Juarez v. Levitt

2025 NY Slip Op 32251(U)

• Court: New York Supreme Court, New York County
• Decided: June 25, 2025
• Docket: Index No. 154268/2020
• Status: Unpublished

Opinion

Juarez v Levitt 2025 NY Slip Op 32251(U) June 25, 2025 Supreme Court, New York County Docket Number: Index No. 154268/2020 Judge: David B. Cohen 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. 154268/2020 NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 06/25/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DAVID B. COHEN PART 58 Justice ---------------------------------------------------------------------------------X INDEX NO. 154268/2020 HUGO SEBASTIAN JUAREZ, MOTION DATE 07/17/2024 Plaintiff, MOTION SEQ. NO. 004 -v- JEFFREY A. LEVITT, AS TRUSTEE OF RHFT INVESTMENT TRUST, JACQUES GRANGE, DECISION + ORDER ON INC.,EUROSTRUCT, INC., MOTION

Defendants. ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 004) 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 113, 114, 115, 116, 117, 118 were read on this motion to/for DISMISSAL .

In this Labor Law action, defendant Eurostruct, Inc. moves pursuant to CPLR 3211(a)(1)

and (7) for an order dismissing the complaint against it.

The salient facts in this action are set forth in a decision and order dated April 19, 2024,

on defendant Jacques Grange, Inc.’s (JGI) motion for summary judgment. As discussed therein,

plaintiff was injured on March 12, 2020, when he fell off a ladder while working at a building

located at 33 West 12th Street in Manhattan (premises). At the time, he was employed by and

working for non-party Atelier Premiere, and was supervised only by Atelier employees, who also

provided him with his equipment, including the ladder at issue (NYSCEF 88).

Defendant Levitt, as trustee of RHFT Investment Trustee, testified at a deposition that the

Trust purchased the premises in 2014. According to the testimony of an employee of JGI, the

Trust hired Eurostruct as the general contractor for the project at issue (id.).

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Pursuant to CPLR 3211(a)(1), “[a] party may move for judgment dismissing one or more

causes of action asserted against him on the grounds that ... a defense is founded

upon documentary evidence[.]”

Dismissal is “warranted only if documentary evidence submitted utterly refutes plaintiff's

factual allegations, and conclusively establishes a defense to the asserted claims as a matter of

law” (Kolchins v Evolution Markets, Inc., 128 AD3d 47 [1st Dept 2015], affd, 31 NY3d 100

[2018] [internal quotations omitted]).

Eurostruct submits several affidavits in support of its motion. In one affidavit, one of its

owners and principals denies that Eurostruct owned, maintained, or managed the premises, and

avers that it is a general contractor that performed services at the premises more than four

months after the date of plaintiff’s accident. On the accident date, it was performing no work at

the premises and had no employees there. Prior to the accident, it had installed a pocket door at

the premises in January 2020. The affiant also denies that it hired Atelier to perform work at the

premises (NYSCEF 101).

A project manager employed by Eurostruct confirms in his affidavit that the pocket door

was installed in January 2020, and that no other work was performed at the premises until

months after the accident. He submits a copy of a contract and emails between Eurostruct and

the occupants of the premises, which reflect that it was retained to perform work beginning after

July 31, 2020 (NYSCEF 106).

Finally, Eurostruct submits the affidavit from one of the premises’s occupants, in which

he asserts that Eurostruct was not on the jobsite and did not hire Atelier on or before the accident

date. He observes that he previously testified at his deposition that Eurostruct was not hired to

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perform work until July 2020, and that the only work it performed before the accident was the

installation of a pocket door. He also submits invoices he received from Atelier (NYSCEF 110).

Eurostruct thus demonstrates that it was neither an owner nor general contractor, or

statutory agent thereof, and thus cannot be held liable under the Labor Law (Rodriguez v

Riverside Ctr. Site 5 Owner LLC, 234 AD3d 623 [1st Dept 2025] [Labor Law only applies to

owners, general contractors, and their statutory agents]). Nor can it be held liable for common-

law negligence as there is no evidence that it was present at the premises when plaintiff was

injured or that it hired Atelier.

In opposition, plaintiff fails to demonstrate that he stated a valid cause of action against

Eurostruct. While affidavits, in and or themselves, do not qualify as documentary evidence

pursuant to CPLR 321(a)(1), here the affiants provided supporting documentation, such as

emails, invoices, and contracts (see Art and Fashion Group Corp. v Cyclops Prod., Inc., 120

AD3d 436 [1st Dept 2014] [emails may constitute documentary evidence]; Lopez v 157-161 E.

28th St., LLC, 209 AD3d 495 [1st Dept 2022] [defendants submits affidavits and documentary

evidence showing that entity was plaintiffs’ employer]).

Moreover, the owner’s deposition and the above evidence conclusively demonstrate that

Eurostruct was performing no work at the premises at the time of plaintiff’s accident, was not the

general contractor on the project at issue, and did not hire Atelier to perform work (see Grandelli

v City of New York, 237 AD3d 534 [1st Dept 2025] [documentary evidence and deposition

testimony conclusively refuted allegations in complaint]; Ruiz v 829 Realty LLC, 198 AD3d 581

[1st Dept 2021] [documentary evidence utterly refuted allegations in complaint]; Rosenbaum,

Rosenfeld & Sonneblick, LLP v Excalibur Group NA, LLC, 146 AD3d 489 [1st Dept 2017] [in

support of motion to dismiss, defendant submitted contract for work and drawings, along with

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deposition testimony of its president and his affidavit in which he further described defendant’s

work, and thus documentary evidence conclusively established that defendant did not perform or

have duty to perform work at issue]).

The only contrary evidence relied on by plaintiff is JGI’s deposition testimony, which is

contradicted by the other evidence submitted by Eurostruct, especially the testimony of the

premises owner himself, who explicitly controverts JGI’s testimony, and, unlike JGI, was able to

substantiate his testimony by other documents (see e.g. Cohen v Getzel, 205 AD3d 52 [1st Dept

2022] [plaintiff’s affidavit in opposition to motion to dismiss did not refute defendant’s affidavit

and email]). The absence of any evidence to support plaintiff’s claim against Eurostruct is

particularly striking here as plaintiff already obtained discovery and deposition testimony from

the other defendants. Eurostruct is thus entitled to dismissal of the complaint against it.

Accordingly, it is hereby

ORDERED that defendant Eurostruct, Inc.’s motion to dismiss is granted, and the

complaint is severed and dismissed as against said defendant, and the clerk is directed to enter

judgment accordingly; and it is further

ORDERED that as no other parties remain in the case, the clerk is directed to mark the

matter as disposed.

6/25/2025 DATE DAVID B. COHEN, J.S.C. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION

□ X GRANTED DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

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

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