Opinion
Index No. 525101/2023 Seq. Nos. 001,002
09-19-2024
Abu Roni, Plaintiffs, v. SHS Bay Ridge, LLC and GSPP 534 63rd Street, LLC, Defendants.
Unpublished Opinion
DECISION/ORDER
DEVIN P. COHEN JUSTICE
Recitation, as required by CPLR §2219 (a), of the papers considered in the review of this Motion
Papers - Numbered
Notice Of Motion and Affidavits Annexed......1
Order to Show Cause and Affidavits Annexed. Answering Affidavits .............
Replying Affidavits.......... 2
Exhibits. -........, ..... ........3
Other ................
Upon the foregoing papers, defendant GSPP 534 63rd Street (GSPP)'s motion to dismiss (Seq. 001) and SHS Bay Ridge (SHS)'s motion to dismiss (Seq. 002) are decided as follows: Introduction
Plaintiff commenced this action to recover for damages he claims to have sustained on August 12, 2022, while working on the roof of a premises located at 534 63 rd Street, Brooklyn, New York. The premises was owned by SHS and leased by GSPP. The roof lease agreement between GSPP and SHS Bay Ridge, LLC (SHS) is dated June 2, 2021, GSPP's lease provides that the ''Landlord must complete repairs/re-roofing" before Tenant can commence Construction of the solar array (Lease at § 9 | a|). SHS and GSPP retained the same contractor, AMS Construction Corp, (AMS), to perform both the roof-repair work and the installation of the solar panels (AMS contract and rider). Plaintiff was employed by AMS. GSPP was not a party to the contract between SHS and AMS that concerned roof repairs.
Analysis
A motion to dismiss is not a substitute for a motion for summary judgment, and considerations about whether a party may one day prevail on summary judgment play no part in deciding a pre-answer motion to dismiss (Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman &Dicker. LLP, 38 A.D.3d 34, 38 [2d Dept 2006]), CPLR3211 (a)(1)
To dismiss a claim pursuant to CPLR 3211 (a) (1), the movant must produce documents that resolve "all factual issues, as a matter of law, and conclusively [dispose] of the plaintiffs claim" (534 K, LLC v Flagstar Bank, FSB, 187 A.D.3d 971 [2d Dept 2020]; see also Braun Seller v Dahan, 173 A.D,3d 803, 805 [2d Dept 2019]). Documentary evidence for the purpose of this statute includes "out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable" (McDonald v O'Connor, 189 A.D.3d 1208, 1210 [2d Dept 2020]).
GSPP relies on: the affidavit of Jason Kuflik, manager of GSPP 534 63rd St, LLC,which is provided primarily for the purpose of authenticating the lease between SHS and GSPP, GSPP's contract with AMS, the change order issued as part of AMS's work on the solar array, the electrical permit issued to AMS pursuant to the work it was performing for GSPP, and permit for installation issued pursuant to the contract with AMS. The purported Phase II change order dated December 15, 2022, to show that AMS had not begun Phase II on or before August 12, 2022, the date of plaintiff s alleged injury.
Technically, Mr. Kuflik is the manager of GSPP Holdco, LLC, which is the sole member and manager of GSPP NY I, LLC, which is the sole member and manager of GSPP 534 63rd St, LLC.
Although GSPP does submit documents indicating that solar array work had not commenced on the date of plaintiff s alleged accident, GSPP's lease was in effect several months before plaintiff s alleged accident. Moreover, GSPP did have a viable contract with AMS at the time of plaintiff s alleged accident. A party is an "owner," as contemplated by the Labor Law, when that party "has an interest in the property and ... fulfilled the role of owner by contracting to have work performed for his benefit" (Cruz v 1142 Bedford Avenue, LLC, 192 A.D.3d 859, 865 [2d Dept 2021 ], quoting Copertino v Ward, 100 A.D.2d 565, 566 [2d Dept 1984]). As an initial matter, GSPP identifies itself as the "owner" of the premises in its Phase II contract with AMS, which makes it aprima facie statutory defendant. Moreover, GSPP's documentary submissions only show what the order of operations for the project were supposed to be. These documents do not, and cannot, demonstrate that GSPP did not have representatives on site interacting with, and potentially directing, AMS or its sub-contractors prior to Phase II. These are issues that require discovery and are not resolved by the documents submitted to the court.
Therefore, GSPP's motion to dismiss (Seq. 001) is denied.
CPLR 3211 (a) (7)Defendant SHS seeks dismissal pursuant to CPLR 3211 (a) (7). "Under CPLR 3211 (a) (7), the applicable test is whether the pleading states a cause of action, not whether the proponent of the pleading, in fact, has a meritorious cause of action ... The court must determine whether, accepting as true the factual averments of the complaint and according the plaintiff the benefits of all favorable inferences which may be drawn therefrom, the plaintiff can succeed upon any reasonable view of the facts stated" (Boar d of Educ. Of City School Dist. Of City of New Rochelle v County of Westchester, 282 A.D.2d 561 [2d Dept 2001]).
Although GSPP also cites CPLR 3211 (a) (7) in its papers, all of GSPP's arguments are based on CPLR 3211 (a) (1). Therefore, GSPP's motion purportedly made under CPLR 3211 (a) (7) is denied as it is not supported.
SHS argues that the plaintiff s complaint fails to state a cause of action under the New York Labor Law. In essence, SHS contends that the roof was too flat for the plaintiff to have fallen or rolled off arid that plaintiff s contentions are too vague and unbelievable.
Plaintiffs complaint alleges that SHS was the owner of the premises (complaint at ¶ 7), rendering SHS a statutory defendant under the Labor Law if taken as true (see Copertiho, supra). Plaintiff claims that there was a construction project at the premises (id. at ¶ 25), that the plaintiff was working on the roof of the premises cleaning a pipe (id. at ¶ 32-33, 35), and that plaintiff was sprayed in the eyes with "thinner" and then struck, causing him to roll down the roof (id. at ¶ 34), Plaintiff alleges that this accident was caused by the negligence of the defendants (id. at ¶¶ 38-45). Plaintiff finally alleges that defendants violated Labor Law §§ 240 (1-3), 241 (6), and the Industrial Codes (a predicate for maintaining a Labor Law § 241 [6] claim) (id. at ¶¶ 46-51), Affording the plaintiff "all favorable inferences," the plaintiffs complaint states a cause of action under the New York Labor Law. SHS's arguments and evidentiary submissions address the merits of plaintiff s cause of action, which is not the appropriate assessment on a CPI R 3211 motion to dismiss.
SHS's motion is, therefore, denied, Conclusion
GSPP's motion to dismiss (Seq. 001) and SHS's motion to dismiss (Seq. 002) are denied. Both defendants shall interpose an answer within thirty days of the entry of this order.
This constitutes the decision and order of the court.