Connolly v County of Nassau

[*1] Connolly v County of Nassau 2013 NY Slip Op 51643(U) Decided on October 3, 2013 Supreme Court, Nassau County Palmieri, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 3, 2013
Supreme Court, Nassau County

Eileen Connolly, as the Proposed Administratix of the Estate of PATRICK CONNOLLY, deceased and EILEEN CONNOLLY, individually, Plaintiffs,

against

County of Nassau, COUNTY OF NASSAU DEPARTMENT OF PUBLIC WORKS, NEW YORK ISLANDERS HOCKEY CLUB, L.P., SMG, SMG FACILITY MANAGEMENT CORPORATION, ALCATEL-LUCENT USA, INC., BANNER ELECTRIC INC., BRANCH SERVICES INC., CABLEVISION SYSTEMS CORP., ARAMARK CORPORATION, COSTROTTA CONSTRUCTION MANAGEMENT, INC., J.C. BRODERICK & ASSOCIATES, INC., OEI ELECTRIC, INC., a/k/a O'REILLY ELECTRIC INC., PAL ENVIRONMENTAL SERVICES, INC., SAVOR, VERIZON COMMUNICATIOINS, INC., HARRY M. STEVENS, LLC, HARRY M. STEVENS, INC., HALLAM ENGINEERING & CONSTRUCTION CORPORATION, AT & T INC., LIGHTHOUSE DEVELOPMENT GROUP, LLC, RENAISSANCE PROPERTY ASSOCIATES, LLC, and SMG FOOD AND BEVERAGE LLC, Defendants.



602354/12



Attorney for Plaintiff

Joseph G. Dell, Esq.

Joseph Cotilletta, Esq.

Dell & Dean, PLLC 1325 Franklin Avenue, Ste. 100

Garden City, NY 11530

Attorney for Defendants County of Nassau and County of Nassau Dept.

Of Public Works and Cablevision

Robert A. Spolzino, Esq.

John M. Flannery, Esq.

Allison Holubis, Esq.

Matthew L. Charles, Esq.

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP

1133 Westchester Avenue

White Plains, NY 10604

Attorney for Defendants New York Islanders Hockey Club, L.P., Lighthouse Development Group, LLC and Renaissance Property Assoc., LLC

John P. McEntee, Esq.

Jeremy Corapi, Esq.

Farrell Fritz, P.C.

1320 RXR Plaza

Uniondale, NY 11556

Attorney for Defendants SMG Facility Management Corporation, Savor, SMG,SMG Food and Beveral LLC,

Joseph Salvo, Esq.

Adam S. Furmansky, Esq.

Gordon & Rees, LLP

90 Broad Street, 23rd Fl.

New York, NY 10004

Attorneys for Defendant Alcatel-Lucent USA, Inc.

George R. Talarico, Esq.

Gerard Abate, Esq.

Edwards Wildman Palmer, LLP

One Giralda Farms

Madison, NJ 07940

Attorney for Defendant Branch Svcs.

Stuart Bernstein, Esq.

Callan, Koster, Brady & Brennan, LLP

One Whitehall Street, 10th Fl.

New York, NY 10004

Attorneys for Defendants Aramark Corporation, Harry M. Stevens, LLC and Harry M. Stevens, Inc.

Richard Fama, Esq.

Cozen O'Connor

45 Broadway

New York, NY 10006

Attorneys for Defendant J.C. Broderick & Associates, Inc.

Jason D. Warshaw, Esq.

Mound, Cotton, Wollan & Greengrass

324 Whitehall Street

New York, NY 10004

Attorneys for Defendant Verizon New York LLC i/s/h/a Verizon Communications,Inc.

Lauren Berk, Esq.

Lavin O'Neil Ricci Cedrone & Disipio

420 Lexington Avenue, Ste. 335

New York, NY 10170

Attorneys for Defendant Hallam Engineering & Construction Corporation

Alysa B. Koloms, Esq.

McGivney & Kluger, P.C.

80 Broad Street, 23rd Fl

New York, NY 10004

Attorneys for Defendant O'Reilly Electric, Inc.

Richard L. Furman, Esq.

Carroll McNulty & Kull, LLC

570 Lexington Avenue, 8th Fl

New York, NY 10022

Attorney for Defendant AT & T, Inc.

Joseph Asaro, Esq.

Riker, Danzig, Scherer, Hyland, Perretti, LLP

One Speedwell Avenue

Morristown, NJ 07962

Daniel R. Palmieri, J.

These motions and cross-motions by the County of Nassau, County of Nassau Department of Public Works (jointly, "County") ( Seq. 001); Cablevision Systems Corp. ("Cablevision") (Seq. 002); ARAMARK Corporation, Harry M. Stevens, LLC and Harry M. Stevens, Inc. (Seq. 003); Verizon Communications, Inc. ("Verizon") (Seq. 004); SMG, SMG, SMG Facility Management Corporation, SMG Food and Beverage, LLC, and SAVOR (jointly, "SMG") (Seq. 005); Alcatel Lucent USA, Inc. ("Lucent") (Seq. 006); AT & T, Inc. (Seq. 007); and New York Islanders Hockey Club, L.P., Lighthouse Development Group, LLC, and Renaissance Property Associates, LLC (jointly, "Islander defendants") (Seq. 008) for an order pursuant to CPLR 3211(a) (1), (3), (5), (7) and/or (8), dismissing the amended complaint on the grounds that the plaintiff lacks standing, she has not satisfied General Municipal Law §50-e and 50-i, that the claims are time-barred and that the complaint fails to state a claim upon which relief can be granted and/or are subject to dismissal based upon documentary evidence and/or the Court lacks personal jurisdiction over the affected party are determined as follows: [*2]

The amended complaint is dismissed as against all defendants pursuant to CPLR 3211(a)(3) [lack of standing] and CPLR 3211(a)(5) [expiration of the statute of limitations], and is also dismissed as to all SMG defendants, Lighthouse Development Group, LLC, and Renaissance Property Associates, LLC pursuant to CPLR 3211(a)(7) [failure to state a cause of action], and as to AT & T pursuant to CPLR 3211(a)(8) [want of personal jurisdiction].

The plaintiff in this action sues to recover damages for, inter alia, pain and suffering by, and the wrongful death of, her husband, Patrick Connolly. In her notice of claim, served on the County, she alleged that his exposure to asbestos while working at the Nassau Veterans Memorial Coliseum ("Coliseum") for over 25 years caused him to develop lung cancer and asbestosis. He retired in 1999 and died from asbestosis on November 22, 2010.

The moving defendants seek dismissal of this action on the grounds that the plaintiff lacks standing, that the action is untimely, for failure to state a claim, and, in one case, want of personal jurisdiction. Causes of action sounding in violation of Labor Law §240 (scaffold law), fraudulent concealment, intentional infliction of emotional distress, battery, negligent infliction of emotional distress, failure to provide medical monitoring and loss of consortium have been withdrawn. They are the Second, Fourth, Fifth, Sixth, Eighth, and Ninth, and will not be addressed. Claims sounding in unsafe workplace, premises liability, negligence/failure to warn, and wrongful death remain. They are contained in the First, Third, Seventh and Tenth causes of action.

Again according to her notice of claim, plaintiff alleges that Connolly was employed by SMG as a heating, ventilation and air conditioning (HVAC) engineer at the Coliseum from 1972 until 1999. Commencing in 1979 SMG managed the Coliseum pursuant to an agreement with the County, the property owner. Connolly was diagnosed with asbestosis in 1998. He retired shortly thereafter, and applied for and received workers' compensation benefits. As noted, he died in 2010.

The plaintiff served and filed her notice of claim against the County as "spouse and proposed administratrix" of her deceased husband on May 2, 2012. She alleged that her husband's exposure to asbestos during his employment at the Coliseum caused him to suffer from asbestosis and lung cancer. The plaintiff, again as spouse and proposed administratrix of her deceased husband, commenced this action on November 21, 2012. An amended complaint was filed on February 13, 2013. The plaintiff was issued a limited letter of administration over her husband's estate on March 19, 2013, which was specifically limited to a cause of action sounding in "wrongful death".

The Court now addresses the bases for dismissal asserted by various defendants. At the outset, it declines plaintiff's request that should it find that she lacks capacity to sue that the Court not consider the other bases for dismissal presented. The reasons are twofold. First, she has asked that the Court dismiss the amended complaint without prejudice if dismissal eventuates on that ground. If the other grounds are not considered, defendants would be deprived of a trial court ruling on those grounds, and force them to re-litigate them should an appeal be taken from this Decision and Order and a reversal result based solely on the standing issue. Second, the Court was advised during a conference conducted in open court that approximately 200 related asbestos cases ultimately may be commenced. Under these circumstances, it does not serve the interests of judicial economy — an interest shared by both the litigants and the Court — to eschew [*3]determinations that might shape the issues in this and the coming tide of cases.

Failure to State a Cause of Action/Documentary Evidence

As indicated above, upon withdrawal of certain claims the plaintiff alleges four causes of action, sounding in unsafe workplace (First, against all defendants), premises liability (Third, against all defendants except Alcatel-Lucent, Banner Electric Inc., Branch Services, Inc., Cablevision Systems Corp., Costrotta Construction Management, Inc., JJ Broderick & Associates, Inc., OEI Electric, Inc., and PAL Environmental Services, Inc.), negligence/failure to warn (Seventh, against all defendants), and wrongful death (Tenth, against all defendants). All moving defendants advance failure to state a cause of action as a basis for dismissal, and some assert documentary evidence as well. The Court turns first to these grounds.

The general law regarding dismissal of pleadings for failure to state a cause of action pursuant to CPLR 3211(a)(7) is well established. "On a motion to dismiss [a] complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff [or petitioner] the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory (citations omitted)." Breytman v. Olinville Realty, LLC, 54 AD3d 703, 704 (2d Dept. 2008); see also Guggenheimer v Ginzburg, 43 NY2d 268, 275 (1977); Konidaris v Aeneas Capital Mgt., LP, 8 AD3d 244 (2d Dept. 2004). That does not extend to mere legal conclusions, however, which are not entitled to the presumption of truth and are not to be accorded such favorable inferences. Morris v Morris, 306 AD2d 449, 451 (2d Dept. 2003).

Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211 (a)(7), and the motion is not converted into one for summary judgment, "the question becomes whether the plaintiff ... has a cause of action, not whether the plaintiff ... has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate (citations omitted)." White Plains Plaza Realty, LLC v. Cappelli Enterprises, Inc., 108 AD3d 634 (2d Dept. 2013).

The law is also clear with respect to dismissal based on documentary evidence. "A motion pursuant to CPLR 3211 (a)(1) to dismiss a complaint ... on the ground that a defense is founded on documentary evidence may be appropriately granted where the documentary evidence utterly refutes the plaintiff's or petitioner's allegations, conclusively establishing a defense as a matter of law (citations omitted)." White Plains Plaza Realty, LLC v. Cappelli Enterprises, Inc., supra. "In order for evidence to qualify as documentary, it must be unambiguous, authentic and undeniable (citations omitted)." Granada Condominium III Assn. v. Palomino, 78 AD3d 996, 997 (2d Dept. 2010).However, in order to make such a showing "neither affidavits, deposition testimony, nor letters are considered documentary evidence' within the intendment of CPLR 3211(a)(1) (citations omitted)." Granada Condominium III Assn. v. Palomino, supra at p. 996-997.

Motion by the County (001)

As a general rule under the common law, liability for a dangerous condition on property is predicated on ownership, occupancy, control or special use. DeCourcey v. Briarcliff Cong. Church, 104 AD3d 799 (2d Dept. 2013). Property owners can be liable to any person injured on [*4]the premises under the common law if a dangerous condition existed, and the owner had either actual or constructive notice of the danger. If the injured plaintiff was a worker, this remains true irrespective of whether the owner supervised plaintiff's work. Payne v 100 Motor Parkway Assoc., LLC., 45 AD3d 550, 553 (2d Dept. 2007).

As an individual employed at the County's premises, Connolly also was of the class of persons protected by Labor Law § 200, which provides that all such employees be provided with a safe place to work, which, insofar as this affects property owners, is simply a codification of the common law. Reyes v Arco Wentworth Mgt. Corp., 83 AD3d 47, 50-51 (2d Dept. 2011). Thus, for liability to be imposed on the property owner for a workplace injury under either the common law or Labor Law § 200, there must be evidence that the owner either created a dangerous or defective condition, or had actual or constructive notice of it without remedying it within a reasonable time. Id.

The County argues that the allegations regarding its responsibility for Connolly's injuries are insufficient because 1) they are directed to all the defendants and do not state facts directed to it alone, 2) it is an out-of-possession landlord not responsible for the upkeep of the building, 3) that certain admissions made during plaintiff's General Municipal Law § 50-h hearing demonstrate that elements of the unsafe workplace and negligence claims have no factual basis, and 4) that certain statutes and regulations cited do not support separate causes of action.

The amended complaint alleges, inter alia, that the County knew or should have known about the presence of asbestos and its danger, that the plaintiff's decedent was exposed to the danger, and suffered and died as a result. Plaintiff also alleges that the County violated Labor Law §§ 200, 241(6), 902(1) and 902(4), as well as the New York Industrial Code, 12 NYCRR §§ 12, 23 and 56, and various sections of the Code of Federal Regulations containing rules and regulations promulgated under the Occupational Safety and Health Act ("OSHA") regarding, among other things, the handling of airborne contaminants such as asbestos.

Initially, the Court agrees with the County that the amended complaint fails to state a claim to the extent it is premised on Labor Law § 902, the Industrial Code sections cited and the OSHA regulations. Further, even assuming that a private right of action exists thereunder, by its terms § 902 applies to licensing and certification of contractors engaged in asbestos projects, not to individuals who are simply working in the presence of asbestos.

While their violation ultimately may be of use to plaintiff in proving that the defendants were negligent or violated the Labor Law, the Court has found no indication that a private right of action exists under the Industrial Code sections she cites separate and apart from the statute and common law. Violations of such sections are viewed as evidence of negligence, but are not stated to be a basis for a separate cause of action. See generally Bauer v Female Academy of Sacred Heart, 97 NY2d 445, 453 (2002); Cruz v Long Is. R.R. Co., 22 AD3d 451 (2d Dept. 2005). Nor do OSHA regulations provide workers with a private right of action. Donovan v Occupational Safety and Health Review Comn, 713 F2d 918 (2d Cir. 1983). Accordingly, the Court finds that a cause of action cannot be based directly on these State and Federal regulations. This appears to have been conceded by the plaintiff in her memorandum of law.

However, the Court finds that the amended complaint adequately states a claim against the County pursuant to the common law and Labor Law § 200, sufficient to sustain the four claims described above. The allegations, while pled against other defendants as well, assert that [*5]Connolly was exposed to asbestos while working in the Coliseum, names the County and refers to, among other things, asbestos being maintained, installed, used, purchased, or disturbed by the County, and/or permitted to exist by using or permitting to be used asbestos-containing products, with no warning to plaintiff's decedent and no correction/abatement of the dangerous condition. As the owner of the premises, the County has not conclusively demonstrated that it had no control over all areas where persons in the position of plaintiff's decedent might have worked and, according to the plaintiff, where he was exposed to the asbestos, that the County had nothing to do with creating/installing the material, and/or was unaware of it at the time Connolly was working in the building, and thus did not know about the condition that had to be remedied for the protection of workers in his position.

Indeed, and as indicated below, in its agreement with defendant SMG, the County was responsible for maintenance of structures and systems within the building jointly with SMG during the course of Connolly's employment.

Further, and unlike the circumstances surrounding Connolly's discovery of his illness, discussed below, the absence of specifics as to the placement of the asbestos, the County's knowledge thereof, and the acts or omissions of the County with regard to this material that may have occurred, should not lead to dismissal. These are not particularized claims plaintiff can be expected to articulate without discovery. The Court finds reason to deny the motion as to plaintiff's remaining causes of action on that basis as well. CPLR 3211(d); see Halmar Corp. v Hudson Founds., Inc., 212 AD2d 505 (2d Dept. 1995).

Similarly, discovery should be permitted in lieu of dismissal of the Labor Law § 241(6) claim. The facts alleged in the amended complaint do not specifically claim that Connolly performed construction, demolition, or excavation work, and in plaintiff's sworn General Municipal Law § 50-h testimony she appears to describe her husband's job as one of maintaining facilities only, specifically air conditioning and ice making. If this is accurate and no tasks were involved that would amount to "construction, excavation or demolition" the § 241(6) claim is not viable. See Esposito v New York City Indus. Dev. Agency, 1 NY3d 526 (2003).

Nevertheless, at this early stage the Court would be unwilling to accept her testimony as dispositive without discovery. CPLR 3211(d), She was not asked and did not testify that she knew precisely what type of work her husband performed during all of his many years at the Coliseum. Further, any such statements, even if made, would be suspect as proof, as she clearly is not an expert in what ever work Connolly performed and thus could not classify the same such that a final determination could be made under the Labor Law statute. Thus, disclosure might reveal that he engaged in work that would permit the assertion of a Labor Law § 241(6) claim, including the violation of an applicable regulation. See Nostrom v A.W. Chesterson Co., 15 NY3d 502, 507-508 (2010).

Accordingly, that branch of the County's motion that seeks dismissal of the amended complaint based upon the plaintiff's failure to state a cause of action is granted to the limited extent noted, and is otherwise denied. See Capasso v Kleen All of Am., Inc., 43 AD3d 1346, 1347-1348 (4th Dept. 2007).

Cross Motion by Cablevision (002)

With the exception of the claim sounding in premises liability (Third), Cablevision is named as a defendant in the same claims as the County. In its cross motion it adopts the [*6]procedural history, exhibits and arguments submitted by the County. In view of this reliance, the Court grants that branch of the cross motion that is premised on a failure to state a cause of action to the extent indicated in the discussion of the County's motion, and is otherwise denied for the reasons stated above.

However, the right to use a portion of a premises alone does not give rise to a duty of care. See, e.g., Millman v. Citibank, 216 AD2d 278 (2d Dept. 1995); DeCourcey v. Briarcliff Cong. Church, supra. The Court therefore warns the plaintiff of the possibility of sanctions should this case continue and she attempts to pursue this defendant (and certain other defendants, discussed below) if it becomes clear that Cablevision did not occupy, control or have some special use of the premises where Connolly worked, and thus had no duty to warn him even if it became aware of the presence of asbestos. Millman, supra.

Cross Motion by ARAMARK, Harry M. Stevens, LLC and Harry M. Stevens,Inc. (003)

It is undisputed that these defendants are separate entities but are effectively the same concessionaire, providing food and beverage services to patrons of the Coliseum. [FN1] They are named as defendants in all four remaining causes of action. In their joint cross motion to dismiss, and as articulated in their memorandum of law, they contend that no cause of action is stated against them under the Labor Law, or OSHA regulations. They have presented no arguments pursuant to CPLR 3211(a)(7) or (1), nor any supporting evidence, regarding those causes of action that are based on the common law of negligence. Rather, they rely solely upon the inadequate allegations of the amended complaint. Thus, at this early stage of the litigation, and no discovery having been held, that branch of ARAMARK's application that is based upon a failure to state a cause of action is granted in part and denied in part to the extent stated above. CPLR 3211(d).

The Court issues the same warning to plaintiff regarding the possibility of sanctions as it did in the case of Cablevision. DeCourcey, supra; Millman, supra.

Cross Motion by Verizon (004)

Verizon has adopted the ARAMARK defendants' history, exhibits and arguments as their own. Accordingly, in view of this reliance, the Court grants in part and denies in part that branch of the cross motion to dismiss that is predicated on CPLR 3211(a)(7), with the same admonition to plaintiff.

Motion by SMG (005)

In support of that branch of the motion that is for dismissal pursuant to CPLR 3211(a)(7), SMG submits, inter alia, affidavits by John Burns. In two he identifies himself as Executive Vice President and Chief Financial Officer of defendant SMG; he held the latter position since 1998 and the former since 2006. He has been employed by this company since 1989. In another, he states he is Secretary and Treasurer of defendant SMG Facility Management Corporation. He [*7]states in yet another that he is Vice President, Secretary and Treasurer of defendant SMG Food and Beverage, LLC.

In his affidavit on behalf of SMG dated June 4, 2013, he identifies Connolly as an employee of SMG and/or its predecessors from 1979 until on or about 1998. In the affidavit on behalf of SMG dated July 25, 2013 Burns states that Connolly was employed by SMG from 1991 to 1998. [FN2] In the July 25 statement Burns avers that SMG became the lessee and operator of the Nassau Coliseum by "assignment agreement" dated January 24, 1991.

Burns states on behalf of SMG Facility Management Corporation that it never had any relationship with Nassau Coliseum and performed no work at Nassau Coliseum at any time, as it is no more than a holding company for another entity named SMG of Alaska, Inc., which is engaged in managing properties in Alaska. On behalf of SMG Food and Beverage, LLC, he states Savor is a trade name for this company and that it began performing food and beverage services at the Coliseum in 2008, long after Mr. Connolly stopped working there.

All of plaintiff's claims against the SMG defendants must be dismissed for failure to state a claim under New York law pursuant to the Workers' Compensation Law. Plaintiff admitted during her 50-h hearing that Connolly had applied for and received, and she herself began to collect after he died, Workers' Compensation Benefits as a result of his employment with SMG. Workers' Compensation Law § 11; see, e.g., Coonjbeharry v Altone Elec., LLC, 94 AD3d 1306 (3d Dept. 2012); Hernandez v Yonkers Contr. Co., 292 AD2d 422 (2d Dept. 2002).

The Court rejects, as unsupported speculation, plaintiff's contention (expressed in her memorandum of law) that Connolly was employed by a different entity, and that this branch of the cross motion should be denied on that basis. Burns's June 4 affidavit refers to employment of Connolly by SMG "or its predecessors" from the beginning of his employment at the Coliseum in 1979, which means that even if some other related entity was Connolly's employer, plaintiff still would be barred from suing any of the SMG defendants as successors to such entity. Phillips v Bovis Lend Lease, 103 AD3d 698 (2d Dept. 2013). [FN3]

To the extent that plaintiff asserts claims against SMG Facility Management Corporation and SMG Food and Beverage, LLC, separate and apart from SMG, they must be dismissed as well. Even assuming that these entities were not his employer, Burns's affidavits indicate that they either had no role to play in the Coliseum at all (the former) or commenced operation after Connolly retired (the latter). Although this is asserted by way of affidavits and not documentary proof, these sworn statements, combined with the plaintiff's description of SMG as her husband's [*8]employer in her notice of claim, and no other entity, are sufficient to find that neither is potentially liable under any theory advanced in the amended complaint.

Accordingly, that branch of the motion by the SMG defendants that is to dismiss pursuant to CPLR 3211(a)(7) is granted.

Cross Motion by Lucent (006)

Of the causes of action remaining after plaintiff's withdrawal of claims, Lucent is named in the First, Seventh and Tenth. It has adopted the arguments of the ARAMARK defendants, and thus to the extent its cross motion is based upon a failure to state a cause of action it is denied for the reasons stated in that portion of this Decision and Order that concerns the CPLR 3211(a)(7) branch of ARAMARK's cross motion.

The Court again warns plaintiff that if it becomes clear that this defendant cannot be liable under applicable law and the facts, continuing the action against it may lead to sanctions.

Motion by the Islander Defendants (008)

The Islander defendants' notice of motion states that they move for dismissal pursuant to CPLR 3211(a)(1) and (7) only. However, in their memorandum of law they also argue for dismissal based on plaintiff's lack of capacity to sue and the statute of limitations, which the Court will consider in its discretion as other movants have asserted these grounds, and the plaintiff thus has been put on notice and has responded thereto. Cf., Fried v Jacob Holding, Inc., _AD3d_, 970 NYS2d 260 (2d Dept. 2013 [court may consider in its discretion request for relief in absence of formal notice of cross motion].

The Islander defendants submit an affidavit by Michael J. Picker, as Senior Vice President of defendant New Islanders Hockey Club, L.P., President of defendant Renaissance Property Associates, LLC ("Renaissance") and President of defendant Lighthouse Development Group, LLC ("Lighthouse").

As to the latter two entities, he states that Lighthouse was formed in connection with an unsuccessful bid to redevelop the site of the Coliseum, that Renaissance manages real property owned by the Islanders, and that neither ever owned, leased, possessed, controlled, occupied, conducted business or operated the Coliseum. Therefore, neither was in any way "present" at the facility. Although the foregoing cannot be considered in support of a CPLR 3211(a)(1) motion, as it is not proven by a document but rather affidavit (Granada Condominium III Assn. v. Palomino, 78 AD3d 996, supra), the Court will not close its eyes to the affidavit proof that these entities, unlike the others discussed above, and the Islanders hockey team itself, had no presence in the Coliseum at all. The plaintiff has offered no argument in opposition to dismissal as against these two entities, and thus the action against them should be dismissed pursuant to CPLR 3211(a)(7).

With regard to the Islanders Hockey Club, L.P., Picker states that by way of a 1972 agreement with the County as lessor its predecessor in interest leased portions of the Coliseum from the County to play Islanders "home" hockey games. In April of 1979 the agreement was amended and restated to extend the term for 30 years. Neither the 1972 lease nor the April 1979 extension is presented on this motion. The 1985 Tri-Party agreement, described below, refers in pages 3 and 4 to the original lease and amendments thereto in 1981, 1983, 1984 and 1985. These amendments also are missing and are not further described.

In October of 1979, the County entered into a lease agreement with SMG's predecessor in [*9]interest, Hyatt Management Corporation of New York, Inc., f/k/a Facility Management of New York Inc. for a ten year period, whereby SMG agreed to operate and manage the Coliseum.In November of 1979 the County assigned its rights in the Islanders lease agreement to SMG.

The Islanders advance portions of the October, 1979 County/SMG lease, which contains several provisions placing responsibility for repairs to the Coliseum, whether structural or non-structural, as well as to all systems used to operate the facility, on SMG or the County, depending upon the cost. The Islanders hockey club is not mentioned in that regard.

In September 1985, during the term of the County/SMG agreement, a tri-party agreement to amend, extend and restate the County and Islander agreements was entered into by the County, SMG and the Islanders. The County/Islander agreement was assigned to SMG and then terminated.

The tri-party agreement granted to the Islanders the non-exclusive right to use specified areas of the Coliseum, defined collectively as the Demised Premises, for its home games for a period of thirty years. It reserved to the County the right "to use and occupy the space located in the Demised Premises occupied by the county's ventilation, heating, air conditioning, electrical and other systems leading to and serving other parts of the Coliseum, and the right to install, maintain, use, repair, and replace pipes, ducts, conduits, and wires used in connection with said system." One of the specified areas constituting the Demised Premises is the "Sports Arena," which is defined to exclude the Coliseum's HVAC systems: the main area of the Coliseum in which the ice rink is located ... including all of the new seat locations and Gallery Suites constructed since 1981 but excluding the scoreboard and all heating, air-conditioning, electrical, mechanical, plumbing, and all other systems servicing any part of the Coliseum, irrespective of the location of any said systems or any portion thereof.

Article XIV of the tri-party agreement, entitled "County's Maintenance and Operations Obligations," imposes on the County and SMG the obligation to operate and maintain the Coliseum's heating, air conditioning, electrical, plumbing, and lighting systems. It states that the "County or its Assignee [SMG] shall operate and maintain in good condition, ..., at its sole cost and expense, ... the systems furnishing the Services." "Services" is defined to include "the services specified in Section 13.2 to be furnished by the County or its Assignee including heating, air conditioning, and plumbing." Section 13.2 states that the County or SMG shall provide heating, air conditioning, plumbing, lighting, electrical power and water for the Islander's use.

In sum, under these provisions the County and SMG retained the obligation to operate and maintain the Coliseum in good condition including all heating, air conditioning, electrical, mechanical, plumbing and other systems servicing any part of the Coliseum, to the exclusion of the Islanders.

In view of the foregoing agreements and the cited provisions, the Islanders contend that it has established that it had no more than a right to use designated portions of the Coliseum, and had no responsibility for and had nothing to do with maintenance of the facility where Connolly worked. They thus ask for dismissal based on documentary proof that they had no duty flowing [*10]to this worker. DeCourcey v. Briarcliff Cong. Church, supra, Millman v. Citibank, supra.

However, plaintiff alleges, and there is no proof otherwise, that Connolly worked in the Coliseum beginning in 1972. The documentary evidence presented by the Islanders is strong for the years 1979 and thereafter, but there is no such proof for the seven preceding years. The Court thus cannot know what responsibility the Islanders had for maintenance of the areas where it operated for those years, and the plaintiff has not limited her allegations of asbestos exposure to the period from 1979 and forward. Accordingly, that branch of the Islander defendants motion that is made pursuant to CPLR 3211(a)(1) and (a)(7) is granted to the extent that the amended complaint is dismissed as to Renaissance and Lighthouse, but is denied as to New York Islanders Hockey Club, L.P.

Jurisdiction - Motion by Defendant AT & T, Inc. (Seq. 007)

That branch of the AT & T's motion that is made, in effect, pursuant to CPLR 3211(a)(8) is granted, as it has established that it is entitled to dismissal on jurisdictional grounds. According to the unrebutted affidavit of Timothy Dominak, AT & T is a Delaware corporation and holding company with its principal and only place of business in Dallas, Texas. It does no business with the public; it does not sell any products or services to the public; and it does not own or maintain a telecommunications network.Its subsidiaries all maintain their own independent identity.

Further, AT & T has not transacted any business in this State, has not committed a tortious act within the state or committed a tortious act without the state causing injury here. Its logo is used only as a "doing business as" by its subsidiaries pursuant to an agreement with another subsidiary, AT & T Intellectual Property, Inc. Thus, both general and long arm jurisdiction are lacking. See CPLR 301, 302 (a), Laufer v. Ostrow, 55 NY2d 305, 310 (1982); McGowan v. Smith, 52 NY2d 268, 272 (1981). It also appears that AT & T has not had sufficient minimum contacts with New York to satisfy the due process requirements of the 14th Amendment. World-Wide Volkswagon Corp. v. Woodson, 444 U.S. 286, 297-299 (1980). AT & T is therefore entitled to dismissal pursuant to CPLR 3211 (a)(8).

To the extent that the plaintiff argues that discovery may yield a basis for finding jurisdiction, she bears the ultimate burden or proof on the issue, and there are no facts asserted in response to AT & T's showing indicating that permitting such discovery on the issue might lead to a different result. Cf., Expert Sewer & Drain, LLC v New England Mun. Equip. Co., 106 AD3d 775 (2d Dept. 2013) [conflicting affidavits should lead to discovery on the jurisdictional issue]. The Court therefore rules now and grants so much of the motion that is based thereon.

The Court notes that AT & T has adopted the arguments of its co-defendant County regarding the statute of limitations, standing and failure to state a cause of action. Those branches are resolved as to this defendant as set forth elsewhere in this Decision and Order to the extent they apply to the non-municipal parties named in the four remaining causes of action.

Standing, Statute of Limitations: All Movants

As a mere"proposed administratrix", the plaintiff clearly lacked standing to bring this action when it was commenced. The amended complaint is subject to dismissal in its entirety on that ground. Egan v. Neghavi, 84 AD3d 1014 (2d Dept. 2011); McGuire v. Southside Hospital, 301 AD2d 505 (2d Dept. 2003); Patel v. Desai, 289 AD2d 133 (1st Dept. 2001); Jakubowski v. Huntington Hosp., 2012 WL 1932074 (Sup. Ct. New York County 2012); Butler v. Kings County [*11]Hosp. Ctr., 30 Misc 3d 1229(A) (Sup.Ct. Kings County 2011); Caracciolo v. Solar, 16 Misc 3d 1127(A) (Sup. Ct. Kings County 2007). However, such a dismissal should be without prejudice pursuant to CPLR 205(a) (Egan, supra; McGuire, supra; Patel, supra), as the plaintiff here requests — unless all claims would have been time barred at the time the initial action was commenced, because the statute provides that a plaintiff is to receive the benefit only where "the new action would have been timely commenced at the time of commencement of the prior action."See also Butler, supra. Defendants claim that the statute of limitations had run, and the Court agrees.

A defendant seeking dismissal of a complaint as barred by the statute of limitations bears the initial burden of proof. Singh v. New York City Health & Hosps. Corp., 107 AD3d 780 (2d Dept. 2013). To meet that burden, the defendant must demonstrate that the time in which the claims advanced by the plaintiff must be brought has expired, but need not demonstrate that exceptions such as tolls or extensions do not apply. The burden of establishing the applicability of a toll or other extension lies with the plaintiff. Id.; see also McLaughlin, Practice Commentaries, CPLR 202 (McKinney's Cons Laws of NY, Book 7B, C 202:4, at p. 110, citing Doyon v. Bascom, 38 AD2d 645 (3d Dept. 1971).

The limitations period for asserting a claim of wrongful death is two years following the death. EPTL §5-4.1. The period applies to a claim against the County as well. General Municpal Law §50-i (1). The limitations period for a personal injury caused by a defendant's negligence is three years from the accrual of the cause. CPLR 214(4). For claims against the County for such negligence claims the period is one year and 90 days. General Municipal Law §50-i.(1).

Connolly was diagnosed with asbestosis and lung cancer in 1998. As noted, he died on November 22, 2010 and this action was commenced on November 21, 2012. The key question thus becomes the date the causes of action for personal injury accrued, as this date will apply to all defendants, including the County, and will determine timeliness under the foregoing statutes.

CPLR 214-c(2) and, with respect to governmental defendants CPLR 214-c(3), require a party to commence an action to recover for personal injuries caused by the latent effects of his or her exposure to a substance or combination of substances, in any form, within three years (or, for the County, a year and ninety days) of the date when she/he discovered his or her injury, or through the exercise of reasonable diligence should have done so upon manifestations or symptoms of the latent disease. Matter of New York County DES Litig., 89 NY2d 506, 513-514 (1997).

As indicated above, Connolly was diagnosed with the ailments sued upon, and therefore became of aware of the injury, in 1998. Thus, prima facie, his representative would be barred from asserting a personal injury claim on behalf of the estate pursuant to CPLR 214-c(2) beyond, at best, December of 2001, or, as to the County, the one year and ninety days established by CPLR 214-c(3), March of 2000.

A plaintiff can take advantage of up to a maximum of six years to act pursuant to CPLR 214-c(4) even if these CPLR 214-c(2) and (3) periods would otherwise have expired, if discovery of the cause of the injury occurred within five years after discovery of the injury itself (or where the injury could have been found with due diligence), provided the plaintiff commenced suit or made the claim within a year following discovery of the cause, and can make [*12]the showings described in the statute. CPLR 214-c(4); see Giordano v Market Am., Inc., 15 NY3d 590 (2010). In Connolly's case, however, even this potential extended period had expired, at best, in 2004 because his injuries — both his asbestosis and lung cancer — were discovered in 1998. Cf., Shapiro v. Ansell Perry, Inc., 291 AD2d 301 (1st Dept. 2002).

The Court rejects plaintiff's request to deny the motion on the ground that disclosure should be permitted on the issue of discovery of the injury and its cause, as she admitted in her hearing conducted pursuant to General Municipal Law § 50-h that her husband was diagnosed that year with the diseases that caused his illness and death. This testimony can be considered on a motion to dismiss a complaint (see Kraut v City of New York, 85 AD3d 979 [2d Dept. 2011]) or to attack a notice of claim as insufficient (Parker- Cherry v New York City Hous. Auth., 62 AD3d 845 [2d Dept. 2009]), and in this case constitutes a judicial admission which, while not conclusive, is evidence of Connolly's knowledge of his injury. See Matter of Union Indem. Ins. Co. of NY, 89 NY2d 94, 103 (1996); Ocampo v Pagan, 68 AD3d 1077, 1078 (2d Dept.2009). This evidence is conclusive here, however, because there simply is no factual issue about when the diagnosis was made and thus when the plaintiff and her husband attained knowledge of the injury, and that is sufficient to find that the CPLR 214-c periods began to run in 1998.

It is undisputed that Connolly died from asbestosis, and asbestosis was what was diagnosed that year. Under these circumstances the Court finds unpersuasive the plaintiff's argument that this diagnosis is irrelevant. The case cited in support of this proposition, Scheidel v A.C. and S., Inc., 258 AD2d 751 (3d Dept. 1999), indicates that a plaintiff can be held to have discovered or should have discovered the condition on which the claim is based before an accurate diagnosis is made if symptoms were clear enough to alert the plaintiff to that condition earlier. Id., at 753. However, in the present case there is no need to investigate when those symptoms first manifested an asbestos-related illness because the diagnosis made in 1998 stands as the latest date that plaintiff can be charged with knowledge.

Further, unlike the circumstances surrounding his work and the conditions in which he performed that work, it cannot be said that this information is in the hands of the defendants, either wholly or partially. Rather, it lies with the plaintiff herself, and she has acknowledged the salient date. See CPLR 3211(d). There is therefore no basis for withholding determination on this issue at the present time.

The foregoing also means that no cause of action for wrongful death may be asserted. There can be no cause of action to recover damages for wrongful death pursuant to statute unless decedent, at the time of his death, was possessed of a valid claim for personal injuries — that is, he would have been able to maintain the action had he survived. As the statute of limitations had expired during his lifetime, the wrongful death claim is barred. EPTL § 5-4.1(1); Prink v Rockefeller Ctr., 48 NY2d 309, 315 (1979); Bevinetto v Steven Plotnick, M.D., P.C., 51 AD3d 612, 615 (2d Dept. 2008).

The Court must therefore conclude that all of the claims asserted, whether against the County or the private defendants, are untimely. The plaintiff thus cannot be given permission to recommence her action pursuant to CPLR 205 (a).

Accordingly, those branches of defendants' motions and cross motions that are based upon plaintiff's lack of capacity to sue and expiration of the statute of limitations are granted, with prejudice. [*13]

In addition, as a prerequisite to suing a municipality, General Municipal Law §50-e(1)(a) requires that a notice of claim be filed within 90 days of the claim's accrual. For wrongful death actions, the ninety days runs from the appointment of the representative of the decedent's estate. General Municipal Law §50-e(1)(a). Compliance with that statute is a condition precedent to bringing suit against a municipality. Khela v. City of New York, 91 AD3d 912 (2d Dept. 2012). Again, Connolly was diagnosed with asbestosis and lung cancer in 1998, and the additional periods granted by CPLR 214-c also had expired.

Further, the plaintiff's notice of claim was filed by her "as spouse and proposed administratrix" on May 2, 2012, but letters of administration were not issued to her until March 19, 2013. Therefore, when the notice of claim was filed, the plaintiff lacked standing to make a claim on behalf of Mr. Connolly's estate. Billman v. City of Port Jervis, 23 Misc 3d 1127(A), at p. 3 (Supreme Court Orange County 2009), affd. 71 AD3d 932 (2d Dept. 2010), citing Surrogate's Court Procedure Act §702 and EPTL §5-4.1; Deutsch v. LoPresti, 272 AD2d 506 (2d Dept. 2000); LaBoy v. Children's Hosp. of Buffalo, 249 AD2d 944 (4th Dept. 1998). A court lacks authority or discretion to correct a party's identity in the notice. Billman v. City of Port Jervis, supra at p.3, citing Moore v. Melesky, 14 AD3d 757, 759 (3d Dept. 2005).

Accordingly, dismissal of the causes of action asserted against the County defendants is also required under General Municipal Law §50-e(1), based on the plaintiff's failure to serve a timely and proper notice of claim.

This shall constitute the Decision and Order of this Court.

E N T E R

DATED: October 3, 2013

_____________________________

HON. DANIEL PALMIERI

Supreme Court Justice Footnotes

Footnote 1: There is a reference to ARAMARK as "the former operator of the Nassau Coliseum" in plaintiff's opposing memorandum of law (p. 18), but this obviously is not evidence and is not a basis for the result here.

Footnote 2: Notwithstanding plaintiff's notice of claim, it is unclear for whom Connolly worked from 1972 to 1979; SMG's statement does not include those years as years of employment, and as indicated below its agreement with the County to manage the Coliseum dates only from 1979, which would render questionable SMG's need for an HVAC engineer such as Connolly before that time. As noted above, plaintiff's opposing memorandum of law refers to ARAMARK as an earlier manager, but this is insufficient to make any finding in that regard.

Footnote 3: The Court notes that an affiant for the Islander defendants, Michael J. Picker, attests that SMG formerly did business as Hyatt Management Corporation of New York, Inc. If accurate, this does not point to the existence of a separate legal entity but only to a business name.