew F. Cooper, J.

This is an action brought by the owner of the building at 354 East 91st Street in Manhattan that was damaged when a construction crane collapsed on May 30, 2008. This incident occurred a little more than two months after a crane collapsed at another construction site on East 51st Street. Both accidents resulted in loss of life, serious injury and widespread property damage.

To date, at least four actions for personal injuries arising out of the 91st Street crane collapse have been filed. There have also been a number of actions brought alleging property loss. In addition, two wrongful death actions have been commenced. Many more lawsuits are anticipated.

Defendant New York Crane ("NY Crane") now moves to dismiss plaintiff's fifth cause of action, which alleges that defendants are strictly liable for damages because they were involved in an "ultrahazardous" activity. It also seeks an order to consolidate all pending and future cases relating to the May 30, 2008 crane collapse, and to stay discovery for six months to allow all related actions to be filed. Defendant/third-party plaintiff Leon D. Dematteis Construction Corporation ("Dematteis") joins NY Crane by cross-moving to dismiss plaintiff's fifth cause of action, and third-party defendant Testwell cross-moves to consolidate and to stay discovery for six months. Defendant 1765 First Associates LLC initially cross-moved to dismiss the complaint in its entirety, but withdrew its motion prior to oral argument.

I. Statement of Facts

Very few of the facts relevant to what happened on East 91st Street have been established as of this time. What is known is that NY Crane leased a Kodiak tower crane, serial number 84-052, along with ten tower sections, to Sorbara Construction Corporation ("Sorbara") beginning on March 1, 2008, for a minimum term of six months. The crane was leased by Sorbara for the construction of a thirty-two story condominium building and school at 333-335 East 91st Street. Dematteis was the general contractor at the construction location and Sorbara was a subcontractor employed to provide all labor, materials, appliances, appurtenances, supplies, and services with regard to the construction, including the operation of the crane.

On March 30, 2008, the leased Kodiak tower crane collapsed with tragic results. Numerous individuals were injured and two people were killed. In addition, the falling crane struck the [*2]residential building owned by plaintiff, First & 91 LLC, causing extensive damage to the structure and requiring the tenants to be evacuated. Plaintiff alleges that crane collapsed because of the recklessness, carelessness and negligence of the defendants and the ultrahazardous work they were performing. Outside of some limited pre-action discovery granted to the wrongful death plaintiffs, no discovery has taken place and the cause of the collapse remains unknown.

II. Motion to Dismiss Plaintiff's Fifth Cause of Action

NY Crane and Dematteis argue that they are entitled to dismissal of plaintiff's fifth cause of action pursuant to CPLR 3211(a)(1) and 3211(a)(7). Each of them contends that the documentary evidence it presents conclusively establishes a defense to the cause of action as a matter of law and that the cause of action does not set forth a legally sufficient claim. Plaintiff's fifth cause of action alleges that all defendants were engaged in an ultahazardous activity involving construction in a densely populated area of New York City, were grossly negligent in their conduct, and are therefore strictly liable for the damages caused by the collapsed crane.

On a motion to dismiss under CPLR 3211, the court is charged with determining only whether the facts as alleged in the complaint fit within any cognizable legal theory. Morone v. Morone, 50 NY2d 481, 484 (1980). The pleadings on such a motion are to be afforded a liberal construction, and the plaintiff is to be granted the benefit of every possible doubt. Leon v. Martinez, 84 NY2d 83, 87 (1994). A 3211 motion must be denied if from the four corners of the pleadings, "factual allegations are discerned which taken together manifest any cause of action cognizable at law." 511 West 232nd Owners Corp. v. Jennifer Reality Co., 98 NY2d 144, 152 (2002), quoting Polonetsky v. Better Homes Depot, 97 NY2d 46 (2001).

Dismissal of a complaint pursuant to CPLR 3211(a)(1) is only warranted where the documentary evidence submitted utterly refutes and resolves plaintiff's factual allegations and conclusively establishes a defense to the asserted claims as a matter of law. Goshen v. Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 (2002); see Leon, 84 NY2d at 88. Permissible documentation includes contracts, deeds, judgments, and judicial records. Webster v. State of New York, 2003 WL 728780 (Court of Claims 2003). When documentary evidence is considered on a 3211(a)(7) motion, "the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one." Guggenheimer v. Ginzburg, 43 NY2d 268, 275 (1977). Where the complaint fails to present facts sufficient to support the legal claim asserted, the complaint will be deficient and dismissal proper. D. & C. Textile Corp. v. Rudin, 41 Misc 2d 916, 917 (Sup Ct, NY County 1964).

In support of its motion, NY Crane produces the affidavit of the general manager of NY Crane and the rental agreement between NY Crane and Sorbara for the lease of the crane. NY Crane contends that the lease with Sorbara is a "bare rental" contract, resulting in Sorbara's sole responsibility for the equipment upon commencement of the lease, and that NY Crane was not required to nor did it perform an inherently dangerous activity at the accident location. In short, NY Crane asserts that it is entitled to dismissal because leasing a crane to a construction subcontractor cannot be considered an ultrahazardous activity giving rise to strict liability on its part as the lessor of the equipment.

In support of its cross-motion, Dematteis, the construction manager on the project, submits a copy of the contract it entered into with Sorbara. The contract provides that Sorbara was to supply all labor, materials, appliances, appurtenances, supplies, and services in the construction of the [*3]building at 333-335 East 91st Street, while Dematteis was to retain only general supervisory and oversight responsibilities and duties. Dematteis, which asserts that it was in no way involved in the leasing or the maintenance of the crane, puts forth the same or similar arguments as NY Crane in seeking dismissal of the cause of action for strict liability based on ultrahazardous activity.Plaintiff opposes NY Crane's motion and Dematteis' cross-motion on the ground that neither has conclusively established that it relinquished all control over the crane and thus cannot be held responsible for its collapse. Moreover, plaintiff argues that because discovery in this case has not taken place, and more specifically that the inspection of the crane has yet to occur and the cause of the collapse has yet to be determined, the court must assume the facts in a light most favorable to plaintiff. One of these facts is the ultrahazardous nature of operating giant construction cranes in an area like Manhattan.

It is well established that one who engages in an ultahazardous or abnormally dangerous activity may be held strictly liable for any harm to persons or property resulting from that activity. Doundoulakis v. Town of Hempstead, 42 NY2d 440, 448 (1977). The policy consideration justifying this rule of law is that "those who engage in activity of sufficiently high risk of harm to others, especially where there are reasonable even if more costly alternatives, should bear the cost of harm caused the innocent." Id.; Abbatiello v. Monsanto Co., 522 F Supp 2d 524, 531 (SDNY 2007). The determination of whether an activity is abnormally dangerous is one for the court to make and involves the consideration of numerous factors, none of which is dispositive. Mayore Estates , LLC v. Port Auth. of NY and N.J., 2003 WL 22232918 (SDNY 2007); Doundoulakis, 42 NY2d at 448; See Restatement (Second) of Torts § 520 (1977). These factors include: "a) existence of a high degree of risk of some harm to the person, land or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes." Doundoulakis, 42 NY2d at 448; quoting Restatement (Second) of Torts § 520.

The court agrees with plaintiff that the motion to dismiss is premature. Almost no discovery has been conducted, when it is evident that months and months, if not years, of discovery will be required here. This will undoubtedly include extensive testing of the crane itself. Until all of this is done, the root causes of the tragedy will remain a mystery.

In effect, what both NY Crane and Dematteis are doing here is asking this court to take judicial notice that the use of giant construction cranes is not something that falls into the realm of an inherently dangerous or ultrahazardous activity. Both defendants correctly point out that the leasing and utilization of construction cranes is an almost routine activity done on a regular basis in New York City and it is an activity generally having a significant value to society in enabling buildings to be constructed and repaired. The fact remains, however, that within the course of just a few months in 2008, two of these behemoth cranes came crashing down causing widespread devastation in their wake. In light of this, the court is reluctant to conclude as a matter of law that on the facts presented in these motions and on the exceedingly sparse record before it that the doctrine of ultrahazardous activity is inapplicable here.

The case of Mayore Estates , LLC v. Port Auth. of NY and N.J., 2003 WL 22232918 [*4](SDNY) is particularly instructive. In that case, District Court Judge Hellerstein of the Southern District of New York was called on to decide a motion to dismiss brought in one of the actions arising out of the collapse of the World Trade Center. The Port Authority sought to dismiss a claim of strict liability based on allegations that it had engaged in an abnormally dangerous activity by owning "the tallest building in the United States in a crowded downtown area which had not been built according to the New York building codes and which used ultra-hazardous materials, such as asbestos." Id. at 2.

In his decision, Judge Hellerstein stated that it was unlikely that plaintiffs would ever be able to establish that the Port Authority had engaged in the type of ultahazardous activity that would justify the application of the strict liability standard. Nevertheless, he denied the motion to dismiss, stating as follows: At this early stage of litigation, I am unable to weigh the factors articulated by theNew York Court of Appeals. Doundoulakis [42 NY2d 440 at 448-451] (remanding for new trial where parties failed to adequately explore factors set out in Restatement section 520 and create a factual record). Even though plaintiffs' strict liability claims may not withstand scrutiny, I cannot dismiss these claims without a proper development of the record. [2003 WL 22232918 at 2.]

It may very well be that the operation of a large construction crane let alone the mere leasing of the crane by the leasing company to the operator or the retention of the operator's services by the general contractor does not constitute an abnormally dangerous activity like "storing dynamite or gunpowder, using atomic energy or diverting large amounts of water over the earth." DeFoe Corp. v. Semi-Alloys, Inc., 156 Ad2d 634 (2d Dept 1989). Nevertheless, like the federal court dealing with the collapse of the World Trade Center in Mayore Estates, LLC, this court is not in the position to dismiss plaintiff First & 91 LLC's strict liability claim at this juncture and on this thin record.

In light of the foregoing, the motion and cross-motion to dismiss are denied. The denial is without prejudice to a subsequent motion for summary judgment seeking the same relief once discovery has proceeded and a sufficient factual record is created.[FN1]

III. Motions to Consolidate and Stay Discovery

As all parties are aware from the recent conferences held with the court, all motions and discovery matters regarding any case arising from the 91st Street crane collapse are being heard by one IAS part. That part is now Part 12. As has been the practice, motions are being heard and conferences being conducted with all interested parties present. The parties and the court have further resolved to establish protocols and schedules for discovery applicable to all parties who are [*5]now or will be involved in the litigation. A conference for this purpose is presently scheduled for April 29, 2009. In light of these developments, the motion and cross-motion to consolidate the actions and to stay discovery are denied.

IV. Conclusion

For the reasons stated, it is

ORDERED that New York Crane's motion and Leon D. Dematteis Construction Corporation's cross-motion to dismiss plaintiff's fifth cause of action are denied; it is further

ORDERED that New York Crane's motion and Testwell's cross-motion to consolidate and to stay discovery are denied.

This constitutes the decision and order of the court.

Dated: April 6, 2009

ENTER:

____________________________

MATTHEW F. COOPER, J.S.C. Footnotes

Footnote 1: NY Crane and Dematteis have requested that each of their motions to dismiss also be treated as one for summary judgment pursuant to CPLR 3211(c). Because of the paucity of the record NY Crane's motion being supported only by the lease with Sorbara and a two-page conclusory affidavit of its president, and Dematteis' cross-motion being supported solely by the contract with Sorbara the court declines to do so.