Pacheco v. Georgetown Eleventh Ave. Owners

2022 NY Slip Op 30776(U)

JOSE PACHECO, JALY PACHECO, Plaintiff, v. GEORGETOWN ELEVENTH AVENUE OWNERS, LLC, DOOLEY ELECTRIC COMPANY, INC., Defendants.

MOTION SEQ. No. 001

Index Nos. 157529/2017, 595027/2019, 595389/2021

Supreme Court, New York County

March 9, 2022

Unpublished Opinion

DECISION + ORDER ON MOTION

HON MARGARET CHAN JUDGE.

The following e-filed documents, listed by NYSCEF document number (Motion 001) 44, 45, 46, 47, 48, 49, 50, 52, 53, 54, 55, 56 57, 58, 59 were read on this motion to/for DISMISSAL

In this action arising out of a worksite accident, second third-party defendants Manhattan Ford Lincoln, Inc., Manhattan Lincoln-Mercury Inc., and Manhattan Ford, Lincoln-Mercury Inc. (Manhattan Ford) move pursuant to CPLR 3211(a)(1) and (7) to dismiss the second-third party complaint in its entirety.

Defendant and first and second third-party plaintiff Georgetown Eleventh Avenue Owners. LLC (Georgetown) opposes the motion.

Background

Plaintiff Jose Pacheco alleges that he was injured on August 4, 2017 when he was taking down ceiling tiles while standing on a ladder at the property located at 787 Eleventh Avenue, New York, NY (the Building). It is alleged that the accident occurred when Pacheco touched a live electrical wire in the ceiling causing him to fall. In the main action, plaintiffs assert claims against Georgetown, the owner of the Building, and Dooley Electrical Company, Inc., an electrical subcontractor, for violations of Labor Law §§ 240(1), 241(6), 200 and for common law negligence (NYSCEF # 14 -Amended Complaint). Georgetown purchased the Building from Manhattan Ford pursuant to a purchase agreement dated May 12, 2015 (NYSCEF # 46-Purchase Agreement).

In the second third-party action Georgetown asserts claims against Manhattan Ford for common law indemnification and contribution based on allegations that Manhattan Ford negligently caused or contributed to the accident resulting in Pacheo's injuries (NYSCEF # 49-Second Third-Party Complaint). Specifically, it is alleged that Manhattan Ford knowingly permitted, suffered, and or allowed a defective condition to exist at the Building at the time of the sale to Georgetown, and that Georgetown "did not own the [Building] for a reasonable amount of time to have remedied such conditions which may have been known to it" (id., ¶¶ 18, 24, 30).

Manhattan Ford seeks to dismiss the second third-party complaint on the grounds that (i) the Purchase Agreement provides documentary evidence that Georgetown purchased the Building "as is" more than two years before the accident such that Manhattan Ford cannot be held liable for injuries sustained by Pacheco due to the condition of the Building, (ii) the claim for common law indemnification fails to state a cause of action as Georgetown cannot show that it is merely vicariously liable or that Manhattan Ford breached a duty to plaintiffs, and (hi) common law contribution claim fails a cause of action since Manhattan Ford owes no duty to plaintiffs.

In opposition, Georgetown counters that the Purchase Agreement is inadmissible and, in any event, does not refute the second third-party claims. Specifically, Georgetown asserts that the Purchase Agreement does not establish that Manhattan Ford did not create the alleged defects. In support, Georgetown submits records from the New York Department of Buildings (DOB) from the period of Manhattan Ford's ownership of the Building which show violations dated July 13, 2007, May 29, 2002, and August 7, 2002, regarding "defective and exposed" electrical wiring including in the ceilings and between floors (NYSCEF # 53, 54, 55).

Based on the DOB records, Georgetown argues that there are material issues of fact as to nature and extent of the Building's electrical issues before the sale and whether such electrical conditions were latent and undiscoverable, and as to whether Georgetown had a reasonable time to discover such conditions. Georgetown also argues that Manhattan Ford has not met its burden of showing that the allegations in the second third-party complaint are insufficient to state a claim for common law indemnification and contribution.

In reply, Manhattan Ford contends that Georgetown provides no grounds for contesting the existence, execution or authenticity of the Purchase Agreement and it therefore qualifies as documentary evidence. In addition, Manhattan Ford submits a sworn declaration authenticating that the copy of the Purchase Agreement annexed to the motion is accurate and true (NYSCEF # 59-Declaration of Jeffrey Lynch). Manhattan Ford also points out the DOB violations relied on by Georgetown were dated approximately eight and thirteen years before Georgetown's purchase of the Building and, in any event, indicate that the complaints as to the electrical wiring were "resolved" (id).

Discussion

On a motion to dismiss pursuant to CPLR 3211 (a)(7), the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference," and "determine only whether the facts as alleged fit into any cognizable legal theory" (Siegmund Strauss, Inc. v. E. 149th Realty Corp., 104 A.D.3d 401, 403 [1st Dept 2013]). At the same time, "[i]n those circumstances where the legal conclusions and factual allegations are flatly contradicted by documentary evidence, they are not presumed to be true or accorded every favorable inference'" (Morgenthow & Latham v. Bank of New York Company, Inc., 305 A.D.2d 74, 78 [1st Dept 2003][internal citation and quotation omitted]). However, dismissal based on documentary evidence pursuant to CPLR 3211(a)(1) may result "only when it has been shown that a material fact as claimed by the pleader is not a fact at all and no significant dispute exists regarding it'" (Acquista v. New York Life Ins. Co., 285 A.D.2d 73, 76 [1st Dept 2001]), quoting, Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275 [1977]).

While CPLR 3211(a)(1) does not explicitly define "documentary evidence," typically a document will qualify as "documentary evidence" if it is unambiguous authentic, and its contents are essentially undeniable (VXI Lux Holdco S.A.R.L. v. SIC Holdings, LLC, 171 A.D.3d 189, 193 [1st Dept 2019];see also, Gottesman Co v. A.E. W, Inc., 190 A.D.3d 522, 524 [1st Dept 2021] [finding that undisputed emails and transaction documents constitute "documentary evidence"]. New...