Hoffman v Biltmore 47 Assoc., LLC

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Hoffman v Biltmore 47 Assoc., LLC 2013 NY Slip Op 33398(U) December 3, 2013 Supreme Court, New York County Docket Number: 108095/06 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 11212014 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: DEBRA A. JAMES PART 59 Justice Index No.: -vBILTMORE 47 ASSOCIATES, LLC, MANHATTAN THEATRE CLUB, INC., THE BILTMORE THEATER CORP., THE BILTMORE THEATRE GR., INC., SWEET CONSTRUCTION CORP., BILTMORE THEATER INDEPENDENT MANAGER CORP., BILTMORE THEATRE, LLC., THE JACK PARKER CORP., BILTMORE TOWER, LLC, PARKER SECOND, LLC, PARKER THEATRE ASSOCIATES, LLC., and SWEET CONSTRUCTION of LONG ISLAND, LLC., Defendants. BILTMORE 47 ASSOCIATES, LLC, MANHATTAN THEATRE CLUB, INC., SWEET CONSTRUCTION CORP., BILTMORE THEATER INDEPENDENT MANAGER CORP., BILTMORE THEATRE, LLC, THE JACK PARKER CORPORATION, BILTMORE TOWER, LLC, PARKER SECOND, LLC, PARKER THEATER ASSOCIATES, LLC and SWEET CONSTRUCTION OF LONG ISLAND, LLC, 108095/06 Motion Date: LEONARD HOFFMAN and ROSALIA HOFFMAN, Plaintiffs, 12/03/13 Motion Seq. No.: 19 f DEC 09 2013 COUNTY CLERK'S OFFICE NEW YORK TP Index No. : 591083/07 Third-party Plaintiffs, -vMASS ELECTRIC CONSTRUCTION CO., ST. PAUL FIRE AND MARINE INSURANCE CO., 1. CHECK ONE: . . . . .. . .. . . .. . . .. . .. 0 CASE DISPOSED 2. CHECK AS APPROPRIATE MOTION I : S 3. CHECK IF APPROPRIATE: GRANTED NON-FINAL DISPOSITION DENIED .. . . . . . .. 0 SETTLE ORDER 0 DO NOT POST 0 GRANTED IN PART 0 OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT 0 REFERENCE [* 2] BILTMORE 4 7 ASSOCIATES, LLC, MANHATTAN THEATRE CLUB , INC., SWEET CONSTRUCTION CORP., BILTMORE THEATER INDEPENDENT MANAGER CORP., BILTMORE THEATRE, LLC, THE JACK PARKER CORPORATION, BILTMORE TOWER, LLC, PARKER SECOND, LLC, PARKER THEATER ASSOCIATES, LLC and SWEET CONSTRUCTION OF LONG ISLAND, LLC, STP Index No.: 5 90494 /13 Second Third Party-Plaintiffs -vGENERAL CONCRETE CONSTRUCTION, INC., FEINSTEIN IRONWORKS, INC., CORD CONTRACTING, INC., REACT INDUSTRIES, INC., REACT TECHNICAL, INC., REACT AC, AMERICAN FINANCIAL GROUP, FIREMAN S FUND AND NATIONAL SURETY, INC., GREAT AMERICAN INSURANCE COMPANY, GREAT AMERICAN E&S INS. CO., AMERICAN INTERNATIONAL GROUP, AIG CASUALTY COMPANY, AMERICAN HOME ASSURANCE COMPANY, AMERICAN INTERNATIONAL INSURANCE COMPANY, AMERICAN INTERNATIONAL SPECIALTY, ACE USA, ACE GROUP OF COMPANIES, WESTCHESTER FIRE INSURANCE CO., DIAMOND STATE INSURANCE COMPANY, AXIS INSURANCE COflPANY, ALLIANZ INSURANCE GROUP, FIREMAN S FUND INSURANCE COMPANY, NATIONAL SURETY CORPORATION, NEW YORK MARINE & GENERAL INSURANCE COMPANY and UNITED NATIONAL INSURANCE COMPANY, FILED DEC 09 2013 COUNTY CLERKS OFFICE NEW YORK Second Third-party Defendants. BILTMORE 4 7 ASSOCIATES, LLC, MANHATTAN THEATRE CLUB, INC., SWEET CONSTRUCTION CORP., BILTMORE THEATER INDEPENDENT MANAGER CORP., BILTMORE THEATRE, LLC, THE JACK PARKER CORPORATION, BILTMORE TOWER, LLC, PARKER SECOND, LLC, PARKER THEATER ASSOCIATES, LLC and SWEET CONSTRUCTION OF LONG ISLAND, LLC, Third Third-party Plaintiffs, TTP Index No.: 590059/13 -v2 [* 3] -vOMC, Inc. Third Third Party Defendant. DEC 09 2013 CORD CONTRACTING CO., I N C . , Third Third-party Plaintiff, 590052/13 - v - OMC, Inc. Third Third Party Defendant. The following papers, numbered 1 to 8 were read on this motion and cross motion for summary judgment. Notice of Motion/Order to Show Cause -Affidavits -Exhibits Notice of Cross Motion/ Answering Affidavits - Exhibits Replying Affidavits - Exhibits Cross-Motion: Yes No(s). No(s). 8, 9 0 No Upon the foregoing papers, the motion of second third party defendants React Industries, Inc., React Technical, Inc. and React AC (React) for summary judgment dismissing the second third party complaint and cross claims against React and the cross motion of third third party defendant Feinstein Iron Works, Inc. (Feinstein) for summary judgment dismissing the second third party complaint and cross claims against Feinstein are granted. Third party plaintiff Biltmore 47 Associates, LLC has come forward with no evidence that tends to rebut the statement of React's president that defendant Sweet Construction Corporation contracted directly with third third party defendant OMC to install the ducts of the HVAC system and that React neither caused nor created any hole in the floor where plaintiff fell. The fact that React contracted to supervise the HVAC work does not tend to show that it created the hole at the site, and there is no evidence that refutes React's principal's testimony that React did not have control of the site on the day of the accident. Nor has Biltmore 47 Associates, Inc. forth any 3 [* 4] evidence contradicting React's evidence that it did not breach any common law or statutory duty of care owed to plaintiff. Nor is there evidence that contradicts the documentary proof in the form of the insurance policy issued by Great American Insurance Group, a copy of which is appended to React's reply papers, as in compliance with React's contract with Sweet Construction Corp. Third third party plaintiff Biltmore 47 Associates, LLC comes forward with no evidence that tends to refute third third party defendant Feinstein's evidence that its only task on the construction site was erecting steel structures, which did not involve opening up the ground or covering any holes in the ground where plaintiff fell. The court disagrees that the deposition testimony of either the project manager for second third party defendant Cord Contracting Co., Inc. or of Feinstein as to whether Cord Contracting Co. or Feinstein installed the metal deck tends to show that Feinstein either had notice of or created the allegedly unsafe condition that plaintiff contends caused his injuries, and notes that there is no evidence that the offending hole was created in the course of the installation of the deck. Raaone v SDrina Scaffoldinq. Inc., 46 AD3d 652, 655 (2d Dept 2007); Acevedo v York lntl Cow, 31 AD3d 255 (1" Dept 2006). There is no evidence that contradicts the testimony of Feinstein's project manager that Feinstein had completed its work and left the site months before plaintiffs accident. Plaintiff has filed its note of issue and certificate of readiness certifying that all outstanding discovery is complete. Third third third party defendant Biltmore 47 Associates, LLC has not shown any prejudice by the lack of discovery in the third and fourth third party actions (See General Elec Capital Bus Asset Fundinq CorD of Conn v Kazi FamilvQ LLC, 104 AD3d 436 [2013]), especially given the substantial discovery that has already been conducted in the first party action that is seven years old.' Biltmore 47 Associates, LLC and OMC demonstrate nothing more than a lAs of January 2013 when plaintiffs filed their note of issue, which was six years after issue was joined in the primary, first and second third party actions, and four years after joinder of issue in the third third party action, there was no outstanding discovery. 4 [* 5] mere hope that some further evidence probative on the issue of Feinstein and/or React s Dept negligence may be uncovered. Jones v Gameray, 153 AD2d 550 (Ist 1989). . This is the decision and order of the court. Dated: December 3, 2013 ENTER : d J.S. C. FILED DEC 09 2013 COUNTY CLERK S OFFICE NEW YORK The fact that fourth third party defendant OMC, Inc. filed a notice of appearance on April 24, 2013 did not render plaintiffs readiness certificate inaccurate retroactively. 5

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