Jacobs v Fieldstone Realty, LLC

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Jacobs v Fieldstone Realty, LLC 2016 NY Slip Op 32889(U) November 27, 2016 Supreme Court, Rockland County Docket Number: 030230/2016 Judge: Thomas E. Walsh II Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: ROCKLAND COUNTY CLERK 11/28/2016 04:45 PM 1] INDEX NO. 030230/2016 II I~ NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 11/28/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND ________________________ ~--------------------------~--------------x DECISION LYSA GALLAGHER JACOBS and ROBERT W. GALLAGHER, AND ORDER Plaintiffs, Index No. 030230/2016 -againstFIELDSTONE REALTY,LLC, G1BRALTAR MANAGEMENT COMPANY, INC. And CARDIOLOGY CONSULTANTS OF ROCKLAND, P.c. ________________________ " # 2) (Motion Defendants. " ------------X Thomas E. Walsh, II, )'''.J.S.c. The following papers, numbered 1 to 3, were considered Defendant GIBRALTAR MANAGMENT COMPANY INC.'s (hereinafter in connection GIBRALTAR)Notice of Motion for an Order, pursuant to Civil Practice Law and Rules 9 and all cross-claims fails to state a cause of action Defendant on the grounds that complaint GIBRALTIX'R or in the alternative, Summary Judgment 3211(a)(7), for an order @ursuant to Civil Practice Law and Rules dismissing granting 9 the Complaint Defendant 3212 dismissing with against GIBRALTAR the complaint I ,I and cross-claims with'rprejudice on the grounds that there are no triable issues of fact as to the :1 allegations of ne~lige~ce against Defendant GIBRALTAR, together with such other and further II relief as the court de~ms just and proper: :I PAPERS NUMBERED NOTICE OF MOTION/AFFIRMATION EXHIBITS (A-D) " OF DAVID R. BEYDA, ESQ.f 1 '. AFFIRMATION IN OPPOSITION OF HEATHER M. NAPPI, ESQ.fEXHIBITS REPLY AFFIRMATION"OF ROBERT J. GIRONDA, ESQ.fEXHIBIT Upon a careful A and detailed review of the foregoing as follows: 1 of 5 (A-D) 2 3 papers, the Court now rules [* 2] Plaintiffs NYSCEF system. March 4, 2016. filed a Summons Plaintiff with Notice on December served a Supplemental 28, 2015 through Summons and Amended Complaint the dated Issue was joined as to Defendant GIBRALTAR by service of a Verified Answer to Amended Complaint dated June 7, 2016. Counsel for Defendants. The Amended Complaint alleges that Defendant GIBRALTAR owned, operated and managed 12 Liberty Square, Stony Point, New York. Additionally, the Amended Complaint alleges that Defendant leased the premises at 12 Liberty Square, Stony Point, New York to Defendant CONSULTANTS OF ROCKLAND, P.c. (hereinafter CCOR). Further, GIBRALTAR CARDIOLOGY Plaintiff alleged that Defendant GIBRALTAR entered into a contract for snow and ice removal from 12 Liberty Square, Stony Point, New York. On July 30, 2015, Defendants filed the instant motion to dismiss, arguing that the complaint fails to state a cause of action upon which relief can be granted, is a defense based upon documentary allegations in Plaintiffs' complaint, action against Defendant them. Defendant evidence. moving papers argue that the even if true, do not rise to the level of stating GIBRALTAR and also cannot establish GIBRALTAR's argument employee of Defendant, Defendants and that there a meritorious is based on an Affidavit who states that the company a cause of claim against of Scott Zelkowitz, had no relationship an with the property where the Plaintiff's accident occurred. Plaintiff and Defendant agreed several times to adjournments motion, extending the time for Plaintiff to submit opposition of the instant papers, with the final letter e-filed on July 28, 2016. Plaintiff's counsel e-filed a letter dated July 28, 2016 in which she stated that the parties agreed to adjourn the instant motion's return date to August opposition papers to be filed by Plaintiff on or before August 2, 2016. 12, 2016, with all Defendant GIBRALTAR notes that Plaintiff's papers were e-filed through the NYSCEFsystem on August 5,2016 therefore untimely. and are This Court agrees that the Plaintiff failed to abide by a return date and file by the date set by Plaintiff's counselor even address the late filing 2 2 of 5 within their opposition [* 3] papers. Therefore, Plaintiff's disregarded by this Court. opposition to the instant motion is untimely Nonetheless, the Court did review the opposition and will be papers submitted by Plaintiff and determ'ined that Plaintiff's argument that the instant motion is premature as the discovery process has hot begun and that Plaintiff remains unclear as to the owner of the lease for 12 Liberty Square' Stony judgment Point, New York has no merit. motion may be withheld Determination when discovery is Incomplete, of a summary but there must be a showing that will yield material, and relevant evidence. [Camoia v. Custom Computer Specialists, Inc., 44 AD3d 814 (2d Dept 2007)]. submitted timely, Assuming arguendo Plaintiffs' opposition this Court finds that Plaintiffs have failed to demonstrate the instant matter will assist In determining papers were that disCovery in the owner and lease of 12 Liberty Square Stony Point, New York. Plaintiffs additionally oppose the instant motion based on Defendant GIBRALTAR's failure to follow the Court's part rules requiring the notification of the desire to file the instant motion and await a determination in writing to the undersigned of this Court. In reply papers Defendant GIBRALTAR's counsel apologized to the Court for the failure to comply with the Part Rules, stating he believed they applied to discovery motions. or Piaintiffs have beeri prejudiced Neither Defendant GIBRALTAR by Defendant GIBRALTAR's failure to follow the Part Rules. The Court reminds both counsel to refer to the Part Rules before proceeding motions, but does not believe Defendant GIBRALTAR's counsel intentionally with additional failed to comply. Therefore, the Defend'bnt GIBRALTAR's motion was considered despite the failure to follow the Part Rules. According to the Affidavit of Scott Zelkowitz, Defendant GIBRALTAR does not own, operate or manage the premises located at 12 Liberty Square, Stony Point, New York. Zelkowitz also attests 'that Defendant GIBRALTAR never ieased 12 Liberty Square Stony Point, New York or entered into a contract or agreement Addltionaliy, the Zelk6witz Affidavit to remove snow and Ice from that location. avers that there is no contract, 3 3 of 5 agreement or relationship II [* 4] between Defendant FIELDSTONE REALTY, LLC or with Defendant CARDIOLOGY CONSULTANTS OF ROCKLAND, P.c. in relation Affidavit admits a relationship to 12 Liberty Square Stony Point; New York. The Zelkowitz between themselves and Defendant CCOR rergarding a property located in West Nyack, New York only. On a motion to dismiss for failure to state a cause of action [9 3211(a)(7)), Court initially must accept the facts alleged in the complaint the as true and then determine ii whether those facts fit within any cognizable legal theory, irrespective will likely prevail on th'e merits. (1995); Leon v. Martinez, [Campaign of whether the plaintiff for Fiscal Eguity, Inc. v. State, 86 N.Y.2d 307, 318 84 N.Y.2d 83, 87-88 (1994); People v. New York City Transit I: Authority, 59 N.Y.2d Guggenheimer 343, v. Ginzburg, 348 Marone 43 N.Y.2d 268, 274-275 A.D.2d 92, 98 (3d Dept. 1989): (2d Dept. 1984)]. (1983); The complaint v. Marone, (1977); 50 N.Y.2d Cavanaugh (1980); v. Doherty, Klondike Gold, Inc. v. Richmond Associates, must be given a liberal construction 481 243 103 A.D.2d 821 and will be deemed to ,I allege whatever cause of action can be implied [Shields v. School of Law of Hofstra University, by fair and reasonable reading 77 A.D.2d 867 (2d Dept. 1980); of same. Penato v. George, 52 A.D.2d 939 (2d Dept. 1976)]. On the record before the Court, and in light of the Affidavit even if all of the alleg~tions of Steven Zelkowitz, in the complaint were accepted as true, the complaint fails to state a cause of action agai~st Defendant GIBRALTAR. Further, in light of the fact that Plaintiffs have failed to provide any documentation upon which they based their allegations that Defendant GIBRALTAR owns, leases, controls or entered in to contracts regarding 12 Liberty Square, Stony Point within the Complaint facts stated and Amended Complaint in the Complaint. As a result, are based the Court cannot accept the the complaint is dismissed as to Defendant GIBRALTAR. Accordingly, it is hereby .i ORDERED that Defendant GIBRALTAR's Notice of Motion to dismiss (Motion # 4 4 of 5 [* 5] 2) is granted in its entirety December 28,2015 and the Complaint as to Defendant New City, ~ Novemb;e~, the NYSCEF system on GIBRALTAR only is dismissed. The fore'going constitutes Dated: filed by Plaintiffs through the Decision and Order of this Court on Motion # 2. York 2016 TO: by e-filinq VALERIE J. CROWN ATTORNEY AT LAW, P.e. Attorney for Plaintiffs (via e-file) FIELDSTONE REALTY, HC Defendant 9 Liberty Square Stony Point, New York 10980 (via regular mail) , DAVID R. BEYDA CARTAFALSA, SLATTERY, TURPIN & LENOFF Attorney for Defendant GIBRALTAR MANAGEMENT COMPANY, INC. (via e-file) . SARETSKY, KATZ & DRANOFF, L.L.P. Attorneys for Defendant CARDIOLOGY CONSULTANTS OF ROCKLAND, P.e. (via e-file) j. '. 5 of 5

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