Heintz v Irgang

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Heintz v Irgang 2012 NY Slip Op 30966(U) April 10, 2012 Supreme Court, New York County Docket Number: 102782/10 Judge: Gische 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. ANNED ON411212012 [* 1] I . I IRGANG, MARK SEQUENCE NUMBER : 002 -' ' DISMISS . . . - +. - I 8 5; E F 1.LE D BPR 1lM12 NEW YORK COUNTY CLERK'S OFFICE [* 2] 8UPREME COUFtT OF THE STATE OF N W YORK E IAS PART 10 COuNW OF N W YO= E -. - 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 8 Upon fbekregolng pepem, the declslwl and oder of the court is as follows: -Page Iof 7- [* 3] 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. ( Basic Housing ). 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: s 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 124 Street Realty Corp. ( 148 Realty ), 14-8 West 124* Street, LLC ( 148 LLC? (collectively lrgang defendants ) 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 of 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 Roddy s Place. Roddy s Place is a conditional -Page 2 of 7- [* 4] 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 -Page 3 of 7- [* 5] 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 -Page 4 of 7- [* 6] 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. -Page 5 of 7- [* 7] 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). -Page 6 of 7- [* 8] 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 -Page 7 of 7-

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