Jankite v CSPN Paliuras Constr. Corp.
2012 NY Slip Op 30959(U)
April 10, 2012
Supreme Court, Suffolk County
Docket Number: 08-39684
Judge: Daniel Martin
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[* 1]
SHORT FORM OROER
INDEX No.
CAL. No.
08-39684
11-003530T
SUPREME COURT - STATE OF NEW YORK
IAS. PART 9 - SUFFOLK COUNTY
PRESENT:
Hon.
K
DANIEL
MARTIN
~
Justice oftKe Supreme Court'
---------------------------------------------------------------X
MATTHEW JANKITE,
Plaintiff,
MOTION DATE
7-5-11
ADJ. DATE
12-20-11
Mot. Seq. # 007 - MD
# 008 -XMD
# 009 - XMD
SIBEN & SIBEN, LLP
Attorney for Plaintiff
90 East Main Street
Bay Shore, New York 11706
MULHOLLAND, MINION, DUFFY, el al.
Attorney for Defendant CSPN Paliuras Construction
374 Hillside Avenue
Williston Park, New York 11596
- against-
CSPN PALIURAS CONSTRUCTION CORP.,
VARDO CONSTRUCTION CORP. and
SALVATORE GAUDIO,
Defendants.
---------------------------------------------------------------X
WILKOFSKY, FRIEDMAN, KAREL, et al.
Attorney for Defendant Vardo Construction
299 Broadway. Suite 1700
New York, New York 10007
MAZZARA & SMALL, P.C.
Attorney for Defendant Salvatore Gaudio
800 Veterans Memorial Highway
Hauppauge, New Yark 11788
Upon the following papers numbered 1 to ----lL read on this motion and these cross motions for summary judgment
; Notice of Motion/ Order to Show Cause and supporting papers I - 16 ; Notice of Cross Motion and supporting papers 17 - 30;
31 - 39 ; Answering Affidavits and supporting papers 40 - 46; 47 - 48; 49 - 50 ; Replying Affidavits and supporting papers_
51 - 52: 53 - 54 ; Other _; (and aftcl Ileal illg eMliSel ill :JbPPOI't ll:lld 0pp0:Jcd to tlte !notion) it is,
ORDERED that the motion by defendant CSPN Paliuras Construction Corp. for sununary judgment
dismissing the complaint and any cross claims asserted against it is denied; and it is further,
ORDERED that the cross motion by defendant Salvatore Gaudio for, inter alia, summary judgment
dismissing the plaintiff's complaint and any cross claims asserted against him is denied; and it is further,
ORDERED that the cross motion by defendant Vardo Construction Corp. for summary judgment
dismissing the complaint and any cross claims asserted against it is denied.
[* 2]
Jankitc v CSPN
Index No. 08-39684
Page NO.2
In this action, the plaintiff seeks to recover damages for personal injuries which he purportedly
sustained on June 16, 2007, when he fell off of a roof while performing construction work at premises
located at 30 Shelter Rock Road in Manhasset, New York (hereinafter the subject premises). The subject
premises is owned by defendant Salvatore Gaudio. Defendants Vardo Construction Corp. (hereinafter
Vardo) and CSPN Paliuras Construction Corp. (hereinafter CSPN) were both retained by Gaudio to perform
certain services in relation to the construction of two residential homes on the subject premises. At the time
of the im:ident, the plaintiff was employed by a non-party roofing sub-contractor, Little Timbers. In his
complaint, the plaintiff alleges that the defendants are liable for his injuries based on Labor Law §§ 200, 240
(1) and 241 (6) and common law negligence. In their respective answers, the defendants each deny the
allegations of the complaint and assert cross claims against their co-defendants for, inler alia, contribution
and indemnification.
Defendant CSPN now moves for summary judgment dismissing the complaint and all cross claims
asserted against it. Specifically, CSPN contends that (I) thc causes of action based on violation of Lahar
Law §§ 240 (1) and 241 (6) should be dismissed because CSPN was hired as a "construction manager" and
was nOI a general contractor; (2) the cause of action based on Labor Law § 241 (6) should be dismissed
because the Industrial Code provisions relied on by the plaintiff in support of such cause of action are
inapplicable to the facts of this case, and (3) the causes of action based on Labor Law § 200 and common
law negligence should be dismissed because CSPN did not supervise, direct or control the plaintiffs work
and did not supply the tools, materials and/or equipment utilized by the plaintiff.
Defendant Gaudio cross-moves for summary judgment dismissing the complaint and all cross claims
asserted against him. Specifically, Gaudio argues contends (l) the complaint and all cross claims asserted
against him should be dismissed where the plaintiffs employer testified that accident at issue did not occur
at the subjeci premises, (2) the causes of action based on violation of Labor Law §§ 240 (1) and 241 (6)
should be dismissed pursuant to the homeowner's exception to liability contained in such provisions as he
was the owner of a single family home under construction who did not direct, supervise or control the
plaintifrs work. and (3) the causes of action based all violation of Labor Law § 200 and common law
negligence should be dismissed because he neither directed or controlled the plainti rf's work nor had actual
or constructive notice of a dangerous condition. In the event that the action against him is not dismissed in
its entirety. Gaudio contends that he is entitled to contractual indemnification from CSPN.
Defendant Vardo cross-moves for summary judgment dismissing the complaint and all cross claims
asserted against it- Specifically. Vardo contends (I) the causes of action based on violation of Labor Law
§§ 200, 240 (1) and 24 I (6) should be dismissed because it was not the general contractor at the subject
premises at the time of the plaintiff's accident, and (2) the cause of action based on Labor Law-§ 200 and
common law negligence should be dismissed as it did nOl have the authority to direct or control the
plaintiO-s work.
The proponent of a summary judgment motion must make a prima facie showing of entitlement 10
judgment as a matter oflaw, tendering sufiicient evidence to demonstrate the absence of any material issues
of fact (see Alvarez v Prospeclllosp., 68 NY2d 320. 508 NYS2d 923 [1986] ; WinegradvNew York UniJ!.
Med. Center, 64 NY2d 851,487 NYS2d 316 [1985]; Zuckerman v City of New York, 49 NY2d 557, 427
N YS2d 925 lI980'j). Failure to make such prima facie showing requires a denial of the mOlion, regardless
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Jankite v CSPN
Index No. 08-39684
Page NO.3
of the sutTi.ciencyof the opposing papers (see Alvarez v Prospect HO!Jp., supra; Winegrad 17 New York lJniv.
Met!. Center, supra). Once this showing has been made, however, the burden shifts to the party opposing
the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish
the existence of material issues of fact which require a trial of the action (see Alvarez v Prospect HlJ.\p.,
supra; Zuckerman v City of New York, supra).
The evidence submitted by CSPN was insufficient to establish its prima facie entitlement to
judgment, as a matter oflaw, dismissing the complaint and all cross claims asserted against it. In support
of its motion, CSPN submits, infer alia, the pleadings, the bill ofpal1iculars, the deposition testimony of the
plaintin~ the deposition testimony of Lorenzo De Vardo on behalf of Vardo, the deposition testimony of
Gaudio, the deposition testimony of non-palty Simon Doherty on behalf of Little Timbers, purported
proposals prepared by Little Timbers for CSPN, purported checks written by Gaudio to Little Timber, an
agreement entered by Gaudio and CSPN with respect to work at the subject premises, the afTidavit of Spiro
Paliuras on behalfofCSPN, and a copy of the decision, dated December 17,2009, ina Queens County case
entitled Rivera v CSPN Paliuras Colttraeting.
'rhe majority of the evidence relied on by CSPN in support of its motion for summary' judgment is
of no probative value heeause it has not been submitted in admissible form. In particular, the deposition
testimony of the plaintiU: Gaudio and Simon Doherty emmot he considered by this Court on the instant
motion. These deposition transcripts are unsigned by the deponents and unattested (see Matter ofDelgatlo,
82 AD3d 1230, 919 NYS2d 391 [2d Dept 20 11]). CSPN fails to explain why these transcripts are unsigned
and unsworn or to show that they were forwarded to the deponents for their review pursuant to CPlR 3116
(a) (see Marmer v IF USA Express, 73 A03d 868, 899 NYS2d 884 [2d Ocpt 201O];Marlinez v 123-16
Libert)' Ave. Rea/~v Corp, 47 AD3d 901, 850 NYS2d 201 [2d Dept 2008]; McDonald v Mtluss, 38 AD3d
727, 832 NYS2d 291 [2d Ocpt 2007]; Pina v Flik Inll. Corp., 25 A03d 772, 808 NYS2d 752 [2d Ocpt
2006]; Samos v Inlown Assoc., 17 AD3d 564, 793 NYS2d 477 [2d Ocpt 2005]; Lalli vAbe, 234 A02d 346,
650 NYS2d 313 [2d Dept 1996); compare Franzese v Tanger Factory Outletetn., Inc., 88 AD3d 763, 930
NYS2d 900 [2d Dept 2011]). Moreover, these deposition transcripts were not certitied by the reporter as
accurate (see Marks v Robb, 90 AD3d 863, 935 NYS2d 593 [2d Dept2011); Cox v Jeffers, 222 AD2d 395,
634 NYS2d 519 [2d Dept 1995]; compare Rodriguez v Ryder Truck, IIlC., 9\ AD3d 935,937 NYS2d 602
[2d Ocpt 2012]; Zalol v Zieba, 81 AD3d 935, 917 NYS2d 285 [2d Ocp! 2011]; Morchik v Trinity School,
257 AD2d 534, 684 NYS2d 534 [1st llept 1999]; R.M. Newell Co. v Rice, 236 A02d 843, 653 NYS2d
I(J04 [4th Dcpt 19971).
The rema1l1ingevidence was insufficient to demonstrate, as a matter oflaw, that CSPN was entitled
summary judgment dismissing the complaint and cross claims asserted against it. This evidence fails to
establish that CSPN is not a party responsible for compliance v,,'iththe statutory mandate of Labor Law ~~
240 (1) and 241 (6) because it was a "construction manager" rather than a "general contractor." labor Law
q 240 (I), commonly known as the "scalTold law," creates a duty that is nondelegable and an owner, general
contractor, or agent thereof, who breaches that duty may be held liable in damages regardless of whether it
haLlactually exercised supervision or control over the work (see Ross v Curtis-Palmer Jlytlro-EJec. Co., 81
NY2d 494, 601 NYS2d 49 [1993]). Labor Law § 241 (6) imposes a nondelegable duty of1'('asonable care
upon an owner, general contractor, or agent thereof, to provide reasonable and adequate protection to
workers. Although a "construction manager" is generally not considered a "contractor" or "owner" within
10
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Jankite v CSPN
Index No. 08·39684
Page No.4
the meaning of Labor Law §§ 240 (1) or 241 (6), it may nonetheless become responsible for the safety of
the workers at a construction site if it has been delegated the authority and duties of a general contractor, or
if it functions as an agent of the owner ofthe premises (Domino v Profenional Consultillg, Inc., 57 AD3d
713,869 NYS2d 224 [2d Dept 2008]; Pillo v Irvillgtoll U"io" Free Selrool Dist., 43 AD3d 1130,843
NYS2d 133 r2d Dcpt2007J; see Walls v TumerCo/ls/r. Co., 4 NY3d 861, 863·64. 798 NYS2d 35 I [2005J;
Russin v Louis N. Picciano & SOli, 54 NY2d 311, 318, 445 NYS2d 127 [1981 J). In this regard, "the label
of construction manager versus general contractor is not necessarily determinative" (Barrios v City of New
York, 75 AD3d 517, 905 NYS2d 255 [2d Dept 2010.1). Rather, the critical question is whether the
construction manager was delegated supervisory control and authority over the work being done when the
plainti rf was injured (Barrios v City
New York, .':o'I,'P,.a; Domino v Professional Consulting, Inc.,
see
supra; Pillo v Irvingtoll Ullion Free School Dist., supra). Here, CSPN fails to establish, by admissible
evidence, that it cannot be liable pursuant to Labor Law §§ 240 (1) and 241 (6) as a statutory agent oflhe
owner or general contractor because it did not have sufficient authority to supervise and control the
plainlirrs work (see Gomalez v TJM COllstr. Corp., 87 AD3d 610, 928 NYS2d 344 [2d Dept 2011];
Burrios v City of New York, supra; compare Florez v COlllolI, 82 AD3d 831, 918 NYS2d 369 [2d Dcpt
2011 l). A review of the agreement between CSPN and Gaudio fails to establish, as a matter oflaw, thal it
lacked such authority (compare Domillo v Professiollal Consultillg, IIlC., supra) and the other-evidence
submitted, including the deposition testimony ofVardo and proposals prepared by Little Timbers for CSPN,
raises a triable issue of fact on this issue.
(~r
Contrary to CSPN's contention, this Court is not bound by the detenninalion of the Supreme Court,
Queens County, in Rivera v CSPN Paliuras CO/1tractillg, an action against the same defendants arising from
the work performed at the subject premises. In such action, the Court granted summary judgment to CSPN
finding that the evidence established that as "construction manager" at the subject premises it was not a
liable party pursuant to Labor Law §§ 240 (I) and 241 (6). The doctrine of collateral estoppel "precludes
a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or
proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action
arc the same" (O'Gor/mlll v JOllrllul News Westchester, 2 AD3d 815, 770 NYS2d I2l [2d Dept 2003 J; see
Montoya vJLAstoriaSoll"d,
Inc., _AD3d_,
939NYS2d 92l2d Dept 2012]; Kolel Damsek Eliezer,fllc.
v Schlesinger, 90 AD3d 851.935 NYS2d 83 [2d Dept 2011 J). "As the consequences ofa determination that
a party is collaterally estopped from litigating a particular issue are great, strict requirements for application
of the doctrine must be satisfied to insure that a party not be precluded from obtaining at lea<;tone full
hearing on his or her claim" (Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481. 485, 414 NYS2d 308
[19791; Kole! Damsek Efiezer, Inc. v Schlesinger, 90 AD3d 851,935 NYS2d 83 [2d Dept 2011 D. In order
for collateral estoppel to apply, two clements must be established: (1) that thc identical issue was necessarily
decided in the prior action and is decisive in the present action; and (2) that the precluded party must have
had a full and fair opportunity to contest the prior determination (Montoya v JLAstoria Sound, fIlC., supra:
Shaid v Consolidaled Edison Co.. 95 AD2d 610, 467 NYS2d 843 [2d Dept 1983 D. Among the elements
to be considered ill detcnnining if there has been a full and fair opportunity to contest the decision, i.e..
\-vhethera party has had his day in court, are "such considerations a<;the size of the claim, the forum of the
prior litigation, the use of initiative, the extent of the litigation. the competence and experience of counsel,
the availability of new evidence, indications of a compromise verdict, differences in the applIcable law and
foreseeabIlity of future litigation" (Shahl v Consolidated Edison Co., supra). The record before this Court
rails [0 establish that the precluded party, or a party in privity to such party, had a full and bir opportunity
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Jankite v CSPN
Index No. 08-39684
Page No.5
to contest the prior determination. Indeed, it is undisputed that the plaintiff in this action was not a pal1y
to the Queens County proceeding. Moreover, the record fails to establish. as a matter of law, that the issue
presented in the Queens County proceeding was truly "identical."
The evidence submitted, likewise, fails to demonstrate CSPN's primafcu:ie entitlement to summary
judgment of the cause of action based on Labor Law § 241 (6) on the grounds that the Industrial Code
Provisions relied on are mapplicable to the facts of this case. Pursuant to Labor Law § 241 (6), a violation
of an explicit and concrete provision of the Industrial Code by a pm1icipant in the construction project
constitutes some evidence of negligence for which the owner, general contractor, or agent thereof may bc
held vicariously liable (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 670 NYS2d 816 []998]~
Melchor v Singh, 90 AD3d 866, 935 NYS2d 106 [2d Dept 20] 1J; Fusca vA & S Cons/r., LLC, 84 AD3d
1155,924 NYS2d 463 [2d Dept 2011]). In order to recover damages on a cause of action alleging a
violation of Labor Law § 241 (6), a plaintiff must establish the defendant's violation of an Industrial Code
provision which sets forth specific safety standards and that such violation was a proximate causc of the
accident (see Rizzuto v L.A. Wenger Con/r. Co., supra; Ross v Curtis-Palmer Hydro-Elec. Co., supra;
Ramos v Patchogue-Medford School Dist., 73 AD3d 1010,906 NYS2d 45 [2d Dept 201 0]). The rule or
regulation alleged to have been breached must bc a specific, positive command and must be applicable to
the facts of the case (see Clavijo v Universal Baptist Church, 76 AD3d 990, 907 NYS2d 515 [2d Dept
2010J; Forse/mer v JUCCll Co., 63 AD3d 996, 883 NYS2d 63 [2d Dept 2009]). The admissible evidence
submitted by CSPN fails to support a finding that the Industrial Code provisions relied on by the plaintiff
are inapplicable to the facts of this case. Indeed, CSPN has submitted no admissible evidence with respect
to the details of the plaintiff's accident.
In a similar vein, CSPN has also failed to submit sufticient evidence to demonstrate its entitlement
to summary Judgment dismissing the plaintiff's causes of action based on Labor Law § 200 and common
law negligence. Labor Law § 200 mcre!ycodities the common~law duty imposed upon an owner, or general
contractor to provide construction site workers with a safe place to work (see Rizzuto v L.A. Wenger Contr.
Co., supra at 352; Gasques v State of New York, 59 A03d 666, 873 NYS2d 717 [2d Oept 2009]; Dooley
v Peerless Importers, 42 AD3d 199. 837 NYS2d 720 [2d Dept 2007]). When a v..'Orker'sinjuries result from
an unsafe or dangerous condition existing at a work site, the liability of a party "viIIdepend upon whether
the party had control of the place where thc injury occurred, and whether it either created, or had actual or
constructive notice of, the dangerous condition (see Cook v Orchard Park E"itates, fllC" 73 AD3d 1263,902
NYS2d 674 [lei Dept 2010]; Harsch v City a/New York, 78 ADJd 781,910 NYS2d 540 [2d Dopt 201 OJ;
Martinez v Ci~v of New York, 73 AD3d 993, 90] NYS2d 339 [2d Dept 2010]). To be held liable under
Labor Law ~ 200 and f(x common-law negligence \vhen the method and manner of the work is at issuc. it
must be shown that "the party to be charged had the authority to supervise or control the pcrformancc of the
work" (Ortega v Puccio. 57 AD3d 54, 61, 866 NYS2d 323[2d Oept 2008]; see La Veglia v St. Francis
Hosp., 78 AD3d 1123,912 NYS2d 611 [2d Dept20] 0]; Domino v Professional Consulting, Inc., 57 AD3d
713, 869 NYS2d 224 [2d Dept 2008]). In such situations, it must be demonstrated that the defendant
exercised actual control over the manner in which the work was performed. The admissible evidence
submittcd by CSPN, which as discussed supra, j~lilsto include the details of the plaintiff's accidcnt, was
insufticient to establish that CSPN's negligence was not a proximate cause of the plaintiffs mjuries.
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Jankite v CSPN
Indcx No. 08-39684
Page NO.6
Since CSPN failed to meet its prima .facie burden of establishing an entitlement to summary
judgement, it is not necessary to consider the sufficiency of the opposition papers (see Alvarez v Prospect
Hosp., supra). Accordingly, the motion by CSPN for summary judgment is denied.
The cross-motion by Gaudio for summary judgment dismissing the complaint and all cross claims
asserted against him is also denied. In support of his cross motion, Gaudio submits, inrer alia, the pleadings,
the bill of particulars, the agreement between himself and CSPN, the plaintiffs uncertified emergency room
records, the plaintiffs affidavit indicating he fell from a roof in the course of roofing, the plaintiff's
deposition testimony, his own deposition testimony, the deposition testimony of Lorenzo Dc Vardo on
behalf ofVardo, the deposition testimony of Spiro Paliura on behalf ofCSPN, and the deposition testimony
of Simon Oohel1y on behalfofnon-pmiy Little Timbers.
The majority urthis evidence is ol'no probative value because it has not been submitted in admissible
Jorm. In particular, the deposition testimony of the plaintiff, Gaudio, De Vardo and Doherty cannot be
considered by this Court on the instant cross-motion as these deposition transcripts are unsigned by the
deponents, unattested, and fail to show that they were forwarded to the deponents for their review pursuant
to CPLR 3116 (a) (see Marmer v IF USA Express, supra; Martinez v 123-16 Liberty Ave. Realty Corp,
supra; McDonald v Mauss, supra; Pina v Flik IntI. Corp., supra; Santos v Intow" Assoc., supra; Lalli v
Abe. supra). Significantly, these transcripts also were not certified by the reporter as accurate (see ft1ark:;
v Robb. supra; Cox v Jeffers, supra). The remaining evidence submitted by Gaudio was insufficient to
establish his prima facie entitlement to summary judgment dismissing the complaint and all cross claims
asserted against him.
The admissible evidence, which does not contain an admissible copy orthe deposition testimony of
the plaintiff's employer, fails to establish that Gaudio is not liable for the plaintifrs injuries because the
im:ident did not occur at the subject premises. The evidence submitted was also insufficient to establish that
the causes of action based on Labor Law §§ 240 (1) and 24\ (6) should be dismissed as against Gaudio
because he is entitled to the protection of the homeowner's exception to liability contained in such
provisions. The homeowner's exemption to liability under Labor Law §§ 240 (1) and 241 (6) is available
to "owners of one and two-t~lmily dwe!lings who contract for but do not direct or control the work" (see
Castelhmos v United Cerebral Palsy AS.'UI. o/Greater Suffolk, IIlC., 77 AD3d 879, 909 NYS2d 757l2d
Dept 20 I01: Boccio }' Bozik, 41 AD3d 754, 839 NYS2d 525 [2d Dept 2007]: Ferrero v Best Modular
lIomes. IIlC., 33 AD3d 847. 823 NYS2d 477 [2d Ocpt 2006]; Murphy v Sawmill COllstr. Corp., J 7 AD3d
422.792 NYS2d 616 [2d Dcpt 2005]). The homeowners' exemption is intended to protect residential
homeowners lacking in sophistication or business acumen from their failure to recognize the necessity of
insuring against the strict liability imposed by the statute (see Ortega v Puccia, 57 A03d 54, 866 NYS2d
323l2d Dept2008J) and, thus, is not available to an owner who uses or intends to use a dwelling only lor
commercial purposes (see Castellallos v United Cerebml Palsy Assll. of Greater Suffolk, IIIC., supra:
Truppi v Busciglio. 74 AD3d 1624,905 NYS2d 29\ rJd Dept 20 I OJ; see also, Vall Amerogell v DOlllli"i.
78 NY2d 880, 573 NYS2d 443 [1991]). "The determination whether the exemption is available to an
owner in a particular case turns on the site and purpose of the work" (Khela JI Neiger, 85 NY2d 333. 337.
624 NYS2cJ 566 [19951; Lentla v Breeze CllIlcre!e CO'1!" 73 AD3d 987, 903 NYS2d 417 [2d Dcpt
20IDJ). The admissible evidence submitted by Gaudio in SUPPOIt of his cross-motion, which consists
primarily or Paliura's deposition testimony, tails to demonstrate as a maller of law that Gaudio intended
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Jankite v CSPN
Index No. 08-39684
Page No.7
to build the subject premises for non~commercial purposes.
not direct or control the plaintifT's work.
It also fails to demonstrate that Gaudio did
For similar reasons, Gaudio fails to establish a prima facie entitlement to summary judgment
dismissing the plaintilT's causes of action based on violation of Labor Law § 200 and common Jaw
negligence. The evidence submitted fails to establish that Gaudio was not negligent because he did not
direct or control the plaintiff's work (see La Veglia v St. Frauds Hosp., supra; Ortega v Puccia, supra).
Similarly. the evidence submitted is insufficient to establish that Gaudio neither created nor had actual or
constructive notice of an unsafe condition on the premises that caused the plaintifl's accident (see Cook v
Orchard Park Estates,fnc., 73 AD3d 1263,902 NYS2d 674l3d Dept 201 0]; Harsch v City (~rNew York,
78 AD3d 781,910 NYS2d 540 [2d Dcpt 2010]; Martinez v City (JjNew Yark, 73 AD3d 993, 901 NYS2d
339 f2d Dcpt 20 I 0]). In light of Gaudio's failure to demonstrate that the plaintiffs injuries did not result
from his own negligence, he also fails to demonstrate a prima jtlcie entitlement to indemnification from
CSPN (see generally General Obligations Law § 5-322.1).
Since Gaudio failed to meet his prima .({Icie burden of establishing an entitlement to summary
judgement, his motion is denied without consideration of the sufticiency of the opposition papers
(see Alvarez v Prospect Hm.p., supra).
Lastly, the cross motion by Vardo for summary judgment dismissing the complaint and all cross
claims asserted against it must also be denied. Vardo fails to include a complete set of thc pleadings in
support of its summary judgment motion, as required by CPLR § 3212 (b). Accordingly, it is not entitled
to summary judgment and denial of its cross motion is required (see Ahem v Shepherd, 89 AD3d 1046,933
NYS2d 597 [2d Oept 2011]; Fiber Consultants. Inc. v Fiber Optek Interconnect Corp., 84 AD3d 1153,
924 NYS2d 276 [2d Dcpt 2011]; Semior v ellervill, 51 AD3d 1003,857 NYS2d 500 [2d Dept 2008]). In
any event, the Court notes that Vardo has failed to submit much of the evidence in support of its cross
motion in admissible form, and that the admissible evidence which can be considered by the Court would
be insufficient to establish Varda's prima/acie entitlement to summary judgment dismissing the complain!
and cross claims asserted against it.
Dated,
ilf,t!lL
FINAL I)ISPOSITION
