Heritage Funding, LLC v. Doyle Bros. Plumbing & Heating, Inc.

Heritage Funding, LLC v Doyle Bros. Plumbing & Heating, Inc. (2022 NY Slip Op 02621) Heritage Funding, LLC v Doyle Bros. Plumbing & Heating, Inc. 2022 NY Slip Op 02621 Decided on April 21, 2022 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: April 21, 2022 Before: Manzanet-Daniels, J.P., Kern, Singh, Kennedy, Mendez, JJ. Index No. 151695/19 Appeal No. 15782 Case No. 2021-03739 [*1]Heritage Funding, LLC, Plaintiff-Respondent, v Doyle Bros. Plumbing & Heating, Inc., Defendant-Appellant, RIP Construction Consultants, et al., Defendants. Farber Brocks & Zane L.L.P., Garden City (Lester Chanin of counsel), for appellant. Clausen Miller P.C., New York (Richard T. Freilich of counsel), for respondent. Order, Supreme Court, New York County (W. Franc Perry, J.), entered May 13, 2021, which denied the motion of defendant Doyle Bros. Plumbing & Heating Inc. (Doyle Bros.) for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs. The court properly concluded that there were issues of fact concerning the relationship between Doyle Bros. and Doyle & Son Plumbing & Heating, which obtained a permit in 2005 for work at plaintiff's premises. Edward Doyle was named as the master plumber in the permit, and he submitted an affidavit in this action stating that he was president of Doyle Bros. With discovery, plaintiff may be able to establish successor liability by Doyle Bros. regardless of when the allegedly negligent work was performed (see Schumacher v Richards Shear Co, 59 NY2d 239, 244-245 [1983]). The court correctly found that when the allegedly negligent work was performed was a material issue that was not a proper subject of a notice to admit pursuant to CPLR 3123(a) (see New Image Constr. Inc. v TDR Enters. Inc., 74 AD3d 680, 681 [1st Dept 2010]). We have considered Doyle Bros.'s remaining arguments and find them unavailing.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: April 21, 2022