Tower Ins. Co. of N.Y. v Wheaton/TMW Fourth Ave. LP

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Tower Ins. Co. of N.Y. v Wheaton/TMW Fourth Ave. LP 2012 NY Slip Op 30515(U) February 29, 2012 Sup Ct, NY County Docket Number: 115755/07 Judge: Saliann Scarpulla Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY / , \ PART 1 - INDEX NO. MOTION DATE MOTION SEQ. NO. SEQUENCE NUMBER : 005 DISMISS -- 1. CHECK ONE: 2. ..................................................................... CHECK AS APPROPRIATE: ...........................MOTION 3. CHECK IF APPROPRIATE: cl NON-FINAL DISPOSITION u CASE DISPOSED 1s; I3 GRANTED nDENIED SETTLE ORDER ................................................ I? DO NOT POST nGRANTED IN PART CJOTHER nSUBMIT ORDER FIDUCIARY APPOINTMENT 0REFERENCE [* 2] Plaintiff, Indcx No. 1 15755/07 DECTSTON AND ORDER -against- WHEATONITMW FOUR'I'T I AVENUE JJ', PREMIER CONl'RAC1'INCr OF NIXW YOKK, INC., VACHRIS ENGINEJ7IUNG, P.C., HE2 PROJEC'J' DEVELOPMENT, TLC and S&S CONSTRUCTION GROUP, INC., Defendants. _________r___r_______r______l___r_______------------_---------------- X For Plaintifl LAW Officc of Steven G. Fauth, LI .C 10 Wall Street, 28'" Floor 1 NEW York, NY 10005 For Dcfendant Vachris Engincering, P.C.: Milber Makris Plousadis & Seiden, LLP I000 Woodbury Koad, Suite 402 Woodbury, N Y 11797 For Defendant Preniier Conltncting of Ncw Yolk, Inc.: hhmuty, Dcmers 62 McManus,Esqs. 200 L.U. Willets Road Albertson, N Y 1 I507 For Defendant WheatoidTM W Fclurth Rvenuc LP: Molod, Spitz & DeSanlis, P.C. 1430 Broadway Ncw York, N Y 10018 For Dcfendanl HE2 Project Developrncnt, L I C : Harris, King & Fodera One Battery Park Plaza, 30'" Floor New York. NY 10004 For Defcndant S&S Construction Group, Inc,: 1 1 Martinc Avenue, Suite 750 White Plains, N Y 10606 HON. SRLIANN SCARPUTLA, J.: Motion sequence numbers 004 through 006 in the above captioned action are consolidated for disposition. In motion sequence num her 004, dcfendant S&S Construction Group, Inc, ("S&S Construction") moves, pursuant to CPLK 321 1 (a)(S), to disnliss all claims and cross 1 [* 3] - claims as against it on the grounds that thc action is time barred by the applicable statute of limitations. In motion sequence number 005, defendant Vlicliris Engincering, 1j.C. ( Vachris Engincering ) inovcs, pursuant to CPLR 32 I l(a)(5), t o dismiss thc complajnl and all cross claims as against it, based upon the applicablc threc-year statute of limitations. Alternatively, Vnchris Engiiieering moves, pursuant to CPLK 32 1 1(a)(5), to dismiss all claims against it with rcspcct to property dainage that occurred prior to July 20, 2007, based upon the applicable thrce-year statute of ljniitations. In motion sequence nuin her 004, dcfendant HE2 Pro.ject Development, LTX ( HE2 Project ) JTKWS, pursuanl to CPLR 3025, for leave to xcrvc an ainendcd answer io the complaint, and pursuant to CPLR 321 l(a)(5), to dismiss claims und cross claims assertcd against it as barrcd by the statutc of limitations. l laintiff Tower Insurance Company of New York ( Tower ) brings this action to recover approximately $87,844.72 in property dainagcs, which it paid to its insured. 414 4 hAvenue Realty Corp. ( 4 14 Realty Corp. ). 4 14 Realty Corp. is the owner of a seven- family rcsidential apartment building locatcd at 4 14 4 Avenue, Brooklyn, Ncw York ( No. 4 14 7, which was allegedly damaged during a construction projcct on the adjacent property at 4 10 4 Avenue, Brooklyn, New York ( No. 4 10 ). Defendant WheatodTMW Fourth Avcnuc LP ( Wheaton ) is the owner of No. 410, which is also known as 25 1 Seventh Avenue, Brooklyn, New York. Coinmcncing in the spring of2007, Wheaton demolished the existing building at No. 4 10 and constructed 2 [* 4] a new mrrltifamily condominium apartment building at the site. Wheaton hired HE2 Project as its construction inanager and geiicral contractor to oversee and manage the dcmolition, excavation and/or construction activities at No. 4 10. Wheaton also hired S&S Construction and defcndant Preiiiier Contracting of New York, lnc. ( Prcmier Contracting ) as contractors, and Vachris Engincering to dcsign and oversec construction activities at No. 4 10, including the underpinning, supporting, footing and/or foundation work. According to Tower, 4 14 Realty Oorp. discovcred the damage to its property in late 2007. On November 27, 2007, 4 I4 Realty Corp. commenced an action against Wheaton and Premier Contracting by filing a simimons and complaint ( the Original Complaint ). ¬ E 2 Prqject, S&S Construction and Vacliris Enginecring were not named as defcndants in the Original Complaint. On May 16, 2008, 414 Really Corp. submitted an insurance claim to Tower based upon the damage to its properly as a result of thc construction work at No. 4 10. l ower paid $87,844.72 lo 414 Realty Corp., less a deductible of $2,500.00 On February 1 I , 20 10, Tower, as subrogee, took over the within action and its attorneys wcre substituted as counsel for 41 4 licalty Corp. s personal counsel. On July 20, 2010, Tower filcd a Supplcrnental Suininoiis and Amended Complaint ( the Amended Complaiiit ), naming itsclf as plaintiff and adding HE2 Projcct, S&S Construction and Vachris Engineering as additional defendants. In its Amended Complaint, Tower asserts 3 [* 5] claims agxinst Whoaton for ncgligenl hiring ( h t caiisc of action), negligcnt supcrvision (second cause of action), and negligencc (third cause of action). As against Premier Contracting, Vachris Engineering, HE2 Projuct and S&S Construction, l ower alleges a came o l action against each based upon ihcir allegcd fdilure to usc reasonable care (fourth, fifth, sixth and seventh causes o r action, rcspeclivcly). On January 20, 201 I , defendant HE2 Project servcd its answcr to Ihc Amended Complaint, alleging cross claims against co-defendants Wheaton, Premier Contracting, Vachris Enginecring rind S&S Construction. On April 8, 20 1 I , defendant Premier Contracting servcd its amended answer to the Arncnded Complaint which included cross claims against co-defcndants Whcaton, Vachris Engineering, HE2 Project and S&S Contracting. The Motions to Dismiss Defendants HE2 I k j ect, S&S Construction and Vachris Engineering (together, the moving defkndants ), who were not named as defendants until Tower filed its Amended Complaint on July 20, 20 I O , assert that the action is time-barred as to them because the allegcd property damage occurred more than three years prior to conimcncement of the aclion as against them. CPLR 214(4) provides that an action to recover damages lor injury to property must he comnienced within three years. Jn New York, a cause of action for injury to property begins to accrue on thc date of injury. Set Verizon-New York, Jnc. v. Reckson 4 [* 6] Assoc. Really Gorp., 19 A.n.3~1 1 ( 1 Dept 2005); Munlmltanvilk Cell. v. .James John 29 Romeo Consulting Engr., P.C., 5 h.11.3d 637 (2d Dept 2004). Thus, the moving defendants asserl that any property damage claims arising prior to July 20, 2007 are barred by the statute of limitations. In support of their contention that the damage to No. 414 occurrcd prior to July 20, 2007, thc moving ddendnnts cite thc following allegations, which are in the Origilnal Complaint: 9. On and about February 13, 2007, the plaintif r received a notice from dcfendant WheatodlTMW ( the Notice ) that demolition, excavation, and construction of a new building at 4 10 4 hAvenue, dk/a 25 1 Seventh Strect, Brooklyn, New York 1 12 15 would begin no lcss than five ( 5 ) days from the reccipt of the notice. A truc and accurate copy of the nolicc is annexed as Exhibit A . 10. The notice further specifjicd that no work would be performed unless the required approvals and permits are obtained. 1 1. On and shout Febrziury 13, 2007, the defendants caused thc property at the site located at 4 10 4 RvenLie, d k / a 25 1 Seventh Street, Brooklyn, New York 1 12 15 to be cxcavated and thc building located lhereon to be dcmolished. 12. That during thc excavation, demolition, and construction at 4 10 4 Avenuc, allda 25 1 Sevcnth Strcet, Brooklyn, New York, 1 12 15, the dcfendants caused the foundation wall and the footing of the plaintiff s adjacent and abutting bidding to become exposed. 13, That clawing the course oftlit7 excavution, dcmdition, and cnnstriiction at 4 10 4thAvenue, dlda 25 1 Scventh Street, Brooklyn, New York, 1 12 15, and adjacent to 5 [* 7] the west wall-of plaintiff s building, the dcl endants in a negligent andlor grossly negligent, reckless, and wonton lashion, undermined the roundation of the plaintiff s building causing pcrmanent and irreparable damage J heAmended Complaint was later chmged to read as follows: 3 3 . That during the course of demolition, excavation and/or construction activities at the Property, the Defendants, jointly and severally, caused the foundation wall and the footing of 14 141 Kcalty Gorp's Building to become exposed. 34. l h a t during the course of demolition, excavation and/or construction activities at the Property over ihe course o m m y months, and adjacent to the west wall of 14141Kcalty f Corp. s Building, thc Defendants, jointly and severally, in a ncgligcnt and/or grossly negligent, reckless, and wonton fashion, undermined the foimdation of 14 141 Realty Corp. s Huilding The moving defendants contcnd that, pursuant to paragraphs 10 - 13 of the Original Complaint, plaintiff 414 Realty Corp. admitted that the damage to its building occurred on February 13,2007, and that thc action is thercfore barred by the applicable three-year statute of limitations. Vachris Enginecring liirthcr argues that thc allegations in the Original Coinplaint constitute a formal judicial admission which is now binding upon Tower. It is well settled that on LZ iiiotion to dismiss, thc facts in the pleadings must be construed in lavor of thc noiiimovant and the court inusl accord plaintiffs thc benefit o l evcry possible favorable inference. Goldman v. Metropolitan Lge Ins. Ch.,5 N.Y.3d 6 [* 8] 56 1, 570 120051; Leon v. Martinez, 84 N.Y .2d 83, 87 (1 994). rhis is tnie even on a - motion to dismiss on the ground that thc actiori is barred by the applicable statute of limitations. See 190 Murray St. Assoc., LLI v. City o Rochester, 19 A.II.3d 1 I 16 (4t f Dept 2005); Barnard Coll. v. Tishmun C onstr. Cory. of N. Y., I A.D.2d 193 ( lstDcpt 26 1999). As an initial matter, thc moving dcl endants interpretation of the above allcgations is incorrect. l lic Original Complaint clcarly allcges that on and abnul Fcbruary 13, 2007, 414 Really Corp. reccived a notice stating that dcinolition at No. 410 was to bcgin no earlier than five days a ¬ter reccipt of the noticc, that on and about February 13, 2007, tlic defendants caused the property to be cxcavated and the building thereon demolished, arid that during thc course of excavation, demolition and construction of 1he new building, thc plaintirf s building was damaged. Excavation, demolition and construction does not occur within a single day and, in any event, 4 14 Realty Corp. did not allege that the damagc to its building occurred on Fcbruary 13, 2007, but rather on and about February 13, 2007. In addition, even if 414 Realty Corp. had alleged that the dainage to its building occurred on February 13, 2007, wherc a coinplaint is amended, my formal judicial admission delcted by the aincndment is relegated to the status oll an informal judicial admission which requires further cxplanation. Imprimis Invs. v. Insight Venture Mgt., 300 A.D.2d I09 (1 at Ilept 2002); see d s o Stnuher v. Brookhuven Natl. Lab. . 256 A.D.2d 570 7 [* 9] (2d Dept 1998). Accordingly, sincc 4 14 KcAty Curp. s allegation that tlic damage to No. 4 I4 occurred on and about February 13, 2007 has bceii relegated to the statiis of an infonnal judicial admission, rcquiring further explanation, tlic remainder of the motion m i s t bc considered in this light. On a motion to dismiss a m i s e of action pursuant to CPLR 32 I 1(a)(5) on the ground that it is barred by the statute oflimitations, a defendant bears the initial burden u r establishing, prima facie, that the time in which to suc has expired. Benn v. Benn, 82 A.D.3d 548 (lSt Depl2011); see also Raptiste v. Hurding-Murin, 88 A.D.3d 752 (2d Dept 20 11). Only if the defendant makes such a prima facie showing does the hurdcn then shift to tho plaintiff to aver evidentiary [acts cstablishing that the case falls within an exception to the [sltattute of [IJimitations . Phil@ F. v. Roman Cutholic Diocex of Lax Vcgus, 70 A.D.3d 765, 766 (2d Dept 2010) quoting Snvarese v. Shatz, 213 A.D.2d 219 (2000). Here, thc moving defendants have failed to inake a prima facie showing that the complaint is untimely. Their motion rests entirely upon the allegations in thc Original Complaint, which, at most, raise an issue as to when the damage to No. 414 occurred. It is noteworthy that in its Verified Answer, Wheaton asserts that the neparlinenl of Buildings did riot issue a New Building Work Permit until April 1 1, 2007, thereby indicating that damages due to alleged faulty underpinning did not occur until after that date. Discovery has not yet taken place and it is the moving defendants who are in 8 [* 10] possession of inf orniatjon rcgarding when various construction activitics took place. The issue as to whether thc plainti rfs claiins are time-barred may be rc-visited after discovery on a motion for summary judgment. Motion Sequence Number 004 Tn motion scyucnce number 004, S&S Construction also raiscs several objections to I ower s scrvice of Amended Complaint in July 2010. As already noted, plaintif1414 Realty Corp. coiiirnenced the within action on November 27, 2007, naming only Whcaton and Preinier Contracting as defendants. Tower fled the Amcndcd Complaint in J ~ l y 2010, adding itself as a plaintif1 and naming Vachris Engineering, HIT2 Pryject and S&S Construction as addilional defendants. S&S Construction first contends that the Amended Complaint is improper bccause S&S Construction was not served until March 17, 201 1. However, by Slipulation dated Febriraty 2, 20 I 1 and So Ordered by this court, Tower s time to serve its Amended Complaint on S&S Construction was extended until April 2, 201 1. S&S Construction also asscrts that CPLR 305(a) requircs that, in order for a new party to bc joined in the action, i-l stipulation of all parties, or an order of the court must be obtained. S&S Construction tbrther contends that under CPLR 32 1 l(a)(3), Tower does not h a w thc legal capacity to step in as plaintifland bring suit against S&S Construction. As to S&S Construction s contention that Tower does not h a w the legal capacity to step in as plaintiff, L[t]hedoctrine of subrogation allows an insurer to stand in the 9 [* 11] shoes of its insured and seck indemnification from third parties whose wrongdoing has caused a loss Cor which the iiisurcr is bound to rcilnburse [additional quotation marks and citations omitted] . Spectra Audio Rt>,wnrch, v, C hon, 62 A.D.3d 561, 563 (IsLDcpt ZHC. 2009j. CPLK 1004 specilically authorizes a11 insurance company to bring the action in the name of its insurcd. However, an insirrcr who has made payment to thc plaintiff inay also inay enforce its right of subrogation by intervening in an action between thc insurcd and thc wrongdoor. Scc Rink 1.7, State nj New York, 27 Misc.3d 1 159 (Ct. CI., 2010), afld Lfbr rerisom stated below 87 A.D.3d 1372 (4t Dept 201 1); cf I 1 Kssex St. Gorp. v. Tower Jns. Co. of N.Y, 70 A.D.3d 402 ( l s tDept 2010). Under CPL,R 1012 (a) (3), aparty may intcrvcne as ofright when the action involves . . . a claim for damages for injury to, properly and the person may be alfccted adversely by the judgmcnt. Here, l owerwas erititlcd to intcrvcne as of right. S&S Corporation is, however, correct in its assertion that a party may be addcd to a pending action only with leave of court. CPLR 1003 providcs, in part, that: Parties may he added at any stage orthe action by leave of court or by stipulation of all parties who have appcared, or once without leave ol: court within twenty days aftcr service of the original summons or at anytime before the pcriod for responding to that summons expires or within twenty days aftcr service of a pleading responding to it. CPLR 305 (a) provides, in part, that: Wherc, upon order of the court or by stipulation of all parties OF as of right pursuant to section 1003, a new party is joined 10 .. .. . - [* 12] 998, 998 (2d Dept ZOlO), qunting-Endicott John,rmn Corp. v. KoiTikIndzis., 249 A.D.2d 744,744 (3d Dept 1998). Here, Tower can hardly be heard io complain of any delay due to HE2 Project s delay in servjng an aiiiended answer, given Tower s failure lo move lor leave to add HE2 Prqject as a defendant. FTowcver, as previoirsly noted, the moving defcndants havc not met their burden of proving that the statute oClimitntions has cxpired and have mcrely raiscd a question as to that issuc. The issue may be raised agairi alter discovcry on a motion for summary judgment. Accordingly, based upon the foregoing, it is OIWEIUID that as to motion sequence nuinher 004, thc motion by defendant S&S Construction Group, Inc. to dismiss the action and all cross claims against it is granted and the complaint is dismissed in its cntircty as against said defendant and the Clerk is directed to enter judgmcnt accordingly in favor of said defcndant; and it is further ORDERED that the action is severed and continued against the remaining defendants; and it is rurther OKDEKRD that the caption be amendcd to reflect the dismissal and that all firturc papers filed with the court boar the amended caption; and it is further O R L ) E ~ that counsel for that moving party shall serve a copy of this ordcr with ~l notice of entry upon the County Clerk (Room 300) and the Clerk of the Trial Support Officc (Room 158) within 20 days of entry, who are directcd to mark the court s records to reflect the change in the caption hercin; and it is further 13 [* 13] - ORDEKED that as to inotion sequence number 005, the rnotioii by defendant Vachris Enginecring, P.C. to dismiss the complaint and all cross claims as against it is denied in its entirety; and it is fiirther ORDERED that as to motion sequence number 006, the motion by defendant HE2 Pro-ject Development, LL,C to dismiss thc action and all cross claims against it and [or leave to scrve an amended aiiswcr it is granted only to the extcnt that the ainended answer in the proposed form annexed l o moving papcrs shall he decincd served upon service of a copy of this ordur with notice of entry thercof upon the County Clerk (Room 300) and the Clerk of the Trial Support Offllce (Koom 158) within 20 days of entry. This constitutes the decision and order of the Court. Dated: New York, New York February , 2 0 12 d-4 E N 1 E R: ' 14

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