Roberts v Simon Prop. Group, Inc.

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Roberts v Simon Prop. Group, Inc. 2013 NY Slip Op 33158(U) December 6, 2013 Sup Ct, New York County Docket Number: 111805/2009 Judge: Debra A. James 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. [* 1] SCANNED ON 12/17/2013 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART 59 DEBRA A. JAMES PRESENT: Justice SEAN ROBERTS, Index No.: -vSIMON PROPERTY GROUP INC., J. CREW GROUP, INC. and SHAMROCK DEVELOPMENT, INC., and THE RETAIL PROPERTY TRUST, 111805/2009 Motion Date: Plaintiff, 05/17/2013 Motion Seq. No.: 003 Defendants. THE RETAIL PROPERTY TRUST, Third Party Plaintiff, TP Index No. 59108/2009 -vMADEWELL INC. and BLACK HAWK, INC., en z 0 w en (.) <( _w I- 0::: en C!> :;~ Third Party \ Defend~nts~ '\ \ SHAMROCK DEVELOPMENT, INC., \ Second Third Party Plaintiff, 03: 1-0 -v- c...J w...J o:::O 0::: LL ww LL J: Wl- 0::: 0::: >O ...J LL ...J :::> MADEWELL, INC. BLACK HAWK, INC. and INDIAN 2 TP Index No. 5901114/2009 HARBOR INSURANCE, I Second Third Party Defendants . LL 1(.) w c. en w The following papers, numbered 1 to 5 were read on this motion to reargue. 0::: ~ w Notice of Motion/Order to Show Cause -Affidavits -Exhibits No (s). 1, 2 ~ z 0 Answering Affidavits - Exhibits No(s). 3 Replying Affidavits - Exhibits No(s). en <( j::: 0 ::?: Cross-Motion: D Yes 4 f 5 181 No Upon the foregoing papers, it is ordered that this motion of plaintiff to reargue this Court's 2. CHECK AS APPROPRIATE: MOTION IS: 0 CASE DISPOSED 181 GRANTED 0 DENIED 0 3. CHECK IF APPROPRIATE: 0 SETTLE ORDER D DO NOT POST 1. CHECK ONE: ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ D 181 NON-FINAL DISPOSITION 0 OTHER GRANTED IN PART 0 SUBMIT ORDER FIDUCIARY APPOINTMENT D REFERENCE [* 2] order dated December 2, 2012 ("original order") is granted. Upon reargument, the Court vacates its original order, denies defendants' motion and cross motion for summary judgment dismissing the Labor Law § 241(6) claims, reinstates the complaint as to such claims, and denies the cross motion of defendant J. Crew Group Inc, first and second third party defendants Madewell Inc and Black Hawk, Inc and defendant/first third party plaintiff The Retail Property Trust for summary judgment on their cross claims-for common law and contractual indemnification against defendant Shamrock Development Inc and third party defendant Madewell, Inc are denied on the merits. As to plaintiff's cross motion for partial summary judgment of liability, there are issues of fact as to the circumstances of the offending wall demolition, and therefore the Court likewise otherwise adheres to its origina~ decision. Although plaintiff served its notice of motion two days late, i.e. on January 16, 2013, and its motion for reargument is therefore technically untimely under CPLR 2221(d), the court, in its discretion, reconsiders its prior ruling. Garcia v The Jesuits of Fordham, 6 AD3d 163, 165 (1st Dept 2004) . Upon reconsideration, the court finds that it overlooked precedent that establishes the principle that plaintiff's failure to identify the provision of the Industrial Code in the complaint or bill of particulars is not fatal to such claim (Ortega v 2 [* 3] Everest Realty LLC, 84 AD3d 542 [1st Dept 2013]), where the belated allegations that the defendants violated Code provisions involve no new factual allegations, raise no new theories of liability, and caused no prejudice to the defendants. See Klimowicz v Powell Cove Associates, LLC, 59727551 (2d Dept 2013). ~ AD2d ~' 2013 WL The sole reason for this Court's summary dismissal of plaintiff's § 241(6) Labor Law claim was because his attorney cited a provision of an Industrial Code section, specifically § 23-3.3 (b) (3), which, except for the caption of such section, is identical to the provisions of § 233 .4 (b), the section that is apparently applicable. It seems incongruous with the ruling in Ortega, supra that states that there is no requirement that plaintif£ even cite a specific Industrial Code section in its complaint or bills of particulars, that plaintiff should be non suited for citing the precise language of the applicable Industrial Code section, but the wrong section, so the court reinstates plaintiff 1 s Labor Law claims. § 241(6) However, for the reasons stated in its original decision, the court adheres the grant of defendants' motion for summary judgment dismissing the Labor Law§ 240(1) claims. It also does not disturb its denial of plaintiff's cross motion for partial summary judgment of liability pursuant to Labor Law § 241(6), since plaintiff has not established prima facie that defendants violated Industrial Code § 23-3.4. 3 Defendant Shamrock [* 4] Development, Inc. and third party defendant Madewell, Inc are also correct that co-defendants motion for summary judgment on their indemnification cross claims are premature as there has been no finding of negligence. Directors, 55 AD3d 446 Gomez v Sharon Baptist Board of (1st Dept 2008). It is, therefore, ORDERED that motion to reargue this Court's order dated December 2, 2012 of the plaintiff is granted and upon reargument the court vacates such decision; and it is further ORDERED that upon vacatur this Court denies dismissal of the Labor Law Labor Law§ 241(6) claim, reinstates the complaint to that extent and denies the cross motion for summary judgment dismissing the cross claims against the first and second third party defendants Shamrock Development, Inc and Blackwell, Inc interposed by defend~nt J. Crew, Group, Inc, first third party defendants Madewell, Inc and The Retail Property Trust; and it is further ORDERED that the court otherwise adheres to its original order dated December 2, 2012, and it is further ORDERED that the action is restored to the trial calendar i Dre-+ial and the parties shall appear in conference on March 4, 2014, 2:30 PM. DEC 11 2013 Dated: December 6, 2013 E~,~~iYORK I I I \ COUNTYC~~~.t>)'....J 4= DEBRA A. JAMES . J.s.c. -4-

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