Medical Liability Mut. Ins. v United Airconditioning
2012 NY Slip Op 31015(U)
April 10, 2012
Supreme Court, New York County
Docket Number: 100115/2011
Judge: Eileen A. Rakower
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ON 411 812012
Index Number : 10011512011
MEDICAL LlABLlLlTY MUTUAL
UNITED AIRCONDITIONING CORP.
Sequence Number : 005
s m . NO.
MOTION CAL. NO.
were read on this motion to/for
The follpwlng papers, nurnbarad 1 t o
I wR 8 NUMBEflFn
Notice of Motion/ Order to Show Cause
- Exhlbtts ...
Answering Affidavits - Exhibits
Upon the foregolng papers, it is ordered that thia motlon
Check if appropriate:
n DO NOT POST
0 SUBMIT ORDER/JUDG.
SETTLE ORDER /JlJDG.
UNITED AIRCONDITIONlNG CORP., UNITED
AIRCONDITIONING CORP, 11, EMPIRE
DISMANTLING, INC., BLACK BULL
CONTRACTING, LLC, JOHNSON CONTROLS, INC.,
STERLING INTERIORS GROUP, INC., MG
ENGINEERING P.C., EAST COAST
& CONSULTJNG OF NY, CORP., EAST COAST
ESTORATION CORP., HALLEN WELDING SERVICE,
INC., HALLEN STEEL, SKYLIFT MASTER RIGGEWR
CORP., SKYLIFT CONTRACTING CORP.,
ABSOLUTE ELECTRICAL CONTRACTING 0
N E N @ d
Medical Liability Mutual Insurance Company (“MLMIC”) is the lessee of
office space located at 2 Park Avenue in New York County. MLMC states that, Erom
on or around January 11, 2008 through October 28, 2008, defendant United
AirconditioningCorp. (“United”) “contracted and/or subcontracted with [the building
owner and management company] to conduct renovation, construction and repair
work on the roof of [the building].” During this time, MLMIC alleges that United
andlor its contractors or subcontractors “negligently planned and/or negligently
performed renovation, construction and/or repair work on the roof’ of 2 Park Avenue,
causing “substantial amounts of water ...to enter into the office space of MLMIC on
multiple occasions ... thereby causing MLMIC to suffer substantial damage to its
office premises, property, material and work product.’’ Among those named as
defendants are Skylift Master Riggers Corp. (“Skylift Master”) and Skylfter
Contractor Corp. (“Skylift Contractor”). Both entities are alleged to have negligently
planned and/or perfomed renovation work on the roof of 2 Park Avenue, causing the
alleged water damage.
Skylift Contractor and Skylift Master now move for summaryjudgment. Skylift
Contractor submits the affidavit of Brad Allecia, its vice president. Allecia affirms
that Skylift Contractor “is a rigging company that is hired by various companies to
assist in the placement of various objects, pieces of machinery, etc. on the roofs or in
locations that require the use of rigging applications.” Allecia further states that, on
the project at issue in this lawsuit, Skylift Contractor was hired by United to provide
rigging for the placement of Cooling Towers on the roof of 2 Park Avenue. Allecia
affirms that he was personally present when the delivery was made on February 12,
2008. United was “responsible for receiving the cooling towers on the roof on the
date of delivery and directed Skylift Contractor Corp. where to place the towers.”
Allecia states that Skylift Contractor “had no connection to or responsibility for any
of the renovation, construction andor repair work that began prior to and continued
after it delivered the cooling towers.”
Skylift Master submits an attorney’s affirmation in support of its motion for
summary judgment. Counsel for Skylift Master affirms that Skylift Master “did
absolutely nothing at those premises to possibly hold it liable for the alleged damages
MLMC and the co-defendants of the Skylift entities all submit opposition to
the instant motions for summary judgment.’ The parties argue that summaryjudgment
is premature in light of the fact the action is in the early stages of discovery, and no
depositions have been held. Moreover, the papers submitted in opposition to Skylift
Master’s motion note that Skylift Master fails to submit an affidavit from a Skylift
employee with firsthand knowledge.
The proponent of a motion for summary judgment must make a prima facie
showing of entitlement to judgment as a matter of law. That party must produce
‘The court does note, however, that MLMIC does not oppose summary judgment in favor
of Skylift Master on the condition that such dismissal be without prejudice to renew an action
against it, should new facts arise during the course of discovery.
sufficient evidence in admissible form to eliminate any material issue of fact from the
case. Where the proponent makes such a showing, the burden shifts to the party
opposing the motion to demonstrate by admissible evidence that a factual issue
remains requiring the trier of fact to determine the issue. The affirmation of counsel
alone is not sufficient to satisfy this requirement. ( Zuckerman v. City o New York,
49 N.Y.2d 557 [ 19801). In addition, bald, conclusory allegations, even if believable,
are not enough. (Ehrlich v. American Moninger Greenhouse Mfg. Corp.,26 N.Y.2d
255 ). ( Edison Stone Corp. v. 42nd Street Development Corp.,145A.D.2d
249,25 1-252 [ 1st Dept. 19891). “[Ilf it is reasonable to disagree about the material
facts or about what may be inferred from undisputed facts, summary judgment may
not be granted. Moreover, in deciding whether there is a material triable issue of fact,
‘the facts must be viewed in the light most favorable to the nonmoving party”’
(Ferluckcj v. Goldman Sachs & Co., 2009 NY Slip Op 2483 ).
Here, the court finds that both Skylift Contractor and Skylift Master’s motions
must be denied as premature. CPLR §3212(f) provides:
Should it appear from affidavits submitted in opposition to the motion
that facts essential to justify opposition may exist but cannot then be
stated, the court may deny the motion or may order a continuance to
permit affidavits to be obtained or disclosure to be had and may make
such other order as may be just.
As previously noted, this action is in the early stages of discovery. MLMIC and the
co-defendants are entitled to discovery detailing the specific nature of the work
performed by Skylift Contractor at the job site. While Skylift Contractor notes that
water damage is alleged to have occurred prior to the date of Skylift Contractor’s
work, the court cannot hold at this early juncture that Skylift Contractor bears no
responsibility for any of the alleged water damage as a matter of law.
With respect to the motion by Skylift Master, Skylift Master fails to submit
proof in admissible form establishing a prima facie showing of entitlement to
judgment as a matter of law. It is well settled that an attorney’s affirmation does not
constitute proof in admissible form (Batista v. Santiago, 25 A.D.3d 326 [lst Dept.
Wherefore it is hereby
O€ZDEREDthat Skylift Contractor and Skylift Master’s motions for summary
judgment are denied without prejudice.
This constitutes the decision and order of the court. All other relief requested
DATED: April8 2012