Opinion
Index No. 25624/2019 Mtn. Seq. 1
09-23-2019
BRIAN CUDDIHY, Plaintiff, v. BRONX PRO GROUP LLC, DREAMYARD 1017 HOME STREET HOUSING DEVELOPMENT FUND CORPORATION, HOME BUILDERS 1 L.P. INSPIRON CONSTRUCTION, LEMLE & WOLFF, CONSTRUCTION CORP., 1017 HOME STREET PARTNERS LLC, TPM MANAGEMENT LLC and BRONX PRO REAL ESTATE MANAGEMENT INC., Defendants.
Unpublished Opinion
PRESENT: HON. LUCINDO SUAREZ, JUDGE
DECISION AND ORDER
LUCINDO SUAREZ, JUDGE
The issues in Defendant Lemle & Wolff Construction Corn's. ("L&W") motion for summary judgment are whether it made a prima facie showing that Plaintiffs complaint should be dismissed and whether it should be entitled to reasonable attorneys' fees and costs. The court finds that L&W established its prima facie burden for a dismissal of Plaintiff s complaint as Plaintiff failed to raise any triable issues of fact with respect to same. However, the court finds that Request for reasonable attorneys' fees and costs is without merit.
This action was commenced by Plaintiff for injuries he allegedly sustained while he was working on a construction site in May 2018. Here, L&W contended that it should be dismissed from this matter as it was not the owner of the subject construction site nor the general contractor. Moreover, L&W argued that it was not contracted to perform any work or provide any services at the subject construction site. Further, it maintained that it did not contract or subcontract Exterior Erecting Services, Inc., alleged to be Plaintiffs employer to perform any work or provide any services at the subject construction site. Lastly, L&W argued that it was not involved with any work performed at the subject premises during the relevant time periods. L&W factually buttressed its arguments by attaching the affidavit of L&W's General Counsel, Kevin G. Thurman, who averred same.
In opposition, Plaintiff posited that the instant motion should be denied as it was prematurely made since discovery is in its infancy. Plaintiff argued that discovery could yield information tying L&W in some manner to Plaintiffs injury-producing work. In addition, Plaintiff attached an unverified printout of a work permit data form from the New York City Department of Buildings' ("DOB") website issued in relation to the subject construction site. Plaintiff argued that DOB's work permit provided that Lorenzo Jr. Lazala was the Superintendent of Construction and that he also listed his business as L&W. Furthermore, Plaintiff provided an internet search purporting to list Mr. Lazala as employed by L&W.
However, in reply, L&W provided an affidavit sworn to by Mr. Lazala rebutting Plaintiffs assertions that he was employed by L&W during the relevant time periods. He further averred that he inadvertently listed L&W on the DOB work permit, and that he did not have authority from L&W to do so. This was confirmed by the supplemental affidavit of Mr. Thurman and L&W's business records, which indicated that Mr. Lazala's employment with L&W was terminated effective September 2017, and that subsequent thereto Mr. Lazala had no authority to act on behalf of L&W.
Thus, the court finds that Plaintiffs argument with respect to discovery is unavailing. He cannot avoid summary judgment by speculating that discovery will provide the necessary evidence to demonstrate that L&W was involved with Plaintiffs injury-producing work. See Baxter St. Condominium v. LPS Baxter Holding Co., LLC, 126 A.D.3d 417, 5 N.Y.S.3d 52 (1st Dep't2015).
Moreover, even if the court was to consider Plaintiffs argument with respect to the unverified DOB work permit it was effectively rebutted by Mr. Lazala's and Mr. Thurman's affidavits and L&W's business records, which directly undermined Plaintiffs theory that L&W could possibly be involved with his injuries. Therefore, the court finds that Plaintiff does not possess a factual basis to assert Labor Law §§200, 240(1), and 241(6) claims against L&W.
With respect to L&W's request seeking reasonable attorneys' fees and costs the court finds it is meritless. Plaintiffs complaint against L&W was not "completely without merit in law," as he did have good faith basis based upon the DOB work permit to commence this action against it, therefore, his conduct does not warrant the imposition of a sanctions under 22 NYCRR §130-1.1 (a)(1)(2)(3) or CPLR §8303-a. See Retina Assoc, of Long Is., PC v. Rosberger, 299 A.D.2d 533, 751 N.Y.S.2d 50 (2d Dep't 2002).
Accordingly, it is
ORDERED, that L&W's application seeking to dismiss Plaintiffs complaint is granted; and it is further
ORDERED, that L&W's application seeking reasonable attorneys' fees and costs is denied; and it is further
ORDERED, that the Clerk of Court shall enter judgment accordingly.
This constitutes the decision and order of the court.