Deschaine v. Tricon Constr., LLC

2021 NY Slip Op 01354, 192 A.D.3d 452, 139 N.Y.S.3d 827

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 9, 2021
• Docket: Index No. 161654/14, 595123/15, 595166/15, 595184/15 Appeal No. 13308 Case No. 2020-03608
• Status: Published

Opinion

Deschaine v Tricon Constr., LLC (2021 NY Slip Op 01354)

Deschaine v Tricon Constr., LLC

2021 NY Slip Op 01354

Decided on March 09, 2021

Appellate Division, First Department

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

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

Decided and Entered: March 09, 2021
Before: Manzanet-Daniels, J.P., Kapnick, Kennedy, Shulman, JJ.

Index No. 161654/14, 595123/15, 595166/15, 595184/15 Appeal No. 13308 Case No. 2020-03608

[*1]Robert Deschaine, Plaintiff,

v

Tricon Construction, LLC, et al., Defendants.

Dollar Tree Stores, Inc., Third-Party Plaintiff-Respondent,

v

AMZ Construction Services, Inc., Third-Party Defendant-Appellant.

Michael Boyle, Second Third-Party Plaintiff-Respondent,

v

AMZ Construction Services, Inc., Second Third-Party Defendant-Appellant.

Tricon Construction, LLC, et al., Third Third-Party Plaintiffs-Respondents,

v

AMZ Construction Services, Inc., Third Third-Party Defendant-Appellant.

Cornell Grace, P.C., New York (Keisha A. Parker of counsel), for appellant.

Marshall Conway Bradley Gollub & Weissman, P.C., New York (Shannon L. Saks of counsel), for Dollar Tree Stores, Inc., respondent.

Gallo Vitucci Klar LLP, New York (Sara R. David of counsel), for Michael Boyle, respondent.

Lester Schwab Katz & Dwyer, LLP, New York (Cristen R. Sommers of counsel), for Tricon Construction, LLC and C.P. Plaza Limited Partnership, respondents.

Order, Supreme Court, New York County (Carol Edmead, J.), entered February 11, 2020, which granted the CPLR 2221(e) motions to renew of third-party plaintiff Dollar Tree Stores, Inc. (Dollar Tree), second third-party plaintiff Michael Boyle (Boyle), and third third-party plaintiffs Tricon Construction, LLC (Tricon) and C.P. Plaza Limited Partnership (Plaza) and, upon renewal, vacated that part of an order, same court and Justice, entered April 16, 2019, which granted third-party defendant/second third-party defendant/third third-party defendant AMZ Construction Services, Inc.'s (AMZ) motion for summary judgment dismissing Dollar Tree, Boyle, and Tricon/Plaza's third-party claims for contribution and common-law indemnification, and reinstated those claims, unanimously affirmed, without costs.

The court properly granted the motions for renewal (CPLR 2221[e]) and, upon renewal, vacated the part of the prior order granting AMZ's motion for summary judgment dismissing the third-party claims for contribution and common-law indemnification. The expert reports that plaintiff submitted after issuance of the prior order raised an issue of fact as to whether he had sustained a "grave injury" under Workers' Compensation Law § 11. Those reports demonstrated that the brain injuries sustained by plaintiff rendered him unemployable "'in any capacity'" (Rubeis v Aqua Club, Inc., 3 NY3d 408, 417 [2004]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: March 9, 2021