Doran v. JP Walsh Realty Grp., LLC, Index No.: 26178/2012

CourtUnited States State Supreme Court (New York)
Writing for the CourtWILLIAM B. REBOLINI Justice
Citation2018 NY Slip Op 31658 (U)
PartiesWayne Doran and Lisa Doran, Plaintiffs, v. JP Walsh Realty Group, LLC, Harbor Building Corp., McAvoy Construction Corp. and Granite Hill Construction Corp., Defendants.
Docket NumberIndex No.: 26178/2012
Decision Date16 July 2018

2018 NY Slip Op 31658(U)

Wayne Doran and Lisa Doran, Plaintiffs,
v.
JP Walsh Realty Group, LLC, Harbor Building Corp.,
McAvoy Construction Corp. and Granite Hill Construction Corp., Defendants.

Index No.: 26178/2012

SUPREME COURT - STATE OF NEW YORK I.A.S. PART 7 - SUFFOLK COUNTY

July 16, 2018


COPY

Short Form Order

PRESENT: WILLIAM B. REBOLINI Justice

Motion Sequence No.: 006; MG
Motion Date: 12/18/17
Submitted: 2/21/18

Motion Sequence No.: 007; MG
Motion Date: 1/17/18
Submitted: 2/21/18

Motion Sequence No.: 008; MG
Motion Date: 1/26/18
Submitted: 2/21/18

Attorney for Defendant
Harbor Building Corp.:

Bello & Larkin
150 Motor Parkway, Suite 405
Hauppauge, NY 11788

Attorney for Defendant
McAvoy Construction Corp.:

Farber Brocks & Zane, LLP
400 Garden City Plaza, Suite 100
Garden City, NY 11530

Attorney for Plaintiff:

Segan, Nemerov & Singer, P.C.
112 Madison Avenue
New York, NY 10016

Attorney for Defendant
JP Walsh Realty Group, LLC:

Foley Griffin
666 Old Country Road, Suite 305
Garden City, NY 11530

Clerk of the Court

Upon the following papers read on this application by defendant McAvoy Construction Corp. for an order dismissing the plaintiffs' complaint pursuant to CPLR 3211 (a)(1) and (7) and for summary judgment pursuant to CPLR 3212; Notice of Motion dated November 17, 2017, affirmation dated November 17, 2017, affidavit sworn to on October 22, 2013 and exhibits annexed thereto (Motion Sequence 006); Answering Affidavits of plaintiff Wayne Doran dated February 5, 2018 and plaintiffs' counsel dated February 8, 2018 and exhibits annexed thereto (Motion Sequence 006); Reply Affirmation of counsel for defendant McAvoy Construction Corp. dated February 16, 2018

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(Motion Sequence 006); upon the papers read on the application by defendant Harbor Building Corp. for an order granting it summary judgment pursuant to CPLR 3212; Notice of Motion dated December 13, 2017, affirmation dated December 13, 2017 and exhibits annexed thereto (Motion Sequence 007); Answering affidavits of plaintiff Wayne Doran dated February 5, 2018 and plaintiffs' counsel dated February 7, 2018 and exhibits annexed thereto (Motion Sequence 007); Reply Affirmation of counsel for defendant Harbor Building Corp. dated March 2, 2018 (Motion Sequence 007) ; upon the papers read on the application by defendant JP Walsh Realty Group, LLC for an order granting it summary judgment pursuant to CPLR 3212; Notice of Motion dated January 3, 2018, affidavit dated December 28, 2017, and affirmation of counsel for defendant JP Walsh Realty Group, LLC (Motion Sequence 008); Answering affidavits of plaintiff Wayne Doran dated February 5, 2018 and plaintiffs' counsel dated February 7, 2018, and exhibits annexed thereto (Motion Sequence 008); it is

ORDERED that the motions of the respective defendants (Motion Sequences 006, 007 and 008) are being consolidated for purposes of a determination herein; and it is further

ORDERED that the motion by defendant McAvoy Construction Corp. pursuant to CPLR 3211 (a)(1) and (a)(7) and CPLR 3212 is granted, as set forth more fully herein; and it is further

ORDERED that the motion by defendant Harbor Building Corp. pursuant to CPLR 3212 is granted, as set forth more fully herein; and it is further

ORDERED that the motion by defendant JP Walsh Realty Group, LLC pursuant to CPLR 3212 is granted, as set forth more fully herein.

PROCEDURAL HISTORY

By the filing of a summons and complaint on August 24, 2012 and a supplemental summons and amended verified complaint served on May 14, 2013, plaintiffs Wayne Doran ("plaintiff Doran" or "Doran") and Lisa Doran commenced this action seeking recovery for personal injuries allegedly sustained by plaintiff Doran as a result of a trip and fall accident which occurred on March 8, 2012 at approximately 7:15 a.m. at 367 Lake Avenue, St. James, New York (the "subject property"). The complaint alleges, inter alia, singularly, collectively, and in the alternative, that each defendant was the general contractor, construction manager, and agent of the owner in connection with the construction, erection and/or renovation being performed at the subject property, had prepared or caused to be prepared the plans and specifications for the work being performed at the subject property, and had hired and retained various contractors and subcontractors who performed work at the site. The complaint further alleges that each defendant supervised, inspected, directed, and controlled the construction, erection and/or renovation being performed at the subject property. It also is alleged that each defendant hired and retained Russ Tree Service to provide labor and services in connection with tree removal work at the subject property. Plaintiff Wayne Doran ("Doran") alleges that he was working for Russ Tree Services on March 8, 2012 and was caused to sustain personal injuries as a result of the negligence of defendants and as a result of the violation by defendants of sections 200 and 241 (6) of the Labor Law of the State of New York ("Labor Law"). In regards to the section 241 (6) claim, plaintiffs allege violations of the Industrial Code, specifically, 12 NYCRR 23-1.7 (d) and 12 NYCRR 23-1.7 (e)(1) and (e)(2).

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Defendant McAvoy Construction Corp. ("McAvoy Construction") served its answer on or about October 30, 2013, Defendant Harbor Building Corp. ("Harbor Building") served its answer on or about December 17, 2013, and defendant JP Walsh Realty Group, LLC ("JP Walsh") served its answer on or about January 24, 2014. Granite Hill Construction Corp. was a named defendant until plaintiffs discontinued the action against it because it had no connection to the subject property. Plaintiffs served their verified bill of particulars on September 26, 2013 and a supplemental verified bill of particulars on January 7, 2016. On November 2, 2015, the examination before trial of each plaintiff was held. On March 9, 2017, the examination before trial of Harbor Building and McAvoy Construction, by owner Kenneth McAvoy, was held and on May 15, 2017 the examination before trial of JP Walsh sole member Joseph McGorry ("McGorry") was held. Plaintiffs filed a note of issue and certificate of readiness on September 18, 2017. Defendants now move for summary judgment and defendant McAvoy Construction also moves pursuant to CPLR 3211 (a)(1) and (a)(7) to dismiss the complaint as against it.

THE SUMMARY JUDGMENT MOTIONS

In support of its motion for summary judgment pursuant to CPLR 3212 and its motion to dismiss pursuant to CPLR 3211 (a)(1) and (7), defendant McAvoy Construction submits an affirmation of counsel, the affidavit of Kenneth McAvoy, owner of McAvoy Construction, the pleadings, including the supplemental summons and amended verified complaint, the verified bill of particulars, the supplemental verified bill of particulars, the deposition transcripts of plaintiffs, defendant McAvoy Construction by Kenneth McAvoy, and defendant JP Walsh by Joseph McGorry, copies of the filed deeds to the subject property, and the decision of this Court in regards to the prior motion of defendant McAvoy Construction to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7).

The affidavit of Kenneth McAvoy states, and it is undisputed, that he is the vice president and principal owner of defendant McAvoy Construction and president of Harbor Building, and that Harbor Building is the owning entity of the subject property where the accident occurred. The property deeds to the subject property submitted herein confirm that defendant Harbor Building owns the property where the accident occurred and that defendant McAvoy Construction has no ownership interest. Kenneth McAvoy states that as president of defendant Harbor Building, he hired Russ Tree Service to remove a tree behind the subject property on March 8, 2012 and that defendant McAvoy Construction had no connection at all to the work performed and did not hire or retain Russ Tree Service to provide labor and services at the subject property. Defendant McAvoy Construction argues that it had no connection whatsoever to the subject property or the tree removal work performed on the date of the accident and therefore, it cannot be liable under any theories of negligence or violations of section 200 or 241 (6) of the Labor Law.

In support of its motion for summary judgment, Harbor Building submits an affirmation of counsel, the pleadings, including the summons and complaint, the supplemental summons and amended verified complaint, the verified bill of particulars, the supplemental verified bill of particulars, the deposition transcripts of plaintiffs and defendant Kenneth McAvoy, on behalf of defendant Harbor Building, and a copy of the note of issue. Defendant Harbor Building asserts that any alleged dangerous condition alleged by plaintiff Doran was created by plaintiff Doran in failing to supervise the tree removal work being performed on the subject property. Defendant Harbor

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Building further avers that the accident was caused by the manner in which the tree was being removed by the co-worker of plaintiff Doran and that defendant Harbor did not supervise or control the tree removal work at the subject property and thus, is not liable under any negligence theory or section 200 of the Labor Law. Defendant Harbor further alleges that section 241 (6) of the Labor Law does not apply herein because the tree removal work was not part of any ongoing construction, excavation, or demolition at the subject property.

In support of its motion for summary judgment, defendant JP Walsh submits an affirmation of its attorney, an affidavit of McGorry, and it incorporates by reference the exhibits and arguments raised by defendant Harbor Building in support of its motion for summary judgment. McGorry avers, and it is not disputed, that defendant JP Walsh owns the property located at 369 Lake Avenue, St. James, New York, not the subject property located at 367 Lake Avenue, St. James, New York where the plaintiff's...

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