1049 Park Ave. Apts. Corp. v Greater N.Y. Mut. Ins. Co.

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1049 Park Ave. Apts. Corp. v Greater N.Y. Mut. Ins. Co. 2011 NY Slip Op 32441(U) September 7, 2011 Sup Ct, NY County Docket Number: 103137/09 Judge: Doris Ling-Cohan 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. UEDON911212011 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY DORLS LING-COHAN PRESENT: PART .. 3d Justice MOTION DATE -vMOTION SEQ. NO. / t u fiJk ~ d f i d AG~ + . r MOTION CAL. NO. f4#&L9&w& The following papers, numbered 1 to Notice of Motion/ Order to Show Cause Answering Affldsvltei 6?flkT - Exhlblt8 were read on rhlr motion to/for - Affidavits - Exhlblto ..Ye- I pqp-u iL Replying Affldavhs Yes Cross-Motion: d N o % Upon the foregoing papors, it is ordered that thls motion Dated: LYS-CJ~ 67 T-?-Eo// Check one: FINAL DISPOSITION Check if appropriate: 0 DO NOT POST 0 SUBMIT ORDER/ JUDG. 0 REFERENCE SETTLE ORDER/ JUDG. - [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 36 X _ - _ " - _ l _ _ _ _ " _ _ _ _ " r " - - - - - - - I - - ~ - - ~ - ~ - ~ ~ ~ ~ - - - - ~ ~ - ~ ~ ~ ~ ~ ~ ~ ~ - - - - - - - - ~ ~ ~ ~ " ~ - ~ - - 1049 P A W AVENUE APARTMENTS COW., Plaintiff, Index No. 103137109 -againstMotion Seq. No. 003 & 004 GREATER NEW YORK MUTUAL INSURANCE COMPANY, FILED SEp 1 2 2011 DORIS LING-COHAN, J.: NEW YORK COUNTY CLERK'S OFFICE Motion sequence numbers 003 and 004 are consolidated for disposition herein. In motion sequence number 003, third-party defendants Stephen V. DeSimone, P.E. and S. DeSimone Consulting Engineers, LLC (incorrectly sued as DeSimone Consulting Engineers) move to dismiss the Amended Third-party Complaint against them, pursuant to CPLR 321 l(a)(l) and (7), or, in the alternative, for summary judgment, pursuant to CPLR 32 11(c). In motion sequence number 004, third-party defendant HLW International LLP ('YLW') also moves to dismiss the Amended Third-party Complaint and all cross-claims against it, pursuant to CPLR 321 l(a)(l) and (7), or, in the alternative, for summary judgment, pursuant to CPLR 32 11(c). Plaintiff 1049 Park Avenue Apartments Corporation commenced this action against defendant Greater New York Mutual Insurance Company ("Greater New York") to collect $272,000, under an insurance policy issued by Greater New York, for property damages resulting to its building during construction activities at the adjacent building. Greater New York then commenced a third-party action, alleging that the claimed damages are the result of the negligence of third-party defendants - the adjacent property owner, its architects, engineer and contractors - to properly support plaintiffs building during demolition, excavation, and construction activities at 1055 Park Avenue, and further alleges negligent design and [* 3] conmction of the shoring, bracing, and underpinning of plaintiffs building. On a motion to dismiss, pursuant to CPLR 32 11, the pleading is given a liberal construction and the facts alleged therein are accepted as true. Leon v Martinez, 84 NY2d 83,87 (1 994) The motion to dismiss will only be granted if, upon giving the non-movhg party every favorable inference, the facts do not fit within any cognizable legal theory. Id. at 87-88. However, factual claims that are contradicted by documentary evidence, are not entitled to such consideration. CIBC Bank & Trust Co. (Cayman) Ltd. v Credit Lyonnais, 270 AD2d 138, 138 (1st Dep t 2000). A party who seeks dismissal based on documentary evidence pursuant to CPLR 321 l(a)( 1) has the burden of submitting documentary evidence that resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claim. Epvani v Johnson, 65 AD3d 224,229 (2d Dep t 2009) (internal quotations omitted). Motion S ~ ~ U ~Number 003 I-AG~ Third-party defendants Stephen V. DeSimone, P.E. and S. DeSimone Consulting Engineers, LLC (collectively, the DeSimone Third-party Defendants ) now move to dismiss the Amended Third-party Complaint against them, or, in the alternative, for summary judgment. The DeSimone Third-party Defendants contend that they had no responsibility for the design or construction of the bracing, shoring or underpinning systems for the project. In support of such contention, the DeSimone Third-party Defendants submit, as documentary evidence, their agreement with IGOC I Park LLC ( IGOC ) to provide services for the project, which specifically excluded from their scope of services, the design of shoring and underpinning systems for construction of the foundation system and structural engineering consultation related to any construction means or methods, unless otherwise agreed to, for additional compensation. DeSimone Aff, Exh 1-A. Further, the DeSimone Third-party Defendants 2 [* 4] structural drawings for the project are also attached, which provided that the contractor would be solely responsible for the safety of persons and property and for the shoring, bracing, and protection of existing and adjacent structures during con~tmction. DeSimone Aff, Exh 2. h opposition, third-party plaintiff Greater New York first argues that since third-party defendant H. Thomas O Hara Architect PLLC has filed for bankruptcy and a stay has been issued by the United States Bankruptcy Court,Southern District of New York, the within motion should not be decided. Second, Greater New York contends that the documentary evidence presented by movants does not conclusively [dispose] of the plaintiffs claim. Berurdino v OchZun, 2 AD3d 556,557 (2d Dep t 2003). Greater New York argues that: [elven if DeSimone did not have any involvement i the bracing, shoring or underpinning . . . ,both its contract and the instant motion n are silent as to whether it performed any engineering services with regard to the demolition andor excavation of the Construction Premises. Brief in Opp at 6 . Moreover, Greater New York contends that the DeSirnone Third-party Defendants filed a permit application for excavation work during the time period in question. Greater New York asserts that m e r discovery is necessary to determine what services the DeSimone Third-party Defendants performed, as well as the facts underlying the DeSimone Third-party Defendants services related to excavation as reflected in the Department of Building records. As to Greater New York s first argument, the filing of batlkruptcy by one defendant does not stay the entire action as against the other defendants who have not filed for bankruptcy. See Centrust Sews., Inc. v Guterrnun, 160 AD2d 416,418 (1st Dep t 1990). Thus,this Court is not barred from deciding the within motion with respect to rnovmts, who are non-bankrupt parties. Moreover, pursuant to this Court s Order entered July 1,2010, the third-party action was severed and stayed only as to the bankrupt third-party defendant H. Thomas O Hara Architect 3 [* 5] PLLC; the remainder of the third-party action shall continue. With regard to Greater New York s second argument, while the contract for the project makes clear that the DeSimone Third-party Defendants were not responsible for bracing, shoring and underpinning, it fails to conclusively establish that the DeSimone Third-party Defendants had no part in the excavation and demolition of the project, which is a portion of the allegations in the third-party complaint. The Amended Third-party Complaint alleges that the DeSimone Third-party Defendants performed engineering services with regard to the demolition, excavation andor construction at the Construction Premises. Am Third-party Comply7 24-25. The amended third-party complaint further alleges that the third-party defendants caused the loss: in failing to use due care in the design, demolition, excavation and construction of the Construction Premises; in failing to use due care in designing and constructing the shoring, bracing and other aspects of protecting 1049Park s property during demolition, excavation and construction activities; in failing to use due care in designing and performing the demolition, excavation and construction on the Construction Premises . . . . Id. 7 34. At this stage, on a pre-answer motion, it is premature to dismiss the DeSimone ThirdParty Defendants from this action, prior to all discovery being complete, as there are allegations in the Amended Third-party Complaint that have not been conclusively contradicted by the documentary evidence presented. Moreover, upon review of the proposal for the project by the DeSimone Third-party Defendants to IGOC, the breakdown of services to be performed by the DeSimone Third-party Defendants includes [c]onstruction administration, to which the DeSimone Third-party Defendants allocated $1 1,000 of their fees. Stephen V. DeSimone A f f ,Exh 2-A. It is unclear, at this point, what duties and obligations fall under the category of construction administration. It is 4 [* 6] entirely possible that the DeSimone Third-party Defendants did more than simply design the project, as they allege, and instead participated in the construction, excavation and/or demolition work at the project site, as is alleged in the Amended Third-party Complaint. As stated above, at this stage, on a motion to dismiss, it is premature to grant dismissal. Lastly, as to the DeSimone Third-party Defendants request to convert this motion to one for summary judgment, the Court declines to follow such course of action here. As the ih DeSimone Third-party Defendants were not in privity of contract wt third-party plaintiff, Oreater New York would be unable to oppose the motion for summary judgment at this time, without discovery being completed wherein facts and evidence of the relationship and duties of the DeSimone Third-party Defendants would come to light. As such, the DeSimone Third-party Defendants motion to dismiss is denied. Motion Sequence Number 004 Third-party defendant HLW also moves to dismiss the Amended Third-party Complaint against it, or, in the alternative, for summary judgment. HLW contends that it was retained by IGOC in 2006 to perform certain design services concerning the project. However, J3LW alleges that before it completed those design services, and before construction began, IGOC terminated it from the project in January 2007. Further, HLW argues that the plans it prepared were incomplete and were not intended to be used for construction. HLW contends that IGOC retained another architectural firm to serve as the project s architect. In support of its position, HLW relies on Theodore Hammer s affidavit, one of its managing partners, and the DeSimone Third-party Defendants proposal to IGOC for the project. In that proposal, dated February 25,2007, the DeSimone Third Party Defendants stated that their understanding of this project is based on architectural drawings received from H. Thomas 5 [* 7] O Hara Architects dated February 20,2007 and further wrote that [tlhe architect for the project is H. Thomas O Hara Architects. Timothy F. Hegariy Affirmation, Exh 2-A. In opposition, third-party plaintiff contends that, according to the Department of Building records, HLW remained the architect of record on the project through August 27,2007, approximately two months after damage allegedly occurred to plaintiff s building. Moreover, third-party plaintiff argues that facts as to whether movant s architectural services were used are currently unavailable to it, and can only be obtained through documentary and deposition discovery. At this stage, the motion to dismiss is denied. The documentary evidence submitted by movant HLW does not conclusively [establish] that no cause of action exists on behalf of third-party plaintiff. Epqani v Johnson, 65 AD3d at 229. The supporting documentation essentially states that it was another party s understanding that the architect was H. Thomas O Hara Architects. However, without any evidence that H. Thomas O Hara Architects was, in fact, engaged to be the architect on the project prior to any of the loss occurring and movant n being terminated, it is premature to dismiss movant at this time, especially i light of the fact that any such evidence is not in the hands of the non-movant, third-party plaintiff. Although movant also submits its managing partner s afEdavit, such is not properly considered on a motion to dismiss. See Tsimerman v Janofi 40 AD3d 242,242 (1st Dcp t 2007); see also Siegel, Practice Commentaries, M c K h e y s Cons LAWS of NY, Book 7 3 CPLR C32 11:10. Thus, the motion to 1, dismiss by HLW is denied at this juncture. Further, HLW s request to convert this motion to one for summary judgment is inappropriate here, where third-party plaintiff lacks the ability to The Court notes that Greater New York requested that HLW provide it wt ih documentation that it was no longer the architect on the project before this motion was made, to resolve this issue without motion practice, but HLW failed to provide any such evidence. 6 [* 8] oppose a summary judgment motion brought by a party with whom it has no relationship without completing discovery first. As to both motions, while the Court, at this time, denies rnovants applications to dismiss the Amended Third-party Complaint and any cross-claims against them, after the completion of discoveTy, and with supporting evidence, dismissal might be entirely appropriate, given the alleged facts and circumstances. Accordingly, it is ORDERED that the motion to dismiss (motion seq. no. 003) by third-party defendants Stephen V. DtSimone, P.E. and S . DeSirnont Consulting Engineers, LLC (incorrectly sued as DeSimone Consulting Engineers2)is denied; and it is further OROERED that the motion to dismiss (motion seq. no. 004) by third-party defendant HLW International LLP is denied; and it is firher ORDERED that third-party defendants are directed to serve an answer to the complaint within 20 days after service o f a copy ofthis order with notice of entry; and it is further ORDERED that within 20 days of entry of this order, third-party plaintiff shall serve a copy of this order with notice of entry, upon all parties. J:\Dtsmisa\l049 Avenue A~EI~ITIIUIIB disrnlss danitd, complete dlscovcry.wpd Park Corp, SEp 12 2011 NEW YORK COUNTY CLERK SOFFICE Counsel to amend as to the correct name. which shall provide for service to the County Clerk and Trial Support to amend the caption. 7 & / Y

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