Opinion
Index 150065/2012 590937/2013 595346/2021
03-17-2022
ROOPAWATTIE LATCHMAN, Plaintiff, v. 221 EAST 36TH OWNERS CORP., VANTAGE PROPERTIES, LLC, PARKER EAST 36TH APARTMENTS, LLC. (3RD PARTY DEFT.), PARKER MANAGEMENT NEW YORK, LLC, CENTURY OPERATING CORPORATION, CENTURY MANAGEMENT SERVICES, INC., CENTURY MANAGEMENT SERVICES, II, INC., VANTAGE MANAGEMENT SERVICES, LLC., Defendants. 221 EAST 36TH OWNERS CORP. Plaintiff, v. V-TECH CONSTRUCTION SERVICES, LLC Defendant. PARKER EAST 36TH APARTMENTS, LLC. (3RD PARTY DEFT.), PARKER MANAGEMENT NEW YORK, LLC Plaintiff, v. V-TECH CONSTRUCTION SERVICES, LLC Defendant.
Unpublished Opinion
DECISION + ORDER ON MOTION
LAURENCE LOVE, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 007) 202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 214, 216, 217, 218, 221, 222, 223, 224, 225, 226, 227, 228, 229, 230, 231, 232, 233, 234, 235, 236 were read on this motion to/for RENEWAL.
The following read on Defendant - Vantage Properties, LLC's motion for leave to renew, CPLR 2221(e), and Defendant - Vantage Management Services, LLC's motion for summary judgment, per CPLR 3212.
A summary judgment motion made by Vantage Properties, LLC was denied on November 16, 2012 (see NYSCEF Doc. No. 207). Defendant contends that, "[a]t the time the motion was made, depositions had not been conducted. It is submitted that there now exists a record of testimony not available at the time of the making of the previous motion" (see NYSCEF Doc. No. 203 Par. 5).
It is difficult for the Court to determine which is stranger - the fact that no one moved to Enter the Order following the November 16, 2022 denial or that defendant waiting nine plus years to renew same.
This is a personal injury case in which the Plaintiff has made claims for alleged violations of Labor Law 200, 240, 241. Plaintiff alleges to have fallen from a plank being balanced on a ladder while performing work in Unit 8P of the premises at 225 East 36th Street, New York, New York on August 24, 2011.
A motion to renew must be based upon new facts that were not offered in the prior motion, and the party must set forth a reasonable justification for the failure to present such facts in the prior motion (see, CPLR § 2221[e]; Delvecchio v. Bayside Chrysler Plymouth Jeep Eagle Inc., 271 A.D.2d 636 [2d Dept 2000]; McNeill v. Sandiford, 270 A.D.2d 467 [2d Dept 2000]; Shapiro v. State, 259 A.D.2d 753 [2d Dept 1999]); or the motion must demonstrate that there has been a change in the law that would change the prior determination (see, CPLR § 2221[e]; Delvecchio v. Bayside Chrysler Plymouth Jeep Eagle Inc., supra).
Co - Defendants' Affirmation in Opposition states, "V - Tech Construction Services, LLC was the Plaintiff's employer. V - Tech is affiliated with and has a symbiotic relationship with its parent company Vantage Management Services, LLC, and Vantage Properties LLC (see NYSCEF Doc. No. 221 Par. 4).
Co - Defendant submits the contract between V - Tech and Parker East 36th Street Apartments, LLC (see NYSCEF Doc. No. 227), the Certificate of Insurance provided by Vantage Management Services to Parker East 36th Street, LLC (see NYSCEF Doc. No. 228), and Plaintiff's employment application which states, "provided by Vantage Management Services, LLC" (see NYSCEF Doc. No. 229).
Vantage Properties LLC and Vantage Management Services LLC contend that, "[a]t the time the motion was made (Summary Judgment Decision of November 19, 2012), depositions had not been conducted. It is submitted that there now exists a record of testimony not available at the time of the making of the previous motion, which would change the prior Courts determination in denying the motion made on behalf of Vantage Properties, LLC" (see NYSCEF Doc. No. 203 Par. 6).
In Delvecchio, "the party must set forth a reasonable justification for the failure to present such facts in the prior motion." As depositions were not done before the summary judgment motion was made, Vantage Properties LLC has not shown a "reasonable justification for the failure to present such facts in the prior motion."
Further, Vantage Properties LLC and Vantage Management Services LLC's Affirmation in Support states, "as corroborated in the Affidavit of former General Counsel, Robert Odell, despite the fact that V - Tech had the same ownership as Vantage Management, LLC and Vantage Properties LLC, V - Tech was a totally independent entity" (see NYSCEF Doc. No. 203 Par. 21).
This Court agrees with the Affirmation in Opposition, "[v]antage has failed to demonstrate that it is entitled to summary judgment and issues of fact as to whether Vantage dominated and controlled V - Tech, the entity that employed the plaintiff, supervised the work he was performing, and had contractual obligations to defend, indemnify and procure insurance on behalf of the co - defendants in this matter" (see NYSCEF Doc. No. 221 Par. 6).
"To grant summary judgment, it must clearly appear that no material and triable issue of fact is presented." Glick & Dolleck Inc v Tri-Pac Export Corp, 22 N.Y.2d 439, 441 (1968). "Summary judgment should not be granted where there is any doubt as to the existence of a factual issue or where the existence of a factual issue is arguable." Forrest v Jewish Guild for the Blind, 3 N.Y.3d 295, 315 (2004).
ORDERED that Defendant - Vantage Properties, LLC's motion for leave to renew, CPLR 2221(e), is DENIED; and it is further
ORDERED that Defendant - Vantage Management Services, LLC's motion for summary judgment, per CPLR 3212, is DENIED.