Gonzalez v. Semer
| Decision Date | 13 April 2023 |
| Docket Number | Index No. 161614/2021,Motion Seq. No. 001 |
| Citation | 2023 NY Slip Op 31170 (U) |
| Parties | EDWIN GONZALEZ, Plaintiff, v. SIMONE SEMER, MARK SEMER, GASTHALTER & CO SWAGTIME, Defendant. SIMONE SEMER, MARK SEMER Plaintiff, v. KAEL CONTRACTING CORP. Defendant. |
| Court | New York Supreme Court |
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 001) 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36 37, 39, 40, 41, 42, 43, 44, 45, 47, 48, 49, 50, 51, 52, 53 54, 55, 56, 57, 58, 74, 75 were read on this motion to/for JUDGMENT - SUMMARY.
Upon the foregoing documents, and after oral argument, which took place on December 20, 2022, where Ernest S. Buoncore, Esq. appeared for Plaintiff Edwin Gonzalez ("Plaintiff'), Thomas A. Noss, Esq. appeared for Defendant Gasthalter &Co.'s ("Gasthalter"), Melissa Aristizabal, Esq. appeared for Defendants Simone Semer and Mark Semer (the "Semer Defendants"), and Stuart Wagner, Esq. appeared for Defendant Swagtime, Gasthalter's motion seeking summary judgment dismissing the Complaint and all cross-claims against them is granted. Defendant Swagtime's cross-motion for summary judgment dismissing the Complaint and all cross-claims against them is similarly granted. The Semer Defendants cross-motion to change venue is also granted.
I. Background
Plaintiff initiated this action on December 29, 2021 alleging personal injuries arising out of construction at a home located at 48 Bayeau Road in New Rochelle, New York (the "Semer Residence") (NYSCEF Doc. 1). On July 13, 2021, Plaintiff was an employee of Third-Party Defendant Kael Contracting ("Kael") who was retained to work on the Semer Residence (id. at ¶¶ 38-39). Plaintiff was allegedly injured after he fell from the roof due to the negligence of Defendants (id. at ¶ 42). Plaintiff pleads in the alternative that Swagtime, the Semer Defendants, and Gasthalter all owned, managed, controlled, or operated the Semer Residence. Plaintiff likewise pleads in the alternative that Swagtime, the Semer Defendants, and Gasthalter all contracted with Kael to work on the Semer Residence.
Gasthalter, Swagtime, and the Semer Defendants all filed Answers (NYSCEF Docs. 4, 5, and 11). The Semer Defendants also interposed a Third-Party Complaint naming Kael as a Third-Party Defendant (NYSCEF Doc. 9). Kael filed its Answer to the Third-Party Complaint (NYSCEF Doc. 23)
On April 12, 2022, Gasthalter made the instant motion for summary judgment (NYSCEF Doc. 25). Gasthalter provided the affidavit of Jonathan Gasthalter ("Mr. Gasthalter"), the managing partner of Gasthalter (NYSCEF Doc. 37). Mr. Gasthalter testified that his company is a strategic communications firm located at 777 Third Avenue, New York, New York 10017 which has never had any connection to the Semer Residence (id. at ¶¶ 1-5). Mr. Gasthalter swore that Gasthalter has never entered any agreement with Kael, let alone any agreement related to the Semer Residence (id. at ¶¶ 6-9). Mr. Gasthalter swore that he conducted a diligent search of his records for any connection his company may have to the Semer Residence, and that Gasthalter only learned about work being performed at the Building when it was served with the Summons and Complaint (id. at ¶ 9). Gasthalter argues, therefore, it owed no duty of care to Plaintiff, nor could have caused Plaintiffs injuries (NYSCEF Doc. 27).
On April 26, 2022, the Semer Defendants cross-moved to change venue (NYSCEF Doc. 39). The Semer Defendants argue that Gasthalter is the only defendant with any connection to New York County, and if they are dismissed, the action should be transferred to Westchester County, which is where the accident occurred (NYSCEF Doc. 40).
On June 7, 2022, Swagtime cross-moved for summary judgment (NYSCEF Doc. 47). Simone Semer ("Simone") is the founder and president of Swagtime (NYSCEF Doc. 50 at ¶ 1). Simone swore that she and her husband, Mark Semer, reside at the Semer Residence (id. at ¶ 2). However, Simone swore that Swagtime has no ownership interest in the Semer Residence (id.). Simone stated that while Swagtime has a mailing address at the Semer Residence, no work for the entity is done at the location (id.). Simone states that Swagtime never hired Kael to do any work at the Semer Residence, and its only connection to the Semer Residence is a mailing address (id. at ¶¶ 6-9). Swagtime argues, that summary judgment is appropriate, as it owed no duty to Plaintiff nor could have caused Plaintiffs accident (NYSCEF Doc. 48).
In opposition to the motion and both cross-motions, Plaintiff submitted one five-page affirmation (NYSCEF Doc. 53). Plaintiff argues that summary judgment should be denied because there has been no discovery. However, Plaintiff provides no basis for why he named Gasthalter as a Defendant, nor does Plaintiff describe what facts discovery might yield which would warrant denial of summary judgment. There is no affidavit from Plaintiff in opposition to the motion contradicting any of the facts raised by the Defendants.
In reply, Gasthalter argues that Plaintiff is required to show what facts may be uncovered in discovery which would raise a triable issue of fact. However, Plaintiff has failed to do so in his opposition (NYSCEF Doc. 55 at ¶ 15). Gasthalter argues that the mere hope that evidence sufficient to defeat a motion for summary judgment may be uncovered during discovery is insufficient to deny a motion for summary judgment.
Summary judgment is a drastic remedy, to be granted only where the moving party has tendered sufficient evidence to demonstrate the absence of any material issues of fact." (Vega v Restani Const. Corp., 18 N.Y.3d 499, 503 [2012]). The moving party's "burden is a heavy one and on a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party." (Jacobsen v New York City Health and Hosps. Corp., 22 N.Y.3d 824, 833 [2014]). Once this showing is made, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial. See e.g, Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]; Pemberton v New York City Tr. Auth., 304 A.D.2d 340, 342 [1st Dept 2003]). Mere conclusions of law or fact are insufficient to defeat a motion for summary judgment (see Banco Popular North Am. v Victory Taxi Mgt., Inc., 1 N.Y.3d 381 [2004]).
"A grant of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence." DaSilva v Haks Eng'rs, 125 A.D.3d 480, 482 [1st Dept 2015]; Orange County-Poughkeepsie Ltd. Partnership v Bonte, 31 A.D.3d 684 [2d Dept 2007] []).
It is undisputed that Gasthalter is a communications firm located in Manhattan, while the Semer Residence is a residential home in New Rochelle. No party has proffered any evidence that Gasthalter has any connection to the Semers or to the Semer Residence. Gasthalter has provided sworn testimony that it has no connection to the Semer Residence or Kael Contracting. Gasthalter has provided sworn testimony that it conducted a search of its records and could find no connection to either the Semer Residence or Kael Contracting. In response, Plaintiff failed to provide any basis for why he named Gasthalter in the Complaint. Plaintiffs attorney merely states, in conclusory terms, that discovery might yield some connection between the Semer's and Gasthalter. However, this conclusory argument, without any evidentiary basis, is insufficient to defeat summary judgment (DaSilva v Haks Eng'rs, 125 A.D.3d 480, 482 [1st Dept 2015]).
The Court finds that Gasthalter has met its prima facie burden. Indeed, summary judgment is routinely granted when a moving party demonstrates that it had no connection to the area where an injury occurred, or where the connection to the site of the injury is too attenuated due to the passage of time (Camacho v City of New York, 135 A.D.3d 482 [1st Dept 2016]; Amini v Arena Const. Co., Inc., 110 A.D.3d 414, 415 [1st Dept 2013]; Amarosa v City of New York, 51 A.D.3d 596 [1st Dept 2008]; Flores v City of New York, 29 A.D.3d 356 [1st Dept 2006]; Robinson v City of New York, 18 A.D.3d 255 [1st Dept 2005]).
Notably, neither the Semer Defendants, nor Kael, who presumably would be in possession of information sufficient to defeat Gasthalter's motion, have not filed any opposition or produced any documents to raise an issue of fact. Therefore, Gasthalter's motion for summary judgment dismissing Plaintiffs Complaint against it is granted (see O 'Jon v Brown, 147 A.D.3d 570 [1st Dept 2017]). As Gasthalter has demonstrated that it has no connection to the Semer Residence, and therefore owed no duty to Plaintiff for injuries sustained when falling from the roof of the Semer Residence, any cross-claims for contribution or indemnification must likewise be dismissed against Gasthalter (Higgins v TST375 Hudson, LLC, 179 A.D.3d 508 [1st Dept 2020]).
Swagtime's motion for summary judgment is granted. Tort liability arises out of the breach of a duty owed to another (See Pasternack v Laboratory Corp, of America Holdings, 27 N.Y.3d 817 [2016]; see also Santiago v City of New York, 206 A.D.3d 679 [2d Dept 2022] [...
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