Filicia Anstalt Vaduz, A Lichtenstein Co. v 11 E. 73rd St. Corp. 2024 NY Slip Op 30455(U) February 9, 2024 Supreme Court, New York County Docket Number: Index No. 655017/2022 Judge: Arlene P. Bluth 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. 655017/2022 NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 02/09/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ARLENE P. BLUTH PART 14 Justice ---------------------------------------------------------------------------------X INDEX NO. 655017/2022 FILICIA ANSTALT VADUZ, A LICHTENSTEIN COMPANY, MOTION DATE N/A Plaintiff, MOTION SEQ. NO. 003 -v- 11 EAST 73RD STREET CORPORATION, DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X
11 EAST 73RD STREET CORPORATION Third-Party Index No. 595365/2023 Plaintiff,
-against-
BARTLETT TREE EXPERTS, THE F.A BARTLETT TREE EXPERT COMPANY
Defendants. --------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 003) 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 111, 129, 130, 131, 134 were read on this motion to/for SUMMARY JUDGMENT .
Third-party defendants’ motion for summary judgment dismissing the third-party
complaint and for sanctions is granted as described below.
Background
This action relates to a dispute concerning a party wall between plaintiff and defendant.
Defendant does not rely on the party wall for support; only plaintiff does. Defendants’ side of the
wall is in its backyard’s courtyard. Plaintiff alleges that defendant has let ivy and other
vegetation grow into the party wall and thereby contribute to the deterioration of the wall.
655017/2022 FILICIA ANSTALT VADUZ, A LICHTENSTEIN COMPANY vs. 11 EAST 73RD Page 1 of 8 STREET CORPORATION Motion No. 003
1 of 8 [* 1] INDEX NO. 655017/2022 NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 02/09/2024
In this motion, third-party defendants (collectively, “Bartlett”), who were hired to
perform vegetation-related work on defendants’ property, move for summary judgment. They
attach the affidavit of Mr. Erik Anderson, an arborist representative for Bartlett. Mr. Anderson
observes that another worker, now deceased, handled this account until 2017 and that he has
since handled specific requests from defendant regarding the pruning of the ivy (NYSCEF Doc.
No. 103, ¶¶ 3-6). He observes that “individuals affiliated with the Defendant instructed Bartlett
not to prune, cut back, or remove any ivy on the party wall. Their instructions were clear, and
therefore Bartlett removed ivy from the front façade and roof of plaintiff's building only at times
from 2018 to present” (id. ¶ 5).
Mr. Anderson points to an invoice from 2018, accompanied by a photograph that he says
shows defendant instructed Bartlett only to work on the east side of the building, which means
from the front façade and roof of plaintiff’s building (id. ¶ 6; NYSCEF Doc. No. 90). He adds
that in April 2022, the plaintiff (not the defendant) asked him to prepare a recommendation
regarding the ivy on the party wall and concluded that “Pruning or cutting back of the ivy would
be necessary to perform the masonry work” (id. ¶ 7). Mr. Anderson insists that defendant’s
board president “complained about the price being too high” and “instructed that the Defendant
only wanted the edges that spill over onto the top and the front of the plaintiff's building to be
pruned” (id. ¶ 10). He insists that Bartlett completed the work as instructed by defendant in May
2022.
Bartlett seeks summary judgment on the ground that it did not cause any damage and that
it simply followed the instructions of its client, the defendant. It argues that defendant’s claims
for contractual indemnity, common law indemnity, contribution and breach of contract all fail as
655017/2022 FILICIA ANSTALT VADUZ, A LICHTENSTEIN COMPANY vs. 11 EAST 73RD Page 2 of 8 STREET CORPORATION Motion No. 003
2 of 8 [* 2] INDEX NO. 655017/2022 NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 02/09/2024
a matter of law. Bartlett also demands reimbursement of its legal fees and costs on the ground
that this third-party action is frivolous.
In opposition, defendant contends that Bartlett failed to meet its burden on a motion for
summary judgment. It argues that Bartlett did not include a statement of facts in accordance with
New York’s trial court rules and that Mr. Anderson could only offer facts about 2018 onward.
Defendant also argues that there are issues of fact that preclude awarding Bartlett summary
judgment. It argues that Bartlett owed a duty to defendant to prune the ivy on the party wall on
at least seven occasions over a twenty-year period.
Defendant argues that Bartlett, as a tree expert, had a duty to report any observed damage
on the party wall to defendant. It contends that if defendant is found liable, then a jury should
decide the extent to which Bartlett is liable to indemnify defendant. Defendant withdrew its
fourth cause of action for breach of contract for failure to procure insurance.
In reply, Bartlett insists that Mr. Anderson’s affidavit is its statement of facts and that the
contract between Bartlett and defendant did not require it to observe and report any masonry
issues to defendant.
Discussion
To be entitled to the remedy of summary judgment, the moving party “must make a
prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence
to demonstrate the absence of any material issues of fact from the case” (Winegrad v New York
Univ. Med. Ctr., 64 NY2d 851, 853, 487 NYS2d 316 [1985]). The failure to make such a prima
facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers
(id.). When deciding a summary judgment motion, the court views the alleged facts in the light
655017/2022 FILICIA ANSTALT VADUZ, A LICHTENSTEIN COMPANY vs. 11 EAST 73RD Page 3 of 8 STREET CORPORATION Motion No. 003
3 of 8 [* 3] INDEX NO. 655017/2022 NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 02/09/2024
most favorable to the non-moving party (Sosa v 46th St. Dev. LLC, 101 AD3d 490, 492 [1st Dept
2012]).
Once a movant meets its initial burden, the burden shifts to the opponent, who must then
produce sufficient evidence to establish the existence of a triable issue of fact (Zuckerman v City
of New York, 49 NY2d 557, 560, 427 NYS2d 595 [1980]). The court’s task in deciding a
summary judgment motion is to determine whether there are bonafide issues of fact and not to
delve into or resolve issues of credibility (Vega v Restani Constr. Corp., 18 NY3d 499, 505, 942
NYS2d 13 [2012]). If the court is unsure whether a triable issue of fact exists, or can reasonably
conclude that fact is arguable, the motion must be denied (Tronlone v Lac d'Amiante Du Quebec,
Ltee, 297 AD2d 528, 528-29, 747 NYS2d 79 [1st Dept 2002], affd 99 NY2d 647, 760 NYS2d 96
[2003]).
The Court grants the motion. Bartlett met its prima facie burden by submitting the
affidavit of Mr. Anderson who contends that he simply followed the directions of the defendant
when pruning the ivy and vegetation at the property.
Free access — add to your briefcase to read the full text and ask questions with AI
Filicia Anstalt Vaduz, A Lichtenstein Co. v 11 E. 73rd St. Corp. 2024 NY Slip Op 30455(U) February 9, 2024 Supreme Court, New York County Docket Number: Index No. 655017/2022 Judge: Arlene P. Bluth 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. 655017/2022 NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 02/09/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ARLENE P. BLUTH PART 14 Justice ---------------------------------------------------------------------------------X INDEX NO. 655017/2022 FILICIA ANSTALT VADUZ, A LICHTENSTEIN COMPANY, MOTION DATE N/A Plaintiff, MOTION SEQ. NO. 003 -v- 11 EAST 73RD STREET CORPORATION, DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X
11 EAST 73RD STREET CORPORATION Third-Party Index No. 595365/2023 Plaintiff,
-against-
BARTLETT TREE EXPERTS, THE F.A BARTLETT TREE EXPERT COMPANY
Defendants. --------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 003) 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 111, 129, 130, 131, 134 were read on this motion to/for SUMMARY JUDGMENT .
Third-party defendants’ motion for summary judgment dismissing the third-party
complaint and for sanctions is granted as described below.
Background
This action relates to a dispute concerning a party wall between plaintiff and defendant.
Defendant does not rely on the party wall for support; only plaintiff does. Defendants’ side of the
wall is in its backyard’s courtyard. Plaintiff alleges that defendant has let ivy and other
vegetation grow into the party wall and thereby contribute to the deterioration of the wall.
655017/2022 FILICIA ANSTALT VADUZ, A LICHTENSTEIN COMPANY vs. 11 EAST 73RD Page 1 of 8 STREET CORPORATION Motion No. 003
1 of 8 [* 1] INDEX NO. 655017/2022 NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 02/09/2024
In this motion, third-party defendants (collectively, “Bartlett”), who were hired to
perform vegetation-related work on defendants’ property, move for summary judgment. They
attach the affidavit of Mr. Erik Anderson, an arborist representative for Bartlett. Mr. Anderson
observes that another worker, now deceased, handled this account until 2017 and that he has
since handled specific requests from defendant regarding the pruning of the ivy (NYSCEF Doc.
No. 103, ¶¶ 3-6). He observes that “individuals affiliated with the Defendant instructed Bartlett
not to prune, cut back, or remove any ivy on the party wall. Their instructions were clear, and
therefore Bartlett removed ivy from the front façade and roof of plaintiff's building only at times
from 2018 to present” (id. ¶ 5).
Mr. Anderson points to an invoice from 2018, accompanied by a photograph that he says
shows defendant instructed Bartlett only to work on the east side of the building, which means
from the front façade and roof of plaintiff’s building (id. ¶ 6; NYSCEF Doc. No. 90). He adds
that in April 2022, the plaintiff (not the defendant) asked him to prepare a recommendation
regarding the ivy on the party wall and concluded that “Pruning or cutting back of the ivy would
be necessary to perform the masonry work” (id. ¶ 7). Mr. Anderson insists that defendant’s
board president “complained about the price being too high” and “instructed that the Defendant
only wanted the edges that spill over onto the top and the front of the plaintiff's building to be
pruned” (id. ¶ 10). He insists that Bartlett completed the work as instructed by defendant in May
2022.
Bartlett seeks summary judgment on the ground that it did not cause any damage and that
it simply followed the instructions of its client, the defendant. It argues that defendant’s claims
for contractual indemnity, common law indemnity, contribution and breach of contract all fail as
655017/2022 FILICIA ANSTALT VADUZ, A LICHTENSTEIN COMPANY vs. 11 EAST 73RD Page 2 of 8 STREET CORPORATION Motion No. 003
2 of 8 [* 2] INDEX NO. 655017/2022 NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 02/09/2024
a matter of law. Bartlett also demands reimbursement of its legal fees and costs on the ground
that this third-party action is frivolous.
In opposition, defendant contends that Bartlett failed to meet its burden on a motion for
summary judgment. It argues that Bartlett did not include a statement of facts in accordance with
New York’s trial court rules and that Mr. Anderson could only offer facts about 2018 onward.
Defendant also argues that there are issues of fact that preclude awarding Bartlett summary
judgment. It argues that Bartlett owed a duty to defendant to prune the ivy on the party wall on
at least seven occasions over a twenty-year period.
Defendant argues that Bartlett, as a tree expert, had a duty to report any observed damage
on the party wall to defendant. It contends that if defendant is found liable, then a jury should
decide the extent to which Bartlett is liable to indemnify defendant. Defendant withdrew its
fourth cause of action for breach of contract for failure to procure insurance.
In reply, Bartlett insists that Mr. Anderson’s affidavit is its statement of facts and that the
contract between Bartlett and defendant did not require it to observe and report any masonry
issues to defendant.
Discussion
To be entitled to the remedy of summary judgment, the moving party “must make a
prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence
to demonstrate the absence of any material issues of fact from the case” (Winegrad v New York
Univ. Med. Ctr., 64 NY2d 851, 853, 487 NYS2d 316 [1985]). The failure to make such a prima
facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers
(id.). When deciding a summary judgment motion, the court views the alleged facts in the light
655017/2022 FILICIA ANSTALT VADUZ, A LICHTENSTEIN COMPANY vs. 11 EAST 73RD Page 3 of 8 STREET CORPORATION Motion No. 003
3 of 8 [* 3] INDEX NO. 655017/2022 NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 02/09/2024
most favorable to the non-moving party (Sosa v 46th St. Dev. LLC, 101 AD3d 490, 492 [1st Dept
2012]).
Once a movant meets its initial burden, the burden shifts to the opponent, who must then
produce sufficient evidence to establish the existence of a triable issue of fact (Zuckerman v City
of New York, 49 NY2d 557, 560, 427 NYS2d 595 [1980]). The court’s task in deciding a
summary judgment motion is to determine whether there are bonafide issues of fact and not to
delve into or resolve issues of credibility (Vega v Restani Constr. Corp., 18 NY3d 499, 505, 942
NYS2d 13 [2012]). If the court is unsure whether a triable issue of fact exists, or can reasonably
conclude that fact is arguable, the motion must be denied (Tronlone v Lac d'Amiante Du Quebec,
Ltee, 297 AD2d 528, 528-29, 747 NYS2d 79 [1st Dept 2002], affd 99 NY2d 647, 760 NYS2d 96
[2003]).
The Court grants the motion. Bartlett met its prima facie burden by submitting the
affidavit of Mr. Anderson who contends that he simply followed the directions of the defendant
when pruning the ivy and vegetation at the property. And defendant did not raise an issue of fact
in opposition. In fact, defendant did not attach anything from someone with personal knowledge
to contradict Mr. Anderson’s account of the pruning services requested of Bartlett or those
Bartlett provided. Therefore, Mr. Anderson’s affidavit is unrebutted. Defendants’ failure to
provide an affidavit in opposition also highlights the issues with defendant’s theories of recovery
against Bartlett.
Mr. Anderson made clear that although he recommended a more invasive pruning in
2022, including ivy and vines on the party wall, he was told by defendant that this was too
expensive. Bartlett attached an email between Mr. Anderson and the defendant’s board president
in which the board president states that “The price is high. Also we only want the edges that spill
655017/2022 FILICIA ANSTALT VADUZ, A LICHTENSTEIN COMPANY vs. 11 EAST 73RD Page 4 of 8 STREET CORPORATION Motion No. 003
4 of 8 [* 4] INDEX NO. 655017/2022 NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 02/09/2024
over onto the top and front of the building to be pruned. We have no intension [sic] of reducing
this vine from the base. Barlett [sic] needs to look at our request again and reprice. The edges
only to be pruned. I also want to be present when the work is scheduled. Bartlett will be working
for us not our neighbors” (NYSCEF Doc. No. 93 at 2). This shows that defendant directed the
work, expressly limited the scope of work and Bartlett merely followed these instructions.
It is unclear from these papers how Bartlett, who were hired to trim vegetation in
accordance with specific instructions, could be responsible for the damages arising from the
purportedly deteriorating party wall which they were not hired to fully trim. Defendant did not
attach anything to show that Bartlett, who are not engineers, had a duty to observe cracks in the
wall and opine about the effect of the vines/ivy on the wall. Bartlett was hired to do some
apparently limited pruning and, at least on this record, it performed that pruning work in
accordance with defendant’s instructions.
In fact, when plaintiff hired Bartlett to take a look at the overgrowth in early 2022,
defendant made clear that it did not want that proposed scope of work done as evidenced by the
email included above. In other words, from the unrebutted proof submitted on this motion,
defendant never wanted Bartlett to do anything substantial to the subject wall – they paid Bartlett
to remove around the edges, not to do a wholesale removal of the vines. Even after it became
abundantly clear that plaintiff was complaining about the purported damage that the ivy was
causing to the wall, defendant rejected Bartlett’s suggestion and took control over the work to be
performed.
And defendant’s insistence that Mr. Anderson only has knowledge about events from
2018 does not raise an issue of fact because defendant did not make any admissible factual
arguments about Bartlett’s actions at any time. Bartlett said it doesn’t have the information
655017/2022 FILICIA ANSTALT VADUZ, A LICHTENSTEIN COMPANY vs. 11 EAST 73RD Page 5 of 8 STREET CORPORATION Motion No. 003
5 of 8 [* 5] INDEX NO. 655017/2022 NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 02/09/2024
because its employee died – but defendant, who hired and directed Bartlett’s scope of work,
should have all the information and failed to present anything to contradict Bartlett’s proofs.
And those proofs clearly show that defendant did not request or authorize Bartlett to remove the
greenery which its neighbor claimed was destroying the party wall.
The Court fails to see how any theory of indemnification (either common law or
contractual) or contribution could lie against Bartlett here. That defendant claims that it wants
discovery is not a basis to deny the instant motion. Defendant did not highlight any contested
factual issues as it did not include anything from someone with personal knowledge. Moreover,
defendant possesses the key documents (the invoices and contracts) and could have offered its
own witness affidavit to explain its theory of recovery against Bartlett. But defendant did not
contradict anything.
To the extent that defendant argues that the motion should be denied because Bartlett
failed to submit a statement of material facts, that claim is denied. This rule, 22 NYCRR 202.8-g,
was amended to direct that “the court may direct that there shall be annexed to the notice of
motion a separate, short and concise statement, in numbered paragraphs, of the material facts as
to which the moving party contends there is no genuine issue to be tried” ([emphasis added]).
There is no requirement that this Court deny the motion for failure to submit a statement of
material facts.
Considering Bartlett’s unrebutted proof here, the Court determines that the case against
them is frivolous and that a hearing is necessary to determine the amount of sanctions (in the
form of legal fees). 22 NYCRR 130-1.1(c)(1) provides that “conduct is frivolous if: it is
completely without merit in law and cannot be supported by a reasonable argument for an
extension, modification or reversal of existing law.” To claim Bartlett is under a duty to clean
655017/2022 FILICIA ANSTALT VADUZ, A LICHTENSTEIN COMPANY vs. 11 EAST 73RD Page 6 of 8 STREET CORPORATION Motion No. 003
6 of 8 [* 6] INDEX NO. 655017/2022 NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 02/09/2024
off the party wall or is somehow responsible for the damage to the party wall where defendant
never asked it to do this work, specifically told Bartlett not to do this work, and that it would not
pay Bartlett for that work, is just preposterous. Moreover, the fact that defendant did not
withdraw its claims against Bartlett after receiving both a frivolous litigation letter (NYSCEF
Doc. No. 51) and the instant motion papers (particularly the emails in which defendant expressly
limited the scope of Bartlett’s work) renders defendant’s attempt to recover against Bartlett as
frivolous.
The evidence on this record shows that defendant hired a tree pruner to perform specific
and limited work on its property but that it never directed Bartlett to remove the vegetation from
the party wall. And yet, for some reason, defendant decided to bring Bartlett into this case for
allegedly not removing greenery that, on this record, it was never hired or directed to remove.
Even when Bartlett offered (after being hired by plaintiff) to do a more invasive pruning job,
defendant refused to allow it.
A hearing is necessary to determine the amount of sanctions. It is axiomatic that a party
should have a good faith basis to name a party in case—bringing a party into a lawsuit invites the
accrual of significant costs, including legal fees. There was no legally supported reason to blame
Bartlett for defendant’s decision to keep its greenery at the expense of its neighbor’s reliance on
the party wall and there was no reason not to discontinue after Bartlett made the instant motion
and laid bare its proof.
The hearing will take place on March 21, 2024 at 10 a.m. Bartlett should be prepared to
ask for a specific amount of legal fees and may, if it wishes, request reimbursement for the legal
fees incurred in the preparation for, and the appearance, at the hearing. Both defendant and
Bartlett should upload any exhibits it plans to use at the hearing and exchange a witness list by
655017/2022 FILICIA ANSTALT VADUZ, A LICHTENSTEIN COMPANY vs. 11 EAST 73RD Page 7 of 8 STREET CORPORATION Motion No. 003
7 of 8 [* 7] INDEX NO. 655017/2022 NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 02/09/2024
March 14, 2024. Anything not uploaded or exchanged by this date may not be used at the
sanctions hearing without good cause (such as for rebuttal purposes).
Accordingly, it is hereby
ORDERED that the motion by third-party defendants BARTLETT TREE EXPERTS,
THE F.A BARTLETT TREE EXPERT COMPANY for summary judgment dismissing this case
is granted, the third-party complaint is dismissed and the Clerk is directed to enter judgment
accordingly in favor of the third-party defendants and against the third-party plaintiff along with
costs and disbursements upon presentation of proper papers therefor, and it is further
ORDERED that there shall be a hearing on March 21, 2024 to determine the amount of
sanctions to be imposed against defendant for naming (and refusing to drop) the third-party
defendant from this case and that the parties shall upload any exhibits to be used at the hearing as
well as witness lists by March 14, 2024.
.
2/9/2024 $SIG$ DATE ARLENE P. BLUTH, 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
655017/2022 FILICIA ANSTALT VADUZ, A LICHTENSTEIN COMPANY vs. 11 EAST 73RD Page 8 of 8 STREET CORPORATION Motion No. 003
8 of 8 [* 8]