Opinion
006274/08
09-22-2011
Long Island Lighting Company d/b/a LIPA, Plaintiff, v. Granite Building 2, LLC, LALEZARIAN DEVELOPERS, INC., LALEZARIAN PROPERTIES, LLC, KULKA CONTRACTING, LLC, KULKA CONSTRUCTION CORP., and G.I.C. CONSTRUCTION COMPANY, INC. and EASTERN LOCATING SERVICES, INC., Defendants. G.I.C. CONSTRUCTION COMPANY, INC., Third-Party Plaintiff, EASTERN LOCATING SERVICES, INC., Third-Party Defendant, KULKA CONTRACTING, LLC, Second Third-Party Plaintiff, ONE CALL CONCEPTS, INC. and DIGNET OF NYC and LONG ISLAND, INC., Second Third-Party Defendants,
Counsel for Plaintiff, Long Island Lighting Company d/b/a LIPA: Cullen and Dykman LLP George D. Argiriou, Esq. Counsel for Defendants, Granite Building 2, LLC, Lalezarian Developers, Inc. and Lalezarian Properties, LLC: Segal McCambridge Singer & Mahone, Ltd. Gregory Harris, Esq. Counsel for Defendant/Second Third-Party Plaintiff, Kulka Contracting, LLC and Kulka Construction Corp.: Cascone & Kluepfel, LLP Gary A. Manso, Esq. Counsel for Defendant/Third-Party Plaintiff, G.I.C. Construction Co.: Havkins Rosenfeld Ritzert & Varriale, LLP Tara Fappiano, Esq. Counsel for Defendant/Third-Party Defendant, Eastern Locating Services, Inc.: Mound, Cotton, Wollan & Greengrass Paul S. Danner, Esq. Counsel for Second Third-Party Defendants, One Call Concepts, Inc. and Dignet of NYC and Long Island, Inc.: Harris Beach, PLLC Abbie E. Fuchs, Esq.
Counsel for Plaintiff, Long Island Lighting Company d/b/a LIPA: Cullen and Dykman LLP George D. Argiriou, Esq.
Counsel for Defendants, Granite Building 2, LLC, Lalezarian Developers, Inc. and Lalezarian Properties, LLC: Segal McCambridge Singer & Mahone, Ltd. Gregory Harris, Esq.
Counsel for Defendant/Second Third-Party Plaintiff, Kulka Contracting, LLC and Kulka Construction Corp.: Cascone & Kluepfel, LLP Gary A. Manso, Esq.
Counsel for Defendant/Third-Party Plaintiff, G.I.C. Construction Co.: Havkins Rosenfeld Ritzert & Varriale, LLP Tara Fappiano, Esq.
Counsel for Defendant/Third-Party Defendant, Eastern Locating Services, Inc.: Mound, Cotton, Wollan & Greengrass Paul S. Danner, Esq.
Counsel for Second Third-Party Defendants, One Call Concepts, Inc. and Dignet of NYC and Long Island, Inc.: Harris Beach, PLLC Abbie E. Fuchs, Esq.
Randy Sue Marber, J.
Papers Submitted:
Notice of Motion (Mot. Seq. 08).................x
Affirmation in Partial Opposition................x
Affirmation in Opposition............................x
Reply Affirmation........................................x
Reply Affirmation........................................x
Order to Show Cause (Mot. Seq. 09)...........x
Affirmation in Opposition............................x
Affirmation in Opposition............................x
Affirmation in Opposition............................x
Notice of Motion (Mot. Seq. 10)..................x
Affirmation in Support.................................x
Memorandum of Law...................................x
Affirmation in Partial Opposition................x
Affirmation in Partial Opposition................x
Affirmation in Partial Opposition................x
Reply Affirmation........................................x
Upon the foregoing papers, the motion (Mot. Seq. 08) by the Defendants, Granite Building 2, LLC, Lalezarian Developers, Inc., Lalezarian Properties, LLC (hereinafter collectively referred to as "Lalezarian/Granite") seeking an order pursuant to CPLR § 3212 granting them summary judgment dismissing the Plaintiff's amended complaint and all cross-claims asserted against them; the application by the Defendant, Lalezarian/Granite, brought on by Order to Show Cause (Mot. Seq. 09), seeking an order accepting as timely, nunc pro tunc, the aforementioned motion for summary judgment dated and served on May 4, 2011; and the motion (Mot. Seq. 10) by the Defendant/Third-Party Defendant, Eastern Locating Services, Inc. (hereinafter referred to as "ELS") seeking an order dismissing all claims, cross-claims, third-party claims and counterclaims against ELS, or in the alternative, granting ELS a conditional order of indemnification from the Second Third-Party Defendants, One Call Concepts, Inc. and Dignet of NYC and Long Island, Inc. (hereinafter collectively referred to as "One Call") and dismissing the Plaintiff's claim for in-house labor costs as well as any alleged associated employee benefits and burdens and considering the instant motion timely pursuant to CPLR § 3212 (a), are determined as hereinafter provided.
This action involves a construction related incident which resulted in property damage to a buried, oil-insulated, 183kv electrical transmission cable owned by the Plaintiff, LIPA. The accident occurred on April 23, 2007 when LIPA's cable was struck by an excavating machine operated by the Defendant, Third-Part Plaintiff, G.I.C. CONSTRUCTION COMPANY, INC. (hereinafter referred to as G.I.C.) on the premises of a then active construction site known as Granite Building 2 located at 99 Marcus Avenue in Lake Success, New York. The damage to LIPA's cable also resulted in a spill of the insulating oil which required cleanup and environmental remediation. The Parties :
Long Island Lighting Company d/b/a LIPA ("LIPA") was and is a New York Corporation, and a wholly owned subsidiary of the Long Island Power Authority, a corporate municipal instrumentality of the State of New York. LIPA was and still is the owner of certain facilities used for the transmission of electricity, including, but not limited to, an underground 183kv transmission cable ("cable'), a portion of which is located underground on property and land adjacent to Union Turnpike, west of New Hyde Park Road in Lake Success, Town of North Hempstead, County of Nassau, State of New York.
Granite Building 2, LLC was the lessee of commercial real property owned by the Nassau County Industrial Development Agency (a non-party) located at 1991 Marcus Avenue in Lake Success, New York (the "site"). Granite was developing an office building garage on the site in a project known as Granite Building 2.
Lalezarian Developers, Inc. is a New York Corporation that created Granite Building 2, LLC for the purpose of contracting for the development of the building to be constructed at the Granite Building 2 project.
Lalezarian Properties, LLC is a marketing entity created by Lalezarian Developers for purposes of marketing the properties and services of Lalezarian Developers.
The Defendant, Kulka Contracting, LLC, was the construction manager hired by Granite Building 2, and was responsible for the coordination of the trades on the Granite Building 2 project. Mike DiChiaro was Kulka's site superintendent.
G.I.C. was the excavation contractor hired by Granite pursuant to a written agreement (Exhibit Z) with a separate written indemnification agreement (Exhibit AA). Jimmy Forgione, an G.I.C. employee, was operating the excavating machine that struck LIPA's underground cable on April 23, 2007.
The Defendant, Eastern Locating Services, Inc. ("ELS") is a mark-out contractor retained by various utility operators on Long Island, including LIPA, to mark the locations of underground facilities owned and operated by the utilities. ELS performed the mark-out that was requested for this project in September 2006, approximately seven months prior to the subject occurrence.
The Third-Party Defendants, One Call Concepts, Inc. and Dignet of NYC and Long Island, Inc., are essentially telephone clearinghouses that take calls from excavators requesting mark-out services and route those requests for mark-outs to the appropriate mark-out contractor.
In April 2008, the Plaintiff commenced this action to recover monetary damages for damage to LIPA's property and expenses incurred by LIPA in cleaning an oil spill allegedly caused when an underground, oil-insulated electrical cable was struck and damaged by an excavator on April 23, 2007. LALEZARIAN/GRANITE
Lalezarian/Granite moves for an order pursuant to CPLR § 3212 dismissing the Amended Complaint and all cross-claims against it. The Plaintiff alleges that Lalezarian/Granite was negligent in performing, planning or supervising certain excavation that damaged the Plaintiff's underground transmission cable and that Lalezarian/Granite violated General Business Law § 760-767 (also known as Industrial Code 53), and New York Labor Law 28 (also known as New York Labor Law 875-883) by performing negligent excavation and/or not calling for a mark-out of the location of underground utilities prior to the excavating.
The Plaintiff has not opposed Lalezarian/Granite's motion.
Initially, this Court must decide whether or not to deny Lalezarian/Granite's motion as untimely. The Court's Certification Order of November 5, 2010 specified, inter alia, that all motions for summary judgment must be filed within 90 days of the filing of the Note of Issue. The Note of Issue was filed on February 3, 2011. Ninety days from that date is May 4, 2011. Lalezarian/Granite's motion was served by mail on all parties on May 4, 2011. That afternoon, the signed original was given to Lalezarian/Granite's counsel's filing agent, United Lawyers Service, to be filed with the court. The filing agent filed the motion with the court on May 5, 2011. Hence, the filing delay was some 17 hours or one (1) calendar day after the date specified for filing by the Certification Order.
CPLR § 3212 (a) provides that "the court may set a date after which no [dispositive] motion may be made" and "[i]f no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown."
In Brill v. City of New York, 2 NY3d 648 (2004), the Court of Appeals expressly stated that the statutory deadline should be strictly enforced, in order to prevent the filing of "[e]leventh-hour summary judgment motions," a practice that "ignores statutory law, disrupts trial calendars and undermines the goals of orderliness and efficiency in state court practice" (Id. at 650-651). The court concluded that "good cause" requires a "satisfactory explanation for the untimeliness, rather than simply permitting meritorious, non-prejudicial filings, however tardy" (Id. at 652; see also Miceli v. State Farm Mut. Auto Ins. Co., 3 NY3d 725 [2004]; Demacopolous v. City of New York, 73 AD3d 842 [2d Dept. 2010]).
Further, "it is within this Court's discretion to disregard a self-imposed deadline to file a motion for summary judgment when that deadline is set at less than 120 days from filing the note of issue, even absent a showing of good cause.' The instant motion was filed well within the 120 day period, in fact, it was logged in just a day beyond what would have been the last date for filing as set by the Court. Therefore, the Court will deem the Defendants' motion for summary judgment to be timely and will decide it on the merits." Bridgett Burroughs v. MTA-Long Island Bus, 26 Misc 3d 1218(A) (Sup. Ct., Nassau County, February 2, 2010, Marber, J.).
Lalezarian/Granite contends that it is entitled to summary judgment dismissing all claims and cross-claims against it on the grounds that it did not perform any construction work at the site; and it did not direct or supervise any of the contractors at the site. Lalezarian/Granite further contends that neither Lalezarian or Granite are "excavators" subject to General Business Law §§ 763-765 as they did not perform any excavation work, but merely leased the property.
General Business Law Article 36 and 16 NYCRR 753 are statutes designed to protect underground facilities by setting forth procedures with which all excavators must comply prior to and during excavation. See Verizon New York v. Village of Athens, 43 AD3d 526 (3d Dept. 2007). These laws do not contain any procedures or requirements for parties who are not performing the excavation.
General Business Law §§ 763-765 outline the duties of excavators in preparing and conducting excavations. These sections mandate that an excavator shall not commence/engage in any excavation until notice is made of the location and date of the proposed excavation is to take place. These statutory sections apply only to "operators" (utilities) and "excavators." The statutory definition of "excavators" is set forth in 16 NYCRR 753-1.2(i), and does not include property owners or lessees. See, Level 3 Commns., Inc. v. Petrillo Contracting, Inc. 73 AD3d 865, 866-67 (2d Dept. 2010).
16 NYCRR 753-1.2 (i) provides that an "excavator" is:
Any person who is engaged in a trade or business which includes the carrying out of excavation or demolition; provided, however, that an individual employed by an excavator and having no supervisory authority other than the routine direction of employees over an excavation or demolition, shall be deemed an excavator for the purpose of this part. The act of any employee or agent of any excavator acting within the scope of his or her official duties or employment shall be deemed to be the act of such excavator.
New York General Business Law § 760 (5) contains a definition of "excavator" nearly identical to that cited above. As defined in this section:
"Excavator" means a person who is engaged in a trade or business which includes the carrying out of excavation or demolition, provided, however, that an individual employed by an excavator, and having no supervisory authority, other than the routine direction of employees, over an excavation or demolition, shall not be deemed an excavator for the purposes of this article. In construing and enforcing the provisions of this article, the act of any employee or agent of any excavator acting within the scope of his or her official duties or employment shall be deemed to be the act of such excavator.
16 NYCRR 753-3.1 (a) provides that the actual excavator is the entity charged with notifying utility operators of the proposed excavation. Here, the construction manager (Kulka) notified the One-Call Center.
G.I.C. opposes the motion on the grounds that: (a) the motion for summary judgment was not filed on a timely basis as it was filed on May 5, 2011; (b) the motion is procedurally defective as the notice of motion does not state a request for contractual indemnity; and (c) on May 5, 2011, the Court stated that the issues raised in this case are "screaming questions of fact." Specifically, G.I.C. asserts that Granite and Lalezarian were more than mere "lessees" on this project.
Granite was the party that hired the construction manager, Kulka, to oversee the project, which does absolve it of the responsibility to ensure that work being performed at its request is performed in a safe and reasonable manner. That included the enforcement of all rules, regulations, statutes and law applicable to the work being performed. Granite is also the party that hired G.I.C. and it had a similar duty to ensure that the work that G.I.C. was doing was performed in a safe manner, whether through Kulka or otherwise (although G.I.C. maintains that the pipe was not properly marked and, thus, would have been struck regardless of G.I.C.'s conduct on site). There is also testimony connecting Lalezarian Developers to this project and questions of fact as to its involvement.
ELS takes no position with respect to Lalezarian's contention that it cannot be held liable under General Business Law Article 36 and 16 NYCRR 753 because it was not an "excavator." ELS asserts that recent discovery raises a question of material fact as to whether Lalezarian did "direct or supervise" the work of G.I.C. Hence, ELS' cross-claims against Lalezarian for contribution and indemnification should not be dismissed.
Generally, "a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor's negligent acts." Brothers v. New York State Electric & Gas Corp, 11 NY3d 251 (2008), quoting Kleeman v. Rheingold, 81 NY2d 270, 273 (1993). The primary justification for this rule is that "one who employs an independent contractor has no right to control the manner in which the work is to be done, and, thus, the risk of loss is more sensibly placed on the contractor" (id. at 274). This general rule, however, is subject to various exceptions, and "it has been observed that the general rule is now primarily important as a preamble to the catalog of its exceptions' " (id., quoting Pacific Fire Ins. Co. v. Kenny Boiler & Mfg. Co., 201 Minn 500, 503, 277 NW 226, 228 [1937]).
The exceptions have been articulated in various ways. The Restatement groups them into three broad categories:
"1. Negligence of the employer in selecting, instructing, or supervising the contractor.
2. Nondelegable duties of the employer, arising out of some relation toward the public or the particular plaintiff [and]
3. Work which is specifically, peculiarly, or inherently' dangerous" (Restatement [Second] of Torts § 409, Comment b; see also Kleeman v. Rheingold, supra, at p. 274 [citing the Restatement]; Chainani v. Board of Educ. of City of NY, 73 NY2d 370, 381 [1995] ][nondelegable duty exception "may be invoked where a particular responsibility is imposed upon a principal by statute or regulation . . . or where the task at issue is inherently dangerous" (citations omitted)].
In Rosenberg v. Equitable Life Assurance Society of U.S., 79 NY2d 663, 668 (1992), the Court enumerated the exceptions somewhat differently, encompassing those circumstances "where the employer (1) is under a statutory duty to perform or control the work, (2) has assumed a specific duty by contract, (3) is under a duty to keep premises safe, or (4) has assigned work to an independent contractor which the employer knows or has reason to know involves special dangers inherent in the work or dangers which should have been anticipated by the employer."
In later cases involving vicarious liability for the negligence of an independent contractor, however, we have spoken more generally about nondelegable duties, explaining that "no clearly defined criteria" exist (Kleeman v. Rheingold, supra, at p. 275). Rather "a sui generis inquiry" must be conducted because "the conclusion ultimately rests on policy consideration" (id.).
It has been held that summary judgment is appropriate where the evidence on the issue of control of the method and means of the work presents no conflict. Concord Village Owners, Inc. v. Trinity Communications Corp., 61 AD3d 410 (1st Dept. 2009); Goodwin v. Comcast Corp., 42 AD3d 322 (1st Dept. 2007). At bar, the record presents triable issues of fact as to Lalezarian/Granite's role in directing and supervising G.I.C.'s work. Hence, Lalezarian/Granite is not entitled to summary judgment dismissing the complaint.
Next, Lalezarian/Granite's asserts that it is entitled to contractual indemnification from G.I.C. pursuant to the terms of the indemnification and contribution agreement between the parties.
The indemnification and contribution agreement between Granite Building 2, LLC and G.I.C. (Exhibit AA) provides, in pertinent part:
To the fullest extent permitted by law, Contractor [GIC] shall indemnify, hold harmless and defend Granite Building 2, LLC against any and all losses, claims, actions, demands, damages, liabilities, or expenses, including but not limited to attorney's fees and all other costs of defense, by reason of liability imposed by law or otherwise upon Granite Building 2, LLC for damages because of bodily injuries, including death at any time resulting therefrom, sustained by any person or persons, including Contractor's employees, or on account of damages to property including loss or use therefrom, arising directly or indirectly from performance of Contractor's work or from any of the acts or omissions on the part of Contractor, its employees, agents, representatives, material men, suppliers, and/or subcontractors. If such indemnity is made void or otherwise impaired by any law controlling the construction thereof, such indemnity shall be deemed to conform to the indemnity permitted by law, so as to require indemnification in whole or in part, to the fullest extent permitted by law (emphasis added) (see Exhibit AA).
Lalezarian/Granite argues that since the Plaintiff claims to have sustained property damage during the course of G.I.C.'s performance of work at the Granite 2 project, the indemnification agreement has been triggered.
G.I.C. contends that the contract that forms the basis for these claims was not signed until after the date of the incident and there has been absolutely no showing by the moving Defendants that the parties were working pursuant to the terms and provisions of same. In addition, the contract is only between Granite and G.I.C. The Lalezarian Defendants have no contracts with G.I.C. and, therefore, cannot seek contractual indemnity.
The branch of the Lalezarian/Granite Defendant's motion which is for summary judgment on so much of its cross-claim against G.I.C. as sought contractual indemnification should be DENIED as premature. "The right to contractual indemnification depends upon the specific language of the contract" (Lange v. Primary Home Care Services, Inc., 83 AD3d 1007 [2d Dept. 2007], quoting Sherry v. Wal-Mart Stores E., L.P., 67 AD3d 992, 994 [2d Dept. 2009] [internal quotation marked omitted]; see D'Angelo v. Builders Group, 45 AD3d 522, 524 [2d Dept. 2007]. The indemnification provision at issue obligates G.I.C. to defend and hold harmless for any claims actions, litigation, or damages arising out of G.I.C.'s act or omission of G.I.C., an award of summary judgment would be premature (see D'Angelo v. Builders Group, supra; Quiroz v. Beitia, 68 AD3d 957 [2d Dept. 2009]; Bryde v. CVS Pharmacy, 61 AD3d 907, 908-909 [2d Dept. 2009].
This court will now address ELS's motion for summary judgment.
LIPA commenced an action against ELS for breach of contract due to ELS's alleged failure to mark out an underground transmission cable located on the property adjacent to Union Turnpike, west of New Hyde Park Road, Lake Success, New York. ELS claims that it was not retained to mark out the property "west of New Hyde Park Road," but rather, it was retained to mark out the underground facilities "east of New Hyde Park Road."
G.I.C. commenced a third party action against ELS for common law contribution and indemnification. ELS denied all of the material allegations in LIPA's Verified Amended Complaint and in G.I.C's Third-Party Complaint. ELS further claims that if it is found liable to LIPA and/or G.I.C., then such liability shall derive from the acts or affirmative wrongdoing on the part of Dignet.
ELS now moves for summary judgment for an order: (a) dismissing all claims, cross-claims, third-party claim and counterclaims against ELS; or, in the alternative (b) granting ELS indemnification from the Second Third-Party Defendants, One Call Concepts, Inc. and Dignet of NYC and Long Island, Inc. (collectively "One Call"); and (c) dismissing the Plaintiff, Long Island Lighting Company d/b/a LIPA's ("LIPA") claim for in-house labor costs as well as any alleged associated employee benefits and burdens; (d) considering the instant motion timely pursuant to CPLR § 3212 (a); and (e) for such other and further relief as this Court deems appropriate.
The record establishes that the motion for summary judgment filed by ELS on July 18, 2011, was filed over two months after the 90-day deadline prescribed by the Court in its November 5, 2010 Certification Order had expired (see, CPLR § 3212 [a]; Miceli v. State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 727 [2004]; Brill v. City of New York, supra; Anderson v. Kantares, 51 AD3d 954 [2d Dept. 2008]; see also Lyebyedyev v. Hoffman, 84 AD3d 75 [2d Dept. 2011]). The Note of Issue was filed on February 3, 2011.
Accordingly, the Defendant, ELS is required to establish "good cause" for the delay, without which "the court has no discretion to entertain even a meritorious, nonprejudicial motion for summary judgment" (Greenpoint Props., Inc. v. Carter, 82 AD3d 1157, 1158 [2d Dept. 2011]; see Miceli v. State Farm Mut. Auto. Ins. Co., supra; Brill v. City of New York, supra, at p. 652; Anderson v. Kantares, supra; Glasser v. Abramovitz, 37 AD3d 194 [1st Dept. 2007].
Here, the moving Defendants have not demonstrated the existence of good cause (see Miceli v. State Farm Mut. Auto. Ins. Co., supra; Lyebyedyev v. Hoffman, supra; Van Dyke v. Skanska USA Civ. Northeast, Inc., 83 AD3d 1049 [2d Dept. 2011]; Finger v. Saal, 56 AD3d 606 [2d Dept. 2008]).
The Defendants' counsel's explanation for the belated filing of the motion was that "[t]here was significant post-Note of Issue developments, including all discovery with One Call, amended pleadings, new claims and additional accounting, depositions, including One Call's depositions. Indeed, party discovery, which was critical to this motion, was only recently completed in late June 2011." (¶ 63 of John Parker's Affirmation in Support). The Examination Before Trial of Mr. Holzer was conducted on April 29, 2011. On May 4, 2011, Mr.Danner, counsel for ELS, wrote a letter to this Court stating, inter alia, that "in light of Mr. Holzer's deposition testimony, among other facts, ELS intends to file a late motion for summary judgment . . .." Significant outstanding discovery may, in certain circumstances, constitute good cause for the delay in making a motion for summary judgment" (Greenpoint Properties, Inc. v. Carter, supra; Tower Ins. Co. of NY v. Razy Assoc., 37 AD3d 702, 703 [2d Dept. 2007]; see Grochowski v. Ben Rubins, LLC, 81 AD3d 589 [2d Dept. 2011]; Jung v. Zheng, 73 AD3d 682, 863 [2d Dept. 2010]; Richardson v. JAL Diversified Mgt., 73 AD3d 1012, 1012-1013 [2d Dept. 2010]; McArdle v. 123 Jackpot, Inc., 51 AD3d 743, 745 [2d Dept. 2008]; Sclafani v. Washington Mut., 36 AD3d 682, 682 [2d Dept. 2007]). Here, however, contrary to the Defendant's contention, the discovery outstanding at the time the Note of issue was filed was not essential to its motion (see Tower Ins. Co. of NY v. Razy Assoc., supra, at p. 703). In the absence of a showing of good cause for the delay in filing a motion for summary judgment, "the court has no discretion to entertain even a meritorious, nonprejudicial motion for summary judgment" (John P. Krupski & Bros., Inc. v. Town Bd. of Town of Southold, 54 AD3d 899, 901 [2d Dept. 2008]; see Brill v. City of New York, supra.
While it has been held that "[a] cross-motion for summary judgment made after the expiration of the statutory 120-day period may be considered by the court, even in the absence of good cause, where a timely motion for summary judgment was made seeking relief nearly identical to that sought by the cross-motion" Leonardi v. Cruz, 73 AD3d 580 [1st Dept. 2010]; Filannino v. Triborough Bridge & Tunnel Auth., 34 AD3d 280, 281 [1st Dept. 2006], app dism. 9 NY3d 862 [2007], ELS's motion does not seek the same relief as Lalezarian/Granite's motion.
Accordingly, it is hereby
ORDERED, the motion by the Defendants, Granite Building 2, LLC, Lalezarian Developers, Inc., Lalezarian Properties, LLC seeking an order pursuant to CPLR § 3212 granting them summary judgment dismissing the Plaintiff's amended complaint and all cross-claims asserted against them, is DENIED; and it is further
ORDERED, that the application by the Defendant, Lalezarian/Granite, brought on by Order to Show Cause (Mot. Seq. 09), seeking an order accepting as timely, nunc pro tunc, the aforementioned motion for summary judgment dated and served on May 4, 2011, is GRANTED; and it is further
ORDERED, that the motion (Mot. Seq. 10) by the Defendant/Third-Party Defendant, Eastern Locating Services, Inc. (hereinafter referred to as "ELS") seeking an order dismissing all claims, cross-claims, third-party claims and counterclaims against ELS, or in the alternative, granting ELS a conditional order of indemnification from the Second Third-Party Defendants, One Call Concepts, Inc. and Dignet of NYC and Long Island, Inc. (hereinafter collectively referred to as "One Call") and dismissing the Plaintiff's claim for in-house labor costs as well as any alleged associated employee benefits and burdens and considering the instant motion timely pursuant to CPLR § 3212 (a), is DENIED.
This constitutes the Decision and Order of the Court.
All applications not specifically addressed are DENIED.
DATED:Mineola, New York
September 22, 2011
_______________________________
Hon. Randy Sue Marber, J.S.C.