Hornick v All City Expediting, Inc.

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Hornick v All City Expediting, Inc. 2012 NY Slip Op 32044(U) July 25, 2012 Supreme Court, New York County Docket Number: 106573/11 Judge: Joan A. Madden 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] lNED ON 81312012 - - . NEW YORK COUNTY H .JOAN A. MADDEN m J.S.l" PRESENT: - PART Justice Index Number : 10657312011 HORNICK, PETER vs. ALL CITY EXPEDITING, INC. SEQUENCE NUMBER : 001 - INDEX NO. MOTION DATE MOTION SEQ. NO. - SUMMARY JUDGMENT The following papers, numbered Ito Notice of MotlonlOrderto Show Cause Answering Affldavits Replylng Aftldavits L , were read on this motion tolfor -Affldavib - Exhlblts 1W s ) . INo(@. INO(?)* - Exhiblts Upon the foregoing papers, it I s FILED NEW YORK COUNTY CLERK'S OFFICE 3 , J.S.C. 1. CHECK ONE: a CASE DISPOSED ..................................................................... 2. CHECK A3 APPROPRIATE: ,,...,,.....,,,...........MOTION 3. CHECK IF APPROPRIATE: . ................................................ . . . . . I: S ,~ON-FINAL DISPOSITION 0GRANTED H I D 0GRANTED IN PART 0OTHER 0SUBMIT ORDER 0SETTLE ORDER 0DO NOT POST 0FIDUCIARY APPOINTMENT 0REFERENCE [* 2] , Pxrm IIORNICK, INDEX NO. 106573/11 Plaintiff, -against- ALL CITY EXl EDITING. INC. A I O Z 13UI1,DlNC; CONSIILTING, INC., C: W CONSULTING SERVICES, LLC, PAI, GENERAL CONS TRIJCl ION CON ., PAIiII IAR ENGINI<EI<INGPC, and 177 WEST 83 STREET I-IIIFC, Dcfend anIs, JOAN A. MADDEN, J.: Ilefcndant C W Consulting Services, LLC (C W) moves and defendant Pariliar Engineering I T (Parihar) cross-movcs, pursuant to CPI,R 32 12, ibr suniiiiary -judgment disinissing the complaint and all cross claims asscrtcd against lhciii. PlaintiiT opposes defendants motion and cross-motion, and cross-movcs [or an ordcr pursuant to CPLR 32 15 granting a default judgmcnt against defendant PAL General Construction Corp. (PAL), based on said defendant s failurc to appear and answer. Plaintiff is the proprietary lessce of cooperative apartnicnt 5N/S i n thc building located at 1.77 West 83rd Strcet in Manhattan, which is on thc top floor ofthc building. The complaint alleges that on or about Fall 2009 thc Contractor Defeiidants [collcctivcly, dcfcndants All City Expediting, Inc., A to 2 13uilding Consulting, Inc., CW Consulting Services, LI,C, PAL, General Construction Corp., and I arihnr Engineering I C] undertook to do ccrtain work in connection with repairs to the coriiicc of the building, and that on or about April 2010 defendants lThe court d i e s on thc coinplaint submittcd with CW s motion papcrs, which is idcnlical to the complaint lilcd with the court. It is unclear why plaintif f submits a diflkrcnt vcrsinn of thc coinplaint with his motion papers. 1 [* 3] cominenccd work to remove the old roof and replace it with a new roof. I hc complaint allegcs that [dluring such work the plaintiff was ablc to hear brokcn picccs of the old roofing materials falling through the old wooden roof boards and onto the ceiling of plaintill s apartment. The complaint furthcr allleges that during the dcrnolition work on thc roof. . . it was discovcred by the NYC nepartnienl o f Environiiiental Protcction that asbcstos was prcscnt in the roofing materials" being rcimvcd, some of which had killen between the roof boards and down onto lhc ceiling of plaintiffs apartment, and as a result of said work, asbestos was caused to fall into thc apartment and also onto thc ceiling of the apartment. The complaint also allegcs that [w[hilc the roof was opcn and bcfore resealing thc roof with a pcrmanent mcinbrane thcre was extensive watcr damages from rains entering thc building, and that such water damage dcgraded the cciling [of plaintifi s apal-tnicnt] so that a pari of it collapsed, allowing black watcr and black debris to MI directly onto the floor ofthe apartmcnt. Dei cndants CW and Parihar are each moving for summary judgment, asserting that they were neithcr responsible for nor involved in the construction work performed 011 the roof of plaintiff s building. Defendant C W submits an aflidavit from its principal, Christophcr Wesolowski, a liccnsed architcct, stating that plaintiff wrongly bclicves C W designed the pmjcct, and li]n fact, CW was supcrceded on the Projcct by a diffcrent design profcssional, and ncw plans, replacing the designs previously prcpared by CW, werc filed by that replacerncnt dcsign professional prior to the comincncemcnt of construction. According to Wcsolowski, CW was retained to design a new cornice and parapet for thc roof in question, a d a new outcrinost roofing rncmbranc, with the portion of the roof possibly containing asbestos . . . not lo be disturbed. I le statcs that my drawings were not used for thc construction work on this project and that fn]ew drawings were tiled by the supcrscding engineer of record, a defendant herein Surjit Parihar of I arihar Engincering PC. 2 [* 4] Dcfendant Parihar submits an affidavit from its President, Surjit Parihar, stating that Parihar was rctained by PAL General Construction Corp. in February 20 1 1 , approximatcly ten months afer the sub-jcct roof project, to preparc plans for the design and construction o f a parapct wall at the premises, and that it was never requested, nor did it providc, any input with respect to the design or installation of the roof. IIe furthcr states that Parihar was not involved in any way with the roof rcplaccment prqjcct, as it was coinpletcd approximatcly ten months before I arihar was rctaincd to pcriorni any services at the Premises. Ncither CW nor I arihar is entitled to summary judgment as the foregoing affidavits take conflicting positions as to whethcr they were involvcd with the construction prqjcct at plaintifrs building when work was being pcrformed on the roof. It is axiomatic that siimiiiary judgnient is a drastic remedy and should not be granted whcre triable issues of fact arc raiscd and cannot bc resolvcd on conflicting affidavits. Brenotti v. Ivlusallam, 11 AD3d 280 (1 Dcpt 2004) (citing Co-op, Inc. v. uriarcliff Farms, Iac, 17 NY2d 57 [ 19661); aCcgr# I alpnskv v. Milltertoii A ~ w a v Schulman, 2 AD3d 355 (1 Dept 2003); Mason v, Dunon1 Direct Financial Holdings, Inc., 302 AD2d 260 (1 Dcpt 2003). While Mr. Wcsolowski statcs that CW was supcrccdcd by Pariliar beforc the roof work began and that his plans wcre not used in connection with the roof work, Mr.Pari1iar asserts that the roorwork was coiiiplctcd at the time Parihar took over the project from CW. I:urtherniore, the documentary evidcnce alonc, including documents from thc lkpartment of Buildings, does not conclusively resolve the issues raiscd by thc conflicting affidavits. Thus, summary judgrnenl is deiiicd as both CW and Parihar. On a motion for summary judgment, the court may not resolve an issue ol fact by wcighing one afiiant s credibility against anotlier s. Estatc of Spits: v. I okoik, 83 AD3d 505 (1 I k p t 201 I). The court s conclusion is without rcgard to the insufiicicncy of plaintiff s opposition papers, which do not include an affidavit. As the proponents of. inotioiis for summary judgmcnt, dei endants bear tlic initial burdcn to make a prima facie showing OS entitlement to judgment as a 3 [* 5] matter of law by icndcring sufficient evidentiary proof to eliminatc any material from the case. issucs of fact Winemad v, New York University Medical Center, 64 NY2d 85 1, 853 (1985). Failurc to make such a prima facie showing requires a dcnial of the motion, rcgardless of the sufficiency of thc opposition papers, & JMD kfioldim Corn. v, Conwess Financial COT., 4 NY3d 373, 384 (2005); Alvarcz v, Prospect Huspital, 68 NY2d 320, 324 (1986). In addition to the rorcgoing, the court agrees with plaintiff that defendanls motions must be denied in any event, as prematurc, since the cvidencc necdcd to opposc the motions is in dcfendanls cxclusive posscssion, and discovcry has not yet commenced. & CPI,R 32 12(f); Global Minerals Clr Metals Corp v. Holmne, 35 AD3d 93, 102-103 (1 l k p t 2006), Iv app dcn, 8 NY3d 804 (2007). I hwcver, once discovery is completc, defendants may rencw thcir motions for suiniiiary judgment if tlic evidencc warrants such relief. Iiarvcy v. Nealis, 6 1 AD3d 935 (2 dDept 2009). Plaintiffs cross-motion for a default judgment against dcfcndant PAL General Construction Corp. is denied, as plaintiff s motion papers do not includc proof of service oftlie I suiniiions and complaint on such defendant as requircd by CPLR 32 15(1). Morcovcr, as notcd abovc, the copy of the verificd coniplaint submitted with plaintiff s motion papcrs is different from the complaint plaintiff lilcd with the court when this action was coiiinienced. Thc dcnial of plaintiIYs cross-motion is without prejudice to renewal on papers in coiiipliance with CPLR 3215. Accordingly, it is hcrcby ORDERED that tlic motion by defendant CW Consulting Services, LI,C for suiiiniaiy judgmcnt is denied without pre-judice to renewal upon the completion of discovery; and it is furthcr OKDEREI) that the cross motion by defendant Parihar Enginecring P.C. for summary judgmcnt is denied without prejudice to renewal upon the completion of discovcry; and it is furthcr 4 [* 6] ORDERED that plaintiff s cross-motion for a default judgment against defendant PAL General Construction Corp. is denied without prejudice to renewal on papers in compliance with CPLR 3215. I ENTER: Dated: J u I ~ 2012 ~ . 03 2012 5

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