Sanatass v Consolidated Investing Co., Inc.
Annotate this CaseDecided on January 29, 2009
Supreme Court, New York County
Christopher Sanatass and Cynthia Sanatass, , Plaintiffs,
against
Consolidated Investing Company, Inc., Consolidated Investing Company, Norbert Natanson, Herbert Rosenberg as trustee of the last will and testament of Nathan Shulman, Marion Feldman, Chroma Copy and Dazian, LLC, Defendants. Consolidated Investing Company, Inc., Consolidated Investing Company, 3rd party Plaintiffs Chroma Copy International, Inc., Chroma Copy International, L.P., Chroma Copy International, Ltd., Chroma Copy of America, Inc., and C2 Media, LLC., 3rd party Defendants. Chroma Copy International, Inc., Chroma Copy International, L.P., Chroma Copy International, Ltd., Chroma Copy of America, Inc., and C2 Media, LLC., 2nd- 3rd party Plaintiffs Commercial Cooling Service, Inc., 2nd-3rd party Defendant.
113875-2001
Judith J. Gische, J.
Plaintiff Christopher Sanatass is a laborer who has alleged he sustained personal injuries as a result of the defendants' violation of the labor laws. As per the decision of the Court of Appeals in April 2008 [Sanatass v. Consolidated Investing Company, Inc., et al., 10 NY3d 333 [2008]), plaintiff was granted partial summary judgment against Consolidated Investing Company Inc. and Consolidated Investing Company, the property owners ( Consolidated") on the issue of liability based upon violations of section 240 (1) of the Labor Law.
The Court of Appeals did not, however, decide the merits of a motion for summary judgment against by Consolidated on its claims against the 3rd party defendants Chroma Copy International, Inc., Chroma Copy International, L.P., Chroma Copy International, Ltd., Chroma Copy of America, Inc., and C2 Media, LLC. (hereinafter Chroma" and C2" collectively 3rd party defendants"). After the Court of Appeals' decision, Consolidated renewed its motion for summary judgment before this court. That motion, which the denied in its decision and order of August 8, 2008 ( prior order"), is the subject of this motion which is to reargue and renew that prior order.
Consolidated argues that this court misapprehended certain facts which led it to make an
erroneous decision. Alternatively, Consolidated argues that the triable issues of fact this court
identified in its prior order are not, in fact, disputed because C2 was served with a Notice to
Admit which it did not respond to, and therefore, is deemed to have admitted those facts. This
motion for reargument and renewal is opposed by the 3rd party defendants (Chroma and C2).
The defendants contend the court neither misapprehended the facts, nor are there any new facts
for it to consider.
Applicable Law
A motion for leave to reargue pursuant to CPLR 2221 is addressed to the court's discretion. Foley v. Roche, 68 AD2d 558, 567 (1st Dept. 1979). It may be granted only upon a showing that the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision. William P. Pahl Equipment Corp. v. Kassis, 182 AD2d 22, 27 (1st Dept 1992). A motion to renew, on the other hand, is based upon the discovery of material facts which existed at the time the prior motion was made, but were not then known to the party seeking renewal and for that reason not disclosed to the court. Foley v. Roche, 68 AD2d 558, 567 (1st Dept. 1979). An event that takes place after the prior order is made is not considered newly discovered evidence that would support a motion to renew. Donnelly v. Donnell, 114 AD2d 671 (3rd Dept 1985). Thus on a motion to renew not only does the movant have to explain why available evidence was not produced at that time, but also that the new information corrects defects in proof. Cooper v. Mabru Associates, 237 AD2d 188 (1st Dept 1997). [*2]
At the outset, the court notes that Consolidated has provided some, but not all, the papers that were before the court on the underlying motion. According to Consolidated, C2 occupied the 11th floor where the Sanatass' accident took place and C2 took an assignment of Chroma's lease with the owner when Chroma merged with C2. Furthermore, Consolidated argues that it consented to the assignment. Consolidated argues that a document entitled Consent to the Assignment" signed by the owner, Chroma and C2 and dated August 31, 1999 ( hereinafter consent") proves these facts. Furthermore, Consolidated argues the document was an exhibit to the transcript of the EBT testimony of David Segal, Esq. (counsel to the owner at the time of the accident), but the court overlooked the document. Consolidated now provides the court with another copy of the same transcript. Though the transcript mentions the consent (and the court addressed Segal's testimony about it in the prior order), once again the consent is not an exhibit to the transcript. Consolidated has, however, provided the consent as a separate exhibit (exh K") to this motion to reargue/ renew.
Since the court cannot independently verify whether the consent was actually a part of the underlying motion and the 3rd party defendants have not addressed this point, but oppose this motion for reargument/ renewal on the merits, the court will do so as well. These procedural glitches" are attributed to law office failure. Furthermore, the consent is a pivotal document in Consolidated's case (discussed at greater length below) and the court appears to have misapprehended the facts in reaching its prior order.
Consolidated has not, however, established grounds for renewal of the prior order. The basis for renewal is that the 3rd party defendants (Chroma and C2) have admitted certain facts by failing to respond to a Notice to Admit that Consolidated served. However, the Notice to Admit was served after Consolidated made its motion and after the court's decision. Therefore, the failure to respond, deny, etc., does not establish new" facts which existed at the time the underlying motion was made and which were unknown to the movant and therefore also unknown to the court.
The court's decision on reargument is as follows:
Discussion
The court, in the prior order, credited the owner with having provided a copy of its lease with Chroma, but not providing proof in admissible form that the lease had, in fact, been assigned by Chroma to C2, or that the owner had consented to the leases assignment. To establish its argument, that such an assignment had occurred, Consolidated instead relied on an attorney's statements (Attorney David Segal) made at his deposition ( EBT"). The court decided that those statements were hearsay because Segal had no personal knowledge of the facts.
Consolidated now provides documentary evidence (the consent) that Chroma did, in fact, assign its lease to C2 and that C2 is the assignee of the lease between Consolidated and Chroma dated October 1, 1992 for the 11th (and another) floor ( lease"). The consent proves that Chroma and C2 sought the landlord's consent for the assignment, that C2 occupied the 11th floor where the accident occurred, and that the owner (Consolidated) consented to the lease assignment in writing. The consent is subscribed to by Consolidated, Chroma and C2. The consent references Chroma's lease with the landlord at the time, Consolidated's predecessor in interest. The consent [*3]identifies Chroma as the Tenant" and C2 as the Assignee." The consent contains the following language:
Tenant [Chroma] and Assignee [C2] have represented to Landlord that, on May 13, 1999, Tenant was acquired by Assignee pursuant to a merger transaction in which Tenant became a subsidiary of Assignee (the Merger"). Pursuant to the lease provisions of Article 11 of the Lease, the Merger is deemed an assignment of the Lease, which assignment requires the consent of the Landlord (the Deemed Assignment"). Tenant desires to obtain Landlord's consent to the Deemed Assignment, and Assignees desires to confirm to the Landlord that it has and shall assume the performance and observance of all of the terms, covenants and agreements contained in the Lease [ * * * ] and Landlord is willing to consent to the Deemed Assignment subject to the terms and conditions set forth in this Consent."
Although C2 disputes that it is Chroma's assignee or that it assumed Chroma's obligations under the lease, there is no evidence in admissible form contradicting this document (the landlord's consent). The 3rd party defendants have not established a material issue of fact for trial. The consent is clear, unambiguous and speaks for itself. Thus, Consolidated has proved that Chroma assigned its lease to C2 when the companies merged, that the merger was a deemed assignment" of Chroma's lease which had to be presented to the owner for its consent, and that as a result of this assignment, there is a contractual relationship between the owner and C2. In opposition, C2 has failed to come forward with any triable issues of fact whether it assumed Chroma's obligations as its assignee. Therefore, C2 assumed Chroma's obligation to (among other things) provide and keep in force a comprehensive policy of general liability insurance for the owner's benefit (paragraph 58) and to indemnify the owner (paragraph 59).
Under the lease, the tenant is obligated to indemnify the owner against certain claims arising from" its occupancy of the demised premises. Although the court, in its underlying order, addressed issues of the owner's direction and control of the accident producing activity, this was because Consolidated had not proved it had a contractual relationship with C2 (no privity), and therefore, the court had to consider whether it was entitled to common law indemnification by C2.
Since Consolidated has now proved it is in contractual privity with C2 (as assignee of the lease) and since there is no factual dispute that C2 occupied the 11th floor, Consolidated has now also proved C2 was had an obligation to obtain insurance for the landlord's benefit. Consolidated claims C2 failed to obtain and maintain such insurance and that this is a breach of the lease. To defeat Consolidated's motion, C2 would have to present evidence in admissible form that it did obtain such insurance for the owner's benefit or set forth factual disputes that have to be tried. C2 has not met its burden and by failing to do so, Consolidated is entitled to summary judgment against C2 on its breach of contract claim (failure to obtain insurance) claim.
Consolidated also argues that C2 must pay its defense costs and indemnify for the claims against it by Sanatass. The issue of whether C2 has to defend and indemnify Consolidated turns on whether Consolidated has proved the claims arise or result" from any of the situations identified in paragraph 59 of the lease that C2. Paragraph 59 requires that the tenant shall pay the costs of defending any actions, suits, proceedings brought against the Landlord with respect [*4]to [injuries, property loss, etc.] . . ." Moreover, the tenant shall pay, satisfy and discharge any judgments, orders and decrees which may recovered against the Landlord . . ." Furthermore the landlord can recover its reasonable attorney's fees and other expenses from the tenant. According to paragraph 59 of the lease, these recoveries (defense, indemnification) are available where the claims:
(i)arise from or are in connection with the possession, use, occupation, management, repair, maintenance, or control of the Demised Premises, any portion thereof;
(ii)arise from or are in connection with any act or omission of Tenant, or Tenant's agents;
(iii)arise from or are in connection with any work Tenant is permitted to do hereunder;
(iv)result from any default, breach, violation or non-performance of this Lease or any provision therein by Tenant; or
(v)result in injury to person or property or loss of life sustained in or about the [premises] unless such injury is due to the fault or a breach of this Lease by Landlord and provided it is possible to give advance notice, notice of said default or breach has been give to Landlord in writing prior to any such injury or loss of life."
In its prior order the court decided that not only was there a factual dispute whether C2 was the assignee of the lease, but also whether the landlord had played any supervisory or directional role in the injury producing work (e.g. been actively negligent). Now that Consolidated has proved C2 is the assignee of Chroma's lease, the court will reconsider whether Consolidated has also proved that Sanatass' accident is not its fault." As the court has already decided, Attorney Segal's testimony on this issue is based upon hearsay, and not upon his personal knowledge of the facts. Thus, Segal's testimony at his deposition is not probative, it is not evidence in admissible form, and therefore did not, and still does not, support the grant of summary judgment to the owner on its defense and indemnification claims.
Schimmel is, however, Consolidated's general partner and he does have personal knowledge of the facts. He has provided a sworn affidavit. In the affidavit Schimmel states that he did not know any HVAC work was being done on the 11th floor and that he only learned about it after this lawsuit was brought by Sanatass. Schimmel also states he, nor any one else employed or otherwise affiliated with the owner, gave any permission or authorized any HVAC work to be done in the demised premises. Schimmel denies that he nor any other person employed by or affiliated with Consolidated supervised, directed or otherwise exercised any kind of control over the HVAC project or the installation of the unit that fell on Sanatass.
C2 produced its director of operations, Craig Szelestey, for a deposition. Szelestey testified at his EBT that he knew about the project and that the work was being done, he denied, however, being in charge of it or having any supervisory or directional control. He did not know [*5]who had hired the HVAC company doing the work (J.M. Hanley), but he did know that the installation of the unit was a special project" and not part of a service contract that C2 had with another company who is a named as a 2nd - 3rd party defendant in this case. Although Szelestey has some experience as a laborer he does not know anything about HVAC units.
On a motion for summary judgment the court cannot and should not resolve issues of fact. Here, however, the landlord has proved its claim which is that it had no involvement in Sanatass' accident and therefore was not at fault," within the meaning of the lease. Schimmel (a person with knowledge of the facts) has established that he did not, nor did anyone else associated with the owner, know about the HVAC project taking place in the demised premises which were occupied by C2, the tenant. Schimmel has also established that he personally only learned about the project only after Sanatass brought this action against Consolidated. Consolidated denies C2 sought permission for this project, or that Consolidated had any notice of it. Thus, Consolidated has met its burden on this motion for summary judgment on its contractual defense and indemnification claims against C2. E.G. Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985); Zuckerman v. City of New York , 49 NY2d 557, 562 (1980). The lease indemnification provision does not violate General Obligations Law § 5-321 because it does not indemnify the owner for its own negligence. Rivera v. Ray Bari Pizza, 50 AD3d 607 (1st Dept 2008).
C2's submission in opposition raises no unresolved issue of fact for the jury to decide and
thereby defeat the motion. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986);
Capelin Assoc. v. Globe Mfg. Corp., 34 NY2d 338, 341 (1974). Therefore, Consolidated
has proved it is entitled to, and is hereby granted, summary judgment on its defense and
indemnification claims against C2.
Recapitulation
The court has granted Consolidated permission to reargue its prior motion for summary judgment against C2 and the court's decision denying it. It has, however, denied the motion for renewal. Upon reargument, the court modifies its prior order to grant Consolidated summary judgment against C2 on its breach of contract (failure to provide insurance), defense and indemnification claims.
Although Consolidated contends that C2 is responsible for all of its resulting damages,"
such as defense costs, etc., this is not a sum certain, but must be decided at a hearing. The issue
of damages shall be tried following the trial on damages in the personal injury action; and it is
further
Conclusion
It is hereby
Ordered that Consolidated's motion for permission to reargue its prior motion for summary judgment and this court's prior order is hereby granted; and it is further
Ordered that upon reargument, the court modifies its prior order and grants Consolidated summary judgment (liability) on its breach of contract, defense and indemnification claims against defendants Chroma Copy International, Inc., Chroma Copy International, L.P., Chroma Copy International, Ltd., Chroma Copy of America, Inc., and C2 Media, LLC; and it is further
Ordered that the motion to renew is denied; and it is further [*6]
Ordered that the issue of damages shall be tried following the trial on damages in the personal injury action; and it is further
Ordered that any relief requested that has not been addressed has nonetheless been considered and is hereby expressly denied; and it is hereby
Ordered that this constitutes the decision
and order of the court.
Dated:January 29, 2009
New York, New YorkSo Ordered:
______________________
Hon. Judith J. Gische, JSC
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