Peranzo v. WFP Tower D Co., Index No. 154704/2016

CourtUnited States State Supreme Court (New York)
Writing for the CourtLUCY BILLINGS, J.S.C.
Citation2019 NY Slip Op 32152 (U)
PartiesAMEDEO PERANZO, Plaintiff v. WFP TOWER D CO. L.P., BROOKFIELD FINANCIAL PROPERTIES L.P., STRUCTURE TONE, INC., and TITANIUM SCAFFOLD SERVICES, LLC, Defendants TITANIUM SCAFFOLD SERVICES, LLC, Third Party Plaintiff v. PIER HEAD ASSOCIATES, LTD., and COMMODORE CONSTRUCTION CORP., Third Party Defendants STRUCTURE TONE, INC., Second Third Party Plaintiff v. COMMODORE CONSTRUCTION CORP., Second Third Party Defendant
Decision Date16 July 2019
Docket NumberIndex No. 154704/2016,Index No. 595094/2017,Index No. 595128/2017

2019 NY Slip Op 32152(U)

AMEDEO PERANZO, Plaintiff
v.
WFP TOWER D CO.
L.P., BROOKFIELD FINANCIAL PROPERTIES L.P., STRUCTURE TONE, INC.,
and TITANIUM SCAFFOLD SERVICES, LLC, Defendants

TITANIUM SCAFFOLD SERVICES, LLC, Third Party Plaintiff
v.
PIER HEAD ASSOCIATES, LTD., and COMMODORE CONSTRUCTION CORP., Third Party Defendants

STRUCTURE TONE, INC., Second Third Party Plaintiff
v.
COMMODORE CONSTRUCTION CORP., Second Third Party Defendant

Index No. 154704/2016
Index No. 595094/2017
Index No. 595128/2017

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46

RECEIVED: July 22, 2019
July 16, 2019


NYSCEF DOC. NO. 431

DECISION AND ORDER

LUCY BILLINGS, J.S.C.:

Page 2

Plaintiff sues to recover damages for injuries sustained September 1, 2015, when he fell over scaffold bracing at a construction work site. The scaffolding contractor, defendant-third party plaintiff Titanium Scaffold Services, Inc., subcontracted the scaffold erection to third party defendant Pier Head Associates, Ltd. Titanium Scaffold moves to reargue or renew, C.P.L.R. § 2221(d) and (e), plaintiff's motion to join Pier Head Associates Ltd. as a defendant and to amend his complaint by alleging his original claims against the new defendant, which the court denied in an order dated October 19, 2018. C.P.L.R. §§ 1002(b), 3025(b). Titanium Scaffold also moves to vacate the prior order insofar as it affects Titanium Scaffold's duties and rights at issue in this action, particularly its third party claims against Pier Head. C.P.L.R. § 2221(a).

I. THE OCTOBER 2018 ORDER'S PRECLUSIVE EFFECT

The October 2018 order did not determine or otherwise affect Titanium Scaffold's third party claims against Pier Head or its duties toward or rights against plaintiff, co-defendants, or co-third party defendant Commodore Construction Corp. The law of the case doctrine precludes parties in an ongoing action from relitigating only issues that were resolved after those parties received a full and fair opportunity to address those issues. Goldstein v. Zabel, 146 A.D.3d 624, 631 (1st Dep't 2017); Delgado v. City of New York, 144 A.D.3d 46, 53 (1st Dep't 2016); Carmona v. Mathisson, 92 A.D.3d 492, 493 (1st Dep't 2012). Because

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plaintiff's prior motion to join Pier Head as a direct defendant and to amend his complaint sought no relief against Titanium Scaffold, it lacked any grounds to support or oppose the relief sought and rightfully took no position on his motion. Whether or not plaintiff prevailed on his motion, Titanium Scaffold was not aggrieved. Titanium Scaffold had no reason or need to address plaintiff's motion to interpose claims against Pier Head, because his motion did not affect Titanium Scaffold's duties or rights already implicated by plaintiff's claims against Titanium Scaffold and its third party claims against Pier Head.

In the October 2019 order, the court instead considered the positions and evidence presented by plaintiff and Pier Head. Plaintiff's motion provided no opportunity for Titanium Scaffold to establish its duties or rights, to show that it was not negligent and did not violate the New York Labor Law, or to urge that, even if Pier Head owed no duty to plaintiff, Pier Head did owe a duty to Titanium Scaffold. Therefore the October 2018 order has preclusive effect only on Pier Head's duties toward plaintiff and not on Titanium Scaffold in any respect.

II. REARGUMENT

For the same reason, the court did not overlook anything that Titanium Scaffold presented previously, to provide a basis for Titanium Scaffold to reargue plaintiff's motion. C.P.L.R. § 2221(d)(2); Jones v. City of New York, 146 A.D.3d 690, 690-91 (1st Dep't 2017); Windham v. New York City Tr. Auth., 115 A.D.3d 597, 600 (1st Dep't 2014); Hernandez v. St. Stephen of Hungary

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School, 72 A.D.3d 595, 595 (1st Dep't 2010). In suddenly now taking a position in support of plaintiff's prior motion, Titanium Scaffold insists that his motion did not require him to demonstrate any merit to joinder of Pier Head as a direct defendant, C.P.L.R. § 1002(b), or to his proposed claims against it. C.P.L.R. § 3025(b). Even the authority Titanium Scaffold cites, however, requires a showing of facial merit. MBIA Ins. Corp. V. Greystone & Co., Inc., 74 A.D.3d 499, 499-500 (1st Dep't 2010); Pier 59 Studios, L.P. v. Chelsea Piers, L.P., 40 A.D.3d 363, 366 (1st Dep't 2007). Based on the plain terms of Pier Head's subcontract for the scaffold erection, plaintiff failed to make that minimal showing. Davis v. South Nassau Communities Hosp., 26 N.Y.3d 563, 581 (2015); Koch v. Sheresky, Aronson & Mayefsky LLP, 161 A.D.3d 647, 648 (1st Dep't 2018); Farpoint Cos., LLC v. Vella, 134 A.D.3d 645, 645 (1st Dep't 2015); Oleh v. Anlovi Corp., 106 A.D.3d 445, 445 (1st Dep't 2013). See Kellogg v. All Sts. Hous. Dev. Fund Co.,...

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