Opinion
502006/2015
06-27-2017
Timothy Cerniglia, Plaintiff, v. 8202 Seventh Avenue, LLC, ONE STOP 86 ST. INC., and TYREE ENVIRONMENTAL CORP., Defendants. 8202 SEVENTH AVENUE, LLC,Third-Party Plaintiff, v. ISLAND PUMP & TANK CORP. and GETTY REALTY CORP. d/b/a GETTY PROPERTIES CORP.,Third-Party Defendants.
Attorney for Plaintiff McBreen & Kopko 500 North Broadway, Suite 129 Jericho, New Yok 11753 Attorney for Defendant 8202 Seventh Ave Robinson & Associates, P.C. Kenneth L. Robinson, Esq. 25 Roosevelt Avenue Syosset, New York 11791 (516) 496-9044 Attorney for Defendant One Stop 86th St. Cassandra & Gullo, P.L.L.C. 8118 13th Avenue Brooklyn, New York 11228 Attorney for Defendant Tyree Service Corp. & Getty Realty Corp. Conell Foley LLP Brian P. Morrissey, Esq. 888 Seventh Avenue -9th Floor New York, New York 10106 (212) 307-3700 Attorneys for Third-Defendant Island Pump & Tank Corp. Havkins Rosenfeld Ritzert & Varriale, LLP Shawn Schatzle, Esq. 1065 Avenue of the Americas, Suite 800 New York, New York 10018 (212) 488-1598
Attorney for Plaintiff McBreen & Kopko 500 North Broadway, Suite 129 Jericho, New Yok 11753 Attorney for Defendant 8202 Seventh Ave Robinson & Associates, P.C. Kenneth L. Robinson, Esq. 25 Roosevelt Avenue Syosset, New York 11791 (516) 496-9044 Attorney for Defendant One Stop 86th St. Cassandra & Gullo, P.L.L.C. 8118 13th Avenue Brooklyn, New York 11228 Attorney for Defendant Tyree Service Corp. & Getty Realty Corp. Conell Foley LLP Brian P. Morrissey, Esq. 888 Seventh Avenue -9th Floor New York, New York 10106 (212) 307-3700 Attorneys for Third-Defendant Island Pump & Tank Corp. Havkins Rosenfeld Ritzert & Varriale, LLP Shawn Schatzle, Esq. 1065 Avenue of the Americas, Suite 800 New York, New York 10018 (212) 488-1598 Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of the third party defendant Island Pump & Tank Corp. (hereinafter Island Pump) filed on December 15, 2016, under motion sequence number one, for an order (1) pursuant to CPLR 3025 (b) granting Island Pump leave to amend its verified answer to the third-party complaint to assert the affirmative defense of the Workers' Compensation exclusivity and upon the amendment deeming the answer served nunc pro tunc and dismissing the third-party complaint as against Island Pump pursuant to CPLR 3211 (a) (7); or in the alternative pursuant to CPLR 3211 (c). -Notice of motion -Affirmation in support -Exhibits A-M -Memorandum in support -Affirmation in opposition -Affirmation in reply -Exhibits A-B
By order dated March 3, 2017, on consent, the Court granted that portion of Island Pumps' motion to amend the answer to assert the affirmative defense of the Workers' Compensation exclusivity. The remainder of the relief requested in the motion was reserved and will be analyzed herein.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of the cross motion of the defendant-third party plaintiff, 8202 Seventh Avenue, LLC (hereinafter 8202) pursuant to CPLR 3212 for an order (1) granting summary judgment and dismissing the plaintiff's complaint and all cross claims . -Notice of Cross Motion -Affidavit of Dovia Lerrick in support -Affirmation in support -Exhibit A-F -Affirmation in opposition
The cross claims are for indemnification and contribution.
BACKGROUND
On February 20, 2015, plaintiff Timothy Cerniglia (hereinafter Cerniglia) commenced the instant action for damages for personal injuries by filing a summons and complaint with the Kings County Clerk's Office (the main action). On May 28, 2015, 8202 filed an answer with cross claims. On June 24, 2015, One Stop 86 St. Inc (hereinafter One Stop) filed an answer with cross claims. On June 30, 2015, Tyree filed an answer with cross claims.
The main action alleges that on or about December 10, 2012 through January 25, 2013, the plaintiff, while employed by the third party defendant Island Pump, was exposed to toxins from contaminated soil while working at the property located at 8202 Seventh Avenue, Kings County, New York (hereinafter the premises). The premises was used as a gasoline station. Present on the premises were underground storage tanks of gasoline which were connected to the gasoline pumps through gas lines. The plaintiff alleges that during the removal of the tanks the sewage lines were ruptured. The rupturing of the line caused contamination of the soil. The plaintiff was allegedly exposed to the contamination. The exposure caused the plaintiff to sustain personal injuries. It is undisputed that at the time of plaintiff's injuries 8202 was the owner of the premises; One Stop 86 St. Inc. was a tenant and Tyree Service Corp (hereinafter Tyree) was the company that performed the underground storage tank removal.
LAW AND APPLICATION
Island Pumps' CPLR 3211 motion
Island Pump moves to dismiss the complaint pursuant to CPLR 3211 (a) (7). In considering a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the court must 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 (E & D Grp., LLC v Vialet, 134 AD3d 981, 982 [2nd Dept 2015][internal citations omitted]). Whether a plaintiff can ultimately establish its allegations is not part of the calculus (id. citing EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]). A court is . . . permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211 (a) (7) (E & D Grp., LLC, 134 AD3d 981 [2nd Dept 2015] citing Sokol v Leader, 74 AD3d 1180 (2nd Dept 2010) at 1181; see CPLR 3211 [c]; Mawere v Landau, 130 AD3d 986, 988 [2nd Dept 2015]). "However, on a motion made pursuant to CPLR 3211 (a) (7), the burden never shifts to the nonmoving party to rebut a defense asserted by the moving party . . . and a plaintiff will not be penalized because he [or she] has not made an evidentiary showing in support of his [or her] complaint" (Rovello v Orofino Realty Co., 40 NY2d 633, 635 [1976]; see Nonnon v City of New York, 9 NY3d 825, 827 [2007]). "When evidentiary material is considered on a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), and the motion has not been converted to one for summary judgment, the criterion is whether the [plaintiff] has a cause of action, not whether he [or she] has stated one, and, unless it has been shown that a material fact as claimed by the [plaintiff] to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it . . . dismissal should not eventuate" (E & D Grp., LLC v Vialet, 134 AD3d 981 [2nd Dept 2015] citing Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; see Mawere v Landau, 130 AD3d at 988; Nasca v Sgro, 130 AD3d 588, 589 [2nd Dept 2015]; Sokol, 74 AD3d at 1181; E & D Grp., LLC, 134 AD3d at 982). Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss (Travelsavers Enterprises, Inc. v. Analog Analytics, Inc., 149 AD3d 1003 [2d Dept 2017]). Rather, a court must determine only whether the facts as alleged fit within any cognizable legal theory (Id.)
In the instant matter the third-party complaint alleges the following salient facts: Island Pump, as employer, owed a duty to Cerniglia. It knew of the danger and breached its duty to Cerniglia by failing to, among other things, provide a safe environment, provide adequate warnings, instructions and safety equipment. Island Pump's breach of its duty to Cerniglia was the sole proximate cause of his injuries. 8202 is free from any actual negligence. 8202 alleges that it is entitled to indemnification and contribution from Island Pump. In the event that 8202 is found negligent then Island Pump is required to contribute its pro-rata share of costs, expenses and liabilities incurred by 8202.
Indemnity arises out of a contract which may be express or may be implied in law to prevent a result which is regarded as unjust or unsatisfactory (Eisman v Vill. of E. Hills, 149 AD3d 806 [2nd Dept 2017] citing Fox v County of Nassau, 183 AD2d at 747 [2nd Dept 1992] quoting Rosado v Proctor & Schwartz, 66 NY2d 21, 24 quoting Prosser & Keeton, Torts § 51 at 341 [5th ed. 1984]). Further,[w]here one is held liable solely on account of the negligence of another, indemnification, not contribution, principles apply to shift the entire liability to the one who was negligent. Conversely, where a party is held liable at least partially because of its own negligence, contribution against other culpable tort-feasors is the only available remedy (Eisman, 149 AD3d at 806 citing Fox, 183 AD2d at 747, quoting Glaser v Fortunoff of Westbury Corp., 71 NY2d 643, quoting D'Ambrosio v City of New York, 55 NY2d 454, 462 [1982]). Whether indemnity or contribution applies depends not upon the parties' designation but upon a careful analysis of the theory of recovery against each tort-feasor (Eisman, 149 AD3d 806 [2nd Dept 2017] citing Fox, 183 AD2d at 747, quoting Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559 [1987]).
To sustain a third-party cause of action for contribution, a third-party plaintiff is required to show that ... a duty was owed to the plaintiffs as injured parties and that a breach of that duty contributed to the alleged injuries (Eisman v Vill. of E. Hills, 149 AD3d 806 [2nd Dept 2017] citing Guerra v St. Catherine of Sienna, 79 AD3d 808 at 809 [2nd Dept 2010]). The critical requirement ... is that the breach of duty by the contributing party must have had a part in causing or augmenting the injury for which contribution is sought (Eisman, 149 AD3d at 806 citing Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 71 NY2d 599, 603 [1988]).
The third party summons and complaint adequately pleads both a cause of action for indemnification and one for contribution. The required elements of both causes of action are adequately plead. Furthermore, Island Pump has not conclusively established that a material fact as stated by 8202 is not a fact at all nor that no significant dispute exists. On a motion made pursuant to CPLR 3211 (a) (7), the burden never shifts to the nonmoving party to rebut a defense asserted by the moving party and a plaintiff will not be penalized for not making an evidentiary showing in support of the complaint (see E & D Grp., LLC, 134 AD3d 981 [2nd Dept 2015]). In sum, a motion pursuant to CPLR 3211 (a) (7) is limited in its review of the complaint and a plaintiff need not prove its claims to oppose the motion. Furthermore, 8202 has opposed the motion based on a lack of discovery on the Worker's Compensation issue. At this early stage in the litigation the parties should be permitted to engage in meaningful discovery. Accordingly, the portion of Island Pump motion which seeks to deem the amended answer served nunc pro tunc and to dismiss the third-party complaint pursuant to 3211(a)(7) is denied.
In the alternative to CPLR 3211(a)(7) Island Pump seeks to convert its CPLR 3211(a)(7) motion pursuant to CPLR 3211 (c) to one for summary judgement to dismiss the complaint. The determination whether to convert a CPLR 3211 (a) motion to one for summary judgment pursuant to CPLR 3211 (c) is not without consequence. A dismissal of a complaint pursuant to a summary judgment motion bars the later commencement of an action pertaining to the same transactions or occurrences. However, a dismissal pursuant to CPLR 3211 (a) (7) based on a pleading deficiency has preclusive effect only as to a new complaint for the same cause of action which fails to correct the defect or supply the omission determined to exist in the earlier complaint (see 175 E. 74th Corp. v Hartford Acc. & Indem. Co., 51 NY2d 585, 589 [1980]).
CPLR 3211 (c) provides that a motion to dismiss the complaint may be converted to one for summary judgment after giving adequate notice to the parties (see Mihlovan v Grozavu, 72 NY2d 506 [1988]). But "the unilateral actions of a party in seeking summary judgment on a CPLR 3211 (a) (7) motion cannot constitute adequate notice to the other party in compliance with the requirement under CPLR 3211 (c)" (Mihlovan, 72 NY2d at 508).
Island Pump moves pursuant to CPLR 3211 (a) (7) and in the alternative pursuant to CPLR 3211 (c). While the motion seeks dismissal under CPLR 3211 as the primary relief and dismissal pursuant to CPLR 3211 (c) as an alternative, the motion papers establish that Island Pump clearly seeks dismissal on the merits. Further the papers demonstrate that Island Pump was "laying bare [their] proof and deliberately charting a summary judgment course" (Mihlovan, 72 NY2d at 508 citing Four Seasons Hotel v Vinnik, 127 AD2d 310, 320 [1st Dept 1987]). However, 8202, the third party plaintiff clearly has not laid bare their proofs. In fact, 8202 has specifically opposed the motion based on a lack of discovery. Accordingly, the Court declines to convert the motion to a summary judgment motion. 8202's Motion for Summary Judgment
8202 moves for summary judgment on the basis that it was an out of possession landlord and had no duty to the plaintiff nor notice of any defective condition. Under New York common law a landowner has a duty to maintain his or her premises in a reasonably safe condition, taking into account all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk (Alnashmi v Certified Analytical Group, Inc., 89 AD3d 10 [2nd Dept 2011])(internal citations omitted).
However, it is also a general rule that no liability attaches to the landlord for injuries resulting from the condition of premises where such injuries are sustained after the landlord has divested himself or herself of possession and control even though the landlord is permitted to use such premises by the tenant (Lugo v Austin-Forest Associates, 99 AD3d 865 [2nd Dept 2012]). Reservation of a right of entry may constitute sufficient retention of control to impose liability upon an out-of-possession owner or lessor for injuries caused by a dangerous condition, but only when a specific statutory violation exists and there is a significant structural or design defect (Lowe-Barrett v City of NY, 28 AD3d 721, 722 [2nd Dept 2006]).
The common-law rule, however, rests on the premise that, by transferring possession of the premises to the lessee, the landowner has also surrendered "control" over them. The concept of "control is the test which measures generally the responsibility in tort of the owner of real property" (Alnashmi v Certified Analytical Group, Inc., 89 AD3d 10 [2nd Dept 2011]). However, control is not the only measure of an out-of-possession landlord's duty. An out of possession landlord may be liable for dangerous conditions on leased premises when there is a duty imposed by statute, assumed by contract, or created by a course of conduct (Id.)
In support of the motion 8202 submits, among other things, the affidavit of Dovia Lerrick (Lerrick), a managing member of 8202, a lease agreement between 8202 and One Stop, and a contract between Getty Property Corp. and Tyree. Lerrick asserts that at all times 8202 was an out of possession landlord that did not contract for the tank removal nor clean up and therefore cannot be held liable for any damages sustained by the plaintiff.
The lease annexed to 8202's papers specifically provides in paragraph 12(b) that 8202 may enter the premises to make repairs and especially related to the storage tanks. The complaint in the main action alleges that 8202 was negligent in their management of the premises and had actual and constructive notice of the dangerous condition. The complaint in the main action also alleges generally that the defendants failed to comply with regulations and applicable statutes. The Court is aware that gasoline stations, storage of gasoline tanks, the removal of and replacement are regulated activities (see generally Navigation Law § 181).
In support of the instant motion 8202 has failed to eliminate all material issues of fact as to its liability. 8202 retained the right to enter the premises and retained the specific right to correct, repair and manage the oil tanks underground which are the subject of the main action. Although the plaintiff has not alleged specific statutes or regulations that have been violated, the complaint and bill of particulars in the main action alleges generally that there were violations. Further discovery is warranted to determine which statutes and regulations apply to the premises and parties. 8202 is silent as to whether there are any specific statutory or regulatory provisions that apply to gas station or underground storage tanks. 8202 has failed to establish that it has not retained sufficient control to impose liability. As 8202 has not met its prima facie burden then the Court need not reach the opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
CONCLUSION
Island Pump & Tank Corp.'s motion to dismiss the third-party complaint pursuant to CPLR 3211 (a) (7) is denied.
Island Pump & Tank Corp.s motion to convert the CPLR 3211 (a) (7) to a CPLR 3212 motion and to dismiss the third-party complaint pursuant to CPLR 3211 (c) is denied.
Defendant-third party plaintiff 8202 Seventh Avenue, LLC motion for an order granting summary judgment and dismissing the plaintiff's complaint and all cross claims pursuant to CPLR 3212 is denied without prejudice to seek the same releif after discovery is completed.
The foregoing constitutes the decision and order of this Court. Enter: J.S.C.