Aguaisa v. 33 E. 22nd St. Acquisition, LLC

2025 NY Slip Op 30173(U)

Opinion

Aguaisa v 33 E. 22nd St. Acquisition, LLC 2025 NY Slip Op 30173(U) January 17, 2025 Supreme Court, New York County Docket Number: Index No. 150695/2022 Judge: Mary V. Rosado 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 01/17/2025 04:48 P~ INDEX NO. 150695/2022 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 01/17/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARYV. ROSADO PART 33M Justice ----------------------------------------------------------------------------X INDEX NO. 150695/2022 CARLOS AGUAISA, MOTION DA TE 03/05/2024 Plaintiff, MOTION SEQ. NO. 002 - V-

33 EAST 22ND STREET ACQUISITION, LLC,33 EAST 22ND STREET TENANTS CORP., BULADO GENERAL DECISION + ORDER ON CONTRACTORS CORP., EAST 22ND ST. ACQUISITION HOLDINGS LLC,KINGS GROUP NY CORP., MOTION

Defendants. ------------------------------------------------------------------------------X

BULADO GENERAL CONTRACTORS CORP. Third-Party Index No. 595289/2022 Plaintiff,

-against-

PRO SOLUTION CONSTRUCTION CORP.

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

The following e-filed documents, listed by NYSCEF document number (Motion 002) 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79,80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92 were read on this motion to/for JUDGMENT-SUMMARY

Upon the foregoing documents, and after a final submission date of September 17, 2024,

Defendant Kings Group NY Corp.' s ("Kings Group") motion for summary judgment dismissing

all claims and crossclaims asserted against it is granted.

I. Background

This is an action for personal injuries sustained by Plaintiff Carlos Aguaisa ("Plaintiff') on

July 16, 2020 while working for Third-Party Defendant Pro Solution Construction Corp ("Pro

Solution") at a building located at 33 East 22nd Street, New York, New York (the "Premises").

150695/2022 AGUAISA, CARLOS vs. 33 EAST 22ND STREET ACQUISITION, LLC ET AL Page 1 of 4 Motion No. 002

[* 1] 1 of 4 [FILED: NEW YORK COUNTY CLERK 01/17/2025 04:48 P~ INDEX NO. 150695/2022 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 01/17/2025

While working at the Premises, Plaintiff took orders from the owner of Pro Solution, Emilio Paz

(NYSCEF Doc. 74 at 44).

Harpreet Singh, the owner of Kings Group, submitted an affidavit stating that at the time

of Plaintiffs accident, Kings Group had no equipment at the Premises (NYSCEF Doc. 73). Kings

Group now moves for summary judgment seeking dismissal of all claims and crossclaims asserted

against it. The other defendants do not oppose dismissal of Kings Group. However, Plaintiff argues

that Kings Group has not complied with discovery. ·

II. Discussion

"Summary judgment is a drastic remedy, to be granted only where the moving party has

tendered sufficient evidence to demonstrate the absence of any material issues of fact." (Vega v

Restani Const. Corp., 18 NY3d 499, 503 [2012]). The moving party's "burden is a heavy one and

on a motion for summary judgment, facts must be viewed in the light most favorable to the non-

moving party." (Jacobsen v New York City Health and Hasps. Corp., 22 NY3d 824, 833 [2014]).

Once this showing is made, the burden shifts to the party opposing the motion to produce

evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact

which require a trial (See e.g., Zuckerman v City of New York, 49 NY2d 557,562 [1980]).

Here, the undisputed facts show that Kings Group had completed its work on the Premises

months prior to Plaintiffs accident. Kings Group submitted certificates of completion from the

New York City Department of Buildings dated January 9, 2020 and March 16, 2020 indicating

that Kings Group's work was completed months prior to Plaintiffs accident (NYSCEF Docs. 71-

72). Moreover, Plaintiff specifically testified that he was not on a Kings Group scaffold but was

on a scaffold that he witnessed Pro Solution erect (NYSCEF Doc. 74 at 46). Plaintiff further

testified Pro Solution provided the saw which caused his injury and he only took instruction from

150695/2022 AGUAISA, CARLOS vs. 33 EAST 22ND STREET ACQUISITION, LLC ET AL Page 2 of 4 Motion No. 002

2 of 4 [* 2] [FILED: NEW YORK COUNTY CLERK 01/17/2025 04:48 PM] INDEX NO. 150695/2022 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 01/17/2025

Pro Solution. There is no evidence that Kings Group was involved or contributed to Plaintiffs

accident. It is well established that mere speculation and conjecture, rather than admissible

evidence, is insufficient to defeat a motion for summary judgment (Caraballo v Kingsbridge Apt.

Corp., 59 AD3d 270 [1st Dept 2009]; Smith v Cohen, 24 AD3d 183 [1st Dept 2005]).

Plaintiffs argument that the motion is premature due to outstanding discovery 1s

disingenuous. A review of the docket indicates this Court ordered Kings Group's deposition to be

completed on May 1, 2023, then on October 13, 2023, then on December 12, 2023, and finally on

February 28, 2024. Having had months to conduct Kings Group's deposition, Plaintiff cannot now

claim summary judgment should not be granted because it did not have an opportunity to depose

Kings Group. Moreover, as of the last case management order, Plaintiff did not even represent that

Kings Group owed responses to any of Plaintiffs demands for discovery and inspection (see

NYSCEF Doc. 59). Plaintiff should not be rewarded in defeating summary judgment where it

failed to pursue dilligently Kings Group's deposition and where it has no evidence contradicting

Kings Group's witness affidavit.

In any event, Plaintiffs mere hope that deposition testimony from Kings Group would

raise an issue of fact is insufficient to defeat Kings Group's motion, especially when it fails to

show how the deposition testimony would contradict any of the conclusive documentary and

testimonial evidence submitted on this motion (see, e.g. Erkan v McDonald's Corp., 146 AD3d

466 [1st Dept 2017]). Therefore, Kings Group's motion is granted.

Accordingly, it is hereby,

ORDERED that Defendant Kings Group's motion for summary judgment is granted, and

all claims and crossclaims asserted against Kings Group are hereby dismissed; and it is further

150695/2022 AGUAISA, CARLOS vs. 33 EAST 22ND STREET ACQUISITION, LLC ET AL Page 3 of 4 Motion No. 002

3 of 4 [* 3] [FILED: NEW YORK COUNTY CLERK 01/17/2025 04:48 P~ INDEX NO. 150695/2022 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 01/17/2025

ORDERED that within ten days of entry, counsel for Defendant Kings Group shall serve a

copy of this Decision and Order, with notice of entry, on all parties via NYSCEF.

This constitutes the Decision and Order of the Court.

1/17/2025 DATE H N. RY V. ROSADO, J.S.C. CHECK ONE: CASE DISPOSED NON-FI NAL DISPOSITION

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

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

150695/2022 AGUAISA, CARLOS vs. 33 EAST 22ND STREET ACQUISITION , LLC ET AL Page4of4 Motion No. 002

4 of 4 [* 4]