Grala v Structural Preserv. Sys., LLC
Annotate this CaseDecided on October 5, 2018
Supreme Court, Queens County
Pawel Grala and JOANNA GRAWEL, Plaintiffs,
against
Structural Preservation Systems, LLC, and NEW YORK CITY HOUSING AUTHORITY, Defendants.
STRUCTURAL PRESERVATION SYSTEMS, LLC,Third-Party Plaintiff,
against
APEX DEVELOPMENT, INC., and MACIEJ WITCZAK,Third-Party Defendants.
706887/2015
For the Plaintiffs: Lirie, Ilchert, Mac Donnell & Ryan, LLP, by George W. Ilchert, Esq., 475 Park Avenue South, New York, New York 10016
For Defendants Structural Preservation Systems, LLC and New York City Housing Authority: Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, by Melina F. McCauley, Esq., 1133 Westchester Ave., White Plains, New York 10604
For Defendants Apex Development, Inc., and Macief Witczak: John L. Weichsel, Esq., 79 Main St., Hackensack, New Jersey 07601
Salvatore J. Modica, J.
Papers Numbered
Notice of Motion - Affidavits - Exhibits NYSCEF doc. nos. 122-129
Notices of Cross Motion - Affidavits - Exhibit NYSCEF doc. nos. 130-142, 150-153, & 163-166
Answering Affidavits - Exhibits NYSCEF doc. nos. 143-149, 157-159, 161, 168, & 170-181
Reply Affidavits NYSCEF doc. nos. 160, 167, 171-179, & 182
This action seeks to recover damages for personal injuries that plaintiff Pawel Grala (plaintiff), allegedly sustained on May 29, 2015, resulting from alleged violations of Labor Law sections 200, 240, 241, 241(a), and common-law negligence. Plaintiffs have alleged that, at the time of the incident, plaintiff was an employee of Apex, a subcontractor of Structural Preservation, and that plaintiff slipped and fell on fluids leaking from a forklift owned, maintained and controlled by Structural Preservation and that he was then struck by said forklift. Plaintiffs have further alleged that the incident occurred at premises known as The New York City Housing parking lot located on Clinton Street between Madison Avenue and Cherry Street, in New York County, which premises was owned, operated, managed, controlled, maintained and inspected by NYCHA. Plaintiff Joanna Grala has alleged a derivative cause of action sounding in loss of services and society.
Following commencement of this action in 2015, Structural Preservation commenced a third-party action against Apex. Subsequently, in 2016, plaintiffs commenced an action against NYCHA in New York County (Index No. 154289/2016). In an order dated July 24, 2017, and entered on September 28, 2017, referred to above, this Court transferred the New York County action to this Court and consolidated it for all purposes with the instant action. See Order found at ECF doc. 109. In an order dated October 24, 2017, and filed on December 5, 2017, this Court vacated the Note of Issue.
In a interim decision regarding only a portion of this motion, which was issued by this Court in the form of a stipulation between the parties dated May 16, 2018, the parties agreed to depose plaintiffs on or before July 30, 2018, depose defendants and third-party defendants on or before November 30, 2018. As such, the branch of plaintiff's motion for an order directing defendants and third-party defendants to appear for deposition need not be addressed herein.
Upon the foregoing papers, the parties, by motion and cross-motions, have sought various relief, as follows:
1. A motion by plaintiffs Pawel Grala and Joanna Grala (collectively referred to as plaintiffs), for an order restoring this matter to active status and directing defendant/third-party plaintiff Structural Preservation Systems, LLC ("Structural Preservation"), and third-party defendants Apex Development, Inc., and Maciej Witczak (collectively referred to as third-party defendants), to comply with plaintiffs' Notice for Discovery and Inspection dated June 15, 2016, and directing Structural Preservation and third-party defendants to appear for deposition;
2. A cross motion by third-party defendants for an order sanctioning plaintiffs for frivolous motion practice, granting them a default judgment against Structural Preservation on the counterclaims brought in their amended answer, striking Structural Preservation's pleadings against Maciej Witczak ("Witczak"), striking all pleadings of Structural Preservation and defendant New York City Housing Authority ("NYCHA"), against third-party defendants for failure to comply with disclosure demands and court orders, and sanctioning Structural Preservation and NYCHA (collectively referred to as defendants), for failure to produce disclosure;
3. A cross motion by Structural Preservation, pursuant to CPLR 3211(a)(7), to dismiss third-party defendants' counterclaims, or in the alternative, for an order compelling acceptance of Structural Preservation's reply to third-party defendants' counterclaims pursuant to CPLR 3012(d); and, finally,
4. A cross motion by defendants, for an order pursuant to CPLR 3124, compelling Apex Development, Inc. ("Apex"), to respond to and provide outstanding disclosure within twenty days of the decision on the within motion.
Plaintiffs, as stated, have moved for an order directing defendants and third-party defendants to comply with plaintiffs' Notice for Discovery and Inspection dated June 15, 2016. To the extent that defendants and third-party defendants have adequately demonstrated that they provided responses to plaintiff's Notice for Discovery and Inspection dated June 15, 2016, plaintiff is not entitled to the relief sought on this branch of their motion.
As to the branch of plaintiffs' motion for an order restoring this matter to active status, since the Note of Issue was vacated in the order dated October 24, 2017, and filed on December 5, 2017, while the matter remains in active status, in order to return the matter to the trial calendar, plaintiff must file a new Note of Issue. Thus, this branch of plaintiff's motion is denied as moot.
Third-party defendants have cross-moved for a default judgment against Structural Preservation on their counterclaims brought against Structural Preservation in their amended answer, sounding in estoppel, breach of contract and common-law indemnification. When a defendant fails to appear or answer, a plaintiff may seek a default judgment against that defendant. See, CPLR 3215(a).
"On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting its claim, and proof of the defaulting party's default in answering or appearing" (Atlantic Cas. Ins. Co. v RJNJ Servs., Inc., 89 AD3d 649, 651 [2d Dept 2011]; CPLR 3215[f]; see HSBC Bank USA, N.A. v Traore, 139 AD3d 1009, 1011 [2d Dept 2016]). "To defeat a facially adequate CPLR 3215 motion, a defendant must show either that there was no default, or that it has a reasonable excuse for its delay and a potentially meritorious defense" (Bank of New York Mellon v Izmirligil, 144 AD3d 1067, 1070 [2d Dept 2016], appeal withdrawn, 29 NY3d 941 [2017][internal quotation marks omitted]; see Fried v Jacob Holding, Inc., 110 AD3d 56, 60 [2d Dept 2013]).
The Court notes that third-party defendants have not annexed copies of the pleadings to the required working copy of their cross motion. The defendants, however, have provided copies of the pleadings in their cross motion papers and in opposition to third-party defendants' cross motion. Accordingly, the Court has the appropriate information to decide the cross motion.
After a thorough review of Apex's and Structural Preservation's cross motion papers, the branch of Structural Preservation's cross motion for an order compelling acceptance of its reply to third-party defendants' counterclaims pursuant to CPLR 3012(d), is granted. In light of this ruling, the Court declines to grant Structural Preservation's alternative relief in that branch of its cross motion seeking to dismiss third-party defendants' counterclaims as duplicative of third-party defendants' affirmative defenses.Furthermore, after careful consideration, the Court has concluded that, since defendants served a reply to third-party defendants counterclaims, and provided both a reasonable excuse for their delay in replying and a potentially meritorious defense to the counterclaims, third-party defendants are not entitled to a default judgment on their counterclaims against defendants.
Third-party defendants have cross-moved to strike all of defendants' pleadings against [*2]them for failure to comply with disclosure demands and with court orders. CPLR 3101(a) provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." "CPLR 3126 provides that a court may, in its discretion, impose a wide range of penalties upon a party that 'refuses to obey an order for disclosure' or 'wilfully fails to disclose information which the court finds ought to have been disclosed.' The penalties set forth by the statute include: (1) deciding the disputed issue in favor of the prejudiced party, (2) precluding the disobedient party from producing evidence at trial on the disputed issue, or (3) striking the pleadings of the disobedient party'" (Morano v Westchester Paving & Sealing Corp., 7 AD3d 495, 496 [2d Dept 2004]; see, Holloway v Sta. Bar Corp., 112 AD3d 784, 785 [2d Dept 2013]).
"The drastic remedy of striking a pleading or dismissal pursuant to CPLR 3126 for failure to comply with court-ordered disclosure should be granted only where the conduct of the resisting party is shown to be willful and contumacious" (Moray v City of Yonkers, 76 AD3d 618 [2d Dept 2010]; see Tornheim v Blue & White Food Prods. Corp., 73 AD3d 749, 750 [2d Dept 2010]). Inasmuch as third-party defendants have failed to satisfy their burden on this branch of their cross motion, and defendants have adequately demonstrated that they have provided responses to third-party defendants' disclosure demands, third-party defendants are not entitled to the relief sought on this branch of their cross motion.
Third-party defendants have cross-moved for an order striking Structural Preservation's pleadings against Witczak and have argued that it is unclear why Structural Preservation has impleaded Witczak, since Witczak was plaintiff's co-worker and that Witczak was not a party to written agreement between Apex and Structural Preservation. Inasmuch as third-party defendants have failed to provide any evidence in admissible form to satisfy their burden on this branch of their motion, they are not entitled to the relief sought.
Third-party defendants have cross-moved for an order sanctioning plaintiffs for frivolous motion practice. Sanctions are permitted pursuant to the Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1(a), which provides that "[t]he court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in this Part."
Pursuant to the Rules of the Chief Administrator of the Courts (22 NYCRR) section 130-1.1(c), conduct is frivolous if:
(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or(3) it asserts material factual statements that are false. Frivolous conduct shall include the making of a frivolous motion for costs or sanctions under this section. In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been [*3]apparent, or was brought to the attention of counsel or the party.With these rules very much in mind, the Court denies that branch of third-party defendants' cross motion for sanctions to be awarded against plaintiffs. Simply stated, third-party defendants have not met their burden of proving that plaintiffs' motion practice against third-party defendant constitutes frivolous conduct within the meaning of Rules of the Chief Administrator of the Courts [22 NYCRR] § 130-1.1 [a], [c]).
The Court also declines that branch of third-party defendants' cross motion for sanctions against defendants for failure to comply with disclosure demands. Again, third-party defendants have failed to satisfy their burden of showing that defendants' alleged failure to comply with discovery requests amounts to frivolous conduct under the Rules of the Chief Administrator of the Courts. Accordingly, third-party defendants are not entitled to the relief sought on this branch of their cross motion.
Next, the Court will consider the branch of the cross motion by Structural Preservation pursuant to CPLR 3211 (a)(7), to dismiss third-party defendants' counterclaims, alleged in their amended answer to the third-party complaint, sounding in equitable estoppel, breach of contract, and common-law indemnification. CPLR 3211 (a)(7) provides that a party may move to dismiss an action on the ground that "the pleading fails to state a cause of action."
"On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory" (Gorbatov v Tsirelman, 155 AD3d 836 [2d Dept 2017]; CPLR 3026; see, Feldman v Finkelstein & Partners, LLP, 76 AD3d 703, 704 [2d Dept 2010]).
In general, "[t]he court is limited to 'an examination of the pleadings to determine whether they state a cause of action'" (Dolphin Holdings, Ltd. v Gander & White Shipping, Inc., 122 AD3d 901, 902 [2d Dept 2014], quoting Miglino v Bally Total Fitness of Greater NY, Inc., 20 NY3d 342, 351 [2013]; see, Fedele v Qualified Pers. Residence Trust of Doris Rosen Margett, 137 AD3d 965, 967 [2d Dept 2016]).
"In deciding a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory." Fough v. Aug. Aichhorn Ctr. for Adolescent Residential Care, Inc., 139 AD3d 665, 669 (2nd Dept. 2016); accord, Guggenheimer v. Ginzburg, 43 NY2d 268, 275 (1977) ("[T]he sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail."); Hutchison v. Kings Cty. Hosp. Ctr., 139 AD3d 673 (2nd Dept. 2016); Soldatenko v. Village of Scarsdale Zoning Bd. of Appeals, 138 AD3d 1002 (2nd Dept. 2016); Fedele v. Qualified Pers. Residence Trust of Doris Rosen Margett, 137 AD3d 965 (2nd Dept. 2016) ("In determining a motion pursuant to CPLR 3211(a)(7), the court is limited to an examination of the pleadings to determine whether they state a cause of action, accepting facts alleged as true and interpreting them in the light most favorable to the plaintiff. . . . Here, the Hospital's evidentiary submissions failed to show that the plaintiffs did not have a cause of action."); E & D Grp., LLC v. Vialet, 134 AD3d 981, 982 (2nd Dept. 2015) ("When evidentiary material is considered on a motion to dismiss a complaint [*4]pursuant to CPLR 3211(a)(7), and the motion has not been converted to one for summary judgment, the criterion is whether the [plaintiff] has a cause of action, not whether he [or she] 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."); Sokol v. Leader, 74 AD3d 1180, 1180-1181 (2nd Dept. 2010) ("Whether a plaintiff can ultimately establish its allegations is not part of the calculus."); Cooper v. 620 Props. Assocs., 242 AD2d 359, 360 (2nd Dept. 1997) ("If from the four corners of the complaint factual allegations are discerned which, taken together, manifest any cause of action cognizable at law, a motion to dismiss will fail.").
"When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, again dismissal should not eventuate." Guggenheimer v. Ginzburg, 43 NY2d at 275, supra; accord, Butler v. Magnet Sports & Entertainment Lounge, Inc., 135 AD3d 680, 680-681 (2nd Dept.), lv. to appeal dismissed, 27 NY3d 1032 (2016).
Most recently, in language that applies equally to the case at bar, the Second Department, in Sabre Real Estate Grp., LLC v. Ghazvini, 140 AD3d 724 (2nd Dept. 2016), stated:
"On a motion to dismiss pursuant to CPLR 3211(a)(7), the facts alleged in the complaint are accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court's function is to determine only whether the facts as alleged fit within any cognizable legal theory" (Biro v. Roth, 121 AD3d 733, 735).Here, the complaint, as supplemented by the affidavits submitted by the plaintiff in opposition to the motion (see Arrington v. New York Times Co., 55 NY2d 433, 442), set forth allegations sufficient to state a cognizable cause of action against the defendants (see Brandenberg v. Primus Assoc., 304 AD2d 694).Accordingly, the Supreme Court also should have denied that branch of the defendants' motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7).In support of this branch of its cross motion, Structural Preservation has argued that the counterclaims fail to state a cause of action because third-party defendants' counterclaims are conclusory and that third-party defendants have failed to sufficiently allege a counterclaim for estoppel.
CPLR 3013 provides that "[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense."
Upon a close reading of the allegations contained in third-party defendants' amended answer and affording the allegations contained therein a liberal construction, the Court concludes that third-party defendants have sufficiently alleged causes of action sounding in breach of contract and common-law indemnification (see Gorbatov v Tsirelman, 155 AD3d at 836). Third-party defendants, first, have sufficiently alleged the elements of a cause of action for breach of contract, to wit, "the existence of a contract, [a party's] performance pursuant to the contract, [the other party's] breach of his or her contractual obligations [pursuant to said contract], and damages [*5]resulting from the breach" (Dee v Rakower, 112 AD3d 204, 208-09 [2d Dept 2013]).
They have, second, also sufficiently set forth a cause of action sounding in common-law indemnification, by alleging a duty owed to them by Structural Preservation, the breach of which may result in vicarious liability without actual fault on the part of third-party defendants (see generally Dreyfus v MPCC Corp., 124 AD3d 830, 830 [2d Dept 2015]; Metadijia Atanasoki v Braha Indus., Inc., 124 AD3d 705, 706 [2d Dept 2015]).
Third, after reading and examining the allegations contained in third-party defendants' amended answer and affording third-party defendants the benefit of every favorable inference (see, Gorbatov v Tsirelman, 155 AD3d at 836), the Court further finds that third-party defendants have sufficiently alleged a counterclaim sounding in equitable estoppel. "The elements of [equitable] estoppel are, with respect to the party estopped, (1) conduct which amounts to a false representation or concealment of material facts; (2) intention that such conduct will be acted upon by the other party; and (3) knowledge of the real facts" (Wallace v BSD-M Realty, LLC, 142 AD3d 701, 703 [2d Dept 2016][internal quotation marks omitted]; see First Union Natl. Bank v Tecklenburg, 2 AD3d 575, 577 [2d Dept 2003]).
Giving the allegations contained in third-party defendants' amended answer a liberal construction, the Court finds that Structural Preservation is not entitled the dismissal of third-party defendants' counterclaims pursuant to CPLR 3211(a)(7).
Defendants have cross-moved for an order pursuant to CPLR 3124, compelling Apex to provide outstanding disclosure within twenty days of the decision on the within motion. CPLR 3124 provides the following: "If a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article, except a notice to admit under section 3123, the party seeking disclosure may move to compel compliance or a response."
Based upon an examination of the motion and cross motion papers, to the extent that it has not already done so, Apex is, hereby, directed to provide all outstanding disclosure and, in particular, to provide any outstanding disclosure relating to Structural Preservation's Notice for Discovery and Inspection dated May 19, 216, within forty five days of service of a copy of this order with notice of entry. In the interest of judicial economy and the resolution of this matter, the parties are hereby ordered to complete all disclosure expeditiously.
Accordingly, plaintiffs' motion is denied in its entirety.
The cross motion by third-party defendants is denied in its entirety.
The branch of Structural Preservation's cross motion for an order compelling acceptance of its reply to third-party defendants' counterclaims is granted, and the remaining branches of its cross motion are denied.
The cross motion by defendants for or an order compelling Apex to respond to and provide outstanding disclosure is granted to the extent discussed above. Structural Preservation is directed to serve a copy of this order with notice of entry on all parties.
The foregoing constitutes the decision, order, and opinion of the Court.
Dated: October 5, 2018
Jamaica, New York
[*6]
Honorable Salvatore J. Modica
J.S.C.
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