Vargas v San Francisco Assoc. LP

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Vargas v San Francisco Assoc. LP 2019 NY Slip Op 33782(U) December 24, 2019 Supreme Court, New York County Docket Number: 160997/2013 Judge: Lucy Billings 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 01/03/2020 09:26 AM NYSCEF DOC. NO. 190 INDEX NO. 160997/2013 RECEIVED NYSCEF: 01/03/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46 --------------------~------~--7-------x CHARLES VARGAS, Index No. 160997/2013 Plaintiff - against - DECISION AND ORDER SAN FRANCISCO ASSOCIATES LIMITED PARTNERSHIP, WAVECREST. MANAGEMENT TEAM LTD., and CENTRAu DEVELOPMENT CORP., Defendants -------~-------------------~---~------x APPEARANCES: For Plaintiff Jesse Micha~l James Roehling Esq.Lerner, Arnold & Winston, LLP 475 Park Avenue South, New York, NY 10016 For Defendants San Francisco Associates Limited Partnership and Wavecrest Management Team Ltd. Michael c, Feinberg Esq. O'ToOle Scrivo Fernandez Weiner Van Lie~, LLC 14 Village Park Road, Ce.dar Grove, NJ 07009 For Defendant Central Development Corp. Howard K. Fishmen _Esq. · · Smith Mazure Director Wilkins Y~ung & Yagerman, P.C. 111 John Street, New York, NY 10038 LUCY BILLINGS, J.s.c,: I . BACKGORUND Plaintiff~ ~ tenant in defendant San Francisco Associates Limited Partnership's residential apartment building at 29 East 104th Street, Ne_w York County, suffered personal injuries August 29, 2013, when a marble slab step on the staircase in the building collapsed underneath him as he descended the staircase. . Defendant Wavecrest Management Team Ltd. managed the building for vargasl219 1 I I 2 of 11 [*FILED: 2] NEW YORK COUNTY CLERK 01/03/2020 09:26 AM NYSCEF DOC. NO. 190 INDEX NO. 160997/2013 RECEIVED NYSCEF: 01/03/2020 San Francisco Associates . . On June 25, 2013, San Central Development Corp. I . . F~ancisco Associates hired defendant (CDC) to renovate the premises, including repiacement of the staircase. As. qf August 20, 2013, howeyer, nine days before plaintiff's injury, CDC had not completed any replacement of the staircase, but had performed work in the stairwell pursuant to CDC's contract with San· Francisco Associates. The extent of that work is the crux of CDC's current motion for summary judgment dismissing plaintiff's claim that CDC's negligent work contribute~ to the stairs' collapse and co-defendants' claims for contribution, noncontractual and contractual indemnification, and breach of a contract to II. procur~ insurance. · C.P.L.R. § 3212(b); CDC'S MOTION FOR SUMMARY JUDGMENT A. Applicable Standards To obtain summary judgment, CDC must make a prima facie showing of entitlement to judgment as a matter of law, thiough admissible evidence eliminating all material issues of fact. Id.; Friends of Thayer Lake LLC v. Brown, 27 N.Y.3d 1.039, 1043 (2016); Nomura Asset Taft LLP, 26 C~pital_Corp. N.Y.3d~40, 22 N-.Y.3d 728i 734 N.Y.3d 499, 503 v. Cadwalader, Wickersham & 49 (2015); Voss v. Netherlands Ins. Co., ' (2014); Vega v. Restani Constr. Corp., 18 (2012). If CDC satisfies this standard; the burden shifts to plaintiff and co-defendants to rebut that prima facie showing, by producing evidence, in a.dmissible form, sufficient to require a trial of material factual issues. I II vargasl219 2 I 3 of 11 De [*FILED: 3] NEW YORK COUNTY CLERK 01/03/2020 09:26 AM NYSCEF DOC. NO. 190 INDEX NO. 160997/2013 RECEIVED NYSCEF: 01/03/2020 Lourdes Torres v. 'Jones, 26-,N.Y.3d 742, 763 (2016); Nomura Asset Capital Corp. v. Cadwalader Wickersham & Taft LLP, 26 N.Y.3d at 49; Morales v. D & A Food Serv., 10 N.Y.3d 911, 913 v. Queens County Bancorp, Inc., 3 N.Y.3d 743, 744 (2008); Hyman (2004). In evaluating the evidence for purposes of CDC's motion, the court construes the evidence in the light most favorable to the opponents. Stonehill Capital Mgt. LLC v. Bank of the W., 28 N.Y.3d 439, 448 (2016); De Lourdes Torres v. Jones, 26 N.Y.3d at 763; William J. Jenack Estate Appraisers & Auctioneers, .Inc. v. Rabizadeh, 22 N.Y.3d.470, 475 (2013); Vega v. Restani Constr. Corp., 18 N.Y.3d at 503. If the moving party fails to meet its initial burden, the court must deny summary judgment despite any insufficiency in the opposition, Voss v. Netherlands Ins. Co.~ 22 N.Y.3d at 734; Vega v. Restani Constr. Corp., 18 N.Y.3d at - - 503; Smalls v. AJI Indus., Inc., 10 N.Y.3d 733, 735 (2008); JMD Holding Corp: v. Congress Fin. Corp., 4 N.Y.3d 373, 384 (2005). B. CDC's. Prima Facie Defense CDC's contract with San Francisco Associates, which the parties stipulate the court may consider authenticated and .· admissible for purposes of CDC's motion, required CDC to abate the lead point on the metal frame of the staircase that held its marble treads and to remove and replace defective components of the stairs, including providing marble for the treads. Sam Wu, CDC's Construction Director in August 2013, testified at his deposition that CDC's work included scraping the old paint off the stairwell walls, where there was no lead paint, and vargas1219 3 4 of 11 [*FILED: 4] NEW YORK COUNTY CLERK 01/03/2020 09:26 AM NYSCEF DOC. NO. 190 INDEX NO. 160997/2013 RECEIVED NYSCEF: 01/03/2020 repainting them, but this work was not specified in the contract. Sam Wu further testified that CDC did not perform any lead paint abatement.on the stairs on o~ before August 29, 2013, because the New York City Department of Housing Preservation and Development (HPD} had not authorized such work. While his explanation why CDC did not perform that work is hearsay, Sam Wu was at tpe work site to observe whether any such work occurred. He admits that in mid-August 2013 CDC workers did scrape old paint from the stairwell walls surroJnding the staircase and stood on the stairs' marble treads to reach the walls and perform that work. The deposition testimony by Zeng Jian Zhong, another CDC employee at the worksite, corroborated Sam Wu's observations. Rebecca Wu, CDC's administrator and bookkeeper, testified at her O.eposition that she was instructed to and did request payment for 50% of the lead paint abatement on the stairs in August 2013, as substantiated by CDC's business records requisitioning payment that she maintained. CDC did not request payment for scraping paint off the stairwell walls. Sam Wu testified that the request was a typographical error, but even if such a substantive discrepancy could be simply a typog~aphical or an otherwise inadvertent error, .Rebecca Wu's conflicting testimony .and her requisition for payment raise a factual issue. Rawls v. Simon, 157 A.D.3d 418, 418-19 (1st Dep't 2018); Pre~ost v. One City Block LLC, 155 A.D.3d 531, 535 (1st Dep't 2017); Smigielski v. Teachers Ins. & Annuity Assn. of Am., 137 A.D.3d 676, 676 (1st Dep't 2016). vargasl219 See Medrano v. Port Auth. of N.Y. & N.J., 154 4 5 of 11 [*FILED: 5] NEW YORK COUNTY CLERK 01/03/2020 09:26 AM NYSCEF DOC. NO. 190 INDEX NO. 160997/2013 RECEIVED NYSCEF: 01/03/2020 A.D.3d 521, 521-22 (1st D~p't 2017); Barba v. Stewart, 137 A.D.3d 704, 705 (1st Dep't 2016); Ellerbe v. Port Auth, of N.Y. & N.J., 91 A.D.3d 441, 442 (1st Dep't 2012). Although CDC also presents a memorandum from HPD refusing the payment because no lead paint abatement was perfor~ed, the memorandum is uncertified, and no witness lays a business record foundation for this document, which is HPD's record, rather than CDC's record. 4518(a); People v. Ramos, 13 N.Y.3d 914, 915 C.P.L.R. § (2010); People v. Bell, 153 A.D.3d 401, 412 (1st Dep't 2017); Wells Fargo Bank, N.A. v. Jones, 139 A.D.3d 520, 521 (1st Dep't 2016); Matter of Ramel Anthony s., 124 A.D.3d 445, 445 (1st Dep't 2015). Finally, CDC presents a second payment requisition indicating no lead paint abatement during the first or second payment periods, but the timing of this ~evis~on shortly after the Stair's collapse and plaintiffis severe injury, as well as the conflict with the requisition before plaintiff's injury, still pose a factual issue. Moreover, in'di~ect contradiction to the deposition testimony by Sam Wu and Zeng Jian Zhong, plaintiff testified at his deposition that he observed Asian Americans scraping paint off the stairs themselves, not simply standing on the stairs to work on the-stairwell walls, using hammers and chisels; every day for two months leading up to his injury. t Evans v. Acosta, 169 A.D.3d 438, 439 (1st Dep't 2019); Rawls v. Simon, 157 A.D.3d at 418-19; Prevost v. One City Block LLC, 155 A.D.3d at 535; Smigielski v. Teachers Ins. & Annuity Assn. of Am., 137 A.D.3d at vargasl219 5 6 of 11 [*FILED: 6] NEW YORK COUNTY CLERK 01/03/2020 09:26 AM NYSCEF DOC. NO. 190 676. INDEX NO. 160997/2013 RECEIVED NYSCEF: 01/03/2020 See Medrano v. Port Auth. of N.Y. & N.J., 154 A.D.3d at 521-22; Barba v. Stewart, 137 A.D.3d at 705; Ellerbe v. Port Auth. of N.Y. & N.J., 91 A.D.3d at 442. its workers were Asian American. CDC does not deny that Nor does any evidence indicate any other contractors were performing work in the building during that period. Sam Wu insists that a photograph of the stair that collapsed under plaintiff, which Wu authenticates, shows the absence of any scraping on the staircase, but does not specify whether·he refers to the structural components that hold up the stairs or whether scraping includes hammering or even chiseling, which plaintiff ob~erved. Assuming CDC hammered and chiseled the staircase frame as· plaintiff recounts, neither he nor co-defendants present any expert opinion that hammering and chiseling the staircase frame weakened it, causing the cracked marble tread held by the frame all to collapse to the extent that plaintiff's leg fell through both the tread and the· frame·. Upon CDC's motion for summary judgment, however, the burden rests on CDC to show that, when it presents plaintiff's observations of such work, that work did not weaken the stairs and contribute to the collapse. CDC's expert I simply concludes that no work CDC performed contributed to the collapse. He does not specify that he considers CDC's work to have included scraping paint.off the stairs, using hammers and chisels every.day for two months. Absent a showing that the expert has considered all the relevant evidence in the record, at least to the extent of explaining why he is disregarding specific vargas1219 6 7 of 11 [*FILED: 7] NEW YORK COUNTY CLERK 01/03/2020 09:26 AM INDEX NO. 160997/2013 NYSCEF DOC. NO. 190 RECEIVED NYSCEF: 01/03/2020 evidence, the court may not in turn consider an opinion that is not based on all the relevant evidence in the record. Reif v. 175 A.D.3d _107, 126-27 (1st Dep't 2019); Halloran v. Kiri, Nf!gy:, 173 A.D.3d 509, 510-11 (1st Dep't 2019); Montilla v. St. Luke'sRoosevelt Hosp., 147 A.D.3d 404, 407 (1st Dep't 2017); Santoni v. Bertelsmann Prop., Inc., 21 A.D.3d 712, 714-15 (1st Dep't 2005). CDC thus fails to establish that CDC's work, including scraping paint off the stairs using hammers and ch.isels every day for two months before plaintiff's injury, to which plaintiff testified, and which reasonably may be inferre~ to have.been by CDC employees, did not contribute to the staircase' S· collapse. Ray v. Apple Sg. LLC, 174 A.D.3d 416, 417 (1st Dep't 2019); DelGuidice v. City of New York, 103 A.D.3d 443, 2013). 405, 406 See Clarke v. American Truck & 44~ (1st Dep't Trailer, Inc., ·171 A.D.3d (1st Dep't 2019); Oldham v. City of New York, 155 A.D.3d 477, 477 (1st Dep't .2017). Therefore the court denies CDC's motion for summary judgment dismissing plaintiff's claims against CDC. C. Co-Defendants' Cross-Claims Since CDC has failed to establish that its work did not negligently contribute to.the st~ircase's collapse and plaintiff's injury, CDC is not entitled to dismissal of codefendants' cross-claims for contribution and Wavecrest Management Team's cross-claim for non-contractual, implied indemnification. Essex St. Corp. v. Tower Ins. Co. of N.Y., 153 A.D.3d 1190, 1197 (1st Dep't 2017); McCulloch v. One Bryant Park, vargas1219 7 8 of 11 [*FILED: 8] NEW YORK COUNTY CLERK 01/03/2020 09:26 AM NYSCEF DOC. NO. 190 INDEX NO. 160997/2013 RECEIVED NYSCEF: 01/03/2020 132 A.D.3d 491, 493 (1st Dep't 2015); Miano v. Battery Place Green LLC, 117 A.D.3d 488, 489 (1st Dep't 2014); DeJesus v. 888 Seventh Ave. LLC, 114 A.D.3d 587, 588 (1st Dep't 2014). Because the court previously determined that San Francisco Associates' negligence caused the staircase's collapse, San Francisco Associates concedes that it may not sustain a claim for noncontractual, implied indemnification and therefore discontinues that cross-claim. See McCarthy v. Turner Constr., Inc., 17 N.Y.3d 369, 377-78 ·(2011); Gardner v. Tishman Constr. \orp., 138 A.D.3d 415, 417 (1st Dep't 2016); Imbriale v. Richter & Ratner Contr. Corp., 103 A.D.3d 478, 480 {1st Dep't 2013); Naughton v. City of New York, 94 A.D.3d 1, 10 (1st Dep't 2013). Wavecrest Management Team concedes the absence of any contract with CDC and therefore discontinues Wavecrest Management Team's cross~claims contract. for contractual indemnification and breach of Canty v. 133 E. 79th St., LLC, 167 A.D.3d 548, 549-50 (1st Dep't 2018); Nicholson v. Sabey Data Ctr. Props., LLC, 160 A.D.3d 587, 587 (1st Dep't 2018); Galue v. Independence 270 Madison LLC, 119 A.D.3d 403, 403 (1st Dep't 2014); Echevarria v. 158th St. Riverside Dr. Hous. Co., Inc., 113 A.D.3d 500, 502 (1st Dep' t 2o14) . The indemnification provision in favor of San Francisco Associates in its contract with CDC requires CDC's negligence, but again, until CDC establishes that its work did not negligently contribute to the staircase's collapse and plaintiff's injury, CDC is not entitled to dismissal of San Francisco Associates' cross-claim for contractual vargasl219 8 9 of 11 [*FILED: 9] NEW YORK COUNTY CLERK 01/03/2020 09:26 AM NYSCEF DOC. NO. 190 INDEX NO. 160997/2013 RECEIVED NYSCEF: 01/03/2020 indemnification. Finally, CDC fails to show either that the ~ contract does not require CDC to procure insurance covering San Francisco Associ~tes or that.CDC in fact procured the required insurance, to entitle CDC to dismissal .of San Franciscb Associates' cross-claim for breach of a contract td procure insurance. Prevost v. One City Block LLC, 155 A.D.3d at 536. See Aramburu v. Midtown 2015) i w. B, LLC, 126 A.D.3d 498, 501 (1st Dep't Arner v. RREEF Am., L.L.C., 121 A.D.3d 450, 451 (1st Dep't 2014); Mathews.v. Bank of Am., 107 A.D.3d 495, 496 (1st Dep't 2013) . III. CONCLUSION Consequently, for all the reasons explained above, the court denies defendant Central De~elopment Corpoiation's motion fdr· summary judgment dismissing plaintiff's claims against Central Development Corp. C.P.L.R~ § 3212(b) . . The court also denies Central Development Corporation's motion for.summary judgment dismissing co-defendants' cross-claims for contribution, defendant Wavecrest Management Team Ltd.'s cross-claim for noncontractual indemnification, and defendant San Francisco 1 Associates Limited Partnership's cross-claims for contractual indemnification and breach of contract. Id. The court grants Central Development Corporation's motion for summary judgment to the extent of discontinuing San Francisco Associates Limited Partn~rship's cross-claim for non-cbntractual indemnification Wavecrest Managment Team vargasl219 Ltd~'s cross-claims for contractual 9 10 of 11 ~nd [*FILED: 10] NEW YORK COUNTY CLERK 01/03/2020 09:26 AM NYSCEF DOC. NO. 190 INDEX NO. 160997/2013 RECEIVED NYSCEF: 01/03/2020 .. indemnification and breach of contract based on these defendants' stipulation. DATED: C.P.L.R. § 3217 (a) (2) and (b). ·December 24, 2019 LUCY BILLINGS, J.S.C. LUCY BILUr~c;.s J.s.~ . I. vargas1219 10 11 of 11 c.

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