Children's Aid Socy. v. Integrated Aquatics Engg., Inc.

2024 NY Slip Op 33763(U)

• Court: New York Supreme Court, New York County
• Decided: October 21, 2024
• Docket: Index No. 652427/2023
• Status: Unpublished

Opinion

Children's Aid Socy. v Integrated Aquatics Engg., Inc. 2024 NY Slip Op 33763(U) October 21, 2024 Supreme Court, New York County Docket Number: Index No. 652427/2023 Judge: Lyle E. Frank 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. 652427/2023 NYSCEF DOC. NO. 65 RECEIVED NYSCEF: 10/21/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LYLE E. FRANK PART 11M Justice ----------------------------------------------------------------- ----------------X INDEX NO. 652427/2023 THE CHILDREN'S AID SOCIETY, MOTION DATE 06/24/2024 Plaintiff, MOTION SEQ. NO. 002 - V -

INTEGRATED AQUATICS ENGINEERING, INC.,CONCEPT DECISION + ORDER ON CONSTRUCTION SERVICES, INC., MOTION Defendant. ------------------------------------------------------------------- --------------X

CONCEPT CONSTRUCTION SERVICES, INC. Third-Party Index No. 595737/2023 Plaintiff,

-against-

ALLSTATE TECHNOLOGY, INC., PADDOCK POOL EQUIPMENT COMPANY, INC.

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

CONCEPT CONSTRUCTION SERVICES, INC. Second Third-Party Index No. 595005/2024 Plaintiff,

BRADFORD PRODUCTS, LLC, ABOUT THE WORK, LLC

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

The following e-filed documents, listed by NYSCEF document number (Motion 002) 40, 41, 42, 43, 44, 45,46,47,48,49,50,51,52,53,54 were read on this motion to/for DISMISSAL

This action arises out of allegations of a defective design and construction of a swimming

pool. Defendant/third-party plaintiff/second third-party plaintiff, Concept Construction Services,

Inc. ("Concept"), commenced a second third-party action alleging negligence and seeking

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common law indemnification, and contribution. Second third-party defendant, About the Work

LLC's ("ATW"), moves to dismiss the third-party complaint pursuant to CPLR § 321 l(a)(l) and

(a)(7) with prejudice and seeks costs pursuant to 22 N.Y.C.R.R. § 130-1. l(a) and CPLR § 8303-a.

For the reasons set forth below, ATW's motion is granted.

Background

ATW was retained by plaintiff, Children's Aid Society, pursuant to a Consultant

Agreement. The agreement provided that ATW was to be plaintiff's representative throughout

the construction project. Plaintiff contracted with defendant Integrated Aquatics Engineering

Inc. to design the renovated Milbank Pool then hired Concept as the general contractor to

construct the pool. It is undisputed and not alleged otherwise, that ATW did not perform,

supervise or control the means and methods of the work performed.

Plaintiff initiated the instant action alleging that there were numerous construction delays,

and the defendants were negligent in their design and construction.

Standard of Review

When considering a motion to dismiss based upon CPLR § 3211(a)(7), the court must

accept the alleged facts as true, accord the plaintiff the benefit of every possible favorable

inference, and determine whether the facts alleged fit into any cognizable legal theory. Leon v.

Martinez, 84 NY2d 83 [1994]. On a motion to dismiss the court "merely examines the adequacy

of the pleadings", the court "accept as true each and every allegation made by plaintiff and limit

our inquiry to the legal sufficiency of plaintiff's claim." Davis v Boeheim, 24 NY3d 262, 268

[2014].

Under CPLR § 321 l(a)(l) documentary evidence provides a basis for dismissing a cause

of action "where the documentary evidence utterly refutes plaintiff's factual allegations,

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conclusively establishing a defense as a matter of law." Goshen v Mutual Life Ins. Co. ofNY, 98

NY2d 314, 326 [2002].

Discussion

The Court finds that ATW has established entitlement to dismissal of the third-party

complaint. Concept has failed to in the first instance to sufficiently plead a cause of action as

against ATW and in opposition to the motion has further failed to submit an affidavit or any

additional allegations or factual support to supplement its pleadings.

Preliminarily, the third-party complaint fails to plead the necessary elements of a

negligence claim. To make out a negligence claim, a plaintiff must plead "( 1) the existence of a

duty on defendant's part as to plaintiff; (2) a breach of this duty; and (3) injury to the plaintiff as

a result thereof." (Rodriguez v Budget Rent-A-Car Sys., Inc., 44 AD3d 216, 221 [1st Dept 2007]

[internal quotation marks]).

It is well established that the predicate to common-law indemnity is vicarious liability

based on another's negligence (Mas v Two Bridges Assocs., 75 NY2d 680, 690 [1990]; 17 Vista

Fee Assocs. v Teachers Ins. & Annuity Ass'n ofAm., 259 AD2d 75, 80 [1st Dept 1999].) A party

seeking indemnity must establish it was not negligent and "that the proposed indemnitor was

guilty of some negligence" (Hackert v Emmanuel Cong. United Church of Christ, 130 AD3d

1292, 1295 [3d Dept 2015] internal citations omitted).

Similarly, as to the claims for common law indemnification and contribution, the second

third-party complaint fails to sufficiently put ATW on notice of any factual basis to sustain the

causes of action asserted. The Court notes that the third-party complaint is devoid of any factual

allegations and notwithstanding that deficiency, Concept does not explain how any allegations

of its alleged negligent construction is a bar to this cause of action or how it could have possibly

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been caused, even in part, by a party it was contracted to indemnify. During oral argument,

Concept argued that the allegations in the complaint were adopted and thus are deemed to be

included in the third-party complaint as against ATW, however the Court does not see how that

satisfies its pleading requirements.

While in opposition to the motion to dismiss, Concept argues that discovery is necessary

to determine what failures, if any, ATW had or caused as the owner's representative, those

arguments are speculative, at best, and insufficient to defeat the instant motion.

As to the portion of the motion that seeks costs, the Court finds that ATW has established

entitlement to that relief. The relationship of the parties, ATW being a representative of the

plaintiff, the contractual relationship in which Concept is required to indemnify ATW and the

lack of any legal cognizable arguments and factual allegations to support the causes of action m

the second third-party complaint, warrant second third-party defendant an award of costs.

Accordingly, it is hereby

ORDERED that the second third-party defendant's, ABOUT THE WORK, LLC, motion

to dismiss the second third-party complaint is granted, and the second third-party complaint as

against ABOUT THE WORK, LLC. is dismissed; and it is further

ORDERED that the reminder of the action is severed and continues; and it is further

ORDERED that second-third party defendant's motion for costs is granted and

LEARY, BRIDE, MERGNER & BONGIOVANNI, P.A., counsel for the plaintiff, shall, without

charge to their client, reimburse second-third party defendant for actual expenses reasonably

incurred and reasonable counsel fees in the total amount to be determined upon the submission by

second third-party defense counsel within 30 days of the date of this order, second third-party

plaintiff may submit opposition to the costs within 7 days of such submission.

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10/21/2024 DATE LYLE E. FRANK, J.S.C.

~ ~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

□ DENIED □ GRANTED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

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

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