New York Mar. & Gen. Ins. Co. v Ciampa Crescent, LLC

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New York Mar. & Gen. Ins. Co. v Ciampa Crescent, LLC 2018 NY Slip Op 31539(U) June 7, 2018 Supreme Court, Queens County Docket Number: 707519/15 Judge: Jr., Rudolph E. Greco Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: QUEENS COUNTY CLERK 06/15/2018 02:47 PM 1] NYSCEF DOC. NO. 225 INDEX NO. 707519/2015 RECEIVED NYSCEF: 06/15/2018 SHORT FORM ORDER NEW YORK SUPREME COURT : QUEENS COUNTY Present: Hon. Rudolph E. Greco. Jr. · Justice !AS Part 32 ------------------------------------------------------------------------x NEW YORK MARJNE & GENERAL INSURANCE COMPANY a/s/o ASTORIA 30'h STREET, LLC, NORTH SHORE,LLCandTECHNOLOGYINSURANCE COMPANY a/s/o ASTORIA 30'h STREET, LLC and NORTH SHORE LLC, Plaintiff, -againstCIAMPA CRESCENT, LLC, CIAMPA 24 LLC, CIAMPA S2, LLC, CIAMPA S3 LLC, CIAMPA S4 LLC, CIAMPA MANAGEMENT CORP., CIAMPA ORGANIZATION, JCJ CONSTRUCTION, LLC, BRONZING ENGINEERING, P.C., A SANITA CONCRETE & CONSTRUCTION, INC., DENARDIS ENGINEERING, LLC, OIL SOLUTIONS, INC., SOIL MECHANICS DRILLING CORPORATION, JOHN V. DINAN ASSOCIATES, INC. and HAUBENREICH, HESS & SHAW, L.S., P.E., P.C., Defendants. ---------------------------------------------------------------------x CIAMPA CRESCENT, LLC, CIAMPA 23 LLC, CIAMPA S2 LLC, CIAMPA S3, LLC, CIAMPA S4 LLC, CIAMPA MANAGEMENT CORP., CIAMPA ORGANIZATION and JCJ CONSTRUCTION, LLC. Third-Party Plaintiffs, -againstA. SANITA CONCRETE & CONSTRUCTION, INC., DE NARDIS ENGINEERING, LLC, SOIL SOLUTIONS, SOIL MECHANICS DRJLLING CORPORATION, JOHN V. DINAN AS SOCIATES, INC., HAUBEN REICH, HESS & SHAW, L.S., P.E., P.C., 1 of 4 Index No. 707 519115 Motion Date: Motion Seq. No. 3, 4, 5, 6, 8 [*FILED: QUEENS COUNTY CLERK 06/15/2018 02:47 PM 2] NYSCEF DOC. NO. 225 INDEX NO. 707519/2015 RECEIVED NYSCEF: 06/15/2018 The following papers El 07 ti E2 l 8 were read on six motions for Summary Judgment of Dismissal as per CPLR § 321 l(a)(S). Papers Numbered Seq. 3 Notice of Motion, Affirmation, Affidavit, Exhibits ............................. . El07-El09 Opposing Affirmation and Exhibit. ...................................................... . El54-El58 Reply Law Memorandum ..................................................................... . El89 Seq.4 Notice of Motion, Affirmation, Affidavit, Exhibits ............................. . Opposing Affirmation and Exhibit.. ..................................................... . Reply Affirmation ................................................................................. . Ell0-El29 El59 - El63 El87 - El88 Seq. 5 Notice of Motion, Affirmation, Affidavit, Exhibits ............................. . Opposing Affirmation and Exhibit. ...................................................... . Reply Affirmation ................................................................................. . EIOS - El35 El64 - El68 El90-El91 Seq. 6 Notice of Motion, Affirmation, Affidavit, Exhibits ............................. . Opposing Affirmation and Exhibit. ...................................................... . Reply Affirmation ................................................................................. . El36 El69-El73 El85-El86 Seq. 8 Notice of Motion, Affirmation, Affidavit, Exhibits ............................ .. Opposing Affirmation and Exhibit. ...................................................... . Reply Affirmation ................................................................................. . El51-El53 El 79 - 183 El92 Seq. 9 Notice of Motion, Affirmation, Affidavit, Exhibits ............................. . Opposing Affirmation and Exhibit. ................................ :..................... . Opposing Affirmation and Exhibit. ...................................................... . Opposing Affirmation and Exhibit. ...................................................... . Opposing Affirmation and Exhibit. ...................................................... . Opposing Affirmation and Exhibit. ...................................................... . Reply Affirmation and Exhibit. ............................................................ . Opposing Affirmation and Exhibit. ...................................................... . Reply Affirmation El 94 - E205 E206 E207 - 208 E209 E210 E21 l E212 - E213 E214-E218 Upon the foregoing papers and after a Court conference during which all counsel argued orally these motions are determined as follows: 2 2 of 4 [*FILED: QUEENS COUNTY CLERK 06/15/2018 02:47 PM 3] NYSCEF DOC. NO. 225 INDEX NO. 707519/2015 RECEIVED NYSCEF: 06/15/2018 BACKGROUND FACTS These six motions by defendants/third-party-defendants for CPLR § 32 l l(a)(5) dismissal of "Subrogation Plaintiffs" Amended Verified Complaint arise out of one incident where an existing ' building was undermined during excavation of property adjourning: 41-41 24'h Street, Long Island City, NY owned by New York Marine & General Insurance Company ("NYMGIC") who commenced this action on June 26, 2015. The alleged damage occurred on June 26, 2014. All movants were first served with an Amended Verified Complaint filed on November 12, 2017 which they all claim is beyond the three year statute of limitations for property damage as per CPLR § 214(4). Two other actions arising from the same basic facts were initiated under Index No. 705532/2014 and 708472/2015 which were consolidated with this action by a Court Order dated April 13, 2016. In similar terms the subrogee "NYMGIC" sued the property owner/general contractor "Ciampa defendants" the overall engineer Branzino and numerous others whom it considered as possibly liable for the mishap. The property owner of the construction site "Ciampa defendants" who were also the general contractors, as third- party plaintiffs, sued the six movants herein as third-party defendants. ARGUMENTS The movants cite the authority ofCPLR § 214(4) which sets a three year time bar for property damage actions. The respondent subrogee plaintiff"NYMGIC" asserts that the amended complaint is not time barred because it falls under the "Related Back exceptions as set forth in CPLR § 203(t) and the N.Y. Court of Appeals decision in Buran v Coupal, 661 N.E.2d 978, 87NY2d173, 638 N.Y.S.2d 405, 1995 N.Y. Lexis 4748. DECISION The facts are clear. The amended complaint is time barred as per CPLR 214(4) which sets a three year statute oflimitations for cases of property damage. Livichusca v. M & T Mortgage Co .. 49 A.D.3d 822(2d Dep't. 2008); Jemison v Crichlow, 139 A.D.2d 232 (2d Dep't 1988; Libertv Mutual Ins. Co. V. Clarie, 296 A.D.2d 442(2d Dep't 202) and Nationwide Mutual Ins. Co. v. MVAIC, 190 A.D.2d 798 (2d Dep't. 10993. The "Related Back" exception does not apply here because CPLR § 203(t) sets forth an exception where " ... the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, or series of transactions, or occurrences, to be proved pursuant to the amended pleading." 3 3 of 4 [*FILED: QUEENS COUNTY CLERK 06/15/2018 02:47 PM 4] NYSCEF DOC. NO. 225 INDEX NO. 707519/2015 RECEIVED NYSCEF: 06/15/2018 This Court finds that the movants here were not casually connected to the original alleged tortfeasor or the alleged tort itself. Their presence in this matter was a result of prudent pleading which follows "Sue them all let the Court sort them out" rule of advocacy or the title of the Beatles song "With a Little Help from My Friends". In the interest of justice and judicial economy as well as tlie merits the six instant motions , are granted in full. As to the six movants this matter is dismissed. The fishing expedition is over. I It is time to decide the issues among the possible proper parties without distraction. The amended · and verified complaint is dismissed. Dated: June 7, 2018 ··F/LEO JUN 1 5 2018 COUNTY CLERK QUEENS COUNTY 4 4 of 4

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