Kelley v Washington Ave. Lofts

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Kelley v Washington Ave. Lofts 2020 NY Slip Op 35336(U) September 30, 2020 Supreme Court, Westchester County Docket Number: Index No. 60391/2018 Judge: Sam D. Walker 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: WESTCHESTER COUNTY CLERK 10/09/2020 04:21 PM NYSCEF DOC. NO. 43 INDEX NO. 60391/2018 RECEIVED NYSCEF: 10/09/2020 To commence commence the the statutory statutory time time for for appeals appeals as of of right right (CPLR 5513[a]), 5513[a]), you you are advised advised to to serve serve a copy copy of of this this order, order, with with notice notice of of entry, entry, upon upon all parties. parties. SUPREME SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK YORK COUNTY COUNTY OF WESTCHESTER WESTCHESTER PRESENT: HON. HON. SAM SAM D. WALKER, WALKER, J.S.C. J.S.C. PRESENT: --------------------------------x ------------------------------------------------------------------------------x TIMOTHY TIMOTHY KELLEY, KELLEY, ROSEMARY ROSEMARY KELLEY, KELLEY, Plaintiffs, Plaintiffs, -against-against- Decision & Order Order Decision Index Index No. 60391/2018 60391/2018 Seq# Seq # 1 WASHINGTON WASHINGTON AVENUE AVENUE LOFTS, LOFTS, INSITE INSITE ENGINEERING ENGINEERING SURVEYING LANDSCAPE ARCHITECTURE, P.C., SURVEYING LANDSCAPE ARCHITECTURE, P.C., GALLIN BEELER DESIGN GALLIN BEELER DESIGN STUDIO, STUDIO, TECH TECH FALL FALL DEVELOPMENT LLC, ALEX PROJECT DEVELOPMENT ALEX TORRES, TORRES, PROJECT MANAGER, MANAGER, Defendants. Defendants. -------------------------------------------------x --------------------------------------------------------------------------------------x The following following papers papers were were read on a motion motion by the defendant, defendant, lnsite Insite Engineering Engineering The Surveying Landscape Landscape Architecture, P.C. ("lnsite") for for an order order granting granting summary summary judgment, judgment, Surveying Architecture, P .C. ("lnsite") dismissing dismissing all claims claims asserted asserted against against it pursuant pursuant to CPLR CPLR 3212: 3212: Notice Notice of of Motion/Affirmation/Exhibits Motion/Affirmation/Exhibits A-H Memorandum Memorandum of Law in Support Support Affirmations Affirmations & Affidavit Affidavit in Opposition/Exhibits Opposition/Exhibits 1-3 Memorandum Memorandum of Law in Opposition Opposition Affirmation Affirmation in Opposition/Exhibit Opposition/Exhibit A Reply Reply Affirmations Affirmations and Affidavits Affidavits The The plaintiffs, plaintiffs, Timothy Timothy Kelley Kelley and Rosemary Rosemary Kelley Kelley (the"plaintiffs/Kelleys"), (the"plaintiffs/Kelleys"), commenced commenced this this action action on July July 6, 2018, 2018, by filing filing a summons summons and complaint complaint against against the defendants, defendants, alleging alleging property property damage damage caused caused by the the negligent negligent removal removal of of four four trees trees from from plaintiffs' property property during during the course course of of a construction construction project. project. the plaintiffs' The complaint complaint specifically specifically alleges alleges that that on or about about April 2017, the defendants defendants The April 1, 2017, negligently excavated excavated the site in the areas areas of the Kelleys' Kelleys' property, property, causing causing damage damage to negligently trees that that were were specifically specifically to remain remain on the property although, on July 2017, the trees property and although, July 12, 2017, Kelleys were were assured assured that that the trees trees were off limits, on November November 13, 2017, 2017, the defendants defendants Kelleys were off [* 1] 1 of 9 FILED: WESTCHESTER COUNTY CLERK 10/09/2020 04:21 PM NYSCEF DOC. NO. 43 INDEX NO. 60391/2018 RECEIVED NYSCEF: 10/09/2020 negligently negligently destroyed, destroyed, cut and removed removed the trees. trees. The The complaint complaint alleges alleges negligence, negligence, trespass, trespass, conversion, conversion, violation violation of RPAPL RPAPL § S 861, and also also seeks seeks punitive punitive damages. damages. The The defendants, defendants, Gallin Gallin Beeler Beeler Design Design Studio Studio ("Gallin"), ("Gallin"), lnsite, Insite, and Tech Tech Fall Development Avenue Lofts and Tech Development d/b/a d/b/a Washington Washington Avenue Tech Fall Development, Development, LLC ("Tech ("Tech Fall") filed and served served answers answers to the summons summons and complaint, complaint, asserting asserting cross-claims cross-claims against against their their co-defendants co-defendants for contribution, contribution, indemnification, indemnification, and breach breach of the insurance insurance procurement procurement obligations. obligations. lnsite, Insite, the civil engineer, engineer, contracted contracted with Tech Tech Fall, and prepared prepared and submitted submitted plans plans to the the Village Village of Pleasantville Pleasantville (the "Village") "Village") for the the project project located located at 17-45 17-45 Washington Avenue, Pleasantville, which located adjacent adjacent to the plaintiffs' plaintiffs' property. property. Washington Avenue, Pleasantville, which is located Tech Tech Fall is the developer developer for the project project and Gallin, Gallin, is the architect architect for for the project, project, which which mixed use commercial/residential Washington Avenue. Avenue. is a new mixed commercial/residential building, building, located located at 27-45 27 -45 Washington lnsite for summary judgment seeking Insite now now files files a motion motion for summary judgment seeking to dismiss dismiss the the complaint complaint against it, arguing arguing that June 16, 2016 2016 contract contract with Tech included engineering engineering and against that its June Tech Fall included planning services services for forthe project, but excluded excluded surveying surveying services. Insite's project project engineer, engineer, the project, services. lnsite's planning Scott Scott Blakely Blakely ("Blakely"), ("Blakely"), avers avers in his affidavit, affidavit, that that lnsite Insite did not contract contract to supervise supervise nor inspect the means means and methods any construction construction work work at the the project project and did not agree agree inspect methods of any oversee any excavation excavation or tree tree removal project. removal work work at the project. to oversee Insite asserts asserts that that it was provided with a survey survey dated dated August 2016, depicting depicting was provided August 16, 2016, lnsite existing site condition, condition, including including the location location of existing existing trees trees at the site and on March March the existing 15,2017, part of its professional professional services, services, it prepared prepared a set of site drawings drawings to be filed 15, 2017, as part Gallin with with the Town Pleasantville (the "Town"). 'Town"). The The Town's Town's building building inspector, inspector, Robert Robert Town of Pleasantville by Gallin Hughes ("Hughes"), ("Hughes"), testified testified that that he reviewed reviewed lnsite's Insite's drawings drawings and confirmed confirmed that that the Hughes trees that that were were removed removed were were not marked marked with indicating that that they they were were not trees with an. "X" indicating contemplated to be removed. removed. Hughes Hughes further further testified testified that that it was was understood understood from from lnsite's Insite's contemplated approved site plan drawings drawings that that the trees trees at issue, issue, were were not designated designated for for removal removal and approved such was communicated to the plaintiffs plaintiffs in an email. email. lnsite Insite contends contends that that the plaintiffs' plaintiffs' was communicated such allegations in the complaint complaint and verified verified particulars particulars agree agree with affidavit of Scott Scott Blakely Blakely allegations with the affidavit ("Blakely"), lnsite's Insite's employee, employee, who who visited visited the site in 2019. 2019. ("Blakely"), 2 [* 2] 2 of 9 FILED: WESTCHESTER COUNTY CLERK 10/09/2020 04:21 PM NYSCEF DOC. NO. 43 INDEX NO. 60391/2018 RECEIVED NYSCEF: 10/09/2020 2017, July 12, 2017, April 1, 2017, Insite argues that it was 2017, July involved in the April not involved was not argues that lnsite the plaintiffs. Novemberr 13, 2017 events and therefore, liable to the plaintiffs. lnsite Insite did cannot be liable therefore, cannot 2017 events Novembe nor nor not not construction onsite construction contract perform excavation project and did not not have have onsite the project for the excavation for contract to perform was administration responsibility Further, as per per Blakely, Blakely, lnsite Insite was excavation. Further, any excavation. overseeing any ility overseeing administration responsib took place. excavation took alleged excavation not on site on April 2017, when place. the alleged when the April 1, 2017, which the Hughes also testified testified that July 12, 2017 2017 planning planning meeting, meeting, in which was a July there was that there Hughes were to remain, that were the trees plaintiffs had discussion discussion with concerningg the trees that remain, per per developer concernin the developer with the plaintiffs Tech of Tech Torres of Alex Torres Tech Falls, Alex of Tech Vito Errico the approved plans. plans. The plaintiffs allege Errico of that Vito allege that The plaintiffs the approved trees that the trees the plaintiff assured the Fall, and the project Warren Schloat, assured plaintiff that Warren Schloat, the project owner of the former owner the former Fall, lnsite made that Insite were off limit. lnsite Insite contends contends that, there indication that made any any there is no indication were off was not lnsite was that Insite representations plaintiffs and both Blakely confirm confirm that not Hughes and Blakely both Hughes the plaintiffs tions to the representa present at the the planning planning meeting. meeting. present that on Novembe alleges that Insite next next asserts asserts that, that, although although the bill of particulars alleges November r 13, of particulars lnsite owned the property adjacent to the 2017, removed the trees property owned trees on and adjacent cut and removed defendant s cut the defendants 2017, the tree removal by the plaintiffs, lnsite Insite did not perform perform excavation excavation nor tree removal and did not enter enter onto onto the plaintiffs, by trespass plaintiffs' trespass the plaintiffs' for the the plaintiffs' premises premises and therefore, therefore, cannot liable for cannot be liable the plaintiffs' liable under claim/conversion claim and cannot cannot be liable under RPAPL RPAPL 861. ersion claim claim/conv than the other than other party any other with any Blakely avers avers that that lnsite Insite did not contract party other contract with Blakely agreemen t with the agreement for Gallin. developer not agree procure insurance insurance for Gallin. Further, Further, the agree to procure developer and did not and other party of any other the benefit for the Tech require lnsite Insite to procure procure insurance insurance for benefit of party and Tech Fall did not require ent obligation therefore, claims for breach of the insurance procurem procurement obligation must must be be the insurance for breach the claims therefore, the lnsite and the developer provides dismissed. . lnsite Insite argues argues that the developer provides for for Insite the agreement with the that its agreement dismissed caused by the developer to indemnify indemnify each each other other to the extent extent caused the willful willful miscondu misconductct or or developer and conduct and such conduct of such there is no evidence negligent acts, errors errors or omissions omissions and since since there evidence of negligent contractual for contractual cross-claims for the cross-claims of lnsite, there negligencee on the part of Insite, the the part of negligenc evidence of there is no evidence ation must indemnification common law contributio contributionn and indemnific indemnification must also also be be for common ation and for indemnific dismissed. . dismissed of fact questions of exists viable there exists that there Tech Fall opposes opposes Insite's motion arguing arguing that viable questions fact lnsite's motion Tech the trees that the warranting denial denial of of the motion. motion. Tech Tech Fall's Fall's attorney avers that trees in question question were were attorney avers warranting a was a area, was the area, of the surface of the surface at the the very very rear rear of of the property property being being developed below the developed and below at 3 [* 3] 3 of 9 FILED: WESTCHESTER COUNTY CLERK 10/09/2020 04:21 PM NYSCEF DOC. NO. 43 INDEX NO. 60391/2018 RECEIVED NYSCEF: 10/09/2020 the necessary sophisticated subterranea subterraneann drainage drainage system, system, with attaching attaching pipes, pipes, and the necessary sophisticated excavation for for the drainage drainage system system led to an emergency emergency situation situation in which which the trees trees at excavation and/or and injuring down and falling down issue began began to tremble imminent potential potential of falling injuring persons persons and/or tremble with imminent issue property. property. Tech Fall argues argues that that further further discovery discovery is warranted warranted and therefore, therefore, the motion motion Tech the deposition and the architect's deposition the architect's since the should prejudice to renew, renew, since without prejudice denied without should be denied that attorney asserts take place. depositions of of every every party party to the have yet place. The The attorney asserts that yet to take the suit, have depositions job called Hughes testified testified that that the initial site plan for called for for the retention retention of the subject subject for the job the initial Hughes of the size of depth and size the depth for the excavation for the excavation of the trees, but he had not not realized realized the extent of the extent trees, but the which necessarily subterraneann drainage drainage system system that required, which necessarily affected affected the Village required, the Village that the subterranea trees were structural integrity integrity of of the trees trees and in hindsight, hindsight, the trees were required required to be removed, removed, so structural system. drainage system. the drainage for the specifications for that Village's specifications the Village's with the compliance with was compliance there was that there drainage for storm Hughes also also testified architects and engineers engineers must must account account for storm drainage that architects testified that Hughes in preparing preparing their their site site drawings drawings and that changes during during the construction construction phases phases often often that field changes that asserts that Tech Fall asserts drawings and plans. require changes not contemplated plans. Tech original drawings contemplated in the original changes not require architectural plans plans should should have have taken taken into consideratio considerationn the the fact fact that that the subterranea subterraneann the architectural therewith, would connection therewith, drainage system, system, as required required by the Village, Village, and excavation excavation in connection would drainage the plans that the trees in question the trees necessarily affect question and that plans should should stability of the structural stability the structural affect the necessarily have been have called called for for the boundaries boundaries of of the parking lot to have been moved moved inward, inward, with a shorter shorter the parking have the landscaping the parking depth, so that correspondingg retaining retaining wall behind the parking lot, the landscaping wall behind that the correspondin depth, that area, could was located that was above the retaining wall, and the drainage system located below below that could system that the drainage the retaining above have been been installed installed and constructed constructed a few few feet feet closer closer to Washington Washington Avenue Avenue and have structural the structural that the trees, so that subject trees, the subject from the correspondingly, away from further away feet further few feet gly, a few correspondin integrity of of the have been been affected. affected. would not have trees would the trees integrity The Kelleys, Kelleys, by their their attorney, attorney, also also oppose oppose the the motion, motion, arguing arguing that that the the motion motion is The evidence to admissible evidence premature and in the insufficient admissible there is insufficient discovery, there absence of discovery, the absence premature there are genuine that, there support the motion as a matter matter of of law. The attorney argues argues that, genuine issues issues The attorney the motion support material facts facts as to the role of Insite in the tree removal removal that that occurred occurred contrary contrary to the the tree of lnsite of material concerned. approved plan and contrary understandingg of all parties parties concerned. the understandin contrary to the approved 4 [* 4] 4 of 9 FILED: WESTCHESTER COUNTY CLERK 10/09/2020 04:21 PM NYSCEF DOC. NO. 43 INDEX NO. 60391/2018 RECEIVED NYSCEF: 10/09/2020 the motion Lastly, Gallin Gallin opposes motion, arguing arguing that motion is premature, premature, due due to the that the opposes the motion, Lastly, for the minimal discovery discovery that that has been been conducted conducted and the the basis basis for the plaintiffs' plaintiffs' claims, claims, and/or and/or minimal discovery process. the discovery through the out through allegations need to be flushed process. flushed out cross-claims, need the cross-claims, allegations and the develop Gallin's Gallin contends been no discovery properly develop Gallin's discovery so as to properly there has been that there contends that Gallin defenses to the allegations allegations asserted. asserted. Gallin Gallin further contends that that the claims claims asserted asserted further contends defenses the mixed design the architect to design against merit, since Gallin was retained as architect mixed was retained since Gallin of merit, devoid of against it are devoid the for the use building building which, pursuant to Gallin's Gallin's contract, contract, excluded excluded Gallin's Gallin's responsibility responsibility for which, pursuant omissions acts or omissions construction means, means, methods, methods, techniques, techniques, sequences sequences or procedures procedures and acts construction accordance with work in accordance the work carry out the of the contractors to carry the contractors of the failure of contractors and failure the contractors the contract documents. documents. the contract of the roles of the respective Gallin asserts that seems to be confusion respective roles confusion as to the there seems that there Gallin asserts wherein named defendants, Fall's opposition lnsite's motion, motion, wherein opposition to lnsite's Tech Fall's from Tech evident from which is evident defendants, which named counsel repeatedly repeatedly refers refers to lnsite lnsite as the architect and references references architectural architectural plans plans as the architect counsel extent what extent unknown if or to what point, it is unknown opposed to site plans. plans. Gallin this point, that at this contends that Gallin contends opposed system drainage system subterranean drainage the subterranean of the Insite involvement with installation of design or installation the design with the site had involvement In and/or the depth and extent extent of of the subterranean excavation excavation and installation installation required. required. the subterranean the depth and/or should motion should that its motion In reply Insite proffers proffers that oppositions, lnsite Gallin's oppositions, Tech Fall and Gallin's reply to Tech for the drawings do not that lnsite's be granted because Tech Insite's drawings not call for dispute that does not dispute Tech Fall does granted because removal of of the trees in question question and further acknowledgess it did not inform inform lnsite Insite prior prior to further acknowledge the trees removal reference does not reference Tech Fall does drawings; Tech the Insite's drawings; for in lnsite's called for trees, as called any trees, removal of any the removal speculation Tech Fall's any provision that lnsite has allegedly breached; and Tech Fall's speculation allegedly breached; that lnsite contractual provision any contractual that lnsite's design design was deficient, is not supported supported by any any evidence evidence in admissible admissible form, was deficient, that lnsite's the from the deviated from services deviated including an expert lnsite's professional professional services that lnsite's averring that affidavit, averring expert affidavit, including damage. the property of the standard care and that proximate cause cause of property damage. the proximate was the deviation was the deviation that the of care standard of lnsite contends contends that, other other than than claiming claiming that that additional additional discovery discovery is required required under under CPLR CPLR lnsite denial of the denial warrants the discovery warrants 3212, not stated outstanding discovery specific outstanding what specific stated what Tech Fall has not 3212, Tech lnsite's motion. motion. lnsite's With regard to Gallin, Gallin, lnsite lnsite states states that that Gallin Gallin acknowledge acknowledges s that that lnsite's lnsite's drawings drawings With regard argument and Tech Fall's adopts Tech simply adopts call for removed and simply Fall's argument trees not to be removed subject trees the subject for the 5 [* 5] 5 of 9 FILED: WESTCHESTER COUNTY CLERK 10/09/2020 04:21 PM NYSCEF DOC. NO. 43 INDEX NO. 60391/2018 RECEIVED NYSCEF: 10/09/2020 alleges that lnsite's without detailing detailing what what additional additional discovery discovery would would alleges that Insite's motion motion is premature, premat.ure, without provide for opposition. opposition. provide the grounds grounds for In reply to the plaintiffs' opposition, lnsite argues that that the plaintiffs dispute plaintiffs' opposition, Insite argues plaintiffs do not dispute for the removal the subject subject trees; trees; they they have not that that lnsite's Insite's drawings drawings do not call for removal of the provided that lnsite's were physically provided any evidence evidence that Insite's personnel personnel were physically involved involved in the removal removal of the trees; any evidence evidence that that Insite's lnsite's professional professional trees; and the plaintiffs plaintiffs have have not provided provided any care and that that the deviation deviation was was the proximate cause services from the standard services deviated deviated from standard of care proximate cause of the property property damage. damage. Discussion Discussion It is well established that summary summary judgment judgment should should be granted granted when when there there is no established that triable issues Rotuba Extruders, Extruders, Inc. v Ceppos, doubt doubt as to the absence absence of triable issues (see Rotuba Ceppos, 46 NY2d 223 [1978]). The proponent summary judgment judgment motion tender evidentiary evidentiary proof [1978]). The proponent of a summary motion must must tender proof in admissible form eliminating fact from from the case case (see Zuckerman Zuckerman v admissible form eliminating any material material issue issue of fact City succeeds, the burden shifts to the City of of New New York, 49 NY2d 557 [1980]). [1980]). If the proponent proponent succeeds, burden shifts party who then then must show the existence existence of material fact by party opposing opposing the motion, motion, who must show material issues issues of fact producing admissible form, form, in support support of its position producing evidentiary evidentiary proof proofinin admissible position (see (see Id.). Negligence Negligence claim, the plaintiff establish: (1) the the existence existence of a To prevail prevail on a negligence negligence claim, plaintiff must must establish: such duty; (3) and that that the the breach breach of the duty duty duty duty owed owed to the plaintiff; plaintiff; (2) the breach breach of such was of the injury Engelhart v County of Orange, AD3d was the proximate proximate cause cause ofthe injury incurred incurred (see Engelhart County of Orange, 16 AD 3d 369 [2005]). [2005]). overseeing excavation excavation and removal Here, lnsite that it was not involved Insite argues argues that involved in overseeing removal of the subject there has been no discovery discovery in the case case and there there are issues subject trees, trees, but there issues of fact for for this the various various defendants defendants and their their respective respective this Court Court with regard regard to the roles of the duties and responsibilities responsibilities on the project. "A party party should duties the project. should be afforded afforded a reasonable reasonable opportunity to conduct conduct discovery prior to the determination motion for for summary summary opportunity discovery prior determination of a motion judgment" Okula v City City of of New New York, 14 147 AD 3d 967 [2d Dept Dept 2017]; 2017]; see see also also Hawana Hawana judgment" (see Okula 7 AD3d Carbuccia, 164 AD3d AD 3d 563 [2d Dept Dept 2018]) 2018]). .. Therefore, Therefore, the the Court Court denies denies that that part part of of the v Carbuccia, motion for for dismissal dismissal of of the the negligence negligence cause cause of of action, action, with with leave leave to renew renew upon upon the motion completion of of discovery. discovery. completion 6 [* 6] 6 of 9 FILED: WESTCHESTER COUNTY CLERK 10/09/2020 04:21 PM NYSCEF DOC. NO. 43 INDEX NO. 60391/2018 RECEIVED NYSCEF: 10/09/2020 Trespass Trespass "Trespass is an intentional intentional entry entry onto onto the land of another another without without justification justification or "Trespass permission" A.D.3d 802, 849 N.Y.S.2d permission" Woodhull Woodhull v. v. Town of of Riverhead, Riverhead, 46 A.D.3d N.Y.S.2d 79 (2d Dept., 2007). "The essence essence of trespass trespass is the the invasion invasion of a person's person's interest interest in the exclusive exclusive 2007). possession AD3d 645 [2d Dept possession of land" land" (Curwin (Curwin v Verizon Verizon Communications Communications (LEG), (LEC) , 35 AD3d Dept 2006]). 2006]). Despite Despite the Court's Court's determination determination as to the negligence negligence claim, claim, it is clear, even even without without discovery, that that lnsite Insite did not take take part in the excavation excavation of the property property and in no way way discovery, intentionally intentionally entered entered upon upon the plaintiffs' plaintiffs' land or interfered interfered with their their interest interest in the exclusive exclusive possession possession of the land. Further, Further, there there is no dispute dispute that that lnsite's Insite's drawings drawings excluded excluded the the Kelleys' trees trees from from demolition. demolition. Therefore, Therefore, there there is no need need for for further further discovery discovery as it Kelleys' pertains to the trespass trespass cause cause of action action against against lnsite Insite and that that part part of the motion motion is pertains granted. granted. Conversion Conversion To establish establish a claim claim for for conversion, conversion, a plaintiff plaintiff must must show show that that the defendant defendant intentionally intentionally and without without authority, authority, assumed assumed or exercised exercised control control over over the plaintiffs' plaintiffs' property (Colavito (Colavito v New New York Organ Organ DonorNetwork, DonorNetwork, Inc., 8 nY3d nY3d 43 [2006]). [2006]). As with the property trespass were not to be part trespass claim, claim, lnsite's Insite's drawings drawings clearly clearly stated stated that that the subject subject trees trees were project and were were not marked marked to be demolished. demolished. Additionally, Insite was present of the project Additionally, lnsite was not present at the site and its scope scope of work work did not include include oversight oversight or supervision. supervision. Therefore, Therefore, there there is no need need for further further discovery discovery with regard to the conversion conversion cause cause of of action action and that that part motion is granted. granted. of the motion RPAPL 861 RPAPL RP APL 861 [1] states RPAPL states in pertinent pertinent part that: If any person, person, without without the consent consent of the owner owner thereof, thereof, cuts, removes, removes, injures injures or destroys, destroys, or causes causes to be cut, removed, removed, injured injured or destroyed, destroyed, any any underwood, tree tree or timber timber on the land of another another ... , and action action may may be underwood, maintained against against such person person for for treble treble the stumpage value value of the tree tree or maintained the stumpage timber or two hundred fifty dollars per tree, or both and for any permanent timber two hundred fifty dollars for any permanent substantial damage damage caused caused to the land or the improvements improvements thereon thereon as and substantial result of such violation violation (NY RPAPL RPAPL 861[1]). 861 [1]). a result 7 [* 7] 7 of 9 FILED: WESTCHESTER COUNTY CLERK 10/09/2020 04:21 PM NYSCEF DOC. NO. 43 INDEX NO. 60391/2018 RECEIVED NYSCEF: 10/09/2020 once again, again, there there is no dispute dispute that that lnsite Insite was was not not involved involved in the the excavation excavation Here, once tree removal-activities removal activities and lnsite Insite did not cut, remove, remove, injure injure nor nor destroy destroy the the subject subject trees trees or tree none of of the co-defendants' co-defendants' or the the plaintiffs' plaintiffs' opposition opposition papers papers have have disputed disputed such such .... and none Insite's drawings drawings did not indicate indicate that that the the subject subject trees trees were were to be removed. removed. Therefore, Therefore, that that lnsite's part of of lnsite's Insite's motion motion is granted. granted. part Cross-Claims Cross-Claims Insite did not contract contract with any any other other party party other other than than the the developer developer and did not lnsite agree to procure procure insurance insurance for for Gallin. Gallin. Further, Further, the the agreement agreement with Tech Tech Fall does does not agree require lnsite Insite to procure procure insurance insurance for for the benefit benefit of of any any other other party. party. Therefore, Therefore, the the crosscrossrequire claims for for breach breach of of the the insurance insurance procurement procurement obligation obligation by all co-defendants co-defendants against against claims Insite, is dismissed. dismissed. lnsite, Insite's agreement agreement with the the developer developer provides provides for for lnsite Insite and the the developer developer to lnsite's indemnify eacheach. other other to the extent extent caused caused by the the willful willful misconduct misconduct or negligent negligent acts, indemnify errors or omissions. omissions. Since Since the the Court Court has not dismissed dismissed the the negligence negligence cause cause of of action, action, it errors dismiss the the contractual contractual nor nor common common law law indemnification indemnification claims claims as to Tech Tech Fall and will not dismiss only the the contractual contractual indemnification indemnification claim claim as to Gallin, Gallin, since since there there was was no such such contract contract only between those those parties. parties. between Accordingly, based based on the foregoing, foregoing, it is Accordingly, ORDEREDthatlnsite's motion is granted granted in part part and denied denied in part; and further ORDEREDthat lnsite's motion and it is further ORDERED that that the the part part of of lnsite's Insite's motion motion seeking seeking dismissal dismissal of of the the causes causes of of action action ORDERED trespass, conversion conversion and violatio!l violation of of RPAPL RPAPL 861, is granted; granted; and it is further further for trespass, ORDERED that that the the plainti~s· plainti~s' causes causes of of action action against against lnsite, Insite, for for trespass, trespass, ORDERED conversion and violation violation of of RPAPL RPAPL 861 are dismissed; dismissed; and it is further further conversion ORDERED that that the the part part of lnsite's Insite's motion motion seeking seeking dismissal dismissal of of the the cause cause of of action action ORDERED negligence, is denied; denied; and it is further further for negligence, ORDERED that that the the part part of the the motion motion seeking seeking dismissal dismissal of of the the cross-claim cross-claim for for ORDERED breach of insurance insurance procurement procurement obligation, obligation, is granted; further breach granted; and it is further ORDERED that that the cross cross claims claims by the other other defendants defendants against against lnsite Insite for for breach breach ORDERED insurance procurement procurement obligation, obligation, are dismissed; of the insurance dismissed; and it is further further 8 8 [* 8] 8 of 9 FILED: WESTCHESTER COUNTY CLERK 10/09/2020 04:21 PM NYSCEF DOC. NO. 43 INDEX NO. 60391/2018 RECEIVED NYSCEF: 10/09/2020 ORDERED that that the part of the motion motion seeking seeking dismissal dismissal of contractual contractual ORDERED indemnification is denied denied as against against Tech Tech Fall and granted granted as against against Gallin; Gallin; and it is indemnification further further ORDERED that that the contractual contractual indemnification indemnification claim claim against against Gallin, Gallin, is dismissed. dismissed. ORDERED ORDERED that that the the part of the motion motion seeking seeking dismissal dismissal of common common law ORDERED indemnification claims, claims, is denied. denied. indemnification The parties parties are directed directed to appear appear before before the Preliminary Preliminary Conference Conference Part on a date date The to be determined. determined. The The foregoing foregoing shall constitute constitute the Decision Decision and Order Order of the Court. Court. Dated: White White Plains, Plains, New York York Dated: September 30, 2020 2020. · September SAM D. WALKER, WALKER, J.S.C. J.S.C. HON. SAM 9 [* 9] 9 of 9

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