Martinez v City of New York

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Martinez v City of New York 2013 NY Slip Op 32421(U) October 4, 2013 Supreme Court, New York County Docket Number: 402880/2010 Judge: Louis B. York Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. '.::>CANNt::U UN 1U/1U/2013 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY LOUIS B. YORK PRESENT: · · ·---·- "' PART_') _ _ J -~.sWce INDEX NO. 'f c·a...,~~o MOTION DATE -v- tJ\-u C£>..;( K y, { Q.i(f fl~~ ) ~. er~ . L f // S l,3 Q () MOTION SEQ. NO. g The following papers, numbered 1 to _ _ , were read on this motion t o / f o r - - - - - - - - - - - - - Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits- E x h i b i t s - - - - - - - - - - - - - - - - Replying A f f i d a v i t s - - - - - - - - - - - - - - - - - - - - - I No(s)._ _ _ _ __ I No(s). _ _ _ __ I No(s). _ _ _ __ Upon the foregoing papers, it is ordered that this motion is w () j:: Cl) ::::> ., 0 l- o w 0:: 0:: w LL w 0:: . ¢ ...J ...I z >- -... ~ ::::> 0 LL I- (/) FILED <( () w ~ Cl) w a:: z (!) 0:: Cl) OCT 10 2013 ;;::: - 0 w ...J Cl) ...J <( 0 () u. COUNTY CLERK'S OFFICE NEW YORK - ::i: z w 0 It:= a:: 0 0 :iE u. '-,' Dated: --~~---"- _ _ _ _ _ _, J.s.c. ...-+-!.- i C' ( l.f ( 0 :.. ,,. "... . .''\t' l jj~ ;~ : ~ .t· ~;~J t. ~....~1 ·~ 1. CHECK ONE: ..................................................................... 0 2. CHECK AS APPROPRIATE: ........................... MOTION IS: D GRANTED 3. CHECK IF APPROPRIATE: ................................................ 0 CASE DISPOSED D DENIED SETTLE ORDER D DO NOT POST f' \;,:,'.11'(·······.".>,· ¢~.:~.· .·. :-..'.{ ~;" ... \i - " '!;\. ~fm'N'-flN~l;l~·e>SITION 0 GRANTED IN PART 0 OTHER 0 SUBMIT ORDER D FIDUCIARY APPOINTMENT ID REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS'PART 2 ==================================X JULIO MARTINEZ, Plaintiff, Index No. 402880/2010 -againstTHE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., MOCAL ENTERPRISES INC., VERIZON NEW YORK INC., PETROCELLI ELECTRIC CO. INC., TULLY CONSTRUCTION CO INC., RUCKEL'S INC., TC CONTRACTING INC., PIPELINE CONSTRUCTION ~LC, AND V ALANA CONSTRUCTION CORP., CH. MONACO CORP., and CHIN HANG YUN, Defendants. ==================================X MOCAL ENTERPRISES, INC., Third-Party Plaintiff, - against~ FILED OCT 1O2013 COUNTY CLERK'S OFFICE NEW YORK Third-Party Index No.: 509771/2011 JSK MONA CORP., Third-Party Defendant. ==================================X LOUIS B. YORK, J.: First, the Court notes that previous orders by Justice Wright and by this Court have trimmed down the number of active parties substantially. Prior to this motion, plaintiff received default judgment against TC Contracting, Inc., and Valana Construction Corp. In addition, the action and all cross-claims have been dismissed or discontinued as against several defendants in particular, The City ofNew York, The City ofNew York Department of Transportation, Consolidated Edison Company ofNew York, Inc., Verizon New York, Inc., Petrocelli Electric 1 [* 3] Co., Inc., and Pipeline Construction, LLC. Thus, it appears that the remaining parties in the main action as of the date of this motion were plaintiff and defendants Mocal Enterprises, Tully Construction Co., Inc., Ruckel's, Inc., TC Contracting, Inc., Valana Construction Corp., JSK Mona Corp., CH. Monaco Corp., and Chin Hang Yun. Unfortunately, at no point has the caption been amended. The Court will include the corrected caption in this order. Now, the Court turns to the motion at hand, motion sequence number 8. In it, defendants defendants JSK Mona Corp., CH. Monaco Corp., and Chin Hang Yun (collectively, "movants") move for summary judgment dismissing all claims and cross claims against them. Prior to the final submission date, plaintiff stipulated with movants to discontinue against them. Therefore, movants discontinued their motion against plaintiff alone. The third-party action, against JSK Mona Corp., appears to remain in its entirety. This third-party action relates to the issue of indemnification. There is no opposition to the current motion by any party. The underlying complaint asserts that plaintiff alleges that on March 12, 2009, he sustained injuries when he tripped over a metal plate cover. The cover was on a part of the sidewalk that abutted the building at 1205-1211 Broadway in Manhattan. JSK Mona Corporation leased the premises from Mocal Enterprises during the period in question. Subsequently, CH. Monaco Corporation became the lessee. Chin Hang Yun is the principal of both of these lessees. Movants argue that all claims and cross claims against them should be dismissed because it had nothing to do with the metal plate cover in question. In particular, they state that the metal plate was installed on the sidewalk by someone else, and that they had no knowledge of the plate, of problems with the plate, or with subsequent repairs. They cite the sworn deposition testimony of Chin Hang Yun to substantiate their argument. As stated, no party has opposed this 2 [* 4] motion with evidence to the contrary, and plaintiff himself discontinued against movants after the submission of this motion. Therefore, the Court grants the motion to this extent. As for movants' request to dismiss the third-party complaint againt JSK Mona Corp., the Court must deny it at this time. Although movants' have annexed evidence that it held the requisite insurance policy on the date of the accident, the notice of motion does not contain a request for dismissal of the third-party complaint, and therefore the third-party plaintiff was not on proper notice that movants would raise the issue in this motion, and thus did not have the proper opportunity to defend it. See CPLR 2214(a). The notice does seek "other and further relief," but as the request for dismissal of the third-party action is extreme and also is sufficiently related to the explicit requests in the motion the Court concludes in its discretion that it is inappropriate to consider it at this time. Therefore, it is ORDERED that the motion is granted and all claims and cross-claims against JSK Mona Corporation, CH. Monaco Corporation, and Chin Hang Yun are severed and dismissed; and it is further ORDERED that, based on this order and on prior orders dismissing or discontinuing against other defendants, the caption is amended to read as follows: 3 [* 5] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 2 ================================="X JULIO MARTINEZ, Plaintiff, Index No. 402880/2010 -againstMOCAL ENTERPRISES INC., TULLY CONSTRUCTION CO INC., RUCKEL'S INC., TC CONTRACTING INC., and V ALANA CONSTRUCTION CORP., Defendants. ================================="x MOCAL ENTERPRISES, INC., Third-Party Plaintiff, -against- Third-Party Index No.: 509771/2011 JSK MONA CORP., Third-Party Defendant. ======="""========================"="X The Trial Support Clerk, Motion Support Clerk and County Clerk are directed to mark their records accordingly, and the parties shall use the amended caption in all future proceedings; and it is further . ORDERED that movant shall file a copy of this decision on the aforesaid clerks. Dated: ~~ · , 2013 Enter: Brr·· 4 FILED OCT 10 2013 COUNTY CLERK'S OFFICE NEW YORK

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