Allen v Actors Equity Holding Corp. 2025 NY Slip Op 30091(U) January 10, 2025 Supreme Court, New York County Docket Number: Index No. 157450/2016 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. INDEX NO. 157450/2016 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 01/10/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice ------------------- ----X INDEX NO. 157450/2016 BARBARA ALLEN, MOTION DATE 08/06/2023 Plaintiff, MOTION SEQ. NO. 006 - V -
ACTORS EQUITY HOLDING CORPORATION, 1560 BROADWAY COMPANY LLC,NEWMARK GRUBB KNIGHT FRANK, 1552 BROADWAY RETAIL OWNER LLC,SL GREEN DECISION + ORDER ON REAL TY CORP, T-MOBILE HOLDING GMBH, PLAZA MOTION CONSTRUCTION, LLC,
Defendant. -----------------------------------X
ACTORS EQUITY HOLDING CORPORATION, 1560 Third-Party BROADWAY COMPANY LLC, NEWMARK GRUBB KNIGHT Index No. 595490/2019 FRANK
Plaintiff,
-against-
EMERALD CITY CONSTRUCTION, LLC
Defendant. ------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 006) 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 190,191,192, 193, 194, 195 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER
Upon the foregoing documents, and after oral argument, which took place on September
5, 2024, where Brian Hussey, Esq. appeared for Plaintiff Barbara Allen ("Plaintiff'), Nicholas J.
Kauffman, Esq. appeared for Defendant Plaza Construction ("Plaza"), Melissa Wolin, Esq.
appeared for Defendants SL Green Realty Corp. ("SL Green") and 1552 Broadway Retail Owner
LLC ("1552 Broadway") (collectively "1552 Broadway Defendants"), and Louis A. Carotenuto,
157450/2016 ALLEN, BARBARA vs. ACTORS EQUITY HOLDING Page 1 of 6 Motion No. 006
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Esq. appeared for Defendants/Third-Party Plaintiffs Actors Equity Holding Corporation ("Actors
Equity"), 1560 Broadway Company LLC ("1560 Broadway"), and Newmark Grubb Knight Frank
("Newmark") (collectively "Actors Equity Defendants"), Plaza's motion for summary judgment
is denied. The 1552 Broadway Defendants' cross motion is granted in part and denied in part. The
Actors Equity Defendants' cross motion is granted in part and denied in part.
I. Background
This is an action for personal injuries sustained by Plaintiff on November 16, 2013, when
she allegedly fell near 1560 Broadway, New York, New York (the "Premises"). Defendant 1560
Broadway owned the Premises while Actors Equity was a tenant. Newmark was the property
manager. 1552 Broadway owned the building adjacent to the Premises. At the time of Plaintiff's
accident, there was a redevelopment project to merge the Premises with the building located at
1552 Broadway (the "Redevelopment Project"). Plaza was retained to serve as a construction
manager. Plaintiff testified that she was walking in an area of the sidewalk in "single file" because
there were construction objects blocking the walkway (NYSCEF Doc. 136 at 31 ). There was
scaffolding directly above the area where she fell and there was construction equipment and
barricades nearby (id. at 27-28). Plaintiff testified that her left foot struck on object on the sidewalk
which caused her to fall (id. at 25). She later testified her foot hit a barrier (id. at 150).
Plaza now seeks summary judgment arguing that Plaintiff cannot identify the cause of her
fall. Plaza further claims any defect existed prior to its involvement on the Premises. Further, Plaza
argues it did not manage the sidewalk prior to the accident, nor was it contracted to repair the
sidewalk. The Actors Equity Defendants cross-moved for leave to amend to assert common law
indemnity and contribution against Plaza, for conditional summary judgment on these newly
amended crossclaims, or alternatively dismissal of Plaintiff's Complaint. The 1552 Broadway
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Defendants cross move for identical relief, except they also seek leave to amend to assert a
crossclaim for contractual indemnification against Plaza.
II. Discussion
A. Standard
"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 ofNew York, 49 NY2d 557, 562 [1980]).
B. Plaza's Motion
Viewing the facts in the light most favorable to the non-movant, Plaza's motion for
summary judgment is denied. Plaza's argument that Plaintiff could not identify the cause of her
fall is without merit, as she clarified at her deposition that her foot hit a barrier on a sidewalk
(NYSCEF Doc. 136 at 150; see also Abraham v Dutch Broadway Associates LLC, 192 AD3d 550
[1st Dept 2021]; Kovach v PJA, LLC, 128 AD3d 445 [1st Dept 2015]). To the extent Plaza argues
Plaintiffs deposition testimony was inconsistent, credibility is an issue of fact for the jury (Francis
v New York City Transit Authority, 295 AD2d 164 [1st Dept 2002]).
To the extent Plaza argues it was not involved with the sidewalk, this is without merit. It is
undisputed that Plaza was serving as a construction manager in the area plaintiff fell. Moreover,
there is conflicting expert testimony (see NYSCEF Doc. 160) as to whether Plaza caused defects
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in the sidewalk through construction equipment which precludes summary judgment (Davison v
Shubert Organization, Inc., 221 AD3d 450 [1st Dept 2023] see also Gilmartin v City of New York,
81 AD3d 411 [1st Dept 2011]). Plaza's argument that as a contractor it owed no duty to Plaintiff
as a third-party is similarly without merit, as there is expert testimony opining that Plaza's
placement of the scaffolding dangerously narrowed the sidewalk (see, e.g. Coulton v City of New
York, 29 AD3d 301 [1st Dept 2006]).
Although Plaintiff failed to respond to Plaza's statement of material facts, she refuted them
through the substance of her opposition.
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Allen v Actors Equity Holding Corp. 2025 NY Slip Op 30091(U) January 10, 2025 Supreme Court, New York County Docket Number: Index No. 157450/2016 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. INDEX NO. 157450/2016 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 01/10/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice ------------------- ----X INDEX NO. 157450/2016 BARBARA ALLEN, MOTION DATE 08/06/2023 Plaintiff, MOTION SEQ. NO. 006 - V -
ACTORS EQUITY HOLDING CORPORATION, 1560 BROADWAY COMPANY LLC,NEWMARK GRUBB KNIGHT FRANK, 1552 BROADWAY RETAIL OWNER LLC,SL GREEN DECISION + ORDER ON REAL TY CORP, T-MOBILE HOLDING GMBH, PLAZA MOTION CONSTRUCTION, LLC,
Defendant. -----------------------------------X
ACTORS EQUITY HOLDING CORPORATION, 1560 Third-Party BROADWAY COMPANY LLC, NEWMARK GRUBB KNIGHT Index No. 595490/2019 FRANK
Plaintiff,
-against-
EMERALD CITY CONSTRUCTION, LLC
Defendant. ------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 006) 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 190,191,192, 193, 194, 195 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER
Upon the foregoing documents, and after oral argument, which took place on September
5, 2024, where Brian Hussey, Esq. appeared for Plaintiff Barbara Allen ("Plaintiff'), Nicholas J.
Kauffman, Esq. appeared for Defendant Plaza Construction ("Plaza"), Melissa Wolin, Esq.
appeared for Defendants SL Green Realty Corp. ("SL Green") and 1552 Broadway Retail Owner
LLC ("1552 Broadway") (collectively "1552 Broadway Defendants"), and Louis A. Carotenuto,
157450/2016 ALLEN, BARBARA vs. ACTORS EQUITY HOLDING Page 1 of 6 Motion No. 006
[* 1] 1 of 6 INDEX NO. 157450/2016 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 01/10/2025
Esq. appeared for Defendants/Third-Party Plaintiffs Actors Equity Holding Corporation ("Actors
Equity"), 1560 Broadway Company LLC ("1560 Broadway"), and Newmark Grubb Knight Frank
("Newmark") (collectively "Actors Equity Defendants"), Plaza's motion for summary judgment
is denied. The 1552 Broadway Defendants' cross motion is granted in part and denied in part. The
Actors Equity Defendants' cross motion is granted in part and denied in part.
I. Background
This is an action for personal injuries sustained by Plaintiff on November 16, 2013, when
she allegedly fell near 1560 Broadway, New York, New York (the "Premises"). Defendant 1560
Broadway owned the Premises while Actors Equity was a tenant. Newmark was the property
manager. 1552 Broadway owned the building adjacent to the Premises. At the time of Plaintiff's
accident, there was a redevelopment project to merge the Premises with the building located at
1552 Broadway (the "Redevelopment Project"). Plaza was retained to serve as a construction
manager. Plaintiff testified that she was walking in an area of the sidewalk in "single file" because
there were construction objects blocking the walkway (NYSCEF Doc. 136 at 31 ). There was
scaffolding directly above the area where she fell and there was construction equipment and
barricades nearby (id. at 27-28). Plaintiff testified that her left foot struck on object on the sidewalk
which caused her to fall (id. at 25). She later testified her foot hit a barrier (id. at 150).
Plaza now seeks summary judgment arguing that Plaintiff cannot identify the cause of her
fall. Plaza further claims any defect existed prior to its involvement on the Premises. Further, Plaza
argues it did not manage the sidewalk prior to the accident, nor was it contracted to repair the
sidewalk. The Actors Equity Defendants cross-moved for leave to amend to assert common law
indemnity and contribution against Plaza, for conditional summary judgment on these newly
amended crossclaims, or alternatively dismissal of Plaintiff's Complaint. The 1552 Broadway
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Defendants cross move for identical relief, except they also seek leave to amend to assert a
crossclaim for contractual indemnification against Plaza.
II. Discussion
A. Standard
"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 ofNew York, 49 NY2d 557, 562 [1980]).
B. Plaza's Motion
Viewing the facts in the light most favorable to the non-movant, Plaza's motion for
summary judgment is denied. Plaza's argument that Plaintiff could not identify the cause of her
fall is without merit, as she clarified at her deposition that her foot hit a barrier on a sidewalk
(NYSCEF Doc. 136 at 150; see also Abraham v Dutch Broadway Associates LLC, 192 AD3d 550
[1st Dept 2021]; Kovach v PJA, LLC, 128 AD3d 445 [1st Dept 2015]). To the extent Plaza argues
Plaintiffs deposition testimony was inconsistent, credibility is an issue of fact for the jury (Francis
v New York City Transit Authority, 295 AD2d 164 [1st Dept 2002]).
To the extent Plaza argues it was not involved with the sidewalk, this is without merit. It is
undisputed that Plaza was serving as a construction manager in the area plaintiff fell. Moreover,
there is conflicting expert testimony (see NYSCEF Doc. 160) as to whether Plaza caused defects
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in the sidewalk through construction equipment which precludes summary judgment (Davison v
Shubert Organization, Inc., 221 AD3d 450 [1st Dept 2023] see also Gilmartin v City of New York,
81 AD3d 411 [1st Dept 2011]). Plaza's argument that as a contractor it owed no duty to Plaintiff
as a third-party is similarly without merit, as there is expert testimony opining that Plaza's
placement of the scaffolding dangerously narrowed the sidewalk (see, e.g. Coulton v City of New
York, 29 AD3d 301 [1st Dept 2006]).
Although Plaintiff failed to respond to Plaza's statement of material facts, she refuted them
through the substance of her opposition. Given the presence of material issues of facts, this Court
declines to grant Plaza summary judgment based on a minor technicality (see also CPLR 2001).
C. Actors Equity Defendants' and 1552 Broadway Defendants' Cross Motions
Actors Equity Defendants' cross motion is granted in part and denied in part. The branch
of these defendants' cross motion seeking leave to amend their answers to assert cross claims for
common law indemnification and contribution against Defendant Plaza is granted. Leave to amend
pleadings is freely granted in the absence of prejudice if the proposed amendment is not palpably
insufficient as a matter of law (Mashinksy v Drescher, 188 AD3d 465 [1st Dept 2020]). Delay
alone is insufficient to deny leave to amend (Johnson v Montefiore Medical Center, 203 AD3d
462 [1st Dept 2022]).
Here, Plaza has failed to show it will be prejudiced by the amendments, which are routinely
asserted in multi-defendant premises liability actions and should come as no surprise. Further,
Plaza has all the discovery it needs to aptly defend against these crossclaims. Therefore, leave to
amend is granted. However, it is premature to grant summary judgment on the crossclaims as there
has been no finding of negligence against Plaza, which is an essential element to common law
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indemnification and contribution (see Pena v Intergate Manhattan LLC, 194 AD3d 576 [1st Dept
2021]).
As to the Actors' Equity Defendants' argument that Plaintiffs Complaint should be
dismissed pursuant to 34 RCNY § 2-07(b), this Court disagrees. In their statement of undisputed
material facts, these parties admit that 1560 Broadway was part of an ongoing major renovation
project being carried out by Plaza (NYSCEF Doc. 157 at 1 20). Although the area around the
grating may have been Con Edison's exclusive responsibility pursuant to 34 RCNY § 2-07(b),
there is an issue of fact as to whether Plaza, as an agent of the Actors Equity Defendants, usurped
Con Edison's statutory duty through the use of the sidewalk area to transport deliveries of
construction materials, using it as a driveway for forklifts and dumpsters, and by erecting a
sidewalk shed in the vicinity of the grating (see, e.g. Pena v Rhodes 2 LLC, 231 AD3d 651 [1st
Dept 2024] citing Boneventura v 60 West 57 Realty LLC, 157 AD3d 502 [1st Dept 2018] [triable
issue of fact as to whether parking garage operator's use of sidewalk as a driveway was a special
use, and whether that special use caused defect in sidewalk precluded summary judgment]).
The 15 52 Broadway Defendants' cross motion is granted in part and denied in part. For the
same reason the Actors Equity Defendants were granted leave to amend, so too are the 1552
Broadway Defendants granted leave. However, just as in the other cross motion, granting summary
judgment on the crossclaims would be premature (see also Spielmann v 170 Broadway NYC LP,
187 AD3d 492 [1st Dept 2020]). Further, for the reasons previously stated, the Court denies the
1552 Broadway Defendants' cross motion to dismiss Plaintiffs Complaint.
Accordingly, it is hereby,
ORDERED that Defendant Plaza Construction's motion for summary judgment dismissing
Plaintiffs Complaint is denied; and it is further
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ORDERED that the Actors Equity Defendants' and 1552 Broadway Defendants' cross
motions are granted in part and denied in part; and it is further
ORDERED that the Actors Equity Defendants' cross motion seeking leaving to amend
their Answer is granted, and the proposed amended pleadings in the form annexed to the moving
papers (NYSCEF Doc. 151) shall be deemed served upon service of a copy of this order with
notice of entry thereof; and it is further
ORDERED that the Actors Equity Defendants' cross motion is otherwise denied; and it is
further
ORDERED that Defendants 1552 Broadway Defendants' cross motion seeking leave to
amend their answer is granted, and the proposed amended pleadings in the form annexed to the
moving papers (NYSCEF Doc. 159) shall be deemed served upon service of a copy of this order
with notice of entry thereof; and it is further
ORDERED that 1552 Broadway Defendants' cross motion is otherwise denied; and it is
ORDERED that within ten days of entry, counsel for Plaintiff 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.
1/10/2025 DATE HON. MARY V. ROSADO, J.S.C.
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
GRANTED □ DENIED x GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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