Opinion
15782 Index No. 151695/19 Case No. 2021–03739
04-21-2022
HERITAGE FUNDING, LLC, Plaintiff–Respondent, v. DOYLE BROS. PLUMBING & HEATING, INC., Defendant–Appellant, RIP Construction Consultants, et al., Defendants.
Farber Brocks & Zane L.L.P., Garden City (Lester Chanin of counsel), for appellant. Clausen Miller P.C., New York (Richard T. Freilich of counsel), for respondent.
Farber Brocks & Zane L.L.P., Garden City (Lester Chanin of counsel), for appellant.
Clausen Miller P.C., New York (Richard T. Freilich of counsel), for respondent.
Manzanet–Daniels, J.P., Kern, Singh, Kennedy, Mendez, JJ.
Order, Supreme Court, New York County (W. Franc Perry, J.), entered May 13, 2021, which denied the motion of defendant Doyle Bros. Plumbing & Heating Inc. (Doyle Bros.) for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.
The court properly concluded that there were issues of fact concerning the relationship between Doyle Bros. and Doyle & Son Plumbing & Heating, which obtained a permit in 2005 for work at plaintiff's premises. Edward Doyle was named as the master plumber in the permit, and he submitted an affidavit in this action stating that he was president of Doyle Bros. With discovery, plaintiff may be able to establish successor liability by Doyle Bros. regardless of when the allegedly negligent work was performed (see Schumacher v. Richards Shear Co. , 59 N.Y.2d 239, 244–245, 464 N.Y.S.2d 437, 451 N.E.2d 195 [1983] ).
The court correctly found that when the allegedly negligent work was performed was a material issue that was not a proper subject of a notice to admit pursuant to CPLR 3123(a) (see New Image Constr. Inc. v. TDR Enters. Inc., 74 A.D.3d 680, 681, 905 N.Y.S.2d 56 [1st Dept. 2010] ).
We have considered Doyle Bros.’s remaining arguments and find them unavailing.