Summary
In O'Hara v. New School, 118 A.D.3d 480, 987 N.Y.S.2d 386, cited to in Chan, the First Department held that the plaintiffs failed to make a prima facie showing that the defendants violated section BC 3309.4 and that the violation proximately caused the plaintiffs' alleged injuries.
Summary of this case from 211-12 N. Boulevard Corp. v. LIC Contracting, Inc.Opinion
2014-06-10
Michael G. O'HARA, et al., Plaintiffs–Appellants–Respondents, v. The NEW SCHOOL, et al., Defendants–Respondents–Appellants, Skidmore Owings & Merrill, LLP, et al., Defendants. [And A Third–Party Action].
Wasserman Grubin & Rogers, LLP, New York (Michael T. Rogers of counsel), for appellants-respondents. Shaub Ahmuty Citrin & Spratt, LLP, New York (Steven J. Ahmuty, Jr. of counsel), for respondents-appellants.
Wasserman Grubin & Rogers, LLP, New York (Michael T. Rogers of counsel), for appellants-respondents.Shaub Ahmuty Citrin & Spratt, LLP, New York (Steven J. Ahmuty, Jr. of counsel), for respondents-appellants.
, J.P., RENWICK, SAXE, FREEDMAN, RICHTER, JJ.
Order, Supreme Court, New York County (Kathryn E. Freed, J.), entered July 10, 2013, which denied plaintiffs' motion for partial summary judgment against defendants-respondents as to plaintiffs' cause of action alleging breach of Administrative Code of the City of New York § 3309.4, and denied defendant-respondent Urban Foundation/Engineering, LLC's cross motion for partial summary judgment dismissing plaintiffs' claims to recover damages for injury to common elements of a condominium building for lack of standing, unanimously modified, on the law, to grant Urban's cross motion to the extent of dismissing the portions of the amended complaint that seek damages for injury to the common elements of the building, and otherwise affirmed, without costs.
Plaintiffs failed to make a prima facie showing that defendants-respondents violated Administrative Code § 3309.4 and that the violation proximately caused plaintiffs' alleged injuries (Coronet Props. Co. v. L/M Second Ave., 166 A.D.2d 242, 243, 560 N.Y.S.2d 444 [1st Dept.1990] ). In particular, plaintiffs did not proffer evidence showing that they granted defendants the requisite license under the statute. In any event, defendants sharply contest that a license was given, which is enough to raise a genuine issue of material fact. Further, there is an issue of fact as to the proximate cause of plaintiffs' injuries, since defendants have pointed to evidence of unforeseen leaking utilities next to the construction site that could have been the cause of the injuries. Moreover, the motion court properly denied plaintiffs' pre-discovery motion on the basis of prematurity, since there are facts upon which the motion is predicated that are “clearly not within the knowledge of [defendants]” ( Antunes v. 950 Park Ave. Corp., 149 A.D.2d 332, 333, 539 N.Y.S.2d 909 [1st Dept.1989] [internal quotation marks omitted] ).
As the motion court noted, plaintiffs' verified amended complaint seeks damages for injury allegedly suffered to the entire condominium building, common elements and all. It is uncontested that plaintiffs lack standing to seek such damages; accordingly, defendant Urban's cross motion for partial summary judgment should have been granted to the extent indicated ( Bd. of Mgrs. of the Chelsea 19 Condominium v. Chelsea 19 Assoc., 73 A.D.3d 581, 581, 905 N.Y.S.2d 8 [1st Dept.2010] ).
We have considered plaintiffs' remaining contentions and find them unavailing.