D & A Grandview, LLC v. 60 Davidson, LLC

Opinion

D & A Grandview, LLC v 60 Davidson, LLC

2026 NY Slip Op 04743

July 29, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

D & A Grandview, LLC, et al., respondents,

v

60 Davidson, LLC, et al., appellants, et al., defendants.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on July 29, 2026

2024-13374, (Index No. 509080/24)

Angela G. Iannacci, J.P.

Paul Wooten

Deborah A. Dowling

James P. McCormack, JJ.

Berger Fink LLP, Forest Hills, NY (David M. Berger, Eric Rosenberg, Jason Fink, Leslie Perez-Bennie, and Lawrence Knipel of counsel), for appellants.

Antin, Ehrlich & Epstein, LLP (Scott W. Epstein and Pollack Pollack Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Jillian Rosen], of counsel), for respondents.

[*1]

DECISION & ORDER

In an action, inter alia, to recover damages for a violation of Navigation Law article 12 (see Navigation Law § 173 et seq.), the defendants 60 Davidson, LLC, and Ari Farkas appeal from an order the Supreme Court, Kings County (Aaron D. Maslow, J.), dated September 20, 2024. The order, insofar as appealed from, denied those branches of those defendants' motion which were pursuant to CPLR 3211(a) to dismiss the first, second, and third causes of action insofar as asserted against the defendant Ari Farkas and to dismiss second and third causes of action insofar as asserted against the defendant 60 Davidson, LLC.

ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the motion of the defendants 60 Davidson, LLC, and Ari Farkas which were pursuant to CPLR 3211(a) to dismiss the first, second, and third causes of action insofar as asserted against the defendant Ari Farkas, to dismiss so much of the second cause of action insofar as asserted against the defendant 60 Davidson, LLC, as was to recover damages for negligent hiring, supervision, and retention, and to dismiss the third cause of action insofar as asserted against the defendant 60 Davidson, LLC, and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff D & A Grandview, LLC, owns certain commercial real property located on Grandview Avenue in Staten Island (hereinafter the Grandview property), at which it and the plaintiffs DF Studio, Inc., Adam Wilk, Inc., and Davids Flooring of NY, Inc., maintain their principal places of business. On or about March 31, 2021, real property owned by the defendant 60 Davidson, LLC, located on Davidson Street in Staten Island (hereinafter the Davidson property), which adjoins the Grandview property, allegedly was damaged by a fire and an oil spill. Thereafter, in March 2024, the plaintiffs commenced this action against 60 Davidson, LLC, and its managing member, the defendant Ari Farkas (hereinafter together the defendants), among others, to recover damages for injuries to the Grandview property allegedly caused by the fire and oil spill originating on the Davidson property. The second amended complaint asserted five causes of action against the defendants, including a violation of Navigation Law article 12 (first cause of action), negligent [*2]ownership, operation, management, and maintenance of the Davidson property and negligent hiring, supervision, and retention in connection with damage to the Grandview property caused by the fire (second cause of action), and negligent cleanup and remediation and negligent hiring, supervision, and retention in connection with damage to the Grandview property caused by inadequate or untimely efforts to remediate the oil spill (third cause of action).

Prior to filing an answer, the defendants moved pursuant CPLR 3211(a) to dismiss the second amended complaint insofar as asserted against them. In an order dated September 20, 2024, the Supreme Court, inter alia, denied those branches of the defendants' motion which were pursuant to CPLR 3211(a) to dismiss the first, second, and third causes of action insofar as asserted against Farkas and to dismiss the second and third causes of action insofar as asserted against 60 Davidson, LLC. The defendants appeal.

"On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must accept the facts alleged by the plaintiff as true and liberally construe the complaint, according it the benefit of every possible favorable inference" (Dee v Rakower, 112 AD3d 204, 208; accord 1470 39th St., LLC v Goldberg, 226 AD3d 853, 854). "Where 'the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery,' dismissal of the cause of action is warranted" (Pinkesz v Massachusetts Mut. Life Ins. Co., 234 AD3d 886, 888 [internal quotation marks omitted], quoting Pierce Coach Line, Inc. v Port Wash. Union Free Sch. Dist., 213 AD3d 959, 960). "'[C]onclusory allegations—claims consisting of bare legal conclusions with no factual specificity—are insufficient to survive a motion to dismiss'" (id., quoting Lockwood v CBS Corp., 219 AD3d 1326, 1327).

"To prevail on a negligence cause of action, a plaintiff must establish the existence of a legal duty, a breach of that duty, proximate causation, and damages" (MVB Collision, Inc. v Allstate Ins. Co., 129 AD3d 1041, 1042; see Katsorhis v 718 W. Beech St, LLC, 234 AD3d 744, 747). "'Absent a duty of care, there is no breach, and without breach there can be no liability'" (MVB Collision, Inc. v Allstate Ins. Co., 129 AD3d at 1042, quoting Fox v Marshall, 88 AD3d 131, 135). Generally, "[a] property owner owes a duty to exercise reasonable care in the maintenance of its property to prevent foreseeable injury that might occur on the adjoining property" (Broxmeyer v United Capital Corp., 79 AD3d 780, 782; see Plainview Props. SPE, LLC v County of Nassau, 181 AD3d 731, 734). Thus, "'[a] plaintiff may recover in negligence for damages to property when the defendant's failure to maintain real property in a reasonably safe condition proximately caused the plaintiff's damages'" (Huang v Fort Greene Partnership Homes Condominium, 228 AD3d 912, 914, quoting Ravix v Oligario, 170 AD3d 763, 764).

The Supreme Court properly denied that branch of the defendants' motion which was pursuant to CPLR 3211(a) to dismiss so much of the second cause of action as alleged negligent ownership, operation, management, and maintenance of the Davidson property for alleged damage to the Grandview property resulting from the fire at the Davidson property insofar as asserted against 60 Davidson, LLC. Liberally construing the allegations in the second amended complaint in the light most favorable to the plaintiffs, and according the plaintiffs the benefit of every favorable inference (see Dee v Rakower, 112 AD3d at 208), the second amended complaint stated a cause of action against 60 Davidson, LLC, sounding in common-law negligence for alleged damage to the Grandview property resulting from the fire (see Huang v Fort Greene Partnership Homes Condominium, 228 AD3d 912; MVB Collision, Inc. v Allstate Ins. Co., 129 AD3d 1041; Broxmeyer v United Capital Corp., 79 AD3d 780).

However, the Supreme Court should have granted dismissal of so much of the second cause of action as alleged negligence against 60 Davidson, LLC, in connection with the fire based on negligent hiring, supervision, and retention. "An employer can be held liable under theories of negligent hiring, retention, and supervision where the complaint alleges that the employer knew or should have known of the employee's propensity for the conduct which caused the injury" (Novak v Sisters of the Heart of Mary, 210 AD3d 1104, 1105 [internal quotation marks omitted]). Here, the second amended complaint failed to allege that any employee of 60 Davidson, LLC, caused the injuries to the Grandview property that resulted from the fire or that 60 Davidson, LLC, knew or had [*3]reason to know of any employee's propensity for conduct that caused those injuries (see Pinkesz v Massachusetts Mut. Life Ins. Co., 234 AD3d at 888).

Moreover, the Supreme Court should have granted that branch of the defendants' motion which was pursuant to CPLR 3211(a) to dismiss the third cause of action insofar as asserted against 60 Davidson, LLC. Liberally construing the allegations in the second amended complaint in the light most favorable to the plaintiffs, and according the plaintiffs the benefit of every favorable inference, the second amended complaint failed to state a cause of action against 60 Davidson, LLC, based on damage to the Grandview property caused by 60 Davidson, LLC's, failure to more timely or adequately remediate the oil spill, as it contained only conclusory allegations of negligence related to a delay in remediation and otherwise lacked factual specificity (see Pinkesz v Massachusetts Mut. Life Ins. Co., 234 AD3d at 888).

Lastly, the Supreme Court erred in denying that branch of the defendants' motion which was pursuant to CPLR 3211(a) to dismiss the first, second, and third causes of action insofar as asserted against Farkas. "'Generally, a member of a limited liability company cannot personally be held liable for any debts, obligations or liabilities of the limited liability company, whether arising in tort, contract or otherwise'" (Louis Monteleone Fibres, Ltd. v Hudson Baylor Brookhaven, LLC, 228 AD3d 641, 644 [internal quotation marks omitted], quoting Gold v 22 St. Felix, LLC, 219 AD3d 588, 590). Here, the second amended complaint contained no allegations or assertions against Farkas individually, except to identify him as the managing member of 60 Davidson, LLC, and otherwise failed to allege or assert facts that Farkas engaged in acts that would render him personally liable for any alleged wrongful acts of 60 Davidson, LLC (see id.; Kyung Hee Moon v Owadeyah, 223 AD3d 793, 794).

Accordingly, the Supreme Court should have granted those branches of the defendants' motion which were pursuant to CPLR 3211(a) to dismiss the first, second, and third causes of action insofar as asserted against Farkas, to dismiss so much of the second cause of action insofar as asserted against 60 Davidson, LLC, as was to recover damages for negligent hiring, supervision, and retention, and to dismiss the third cause of action insofar as asserted against 60 Davidson, LLC.

IANNACCI, J.P., WOOTEN, DOWLING and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court