Banta Homes Corp. v Job Opportunities for Women

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Banta Homes Corp. v Job Opportunities for Women 2013 NY Slip Op 30313(U) January 23, 2013 Sup Ct, New York County Docket Number: 603029/2007 Judge: Shlomo S. Hagler 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 211112013 [* 1] BANTA HOMES i ' ~ I JOB OPPORTUNITIES FOR WOMEN SEQUENCE NUMBER : 003 SUMMARY JUDGMENT Upon the foregoing pa This Motion (Sequence #003) is GRANTED to the extent set forth in the attached separate P Lu 0: .. PART OOTHER [* 2] SUPREME COUII'I' OF I I I E STATE OF NEW YORK COLJN'IY OF NEW YORK: IAS PART 17 ICANTA HOMES C'OKPORATION, Plaintiff, Index No. 60302912007 -against,JOB OPPOKTIJNITIES lWR WOMEN, JOB OPPORTUNITIES FOR WOMEN, Defendant/Third-Party Plaintiff, lndex No. 591 12912010 -against- I, I N I) EN C '0 ST R LJ C'TI 0N C ' C ) R P., N C' 2 I<- W IN C 'ON S'I'KU C'1' I ON IN ('. , 4 OLI)C'AS'TI.,E PRECAST, INC., a/Wa OLDCASTLE PRECAST EAST, INC., and Y O R K RESTORATION CORPO Third-party Defe da s. NY Motion Seyuencc Nus: 002,003 & 004 E DE~ISIONandOllnZR (I consolidated for. disposition. In iiiotion sequericu riiiiii bcr 002, third-party defendant York Restoration Corporation (L'Yorl<'')I I I O V O S for an order, pursuant to C'PLR f:iilirrc to 9 321 1 ~ dismissing the third-party complaint for b ~ r t c ciiiisc 01' action. Yorli is also sccking sanctions, attorneys fees and costs in this ii matt cr , 'I Iiircl-party def'endant Oldcastle I'rccast, Inc., dk/a Oldcastle Precast kist, Inc. (bbOldcastle"), ctms-iiiovcs I b r an ordcr, pursuant to C'PLR $ 32 12, l o r summary judgmcnt dismissing the third- 1x1 y rt L' ( ) I I ip I ai I i t [* 3] 111 iiiotion sequencc number 003, third-party defendant Linden Construction Corporation ( I ,inden ) mover;, pursuant to C P1,K tj 3212, dismissing the third-party complaint and all crossclaims against it . In molion scqucticc nutiibcr 004, clui~ndant/third-party plaintiff Job Opportunities for Women (. .JOW ) I I I O V ~ Spursuant to C PLR $ 3025(b), for leave to amend the complaint. , FACTUAL BACKGROUND The claims in this third-party action arise out o f a breach of contract and negligence dispute hcrwccn plaintift t3aiita I loriics C orporation ( Banta ) and J O W in thc underlying action. On September 12, 200 1 , Ranta and JOW entered into a contract h r installation nf masonry work including, but not Iiriiited to, brick, mortar, blocks, lintels, stills and flashing work in and around all openings at tlic I larriet Tubnian Chrdens Mid Rise Apartments and Townhousc Pmjects located at 2 2 7 5 Fredericlc 1)ouglas Roulevard in New York City ( the Premises ). On November 21, 2001, ILuita and Linden rntcrccl i tito ail agrccinent for Linden to perform carpentry work which includcd install tng doors, frames, niedicinc cabiiicts, kitclicn cabinets, and windows at the Premises (Exhibit I< to A K d a v i l of.loscp11 P. Fuscc~, dated March 12, 2012 [ Fusco Aff. ]). Fkinta alleges J O W failcd to propcrly perform tlic scope of tlic work in accordance with the plGiii\ c ~ ~ \pcciiications i d ;I ol tlic projcct, tlicrcby allowing water infiltration into the Premises. Aftcr hLittcry of tcsts, Banta discovered that tlic flashing, associatcd with the masonry work at tlic I)twiiisc\ had bccii improperly installcd. Flashing is an inipcrvious niatcrial used in construction and i i i ~ ~ i t l l e d ;i joint at \ t i i i c ~ i i i cIroiii o r ariglc ot a structure to prevent the passage of water from penetrating into the the cutcriot 011 Scptcnibcr 1 1 , 2007, Bnnta coiiiinenced a lawsuit against SOW -2- [* 4] assertiug three causes o f action for breach of contract, negligencc, and breach of a warranty. On Novcmber 3 I , 2007, J O W iiled an Answer to the Verified C omplaint. ( Bluestone ), a sister company Diiriiig Septembcr 01 2007, Bluestone Engineering Compar-~y 01 l3ant,i. consultccl and hired York to correct tlic damage to the Preiniscs following .low s work. Yorlc completed its work on the Premises i n 2009 after repairing lcaks in over twenty dirferent locations. Subscquently, Lawless & Mangionc, LLP, an architcctural and engineering Grm inspected m d approvcd those repairs. On 13ccember IS, 2010, J O W conzmenced a third-party action against Linden, Car-Win C onstriiction Inc., Oldcastle and York for comnon-law indemnification for all or part of any judgment, if any, obtaincd against J O W in the itriderlying action. Oldcastle filed its third-party cul\wer 011 I-cbr*iiary8, 20 1 1 , Linden filcd its third-party answer on February 28,20 1 I ,and York filcd i t \ tliird-p;irty answer on Ikcember 13, 201 1. L)ISC USSION York s Motion to Dismiss (Motion Sequence No. 0021 -* York argues that it i s entitled to dismissal ofthc third-party complaint because: ( 1 ) the facts ,illcgcd Ilierci ti ;ire palently falw and contradictory to tlic docuiiieritary evidence in the record, (2) York did not ctitcr into a sub-contract with JOW in 2001 to perfbrm work at the Prcmiscs, (3) Blitcslorie retuincd York in Scptcmber 2007 to complete restoration arid repair work following .IOW s alleged d c f c t i v e atid iicgligent work ut the I ieiiiiscs, (4) York was never in a position to -3 - [* 5] .IOW argucs that York is not entitled to dismissal because: ( 1 ) IOW has properly pled acause of action for common-law indemnification, (2) York perforiiicd work at the Premises that included ilic rciiioval d rcplaceiiieiit of flashing, (3) additional discovery is necded to determine whether Yorli s repair work was negligcntly performed and, therefore, it is unclear as to what extent York m i y havc creakd or exawrbiited thc alleged damage. When a party moves to dismiss a complaint pursuant to CPLR $ 32 I I (a)(7), the standard I\ 1 4 Iicthc.r thc pleading state\ a cause of action, and, in considering such a motion, the coiirt must , w e p t thc t k t s ;IS allcgcd as true, accord plaintill or plaintiffs the benelit of every possible fdvorabk infrrcnce, and dctcrmine only whether the facts as alleged fit within any cognizable legal theory (,Soko/ v L(wder, 74 AD3d I 180, 11 80-81 [2nd Dept 20101 [internal quotation inarks omitted]). JOW c first causc of action is a claim for comnion-law indemnification. The right to indemni tication m a y bc created by cxpress contract or may be implied by law to prevent an unjust enriclimcnt or ;in unfair result ( Tru.s/eos of I olirmhiu Univ. v MitchelI/Giurgolu A.ssoc.v., 1 09 AD2d 449,4S 1-45? [ I st Lkpt 19851). [c ]oiiinion law indemnilicatioii is available to a party that has been Iicld vicariously liable from the party who was at fault in causing plaintif Ys injuries or daniages (S /r//c /1/w / o n c ~ lnc . 1, ~J~IIW~W/ 5 crv~ Groq?, Lid, 87 A133d 909, 91 1 [ 1st Dept 201 I]). In otlicr words, where OIIC is held liablc solely on accoLint of-thtr negligcncc of another, indcmnification, not contrih~itio~i, principles apply to shift the entire liability to the one who was negligent (Cduscr v / + o r / t / w /of CVc~.\/hi~iy , 71 NY2d h43, 646 [lOSS] [citations omitted]). f C oip .I( ) W \ oppositioii to Yorlc s i n o t i o n IS conclusory atid sheer speculation as t o York s allcgcd ncgl igence ;is .IOW sumiiscs that since Yorlc opened up the masonry to perlorm the corrective work. Y oi+ iiiny have crcated or cxaccrbated 11ie iillogcd damage. Hcrc, .IOW s allegcd liability is not -4- [* 6] based solely on the iicgligcnce of another but is based solely on JOW s own actions as an alleged tortfcasor ( soc ?iti,\tcc,\ of ( olitmbia liniv. v Milcliell/G!iur.gola ALsuocs.,109 AD2d at 45 1-452). It is iincoiitrovcrtcd on this record that Y ork was not iicgligeiit and was simply retained to repair .IC)W s allegedly tiegligent inslallalion ofthe flashing. 1 hus, JOW failed to set forth sufficient facts tu stittc a valid claim fi)r ~ o i ~ m o i i - l aindcninification. w 01 d c iI 5 t I c y.c ro ss- M o ti o n fo r S u m m a ry Ju d vm en t to Dis ni iss Th i rd-Pa rty Complaint OII its cross-motion, Oldcastle inovcs for dismissal of tlic third-party complaint. Oldcastle argues that it is cntitlcd to summary judgment because: ( 1 ) Oldcastle was simply the supplicr of precast liollow Iloor plaiilting that was uscd at the Premises, and (2) tlierc is testimony in the record dumoiistrating that the materials it supplicd were not related to the water infiltration and subsequent L ~ L ~ lL ~~tile Lr~renllses i ~ ~gc .IOW argues that Oldcastle is not entitled to suiiiriiaryjudgmerit because: ( 1 ) due to tlic early stages of the litigation, there is insullicient discovery, and (2) expert disclosures have not bccn made, and thus thc issue of liability is ui~dctcnnincd. 1 Iic propoiicnt 01 i i i L i t u i i a l i\\iics /\I LioI I-Iosp ~ ; I niotion ii)r suiiitnary judgincnt must denionstrate that there are no of fact in dispiitc mid that it is entitled tu judgment as a matter of law ( J R v Rcih 205 AD2d 28 I , 382 [ 1 st Dept 2002]). A party must tender suflicient evidencc to clcmonstrnte thc nhscncc of any material issues of facl (Snzrrl1.v 17 AJI, i17du.c h c . , 10 NY3d 733, 735 12008 1 ) 1 ;iiliiic t o clo 50 rcquiie\ denial ol thc motion dcspitc the suftTciency ofthe opposing papers (/I/ ) tiere, Olchistlc has iiiade a prima hcic showing ofentitlement tojudgment as a matter of law. -5- [* 7] JosefC;rec~eh ( Greczek ) aiid Saverio Fasciano ( Fasciano ), two coiistructioii supervisors lor f L t i i h ?,ind %verio Miiiiicci ( Miniicci ),JOW s construction supervisor, testifkd that in 2001, Oldcastle s involvement at the I- rcmiseswas liinitcd to supplying precast hollow core planking for the installation of ccilings and floors at the Prcmiscs (Exhibits D, E and F to Affirmation of John A kearns. datcd April 30, 201 2 [ Fcarns Aff, ]). Cireczek and Fasciano both reported that nci ther prewnt at the Premises nor responsible for any of the subcontracting work outside 01 the supply ofthc aforementioned inatorials. None of those witnesses were able to attri butc any of the water infiltration at the l reniises to the precast planking supplied by Oldcastle and used t o instal I the flouring and ceilings (id.). Furthermore, they rcportcd that Oldcastle was not responsible ii)r the ilashing o r waterproofing that allegedly led to thc water infiltration and darnage to t h c l rciiiisc\ Siiicc tlicrc 15 no cvidcncc that Oldcaqtlc was responsible for or coiitribuled to the del>clive work that is tlic subject of this action, Oldcastle has tendered suftkienl evidence to clcmoii\tratc the absence oi aiiy inaterial issues oi-hct and that it is cntitlcd to judgment as a matter 01 law U i c c the thc ;I iiiotion movant has ~ n a d e required showing, the burden shifts to the party opposing the t o produce witientiary prool in admissible limn d t i c i e t i t to establish the cxistcnce of maler~al issiie oi fact that prccliidcs suiniiiary judgment and requires a trial of the action (J.E 11 I l c ~ / hI W L I S I H O \ ~ / / 295~ [ / / AD2d at 382). Here, JOW has failed to produce sufikient cvidciitiary p o o t t o c\t:ibli\li tlic cxistcnce uf ii material issuc of-fact. -6- [* 8] 1,iticlen s Motion to Dismiss (Motion Sequence No. 003) -- - Liiideii argucs that it is cntitlcd to dismissal of thc third-party complaint because: (1) 1,inden s work at the Premises was limited to carpentry and installing drywall and windows, and thus i t did riot cause the allcgcd damage to the Prcmiscs, and (2) JOW has put forth no evidence demonstriiting that I.itidcri pcrforniccl any work with rcspcct to the installation of flashing or waterprooling on tlic pro-jcct, and as such, it cannot be held responsible for the water infiltration and the resulting datnagc at the Premises. I O W argucs that 1,inden is not entitled to sitminary judgniciit because: (1) Linden failed to 1 providu 3 1 aftidlivit or the deposition transcript o f a person from Linden with knowledge of the facts. ( 2 ) ;ilthoiigli H a n t a allcgcs damagcs as a result of the improper iiistallatiori of flashing, plaintiff s uiiiplvycc couldn t rccall the Ilashing specilications Ibr lhe windows uscd by Banta, (3) thew is a coinplaint li-om a resident ol tlic bui ldirig that thcrc was water infiltration into the apartincnt which JOW cliarxteri7cs as coming tlirough the windows, and thus (4) therc is a question offact as to tlic I L ~ ~ 01 ~ h ilamagcs, u ~ x h ~ I V C I cvicicticc I in the record that Linden was retained to perlorm carpcntry work which includccl tlic installation of windows a1 the Premises. C oticcr~~irig JOW s procedural argument for the denial of this motion, C P I A $ 3212(b) ~-ccluii-es a motion f ur summary judgtnciit must be supported by, aiiioiig other things, an affidavit thal 01 .it1 ;ik itrcli\ iilual I i a ~ i i i g personal linowledge of the fiicts. Notwithstanding this requircment, where, hue, ;I moving party supports a sumtiiary sjudgmcnt motion with an attorney s affirmation, deposition testimony, and other proof, the Fdilul-eto submit an affidavit by a person with knowlcdgc oI the h c l s is not necessarily fatal to tlic motion (Mmwgos v S d i i r n i , 92 AD3d 922, 923 12d I k p t 20 12 1). I-ur!liermore, pursuant t o C PI ,K 3 1 O S , 3 vcrificd plcading may be utili& as an affidavit -7- [* 9] u1ienevt.r tlic latter 15 r q u i r e d . I- rcquently, motions for summary judgment arc supported by sworn dcposi tivri transcripts, tis they are evidence in adniissible form, satisfying the evidcntiary requirciiients of C P1,K $ 3213 (.\CY. CPLK tj 31 16[al atid tj 3212). I Icre, 1,inden s motion is supportcd b y depusitioii transcripts of one if its principals (see Exhibit 1 to Affirinatioin of Joseph I I) t LIW, diited April 2, 20 I2 ~ 1~usco II ]) in addition to a copy of the v e r i k d pleading, an Aff. attorncy affirmation, and sevcral deposition transcripts (Exhibits A through G to Fusco All..). Linden Ius der-nonstrated that it is entitled to judgtncnt as a matter of law. It is mxmtioverted that Linden merely iiistalled tlnc windows aiid was not involved whatsoever in the i i i ~ t ~ i l l a t i oof ii tlic Ilasliing. The record t.evcals that .IOW was tlic only cointractor to install bricks, mor-tu, concrete masonry and the flashing behind those clcinciits (Exhibit 1 to Fusco Aff. at pages 13- 18). Moreover, J O W iiirtallcd all the water proofhg material horn the street level ofthc building to the roof. iiicliiding all the flashing related to the niasonry work (I xliibjt H of Fusco Aff. at pagc 12) L,inden was not contracted t o install any flashing at the Premises (Exhibit tl to Fusco Aff. at pages I h- 18) .IOW was tho oiily contractor on the project who installed the ilashing behind the brick and block walls ofthe Premises, which included the building s windows and all of the thru- wall tlasliing (Exhibit I I to Fusco Aff. at pages 9-14 and F,xhibit 1 to Fusco Aff.. TI). ( i r e u e k . Baiita s construction supervisor, was instructed to uricover and correct the issue of ~ a t c Il~ i l i l t r - ~ t t i o,iti the I rciiiiscs. (.ircc7ck testified that in 2007, he per1i)rrned niiiiierous tests atid i dc-lclmiiircl that there w s water infiltration that seeped into the buildings at the Premises (Exhibit ( ; . of I u\co All at pages 8- 14) Addiliorial tests lwcalcd that the leaks wcrc the result ofdcfccts to the masonry u t i the oiitsidc oftlic buildings due to failed flashing and there was IIO signs of water ttililtt ~ ~ i tliroiigli tlic u t ~ i d o \(~(s ) 1 urther tests cliscloseci that tlic Ilashing Iiad been improperly o i ~ I / -8- [* 10] ~iistalledon the i:,lcadt: oi the building, causing water infiltration into the intcrior (id.).JOW maintained control of thocc operations at the Premises and it is clear that none of Linden s cinployco\ supervised, assisted or othcrwisc participated in the installation of the flashing at the Premise$ (scc t-uhibits G, H and I lo F L I S ~ O Ar f.). In oppo\ition, ]OW poiiits to a letter in the rccord from James Carbonell, a residcnt at the Prcmrscs who inl ormeci management in 2008 that he suffered darnagc from a persistent water leak in his apartment (Lxhibit A to Ai lirrriation of Yadira Ramos-Herbert, dated March 23, 20 12 [Kamos-Herbert Aff.]). Another tcnant, Marion Adeyanju, wrote a siniilar letter to management conccrt~iiigJ m a g t . (0 her apartmcnt following pcrsistcnt rainfall from the roof, terrace, and/or gutters 01 [he building (id,), There is no evidence presented to show that the Cause of the water inliltration was duc to Linden s installation of the windows. The tenant letters, none ofwliicli were \worn to, iiever statc that the water seepage came through the windows. i i t i L o t i ( 1 o\ C I I n fact, all the ICCI cviciencc indicates lhat the water seepage occurred as a rcsult of .JOW s allegedly dclectiw installation of the ilashing. Neither submission raises a question of fact as to 1,inden s or negligence i n this action nor that Linden was responsible for the installation ol the Iid3ility flashing 01 watcrproohg at the Premises. Thus, JOW fails to offer proof in opposition, sufficient lo I ,iiw L~ ti iLihlct\\iic of liict I /,CL/CIYII I r i s ( LO iiuf cat this iiiotion for sumniary judgnicnt ( s w Gilherl Fiwnk C oip o , 70 NYZd 066 I O X X ] ; L i r c ~ u r Now York Univ , 7 AD3d 4 15 I 1 st Dcpt 20041). 17 .JOW s Motion for Leavc to Amcnd (Motion Scqucnce No. 004) .IOW IIIOVCS pursuant to C l Lli $ 3025( 13) for Icavc to amcnd the third-party complaint. In opposiLion. 170th York id I intien argiit- that JOW s request lbr leave to add a claim for contribution [* 11] slioiilci be denied because: ( I ) tlic motion is untimely, (2) the proposed ameiidmcnt is palpably insufhient as a matter of law, and (3) it is devoid of merit. I t is wcll settlccl law that leavr to amcnd plcadings is to be freely given, absent a showing L ol prcjudice or surprise ( H T I L I ~ J ~ ILI /I d ,~L / \i / I / ~ i ~ ~ r p u t c h C orp., 60 AD3d 58.5 [lst Dept Film 2OOc) J ). Nevcrtheless, an examiriation ol the undcrlying merit of the proposed ainendment is required. and leave will be denied where the proposed pleading fails to state a claim or is palpably insuflicient as ; matter of law ( T h m p s o n v C oopcr, 24 AD3d 203, 205 [ 1 st Dept ZOOS]). I I Icic, there J O W s delay in I S neither ;I showing by the defendants ofprtjudicc nor surprisc rcsultitig from seeking to amend the third-party complaint. However, granting JO W s inotion to ainend the third-party complaint in the form as submitted would be futile as JOW hiled, other than i n a conclusory Iltshion, as stated above, to support its allegatioiis that cithcr York or 1,inden was iiegligciit III per1i)riiiii)g the corrective worh or window installation which would be subject to coiiti.ihution t o the extent of their proportioiiatc rcsponsibility for the damages suffcrcd by plaintiff ( I k i / ~ / i > of$I oli/nihrtrI h.lr~c~licll/C~iiir-vglLr.l.r.~cic~n c r ) . o ,s z p In other words, JOW has not sufficiently supported the addcd ciiiise of action of coiilribution because they havc not dcnionstl-atcd any degree ol iicgli~c~nc*c: the part o f Yorh or Lindcn at this time. 011 1 hereforc, .IOW s motion to amend thc third-party coriiplaiiit must be denied without p r q iid ice. C ONC 1, IJ SION - I 0- [* 12] OKDEREII that motion sequencc no. 002 by third-party defendant York Restoration ( 'oi-poration to dismiss is grantcd and the lirst cause of action of the third-party coinplaint is c l i m i \ d ; and it is fiirt1it.r ORDEREL) that Oldcastle Precast, Inc.'s cross-motion lor sumrnary judgment is grantcd to the extent of granting partial summary judgment in favor oftliird-party defendant Oldcastle Precast, Inc., as t o the first cause of action i'or cornrnon-law indemnification; and it is further ~ ~ 1 W l ~ thatI molioii scquci~cc 003 by third-party defeiidant Linden Construction ~ ~ l ~ ~ D no. C'orpor:ition is granted to tlic extent o l granting partial summary judgment in favor of third-party clef'enclant I ,indcn Construction Corporation as to tlic first cause of action for common-law indcinnification; and it is further ~ ~ l < l ) l ~ , l <thatL ~ l ~ motion ccquence no. 004 by dcfcndatit and third-party plaintiff Job Opportirnities for Women f b r leave to aincnd the complaint herein is denicd without prejudice; and It 15 fi1rtht.r OKDERED that the (I'lerk is dircctcd to enter judgment accordingly, and il is further (114 )I*RI-~l)that [lie remainder of tlic action shrill continuc. l'hc furegoing constitutes the lcisioii and order of this {'ourt. hLED I>a1L'd: . l a n l l ~ i l y23. 20 1.3 Nc-w Yorli. Ncw York -1 I - r 1

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