Pavlik v PB 151 Grand LLC
Annotate this CaseDecided on May 24, 2021
Supreme Court, Bronx County
Gary Pavlik, Plaintiff,
against
PB 151 Grand LLC, et al., Defendants.
26857/2018E
Adrian Armstrong, J.
Plaintiff, Gary Pavlik, alleges that he was injured as a result of a trip and fall on a sidewalk abutting the premises located at 151 Grand Street, New York County, New York on March 11, 2016 at approximately 7:30 p.m. Plaintiff alleges that a defective condition existed at the aforementioned location, namely a structural support of a sidewalk shed that had become partially detached resulting in the support extending into the path of pedestrian traffic causing him to trip and fall.
Plaintiff commenced this matter in June 2018 against the owner of the property, PB 151 Grand LLC, (hereinafter "Grand") and the Everest Scaffolding Company (hereinafter "Everest"). Thereafter, in November 2019, Everest commenced a third-party action against JBS Project Management (hereinafter "JBS"), Marin Management Corp. (hereinafter "Marin") and Princeton Holdings LLC (hereinafter "Princeton"). JBS now moves for summary judgment, pursuant to CPLR §3212, dismissing all third-party claims and cross claims against it as a matter of law.
By agreement dated August 1, 2015 Grand engaged the services of JBS as the "owner's representative" for the pre-construction, construction and closeout phases of the renovation of the subject property. The anticipated length of the project was from August 2015 through July 2017. Under the agreement, the representative was responsible for and agreed to work closely with, inter alia, the owner, contractors, architects, engineers and specialty consultants (known collectively as the "Project Team") throughout the execution of the Project in order to (i) maintain a continuous review process; (ii) expedite determinations and approvals required to be made; and (iii) facilitate the planning, design, construction and completion of the Project in an efficient, expeditious, professional and economical manner.
Additionally, JBS cites the "General Provisions" section of the aforementioned agreement between itself and Grand, which states therein that the owner's representative lacked the authority to make decisions or give any approvals of a nature that would have material impact on the project and could, at most, notify or obtain approval of the owner. Moreover, the agreement indicates that the owner's representative had no responsibility for any of the design, [*2]construction or other responsibilities, duties or obligations of any of the members of the Project Team, including the responsibilities, duties, services or activities assumed or required to be rendered or performed by the architect, the construction manager, any of the owner's contractors/vendors or any other construction contractor or materials supplier employed by or associated with construction manager or owner in relation to the project. The agreement also specifies that the owner's representative did not have any responsibility for design work, design features, construction means, methods and/or techniques, or site safety.
Sam Provisero, who states that he is a principal of JBS and is listed as the contact for the owner's representative on the agreement, attests in his Affidavit in support of JBS's motion that the agreement is the only document connecting JBS to the project and thereby JBS's duties at the project were only those found in the agreement. Mr. Provisero attests that JBS had no involvement in the hiring of the contractor Everest, who built the sidewalk shed, and it neither controlled, directed or supervised Everest's work at the project. Moreover, he maintains that JBS was only involved with the "pre-construction" phase of the project, which lasted for approximately four months. While the affidavit does not state exactly when JBS left the project, Mr. Provisero asserts that JBS was no longer involved with the project after the first four (4) months and had no relationship with the Project Team at the time of plaintiff's alleged accident on March 11, 2016.
It is undisputed that Defendant/Third-Party Plaintiff Everest contracted with Princeton to install a sidewalk shed and scaffolding on the subject property. Everest installed the scaffolding on September 16, 2015 and installed the sidewalk shed the next day, on September 17, 2015.
Defendant/Third Party Plaintiff, Everest and Third-Party Defendants, Marin and Princeton all oppose the summary judgment motion on the basis that the motion is premature as no depositions have been held, and discovery remains outstanding. They also contend that there are questions of fact as to what role JBS played with regard to, and whether it oversaw the installation of the sidewalk shed.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. Winegrad v. New York University Medical Center, 64 NY2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 (1985). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. The burden on the movant is a heavy one, and the facts must be viewed in the light most favorable to the non-moving party. Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824 [2014].) Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
As a general rule, liability for a dangerous or defective condition on property is predicated upon ownership, occupancy, control, or special use of the property (see Ruffino v New York City Tr. Auth., 55 AD3d 817, 818 [2nd Dept 2008]). Here, JBS's evidentiary submissions established its prima facie entitlement to judgment as a matter of law by submitting evidence sufficient to establish that it was not liable for the condition of the subject area where the plaintiff allegedly fell (see Alvarez v Prospect Hosp., supra, 68 NY2d at 324 [1986]). It is indisputable that JBS did not construct or maintain the sidewalk shed. Moreover, given the specificity of the agreement between Grand and JBS, it is clear that JBS's role was unmistakably [*3]that of a project manager that facilitated the cooperation of the Project Team for a timely and cost-efficient result, regardless of the roles and responsibilities of the other parties. On the face of the agreement there is no basis for any duty owed to the plaintiff in regard to his injuries as JBS did not construct the subject shed and had no duty to maintain or repair it. Nor is there any basis for contribution or common law indemnification of any member of the project team.
In opposition, the opponents failed to raise a triable issue of fact. The claim that JBS's Principal, Samuel Provisero has his name, email and phone number included on Everest's contract, is insufficient to raise a triable issue of fact. Moreover, the fact that a "structural support" would have been constructed during the installation of the sidewalk shed in September 2015 when JBS was still on site, without more, still cannot create liability for an accident that occurred a full six months later. Importantly, the affirmation of the opposing parties attorneys, who have no personal knowledge of facts asserted herein, is insufficient to raise a triable issue of fact with respect to JBS's claimed lack of responsibility of the area where the plaintiff was caused to be harmed (see Hoffman v Eastern Long Is. Transp. Enter., 266 AD2d 509 [1999]).
The opponents of the summary judgment motion likewise failed to demonstrate that the motion is premature. "A party opposing summary judgment is entitled to obtain further discovery when it appears that facts supporting the opposing party's position may exist but cannot then be stated" (Matter of Fasciglione, 73 AD3d 769 , 770 [2nd Dept 2010]; see CPLR 3212[f]). This is especially so where the motion for summary judgment was made prior to the parties conducting depositions (see Wesolowski v St. Francis Hosp., 108 AD3d 525, 526 [2nd Dept 2013]). Pursuant to CPLR 3212 (f), the court may deny a motion for summary judgment if it appears from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated. "The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion" (Lopez v WS Distrib., Inc., 34 AD3d 759, 760 [2nd Dept 2013]).
Under the circumstances presented here, the opposing parties have failed to make a showing that discovery may lead to relevant evidence or that the facts essential to opposing the motion are in the movant's exclusive knowledge and control.
The court has considered the additional contentions of the parties not specifically addressed herein. To the extent that any relief requested by either party was not addressed by the court, it is hereby denied.
Accordingly, it is hereby
ORDERED that third-party defendant JBS Project Management's motion for summary judgment is granted. The third-party complaint and all cross claims against it are dismissed.
This is the Decision and Order of the Court.
Dated: May 24, 2021
Adrian Armstrong, A.J.S.C.
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