Pointer v 111 Pheasant Lane LLC
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Pointer v 111 Pheasant Lane LLC 2020 NY Slip Op 35340(U) December 21, 2020 Supreme Court, Suffolk County Docket Number: Index No. 22/2020 Judge: Joseph A. Santorelli 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. INDEX NO. 000022/2020 FILED: SUFFOLK COUNTY CLERK 12/22/2020 11:01 AM NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 12/22/2020 .ORIGINAL AL INDEX No. 22/2020 22/2020 .INDEX SHORT FORM FORM ORDER ORDER SHORT SUPREME NEW YORK SUPREME COURTCOURT - STATE OF NEW YORK LA.S. PART PART 10 - SUFFOLK SUFFOLK COUNTY COUNTY I.A.S. PRESENT: PRESENT: JOSEPH A. SA:..:CN"--' SANTORELLI Hon. _ __,J:...::O::.c:S=E=P-"-H.::...A:...::.:....•= -='T=O=R=E=L=L=I~ Justice of of the Supreme Supreme Court ·..· Justice MOTION DATE 7-1-2020 7-1-2020 MOTIONDATE SUBMIT DA DATE 10-22-2020 SUBMIT TE 10-22-2020 Mot. Seq. # 1 - MD .~---------------------------------------------------------------x ----------------------------------------X POINTER, as Administratrix Administratrix of of the Estate of of LIGIA POINTER, JAVIERHERIBERTO TORRES, and LIGIA JAVIER HERIBERTO TORRES, POINTER Individually, Individually, POINTER Plaintiff, Plaintiff, -against-against111 PHEASANT PHEASANT LANE LANE LLC and GEORGE GEORGE 111 VICKERS, Jr ENTERPRISES ENTERPRISES INC. and GEORGE GEORGE VICKERS, VICKERS Jr., VICKERS Defendants, Defendants, -------------------------- ---------------------------------------------------------------- GEORGE E. VICKERS VICKERS JR. ENTERPRISES, ENTERPRISES, INC. GEORGE Incorrectly sued herein herein as GEORGE GEORGE VICKERS, VICKERS, Jr Incorrectly ENTERPRISES INC., ENTERPRISES Third-Party Plaintiff, Plaintiff, Third-Party -against-againstCONSTRUCTION & DESIGN DESIGN INC., TROY CONSTRUCTION Third-Party Defendant, Defendant, Third-Party -----------------------------------------111 111 PHEASANT PHEASANT LANE LANE LLC , Second Third-Party Third-Party Plaintiff, Plaintiff, Second -against-againstCONSTRUCTION & DESIGN DESIGN INC., TROY CONSTRUCTION Second Third-Party Third-Party Defendant. Defendant. Second ---------------------------------------------------------------~X --------------------------------------------------~x [* 1] 1 of 5 ALAN R. CHORNE, CHORNE, ESQ. ESQ. ALAN Attorneys for Plaintiff Attorneys/or Plaintiff FIFTH AVE, AVE, STE STE 3010 3010 521 FIFTH NEW YORK, NY !OI75 NY 10175 NEW YORK, CULLEN & DYKMAN, DYKMAN, LLP LLP CULLEN Attorneys Attorneys for for DefendantslThird Defendants/Third Party Party Plaintiff~Plaintif.ft1/1 PHEASANT PHEASANT LANE LLC & GEORGE GEORGE VICKERS VICKERS JR 111 LANE llC JR ENTERPRISES ENTERPRISES INC. JNC. FLOOR WALL ST, 15™ 15TH FLOOR 44 WALL NEW YORK, NY NY 10005 NEW YORK, HA WORTH WORTH BARBER BARBER & GERSTMAN, GERSTMAN, LLC LLC HA Attorneysfor Third-Party Defendaflt-TROY Attorneys for Third-Party Defendal}t-TROY CONSTRUCTION & DESIGN DESIGN CONSTRUCTION BROADWAY, 21 8STT FLOOR FLOOR 45 BROADWAY, NEW YORK, NY I10006 NEW YORK, 0006 FILED: SUFFOLK COUNTY CLERK 12/22/2020 11:01 AM NYSCEF DOC. NO. 59 INDEX NO. 000022/2020 RECEIVED NYSCEF: 12/22/2020 Pointer Pointer v. 111 Pheasant Pheasant Lane Lane LLC, LLC, et al. Index # 22/2020 Index 22/2020 Page Page 2 Upon papers numbered numbered I to _3_I_read _3_l_read on this motion Upon the the following following papers motion for summary summary judgment; judgment ; Notice Notice of of Motion/ Motion/ Order to Show papers I - 13 Notice of Order to Show Cause Cause and and supporting supporting papers 13 ; Notice OfClO~~Motion ~uppotting Answering C1oss Motion and suppo1 ting papel~ papeJS ---> _ _, Answering Affidavits and and supporting supporting papers papers 14 - 24 ;· Replying Replying Affidavits Affidavits and supporting Affidavits supporting papers 8thel --' papers 25 - 31 ; Othet ~ (and (411d afte! after heating eotmsd imd op1,osed healing eotln~cl in sttpport ~tlPPOltand opposed to the motion) motion) it is, Defendan hereinafter referred Defendant t 111 III Pheasant Pheasant Lane Lane LLC, LLC, hereinafter referred to as "Pheasan "Pheasant",t", moves moves for for an an order order granting summary judgment dismissin the plaintiffs plaintiff's complaint granting summary judgment dismissing g the and all cross-claims arguing complaint and cross-claims against against itit arguing that it it hired hired George E. Vickers, Vickers, Jr. Enterprises Enterprises Inc., that George E. Inc., hereinafter "GEVJE", , and and Pheasant did hereinafter referred referred to as "GEVJE" Pheasant did not control not control or or supervise supervise the the decedent decedent plaintiffs plaintiffs work. argues that the decedent plaintiffs work. Pheasant Pheasant argues that the decedent plaintiff's claims under Labor baJTed by claims under Labor Law§§ Law 99 240 240 (I) (1) and and 241 (6) (6) are are barred single-familyily homeowner exemption. . by the the single-fam homeowner exemption The plaintiff did did not not file opposition papers papers to this The plaintiff file opposition Construction & this motion. motion. Third-Party Third-Party Defendant Defendant Troy Troy Construct ion & Design Inc., hereinafter referred Design Inc., hereinafter referred to as "Troy'', "Troy", filed filed oppositio opposition n to the the applicatio application n arguing arguing that discovery that discovery has not not been been conducted has conducted. . This by the the plaintiff recover damages This action action was was commenc commenceded by plaintiff to recover damages for allegedly sustained sustained for injuries injuries allegedly by the the decedent July 2, 2019, when when during by decedent on on July 2,2019, during the course of of his employm employment with Troy he fell and the course ent with Troy he fell and suffered fatal injuries at the premises known suffered fatal injuries at the premises known as 111 Pheasant Pheasant Lane, Lane, Southamp Southampton, ton, New New York. York. Plaintiff Plaintiff alleges the course alleges that that the the decedent decedent was was injured injured during during the course of of his employment property owned owned by his employm ent on property by defendant Pheasant wherein wherein GEVJE with the defendant Pheasant GEVJE contracted contracted with owners of of said said property do constructi constructionon work the owners property to do work including renovatio including renovationsns and and asserts asserts claims claims against against the defendants s for for violations the defendant violations of of the the Labor Labor Law Law and and for for common common law law negligenc negligence.e. Defendan Defendantsts Pheasant Pheasant and and GEVJE GEVJE each each filed filed separate separate third-part third-party y complaint complaints s against third-party defendant against third-party defendant Troy. Troy. Stipulatio Stipulationsns of of discontinu discontinuance filed related causes of of ance were were filed related to to the the causes action in the complain t against George Vickers, Jr., action in the complaint against George Vickers, Jr., individual individually, and for for the the cross-claim filed by ly, and cross-claim filed by GEVJE GEVJE against now moves against Pheasant. Pheasant. Pheasant Pheasant now moves for for summary summary judgment that it is a single single family judgment claiming claiming that family homeowner who who was was not not present present at the the job job site homeowner site and and did did not direct or or control control the not direct the work work being being performed. performed. It also It also claims claims that that it it did did not not create create or cause cause the the dangerous dangerous condition condition and and that the causes causes of of action action against against that the it be dismissed homeowner exemption it should should be dismissed due due to the the homeowner exemption under Labor Law. Law. Pheasant Pheasant states states that that it it is is under the the Labor purpose limited limited liability liability company company formed aa single single purpose formed to own at 111 Pheasant Lane, own the the property property located located 111 Pheasant Lane, Southamp ton, New New York. Pheasant claims Southampton, York. Pheasant claims that that the sole sole sharehold shareholders and members members are are Michael Michael 2aoui ers and Zaoui and Anna Zaoui. and Anna Zaoui. Pheasant Pheasant entered entered into into a contract contract with with GEY GEV JE to perform certain constructi constructionon at at the perform certain the Zaoui pursuant to to aa written written contract. contract. GEVJE GEVJE entered Zaoui home home pursuant 7, entered into into a contract contract with with Troy Troy dated dated December December 7, 2018 to perform work at the subject home. Troy 2018 to perform work the subject home. Troy argues argues that that "[t]he "[t]he motion by 111 Pheasant Pheasant must must be motion by be denied wholly premature premature and being made made without without allowing denied as as wholly and being allowing the any reasonable opportunityty to the parties parties any reasonable opportuni to engage discovery, including the deposition that was was noticed engage in in discovery, including the deposition that noticed of of 111 Pheasant Pheasant in March March of of 2020." 2020." Troy Troy further further argues argues Pheasant upon an an affidavit Pheasant relies relies entirely entirely upon affidavit from from an an individual individual who who purports purports to be a personal personal resident to be resident of of the home, behind a somewhat corporate the home, behind somewhat corporate structure, Michael Zaoui, Zaoui, which which is annexed structure, Michael annexed here "F". No here to as Exhibit Exhibit "F". No other other document documents s are are submitted submitted, , such such as corporate corporate information, confirm information, to to confinn the by this the statement statements s by this individual individual. . Mr. Mr. Zaoui Zaoui convenien convenientlytly alleges alleges that that the the subject property was only used as a single-fam subject property was only used single-familyily residence residence with with no no commerci that he and and his commercialal use use and and that family were were out out of of the his family the country country at the the time of on. He time of constructi construction. He also also claims claims he, solely because was out of the he, solely because he he was out of the [* 2] 2 of 5 INDEX NO. 000022/2020 FILED: SUFFOLK COUNTY CLERK 12/22/2020 11:01 AM NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 12/22/2020 Pointer v. 111 Pheasant Pheasant Lane Lane LLC, LLC, et al. Pointer Index # 22/2020 22/2020 Index Page 3 Page country, did did not not direct direct or or control control the the work. work. Id. Mr. Mr. Zaoui Zaoui fails fails to to provide country, provide any information information whatsoever whatsoever about about the the corporate corporate structure structure of of 111 Phea~ant Pheasant any which is the the limited limited liability liability company company that that actually actually owns owns the the subject subject which house, nor nor any any information information about about Peacock Peacock Limited, Limited, yet yet another another company company house, that owns owns the the 111 Pheasant Pheasant Company. Company. Furthermore, Furthermore, despite despite Mr. Mr. Zaoui's Zaoui's that claim that that he he and and his his family family were were "out "out of of the the country country at the the time time of of claim construction work", work", he he has has failed failed provide any plane plane tickets, tickets, passports, passports, construction provide any hotel invoices invoices or or further further proofs proofs to support support these these assertions. assertions. That That absence, absence, hotel even if if true, true, does does not not prove lack of of direction, direction, control, control, or or supervision, supervision, and and even prove lack wit, one's one's physical not required required for for such such a finding. finding. But, But, to wit, physical presence presence is not because depositions depositions have have not not been been held, held, no no party has been been permitted because party has permitted to inquire as to Mr. Mr. Zaoui's Zaoui's role role at all. How How did did he he contract contract for for the the project? project? inquire What level level of of control control and_ and supervision supervision was was exercised? exercised? Did Did he he designate designate an an What agent or or other other individual individual to do so, if ifnot done by by him? him? What What were were the the agent not done conditions of of the the pergola pergola at the the time time he he left left the the country country and and what what conditions communications or or notice notice did did he he have have about about same? same? What What role role does does he he play communications play Peacock Limited? Limited? What What kind kind of of Company Company is Peacock Peacock Limited Limited and and how how in Peacock organized? All All of of these these questions, questions, and and more, more, would would be be posed is it organized? posed at a deposition and and are are all not not only only relevant, relevant, but but could could create create questions questions of of fact fact deposition with respect respect to plaintiffs labor law law claims claims and and negligence negligence claims, claims, as well well with plaintiffs labor Troy's common common law law negligence, negligence, contribution contribution and and contractual contractual indemnity indemnity as Troy's claims. claims. moving for for summary summary judgment must make make a prima prima facie facie showing showing of of entitlement entitlement to judgment must A party party moving judgment matter of of law, law, tendering tendering sufficient sufficient evidence evidence to demonstrate demonstrate the the absence absence of of any any material material judgment as a matter issues of of fact fact (Nomura (Nomura Asset Capital Corp. v Cadwalader, Cadwalader, Wickersham Wickersham & Taft Taft LLP, 26 NY3d 40, 19 issues Asset Capital LLP, 26 NY3d 40, NYS3d 488 [2015]; [2015]; Alvarez 320,508 NYS2d 923 [1986]). [1986]). If If the the moving moving NYS3d 488 Alvarez v Prospect Prospect Hosp., Hosp., 68 NY2d NY2d 320,508 NYS2d 923 party the requisite requisite evidence, evidence, the the burden burden then then shifts shifts to the the nonmoving nonmoving party to establish establish the the party produces produces the party to existence of of material material issues issues of of fact fact which which require require a trial trial of of the the action action (Nomura, (Nomura, supra; see also Vega v existence Restani 499,942 NYS2d [2012]). Mere Mere conclusions conclusions or or unsubstantiated unsubstantiated Restani Constr. Corp., 18 NY3d NY3d 499,942 NYS2d 13 [2012]). allegations are are insufficient insufficient to raise raise a triable triable issue issue (Daliendo (Daliendo v Johnson, 147 AD2d AD2d 312, 312, 543 543 NYS2d 987 Johnson, 147 NYS2d 987 allegations [2d Dept Dept 1989]). 1989]). In deciding deciding the the motion, motion, the the Court Court must must view view all evidence evidence in the the light light most most favorable favorable to [2d the nonmoving nonmoving party party (Nomura, (Nomura, supra; see also Ortiz v Varsity Holdings, 335, 339, 339, 937 937 the Holdings, LLC, LLC, 18 NY3d NY3d 335, NYS2d [2011]). The failure failure to make make such such a prima facie showing showing requires requires the the denial denial of of the the motion motion NYS2d 157 [2011 ]). The prima facie regardless of of the the sufficiency sufficiency of of the the opposing opposing papers Winegrad v New York Univ. Med. Ctr., 64 regardless papers (see Winegrad New York NY2d 851, 487 487 NYS2d NY2d 851, NYS2d 316 316 [[1985]). 1985]). The Court Court in Perri 681, 683 683 [2nd [2nd Dept Dept 2005], held The Perri v Gilbert Johnson Johnson Enters., Enters., Ltd., Ltd., 14 AD3d AD3d 681, 2005), held that that To establish establish liability common-law negligence or violation of violation of To liability for common-law negligence or Labor plaintiff must must establish establish that defendant in Labor Law Law §S 200, 200, the the plaintiff that the the defendant issue had "authority to conh·ol control the issue had "authority the activity activity bringing bringing about about the the injury injury [* 3] 3 of 5 INDEX NO. 000022/2020 FILED: SUFFOLK COUNTY CLERK 12/22/2020 11:01 AM NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 12/22/2020 Pointer LLC, et aI. al. Pointer v. 111 III Pheasant Pheasant Lane Lane LLC, Index # 22/2020 Index 22/2020 Page 4 Page or correct conect an unsafe unsafe condition" condition" (Russin (Russin v to enable enable it to avoid avoid or Picciano & Son, Son, 54 N.Y.2d N.Y.2d 311, 311,317,429 N.E.2d 805, 805, 445 445 Picciano 317,429 N.E.2d N.Y.S.2d 127 [1981]; see Rizzuto Rizzuto v Wenger Contr. Co., 91 N.Y.2d N.Y.2d N.Y.S.2d [1981]; see 343,352, 693 N.E.2d N.E.2d 1068, 670 N.Y.S.2d N.Y.S.2d 816 816 [1998]; Singleton v 343,352,693 1068,670 [1998]; Singleton Citnalta Constr. Corp., C01JJ., 291 A.D.2d A.D.2d 393,394, 393, 394, 737 737 N.Y.S.2d N.Y.S.2d 630 630 Citnalta [2002]). supervisory authority authority at a work work site site for for the the [2002]). "General "General supervisory purpose of of overseeing overseeing the the progress progress of of the work work and and inspecting inspecting the the purpose work insufficient to impose impose liability liability for common-law common-law work product product is insufficient negligence and under Labor Labor Law Law 9§ 200" 200" (Dos Santos Santos v STV STV negligence and under Engrs., Inc., Inc., 8 A.D.3d 223, 223,224, 778 N.Y.S.2d N.Y.S.2d 48 [2004], Engrs., g A.D.3d 224, 778 [2004], Iv denied, 4 N.Y.3d N.Y.3d 702, 702, 824 824 N.E.2d N.E.2d 49, 790 790 N.Y.S.2d N.Y.S.2d 648 648 [2004]). denied, [2004]). Further, the the authority review· safety safety at the the site site is insufficient insufficient if if Further, authority to review there is no no evidence that the the defendant defendant actually actually controlled controlled the the there evidence that manner which the the work work was was perfonned performed (see (see Loiacono Loiacono v Lehrer Lehrer maImer in which McGovern Rovis, Bovis, 270 270 A.D.2d A.D.2d 464, 464,465, 704 N.Y.S.2d N.Y.S.2d 658 658 McGovern 465, 704 [2000]). [2000]). In order order to find liability for common-law negligence negligence or or under under Labor Labor Law Law 200 200 the the owner owner of of the the find liability for common-law premises must have "supervisory control premises must have "supervisory control over over the the injury-producing injury-producing activity". activity". (Ralbuena (Balbuena v NY NY Stock Stock Exch., Inc., Inc., 49 AD3d AD3d 374,376 374, 376 [1st Dept 2008]. 2008]. In Perri Perri v Gilbert Johnson Johnson Enters., Enters., Ltd., Ltd., supra, supra, the Exch., [1st Dept evidence "established that Gilbert visited evidence "established that Gilbeti visited the the site site '[s]ometimes '[s]ometimes once once or or twice twice a week, week, sometimes sometimes once once every two weeks' to talk customers and every two weeks' talk to customers and review review the the progress progress of of the the work. work ..... There There is no no evidence evidence in the record that the owner supervised supervised the record that the owner the manner manner in which which the work work was was performed" performed" and and therefore therefore summary summary judgment granted dismissing judgment was was granted dismissing the the common-law common-law negligence negligence and and Labor Labor Law Law 200 200 violations. violations. Labor Law 9 200 200 is a codification codification of of the the common-law common-law duty duty imposed imposed upon upon an owner, owner, contractor, contractor, Labor Law§ or agent, to provide construction site Comes v New or their their agent, provide constrnction site workers workers with with a safe safe place place to work work (see Comes New York State 609 NYS2d [1993]; Haider State Elec. & Gas Corp., 82 NY2d NY2d 876, 876,609 NYS2d 168 [1993]; Haider v Davis, Davis, 35 AD3d AD3d 363,827 363,827 NYS2d 179 [2d Dept 2006]). "Cases involving Labor Labor Law Law §9 200 200 fall into into two two broad broad categories: categories: namely, namely, NYS2d Dept 2006]). "Cases involving those where where workers workers are are injured those injured as a result result of of dangerous dangerous or or defective defective premises premises conditions conditions at a work work site, site, and those and those involving involving the the manner manner in which which the the work work is performed" performed" (Messina (Messina v City of of New New York, 46 NYS3d 174,2017 Slip Op Op 00640 [2017], quoting NYS3d 174, 2017 NY NY Slip 00640 [2017], quoting Ortega v Puccia, Puccia, 57 AD3d AD3d 54, 54, 61, 61, 866 866 NYS2d NYS2d Dept 2008]). When the 323 [2d Dept 2008]). When the methods methods or materials materials of of the the work work are are at issue, issue, recovery recovery against against the the owner or or general general contractor contractor cannot cannot be owner be had had unless unless it is shown shown that that the the party party to be be charged charged "had "had the the authority supervise or or control control the authority to supervise the performance performance of of the the work" work" (id.). General General supervisory supervisory authority authority at a work site site is not not enough; enough; rather, rather, a defendant defendant must must have have had had the the responsibility responsibility for for the the manner manner in which which the the work plaintiffs work is performed (see Messina v City of New York, supra). plaintiffs work performed Messina of New supra). Labor Law§§ Law 99 240 240 and and 241 241 apply apply to "[a]ll "[a]ll contractors contractors and and owners owners and and their their agents, agents, except except owners owners Labor of one one and and two-family two-family dwellings dwellings who who contract contract for for but but do not not direct direct or or control control the the work, work, when when of constructing or or demolishing demolishing buildings buildings or or doing doing any any excavating excavating in connection connection therewith." therewith." To To establish establish constructing entitlement to the the protection protection of of the the homeowner's homeowner's exemption, exemption, a defendant defendant must must demonstrate demonstrate that that her her entitlement house was was a singlesingle- or or two-family two-family residence residence and and that that she she did did not not "direct "direct or or control" control" the the work work being being house [* 4] 4 of 5 INDEX NO. 000022/2020 FILED: SUFFOLK COUNTY CLERK 12/22/2020 11:01 AM NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 12/22/2020 Pointer v. III l I I Pheasant Pheasant Lane Lane LLC, LLC, et al. Pointer Index Index # 22/2020 2212020 Page Page 5 performed Puccia, supra supra at 58). phrase 'direct control' is construed performed (Ortega v Puccia, 58). "The "The statutory statutory phrase 'direct or or control' construed strictly strictly and where the the owner the method method and and manner manner of the work" work" (id. at 59). and refers refers to situations situations where owner supervises supervises the of the The owner possessor of of real real property property also has a duty duty to maintain the property property in a reasonably reasonably The owner or or possessor also has maintain the safe condition so as to prevent prevent the the occunence injuries (see Nallan Nallan v Helmsley-Spear, He/msley-Spear, safe condition occurrence of of foreseeable foreseeable injuries Inc., 50 NY2d NY2d 507,429 NYS2d 606 Milewski v Washington Mut., Inc., Inc., 88 AD3d AD3d 853,931 Inc., 507, 429 NYS2d 606 [1980]; [1980]; Milewski Washington Mut., 853, 931 NYS2d 336 336 [2d Dept ]). Thus, ]here a premises premises condition condition is at issue, issue, property property owners may be NYS2d Dept 2011 2011]). Thus, "[ w ]here owners may held liable for a violation Labor Law Law ~9 200ifthe 200 if the owner the dangerous dangerous condition that held liable violation of of Labor owner either either created created the condition that caused the accident constructive notice notice of of the the dangerous the caused the accident or or had had actual actual or or constructive dangerous condition condition that that caused caused the accident" Puccia, supra supra at 61; see Pacheco Pacheco v Smith, Smith, 128 AD3d AD3d 926, NYS3d 377 377 [2d Dept Dept accident" (Ortega v Puccia, at61; 926,9 9 NYS3d Chowdhury v Rodriguez, [2d Dept 2015]; Chowdhury Rodriguez, 57 AD3d AD3d 121, 121, 867 867 NYS2d NYS2d 123 [2d Dept 2008]). 2008]). Colombini l'v Westchester Healthcare Corp., 24 AD3d AD3d 712, 712, 715 715 [2d Dept Dept 2005], 2005], the the In Colombini Westchester County County Healthcare Court Court held held that that Summary judgment should be denied premature where, here, the the party party Summary judgment should be denied as premature where, as here, opposing the had an adequate opportunity to conduct conduct discovery discovery opposing the motion motion has has not not had adequate opportunity into issues the knowledge orthe moving (see CPLR CPLR 3212 into issues within within the knowledge ofthe moving party party (see 3212 [f]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d NY2d 494,506,618 494, 506, 618 NE2d NE2d 82, Ross Curtis-Palmer Hydro-Elec. NYS2d 49 49 [1993]; Petroleum Distrib. Corp. v Nassau/Suffolk Nassau/Suffolk Fuel Fuel 601 NYS2d [1993]; OK Petroleum Oil Corp., 17 AD3d AD3d 551, 551, 793 NYS2d NYS2d 152 [2005]; Mazzola v Kelly, 291 AD2d AD2d Oil [2005]; Mazzola 535, 738 246 [2002]). [2002]). 535, 738 NYS2d NYS2d 246 Based upon upon a review of the the motion papers the Court concludes concludes that defendant Pheasant's Based review of motion papers the Court that the the defendant Pheasant's motion summary judgment judgment as to the complaint of Troy premature as the the thirdthirdmotion for summary complaint and and cross-claims cross-claims of Troy is premature party defendant has adequate opportunity opportunity to conduct conduct discovery discovery into into issues issues within party defendant has not not had had an adequate within the the knowledge of of the corporate structure structure of of Pheasant and Peacock the moving moving party party as to the the corporate Pheasant and Peacock Limited Limited which which knowledge Troy claims claims is a corporate corporate owner of Pheasant. motion for summary summary judgment denied; Troy owner of Pheasant. Thus Thus the the motion judgment must must be be denied; and it is and \\ ORDERED that conference is hereby scheduled to be Thursday, ORDERED that a preliminary preliminary conference hereby scheduled be held held on Thursday, February 11, 2021 2021 at at 10:00 a.m., a.m., in the DCM courtroom courtroom 338 of the Hon. Alan Oshrin Supreme Supreme the DCM 338 of the Hon. Alan D. Oshrin February Court Building, Building, 1 Court Court Street, Counsel for action Court Street, Riverhead, Riverhead, New New York. York. Counsel for the the respective respective parties parties in this this action directed to appear appear at that that time. time. are directed The foregoing foregoing shall shall constitute constitute the the decision decision and and Order Order oft of t The Dated: December December 21, 21, 2020 2020 Dated: EPH A. SANTORELLI SANTORELLI EPH J.S.c. J.S.C. FINAL DISPOSITION [* 5] _X_ DISPOSITION _X_ NON-FINAL DISPOSITION 5 of 5
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