Lanza v 1301 Props. Owner, LP

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Lanza v 1301 Props. Owner, LP 2019 NY Slip Op 33432(U) November 20, 2019 Supreme Court, Suffolk County Docket Number: 17289/2015 Judge: Sanford Neil Berland 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. [* 1] INDEX NO.: 17289120 15 PRE~lF. co RT - SPATE OF NEW YORK PART 6- SUFF LK COUNTY PRESENT : Hon. Sanford Neil Berland, A.J.S.C. ORIG. RETURN DATE: September 25. 20 18 FINAL RETURN DATE: January 8. 2019 MOT. SEQ.#: 007-MD GREGORY LANZA. Plaintirf{s) -against- PLAINTIFF'S ATTORNEY: SIBEN & SlBEN, ESQS. 90 East Main Street Bay Shore. Nev.r York 11706 1301 PROPERTIES OWNER. LP. 1301 PROPERTY DEFEN DANTS' ATTORNEYS: OWNER, LLC. CAMERO 1 MITCHELL RESTAURA TS. LLC. CERTIFIED OF N.Y .. INC.. BELLO & LARKIN. ESQS. ROW r\ CO STRUCTION CO .. It C .. and Attorneys for 130 I Properties and Paramount PARAMOUNT GROUP. INC ., Group. Inc. 150 Motor Parkway. Suite 405 Defendant(s). _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ Hauppaugc. Ne"v York 11788 CFRTIFIED OF .Y .. INC .. Third-Party Plaintiff, -against- E ERGY I ' YSTEM .. INC .. Third-Pam, Dc.:fondant. 1301 PROPERTIES OW1 ER. LP. 1301 PROP ERTIES OWNERS. L.L.C. and CAMERON MITCHELL RESTAURA TS, LLC. Second Third-Party Plai1tiffs. -againstENERGY I SYSTEMS. INC .. Second Third-Party Defendant. LITCHFIELD & CAVO LLP Attorneys for Ce11ified of NY. Inc. 420 Lexington Avenue, Suite 2104 New York. New York 10170 CA CO 1£ & KL UEPFEL LLP Allorneys for Energy I Systems, Inc. 1399 Franklin Avenue. Suite 302 Garden City. New York I I 530 STEVE~ E. LOSQUADRO. PC 649 Route 25A, Suite 4 Rocky Point. New York 11778 [* 2] Lan.la v 1301 Properties Owner, LP Index No.: 17289/20 15 Page 2 CERTIFIED OF N.Y., INC. , Second Third-Party Plaintiff, -againstROW AN CONSTRUCTION CORP., a/k/a CONSTRUCTION CO., INC., RO~AN I Second Third-Party Defendant. Upon the reading and filing of the fo llowing papers in this matter: (1) Notice of Motion by defendant/second third-party defendant Rowan Construction Corp., a/k/a Rowan Construction Co., Inc. and supporting papers; and (2) Affirmation in Opposition by plaintiff dated August 30, 2018 and supporting papers, it is ORDERED, that the motion made by defendant/second third-party defendant Rowan Construction Corp., a/k/a Rowan Construction Co., Inc. seeking an Order dismissing plaintiff's complaint against it pursuant to CPLR §§ 32 11 [a][l ] and [a][7], is denied; and it is further ORDERED, that defendant Rowan Construction Co., Inc. shall serve and file an answer within twenty (20) days of the date of entry of this Order; and it is further ORDERED, that counsel for the parties tp this action are directed to appear for a the previously sch eduled pre-trial conference before this Court on Tues day, January 21, 2020 at 9:30 a.m. This action arises out of an accident that occurred on June 4, 20 15, at premises located at 123 West 52 Street in Manhattan, while plaintiff was performing construction work at the premises. Plaintiff alleges that he was exiting a scissor lift at the site when it unexpectedly descended further, entrapping his right foot and causing him to sustain serious physical injury. Plaintiff brought an action against 1301 Properfors Owner LP, Certified ofN.Y., Inc. ("Certified") and a number of other defendants under index number 17289/2015, and several third-party actions were then commenced in that action, including one brought by Certified against Rowan Construction Co., Inc. (Rowan). Plaintiff subsequently brought separate actions directly against Rowan, under index number 60512/20 18, and against Paramount Group, Inc., under index number 610473/2018. Subsequently, all three actions were consolidated under index number 17289/20 15. Plaintiffs complaint against Rowan alleges that plaintiff's injuries were [* 3] Lanza ,. 130 I Properties Owner. LP Index No.: 17289/20 15 Page 3 caused by Rowan's negligence in the performan4e of construction work at the premises and that Rowan violated Labor Law§§ 200, 240 and 241 l61. Rowan has not answered the plaintiff's complaint against it and is now moving to dismifs that complaint against it pursuant to CPLR § 321 I ra J[ 1] and ra1p I on the ground that p lai ntifl has failed to state a cause of act ion against it. ln support of its motion, Rowan proffers inter alia, the plaintiffs original complaint under index number 17289/2015, the affidavits Ar .Joseph Rowan. Jr. and Antonio M. Polisi. an invoice from Rowan addressed to (Certified) and a proposal from Rowan to Certified. Joseph Rowan. Jr., the President of Row~ n, states in his affidavit that Rowan did not at any time exercise any supervision. control or oversight of the construction site project at the subject premises, nor did it have any rdationshiII> with plaintiff. Mr. Rowan states that Rowan 's only role in the subject construction project was to provide paymaster service for certain union laborers at the site at the behest of Certified. the general contraccor of the project. Mr. Ro.,,, an states that Rowan provided payroll st:rvices for l(vo union laborers who worked al the site at · di ffercnt times. pursuant to a leuer agreement with Certified. A copy of the letter agreement is proflcred by Rowan in support of the motion. T,he agreement reads. in pertinent part: "Ro\.van assumes no responsibility on project other than payment of union laborers.'· Antonio Polisi states in an allidavit that he ··solely worked for and answered to Certified" while at the subject construction site. that while working there, his "employer was Certified." that Certified ''directed (his] activities and as a Laborer" and that Certified had engaged Rowan as paymaster in order to pay his payroll. that it "had no involvement wit~ the job site or the construction whatsoever" and that its sole function was to issue paychecks to I1im at Ccrtified's request. Rowan argues, likewi se. that it had no connection with the premises or the project conducted al the premises other than to pL'rform a limited administrative service for Certified. nor did it have any rela1ionship with plnimifT. and 1hat therefore the complain! against it should be dismissed. Plaintiff opposes the motion on the grounds that Rowan played a significantly greater role in the proj~ct than a mere administrative one and that affidavits are not ··documentar) evidence" that can be considered in a motion to dismiss pursuant to CPLR § 3211 [a][ I]. In opposi1ion to the motion. plaintiff proffers. inter a/ia, the depbsition testimony or Donald Waller, Gary Deluca and John Inglese. Donald Waller testified that he is the Director of Construction at Cameron Mitchell Restaurants, the entity that cqmtracted with Ce1ii tied to construct a restaurant at the subject premises. Gary Deluca testified that he is the sole owner of Energy I Systems, Lnc. (Energy I), which had been subcontracted lt'>Y Certified to perform construction work on the ceil ing at the subject premises. De Luco testi fie~ that when he visited the construction site. he interacted with employees of Certified and Rowan. J le testified that he noticed Rowan employees 01: several of his visit~ to the site, o~e or wh~m he s~w wearing~ sweats~irt that .said ··Rov.·an'· on 1t. John Inglese testt-fied that he wus the Vice President and Director ol Operations [* 4] Lanza v 1301 Properties Owner, LP Index 1 o.: 17289/20 15 Page 4 for Certified. He testified that Certified hired Energy l as a subcontractor on the subject construction project and Rowan to do work on 1He project. Inglese ccstified that Rowan pro\·idcd general cleanup laborers to the project. I le testi fied that he saw employees of Rowan using the lifts m the site. I le testitied that Certified hired~ laborer from Rowan named ..Abdullah" and that Rowan sent additional laborers to the projcc . Inglese testified that he interacted with Abdullah approximutcly. 130 times and that he s told by the project su perint<.: ndent that Abdullah was the person who was operating the cis!'>Or lit1 when plaintiff was injured. Inglese testilied that Abuullah was a Un ion 79 laborer ar d that as Certified was not allowed to have their own non-union laborers at the project. Certi lied ired someone from Ro" an . .. [l)n considering a motion to dismiss pursuant to CPLR § 32 l I fa l [71. the court should 'accept the facts as alleged in the complaint as true. accord plaintiffs the benefit of every possible favorable inference. and determine only whether the facts as alleged fit within any cognizable legal theory"' (S i11e11sky v R ok owsky, 22 A.D.31563.564, 802 NYS2d 491 [2d Dept. 2005] quoting Leon v Martin ez, 84 N.Y.2d 83,87-88, 14 NYS2d 972 [ 1994); M igli110 v Bally Total Fitness of Greater N. Y., Jue., 20 NY3d 342, 35 , 961 NYS2d 364 [2013]); S imos v. Vic-A rmen R ealty, LLC, 92 A.D.3d 760, 938 NYS2d 609 l2d Dept. 2012]). However, the movant has come fo rward wi th evidentiary material for the court's consideration. ··When cvidentiary material is considered. the criterion is whether the proponent of the pleading has a cause or 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 fac t at all and unless it can be said that no significant dispute exists regarding it. again dism issal should not eventuate" (Guggenheimer " Gi11zb11rg, 43 NY2d 268. 275, 40 I NYS2<l 182 [ 1977); see "Jo/tu Doe I" v Board of E duc. of Greenport Union Free Seit. Dist. . I 00 AD3<l 703, 705. 955 NYS2d 601287 Ed. Law Rep. 524 r2d Dept 20 12)). Here. chc compl uint agninst the movan1 i. predicated upon a ll cgntio n s that it perfonncd constructi on 'vork at the premises and/or parlici atcd in the direction and supervision of the project. The movan t has provided affidavits denying that they had any involvement with perfonning, supervising or controlling the project. and the plaintiff has proffered deposition testimony that. it contends. controverts Rowan's assertions...An affidavit cannot constitute ..documentary evidence .. for purposes of a motioh pursuant to CPLR § 3211 (a][ I] because its contents can he controverted by other evidence. such as another affidavit .. (Jo!t11 R. H iggett, Practice Commeutaries, M cKin n ey's Con s L rrn!s of NY, CPLR C321 I :I 0, citing J .A. Lee Electric, In c. v Ci(I' of New York , 1 19 AD3d 6st, 990 NYS2d 223 [2d Dept 20 l 4] ; Flowers v 73'd To1v11lw11se, LLC, 99 AD3d 431, 951 NYS1d ~93 [I si Dept 20 121; Lopes v Bain , 82 AD3d 1553. 920 NYS2d 792 !Jd Dept 2011 ]). There lqre, the court is not considering the affidavits submitted by Rowan as evidence for purposes otlthe motion to the extent that motion invokes CPLR § 32 l I (a][l ]. In any event. Rowan has failed to meet its burden or showing that the material facts alleged in the complaint against Rowan are not facts at all. Accordingly, the [* 5] Lanza v 130 I Propert ies Owner, LP Index No.: I 7289/20 15 Page 5 motion to dismiss the complaint aga inst it is denied. The foregoing constitutes the decision andi order of the court. HO ~. SANFORD NEIL BF:RLAND, A ..J.S.C. _ _ FINAL DISPOSITION ___.XX=-=-- NON-FINAL DI SPOSITION

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