Diaz-Pascall v Pereira

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Diaz-Pascall v Pereira 2019 NY Slip Op 33095(U) October 16, 2019 Supreme Court, New York County Docket Number: 157504/2013 Judge: Debra A. James 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] NEW YORK COUNTY CLERK 10/17/2019 04:13 PM NYSCEF DOC. NO. 237 INDEX NO. 157504/2013 RECEIVED NYSCEF: 10/17/2019 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HOM. DEBRA A. JAMES IAS MOTION 59EFM Justice ---------------------------------------------------------------------------------X AMANDA DIAZ-PASCALL and ALON PASCALL, Plaintiffs, INDEX NO. MOTION DATE MOTION SEQ. NO. 157504/2013 03/26/2019 005 -vJOHN PEREIRA, IRGANG GROUP, INC.,MARK IRGANG, and JAY IRGANG, DECISION + ORDER ON MOTION Defendants. ---------------------------··-----------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 005) 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 187, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199,200,201,202,203,204,205,206,207,208,209,210, 211, 212,213, 214,215,216,217,218,219,220,221,222,223,224,225,226,227,228,229,230,231, 232,233,234,235,236 SUMMARY JUDGMENT (AFTER JOINDER) were read on this motion to/for ORDER Upon the =oregoing documents, it is ORDERED that the caption is amended sua sponte to name Mark Irgang as a party defendant; and it is further ORDERED that the action shall bear the following caption: 157504/2013 DIAZ-PASCALL, AMANDA vs. PEREIRA, JOHNS Motion No. 005 1 of 23 Page 1of23 [*FILED: 2] NEW YORK COUNTY CLERK 10/17/2019 04:13 PM INDEX NO. 157504/2013 NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/17/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------x AMANDA DIAZ-PASCALL and ALON PASCALL, Index No. 157504/2013 Plaintiffs, - against JOHNS. PEREIRA, IRGANG GROUP, INC., MARK IRGANG, JAY·IRGANG and ACACIA, INC. a/k/a a~d d/b/a BASIC HOUSING, INC., Defendants. ----------------------------------------x and it is further ORDERED that counsel for defendants Irgang Group, Inc., Mark Irgang and Jay Irgang shall serve a copy of this order with notice of entry upon the County Clerk (60 Centre Street, Room 1418) the Clerk of the General Clerk's Office (60 Centre Street, and Room 119), who are directed to mark the court's records to reflect the caption as amended; and it is further ORDERED that such service upon the County Clerk and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures fer Electronically Filed Cases Filing" page on the court's (accessible at the "E- website at the address www.nycourts.gov/supctmanh); and it is further ORDERED that the motion of defendants Irgang Group, Inc., Mark Irgang a:'.1d Jay Irgang for summary judgment or for an order of 157504/2013 DIAZ·PASCALL, AMANDA vs. PEREIRA, JOHNS Motion No. 005 2 of 23 Page 2 of 23 [*FILED: 3] NEW YORK COUNTY CLERK 10/17/2019 04:13 PM NYSCEF DOC. NO. 237 INDEX NO. 157504/2013 RECEIVED NYSCEF: 10/17/2019 preclusion is granted to the extent of granting summary judgment, and the complaint and the cross claims are dismissed against them, and the balance of the motion is otherwise denied; and it is ORDERED that the cross motion of defendant Acacia, Inc. a/k/a and d/b/a Basic Housing, Inc. for summary judgment is granted, and the complaint and cross claims are dismissed against it; and it is further ORDERED that the Clerk of the Court shall enter judgment in favor of defendants Irgang Group, and Acacia, the claims Inc. Mark Irgang, a/k/a and d/b/a Basic Housing, a;'.1d cross together wi tr Inc., claims made against Inc. Jay Irgang dismissing them in this action, costs and disbursements to be taxed by the Clerk upon an appropriate bill of costs; and it is further ORDERED that the complaint against defendant John S. Pereira is dismissed as abandoned, and the Clerk is directed to enter judgment accordingly; and it is further ORDERED that plaintiffs' cross motion for leave to serve and file an amended complaint is denied. DECISION Defendants Irgang Group, Jay Irgang (,Jay) Inc. (collectively, ( IG) , Irgang) Mark Irgang move, (Mark) pursuant and to CPLR 3212, for summary judgment dismissing the complaint and the cross claims assert2d against them, or precluding plaintiffs Amanda in the alternative, for an order Diaz-Pascall 157504/2013 DIAZ·PASCALL, AMANDA vs. PEREIRA, JOHNS Motion No. 005 3 of 23 (Amanda) and Alon Page 3 of 23 [*FILED: 4] NEW YORK COUNTY CLERK 10/17/2019 04:13 PM NYSCEF DOC. NO. 237 Pascall a/k/a INDEX NO. 157504/2013 RECEIVED NYSCEF: 10/17/2019 (Alon) and (together, plaintiffs) d/b/a Basic Housing, and defendant Acacia, Inc. (Acacia or Basic) Inc. from introducing any evidence at the time of trial for their failure to produce court-ordered discovery. application and also 1 Acacia partially opposes the cross-moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint and the cross claims asserted against it. Plaintiffs oppose the motion and cr~ss motion and cross-move, pursuant to CPLR 3025, for leave to file an amended complaint. Background This personal injury action arises out of an incident that occurred on October 21, 2011, when Amanda allegedly tripped and fell on an obstruction on the stairs leading to her apartment at 77 East 125th Street, Doc No. 13:, [complaint], ~ New York, affirmation New York of Irgang's (the Building) counsel, (NYSCEF exhibit 2 18; NYSCEF Doc No. 171, affirmation of plaintiffs' counsel, exhibit C, ~ 1 [b]). Alon brings a derivative claim. At her deposition, Amanda testified that she, Alon and their two children lived in apartment described as a homeless 3B at the Building, which she shelter facility consisting of several apartments in a walk-up building (NYSCEF Doc No. 139, affirmation 1 As an initial matter, it appears that Mark's name was inadvertently omitted from tje amended caption after the consolidation of the actions against Irgang and Acacia (NY St Cts Elec Filing [NYSCEF] Doc No. 135, affirmation of Irgang's counsel, exhibit 6 at 2). 157504/2013 DIAZ-PASCALL, AMANDA vs. PEREIRA, JOHNS Motion No. 005 4 of 23 Page 4 of 23 [*FILED: 5] NEW YORK COUNTY CLERK 10/17/2019 04:13 PM INDEX NO. 157504/2013 NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/17/2019 of Irgang's counsel, exhibit 10 [Amanda 4/15/14 tr] at 10, 15-17). Amanda explai~ed that the edge of each step on the stairway leading to the upper floors was covered in a burgundy rubber tile (id. at 21). She first noticed the condition approximately one month after she had moved into the Building (NYSCEF Doc No. of Irgang's counsel, exhibit 11 complained to her caseworker, 140, affirmation [Amanda 4/27/16 tr] Lydia Torres at 28), (Torres) , about and the raised tiles between the second and third floors shortly thereafter (id. at 55-56; NYSCEF Doc No. 139 at 40). The condition was not fixed prior to the accident (NYSCEF Doc No. 140 at 56). On the day of the accident, she was walking up the stairs to the apartment with her family when her right foot "somehow caught the tile that was lifted" (NYSCEF Doc No. 139 at 30) . Amanda testified that Basic operated the shelter facility (id. at 30) and employed Torres and a manager, "Eric" (id. at 54). A maintenance person also came each day to remove trash from the Building and to sweep and mop (id. at 43-44). She once saw the same unnamed maintenance person speaking to "Eric" at her caseworker's office, but she did not know if they were employed by the same entity (id. at 55-56). Amanda stated that she did not know who owned the Building (id. at 42). Alon testified that he had just opened the door leading to the apartment when he heard Amanda shout out (NYSCEF Doc No. 141, affirmation of Irgang's counsel, exhibit 12 157504/2013 DIAZ·PASCALL, AMANDA vs. PEREIRA, JOHNS Motion No. 005 5 of 23 [Alon 4/15/14 tr] Page 5 of 23 at [*FILED: 6] NEW YORK COUNTY CLERK 10/17/2019 04:13 PM NYSCEF DOC. NO. 237 16). INDEX NO. 157504/2013 RECEIVED NYSCEF: 10/17/2019 When he turned around, he saw Amanda on the floor leaning against the wall in the hallway (id. at 16-17). "she tripped over a tile" (id. at 34). is always up ~-ike that" (id. at 34) . Amanda told him Alon stated that "the tile He was aware that an upstairs neighbor and another neighbor's daughter had tripped on the stairs (id. at 36-37; NYSCEF Doc No. 142, affirmation of Irgang's counsel, exhibit 142 [Alon testified that he 4/27/2016 tr] at 18 and 21-22). had complained verbally to Torres Alon also about the condition, but he could not recall when the complaint was made or if had lodged more than one complaint 36) . (NYSCEF Doc No. 141 at 35- Alon stated that his neighbor had also complained numerous times (id. at 37). Mark testified that he was the president of IG (NYSCEF Doc No. 138, affirmation of Irgang's counsel, exhibit 9 [Mark 4/15/14 tr] at 21), and a manager and member of 77-79 East 125th Street, LLC (77-79 Street LLC), the entity that owned the Building (id. at 9). In 2011, IG managed 26 commercial and residential properties owned by the limited liability companies he and his father, had established (jd. at 7-10). Jay, In 2010, 77-79 Street LLC entered into a written agreement with Acacia, which at that time was known as Basic, whereby 77-7 9 Street LLC made furnished residential apartments at the Building available to Acacia for use as homeless shelter for which Acacia paid 77-79 Street LLC a nightly occupancy fee per apartment (id. at 11 and 14). 157504/2013 DIAZ·PASCALL, AMANDA vs. PEREIRA, JOHNS Motion No. 005 6 of 23 Neither 77-79 Street LLC Page 6 of 23 [*FILED: 7] NEW YORK COUNTY CLERK 10/17/2019 04:13 PM INDEX NO. 157504/2013 NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/17/2019 nor IG had ary direct communications with the residents or their caseworkers (ic!.:_ at 16). testified that "Basics We' re apartments. As for maintenance at the Building, Mark [sic] responsible outside the tuilding" (id. is for at 17). mopping and trash removal (id.). responsible the for hallways inside and the the area Hallway maintenance included Mark explained that 77-79 Street LLC employed a janitor and paid his or her wages, that the janitor a~d was selected "controlled by Basics [sic]," and that Mark had no contact with the janitor (id. at 18 and 20). Edwin Morales (Morales) of Acacia would call him "if there was a problem in the part of the building that I (id. at 19). He testified that was responsible for" Mark expressed that neither he nor any maintenance people he hired conducted regular inspections of the Building (id. at 22). Mark also testified that he could not recall any recent maintenance performed on the tiles on the steps prior the accident because the tiles "had been installed recently," and could not recall any repairs to those tiles after the accident (id. at 26). Morales testified that at the time of the accident, employed by Acacia operations His as a housing manager or as (NYSCEF Doc No. 143, exhibit 14 responsibilities in both the he was director of [Morales tr] at 9-10). positions included conducting periodic inspections of the shelter facilities operated by Acacia (id. at 13). He explained the process complaints abJut conditions at a facility. 157504/2013 DIAZ-PASCALL, AMANDA vs. PEREIRA, JOHNS Motion No. 005 7 of 23 for reporting resident Morales testified that Page 7 of 23 [*FILED: 8] NEW YORK COUNTY CLERK 10/17/2019 04:13 PM INDEX NO. 157504/2013 NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/17/2019 a resident would lodge a complaint with his or her caseworker, the caseworker would department where forward Morales the complaint worked, and recorded on a work order (id. at 27). to the the maintenance complaint would be Morales testified that he would then contact the landlord of the facility "to let them know that they had to do something structural and they was [sic] responsible for it" (id. at 21). As to the Building, Acacia "rent[s] out" facilities owned by "Irgang" (id. at 20), but Acacia did not contract with Irgang to provide maintenance or perform repairs at the Building (id. at 22 and 34) . Morales testified that in 2011, Irgang hired people to sweep and mop the Building (id. at 59), and that he called Irgang when structural repairs were needed in the apartments 22). (id. at 19- Morales testified that he could not recall having received a complaint about the stairway or hallway at the Building from a caseworker or resident, nor could he recall rubber-coated steps or stairs at the Building 47). an issue with the (id. at 2 6-2 9 and He also testified that he never saw a raised rubber tile on the steps during his inspections (id. at 46). The parties to the memorandum of understanding (MOU) dated May 1, 2010 are "77-79 E. 125th St. LLC" and "Basics Housing Inc. (BHI)," and -:he document appears on "Basic Housing" (NYSCEF Doc Ko. 122, Mark aff I, exhibit 3 at 1). letterhead Although the MOU does not define 77-79 Street LLC as the Building's owner, 157504/2013 DIAZ-PASCALL, AMANDA vs. PEREIRA, JOHNS Motion No. 005 8 of 23 Page 8 of 23 it [*FILED: 9] NEW YORK COUNTY CLERK 10/17/2019 04:13 PM NYSCEF DOC. NO. 237 states INDEX NO. 157504/2013 RECEIVED NYSCEF: 10/17/2019 that 77-79 Street LLC "has control over and is legally entitled to make available certain portions of the Premises known as 7 7-7 9 E. 12 5th St." available to Basic to house families designated as eligible by OHS for placement in exchange for an occupancy fee (id. at 1-2). Paragraph 6 of the MOU provides that 77-79 Street LLC shall keep the Building "internally and externally to comply with all relevant municipal, State and federal codes and other l'egal requirements" (id. at 2). Additionally, Paragraph 7 reads: "77-79 E. 125th St. LLC shall keep the Premises, both internally and externally, excepting only the apartments, in a clean and orderly state to conform to relevant municipal codes and the requirements of the Agreement. This shall include, but not be limited to rubbish removal, cleaning of sidewalks and other external areas which are not the responsibility of the municipality. It shall be the responsibility of BHI to cause the apartments to be kept in a clean and orderly fashion" (id. at 2). "no Finally, paragraph 9 states, landlord/tenant relationship is in relevant part, established between that them" (id.) . Plaintiffs commenced an action in New York County against defendant John S. Pereira (Pereira) and Irgang alleging that each owned or managed the Building.2 Plaintiffs commenced a separate 2 According to a document recorded in the Office of the City Register, Pereira is the court-appointed Chapter 11 bankruptcy trustee for several corporations, including 77 East 125th Street 157504/2013 DIAZ-PASCALL, AMANDA vs. PEREIRA, JOHNS Motion No. 005 9 of 23 Page 9 of 23 [*FILED: 10] NEW YORK COUNTY CLERK 10/17/2019 04:13 PM INDEX NO. 157504/2013 NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/17/2019 action in Bronx County against Acacia alleging that Acacia owned or managed the Building. to the complaints, consolidated. Irgang and Acacia have interposed answers and the two actions were subsequently Pereira has neither answered or otherwise appeared. DISCUSSION It is well settled that the movant on a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter o:: law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The motion must be supported by evidence in admissible form (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]), and by the pleadings and other proof such as affidavits, depositions and written admissions 3212). (see CPLR The "facts must be viewed in the light most favorable to the non-moving party" (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012] [internal quotation marks and citation omitted]). the movant meets its burden, it is incumbent upon the non-moving party to establish the existence of material issues of fact citing Alvarez v Prospect Hosp., "[f] ailure to make summary judgment] [a] Once prima 68 NY2d 320, facie showing 324 (id., [1986]). The [of entitlement requires a denial of the motion, to regardless of Realty LLC, the prior owner of the Building, and 79 East 125th Street Realty LLC, the owner of the premises adjacent to the Building (NYSCEF Doc No. 179, affirmation of plaintiffs' counsel, exhibit G at 5 and 9). 157504/2013 DIAZ-PASCALL, AMANDA vs. PEREIRA, JOHNS Motion No. 005 10 of 23 Page 10 of 23 [*FILED: 11] NEW YORK COUNTY CLERK 10/17/2019 04:13 PM NYSCEF DOC. NO. 237 the INDEX NO. 157504/2013 RECEIVED NYSCEF: 10/17/2019 sufficiency of the opposing papers" [internal quotation marks and citation (Vega, 18 NY3d at omitted, 503 emphasis in original]). A. Irgang's Motion for Summary Judgment Irgang argues that it is not liable to plaintiffs because it did not own the Building and it was not contractually obligated to maintain it. In addition, Irgang contends that the claims against Mark and Jay should be dismissed because they are shielded by the protections afforded to the owners of a corporation. support of the motion are two affidavits from Mark, that IG maintained all corporate formalities Submitted in who attests and that IG never waived the protections afforded to a corporation's owners (NYSCEF Doc No. 119, Mark aff I, !! 4-6; NYSCEF Doc No. 123, Mark aff II, !! 5-7). LLC Mark states that the Building is owned by 77-79 E. 125th, (77-79 LLC), and that 77-79 LLC executed the MOU whereby 77- 7 9 LLC agreed that it was responsible for Building maintenance (NYSCEF Doc No. 119, ! ! 9-10, NYSCEF Doc No. 123, ! ! 10-12). Mark also states that IG "was not responsible for anything" under the MOU (NYSCEF Doc No. 119, ! 11, NYSCEF Doc No. 123, ! 13). argues that ~ark's Irgang testimony and averments also show that IG was never notified of a dangerous condition on the step prior to the accident. contends As that for the request plaintiffs and for Acacia 157504/2013 DIAZ-PASCALL, AMANDA vs. PEREIRA, JOHNS Motion No. 005 11 of 23 alternative should be relief, Irgang precluded from Page 11 of 23 [*FILED: 12] NEW YORK COUNTY CLERK 10/17/2019 04:13 PM NYSCEF DOC. NO. 237 introducing INDEX NO. 157504/2013 RECEIVED NYSCEF: 10/17/2019 evidence because they have not met their discovery a~y obligations. Plaintiffs oppose the motion and argue that Mark and Jay are avoid legal liability because the seeking to defraud them and entity Mark claimed owned the Building, 77-79 Street LLC, does not exist, as sec;_rches for "77-79 E. 125TH Street LLC, 125th St. LLC, LLC," "77-79 E. "77 east 125 street," and "77 east 125 street realty llc" on the public website maintained by the New York State Department of State (DOS) yielded negative results (NYSCEF Doc No. 177, affirmation of plaintiffs' counsel, exhibit Eat 1, 3, 4, and 6). Plaintiffs contend that Mark and Jay actually owned and operated the Building in their individual capacities because 7779 Street LLC was not properly formed in accordance with Limited Liability Law ego. the § Plainti~fs corporate 209, and that 77-79 Street LLC was their alter argue that Mark and Jay "have a history of playing shell plaintiffs' counsel, game" ~ (NYSCEF Doc No. 172, affirmation 16), as evidenced in a settlement agreement entered in the United States Bankruptcy Court for District of New York in 2008 plaintiffs' counsel, of the Southern (NYSCEF Doc No. 180, affirmation of exhibit H at 1). Plaintiffs claim that Pereira had sued Mark, Jay, and several limited liability companies that Mark and Jay allegedly owned and controlled, claiming that they had fraudulently stripped the bankrupt entities, which Mark and Jay also purportedly owned and controlled, 157504/2013 DIAZ·PASCALL, AMANDA vs. PEREIRA, JOHNS Motion No. 005 12 of 23 of their assets Page 12 of 23 [*FILED: 13] NEW YORK COUNTY CLERK 10/17/2019 04:13 PM INDEX NO. 157504/2013 NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/17/2019 (NYSCEF Doc No. 172, affirmation of plaintiffs' The claims were settled for $15 million 18) . Plaintiffs (NYSCEF Doc No. submit 172, that this counsel, (NYSCEF Doc No. "business model affirmation of plaintiffs' 16). <JI 180 at continues" counsel, 17), <JI and refer to Mark's admissions that he and Jay own the Building through a limited liability company and that IG manages it for them. Additionally, plaintiffs submit that Irgang was aware of the raised tile on which plaintiff fell because both plaintiffs and their neighbor, Ronettea Cooper (Cooper), had complained to Acacia about the condition. Cooper testified that "everybody in the building kept on complaining to management" about the raised tiles on the stairs but "they never did nothing [sic] to fix it" (NYSCEF Doc No. 184, affirmation of plaintiffs' counsel, exhibit M [Cooper tr] at 19). In reply, Irgang emphasizes that 77-79 (NYSCEF Doc No. 190, Mark aff in opposition, LLC <JI paragraph 7 ( c) exhibit 1 at 1). the owner 5), and that DOS' website shows that the entity was formed in 2004 191, Mark aff in opposition, is (NYSCEF Doc No. Mark avers that in the settlement agreement listed 77-7 9 LLC as the owner of the Building and the adjacent property at 79 East 125th Street (NYSCEF Doc No. 190, <JI 7). In addition, Mark states that 77-79 Street LLC was not owned by or related to 77 East 125th Street Realty LLC, one of the bankrupt 157504/2013 DIAZ-PASCALL, AMANDA vs. PEREIRA, JOHNS Motion No. 005 13 of 23 entities named in the Page 13 of 23 [*FILED: 14] NEW YORK COUNTY CLERK 10/17/2019 04:13 PM INDEX NO. 157504/2013 NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/17/2019 settlement agreement, and that 77 East 125th Street Realty LLC or Pereira sold the Building to 77-79 LLC (id., 24 at Furthermore, 23-24). 77-79 ~ ownership of the Building (id., LLC ~ 11; NYSCEF Doc No. has never hidden 12), as shown in its payments of the real estate taxes assessed against the Building t:.rces, the corporate entity, apparently referenced, misspelled or (NYSCEF Doc Irgang also asserts No. 197, Mark aff in opposition, exhibit 7). that "[a] t its 77-79 E. misstated 125th LLC, as '7 7-7 9 125th Street, LLC,' and/or '77-79 E. 125th St. LLC." is East (NYSCEF Doc No. 198, affirmation of plaintiff's counsel at 3). Generally, " [a] landowner must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" (Basso v Miller, 40 NY2d 233, quotation marks and citation omitted]). 241 [1976] Moreover, [internal " [ 1] iabili ty for a dangerous condition on property may only be predicated upon occupancy, ownership, (Gibbs v Port Auth. control or special use of such premises" of N.Y., 17 AD3d 252, citing Balsarr, v Delma Eng'g Corp., 1988], lv de.1ied 73 NY2d 783 254 [1st Dept 2005], 139 AD2d 292, [1988]). Hence, 296 [1st Dept those without a possessory interest or control over the property may be not held liable to those injured on that property (see Lopez v Allied Amusement Shows, Inc., 83 AD3d 519, 519 [1st Dept 2011]). 157504/2013 DIAZ-PASCALL, AMANDA vs. PEREIRA, JOHNS Motion No. 005 14 of 23 Page 14 of 23 [*FILED: 15] NEW YORK COUNTY CLERK 10/17/2019 04:13 PM INDEX NO. 157504/2013 NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/17/2019 The court finds that Irgang has met its burden on summary judgment. First, the documentary and testimonial evidence establishes that IG, Mark and Jay did not own the subject Building, and that the owner, 77-79 LLC, was contractually obligated to maintain the public areas. Second, to impose liability upon a managing agent, the managing agent must exercise "complete and exclusive control of the demised space" (Howard v Alexandra Rest., 84 AD3d 498, 499 [1st Dept 2011] come forward exclusive [collecting cases]). evidence use and showing control In this instance, Irgang has that or IG did entirely responsibility to maintain the Building Melville Snow Contrs., 98 NY2d 136, not exercise displace 77-79 such LLC's (see generally Espinal v 140 [2002] [discussing the three occasions where a contractor assumed a duty of care to third persons]). Next, Mark and Jay have demonstrated that they cannot be held personally liable 375 [1st Det=:t (see Hakim v 65 Eighth Ave., LLC, 2007] [concluding that there was 42 AD3d 374, no basis for imposing personal liability upon the principal of the managing agent nonfeasance"]), for "mere as "[t]he law permits the incorporation of a business for the very purpose of enabling its proprietors to escape personal liability" 18 NY 2 d 414 , 41 7 [ 19 6 6] ) . (Walkovszky v Carlton, Plaintiffs have not raised a triable issue of fact based on an alter ego theory of liability, discussed 157504/2013 DIAZ-PASCALL, AMANDA vs. PEREIRA, JOHNS Motion No. 005 15 of 23 Page 15 of 23 [*FILED: 16] NEW YORK COUNTY CLERK 10/17/2019 04:13 PM INDEX NO. 157504/2013 NYSCEF DOC. NO. 237 infra. RECEIVED NYSCEF: 10/17/2019 Thus, that part of Irgang's motion for summary judgment dismissing the complaint and the cross claims against IG, Mark and Jay shall be granted. In view of the foregoing, the court need to consider the alternative request for a preclusion order. B. Acacia's Cross Motion for Summary Judgment Acacia posits that it is entitled to summary judgment as the evidence demonstrates that it was not negligent because it had no duty to mana9e or maintain the Building's common areas. Acacia also opposes Irgang's motion for a preclusion order because the majority Irgang's of discovery demands directed were to plaintiffs. Plaintiffs argue that Acacia possessed a common-law duty to maintain the Building as an agent of the owner or the IG because Acacia's empl.Jyees were tasked with forwarding resident complaints about maintenance issues to the owner or IG. The court finds that Acacia entitlement to summary judgment. has also demonstrated its Pursuant to the terms of the MOU, Acacia was not responsible for maintaining the public areas of the Building. contractual duty Thus, under Acacia the MOU. could While not have tenants or breached a lessees of property are subject to a common-law duty keep the demised premises in reasonably safe condition (see Williams v Esor Realty Co., 117 AD3d 480, 480 [1st Dept 2014]), as noted above, the public areas of the Building did not form part of the demised premises. 157504/2013 DIAZ·PASCALL, AMANDA vs. PEREIRA, JOHNS Motion No. 005 16 of 23 Since Page 16 of 23 [*FILED: 17] NEW YORK COUNTY CLERK 10/17/2019 04:13 PM INDEX NO. 157504/2013 NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/17/2019 Acacia had no right to control those areas, which included the area where the accident occurred, it did not owe plaintiffs a duty of reasonable care (see Haberman v Kids "R" Us, 187 AD2d 187, 190 [1st Dept 1993]). Additionally, plaintiffs fail to come forward evidence to support an agency theory of liability. with Generally, an agent may bind a principal by way of actual authority, actual authori~y, any implied With regards to actual or apparent authority. authority, "the scope of an agent's actual authority is determined by the intention of the principal or, at least, by the manifestation of that intention to the agent" (Wen Kroy Realty Co. v Public Natl. Bank & Trust Co., 260 NY 84, 89 [1932]). Implied actual authority depends upon a principal's verbal or other actions to the agent "which reasonably give an appearance of authority to conduct the transaction" [1980]). (see Greene v Hellman, 51 NY2d 197, 204 Apparent authority turns on the "words or conduct of the principal, ccrrununicated to a third party, that give rise to the appearance and belief that the agent possesses authority to enter into a transaction" (Hallock v State of New York, 64 NY2d 224, 231 [1984]). Nevertheless, an "alleged agent cannot, by his own acts, imbue himself with such authority" (Wood v William Carter Co., 273 AD2d 7, 7 [1st Dept 2 000 J [collecting cases] ) . Testimony that Acacia received complaints about the Building from its residents 157504/2013 DIAZ-PASCALL, AMANDA vs. PEREIRA, JOHNS Motion No. 005 17 of 23 Page 17 of 23 [*FILED: 18] NEW YORK COUNTY CLERK 10/17/2019 04:13 PM INDEX NO. 157504/2013 NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/17/2019 fails to esta~lish that Acacia acted as the agent for 77-79 LLC or Irgang, or that Acacia assumed a duty of care. The cases plaintiffs cite are inapposite. Skerritt v Jarrett Constr. slipped sawdust on that Co. had The plaintiff in (224 AD2d 299 been left in [1st the Dept 1996]) stairwell contractor retained by a second-floor tenant (id. at 300). by a While the landlord was responsible under the tenant's lease to maintain the common areas, such as the stairway, the Court denied the summary judgment motion filed by the tenant and the contractor because the tenant and its contractor had created the allegedly dangerous cor_di ti on (id. ) . In McNelis v Doubleday Sports ( 191 AD2d 619 [2d Dept 1993]), the Court denied the defendant tenant's motion for summary judgment because the tenant in possession of a leased premises may be liable for injuries sustained thereon (id. at 619) . Here, plaintiffs produced no evidence showing that Acacia created the condition that caused Amanda to fall or that Acacia exclusively discussed possessed earlier, demised premises the under the public public the areas areas MOU. did at not the Building. form part Consequently, Acacia's As of the cross motion for surrmary judgment dismissing the complaint and the cross claims asserted against it is granted. C. Plaintiffs' Cross Motion to Amend the Complaint Plaintiffs cross-move for leave to serve an amended summons and complaint to allege that IG, Mark and Jay doing business as 157504/2013 DIAZ-PASCALL, AMANDA vs. PEREIRA, JOHNS Motion No. 005 18 of 23 Page 18 of 23 [*FILED: 19] NEW YORK COUNTY CLERK 10/17/2019 04:13 PM INDEX NO. 157504/2013 NYSCEF DOC. NO. 237 77-79 E. RECEIVED NYSCEF: 10/17/2019 125th LLC, 125th Street, LLC, also known as 77-79 East 125th and 77-79 E. are alter egos and instrumentalities of each other, and to pierce the corporate veil and hold IG, Mark and Jay doing business as 77-79 E. 125th LLC, also known as 77-79 East 125th and 77-79 E. 125th Street, LLC, liable (NYSCEF Doc No. 182, affirmation of plaintiffs' counsel, exhibit J, Irgang 4 8) . '11 argues that the statute of limitations has run on the claim and that plaintiffs delayed moving for the amendment for four years after they learned the identity of the owner, Moreover, record. pleaded that identity of the Building's owner. The 77-79 LLC, was always a matter of public in its plaintiffs seventh had affirmative failed to join a defense, necessary Irgang party (NYSCEF Doc No. 132, affirmation of Irgang's counsel, exhibit 3, '11 16) . In response, plaintiffs claim that Mark intentionally or mistakenly gave false testimony when he stated that the Building was owned by 77-79 Street LLC. Because determined that 77-79 LLC exists, plaintiffs have now they state that they "have or will file suit" against 77-79 LLC and that the claims relate back to those against the defendants in the present action (NYSCEF Doc No. 233, reply affirmation of plaintiffs' counsel, It is well settled that a motion for leave '11 7). to amend the pleadings shculd be freely granted unless there is prejudice or surprise from the delay or if the amendment is "palpably insufficient or patently devoid of merit" (see JPMorgan Chase Bank, 157504/2013 DIAZ-PASCALL, AMANDA vs. PEREIRA, JOHNS Motion No. 005 19 of 23 Page 19 of 23 [*FILED: 20] NEW YORK COUNTY CLERK 10/17/2019 04:13 PM NYSCEF DOC. NO. 237 N.A. RECEIVED NYSCEF: 10/17/2019 v Low Cost Bearings NY Inc., 2013], INDEX NO. 157504/2013 quoting MBIA Ins. 499, 500 [1st Dept 2010]). Corp. 107 AD3d 643, 644 v Greystone & Co., [1st Inc., Dept 74 AD3d The court must examine the sufficiency of the merits of the proposed amendment and is not required to accept plaintiff's allegations as true (see Bag Bag v Alcobi, 129 AD3d 649, 649 [1st Dept 2015]). The party moving to amend the pleadings need not prove the facts (see Daniels v 7Empire-Orr, Inc., 1989]), 151 AD2d 370, 371 [1st Dept but must tender an affidavit of merit or an offer of evidence similar·to that used to support a motion for summary judgment (see Matthews v City of New York, 138 AD3d 507, 508 [1st Dept 2016]). The party opposing the motion bears a heavy burden of showing prejudice (see McGhee v Odell, 96 AD3d 449, 450 [1st Dept 2012]) or demonstrating that the facts as alleg·ed are unreliable or insufficient to support the motion (see Peach Parking Corp. v 346 W. 40th St., LLC, 42 AD3d 82, 86 [1st Dept 2007], citing Daniels, 151 AD3d at 371]) Alter ego liability is "[a]kin to piercing the corporate veil to 'prevent fraud or achieve equity'" Corp., 92 NY2d 335, 339 [1998], ( TNS Holdings v MKI Sec. quoting International Aircraft Trading Co. v Manufacturers Trust Co., 297 NY 285, 292 [1948]). A plaintiff pursuing this theory must allege "'complete domination of the corporation and . in respect to the transaction attacked' 'that such domination was used to commit a fraud or wrong against the plaintiff which resulted in plaintiff's injury'" (Baby 157504/2013 DIAZ-PASCALL, AMANDA vs. PEREIRA, JOHNS Motion No. 005 20 of 23 Page 20 of 23 [*FILED: 21] NEW YORK COUNTY CLERK 10/17/2019 04:13 PM INDEX NO. 157504/2013 NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/17/2019 Phat Holding Co., LLC v Kellwood Co., 123 AD3d 405, 407 [1st Dept 2014], & quotin~ Fin., Matter of Morris v New York State Dept. of Taxation 82 NY2d 135, 141 The issue of control may be [1993]). determined by the following factors: "[D]isregard of corporate formalities; inadequate capitalization; intermingling of funds; overlap in ownership, officers, directors and personnel; common office space or telephone numbers; the degree of discretion demonstrated by the alleged dominated corporation; whether the corporations are treated as independent profit centers; and the payment or guarantee of the corporation's debts by the dominating entity" (Tap Holdings, LLC v Orix Fin. Corp., 109 AD3d 167, 174 [1st Dept 2013], [1st quoting TNS Holdings v MKI Sec. Corp., Dept 1997], rev on other grounds 92 243 AD2d 297, NY2d 335 300 [1998]). Evidence of domination alone, though, is insufficient "without an additional showing that it led to inequity, (TNS Holdings, 92 NY2d at 339). fraud, malfeasance" The plaintiff must demonstrate that the defendant took steps to render the corporation judgment proof or insolvent against'" [2012], it '.James so as "'to perpetrate a wrong or injustice v Loran Realty v Corp., quotin:;i- Matter of Morris, 20 NY3d 82 NY2d at 142), defendant treated the business as "a 'dummy' 918, 919 or that the for its individual stockholders who are in reality carrying on the business in their personal capacities for purely personal rather than corporate ends" (Walkovszky v Carlton, 18 NY2d 414, 418 [1966]). 157504/2013 DIAZ-PABCALL, AMANDA vs. PEREIRA, JOHNS Motion No. 005 21 of 23 Page 21of23 [*FILED: 22] NEW YORK COUNTY CLERK 10/17/2019 04:13 PM NYSCEF DOC. NO. 237 INDEX NO. 157504/2013 RECEIVED NYSCEF: 10/17/2019 A review of the proposed amended complaint (NYSCEF Doc No. 182, affirmation of plaintiffs' counsel, exhibit J) reveals that it is filled with wholly conclusory allegations unsupported by specific facts sufficient to infer that IG, Mark or Jay dominated or controlled enterprise and that 77-79 (~e IG, LLC such that they operated as a single Shisgal v Brown, 21 AD3d 845, 849 [1st Dept 2005]), Mark or Jay abused the corporate form so as to perpetrate a wrong or injustice upon plaintiffs (see Tap Holdings, LLC, 109 AD3d at Rather, 175). plaintiffs merely recite the elements necessary to pierce the corporate veil "upon information and belief," which is plainly insufficient (501 Fifth Ave Co. LLC v Alvona, LLC., 110 AD3d quotation marks omitted]). 494, 494 [1st Dept 2013] [internal Moreover, Mark's allegedly misleading testimony tock place in April 2014, and, presumably, plaintiffs would have determined at that time, or shortly thereafter, that the entity Mark had identified as the Building's owner did not exist. Nevertheless, plaintiffs waited an additional four years before seeking to assert an alter ego theory of liability. plaintiffs' notion for leave to amend the complaint Thus, shall be denied. D. The Action Against Pereira CPLR 3215 (c) provides that the court may dismiss a complaint as abandoned w~ere a default has occurred, and the plaintiff has not taken proceedings to enter a judgment within one year of the 157504/2013 DIAZ-PASCALL, AMANDA vs. PEREIRA, JOHNS Motion No. 005 22 of 23 Page 22 of 23 [*FILED: 23] NEW YORK COUNTY CLERK 10/17/2019 04:13 PM INDEX NO. 157504/2013 NYSCEF DOC. NO. 237 default. never RECEIVED NYSCEF: 10/17/2019 Pereira has not answered the complaint, moved for a default judgment against and plaintiffs Thus, him. the complaint against Pereira is dismissed as abandoned (see Pantovic v YL Realty, Inc., 117 AD3d 538, 539 [1st Dept 2014]). E. Amending the Caption The court shall amend the caption to correct the error in its order consolidating this action to reflect Mark's inclusion as a named defendant. J( ~-1 10/16/2019 DATE CHECK ONE: CASE DISPOSED APPLICATION: SETTLE ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN GRANTED D DENIED 157504/2013 DIAZ-PASCALL, AMANDA vs. PEREIRA, JOHNS Motion No. 005 23 of 23 • J A -:itk Q D D -j OTHER REFERENCE Page 23 of 23

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