Staten Island New York Cvs, Inc. v. Gordon Retail Development, LLC

• Decision Date: 16 December 2008
• Docket Number: 2007-09005.
• Citation: Staten Island New York Cvs, Inc. v. Gordon Retail Development, LLC, 57 A.D.3d 760, 870 N.Y.S.2d 74, 2008 NY Slip Op 9982 (N.Y. App. Div. 2008)
• Court: New York Supreme Court — Appellate Division
• Parties: STATEN ISLAND NEW YORK CVS, INC., Appellant-Respondent, v. GORDON RETAIL DEVELOPMENT, LLC, et al., Defendants and Third-Party Plaintiffs-Respondents-Appellants, and NAVE, NEWELL & STAMPFL, LTD., et al., Respondents-Appellants. FUTURE TECH CONSULTANTS OF NEW YORK, INC., Third-Party Defendant-Respondent, et al., Third-Party Defendants. (Action No. 1.) STATEN ISLAND NEW YORK CVS, INC., et al., Appellants, v. MXW HOLDING CORP., Respondent. (Action No. 2.)

57 A.D.3d 760

870 N.Y.S.2d 74

2008 NY Slip Op 09982

STATEN ISLAND NEW YORK CVS, INC., Appellant-Respondent, v.GORDON RETAIL DEVELOPMENT, LLC, et al., Defendants and Third-Party Plaintiffs-Respondents-Appellants, andNAVE, NEWELL & STAMPFL, LTD., et al., Respondents-Appellants.

FUTURE TECH CONSULTANTS OF NEW YORK, INC., Third-Party Defendant-Respondent, et al., Third-Party Defendants. (Action No. 1.)

STATEN ISLAND NEW YORK CVS, INC., et al., Appellants, v.MXW HOLDING CORP., Respondent. (Action No. 2.)

2007-09005.

Appellate Division of the Supreme Court of New York, Second Department.

December 16, 2008.

In related actions to recover damages for breach of contract, breach of warranty, and negligence, Staten Island New York CVS, Inc., the plaintiff in action No. 1 and a plaintiff in action No. 2, and CVS Pharmacy, Inc., a plaintiff in action No. 2, appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (McMahon, J.), dated September 7, 2007, as granted those branches of the motion of the defendants Gordon Retail Development, LLC, MPG Construction Corp., and MPG Construction, LLP, the cross motion of the defendant Virga Contractors, Inc., and the separate cross motion of the defendants Nave, Newell & Stampfl, Ltd., and Nave Newell, Inc., which were for summary judgment dismissing the causes of action to recover damages for breach of contract and breach of warranty insofar as asserted against each of them in Action No. 1 and granted the motion of the defendant MXW Holding Corp. for summary judgment dismissing the complaint in action No. 2, the defendants Gordon Retail Development, LLC, MPG Construction Corp., and MPG Construction, LLC, cross-appeal, as limited by their notice of appeal and brief, from so much of the same order as denied that branch of their motion which was for summary judgment dismissing the cause of action to recover damages for negligence insofar as asserted against them in action No. 1, the defendant Virga Commercial Contractors, Inc., separately cross-appeals, as limited by its brief, from so much of the same order as denied that branch of its cross motion which was for summary judgment dismissing the cause of action to recover damages for negligence insofar as asserted against it in action No. 1, and the defendants Nave, Newell & Stampfl, Ltd., and Nave Newell, Inc., separately cross-appeal, as limited by their notice of cross appeal and brief, from so much of the same order as denied those branches of their separate cross motion which were for summary judgment dismissing the cause of action to recover damages for negligence insofar as asserted against them in action No. 1 and granted that branch of the separate cross motion of the third-party defendant Future Tech Consultants of New York, Inc., which was for summary judgment dismissing the cross claim for contribution insofar as asserted against it by the defendants Nave, Newell & Stampfl, Ltd., and Nave Newell, Inc., in action No. 1.

Ordered that the appeal by CVS Pharmacy, Inc., a plaintiff in action No. 2, from so much of the order as granted those branches of the motion of the defendantsGordon Retail Development, LLC, MPG Construction Corp., and MPG Construction, LLP, the cross motion of the defendantVirga Contractors Inc., and the separatecross motion of the defendantsNave, Newell & Stampfl, Ltd., and Nave Newell, Inc., which were for summary judgment dismissing the causes of action to recover damages for breach of contract and breach of warranty insofar as asserted against each of them in action No. 1 is dismissed, as it is not aggrieved by those portions of the order (seeCPLR 5511); and it is further,

Ordered that the order is modified, on the law and the facts, (1) by deleting the provisions thereof granting those branches of the motion of the defendantsGordon Retail Development, LLC, MPG Construction Corp., and MPG Construction, LLC, the cross motion of the defendantsVirga Commercial Contractors, Inc., and the separatecross motion of the defendantsNave, Newell & Stampfl, Ltd., and Nave Newell, Inc., which were for summary judgment dismissing the causes of action to recover damages for breach of contract insofar as asserted against each of them in action No. 1 and substituting therefor provisions denying those branches of the motion, cross motion, and separate cross motion, (2) by deleting the provisions thereof granting those branches of the motion of the defendantsGordon Retail Development, LLC, MPG Construction Corp., and MPG Construction, LLC, and the cross motion of the defendantVirga Commercial Contractors, Inc., which were for summary judgment dismissing the cause of action to recover damages for breach of warranty insofar as asserted against each of them in action No. 1 and substituting therefor provisions denying those branches of the motion and the cross motion, (3) by deleting the provisions thereof denying those branches of the motion of the defendantsGordon Retail Development, LLC, MPG Construction Corp., and MPG Construction, LLC, and the cross motion of the defendantVirga Commercial Contractors, Inc., which were for summary judgment dismissing the cause of action to recover damages for negligence insofar as asserted against each of them and substituting therefor...