Murray Hill Cleaners & Laundry, Inc. v Third & Thirty Four, LLC 2025 NY Slip Op 30362(U) January 29, 2025 Supreme Court, New York County Docket Number: Index No. 160553/2020 Judge: Judy H. Kim 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. [FILED: NEW YORK COUNTY CLERK 01/29/2025 04:24 P~ INDEX NO. 160553/2020 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 01/29/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JUDY H. KIM PART 04 Justice ----------------------------------------------------------------- ----------------X INDEX NO. 160553/2020 MURRAY HILL CLEANERS & LAUNDRY, INC., MOTION DATE 07/28/2024 Plaintiff, MOTION SEQ. NO. 001 - V -
THIRD AND THIRTY FOUR, LLC, REGAL RECONSTRUCTION CORP., OLIVIERO CONSTRUCTION DECISION + ORDER ON CORP., MOTION
Defendants. ------------------------------------------------------------------- --------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 48, 49, 50, 51, 52, 53,54,55,56,57,58,59,60,61,62,63,64,65,66,67,68,69, 71, 72, 73, 74, 75, 76, 77, 78 were read on this motion for JUDGMENT-SUMMARY
Upon the foregoing documents, defendant Third and Thirty Four, LLC's motion for
summary judgment is granted, in part, to the limited extent that the trespass claim asserted against
it is dismissed, and is otherwise denied.
FACTUAL BACKGROUND
The following factual recitation is adapted from plaintiffs complaint and its submissions
in connection to this motion and is, for purposes of this motion, taken as true.
Plaintiff previously operated a laundry business on the ground floor of the building located
at 213 East 34th Street in Manhattan (the "Building"). Defendant Third and Thirty Four, LLC (the
"Moving Defendant") owns the buildings located at 509 3rd Avenue, New York, NY 10016-
which is "perpendicular and adjacent" to the Building-and 211 East 34th Street, which is directly
adjacent to the Building. The Moving Defendant hired defendants Regal Construction Corp.
("Regal") and Oliviero Construction Corp. ("Oliviero") for construction and demolition work at
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509 East 3rd Avenue and 211 East 34th Street, which work began around the end of 2019
(NYSCEF Doc. No. 1 [Complaint at i]i]5-6]). Plaintiff alleges that between July 16, 2020, and
August 10, 2020, the New York City Department of Buildings ("DOB") issued at least twelve
citations to defendants related to this work (Id. at i]l2).
On or about July 16, 2020, defendants' work caused 211 East 34th Street to partially
collapse (Id. at ,i,i10-11 ). This partial collapse left the neighboring Building unbraced and caused
a large vertical crack from the Building's first floor to roof On July 17, 2020, the New York City
Department of Buildings issued a peremptory vacate order for the Building (Id. at i]l3). As a result,
plaintiff's business remained closed from that date through the Fall of 2020 and by the time
plaintiff's owner was able to return to the premises, his business was "no longer viable" (NYSCEF
Doc. No. 72 [Kim Aff. in Supp. at iJiJ9-10]).
Plaintiff commenced this action on December 7, 2020, asserting claims against the Moving
Defendant for negligence, negligence per se, violation of New York City Building Code §3309.1,
nuisance, and trespass. The Moving Defendant answered, as did Regal and Oliviero, who asserted
crossclaims against the Moving Defendant for contribution and indemnification (See NYSCEF
Doc. Nos. 4, 5).
The Moving Defendant now moves for summary judgment dismissing the complaint and
crossclaims against it. It notes that plaintiff's Amended Bill of Particulars asserts that defendants'
work did not cause any physical damage to plaintiff's store or any possessions within it and argues
that, as a result, plaintiff's claims sounding in negligence are barred by 532 Madison Avenue
Gourmet Foods. Inc. v. Finlandia Center, Inc., 96 NY2d 280 (2001) and Roundabout Theatre Co.
v. Tishman Realty & Constr. Co., 302 AD2d 272 (2003) which, according to plaintiff, restrict the
scope of a defendant's duty for harms arising from a construction-related incident to litigants who
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have suffered personal injury or property damage. The Moving Defendant also argues that
plaintiffs cause of action for nuisance must be dismissed "because New York does not recognize
a cause of action for nuisance for economic loss related to an activity that was not abnormally
dangerous." Finally, the Moving Defendant argues that no trespass claim lies because it is
undisputed that the Moving Defendant did not enter or cause an entry into plaintiffs premises.
In opposition, plaintiff disputes the Moving Defendant's characterization of 532 Madison
Avenue and Roundabout Theatre Co. and asserts that the Moving Defendant owed a duty to them
as a matter of common law-because "[t]he economic damages Murray Hill incurred as a result
of Defendant's negligent construction were foreseeable and well within the scope of Defendant's
duty to its neighbor"-and pursuant to New York City Building Code §3309.1. Plaintiff further
argues that the motion is premature because there is outstanding discovery that may be relevant to
establishing defendants' negligence including construction site logs, information regarding the
partial collapse, and data surrounding defendants' attempts to address the damage to 213 East 34th
Street. Finally, plaintiff contends that the crack in the Building constitutes a physical entry
sufficient to sustain its claims for trespass and nuisance.
DISCUSSION
For the reasons set forth below, the Moving Defendant's motion for summary judgment1
is granted in part. "The proponent of a summary judgment motion 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. Failure to make such prima facie showing
requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this
1 While the movant characterizes this motion as made pursuant to both CPLR 32ll(a)(l) and CPLR 3212, only the latter applies. The bill of particulars relied upon by the movant is not documentary evidence within the meaning of CPLR 321 l(a)(l) (See D' Auvergne v Dis Is We Thing, Inc., 110 AD3d 948, 948 [2d Dept 2013]). 160553/2020 MURRAY HILL CLEANERS & vs. THIRD AND THIRTY FOUR, LLC Page 3 of 7 Motion No. 001
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showing has been made, however, the burden shifts to the party opposing the motion for summary
judgment to produce evidentiary proof in admissible form sufficient to establish the existence of
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Murray Hill Cleaners & Laundry, Inc. v Third & Thirty Four, LLC 2025 NY Slip Op 30362(U) January 29, 2025 Supreme Court, New York County Docket Number: Index No. 160553/2020 Judge: Judy H. Kim 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. [FILED: NEW YORK COUNTY CLERK 01/29/2025 04:24 P~ INDEX NO. 160553/2020 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 01/29/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JUDY H. KIM PART 04 Justice ----------------------------------------------------------------- ----------------X INDEX NO. 160553/2020 MURRAY HILL CLEANERS & LAUNDRY, INC., MOTION DATE 07/28/2024 Plaintiff, MOTION SEQ. NO. 001 - V -
THIRD AND THIRTY FOUR, LLC, REGAL RECONSTRUCTION CORP., OLIVIERO CONSTRUCTION DECISION + ORDER ON CORP., MOTION
Defendants. ------------------------------------------------------------------- --------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 48, 49, 50, 51, 52, 53,54,55,56,57,58,59,60,61,62,63,64,65,66,67,68,69, 71, 72, 73, 74, 75, 76, 77, 78 were read on this motion for JUDGMENT-SUMMARY
Upon the foregoing documents, defendant Third and Thirty Four, LLC's motion for
summary judgment is granted, in part, to the limited extent that the trespass claim asserted against
it is dismissed, and is otherwise denied.
FACTUAL BACKGROUND
The following factual recitation is adapted from plaintiffs complaint and its submissions
in connection to this motion and is, for purposes of this motion, taken as true.
Plaintiff previously operated a laundry business on the ground floor of the building located
at 213 East 34th Street in Manhattan (the "Building"). Defendant Third and Thirty Four, LLC (the
"Moving Defendant") owns the buildings located at 509 3rd Avenue, New York, NY 10016-
which is "perpendicular and adjacent" to the Building-and 211 East 34th Street, which is directly
adjacent to the Building. The Moving Defendant hired defendants Regal Construction Corp.
("Regal") and Oliviero Construction Corp. ("Oliviero") for construction and demolition work at
160553/2020 MURRAY HILL CLEANERS & vs. THIRD AND THIRTY FOUR, LLC Page 1 of 7 Motion No. 001
1 of 7 [* 1] [FILED: NEW YORK COUNTY CLERK 01/29/2025 04:24 P~ INDEX NO. 160553/2020 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 01/29/2025
509 East 3rd Avenue and 211 East 34th Street, which work began around the end of 2019
(NYSCEF Doc. No. 1 [Complaint at i]i]5-6]). Plaintiff alleges that between July 16, 2020, and
August 10, 2020, the New York City Department of Buildings ("DOB") issued at least twelve
citations to defendants related to this work (Id. at i]l2).
On or about July 16, 2020, defendants' work caused 211 East 34th Street to partially
collapse (Id. at ,i,i10-11 ). This partial collapse left the neighboring Building unbraced and caused
a large vertical crack from the Building's first floor to roof On July 17, 2020, the New York City
Department of Buildings issued a peremptory vacate order for the Building (Id. at i]l3). As a result,
plaintiff's business remained closed from that date through the Fall of 2020 and by the time
plaintiff's owner was able to return to the premises, his business was "no longer viable" (NYSCEF
Doc. No. 72 [Kim Aff. in Supp. at iJiJ9-10]).
Plaintiff commenced this action on December 7, 2020, asserting claims against the Moving
Defendant for negligence, negligence per se, violation of New York City Building Code §3309.1,
nuisance, and trespass. The Moving Defendant answered, as did Regal and Oliviero, who asserted
crossclaims against the Moving Defendant for contribution and indemnification (See NYSCEF
Doc. Nos. 4, 5).
The Moving Defendant now moves for summary judgment dismissing the complaint and
crossclaims against it. It notes that plaintiff's Amended Bill of Particulars asserts that defendants'
work did not cause any physical damage to plaintiff's store or any possessions within it and argues
that, as a result, plaintiff's claims sounding in negligence are barred by 532 Madison Avenue
Gourmet Foods. Inc. v. Finlandia Center, Inc., 96 NY2d 280 (2001) and Roundabout Theatre Co.
v. Tishman Realty & Constr. Co., 302 AD2d 272 (2003) which, according to plaintiff, restrict the
scope of a defendant's duty for harms arising from a construction-related incident to litigants who
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have suffered personal injury or property damage. The Moving Defendant also argues that
plaintiffs cause of action for nuisance must be dismissed "because New York does not recognize
a cause of action for nuisance for economic loss related to an activity that was not abnormally
dangerous." Finally, the Moving Defendant argues that no trespass claim lies because it is
undisputed that the Moving Defendant did not enter or cause an entry into plaintiffs premises.
In opposition, plaintiff disputes the Moving Defendant's characterization of 532 Madison
Avenue and Roundabout Theatre Co. and asserts that the Moving Defendant owed a duty to them
as a matter of common law-because "[t]he economic damages Murray Hill incurred as a result
of Defendant's negligent construction were foreseeable and well within the scope of Defendant's
duty to its neighbor"-and pursuant to New York City Building Code §3309.1. Plaintiff further
argues that the motion is premature because there is outstanding discovery that may be relevant to
establishing defendants' negligence including construction site logs, information regarding the
partial collapse, and data surrounding defendants' attempts to address the damage to 213 East 34th
Street. Finally, plaintiff contends that the crack in the Building constitutes a physical entry
sufficient to sustain its claims for trespass and nuisance.
DISCUSSION
For the reasons set forth below, the Moving Defendant's motion for summary judgment1
is granted in part. "The proponent of a summary judgment motion 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. Failure to make such prima facie showing
requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this
1 While the movant characterizes this motion as made pursuant to both CPLR 32ll(a)(l) and CPLR 3212, only the latter applies. The bill of particulars relied upon by the movant is not documentary evidence within the meaning of CPLR 321 l(a)(l) (See D' Auvergne v Dis Is We Thing, Inc., 110 AD3d 948, 948 [2d Dept 2013]). 160553/2020 MURRAY HILL CLEANERS & vs. THIRD AND THIRTY FOUR, LLC Page 3 of 7 Motion No. 001
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showing has been made, however, the burden shifts to the party opposing the motion for summary
judgment to produce evidentiary proof in admissible form sufficient to establish the existence of
material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d
320, 324 [1986] [internal citations omitted]).
Negligence
"[T]o prevail on a negligence claim, a plaintiff must demonstrate (1) a duty owed by the
defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom"
(Pasternack v Lab's Corp. of Am. Holdings, 27 NY3d 817, 825 [2016] [internal citations and
quotations omitted]). "The definition and scope of an alleged tortfeasor's duty owed to a plaintiff
is a question of law" (Id.).
It is well settled that "a landowner who engages in activities that may cause injury to
persons on adjoining premises owes those persons a duty to take reasonable precautions to avoid
injuring them" (532 Madison Ave. Gourmet Foods, Inc. v Finlandia Ctr., Inc., 96 NY2d 280, 290
[2001] [internal citations omitted]). Accordingly, and contrary to the movant's position, a
commercial tenant of a building that is vacated because of a neighbor's negligent work on the
adjoining property may maintain a claim in negligence for the resulting economic loss (See
Yenem Corp. v 281 Broadway Holdings, 76 AD3d 225,227 [1st Dept 2010] [tenant pizzeria sued
owner and developer of neighboring building for "economic loss" resulting from defendants'
excavation work which allegedly undermined foundation of building in which pizzeria operated,
resulting in vacate order by Department of Buildings], revd on other grounds, 18 NY3d 481
[2012]).
The cases relied upon by plaintiff, 532 Madison Ave. Gourmet Foods, Inc. v Finlandia
Center, Inc. 96 NY2d 280 (2001) and Roundabout Theater Co. v Tishman Realty & Construction
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Co., Inc. 302 AD2d 272 (1st Dept 2003), do not support a contrary conclusion. In 532 Madison.
the Court of Appeals concluded that various businesses which had suffered financial losses from
a street closure necessitated by the partial collapse of defendant's building did not have a claim
sounding in negligence because the defendant, under the circumstances, owed a duty only to those
who had suffered personal injury or property damage as a result of the collapse (532 Madison Ave.
Gourmet Foods, Inc. v Finlandia Center, Inc. 96 NY2d 280, 289 [2001]). The Court noted that
"[t]his restriction [was] necessary to avoid exposing defendants to unlimited liability to an
indeterminate class of persons conceivably injured by any negligence in a defendant's act" (532
Madison Ave. Gourmet Foods, Inc. v Finlandia Ctr., Inc., 96 NY2d 280, 289 [2001]). The same
principle mandated the dismissal of the action in Roundabout Theater. where plaintiff, a theater
owner, sued its neighbor to recover financial losses from a cancelled performance necessitated by
the collapse of a construction elevator tower attached to defendant's building, and the resulting
street closures (Roundabout Theater Co. v Tishman Realty & Construction Co., Inc. 302 AD2d
272 [1st Dept 2003]).
The policy concern motivating these decisions is simply not present here-there is no
indication in the record that the partial collapse of the Moving Defendant's building led to street
closures or any other public nuisance such that plaintiff is part of an expansive and ill-defined pool
of potential litigants who have suffered an economic loss. Accordingly, that branch of the Moving
Defendant's motion for summary judgment dismissing plaintiff's negligence claims is denied.
Nuisance
The elements of private nuisance are an invasion of plaintiff's interest in the private use
and enjoyment of its land which is either: "(I) intentional and unreasonable, (2) negligent or
reckless, or (3) actionable under the rules governing liability for abnormally dangerous conditions
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or activities" (Copart Indus., Inc. v Consol. Edison Co. of New York, Inc., 41 NY2d 564, 569
[ 1977] [internal citations omitted]). Although the third category of invasion, "strict liability based
on an abnormally dangerous activity," requires damage to property as a material element (532
Madison Ave. Gourmet Foods, Inc. v Finlandia Ctr., Inc., 96 NY2d 280,292 at n 2 [2001] [internal
citations omitted]), which is not at issue here, issues of fact remain as to the first two categories.
As to the first category, an intentional and unreasonable invasion requires that "the actor
(a) acts for the purpose of causing [the invasion]; or (b) knows that it is resulting or is substantially
certain to result from his conduct" (Copart Indus., Inc. v Consol. Edison Co. of New York, Inc.,
41 NY2d 564, 571 [1977] [internal citations omitted]), and the Moving Defendant has offered no
evidence on either point. In addition, the movant has, for the reasons discussed above, failed to
establish that it was not negligent in its construction and demolition work. Accordingly, the branch
of the Moving Defendant's motion for summary judgment dismissing plaintiff's private nuisance
claim is also denied.
Trespass
The Moving Defendant has, however, established that no trespass claim lies. "The essential
elements of a cause of action sounding in trespass are the intentional entry onto the land of another
without justification or permission" (211-12 N. Blvd. Corp. v LIC Contr., Inc., 186 AD3d 69, 82
[2d Dept 2020]) and "[n]either the complaint nor plaintiff's ... opposition papers alleges any
specific entry onto plaintiff's property" (MacArthur Properties, LLC v Metro. Transportation
Auth., 61 Misc 3d 1204(A) [Sup Ct, NY County 2017], affd, 164 AD3d 1165 [1st Dept 2018]).
Plaintiff has not provided any authority that supports its assertion that the crack in the exterior wall
of a building serves as an entry onto a tenant's premises, nor has the Court discovered any.
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Accordingly, the Moving Defendant's motion for summary judgment is granted to the extent that
plaintiffs cause of action for trespass is dismissed.
Accordingly, it is
ORDERED that defendant Third and Thirty Four, LLC's motion for summary judgment
is granted in part, to the extent that the seventh cause of action, for trespass, is dismissed as against
it, and is otherwise denied; and is further
ORDERED that Third and Thirty Four, LLC shall, within ten days from the date of this
decision and order, serve a copy of same with notice of entry on plaintiff as well as the Clerk of
the Court (60 Centre St., Room 141B) and the Clerk of the General Clerk's Office (60 Centre St.,
Rm. 119) who are directed to enter judgment accordingly; and it is further
ORDERED that such service upon the Clerk of the Court and the Clerk of the General
Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on
Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-
Filing" page on this court's website at the address www.nycourts.gov/supctmanh); and it is further
ORDERED that the parties are to appear for a status conference in Part 4 (80 Centre Street,
room 308) on March 13, 2025 at 9:30 am.
This constitutes the decision and order of the Court.
1/29/2025 DATE HON. JUDY H. KIM, J.S.C.
~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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