Gross v Ismael Leyva Architect, P.C.

Gross v Ismael Leyva Architect, P.C. 2017 NY Slip Op 09242 Decided on December 28, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 28, 2017
Acosta, P.J., Richter, Mazzarelli, Andrias, Gesmer, JJ.
5283 153081/16

[*1]Lewis Gross MD, Plaintiff-Respondent,

v

Ismael Leyva Architect, P.C., Defendant-Appellant, ABN Realty LLC, et al., Defendants.

Gallo Vitucci Klar LLP, New York (Mary L. Maloney of counsel), for appellant.

Weg & Myers, P.C., New York (Joshua L. Mallin of counsel), for respondent.

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered June 9, 2017, which denied as premature the motion of defendant Ismael Leyva Architect, P.C. (ILA) to dismiss the complaint as against it, unanimously affirmed, without costs.

ILA has not established entitlement to dismissal of the negligence claim as against it. The amended agreement indicating that it agreed to perform "Construction Observation (Quality Control) other than those included in Architect's [Construction Administration] responsibilities during site visits," raises questions as to whether ILA was responsible for inspecting the excavation and underpinning and, if so, whether it properly performed such work (see e.g. 27 Jefferson Ave., Inc. v Emergi, 18 Misc 3d 336, 340-341 [Sup Ct, Kings County 2007]). Thus, the motion court properly denied the motion "with leave to bring it again after depositions." Notably, the cases upon which ILA relies were decided at the summary judgment stage, after the completion of discovery (see e.g. 87 Chambers, LLC v 77 Reade, LLC, 122 AD3d 540 [1st Dept 2014]; 492 Kings Realty, LLC v 506 Kings, LLC, 105 AD3d 991 [2d Dept 2013]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 28, 2017

CLERK