Heintz v Irgang
2012 NY Slip Op 30966(U)
April 10, 2012
Supreme Court, New York County
Docket Number: 102782/10
Judge: Gische
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publication.
ANNED ON411212012
[* 1]
I
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IRGANG, MARK
SEQUENCE NUMBER : 002
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DISMISS
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E
F 1.LE D
BPR 1lM12
NEW YORK
COUNTY CLERK'S OFFICE
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8UPREME COUFtT OF THE STATE OF N W YORK
E
IAS PART 10
COuNW OF N W YO=
E
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Angelo Heintz, an infant by hfs father and
natural guardian, Carlos Helntz,
DECISION/
ORDER
Index NO.: 102782-10
Plaintiff (s),
Ssq. No.:
against-
002
PREsENr:
J.S.C.
Mark Irgang, Jay Irgang, 148 West
124" S t w t Realty Corp., 144 West
124mS LLC, The City of New York and
t
New York City Housing Presentation and
Development, and Basic Houslng, Inc.,
Defendant (8).
__
T.P. index No.:
590829-10
Mark Irgang, Jay Irgang, 14-8West
124IhS LLC, 148 West 124'" Street
t
Realty Cop.,
Third party plaintttfs,
FILED
-against-
112012
Basic Housing, Inc.,
NEW YORK
Third party defendants.
-1c
I
COUNTy CLERKS OFFICE
X
Redtation, a3 requlred by CPLR 8 2219 [a] o the papers considered in the review of
f
this {these) moth($):
pw@m
Numberad
1
Basic nlm (3211 3212) w/AJS aftlnn, exhs .....................
lrgang and I48 opp w/WO affirm, MI affd, e h s . . . . . . . . . . . . . . . . 2
Halntz opp W E B affirm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
Basic reply W I N S affirm, exh ................................
4
.
Other: vatlous stips adjourning motlons . . . . . . . . . . . . . . . . . . . . . . .
D b v e r y stip so-order 2/9/12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
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Upon fbekregolng pepem, the declslwl and oder of the court is as follows:
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GISCHE
J.:
This is an adon alleging personal injuries to an Infant-plalntlff. This action wa8
commenced March 4,2010 with the filing of the summons and complaint.
lssw was
joinad and the defendants commenced a third party action against Basic Houslng, Inc.
(âBasic Housingâ). Basic Housing answered the third p a w complalnt Thereafter,
Heintz served an amended complaint naming Basic Housing as a direct dhndant.
Issue was also joined as to the amended complaint.
Baalc Houslng now moves to dismiss Helntz:âs
claim and the third party complaint
against it on the basis that they fail to state a caum of action. Alternatively, Bask
Housing moves for summary judgment. The m o t h is opposed by defendants Mark
Irgang, Jay Irgang, I48 West 124â Street Realty Corp. (â148 Realtyâ), 14-8 West 124*
Street, LLC (â148 LLC? (collectively âlrgang defendantsâ) and by Heintz, who adopts
the arguments presented by the lngar defendants, The City defendants were
d i s m W from t i case,as per order of this court dated January 6,201 1.
hs
Aa will be m e n , although Basic Housing is moving under CPLR 3211 for the
dismlssal of thls action for failure to state a cause of action âof CPLR 3212, what it
actually s e e k 8 b summary judgment on its affirmative defense that it is not a proper
property. Summary judgment relief Is available since the requirements o CPLR 3212
f
have been met (CPLR 9 3212; Ml v, Citv of New Ynrk, 2 NY3d 848 [2004]).
l
Facb and Argumnta
Carlos Heink has brought tl actlon on behatf of his son, Angelo, claiming that
hs
on December 8, 2008, Angeb WBB injured when he sllpped on accumulated water In the
kitchen area of mrtment 5B located at âRoddyâs Place.â Roddyâs Place is a conditional
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shelter located at 184 West 124' Street, New York, New York ("premises"). The shelter
is operated punruant to a contract with The City's Department of Homeless setvicea.
The premises are owned by 148 Realty and Mark lrgang ("Madt') Is an offlcer of
the owner. 148 Realty leased the premises, including Apartment 5B where the accldent
is alleged to have occurred, to Bronx Addletlon SeMms Integrated Concept Systems,
Inc. alkla 'Basics, Inc." The lease agreement, dated March 7, 2003 ("lease"),i d e n t i h
148 Realty a8 the "Lessor* and Basics, Inc. as 'Lessee.'
Pursuant to paragraph 9 of the
lea= between 148 Realty and Baslcs, fnc., Basics, Inc. agreed to maintain and repair
the p r m l a by keeping same "In a good and clean order end condition . , ." It also
provldes that:
Lesaor'a sole WSp0n8ib1llty shall be to maintaln a
structurs that fs free of water leaks from the roof, has no
defects in Its exterlor structural walls and is capable of
delhrerfng heat and hot water to the premises and to that
end will make all necessary or appropriate repairs to the
roof, boibr and exterior of the stnrcture unless they have
k e n caused by the Lessee or Its guests or Invlteas... All
other repairs, replacements and renewals shall be [the]
sole responsibilityof the Lessee...Lessee shall be
mponslble for any repairar to the Premises caussd by
Lessee or any occupants, clients, guests or business
invitee, whether willful or by negligence.
Pursuant to paragraph 9 [c][iii], the lessee was responsible for and was required
to provide "a full time Program Dlrector who shall be responsible to malntain the
premises In a clean condltlon..."and pursuant to 9[c][k], to Insure that the premises
were matntalned In a condition so as not to Incur any violatlons after the premlw.8 are
delivered t the Lessee..."
o
"BASICS Housing Inc." has a 2004 contract wlth The City Department of
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Homeless Services to operate "Neighborhood Baaed Cluster Transitlonal Residence
Programs" for homeless families. Basic Housfngdoes not deny it is the corporate entity
in contract with The Crty, despite the djfferlng spaliing of the two corporate names.
Basic Housing contends that it did not owe a duty of cure to the plalntlfF because
It mnot the owner of the prambas at the time of plainWs accident, it did not control
the pmmlses nor did It have any contract (Le.no lease) with the lrgang defendants.
Basic Housing also denlea there is any relatlonship between the two corporations,
dsspita the simliarity In their names and having the same corporate addreisa. Basic
Houslng also denies that it mated or had notice of a dangaroua condition In Apartment
5B or that under the lease, It was obligated to make the repaim that are alleged to have
been neglected. According to Baslc Housing, each of these corporations
Housing, inc. and Basics, inc.
- Basic
- are completely separate entltles and netther plalndff
nor thlrd party plainti can prove otheiwhe. No affklavit by a person with knowledge la
pmvided and these argurnente are presented by its attorney.
The irgang defendants and Heintz oppose Basic Housing's motion on the bash
that summary judgment is premature because discovery is incomplste (thls motlan is
brought pw-note of Issue) and it is undear what the mlationship is between them
slmlleriy named coporatlone. The lrgang defendants point out that Basics, Inc. and
BASICS Housing, Inc. each have their Wrporate offlcGs at 1084 Franklin Avenue, 8ronx,
New York 10458. Plalntlff also dalms them Is an issue of fact whethar Baslc Houslng
created or had notlw of the defective condition alleged.
Mark irgang, an offlcer of 1478 Realty, states that, desptte the lea-
agreement
between 148 Realty and Basics, Inc., Basic Housing was involved In malntalning and
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running the homeless shelter, doing such things as maintalnlng staff, performlng
repalm, and running the day to day operations at the premises. According to Mark
Irgang, Bask Housing actually pays the rent for the spa-
k leases and he has provided
coples of checks to support this claim.
The irgang defendants also provide a copy of Carlos HeIntz's "14 Days Housing
Contract" with the duster facility. The contract identifies the facility as "Rdy's Place"
and provides that "BASIC Housing, Inc is a cluster fadlity that provides transitional
housing..." The contract I prlnted with the words "BASICS INC" and "BASIC
s
HOUSING INC" at the tap.
Dbcusslon
Whsre a party opposed to summary judgment contends that dmcovery ia
incomplete, the court may consider whether the motion ts premature because the
infomation n8ceesary to fully oppose the motion remalns under the control of the
proponent of the motion (CPLR
5 3212 [fl; Lewis v. S&tv
Diagpsai Svstampi
P t m w . Inc,, 12 AD3d 324 [la 20041).
Dept.
Heinlz and the lngar defendants have demonstrated that further discovery might
yleld material facts that would warrant the denial of summary judgment at a later time
(compam Seelig Y. Purpler Kinn Corn., 88 AD.3d 986 [2"dDept 200Qn. Varlous
documents identify the corporation having The Ctty contract for these transitional
hou8ing accommodations differently. The City contract is with "BASICS Houaing Inc."
yet the l e
is "Bronx Addldon Services Integrated Concept Systems, Inc, a/k/a
Bash, Inc." end Hafntz'a housing contract I with "BASICS INC" and "BASIC
s
HOUSING INC." Further discovery may reeohre these inconsistencies.
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Evan were the court persuaded by Basic Houslng's arguments, that this motion
Is not premature, but that under CPLR 321 1 [a][7], the plaintiff and third party plaintiffs
have each failed to state a cauaw of action, Basic Houalng has failed to prove its
afflrmathre defense, which is that the plaintis have named the wrong party.
Assuming Basic Housing also intended to move under CPLR 321 1 [a][l]
(documentary evidence), the documentary evidence rely on by Basic Housing does not
definitively dispose of the lrgang defendants' or Halntz'er claims against it (&l&
w l e r .
m,AD3d 495 [ld 20tX];Bronxvills Knolls fnc. Y.
29
Dept.
Webster Tgwn Center Paltrrarshlp, 221 AD2d 248 [ 1" Dept. 19851). Not only are the
documents Basic Houslng rely on not evidence In edmlsslbh form (they are simply
printouts from a web site), they are not probathe. Furthermore, the statements about
the corporations being distinct entitias is set forth in the affirmatfonof an attorney who
does not have personal knowledge of any of these hcts asserted.
Other arguments presented by Basic Housing, that them is no conhct and,
therefore, the lrgang defendants cannot prow their conhctual IrPdemnMcation claims,
not only highlights why this motion for summary judgment is premature, it misplaces the
burden o its motion for summary Judgmentonto the lrgang defendants. It Is the
f
movant, here Baeic Housing, who would have, the burden o tendering sufficient
f
evMence to eliminate any material Issues of fact from the case
Unhr.
YQ*
u. 64 N.Y.2d 851,853 [1985]). Only were Bask Housing to maat this
Ct.,
burden would it then shift to the opposing party who must then have to demonstrate the
axlstence of a triable issue of fact (Alvarsr v. ProsDect H w . , 88 N.Y.2d 320,324
[19881; Zuckeman v. C i of New Yo& , 4 0 N.Y.2d 557 IlOSOl).
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Under the lease, the Lessor's obligations to make repairs Is Iimlted. Thus
arguments by Basic Housing, that R had no contractual obligation to make repairs in
Apartment 5E is not grounded in the terms of the lease. Furthermore, under the lease
a uprogramdirectof is supposed to malntain the premises.
It Is unclear who thls
"program directof is. Other arguments about Hsintz not being Basic Housing's tenant
are raised in passlng and without any meaningful analysls.
Conclwfon
The motion by Basic Houslng, Inc. for the dismissal of the complaint and the
third party complalnt on the basis of CPLR 321 1 [a]m and [a][5] is denied.
Furthermore, this motion, to the extent that It seeks summary judgment is denied
because it is premature (CPLR 3212 [fj).
To the extent that his motion stayed discovery, the stay i hereby vacated and
s
the parties are to proceed with the discovewy schedule set forth In their February 0,
2012 soadorad stipulation. The complhnce conference remains scheduled for June
21,2012 at 9:30 a.m, unless the parhe stipulate in wrftlng o t h s t w k (seepart rules).
Any rellef requested but not specMcally addressed i hereby denled. This
s
constitutes the decision and order of the court.
Dated:
New York, New York
Aprll 10,2012
So Ordered:
APR 112012
NEW YORK
COUNTY CLERK'S OFFICE
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