Depouli v Kennelly Dev. Co., LLC

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Depouli v Kennelly Dev. Co., LLC 2009 NY Slip Op 33470(U) December 3, 2009 Supreme Court, New York County Docket Number: 769000/08 Judge: Karen S. Smith Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] • SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PART PRESENT:_.._~KA=-=-R=E~N~S~.S~M~II_H~.~-- 62 Justlt;e~ CONSOLIDATED INDEX NO. __._~7.:;:89000f~~08-- IN RE: EAST 51 8T STREET CRANE COLLAPSE LITIGATION ~-FILE MATTHEW DEPOULI, et al., INDEX NO. Plalntlffs, 12/17l09 MOTION DATE -vMOTION SEQ. NO. 001 ! KENNELLY DEVELOPMENT COMPANY, LLC, et al., MOTION CAL NO•. ___.._ _ _ __ Defendants. The following p9ens, numbered 1 to_!_ were read on this motion for/to Q8'm• RECEIVED Notice of Motion' - Affidavits - Exhibits DEC !PAPERS NUMBERED 1 8 2009 Notice of Cross-Motion -Affidavits - Exhibits 2. 3 Answering Affld*vlts - Exhibits 4, & ;: Replying Affidavits rec I; 7. 8 0 (.2x Cross-motion · . ' . · NEWYORK Cross-Motion:(!] Yes 0 No couNTYCLERK'S 0FF1ce Upon the foregoing papers, It 18 ORDERED that this motion by defendants Ne~ York Crane & Equlpm~nt Corporation and!James F. Lomma, seeking an order dismissing the emoUonal distress clalrrm of plaintiffs Sarah .Shumway; Needhl Shdl and Rachel Bernard, and an claims against J~ F. Lomma, pursuant.to CPL~ § 3211 (a)(7), Is granted In part and denied in part as forth more fully below~ Both tit• cross- . motion by deten~a1nt Reliance ·Construction Ltd. dlbla. RCG Group, a/h/a Rella*• ConatruCtlon Gr~ and ••t RCG Group Ltd. ~nd the cross-motion by defendant JBS Constructl~n Manag~ent, Inc., ~Ing __. older dismissing the emotional ·distress claims of plalntlffs Sarah Shumway, Neadhl lSheth and Richel Bernard, pursuant to CPLR § 3211 (a)(Z) and/or CPLR § 3212 for failure to state a cause Of action, are granted In part and denied In IN*t, as provided more fully below. I This actl~n stems from an accident that occurred on March 15, 2008, when a crane Involved.In construction at io3 East s1• Street, New York, New York, collapa_,, portions qf which came Into contact with nearby bullc!llngs.1 At the. time of the collapse, plaintiff& Matthew DePouU, Sarah ShUmway and Needhl Sheth each resided In apartments In the building known aa 301 East 50tt1 s~ New York~ New YOrk. . Plalntlffa Rachel~Bemard and Joyce Munn both resided Jn apartments In the b_,llcHng known ·311 East 50tt1 Street, New York, New York. · · · as l There are numerous related actions, each of which' has been or will be consolidated for limited purposes under Consolidated IndexiNo. 769000/08, while each a9tion maintains its own individual Index No. aa Page 1 of s _.,s.: : w~ll. [* 2] ------------------- ··-··· ;· ,.. ;, Defendants New York Crane·& Equipment Corporation ("NY Crane")·adcs Jainea F. Lomma ("Lomma") now:move, pre.oAnswer, for an order, 1) dismissing all clalms agal$t Jam.. F. Lomma, lndMdually, pur8uant to CPLR § 3211(a)(1) and (a)(7), as he ls merely the Own'rlPrasldent of the company and cannot be h•ld lndlvldually Uable, and 2) dismissing the emotional dis~ claims· of 'plaintiffs Sheth, Shumway and Bernard for failure to state a cause of action~ punsuant to CPLR!§ 3211(a){7). Defendanta Reliance Construction Ud. dlb/a RCG Group, s/h/a Reliance Construction Gro•p and RCG Group Ltd. ("Reliance") anci JBS Construction Management,. Inc. each cross-move for an ~rder dismissing those portions of the Verified Complaint seeking to recover for emotional dlstreaa ~ behalf Of Sheth, ShWllW&y and Bernard. Plaintiff opposes the motion and botl1 crosa~otlons. · In deciding a motion brought pursuant to CPLR § 3211(a)(7) for failure jo state a cause or·actton,.the Complaint should be liberally construed and ·the facts alleged In the Complain~ and any aubmlnlons in opposition to the dismissal motion accepted aa true, according plaintiffs the beneflt:of every_ponlble favorable Inference. (511 Weat 232"d OwnGIS Corp. v Jennifer Realty Co., 98 NY2d 144, 152 (2002] (Internal cttatlon8 omitted]). "The motion must be denied If from the pleadlnp' four comers 'factual allegations are dlacemed which taken together manifest any cause of action ~nlzable at faw'.".·(Id.). Affidavits are considered "only for the limited purpose of determining whethe~the ptalntlff .._.stated a clai not whether he has one and, In the absence of proof that an alleged material 1a·_.,ntrwt.or'beyond · significant dlapUte, [the Court) ·must not· dismiss the Complaint". (Wall Stl88t Associates. v B~ky etal., ,_ct 257 AD2d· 526~ 5~6-7 [1-' Dept 1999)). . . Clalms Against 4amea F. Lomma .. I • . NY Cran• and James F. Lomma move to dismiss plaintiffs' claims agal~ Lomma, lncllvldually, . contending that plaintiffs have falled to allege. any facts thaf would justify pler$1ng the corporate veil and holding Lomma liable lndlvkh1ally. L0mma. the owner and president of NY C~ne, subn'tlt8 an iffldavlt In · which ·he affl~ that he ·had no personal Involvement with the purchase, ·nua1•anc8:0r tease of the subj.ct crane. In addition, Lomma affirms that the company Is adequately capf:tailzad mid there Is no co-· mingling of corporation funds, nor doea he exercise undue control over th• o~.emp~pes or accoilnting. Pla~tiffa· argue that there ls·•ufftclent ba8fs·for allowing them·to ~plore In dl9coveiy the possiblllty that LOmma should be held personally Hable. Generallj, a corporation exists Independently of Its owners, as a separate regal .entity, and the owners cannot nonnally be held liable for the obllgatlons of the corporation. 'Ate ~pt Of ~piercing the corporate vell" ~ a llmttatlon on. this prlnclpal, allowlng the Court to "dlsrega"' tht Corporate: form ••• whe,.ever neCMSaiy ·'to prevent·fraud or to achieve .equity."' (Joseph Monts v New Yoik ' Department of Taxation and Finance, et al., 82 NV2d 136, 140 [1993], quoting~ Altciaft Trading Co. v Manufacturers Trust Co., 297 NY 295, 292 [1948]). Generally, ,ple~mg the:corpOrate veil requires a showing that, 1) the owners exercised complete domination of the cprpotauon In Nepect to the transaction· attacked; and 2) that such domination was used to commit fraud ot wrong agalMt the plalntlff whl~h resulted 11?.~lalntlff's Injury. (Id. at 141.(lntema• citations omitted]). "Thai party eeeklng to pierce the corporate veil mt,1st establlah that the C>Wners, through their de>minatlon, abus$1 the prlvltqe of doing business In the corporate fonn to perpetrate a wrong· or Injustice against (the P,laintlffsJ ·•uoh that a court In equity wlll Intervene." (Id. at 142, citing to Matter of Guptill Holding Corpotatto~. v S.. of New VOik, · . 33 AD2d 382, 38S (3d Dept 1970), afrd 31 N.Y.2d 897 (1972)~ : . The only-al allegations specific to Lomma In plaintiffs' Verified Cohtplatnt·are that "9 owned · and/or controlled NY Crane and provided services related to the construction Jtroject at ·303 East S1at Street, and that Lommawaa familiar wtth the equipment owned· by NY Crane, and the co~lllon· and . maintenance· of same, Including the subject crane. In thelr·opposltlon to NY Clfane and 1.0mma' motion-, · plaintiff sQggesi. that Lomma'a affldavlfla Insufficient to support dlsmlssal ot~r clalma aiatnat him, because It does l'Jot add1'888 Lomma•s role In, 1) acquisition and selection of equl~ Including the crane; 2) the ma.;ner In which equlpme~ Is malntal~ed; 3) the pollcles affectlft$·.ma1nte1.w1ce:of · equipment; 4) th~ ultimate decisions affecting .the quality of.ctqulpment and re,..._; _S) oreallng, agrQelng.to and driving the schedule of work at the conatructlon site. Plaintiff also points to another~ accident,· alao·lnvolvlng NY Crane equipment. which ·occurred Just two months after the·...._nt ·accident, noting that In lawaults related to that accident .It has· been alleged that NV Crane, at Lom~'s- direction, chose to have that crane repaired by a less-expensive vendor with questionable .quallflcatlon•. Page 2 of . • ···_' ;._ ·~ .i ... - s [* 3] th. Even a..umlng that each of the allegaUons against Lomma In both Verified Complaint and the affirmation in o,;poaltlon are true, plalntfffa have failed to allege sufficient fact; to support a ·cause of action against Lomma ktlrectly and Insufficient facts to pleree NY Crane's corporate PNIU~lng-that Lomma was heavily Involved with each of"the areas desert~ In the preceding parag~h, ••.~ euggeat, . only supports Inference~ he was an Integral of NY Crane's corpOra• ..........nt •nd ventures, precisely what the Job of president or owner would nonnally entail. That. L°"*"8 may .ltave ~red, · equlplnent to ~ serviced and repalr~d· by a questionable vendor don not glv• rlt•· to· in..lnrtfencathat be "abused the p~llege of doing buelneaa In the corporate tonn _to perpetrate a ..,..SI or·lnjustlce against" the plalntlffs, s~h that this Court wlD Intervene In equity and find Lomrna pe,.onally .subject to llabHlty. (Joseph Morris New York State Department of Taxation and Rnance, et al., s'µpnt at 140). None of the facts a l • go to the elements plaintiffs.must prove to pierce the corpo,.te vell •uch ae complete domination and !commlngllng of funds. Aa such, au claims agalnet Lomma l~~ually m119t be dlasnlaaed. •u. an part v . I . i Emottonal Dl8t"8s/Damages Clalms2 ; · . . ; · i NY Crane, Reliance and JBS each ·contend that the emotional dlstreas ·tlalina of plaintiffs Sheth,. Shumway and ll&mard should be dismissed for failure to state a cause of actl~forauch ntllef, as their respective alleg&d emotional distress la based on the damage suffered to theli' property. Plalntlff opp08es the motion and cross-motions, arguing that the facts juatify allowing plalntlffsi to proceed their clalms for emotional dlStress. · · on I "When ~ere Is a duty owed .by defendant to plaintiff, breach of that dufy ntSultl'.'1 dlr8ctly 1n emotional hann ;Is compensable even though no .physical Injury occurred ... (K1Nmedy v llr:K..-m Co., et. al., 58 NY2d SOOt ·504; citing, Ferrara v Galluchlo, 5 NY2d 16 [1988} (physl~ tnJu~:·anagM.J:· llaftslla v . · State of New Yo;k, 10 NY2d 237 [1981] (no phyalcallnjury); Johnaon v State·of.N•:Yolt,.3T""2d 378· (1975). [no physl~al Injury];· La,,do v ~of New Yorlr, 39 NY2d·.ao3 [1978] [no!pl\Y81caJ.lnJu,Y]). Further., "there may be recovery for.the emotional hann, even In the absence of fear of potential· phyalcal· Injury, to one subjected d~rectly to the. negUgence of ·anof:ber as lo.ng as the psychic lnJ&4ry waa g&nulne, substantial, and proximately! caused by the defendanfs conduct.n (Howard v Lecher, 42 NY2d 109, 111 (1977]). However, emotk>nal lnjurtes may not be based aolely on damage to one's PfOPeftr· (S~. e.g.,·Stanley ,v Smith, 183 AD2cl 875·(1at Dept 1982]; Fowler v Towri of Tlcond8roga, 131 AD24 919[31d:l)ept1987))~ Here, nel....r Sheath jiOr ShumWaY ,..re II! their apartm&nt or tha · bu~ftdwhen Ille~ collapsed on M•rch ~s. 2008. Whtie these plaintiff& argue they should be allcnteclto •ielntamagea for emotional d~ ba8ed on the fact that they returned to the buHdlng shortlyltheraafl8r·and ''Were qUlcldy exposed to the horrors of the Incident and 'what might have been,"' this wouh!I allow Shffth and Shumway to base their cla~ms on the "horror" of viewing_ their property·damage. Pla1nt"9 argue that the Images of what eould hav~ happened are emotionally damaging and real. I The Cou" does not deny that Sheeth •nd Shumway may have aufferect·aom9· emotional distress. However, not all, emotional dlatress la recoverable under the law of this State.! There Is· contention that either Sheeth o~Shumway were ever In phys~al danger themselves, or reasorka~:~·they were In danger, nor Is ~ere an allegation .that· either actually;euffered physical Injury. thefe appeata to be no basis, oth~r than .the damage their property .ailffered and thelr·knowted~e If tltev·bad been tuun@ they could havelbeen In danger, upon ~lch to base allegations of emotlorial CllstreN,· which Is lnsufflCktnt. no J1b•Nfore• th•· I Plaintiff Bemard must be analyzed separately, as ahe was at home In ~apartment.at tfie time of the collapse. Aqcordlng to the Verified Complalnt.· Bernard was recovering frdm unapeclfled. aurgety at . home when ahejheard a thundering nol88 and.felt the. bulldtng shake. Look1n9 out flerapa~ window, I . ·. · l · i I l . rt'his Court has· had several opportwii ties in a ~er of In J;'e·.: . East Slst·st~eet Crane Collapse Litigation cases to discuss ~he applicable law and the partlies are referred thereto for an in depth analysis. (See~ e.·g. Battistello Bast Slst Street Development Company, et· al.·, Jlndex No. · 111409/2008,I Motion Seq. 001 [May 12, 2009); Antoniello v Ba.St Slst·Street Development !company, et al., Index No. 102024/2009, Motion S~ .. 001 [November 2 iv . ·,,,: 19 I ! ~009)) • : . Page 3 ·o·f ., .... ~ ... ' ;..;::.·:.··· . ..·· s . [* 4] if.: .. she saw one ore lndlvldua.S cllnglng to the cab ·of the crane aa It careen. . lqto buHdlngt and then fell to the ground, n rrowly missing her bulldtng•. There la no allegatlon that· Bem~a bUI~ ~ hit by the crane when It llapsed or suffered any structural damage~ but the Verified Cobt'*lnt d~ allege that Bemard saw t cab of the cranefalllng·toward.her·buUdlng and hitting other~ulldlngs on lt8·way ~own.= Bemard claims that after waiting for the building to at0p shaking she evacua* ·the bullcllng. lihe took the elevator down to-evacuate the buUdlng because of her phystcal condition, and was fllled·wlth fear· and anxiety, wondering If the elevator.would ·remain In service until she could exit bulkllng •. Bemard ~•lao claims that when she returned to .bulldlrig, the eS.vator was ·out of service Jnd that she.heel to traverse elg_ht ftlghta of ~Ira, aggravating her aurglcal co~dltl~ and Impeding her rec:jovery. Dust from the crane's collapse made .ffls way Into Bemanl's apartment and _&llegedly caused unapeclfhld::t>,o;titY·dmnap and adverse health •ffects. . · · Jb• the I · i '• . . Asauml"' the allegations In· the Verified Complaint to be true, Bemarctis ·ctallne for. emotional distress wlll notibe dl8mlsaed at th'8 early stage. Contrary.to Bernard's argument, her·clalma are.not slgnlflcantly sl~llar to those of Margery Jane Sonia, a plaintiff In the Battlst811~ action, but-rather resemble the claims mad~ by plaintiff Wilfredo Vego In another consolldated action, Anlpnlello. (See, Index No. 102024/09, MoU,n Sequence No. 001. [November .16,·. 2009)). In that case, Vego!al~ed. thl.the atandlng outside his wl~~ow loOklng up at the crane and discussing the construction Y4len he~ob•rveeUhe crane falling toward his building. When the crane came to ntat on the ground, Vego ~lleg8d f.hat It .... leaning ·up · against hie apa~ent window. In denying NY C~ne•s motion to dismiss VegG,'• ·Clatma ·for emotional . distress, this_ Colirt found hlS proximity to the accident and the. reasonable I~ that he waa In -harm~• way dlapoalUve.!Although there .are-differences, the most lmpOl'iani being was actually Impacted by the ~rane while Bemard'e.was not. at this early .stage the Court fi•da· under all~· . clrcum8~~mces a~leged in the Complaint, such as the shaking of the building a~d that Bemant watched the cab of the crane1fall toward her bulldlng, that It la reasonable to· Infer ·that Be"*'rd bellevad·•he waa In hann•a way and ~at she feared for her safety. . ;. . w a s _ .· tt18t1v8*0-. diam~ bu~urt AlthougJ Bernard's clalm8 for emotional .distress are not being the .expllcltly that aueh claims ant supported.by elth•r 1) the atlegatlOn!s aboUt•'br8akclown of the elevator, • h forced her to use the stain.. her to·tha bulldtngJ exa~-tter·cond~, or 2t her observ•t1on of unrelated incllvlduals falling With or ffom the crane ca~. .. rejeCta her argu.ant ui'>on. return i Bernard ttas made no allegation .and submitted no evidence to. lndlcate!that the elevator outage In her bulldlng was caused by the crane collapse and n ... not reasonable to lnferlcausatl~n .. her bulldlng was not hit by t~ crane. · more In add~n, Bernard's allagaticllls that she.suffered emotional d~Mllfng onlJ.or lndlvlduals falling from the crane'•cab. after It collapaed.cannot ·be a basis for · eilni :Clamagaa. Plaintiff cltn to (lo cases which supp0rt allOwlng a l>Jstander claim, oth · known c•~ne of Danger" claim, biased on obaervl.ng: the death or Injury. of·a:stranger. In order . ~ver Ultder a "Zone of Danger" theory, !'a ptalntlff must •tabllsh that he suffered serious emotional ctlatreas thit wu proximately . ca. . . by the ·oiservatlon Of 8 family l!!ft!l!ber's ·death or 88rl0Uf lnlUIY while I.. the zone of danger." aa·a (Stamm v PHH. Vehicle Management Services, LLC, 32 AD3d 784~ 788, 2008 NY $11p Op 8812, *2 (1st Dept 2006] (emp~ula added); citing, Bovsun v Sanpert, 81 NY2d ~19 (1983)). : ~., I : Flnally, ltj should ~ noted that, while the defendant& •raue that they ··~lvely. o.-~ duty to any of the plal...,. In this actton,.ln.a case_·.·such as thls.w.here lasues of.duty n.Y:_IJe:~fY.Hnked to Issues of caus8*n, the Court does ~t view such ·an ls&ue appropriately cWtUnnlned on· a.motion to· . dlsmlas for faltute to state a cause of action. As auch, the Court decHnes to·mtke any d8termlnatlon •t this time to the defendants' duty to plalntlffs, and this portion of U..lr motion la 4tenled without prejudice to . reaubmlt at a later date. · · · u aa ' . Acconllnply, ·n Is ORDE~ that the porUon of ttda motion by defendants· New York craJ. & ~.tlol'POfaUOn and James F, Lomma ·seeking to dlsmlsa plaintiff's compialnt al to James F. Ltmma.fti 1'i Mtlmtv,· 18 granted; It Is furt~er · · · 1 · Page 4.of •• :.' ·~. --- -* ~ •• ·:· •• ...:.. ·:·.-...__. .·:.·:·:. 5 · [* 5] ..... ·. • ORDERED that the portion of this motion by.defend"'ts New York Cra~e & Equipment Corporation and James F. Lomma seeklng·an or:der dismissing the dalms for emotlorial d~,..a by plaintlffa, granted !l!J!!d, SOLELY tO the extent.of dlsmlsslng all such claims asserted - Plalntlffa Sarah ShulnWay a Needhl Sheth; It Is further -•rted ORDERED that the cross-motions by· defendant& Reliance Constru-oh ~. cflbla·RCG Group, 8'11/a · Reliance· Conatructlo.n Group and· RCG ~up Ltd.;._and.JBS Constru~tlonie Man · nt_ inc.,·IHklng an otd dismissing the emotlonal.dlatrea ·claims of plaintiffs, are :granted in part. · to··the·extent of dlemlsal all such claims a88erted by plaintiffs Sarah Shumway and Neeclhl Sheth; It ls : rther · . · ORDERED that the portion of the motion and cross-motions seeking a., order dlamlsalng the emotional dlab'eu claims of plalntlff Rachel Bernard~ Is DENIED as provided· above; It Is further i ORDERED that the motion Is denied In all other resp.eta. Thia constitutes the decision and order of the Court. .·\. j. : FILED Dec 08 2009 · NEWYORK· . COUNTY CLERK1S OFFICE · Dated: _ ___,;;;D;;.ii;;ecem~~"~ri:-.;3u..~2*~--__ Hon~ . Karen s. ·smith, J.S.C. I . Check one: D FINAL DISPOSITION [!)NON-FINAL-DISPOSITION Check If appropriate: 0 DO NOT POST Page 5_ o·f 5·

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