Baker v Iron Rail Holdings, LLC

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Baker v Iron Rail Holdings, LLC 2018 NY Slip Op 34072(U) August 17, 2018 Supreme Court, Albany County Docket Number: Index No. 906793-17 Judge: Denise A. Hartman 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: 1] ALBANY COUNTY CLERK 08/24/2018 02:05 PM NYSCEF DOC. NO. 66 INDEX NO. 906793-17 RECEIVED NYSCEF: 08/24/2018 STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY KATHLEEN BAKER, Plaintiff, -against- DECISION AND · ORDER Index No. 906793-17 IRON RAIL HOLDINGS, LLC, J. J. CILLIS BUILDERS, INC., JJ CILLIS GROUP, LLC, CILLI.S BUILDERS ' -1Nc .,= ·TED CILLIS BUILDERS ' LLC ' CAMP Bow Wow, CAPITAL CITY DOGGY DAY CARE, LLC a/k/a and/or d/b/a CAMP Bowwow, CAMP Bow Wow OF LONG ISLAND,. INC., a/k/a and/or d/b/a CAMP Bow Wow, CAMP Bow Wow FRANCHISING, INC., a/k/a and/or d/b/a CAMP Bow Wow, and VCA ANIMAL HOSPITALS, INC., 0 0 Defendants. HON. DENISE A. HART~N, AJSC APPEARANCES WEISS, WEXLER & WORNOW, P.C: Cory I. Zimmerman, of Counsel Attorney for Plaintiff 25 Park Place, 4 th Floor New York, New York 10007 DANIELL. DOHERTY, ESQ. Attorney for Defendant Cillis Builders, Inc. · 41 State Street, Suite 901 Albany, New York 12207 1 of 5 [*FILED: 2] ALBANY COUNTY CLERK 08/24/2018 02:05 PM NYSCEF DOC. NO. 66 INDEX NO. 906793-17 RECEIVED NYSCEF: 08/24/2018 STOCKTON, BARKER & MEAD, LLP Robert S. Stockton, of Counsel Attorneys for Defendant Ted Cillis Builders, LLC 433 River Street, Suite 6002 Troy, New York 12180 No OTHER APPEARANCES ON THE MOTIONS DECIDED HEREIN Hartman, J. Plaintiff commenced this slip-and-fall personal injury action bye-filing a summons with notice on October 17, 2017. Defendant Cillis Builders, Inc. efiled filed a notice of appearance and demand for· the complaint on February 22, ·2018. On Mar'ch 15, 2018, defendant Ted Cillis Builders, LLC e-filed a notice of appearance and demand for complaint. Plaintiff e-filed the complaint on April 4, 2018. The next day, Cillis Builders, Inc. filed a notice that it rejected the complaint as untimely. Defendants Iron Rail Holdings, LLC; J.J. Cillis Builders, Inc. and JJ Cillis Group, LLC; and Camp Bow Wow, Capital City Doggy Day Care, Camp Bow Wow Franchising, Inc., and VCA Animal Hospitals, Inc. answered, asserting cross-claims against the other defendants for negligence, indemnity, and contribution. Cillis Builders, Inc. moves to dismiss the complaint against it based on plaintiffs failure to timely serve the complaint and requests sanctions against plaintiff. Ted Cillis Builders, LLC moves to dismiss the complaint against it 2 2 of 5 [*FILED: 3] ALBANY COUNTY CLERK 08/24/2018 02:05 PM NYSCEF DOC. NO. 66 INDEX NO. 906793-17 RECEIVED NYSCEF: 08/24/2018 pursuant to CPLR 3211 (a) (7). Plaintiff cross moves for sanctions against Cillis Builders, Inc. The remaining defendants have not appeared on this motion. Plaintiff offers no meaningful opposition to Cillis Builders, Inc.'s motion to dismiss. Plaintiff e-filed the complaint 41 days after Cillis Builders, Inc . . e-filed its demand-21 days late (see CPLR 3012 [b]). Accordingly, the complaint must be dismissed against Cillis Builders, Inc. (see Marcello v Flecher, 150 AD3d.1457, 1458 [3d Dept 2017]). In support of its motion to dismiss, Ted Cillis Builders, LLC, has submitted the affidavit of its managing member and owner Theodore J. Cillis, Jr. Mr. Cillis avers that neither he nor his company ever owned, managed, or worked on the building where plaintiff was injured. Plaintiff does not oppose his motion .. Accordingly, the complaint against Ted Cillis Builders, LLC is dismissed. Finally, the Court declines to grant sanctions or attorneys' fees to any party. Accordingly, it is ORDERED that defendant Cillis Builders, Inc.'s motion to dismiss the complaint against it is granted, the complaint and all cross-claims against Cillis Builders, Inc. ·are dismissed, and Cillis Builders, Inc. is a_warded costs ' and disbi'.irsements pursuant to CPLR 8101; ORDERED that defendant Cillis Builders, Inc.'s request for sanctions and attorneys' fees is denied; 3 3 of 5 [*FILED: 4] ALBANY COUNTY CLERK 08/24/2018 02:05 PM .. NYSCEF DOC. INDEX NO. 906793-17 NO. 66 RECEIVED NYSCEF: 08/24/2018 ORDERED that defendant Ted Cillis Builders, LLC's motion to dismiss the complaint against it is granted, and the complaint and all cross~claims against Ted Cillis Builders, LLC are dismissed, and- Ted Cillis Builders, LLC is awarded costs and disbursements pursuant to CPLR 8101; ORDERED that plaintiffs cross-motion for sanctions and attorneys' fees is denied. This constitutes the decision and order of the Court. The original decision and order is being transmitted to counsel for Cillis Builders, Inc. All other papers are being transmitted to the County Clerk for filing. The signing of this decision and order does not constitute entry or· filing under CPLR 2220 and counsel are not relieved from the applicable provisions of that rule respecting filing and service. Dated: Albany, New York August 17, 2018 HON. DENISE A. HARTMAN Acting Justice of the Supreme Court , , , ' · - - ~ ~ "I .. -~··. . , •. .. 't I /"r ; . ; ·, , _ . ~apers Considered -~ CJ .-1/-{ ~ 1. . Notice of Motion by Cillis Builders, Inc. to Di$miss, P-~rty Affidavit of Theodor~ J. Cillis, III, with Attachments, and Attorney Affidavit of. Daniel L. Doherty 2. Supplemental Notice of Motion hy Cillis Builders, Inc. to Dism.iss · 3. Notice of Motion by Ted Cillis Builders, LLC to Dismiss 4. Attorney Affidavit of Robert S. Stockton, with Exhibit A 4 4 of 5 [*FILED: 5] ALBANY COUNTY CLERK 08/24/2018 02:05 PM INDEX NO. 906793-17 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 08/24/2018 .,, 5. 6. 7. 8. 9. 10.' ' 11. 12. Notice of Cross-Motion of Plaintiff for Legal Fees and Sanctions Against Cillis Builders, Inc. Attorney Affirmation of Corey I. Zimmerman in Support of CrossMotion, with Exhibits A-G Attorney Affirmation of Corey I. Zimmerman in Opposition to Cillis Builders, Inc.'s Motion to Dismiss and in Support of Cross-Motion, with Exhibits A-G Cillis Builders, Inc. Attorney Reply of Daniel J. Doherty Affidavit and Notice of Cross-Motion_ . Reply Affirmation of Corey I. Zimmerman in Support ,of Cross'-Motion, with Exhibits A-D AnswerqfCapital CityDoggy Day Care, Camp Bow Wow Franchising, Inc., -ancfVCA Animal-Hospitals, Inc. Answer of Iron Rail Holdings, LLC . Answer of J. J. Cillis Builders, Inc. and JJ Cillis Group, LLC I \ 5 5 of 5

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