Preview
FILED: NEW YORK COUNTY CLERK 10/30/2019 05:39 PM INDEX NO. 160113/2016
NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 10/30/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
___________________---------------- ---------X
PAUL HEARD,
Index No.: 155429/2018
Plaintiff,
AFFIRMATION IN SUPPORT
-against-
CT CONSTRUCTION CONSULTANTS LLC
ECLIPSE DEVELOPMENT, INC,
Defendants.
.- ___ -----------X
ROBERT M. CONTI, an attorney duly admitted to practice law before the Courts of the
State of New York, affirms the following upon information and belief and under the penalties of
perjury:
1. I am of counsel to the firm of Fabiani Cohen & Hall, LLP, attorneys for the
defendant CT Construction Consultants LLC (CLCC) and I am fully familiar with the facts and
circumstances of this matter based upon a review of the firm's litigation file.
2. I submit this affirmation in support of the within motion for an order pursuant to
CPLR R. 3212(a) et seq., diarnissing the plaintiff's complaint in its entirety as against the
defendant, CT as well as all cross-claims and counterclaims, where the evidence demonstrates
without any genuine triable issue of fact that:
a) CLCC was not the fee holding owner of the real property, manager,
occupant or the agent of any of the aforesaid, nor was it in possession of such premises
where the plaintiff alleges he sustained bodily injury; and,
[1696377/1] 3
1 of 7
FILED: NEW YORK COUNTY CLERK 10/30/2019 05:39 PM INDEX NO. 160113/2016
NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 10/30/2019
b) CLCC did not have any common law or statutory duty to replace,
maintain, repair or keep the incident location in a reasonably safe condition at the time of
alleged occurrence; and,
c) CLCC did not create the purported condition that caused the plaintiff to
sustain bodily injury; and,
2) For such other and further relief as this Court providently deems just, proper and
equitable.
BASIS OF ACTION
3. The plaintiff, a union electrician out of Local 3 and employed by Forest Electric
Corp., alleges that he was injured on June 10, 2015, when he fellfrom an elevated work surface
because of a dangerous and defective lift, ladder and/or scaffold as well as debris at a
53rd
construction project at 10 East Street, New York, New York. The nature and extent of the
plaintiff's injuries are unknown. The plaintiff prosecutes a 2016 lawsuit under New York
County index number 160113/16 against the putative owner, contractor and plumbing
53rd
subcontractor, McGovern & Company, LLC, SL Green Realty Corp., Equinox East
Inc., Equinox Holdings LLC, 10 E53 Owner LLC, and Tristate Plumbing Services Corp. In that
action the plaintiff alleges common-law negligence as well as violations of Labor Law sections
200, 240(1) and 241(6). The plaintiff commenced this separate lawsuit against CT Construction
Consultants LLC (CLCC) and Eclipse Development, Inc., making the same allegations. This
lawsuit remains in the pleading phase without any discovery. The Fabiani Cohen & Hall firm
has been defending CLCC and conducted a thorough investigation of the claims which disclosed
that CLCC had not signed a contract for the subject project as of June 10, 2015, did not assume
any duties for the premises, was not performing any services and was not on site on the date of
[1696377/l] 4
2 of 7
FILED: NEW YORK COUNTY CLERK 10/30/2019 05:39 PM INDEX NO. 160113/2016
NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 10/30/2019
the alleged incident. Accordingly, the suit against CLCC is without merit and your affimant
made numerous entreaties for a voluntary discontinuance. Because there has been no response to
the plea for discontinuance the instant motion was necessary.
STATE-MENT OF THE CASE
4. Based upon an alleged June 10, 2015 date of incident the plaintiff timely
commenced suit on December 2, 2016 in Supreme Court, New York County by electronically
filing a summons and complaint under New York County index number 160113/2016 naming
McGovern & Company, LLC, SL Green Realty Corp., Equinox East 53rd Street Inc., Equinox
Holdings LLC, 10 E53 Owner LLC and Tristate Plumbing Services Corp., alleging common-law
negligence and statutory violations in a mostly boilerplate pleading. It is purported that the
defendants failed to provide a reasonably safe place to work as well as reasonable and adequate
statutory safety devices which jointly and severally were the cause of plaintiff's bodily injuries.
The plaintiff did not plead the Industrial Code sections purportedly violated as predicates to the
section 241(6) cause of action.
5. On June 8, 2018, the plaintiff timely commenced the instant separate suit in
Supreme Court, New York County by electronically filing a sm.-m and complaint naming CT
Construction Consultants LLC (CLCC) and Eclipse Development, Inc (Exhibit 1). The tersely
"Electric"
worded complaint alleges that the plaintiff was an employee of and was in the course
and scope of his employment on the premises when he sustained bodily injury because of an
unreasonably dangerous and/or defective condition, including an unsafe and defective
lift/ladder/scaffolding from which he fell. It isalleged, among other things, that CLCC assumed
and performed duties as the General Contractor and Construction Manager for the project. In
one paragraph the plaintiff alleges breach of the duty of reasonable care as well as violations of
[1696377/1] 5
3 of 7
FILED: NEW YORK COUNTY CLERK 10/30/2019 05:39 PM INDEX NO. 160113/2016
NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 10/30/2019
state Labor Law sections 200, 240(1) and 241(6). The plaintiff did not plead the Industrial Code
sections purportedly violated as predicates to the section 241(6) cause of action. In both suits the
plaintiff pleads unspecified ad daiiiiisiii clauses merely alleging that damages exceed the
jurisdiction of all lower courts. On October 17, 2018 CLCC served and filed an answer and
issue was thereby joined (Exhibit 2). There is no record of Eclipse/Equinox having filed an
answer in this action.
6. Despite commencing the first suit in 2016 the plaintiffhas not exchanged a bill of
particulars or a response to the October 17, 2018 initial discovery demands by CLCC.
Accordingly, the plaintiff's discovery responses are now overdue. Previous efforts through
email and telephone conversations have been directed toward persuading plaintiff's attorney to
discontinue the suit against CLCC before engaging in discovery proceedings in earnest;
nonetheless, those efforts did not receive a discontinuance or discovery responses showing that
CLCC had any connection to Mr. Heard's alleged injury.
7. The absence of discovery notwithstanding, investigation by your affimrant
discloses that SL Green, the Owner, entered into a February 18, 2015 Owner-Contractor
Agreement with McGovern & Company LLC (Exhibit 3). McGovern, as the Contractor, was to
2"d 3d
perform certain work on the sub-cellar, cellar, ground, and Floors of the Building at 10
53"l
east Street, also known as the Equinox Structural Reinforcement. Your affirmant
independently obtained a copy of this agreement which in pertinent part states that McGovern
assumed duties to commence the Work immediately in accordance with the proposal and
Schedule A-1. Schedule A reads in part that the Contractor was to furnish all material, labor,
tools, equipment, supervision, insurance ... adñiinistrative and filed staff as required to perform
work.
[1696377/1] 6
4 of 7
FILED: NEW YORK COUNTY CLERK 10/30/2019 05:39 PM INDEX NO. 160113/2016
NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 10/30/2019
8. McGovern, as an independent contractor, further assumed the duty for exclusive
"6"
control over the means and methods of performance of the Work. Pursuant to paragraph of
the Agiccmcnt McGovern was to procure insurance as set forth in Schedule G. Paragraph "9, (a)
Indemnity,"
states that to the fullest extent permitted by law, [the] Contractor shall indemnify
and hold harmless the (i)Owner ...from and against all losses ...and attorney's fees and shall
defend the Owner Indemnified Parties in any action ...for personal injury as a result of the acts,
omissions or other conduct of Contractor ... or its subcontractors ...in connection with the
Work. Under subsection "(d)", McGovern, the Contractor, expressly agreed that itassumed a
duty of sole responsibility for the safety conditions of its workers and the work areas.
9. By a May 27, 2015 letter of intent, Eclipse Development Corporation, the
53d
development affiliate of Equinox Street Club, agreed to award a construction management
53d
contract for the Equinox Fitness Club, 10 E Street, New York, NY, to [CT} Construction
Consultants, LLC (CCLC) (Exhibit 4). Eclipse authorized and CCLC agreed to immediately
commence construction of the Project based upon the Proposed Contract. Eclipse reserved the
right to terminate the letter of intent upon notice to CCLC given at any time afterJune 27, 2015.
In such event CCLC and allsubcontractors were to stop work.
10. Investigation further discloses that CLCC obtained New York City Department of
Buildings work permits issued on June 17, 2015, one week after Mr. Heard's alleged incident,
for general construction interior renovation work as well as mechanical, HVAC and plumbing
work (Exhibit 5).
11. The investigation produced a letter dated September 29, 2015, by which Eclipse
terminated the May 27, 2015 letterof intent with CLCC for the Project immediately (Exhibit 6).
Eclipse stated six grounds for the termination including a failure to sign the proposed contract for
[1696377/1] 7
5 of 7
FILED: NEW YORK COUNTY CLERK 10/30/2019 05:39 PM INDEX NO. 160113/2016
NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 10/30/2019
the Project. Eclipse further purports that CLCC did not did not provide a competent full time
project manager and failed to manage daily construction activities with subcontractors in a
manner that advanced the completion or delivery date as specified in the letter of intent. The
letter does not identify CLCC as having performed any work as of that date.
12. Investigation further disclosed that Mr. Keen of CLCC reported not having
received executed documents from Eclipse. Mr. Keen further stated under oath that CLCC was
not on the Project at the time of the alleged occurrence and that the subcontractors then present
were working for McGovern (Affidavit of Mr. Keen attached as Exhibit 7). Moreover, there is
no incident report, daily logs, tool box meeting minutes, site safety reports or other
documentation to demonstrate that CLCC had common-law or at the time of
any statutory duty
the alleged incident. To the contrary, the first notice to CLCC of Mr. Heard's alleged incident
was service of the summons and complaint in this suit.
LEGAL ARGUMENT
13. The Court is respectfully referred to the accompanying Memorandum of Law
stating the relevant law pursuant to 22 NYCRR 202.8(c). Succinctly, premises liabilitygenerally
concerns the duties and liabilities which attach to a person because of the person's relationship to
a piece of land connected with an injury. It is a well-settled precept that only a person who
owns, occupies, leases, or otherwise controls a particular piece of real property may be liablefor
injuries caused by conditions or persons thereon. Here, it is alleged that Mr. Heard's injury
occurred during a day when there was no renovation work being performed in a phase under the
direction, supervision and control of a contractor other than CLCC. In fact, CLCC had not
obtained permits for work until a week after Mr. Heard's alleged incident and the award to
CLCC was withdrawn and rescinded in writing by Eclipse/Equinox before CLCC had signed a
[I696377/1] 8
6 of 7
FILED: NEW YORK COUNTY CLERK 10/30/2019 05:39 PM INDEX NO. 160113/2016
NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 10/30/2019
construction management agreement. CLCC therefore has demonstrated without any question of
fact that ithad no duty to reaiñtaiñ the premises in a reasonably safe condition and did not create
the condition. Accordingly, the complaint against CLCC should be dismissed in itsentirety as a
matter of law.
14. There has not been any prior application by CLCC for the reliefrequested herein.
CONCLUSION
WHEREFORE, based upon the foregoing statement of relevant facts pursuant to 22
NYCRR 202.8(c), the attached record and the relevant law discussed in the accorspañying
Memorañdum of Law, it isrespectfully requested that the within motion be granted dismissing
the complaint against CT Construction Consultants LLC, in its entirety,together with such other
and further relief that this Court may deem just, proper and equitable.
Affirmed this on this
3rd
day of June, 2019 RobertM. Com¾
Robert M. Conti
[ 1696377/1] 9
7 of 7
Preview
FILED: NEW YORK COUNTY CLERK 10/30/2019 05:39 PM INDEX NO. 160113/2016 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 10/30/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ___________________---------------- ---------X PAUL HEARD, Index No.: 155429/2018 Plaintiff, AFFIRMATION IN SUPPORT -against- CT CONSTRUCTION CONSULTANTS LLC ECLIPSE DEVELOPMENT, INC, Defendants. .- ___ -----------X ROBERT M. CONTI, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following upon information and belief and under the penalties of perjury: 1. I am of counsel to the firm of Fabiani Cohen & Hall, LLP, attorneys for the defendant CT Construction Consultants LLC (CLCC) and I am fully familiar with the facts and circumstances of this matter based upon a review of the firm's litigation file. 2. I submit this affirmation in support of the within motion for an order pursuant to CPLR R. 3212(a) et seq., diarnissing the plaintiff's complaint in its entirety as against the defendant, CT as well as all cross-claims and counterclaims, where the evidence demonstrates without any genuine triable issue of fact that: a) CLCC was not the fee holding owner of the real property, manager, occupant or the agent of any of the aforesaid, nor was it in possession of such premises where the plaintiff alleges he sustained bodily injury; and, [1696377/1] 3 1 of 7 FILED: NEW YORK COUNTY CLERK 10/30/2019 05:39 PM INDEX NO. 160113/2016 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 10/30/2019 b) CLCC did not have any common law or statutory duty to replace, maintain, repair or keep the incident location in a reasonably safe condition at the time of alleged occurrence; and, c) CLCC did not create the purported condition that caused the plaintiff to sustain bodily injury; and, 2) For such other and further relief as this Court providently deems just, proper and equitable. BASIS OF ACTION 3. The plaintiff, a union electrician out of Local 3 and employed by Forest Electric Corp., alleges that he was injured on June 10, 2015, when he fellfrom an elevated work surface because of a dangerous and defective lift, ladder and/or scaffold as well as debris at a 53rd construction project at 10 East Street, New York, New York. The nature and extent of the plaintiff's injuries are unknown. The plaintiff prosecutes a 2016 lawsuit under New York County index number 160113/16 against the putative owner, contractor and plumbing 53rd subcontractor, McGovern & Company, LLC, SL Green Realty Corp., Equinox East Inc., Equinox Holdings LLC, 10 E53 Owner LLC, and Tristate Plumbing Services Corp. In that action the plaintiff alleges common-law negligence as well as violations of Labor Law sections 200, 240(1) and 241(6). The plaintiff commenced this separate lawsuit against CT Construction Consultants LLC (CLCC) and Eclipse Development, Inc., making the same allegations. This lawsuit remains in the pleading phase without any discovery. The Fabiani Cohen & Hall firm has been defending CLCC and conducted a thorough investigation of the claims which disclosed that CLCC had not signed a contract for the subject project as of June 10, 2015, did not assume any duties for the premises, was not performing any services and was not on site on the date of [1696377/l] 4 2 of 7 FILED: NEW YORK COUNTY CLERK 10/30/2019 05:39 PM INDEX NO. 160113/2016 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 10/30/2019 the alleged incident. Accordingly, the suit against CLCC is without merit and your affimant made numerous entreaties for a voluntary discontinuance. Because there has been no response to the plea for discontinuance the instant motion was necessary. STATE-MENT OF THE CASE 4. Based upon an alleged June 10, 2015 date of incident the plaintiff timely commenced suit on December 2, 2016 in Supreme Court, New York County by electronically filing a summons and complaint under New York County index number 160113/2016 naming McGovern & Company, LLC, SL Green Realty Corp., Equinox East 53rd Street Inc., Equinox Holdings LLC, 10 E53 Owner LLC and Tristate Plumbing Services Corp., alleging common-law negligence and statutory violations in a mostly boilerplate pleading. It is purported that the defendants failed to provide a reasonably safe place to work as well as reasonable and adequate statutory safety devices which jointly and severally were the cause of plaintiff's bodily injuries. The plaintiff did not plead the Industrial Code sections purportedly violated as predicates to the section 241(6) cause of action. 5. On June 8, 2018, the plaintiff timely commenced the instant separate suit in Supreme Court, New York County by electronically filing a sm.-m and complaint naming CT Construction Consultants LLC (CLCC) and Eclipse Development, Inc (Exhibit 1). The tersely "Electric" worded complaint alleges that the plaintiff was an employee of and was in the course and scope of his employment on the premises when he sustained bodily injury because of an unreasonably dangerous and/or defective condition, including an unsafe and defective lift/ladder/scaffolding from which he fell. It isalleged, among other things, that CLCC assumed and performed duties as the General Contractor and Construction Manager for the project. In one paragraph the plaintiff alleges breach of the duty of reasonable care as well as violations of [1696377/1] 5 3 of 7 FILED: NEW YORK COUNTY CLERK 10/30/2019 05:39 PM INDEX NO. 160113/2016 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 10/30/2019 state Labor Law sections 200, 240(1) and 241(6). The plaintiff did not plead the Industrial Code sections purportedly violated as predicates to the section 241(6) cause of action. In both suits the plaintiff pleads unspecified ad daiiiiisiii clauses merely alleging that damages exceed the jurisdiction of all lower courts. On October 17, 2018 CLCC served and filed an answer and issue was thereby joined (Exhibit 2). There is no record of Eclipse/Equinox having filed an answer in this action. 6. Despite commencing the first suit in 2016 the plaintiffhas not exchanged a bill of particulars or a response to the October 17, 2018 initial discovery demands by CLCC. Accordingly, the plaintiff's discovery responses are now overdue. Previous efforts through email and telephone conversations have been directed toward persuading plaintiff's attorney to discontinue the suit against CLCC before engaging in discovery proceedings in earnest; nonetheless, those efforts did not receive a discontinuance or discovery responses showing that CLCC had any connection to Mr. Heard's alleged injury. 7. The absence of discovery notwithstanding, investigation by your affimrant discloses that SL Green, the Owner, entered into a February 18, 2015 Owner-Contractor Agreement with McGovern & Company LLC (Exhibit 3). McGovern, as the Contractor, was to 2"d 3d perform certain work on the sub-cellar, cellar, ground, and Floors of the Building at 10 53"l east Street, also known as the Equinox Structural Reinforcement. Your affirmant independently obtained a copy of this agreement which in pertinent part states that McGovern assumed duties to commence the Work immediately in accordance with the proposal and Schedule A-1. Schedule A reads in part that the Contractor was to furnish all material, labor, tools, equipment, supervision, insurance ... adñiinistrative and filed staff as required to perform work. [1696377/1] 6 4 of 7 FILED: NEW YORK COUNTY CLERK 10/30/2019 05:39 PM INDEX NO. 160113/2016 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 10/30/2019 8. McGovern, as an independent contractor, further assumed the duty for exclusive "6" control over the means and methods of performance of the Work. Pursuant to paragraph of the Agiccmcnt McGovern was to procure insurance as set forth in Schedule G. Paragraph "9, (a) Indemnity," states that to the fullest extent permitted by law, [the] Contractor shall indemnify and hold harmless the (i)Owner ...from and against all losses ...and attorney's fees and shall defend the Owner Indemnified Parties in any action ...for personal injury as a result of the acts, omissions or other conduct of Contractor ... or its subcontractors ...in connection with the Work. Under subsection "(d)", McGovern, the Contractor, expressly agreed that itassumed a duty of sole responsibility for the safety conditions of its workers and the work areas. 9. By a May 27, 2015 letter of intent, Eclipse Development Corporation, the 53d development affiliate of Equinox Street Club, agreed to award a construction management 53d contract for the Equinox Fitness Club, 10 E Street, New York, NY, to [CT} Construction Consultants, LLC (CCLC) (Exhibit 4). Eclipse authorized and CCLC agreed to immediately commence construction of the Project based upon the Proposed Contract. Eclipse reserved the right to terminate the letter of intent upon notice to CCLC given at any time afterJune 27, 2015. In such event CCLC and allsubcontractors were to stop work. 10. Investigation further discloses that CLCC obtained New York City Department of Buildings work permits issued on June 17, 2015, one week after Mr. Heard's alleged incident, for general construction interior renovation work as well as mechanical, HVAC and plumbing work (Exhibit 5). 11. The investigation produced a letter dated September 29, 2015, by which Eclipse terminated the May 27, 2015 letterof intent with CLCC for the Project immediately (Exhibit 6). Eclipse stated six grounds for the termination including a failure to sign the proposed contract for [1696377/1] 7 5 of 7 FILED: NEW YORK COUNTY CLERK 10/30/2019 05:39 PM INDEX NO. 160113/2016 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 10/30/2019 the Project. Eclipse further purports that CLCC did not did not provide a competent full time project manager and failed to manage daily construction activities with subcontractors in a manner that advanced the completion or delivery date as specified in the letter of intent. The letter does not identify CLCC as having performed any work as of that date. 12. Investigation further disclosed that Mr. Keen of CLCC reported not having received executed documents from Eclipse. Mr. Keen further stated under oath that CLCC was not on the Project at the time of the alleged occurrence and that the subcontractors then present were working for McGovern (Affidavit of Mr. Keen attached as Exhibit 7). Moreover, there is no incident report, daily logs, tool box meeting minutes, site safety reports or other documentation to demonstrate that CLCC had common-law or at the time of any statutory duty the alleged incident. To the contrary, the first notice to CLCC of Mr. Heard's alleged incident was service of the summons and complaint in this suit. LEGAL ARGUMENT 13. The Court is respectfully referred to the accompanying Memorandum of Law stating the relevant law pursuant to 22 NYCRR 202.8(c). Succinctly, premises liabilitygenerally concerns the duties and liabilities which attach to a person because of the person's relationship to a piece of land connected with an injury. It is a well-settled precept that only a person who owns, occupies, leases, or otherwise controls a particular piece of real property may be liablefor injuries caused by conditions or persons thereon. Here, it is alleged that Mr. Heard's injury occurred during a day when there was no renovation work being performed in a phase under the direction, supervision and control of a contractor other than CLCC. In fact, CLCC had not obtained permits for work until a week after Mr. Heard's alleged incident and the award to CLCC was withdrawn and rescinded in writing by Eclipse/Equinox before CLCC had signed a [I696377/1] 8 6 of 7 FILED: NEW YORK COUNTY CLERK 10/30/2019 05:39 PM INDEX NO. 160113/2016 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 10/30/2019 construction management agreement. CLCC therefore has demonstrated without any question of fact that ithad no duty to reaiñtaiñ the premises in a reasonably safe condition and did not create the condition. Accordingly, the complaint against CLCC should be dismissed in itsentirety as a matter of law. 14. There has not been any prior application by CLCC for the reliefrequested herein. CONCLUSION WHEREFORE, based upon the foregoing statement of relevant facts pursuant to 22 NYCRR 202.8(c), the attached record and the relevant law discussed in the accorspañying Memorañdum of Law, it isrespectfully requested that the within motion be granted dismissing the complaint against CT Construction Consultants LLC, in its entirety,together with such other and further relief that this Court may deem just, proper and equitable. Affirmed this on this 3rd day of June, 2019 RobertM. Com¾ Robert M. Conti [ 1696377/1] 9 7 of 7