Preview
FILED: NEW YORK COUNTY CLERK 06/19/2019 12:17 PM INDEX NO. 160113/2016
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 06/19/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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INDEX NO.160113/2016
PAUL HEARD,
Plaintiff, AFFIRMATION IN OPPOSITION
TO REPLY OF NON-PARTY
CT CONSTRUCTION
-against- [MOTION SEQ. 1]
MCGOVERN & COMPANY, LLC, SL GREEN
RELATY CORP., EQUINOX EAST 53RD STREET, INC.,
EQUINOX HOLDINGS LLC, 10E53 OWNER LLC, and
TRISTATE PLUMBING
Defendants.
--------------------------------------------------------------------------X
DAVID L FELD, an attorney duly admitted to practice law before the Courts of the State
of New York, affirms the following upon information and belief:
1. I am a partner in THE FELD LAW FIRM P.C., attorneys for the plaintiff. I am fully
familiar with all of the facts and circumstances of this case. I make this affirmation in opposition
to the reply submitted by CT Construction. It is respectfully submitted that the “reply” is totally
impermissible both in procedure and substance. As such this Court should either (1) reject the
reply in its entirety, or (2) consolidate the cases and set a briefing schedule so that the substance
of CT’s motion may be addressed in a timely manner.
2. Procedurally, this motion sequence is for consolidation of this action with a separate action
brought in New York County under index number 155429/2018, both actions based on injuries
sustain by the same plaintiff, Paul Heard, and arising out of the same occurrence. That action is
presently before Judge Paul Goetz. CT Construction is a defendant in that action and not the
action before this Court. The only reason they are permitted to submit any papers in this action
to which they are not a party is because they opposed a motion to consolidate both actions
brought by a defendant in this action, Tristate Plumbing, and supported by other parties. This
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motion to consolidate was made in an attempt to avoid duplicative discovery, serve judicial
economy and potentially avoid inconsistent outcomes.
3. The CPLR does not permit a sur-reply, which this reply essentially is. Based on that
alone, the court should disregard CT’s papers. More importantly, CT, which is not a party to this
action, and indeed as stated above, opposes consolidation, requests inappropriate new relief: CT
request that this Court “search the record” and grant summary judgment in its favor
against the plaintiff in the action not before this Court. This relief is requested for the first
time in their “reply” filed two days before the return date of this motion to consolidate, thus
allowing the plaintiff no time to prepare a proper opposition to this improper request.
4. To highlight the absurdity of the defendant’s opposition to consolidation, CT has made a
proper motion for summary judgment in the other action in which they are a party. Clearly CT
believes both courts are in a similar position to determine a summary judgment motion since
both actions arise from the same accident, involve the same plaintiff and facts. This only
highlights the need for consolidation of the two actions.
5. Given the improper nature of the relief requested (granting summary judgment against the
plaintiff in a case not before this court), requesting the relief in an improper form (sur-reply) and
requesting this relief in a reply two days before the return date on a motion to consolidate,
plaintiff does not have the time to respond fully to the substance of the summary judgment relief
requested by CT in this motion to consolidate.
6. Briefly, however, this is a Labor Law action resulting from an accident suffered by the
plaintiff, Paul Heard, when a ladder he was using to perform construction work failed and caused
him to fall. The Accident occurred on June 10, 2015 and the project was the build-out of an
Equinox facility at 10 East 53rd Street. CT admits that they were hired as the construction
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manager for the project before plaintiff’s accident, but claims they were not hired as general
contractor and therefore are not a proper Labor Law defendant. [See paragraph 9 of CT’s
“Reply” and Exhibit 4]. The determination of the difference between the two is a question of fact
and depends primarily on the extent to which they controlled or should have controlled the
project. U.S. Specialty Insurance Company v. SMI Construction Management, 168 AD3d 431
(1st Dept., 2019): [Issue of fact exists and discovery is warranted as to whether defendant
performed as the CM on the project…. The label of CM v GC is not necessarily determinative,
and this determination depends on the duties the defendant was assigned and performed.]
Rodriguez v. Dormitory Authority of the State of New York, 104 AD3d 529 (1st Dept., 2013):
[Issue of fact exists as to whether a CM was the functional equivalent of a GC.] Simon v.
Granite Building 2, LLC, 170 AD3d 1227 (2nd Dept., 2019): [The label of GC v CM is not
necessarily determinative of whether a CM is liable it may nonetheless become responsible
where it has been delegated the authority if a GC or functions as an agent of the owner.]
Obviously, this issue can only be determined though discovery, which is further reason why the
action against CT should be consolidated with the present action.
WHEREFORE, it is respectfully requested that this Court (1) grant the motion to
consolidate, (2) reject non-party CT’s reply in its entirety including its request for summary
judgment, and (3) grant such other relief as it deems proper.
Dated: June 19, 2019
Mamaroneck, New York
Respectfully Submitted,
David L Feld
____________________
David L Feld
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To:
LAW OFFICE OF JAMES J TOOMEY
P.O. Box 2903
Hartford, CT 06104
LONDON FISCHER LLP
59 Maiden Lane
New York, NY 10038
William Lamboley, Esq.
McELROY DEUTSCH MULVANEY
& CARPENTER LLP
225 Liberty Street, 36th Floor
New York, New York 10281
LAROCCA HORNIK ROSEN
GREENBERG LLP
The Trump Building
40 Wall Street, 32nd Floor
New York, New York 10005
FABIANI COHEN & HALL, LLP
570 Lexington Avenue, 4th Floor
New York, NY 10022
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Preview
FILED: NEW YORK COUNTY CLERK 06/19/2019 12:17 PM INDEX NO. 160113/2016 NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 06/19/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------------X INDEX NO.160113/2016 PAUL HEARD, Plaintiff, AFFIRMATION IN OPPOSITION TO REPLY OF NON-PARTY CT CONSTRUCTION -against- [MOTION SEQ. 1] MCGOVERN & COMPANY, LLC, SL GREEN RELATY CORP., EQUINOX EAST 53RD STREET, INC., EQUINOX HOLDINGS LLC, 10E53 OWNER LLC, and TRISTATE PLUMBING Defendants. --------------------------------------------------------------------------X DAVID L FELD, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following upon information and belief: 1. I am a partner in THE FELD LAW FIRM P.C., attorneys for the plaintiff. I am fully familiar with all of the facts and circumstances of this case. I make this affirmation in opposition to the reply submitted by CT Construction. It is respectfully submitted that the “reply” is totally impermissible both in procedure and substance. As such this Court should either (1) reject the reply in its entirety, or (2) consolidate the cases and set a briefing schedule so that the substance of CT’s motion may be addressed in a timely manner. 2. Procedurally, this motion sequence is for consolidation of this action with a separate action brought in New York County under index number 155429/2018, both actions based on injuries sustain by the same plaintiff, Paul Heard, and arising out of the same occurrence. That action is presently before Judge Paul Goetz. CT Construction is a defendant in that action and not the action before this Court. The only reason they are permitted to submit any papers in this action to which they are not a party is because they opposed a motion to consolidate both actions brought by a defendant in this action, Tristate Plumbing, and supported by other parties. This 1 of 4 FILED: NEW YORK COUNTY CLERK 06/19/2019 12:17 PM INDEX NO. 160113/2016 NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 06/19/2019 motion to consolidate was made in an attempt to avoid duplicative discovery, serve judicial economy and potentially avoid inconsistent outcomes. 3. The CPLR does not permit a sur-reply, which this reply essentially is. Based on that alone, the court should disregard CT’s papers. More importantly, CT, which is not a party to this action, and indeed as stated above, opposes consolidation, requests inappropriate new relief: CT request that this Court “search the record” and grant summary judgment in its favor against the plaintiff in the action not before this Court. This relief is requested for the first time in their “reply” filed two days before the return date of this motion to consolidate, thus allowing the plaintiff no time to prepare a proper opposition to this improper request. 4. To highlight the absurdity of the defendant’s opposition to consolidation, CT has made a proper motion for summary judgment in the other action in which they are a party. Clearly CT believes both courts are in a similar position to determine a summary judgment motion since both actions arise from the same accident, involve the same plaintiff and facts. This only highlights the need for consolidation of the two actions. 5. Given the improper nature of the relief requested (granting summary judgment against the plaintiff in a case not before this court), requesting the relief in an improper form (sur-reply) and requesting this relief in a reply two days before the return date on a motion to consolidate, plaintiff does not have the time to respond fully to the substance of the summary judgment relief requested by CT in this motion to consolidate. 6. Briefly, however, this is a Labor Law action resulting from an accident suffered by the plaintiff, Paul Heard, when a ladder he was using to perform construction work failed and caused him to fall. The Accident occurred on June 10, 2015 and the project was the build-out of an Equinox facility at 10 East 53rd Street. CT admits that they were hired as the construction 2 of 4 FILED: NEW YORK COUNTY CLERK 06/19/2019 12:17 PM INDEX NO. 160113/2016 NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 06/19/2019 manager for the project before plaintiff’s accident, but claims they were not hired as general contractor and therefore are not a proper Labor Law defendant. [See paragraph 9 of CT’s “Reply” and Exhibit 4]. The determination of the difference between the two is a question of fact and depends primarily on the extent to which they controlled or should have controlled the project. U.S. Specialty Insurance Company v. SMI Construction Management, 168 AD3d 431 (1st Dept., 2019): [Issue of fact exists and discovery is warranted as to whether defendant performed as the CM on the project…. The label of CM v GC is not necessarily determinative, and this determination depends on the duties the defendant was assigned and performed.] Rodriguez v. Dormitory Authority of the State of New York, 104 AD3d 529 (1st Dept., 2013): [Issue of fact exists as to whether a CM was the functional equivalent of a GC.] Simon v. Granite Building 2, LLC, 170 AD3d 1227 (2nd Dept., 2019): [The label of GC v CM is not necessarily determinative of whether a CM is liable it may nonetheless become responsible where it has been delegated the authority if a GC or functions as an agent of the owner.] Obviously, this issue can only be determined though discovery, which is further reason why the action against CT should be consolidated with the present action. WHEREFORE, it is respectfully requested that this Court (1) grant the motion to consolidate, (2) reject non-party CT’s reply in its entirety including its request for summary judgment, and (3) grant such other relief as it deems proper. Dated: June 19, 2019 Mamaroneck, New York Respectfully Submitted, David L Feld ____________________ David L Feld 3 of 4 FILED: NEW YORK COUNTY CLERK 06/19/2019 12:17 PM INDEX NO. 160113/2016 NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 06/19/2019 To: LAW OFFICE OF JAMES J TOOMEY P.O. Box 2903 Hartford, CT 06104 LONDON FISCHER LLP 59 Maiden Lane New York, NY 10038 William Lamboley, Esq. McELROY DEUTSCH MULVANEY & CARPENTER LLP 225 Liberty Street, 36th Floor New York, New York 10281 LAROCCA HORNIK ROSEN GREENBERG LLP The Trump Building 40 Wall Street, 32nd Floor New York, New York 10005 FABIANI COHEN & HALL, LLP 570 Lexington Avenue, 4th Floor New York, NY 10022 4 of 4