Zunno v. RXR SL Owner LLC

Zunno v RXR SL Owner LLC 2025 NY Slip Op 30381(U) January 29, 2025 Supreme Court, New York County Docket Number: Index No. 152699/2016 Judge: Lynn R. Kotler Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

FILED: NEW YORK COUNTY CLERK 01/31/2025 04:44 PM INDEX NO. 152699/2016 NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 01/31/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LYNN R. KOTLER PART 08 Justice ------------------.X INDEX NO. 152699/2016 NICHOLAS ZUNNO, NATALIA GONTOWICZ ZUNNO, 08/02/2024, MOTION DATE 08/02/2024 Plaintiff, MOTION SEQ. NO. 004 005 - V-

RXR SL OWNER LLC,RXR CONSTRUCTION & DEVELOPMENT LLC, DECISION + ORDER ON MOTION Defendant.

------------------X RXR SL OWNER LLC, RXR CONSTRUCTION & Third-Party DEVELOPMENT LLC Index No. 595928/2016

Plaintiff,

-against-

ALLRAN ELECTRIC OF N.Y., LLC.

Defendant. ------------------X

RXR SL OWNER LLC, RXR CONSTRUCTION & Second Third-Party DEVELOPMENT LLC Index No. 595262/2018

Plaintiff,

-against-

ABM JANITORIAL SERVICES - NORTHEAST, INC.

Defendant. --,-------'-------------X RXR SL OWNER LLC, RXR CONSTRUCTION & Third Third-Party DEVELOPMENT LLC Index No. 595~9/2019

Plaintiff,

-against-

ADVANCED BUILDING MAINTENANCE SERVICES

Defendant.

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FILED: NEW YORK COUNTY CLERK 01/31/2025 04:44 PM INDEX NO. 152699/2016 NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 01/31/2025

-------------------X The following e-filed documents, listed by NYSCEF document number (Motion 004) 149, 150, 151, 152, 153,154,155,156,157,158,159,160,161,162,163,164,165,166,167,173,185,186,187,188,190, 191,199,200,201,202 were read on this motion to/for JUDGMENT-SUMMARY

The following e-filed documents, listed by NYSCEF document number (Motion 005) 168, 169, 170, 171, 172,174,175,176,177,178,179,180,181,182,183,184,189,195,196,197,198,203,206 were read on this motion to/for DISCOVERY

Upon the foregoing documents, motion sequences 4 and 5 are hereby consolidated for the court's

consideration and disposition in this single decision and order.

In motion sequence 5, third third-party defendant Advanced Building Maintenance Services

(Advanced) moves to strike the third third-party complaint for failure to provide discovery.

Second third-party defendant ABM Janitorial Services - Northeast Inc. (ABM) cross-moves. to

strike the second third-party complaint also for defendants' failure to provide discovery.

Defendants RXR SL Owner, LLC and RXR Construction & Development, LLC (collectively

RXR) opposes both the motion and cross-motion, maintaining that they have responded to all

outstanding discovery demands. On reply, neither Advanced nor ABM dispute RXR's position

that all discovery has been provided, but each maintains that the respective third-party actions

should be dismissed because RXR has unreasonably and inexcusably delayed in providing the

demanded discovery.

Sanctions are authorized pursuant to CPLR 3126 when a party refuses to comply with its

obligations to provide discovery in the normal course. Striking a complaint is an extraordinary

sanction, reserved for egregious conduct, oftentimes demonstrated by a cavalier attitude resulting

in substantial delay and expense (see i.e. Figdor v. City ofNew York, 823 NYS2d 385 [1st Dept

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FILED: NEW YORK COUNTY CLERK 01/31/2025 04:44 PM INDEX NO. 152699/2016 NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 01/31/2025

2006]). Contrary to Advanced and ABM' s contention, although a significant period of time has

gone by since the underlying demands were served, RXR has not engaged in the type of behavior

which warrants the reliefmovants' seek nor have the movants suffered substantial prejudice as a

result o.f said behavior which would warrant dismissal at this juncture. Accordingly, both the

motion and cross-motion are denied.

The court now turns to motion sequence 4, wherein Advanced moves for summary judgment

against plaintiff on his Labor Law claims and against the defendants' third third-party plaintiffs.

Plaintiff, ABM and RXR oppose the motion. Issue has been joined and the motion was timely

brought as per the court's decision/order dated May 29, 2024. Therefore, summary judgment

relief is available. For the reasons that follow, summary judgment is granted in part.

On a motion for summary judgment, the proponent bears the initial burden of setting forth

evidentiary facts to prove a prima facie case that would entitle it to judgment in its favor, without

the need for a trial (CPLR 3212; Winegradv. NYU Medical Center, 64 NY2d 851 [1985];

Zuckerman v. City ofNew York, 49 NY2d 557,562 [1980]). lfthe proponent fails to make out its

prima facie case for summary judgment, however, then its motion must be denied, regardless of

the sufficiency of the opposing papers (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986];

Ayotte v. Gervasio, 81 NY2d 1062 [1993]).

Granting a motion for summary judgment is the functional equivalent of a trial, therefore it is a

drastic remedy that should not be granted where there is any doubt as to the existence of a triable

issue (Rotuba Extruders v. Ceppos, 46 NY2d 223 [1977]). The court's function on these motions

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is limited to "issue finding," not "issue determination" (Sillman v. Twentieth Century Fox Film, 3

NY2d 395 [1957]).

In this action, plaintiff alleges that he was injured while working as an electrician's foreman for

third-party defendant Allran Electric ofN.Y., LLC on the 8th floor of the building located at 601 ·

West 26th Street in Manhattan. Specifically, plaintiff claims that he slipped on the bottom rung of

a wooden A-frame ladder and fell. At this juncture, assuming arguendo that Advanced met its

burden on the motion, the opponents to said motion have raised a triable issue of fact as to .

whether an Advanced employee was mopping the floor in the common hallway, thus causing and

creating a slipping hazard which gave rise to plaintiff's accident. Thus, Advanced's motion for

summary judgment dismissing the third-party claims for contribution against it must be denied

(Godoy v Abamaster of Miami, 302 AD2d 57, 61 [2d Dept 2003], Iv dismissed 100 NY2d 614

[2003]). Further, Advanced's motion for common law indemnity is also denied since Advanced

has not established that RXR was negligent as a matter of law, thus precluding common law

indemnification (see i.e. Perri v Gilbert Johnson Enters., Ltd, 14 AD3d 681, 684-685 [2d Dept

2005]).

The court will, however, granted Advanced's motion for summary judgment dismissing any

third-party claims for contractual indemnification, as Advanced has established that there was no

applicable agreement which would form the basis of such a claim against it.

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FILED: NEW YORK COUNTY CLERK 01/31/2025 04:44 PM INDEX NO. 152699/2016 NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 01/31/2025

Conclusion

Accordingly, it is hereby

ORDERED that motion sequence 4 is granted only to the extent that all third-party claims

against Advanced for contractual indemnification are severed and dismissed; and it is further

ORDERED that motion sequence 4 is otherwise denied; and it is further

ORDERED that motion sequence 5 is denied.

Any requested relief not expressly addressed herein has nonetheless been considered and is

hereby denied and this constitutes the Decision and Order of the Court.

l f'l..q I toic~ DATE LYNN R. KOTLER, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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