Long Island Lighting Co. v. Granite Bldg. 2 LLC

• Decision Date: 23 September 2011
• Docket Number: Index No. 006274/08
• Citation: 2011 NY Slip Op 32536
• Parties: 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, v. EASTERN LOCATING SERVICES, INC., Third-Party Defendant, KULKA CONTRACTING, LLC, Second Third-Party Plaintiff, v. ONE CALL CONCEPTS, INC. and DIGNET OF NYC and LONG ISLAND, INC., Second Third-Party Defendants,
• Court: New York Supreme Court

2011 NY Slip Op 32536

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,
v.
EASTERN LOCATING SERVICES, INC., Third-Party Defendant,
KULKA CONTRACTING, LLC, Second Third-Party Plaintiff,
v.
ONE CALL CONCEPTS, INC. and DIGNET
OF NYC and LONG ISLAND, INC.,
Second Third-Party Defendants,

Index No. 006274/08

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU

Dated: September 22, 2011
Dated: September 23, 2011

SHORT FORM ORDER

Present: HON. RANDY SUE MARBER
JUSTICE

TRIAL/IAS PART 18

Motion Sequence...08, 09, 10
Motion Date... 08/09/11

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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

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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.

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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.

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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

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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."

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In Brill v. City of New York, 2 N.Y.3d 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," apractice mat "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 N.Y.3d 725 [2004]; Demacopolous v. City of New York, 73 A.D.3d 842 [2d Dept. 2010]).

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