MSG Natls. Props., LLC v Skyline Windows, LLC

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MSG Natls. Props., LLC v Skyline Windows, LLC 2012 NY Slip Op 32174(U) August 17, 2012 Supreme Court, New York County Docket Number: 102386/2010 Judge: Judith J. 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. SCANNED ON 812012012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY Index-Number . 10~38612010 MSG NATIONAL PROPERTIES, LLC vs SKYLINE WINDOWS. LLC SEQUENCE NUMBER 006 - - INDEX NO. MOTION DATE MOTION SEQ. NO. SUMMARY JUDGMENT The following papom, numbered 1 to -, were mad on thi6 motion tolfor Notice of MotlonlOrder to Show Caure -Affidavits Answering Amdavlta - Exhlblts - Exhibits INobI. I Wd. I No(*). Replying Affldavits Upon the foregoing papers, it I ordered that this motion is s W E u) 2 P P w a: K Lu U .. . Lu .. 5Z 2 J .-'. CI: 3 0 E3 Eg NEW YOHK (;ouNTY CLERK'S OFFICE J.S.C. Dated: ..................................................................... CHECK AS APPROPRMTE: ........................... MOTION IS: I. CHECK ONE: 2. 3. CHECK IF APPROPRLATE: ................................................ CASE DISPOSED GRANTED 0S I,.. 0DENIED + ~ L ORDER E 0DO NOT POST ~ ---&$ON-~ISPOSITION GRANTED IN PART G OTHER 0SUBMIT ORDER 0FlDUCl4RY APPOINTMENT c REFERENCE ] [* 2] Supreme Court of the State of New York County of New York: Part 10 __________-_I____________________I______------------------~---------- MSG NATIONALS PROPERTIES, LLC FlWA MSG BEACON, LLC, Plaintiff, -against- X DecisionlOrder Index No.: 102386/10 Seq. No. : 006 Present: Hgn. Judith J. Gische J.S.C. SKYLINE WINDOWS, LLC, SKYLINE WINDOWS, INC., S. KRAUS, INC. D/B/A SKYLINE WINDOWS and HOBO CONSTRUCTION CO., (these) motion($): FILEP urn bered Papers ~~ ~~ ~~~~ Def Hobo n/m [3212] w/CWY affirm, JR affid, exhs. Hon. Judith J , Gische, J.S.C.: N6..2.0.2ja + . 1, 2 ......I.... ...,....,.._,.. NEW YOHK CLERK'S OFFICE Upon the foregoing papers, the decision and order of the court i as follows: s Plaintiff, MSG National Properties ("MSG"), commenced this action seeking $500,000 in damages for negligence, private nuisance, and trespass against defendants Skyline Windows, LLC, Skyline Windows, Inc. (collectively "Skyline"), and Hobo Construction Co. ("Hobo"). Defendant, Hobo, now brings this unopposed motion for summary judgment. Since issue has been joined and plaintiff has filed the note of issue, this motion will be considered on the merits. CPLR 5 3212, Brill v. Citv of New York, 2 N.Y.3d 648 (2004). Facts and Arguments Plaintiff, MSG, is the owner of the Beacon Theater in Manhattan. Adjacent to the -page 1 of 5 - [* 3] Beacon Theater stands the Beacon hotel. The south side of the Beacon Hotel looks or hangs over the roof of the Beacon Theater. Plaintiff commenced this action seeking $500,000 in damages for negligence, private nuisance, and trespass against defendants Skyline and Hobo. In the complaint, plaintiff alleges that on April 20, 2009, as a result of construction undertaken by the defendants on the south side of the Beacon Hotel, debris fell on the Beacon Theater and pierced the water sealant. This allegedly resulted in leaking and damage to the theater from rain water. Specifically, the complaint alleges that the work was done without any scaffolding, netting, or anything else that would have assured that the work was safely performed, Defendant, Hobo, brings this unopposed motion for summary judgment, Hobo asserts that it entered into a contract with the Beacon Hotel to perform a restoration of the facade and that work was completed on October 1, 2009. Hobo relies on the testimony of it s President, Jesus Rico ( Rico ). In an affidavit, Rico states that Hobo took precautions to prevent harm to surrounding buildings. Rico claims that not only did Hobo use scaffolding and netting but also placed plywood on the Beacon Theater Roof to prevent harm to the structure in the event that debris would land on the theater. Rico also claims that none of the debris that purportedly caused damage to the roof resulting in the leakage and damage to the theater was associated with the type of materials Hobo used during the facade restoration. Lastly, Rico claims that although caulking of the hotel windows was part of the work done by Hobo for the restoration project, Skyline subsequently ripped out and replaced t h e windows after Hobo completed its work pursuant to a contract between the Beacon Hotel and Skyline, -page 2 of 5 - [* 4] Hobo claims that according to a Window Replacement schedule uncovered during discovery, work was to b e paformed o n the Beacon Hotel windows by Skyline from December 2008 through May 2009, well after the time Hobo had finished its work. Hobo also relies on the testimony of John Hall, the Chief Engineer of the Beacon Theater, who testified that there were no complaints or incidents prior to April 20, 2009, and the lestimony of Joseph Wittman, Director of Building Operations at the Beacon Theater, who never states that Hobo is the entity responsible for t h e leaks and damage to the building. Discussion In deciding whether the defendant is entitled to the grant of summary judgment in its favor, the court considers whether defendant has tendered sufficient evidence to eliminate any material issues of fact from this case. " E.G. Wineqrad v. New York Univ. Med. Ctr,, 64 N.Y.2d 851, 853 [I 9851; Zuckerman v, Citv of New York , 49 N.Y. 2d 557, 562 [1980]. If met, the burden then shifts to plaintiff who must then demonstrate the existence of a triable issue of fact in order to defeat these motions. Alvarez v. Prospect Hosp., 68 N Y.2d 320, 324 [1986]; Zuckerman v. City of New York, supra. When an issue of law is raised in connection with a motion for summary judgment, the court may and should resolve it without the need for a testimonial hearing, See, Hindes v. Weisz, 303 A.D.2d 459 [2d Dept. 2003J. To establish a cause of action sounding in negligence, a plaintiff must establish (1) the existence of a duty on defendant's part to plaintiff, (2) breach of the duty and (3) damages. Akins v. Glens Falls City School Dist., 53 N.Y,2d 325, 333 (1981). When proof of any "element falls short, the case should go no further." -page 3 of 5 - u. at 331. [* 5] The elements of the tort of private nuisance are (1) an interference, substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with plaintiff's right to use and enjoy land, (5) caused by defendant's conduct. Copart Indus.. Inc. v Consol. Edison Co. of New York, Inc., 41 N.Y.2d 564 (1977). Trespass is an intentional entry onto the land of another without justification or permission, The necessary elements to prove trespass to land are (1) intent or recklessness, (2) entry by a person or thing upon land, (3) in the actual or constructive possession of another. Woodhull v Town of Riverhead, 46 AD3d 802, 804 (2d Dept 2007). Hobo claims that it took extensive precautions to prevent debris from falling on t h e rood of the Beacons Theater, that it cleaned up its debris at the end of each day and that it never received complaints from anyone that any debris from Hobo caused any clogged roof drains on the rood of the Beacon Theater. Furthermore, Hobo claims that none of the debris was of the type generated by Hobo's work. As this motion is unopposed and based on a review of the record defendant has established that no material issue of fact exists here. Based on the submissions, Hobo has established freedom from negligence and that it neither trespassed or created a private nuisance. Plaintiff has failed to come forward to show any disputed issue of fact. The motion for summary judgment and to dismiss the plaintiffs complaint and all cross claims against Hobo is granted. Conclusion Based on the foregoing, it is ORDERED that defendant Hobo Construction Co.'s motion for summary - page 4 of 5 - [* 6] 0 judgment and dismissal of t h e plaintiff's complaint and all cross claims against Hobo is granted; and it is further ORDERED that this case is ready for trial. Plaintiff shall serve a copy of this decision/order on the office of Trial Support so that the case can be scheduled; and it is further ORDERED that any relief not expressly addressed is hereby denied; and it is further ORDERED that this constitutes the decision and order of the court. Dated: New York, New York August 17, 2012 So Ordered: AUG 2 0 2012 - page 5 of 5 -

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