Vlahakis v Belcom Dev., LLC
Annotate this CaseDecided on August 22, 2011
Supreme Court, Nassau County
John Vlahakis, Plaintiff,
against
Belcom Development, LLC, RENATO BUSLJETA, BELIC ZDENKO, VALENTINO KRSLOVIC, Defendants.
Belcom Development, LLC, RENATO BUSLJETA, BELIC ZDENKO, VALENTINO KRSLOVIC, Third-Party Plaintiffs,
against
SMB General Contracting Corporation, VICTOR G. DURAN, LUKA PICINIC, MODERN AIR INC. and WINDOW RAMA, Third-Party Defendants.
23285/09
Jules A. Epstein, Esq. - Attorney for Plaintiff
Hymowitz & Freeman - Attorney for Defendant/Third-Party Plaintiffs
Wilson, Elser, Moskowitz, Edelman & Dicker LLP - Attorneys for Defendant, Frank Petruso
Epstein, Frankini & Grammatico - Former Attorneys for Third-Party Defendant, Modern Air, Inc.
Milber, Makris, Plousadis & Seiden, LLP - Attorneys for Third-Party Defendant, Modern Air, Inc. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger - Attorneys for Third-Party Defendant, Victor G. Duran
SMB General Contracting Corp. - Pro Se
Luka Picinic - Pro Se
Window Rama - Pro Se
Thomas Feinman, J.
The third party defendant, Modern Air, Inc., (hereinafter referred to as "Modern Air"), moves for an order granting Modern Air summary judgment dismissing the third party complaint asserted against Modern Air. The defendants/third-party plaintiffs, Belcom Development, LLC, Renato Busljeta, Belic Zdenko, Valentino Krslovic, (hereinafter referred to collectively as "Belcom"), submit opposition. Modern Air submits a reply affirmation.
The plaintiff initiated this action as and against Belcom for damages sustained to plaintiff's newly constructed house located at 27 Mayfair Lane, Manhasset, New York, (hereinafter referred to as the "house"). Belcom initiated a third party action and alleges, as and against Modern Air, essentially, that Modern Air failed to properly install two air conditioning systems at the plaintiff's house.
The movant, Modern Air, has made a prima facie showing of entitlement to summary judgment in this matter. Modern Air has demonstrated that the work performed by Modern Air was proper, and the system installed worked properly. Modern Air has annexed a copy of the plaintiff's expert report, by engineer Liam O'Hanlon, P..E, as well as the third party plaintiff's expert report, by Wiktor Wasilewski, P.E., which do not address any purported failure of the air conditioning system. Additionally, Modern Air has demonstrated that Belcom has stated that the work performed by Modern Air was in accordance with the parties' agreement, and in accordance with the architect's plans.
Belcom, in opposition to the motion, has failed to raise a triable issue of fact to warrant denial of this motion. Belcom submits the report of an architect, Timothy John Costello, in support of its opposition. However, the submission of the Costello report is untimely as Costello was not identified as an expert witness prior to Belcom's opposition to the instant summary judgment motion, and the plaintiff did not comply with the disclosure requirements of CPLR 3101(d)(1)(i). Modern Air provides that the Costello report was never exchanged prior to the motion for summary judgment, and the purported expert's identify was not revealed prior to the instant submission.
Under these circumstances, this court cannot consider the Costello report in opposition to the instant motion for summary judgment. The Second Department has held that the "plaintiff's exepert affidavit should have been rejected since plaintiff did not identify him in pretrial disclosure" and the [*2]defendant was not aware of such expert until plaintiff served his opposition to the motion for summary judgment. (King v. Gregruss Mgt. Corp., 57 AD3d 851) The court further stated that "without expert testimony, the plaintiff will be unable to sustain his burden of proving his case...summary judgment dismissing the complaint...is appropriate." (Id). The plaintiff's expert affidavit should not have been considered by the trial court in opposition to a motion for summary judgment because the expert had not been disclosed. (Wartski v. CW Post Campus of Long Island University, 63 AD3d 916). The Second Department agreed with the plaintiff who argued that the lower court should not have considered the defendant's expert affidavit submitted in opposition for the motion for summary judgment as the defendant did not provide an excuse for failing to identify the expert in response to the plaintiff's discovery demands, and as so, the plaintiff was not aware of the expert until he was served with the expert's affidavit in opposition to his motion for summary judgment. (Construction by Singletree, Inc. v. Lowe, 55 AD3d 861; Yax v. Development Team, Inc., 67 AD3d 1003).
Within the past eight months, the Second Department has rejected untimely expert affidavits submitted in opposition to summary judgment motions. The Court in Pellechia v. Partner Aviation Enterprises, Inc., 80 AD3d 740, found that "the plaintiff's expert affidavit was properly rejected by the Supreme Court because the plaintiff never complied with any of the disclosure requirements of CPLR 3101(d)(1)(i), and only first identified his expert witness in opposition to the defendant's summary judgment motion, after the plaintiff filed the note of issue and certificate of readiness," (Id, citing King v. Gregruss Mgt. Corp., supra). "[P]laintiff's failure to identify expert witness until after completion of discovery precluded consideration of expert's affidavit." (Ehrenberg v. Starbucks Coffee Company, 82 AD3d 829). It was held that the Supreme Court properly declined to consider expert affidavits proffered by the defendant in support of its motion, as the experts were not identified by the defendant until after the note of issue and certificate of readiness were filed attesting to the completion of discovery, and the defendant did not offer a valid excuse for the delay. (Stolarski v. DeSimone, 83 AD3d 1042). It was held to be within the discretion of the trial court to reject as untimely an expert affidavit report submitted in opposition to a motion for summary judgment. (Kopeloff v. Arctic Cat, Inc., 84 AD3d 890). The court provided that no excuse was providing for failing to identify the expert in response to discovery demands whereby the movant was unaware of the expert until it was served with an expert's affidavit in response to its summary judgement motion, "even though [the] record disclosed that expert had been retained by driver approximately 18 months earlier." (Id).
Here, Costello had not been identified by Belcom until after the note of issue and certificate of readiness were filed, and was served only in response to the instant summary judgment motion. Additionally, Belcom offered no valid excuse for the delay. Accordingly, this court must reject Costello's affidavit.
In light of the foregoing, the instant motion for summary judgment is granted, and therefore, the third party complaint, as and against Modern Air, Inc., is hereby dismissed. [*3]
E N T E R :
________________________________
J.S.C.
Dated: August 22, 2011
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