729 Third Ave Rest. LLC v. DOLP 733 Prop. II LLC

New York Supreme Court, New York County

729 Third Ave Rest. LLC v. DOLP 733 Prop. II LLC

2025 NY Slip Op 32801(U)

New York Supreme Court, New York County·Decided August 13, 2025·No. Index No. 156578/2022·Unpublished

Opinion

729 Third Ave Rest. LLC v DOLP 733 Prop. II LLC 2025 NY Slip Op 32801(U)

August 13, 2025

Supreme Court, New York County Docket Number: Index No. 156578/2022 Judge: Leslie A. Stroth

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 08/14/2025 04:40 PM INDEX NO. 156578/2022 NYSCEF DOC. NO. 150 RECEIVED NYSCEF: 08/14/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY

PRESENT: HON. LESLIE A. STROTH PART 12M Justice

- ------- - - ----- - - - - - - - - -- - --------------------------- -X INDEX NO. 156578/2022 729 THIRD AVE RESTAURANT LLC, MOTION DATE 10/13/2024 Plaintiff,

MOTION SEQ. NO. _ ___:0:. . :0. .c.1_ _ - V -

DOLP 733 PROPERTIES II LLC ,ROYAL REAL TY CORP. , JAMES E. FITZGERALD INC ., COASTAL WATERPROOFING LLC,J.T. MAGEN & COMPANY DECISION + ORDER ON

INC.,JOHN GALLIN & SON INC .,KING HOIST & CONTRACTING, INC ., S.T. RUD CONSTRUCTION MOTION CORPORATION , XYZ CONCTRACTORS 1-1 0,

Defendant.

----------------------------------------------------------------------------X

JAMES E. FITZGERALD INC . Th ird-Party Index No. 595793/2023

Plaintiff,

-against-

KING HOIST & SCAFFOLDING , INC .

Defendant.

------------- ------ ------------------------------------------------- X

COASTAL WATERPROOFING LLC Second Th ird-Party Index No. 595016/2024

Plaintiff,

-against-

ALTAMI NA CONSTRUCTION CORP.

Defendant.

-------------------------------------------------------------X

The follow ing e-filed documents , listed by NYSCEF document number (Motion 001) 68, 69, 70, 71 , 72, 73, 74, 75, 76, 77 were read on this motion to/for DISMISSAL

156578/2022 729 THIRD AVE RESTAURANT LLC vs. DOLP 733 PROPERTIES II LLC ET AL Page 1 of 4 Motion No. 001

[* 1] 1 of 4

FILED: NEW YORK COUNTY CLERK 08/14/2025 04:40 PM INDEX NO. 156578/2022 NYSCEF DOC. NO. 150 RECEIVED NYSCEF: 08/14/2025

Plaintiff, Rosie Dunn's, has possessed the premises located at 729 Third Avenue, New York, New York, since October 1, 2018, where it operates a restaurant in a two-story building with a basement. The adjacent property at 733 Third A venue contains a 23-story mixed-use building. At all relevant times, defendant Durst owned 733 Third A venue, and defendant Royal served as its managing agent and property manager.

The complaint alleges that DOLP 733 Properties, Royal Realty Corp., S.T. Rud Construction Corporation, Fitzgerald, Coastal Waterproofing, J.T. Magen & Company, John Gallin & Son ("Gallin"), and King Hoist & Contracting (collectively, "Construction Defendants") entered into contracts to perform construction work and services at 733 Third A venue, including by hiring subcontractors and directing and controlling the work. Plaintiff alleges that, in connection with that work, agents, servants, and employees of the defendants entered the restaurant premises, erected scaffolding and sidewalk bridges on top of the restaurant and performed construction activities on its roof.

Plaintiff claims that the work was negligently performed, including by covering roof drain systems, improperly flashing waterproofing, and placing pipe scaffolding without proper roof protection. Plaintiff further alleges that the construction caused water damage, ceiling collapses, broken window and door frames, and other property damage, and that defendants unreasonably delayed completion of their work, interfering with plaintiff's use and enjoyment of the premises.

Plaintiff asserts causes of action for negligence, trespass, and nuisance against all defendants, including Gallin, and seeks compensatory damages for property damage and loss of business use.

156578/2022 729 THIRD AVE RESTAURANT LLC vs. DOLP 733 PROPERTIES II LLC ET AL Page 2 of 4 Motion No. 001

[* 2] 2 of 4

FILED: NEW YORK COUNTY CLERK 08/14/2025 04:40 PM INDEX NO. 156578/2022 NYSCEF DOC. NO. 150 RECEIVED NYSCEF: 08/14/2025

Gall in moves in Motion Sequence 001 to dismiss the Complaint against it pursuant to CPLR 321 l(a)(l) and (a)(7).

Pursuant to CPLR 3211 (a)(l) "dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law." (Leon v Martinez, 84 NY2d 83, 88 [1994])

However, the Work Order submitted by Defendant Gallin includes line items for Sidewalk Protection/Scaffolding. Moreover, the submitted evidence does not definitively show that Defendant Gallin had no part in the exterior work at 733 3rd Avenue. Accordingly, the documentary evidence does not conclusively establish a defense to the asserted claims, as Gallin has not met their prima facie burden based on the documentary evidence provided.

Pursuant to CPLR 3211 (a) (7), a party may move to dismiss a claim on the ground that the pleading fails to state a cause of action. Upon such a motion, the Court must accept the facts alleged as true and determine simply whether plaintiffs facts fit within any cognizable legal theory. See CPLR 3026; Marone v Marone, 50 NY2d 481 (1980). The complaint shall be liberally construed, and the allegations are given the benefit of every possible favorable inference. (See Leon v Martinez, 84 NY2d 83, 87 ( 1994)).

Defendant Gallin's motion is based on the premise that it conclusively had no part in the exterior work at 733 3 rd Avenue. As discussed infra, Gatlin has failed to make such a showing, and as such the court finds that dismissal at this early stage of the litigation is premature. As such, Gallin's motion to dismiss is denied in its entirety.

The court has considered the remaining arguments and finds such unavailing.

Accordingly; it is hereby

156578/2022 729 THIRD AVE RESTAURANT LLC vs. DOLP 733 PROPERTIES II LLC ET AL Page 3 of 4 Motion No. 001 ·

[* 3] 3 of 4

FILED: NEW YORK COUNTY CLERK 08/14/2025 04:40 PM INDEX NO. 156578/2022 NYSCEF DOC. NO. 150 RECEIVED NYSCEF: 08/14/2025

ORDERED that Motion 001 by Gallin to dismiss the complaint is denied in its entirety.

The foregoing constitutes the decision and order of the court.

8/13/2025

DATE HON~[ft!RPl.HS-1-ROTH

~

CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION J.S.C.

GRANTED 0 DENIED GRANTED IN PART □ OTHER APPLICATION : SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE : INC LU DES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

156578/2022 729 THIRD AVE RESTAURANT LLC vs. DOLP 733 PROPERTIES II LLC ET AL Page 4 of 4 Motion No. 001

[* 4] 4 of 4

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729 Third Ave Rest. LLC v DOLP 733 Prop. II LLC 2025 NY Slip Op 32801(U)

August 13, 2025

Supreme Court, New York County Docket Number: Index No. 156578/2022 Judge: Leslie A. Stroth

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 08/14/2025 04:40 PM INDEX NO. 156578/2022 NYSCEF DOC. NO. 150 RECEIVED NYSCEF: 08/14/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY

PRESENT: HON. LESLIE A. STROTH PART 12M Justice

- ------- - - ----- - - - - - - - - -- - --------------------------- -X INDEX NO. 156578/2022 729 THIRD AVE RESTAURANT LLC, MOTION DATE 10/13/2024 Plaintiff,

MOTION SEQ. NO. _ ___:0:. . :0. .c.1_ _ - V -

DOLP 733 PROPERTIES II LLC ,ROYAL REAL TY CORP. , JAMES E. FITZGERALD INC ., COASTAL WATERPROOFING LLC,J.T. MAGEN & COMPANY DECISION + ORDER ON

INC.,JOHN GALLIN & SON INC .,KING HOIST & CONTRACTING, INC ., S.T. RUD CONSTRUCTION MOTION CORPORATION , XYZ CONCTRACTORS 1-1 0,

Defendant.

----------------------------------------------------------------------------X

JAMES E. FITZGERALD INC . Th ird-Party Index No. 595793/2023

Plaintiff,

-against-

KING HOIST & SCAFFOLDING , INC .

Defendant.

------------- ------ ------------------------------------------------- X

COASTAL WATERPROOFING LLC Second Th ird-Party Index No. 595016/2024

Plaintiff,

-against-

ALTAMI NA CONSTRUCTION CORP.

Defendant.

-------------------------------------------------------------X

The follow ing e-filed documents , listed by NYSCEF document number (Motion 001) 68, 69, 70, 71 , 72, 73, 74, 75, 76, 77 were read on this motion to/for DISMISSAL

156578/2022 729 THIRD AVE RESTAURANT LLC vs. DOLP 733 PROPERTIES II LLC ET AL Page 1 of 4 Motion No. 001

[* 1] 1 of 4

FILED: NEW YORK COUNTY CLERK 08/14/2025 04:40 PM INDEX NO. 156578/2022 NYSCEF DOC. NO. 150 RECEIVED NYSCEF: 08/14/2025

Plaintiff, Rosie Dunn's, has possessed the premises located at 729 Third Avenue, New York, New York, since October 1, 2018, where it operates a restaurant in a two-story building with a basement. The adjacent property at 733 Third A venue contains a 23-story mixed-use building. At all relevant times, defendant Durst owned 733 Third A venue, and defendant Royal served as its managing agent and property manager.

The complaint alleges that DOLP 733 Properties, Royal Realty Corp., S.T. Rud Construction Corporation, Fitzgerald, Coastal Waterproofing, J.T. Magen & Company, John Gallin & Son ("Gallin"), and King Hoist & Contracting (collectively, "Construction Defendants") entered into contracts to perform construction work and services at 733 Third A venue, including by hiring subcontractors and directing and controlling the work. Plaintiff alleges that, in connection with that work, agents, servants, and employees of the defendants entered the restaurant premises, erected scaffolding and sidewalk bridges on top of the restaurant and performed construction activities on its roof.

Plaintiff claims that the work was negligently performed, including by covering roof drain systems, improperly flashing waterproofing, and placing pipe scaffolding without proper roof protection. Plaintiff further alleges that the construction caused water damage, ceiling collapses, broken window and door frames, and other property damage, and that defendants unreasonably delayed completion of their work, interfering with plaintiff's use and enjoyment of the premises.

Plaintiff asserts causes of action for negligence, trespass, and nuisance against all defendants, including Gallin, and seeks compensatory damages for property damage and loss of business use.

156578/2022 729 THIRD AVE RESTAURANT LLC vs. DOLP 733 PROPERTIES II LLC ET AL Page 2 of 4 Motion No. 001

[* 2] 2 of 4

FILED: NEW YORK COUNTY CLERK 08/14/2025 04:40 PM INDEX NO. 156578/2022 NYSCEF DOC. NO. 150 RECEIVED NYSCEF: 08/14/2025

Gall in moves in Motion Sequence 001 to dismiss the Complaint against it pursuant to CPLR 321 l(a)(l) and (a)(7).

Pursuant to CPLR 3211 (a)(l) "dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law." (Leon v Martinez, 84 NY2d 83, 88 [1994])

However, the Work Order submitted by Defendant Gallin includes line items for Sidewalk Protection/Scaffolding. Moreover, the submitted evidence does not definitively show that Defendant Gallin had no part in the exterior work at 733 3rd Avenue. Accordingly, the documentary evidence does not conclusively establish a defense to the asserted claims, as Gallin has not met their prima facie burden based on the documentary evidence provided.

Pursuant to CPLR 3211 (a) (7), a party may move to dismiss a claim on the ground that the pleading fails to state a cause of action. Upon such a motion, the Court must accept the facts alleged as true and determine simply whether plaintiffs facts fit within any cognizable legal theory. See CPLR 3026; Marone v Marone, 50 NY2d 481 (1980). The complaint shall be liberally construed, and the allegations are given the benefit of every possible favorable inference. (See Leon v Martinez, 84 NY2d 83, 87 ( 1994)).

Defendant Gallin's motion is based on the premise that it conclusively had no part in the exterior work at 733 3 rd Avenue. As discussed infra, Gatlin has failed to make such a showing, and as such the court finds that dismissal at this early stage of the litigation is premature. As such, Gallin's motion to dismiss is denied in its entirety.

The court has considered the remaining arguments and finds such unavailing.

Accordingly; it is hereby

156578/2022 729 THIRD AVE RESTAURANT LLC vs. DOLP 733 PROPERTIES II LLC ET AL Page 3 of 4 Motion No. 001 ·

[* 3] 3 of 4

FILED: NEW YORK COUNTY CLERK 08/14/2025 04:40 PM INDEX NO. 156578/2022 NYSCEF DOC. NO. 150 RECEIVED NYSCEF: 08/14/2025

ORDERED that Motion 001 by Gallin to dismiss the complaint is denied in its entirety.

The foregoing constitutes the decision and order of the court.

8/13/2025

DATE HON~[ft!RPl.HS-1-ROTH

~

CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION J.S.C.

GRANTED 0 DENIED GRANTED IN PART □ OTHER APPLICATION : SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE : INC LU DES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

156578/2022 729 THIRD AVE RESTAURANT LLC vs. DOLP 733 PROPERTIES II LLC ET AL Page 4 of 4 Motion No. 001

[* 4] 4 of 4

729 Third Ave Rest. LLC v. DOLP 733 Prop. II LLC, 2025 NY Slip Op 32801(U) (N.Y. Super. Ct. 2025).

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