| Lofstad v S & R Fisheries, Inc. |
| 2007 NY Slip Op 09211 [45 AD3d 739] |
| November 20, 2007 |
| Appellate Division, Second Department |
| Raymond Lofstad et al., Respondents, v S & R Fisheries,Inc., et al., Appellants, and Shinnecock Inlet Development Corp. et al., Respondents. (AndThird-Party Actions.) (Action No. 1.) Alfred Richard Havel, Respondent, v S & R Fisheries, Inc.,et al., Appellants, and Shinnecock Inlet Development Corp., Respondent. (Action No. 2.) AlfredRichard Havel, Plaintiff, v Arthur Junge, Inc., Defendant. (Action No.3.) |
—[*1] Walsh Markus McDougal & DeBellis, LLP, Garden City, N.Y. (Stephen P. Markus ofcounsel), for Shinnecock Inlet Development Corp., appellant in Action Nos. 1 and 2. Perez, Furey & Varvaro, Uniondale, N.Y. (Joseph Varvaro and Denise A. Cariello ofcounsel), for Tube Ice, LLC, s/h/a Vogt Tube Ice, Ice Lease Partners, Ltd., and OPM Services,Inc., s/h/a OPM Services, appellants in Action Nos 1 and 2. John H. Mulvehill, St. James, N.Y., for Raymond Lofstad and Julie Lofstad, [*2]respondents in Action No. 1. Huwel & Mulhern, Franklin Square, N.Y. (Edwin T. Mulhern of counsel), for Alfred RichardHavel, respondent in Action No. 2 and plaintiff in Action No. 3.
In three related actions, inter alia, to recover damages for negligence, (1) the defendants TubeIce, LLC, sued herein as Vogt Tube Ice, Ice Lease Partners, Ltd., and OPM Services, Inc., suedherein as OPM Services, appeal, as limited by their brief, from so much of (a) an order of theSupreme Court, Suffolk County (Weber, J.), dated November 17, 2006, as denied their motionfor summary judgment dismissing the complaints and all cross claims in the first and secondactions insofar as asserted against them and granted that branch of the motion of the plaintiffsRaymond Lofstad and Julie Lofstad which was for summary judgment on the issue of liabilityagainst the defendant Ice Lease Partners, Ltd., in action No. 1, and (b) an order of the same courtdated February 2, 2007, as granted that branch of the motion of the plaintiff Alfred RichardHavel which was for summary judgment against the defendant Ice Lease Partners, Ltd., on theissue of liability in action No. 2, (2) the defendants S & R Fisheries, Inc., and Robert Soleauappeal (a) as limited by their brief, from so much of the order dated November 17, 2006, asgranted that branch of the motion of the plaintiffs Raymond Lofstad and Julie Lofstad which wasfor summary judgment against the defendant S & R Fisheries, Inc., on the issue of liability inaction No. 1, and (b) from an order of the same court dated January 22, 2007, which denied themotion of the defendant Robert Soleau for summary judgment dismissing the complaint and allcross claims insofar as asserted against him in action No. 1, and (3) the defendant ShinnecockInlet Development Corp., appeals, as limited by its brief, from so much of the order datedFebruary 2, 2007, as granted that branch of the motion of the plaintiff Alfred Richard Havelwhich was for summary judgment against it on the issue of liability in action No. 2.
Ordered that the appeals by the defendants Tube Ice, LLC, sued herein as Vogt Tube Ice, andOPM Services, Inc., sued herein as OPM Services, from so much of (a) the order datedNovember 17, 2006, as granted that branch of the motion of the plaintiffs Raymond Lofstad andJulie Lofstad which was for summary judgment on the issue of liability against the defendant IceLease Partners, Ltd., in action No. 1, and (b) the order dated February 2, 2007, as granted thatbranch of the motion of the plaintiff Alfred Richard Havel which was for summary judgmentagainst the defendant Ice Lease Partners, Ltd., in action No. 2, are dismissed, as the defendantsTube Ice, LLC, sued herein as Vogt Tube Ice, and OPM Services, Inc., sued herein as OPMServices, are not aggrieved by those portions of the orders (see CPLR 5511); and it isfurther,
Ordered that the appeal by the defendant Robert Soleau from so much of the order datedNovember 17, 2006, as granted that branch of the motion of the plaintiffs Raymond Lofstad andJulie Lofstad which was for summary judgment against the defendant S & R Fisheries, Inc., onthe issue of liability in action No. 1 is dismissed, as the defendant Robert Soleau is not aggrievedby that portion of the order (see CPLR 5511); and it is further,
Ordered that the appeal by the defendant S & R Fisheries, Inc., from the order dated January22, 2007, which denied the motion of the defendant Robert Soleau for summary judgmentdismissing the complaint and all cross claims insofar as asserted against him in action No. 1 isdismissed, as the defendant S & R Fisheries, Inc., is not aggrieved by that order (seeCPLR 5511); and it is further,[*3]
Ordered that the order dated November 17, 2006 isreversed insofar as reviewed, on the law, that branch of the motion of the plaintiffs RaymondLofstad and Julie Lofstad which was for summary judgment on the issue of liability against thedefendants Ice Lease Partners, Ltd., and S & R Fisheries, Inc., in action No. 1 is denied, and themotion of the defendants Tube Ice, LLC, sued herein as Vogt Tube Ice, Ice Lease Partners, Ltd.,and OPM Services, Inc., sued herein as OPM Services, which was for summary judgmentdismissing the complaints and all cross claims in actions No. 1 and 2 insofar as asserted againstthem is granted; and it is further,
Ordered that the order dated January 22, 2007 is reversed insofar as reviewed, on the law,and the motion of the defendant Robert Soleau which was for summary judgment dismissing thecomplaint and all cross claims in action No. 1 insofar as asserted against him is granted; and it isfurther,
Ordered that the order dated February 2, 2007 is reversed insofar as reviewed, on the law, themotion of the plaintiff Alfred Richard Havel which was for summary judgment on the issue ofliability against the defendants Ice Lease Partners, Ltd., S & R Fisheries, Inc., and ShinnecockInlet Development Corp. in action No. 2 is denied; and it is further,
Ordered that one bill of costs is awarded to the defendants Tube Ice, LLC, sued herein asVogt Tube Ice, Ice Lease Partners, Ltd., OPM Services, Inc., sued herein as OPM Services, S &R Fisheries, Inc., Shinnecock Inlet Development, and Robert Soleau, payable by the plaintiffsRaymond Lofstad, Julie Lofstad, and Alfred Richard Havel, appearing separately and filingseparate briefs.
On December 6, 2003 Raymond Lofstad, a plaintiff in action No. 1, and Alfred RichardHavel, the plaintiff in actions No. 2 and 3, were working on Lofstad's vessel, which was tied to adock on a public waterway in Suffolk County. A roof-top shed (hereinafter the shed) located onabutting premises owned since 1988 by a defendant in actions No. 1 and 2, Shinnecock InletDevelopment Corp. (hereinafter Shinnecock), blew off and injured them. The premises had beenleased to a defendant in actions No. 1 and 2, S & R Fisheries, Inc. (hereinafter S & R), at the timeof the accident. S & R became the sole tenant of the premises by lease dated September 23, 2003.
The shed was installed in 2001 by a defendant in actions No. 1 and 3, Arthur Junge, Inc.(hereinafter Junge), when it installed ice machines on the roof of the premises at the request ofIce Lease Partners, Inc., also known as Ice Lease Partners, Ltd. (hereinafter Ice Lease),defendants in actions No. 1 and 2, which leased three ice machines manufactured and designedby Tube Ice, LLC, sued herein as Vogt Tube Ice (hereinafter Tube Ice), a defendant in actionsNo. 1 and 2. OPM Services, Inc., sued herein as OPM Services (hereinafter OPM), a defendant inactions No. 1 and 2, is the parent company of Ice Lease and Tube Ice (Ice Lease, Tube Ice, andOPM are also collectively referred to as the Ice Lease defendants).
In 2001 Ice Lease leased the ice machines (which were installed on the roof of the premisesand were stored in the shed) to J & R, Inc., which was doing business as Long Island FishExchange, LLC, and, in accordance with that lease, it retained the right to inspect the icemachines during business hours. Junge later removed the ice machines (before the accident andbefore S & R's tenancy), but left the shed behind. A defendant in action No. 1, Jimmy Coronesi,the sole shareholder of Shinnecock, sold all of the corporate stock to Robert Soleau (the principalof S & R), also a defendant in that action, four months before the accident. Lofstad paid dockrent to S & [*4]R. The instant actions followed the accident.
Ice Lease contends that the Supreme Court improperly granted the summary judgmentmotion of Raymond Lofstad and his wife, Julie (hereinafter collectively Lofstad) on the basis ofthe doctrine of res ipsa loquitur, because, inter alia, it did not have exclusive control over theshed and issues of fact exist as to whether the shed was blown off by a so-called "act of God." S& R raises similar contentions as to Lofstad. We agree.
Lofstad failed to meet his initial burden of demonstrating entitlement to judgment as a matterof law as against Ice Lease pursuant to the doctrine of res ipsa loquitur because the record showsthat Ice Lease never had exclusive control over the shed, since it never owned the shed or thepremises, and never occupied the premises (see Morejon v Rais Constr. Co., 7 NY3d 203 [2006]; Kambat vSt. Francis Hosp., 89 NY2d 489, 494 [1997]; Hodges v Royal Realty Corp., 42 AD3d 350 [2007]; Cooper v Carmike Cinemas, Inc., 41AD3d 1279 [2007]). The Lofstad motion for summary judgment was improperly granted asagainst S & R on the basis of res ipsa loquitur, because the shed was constructed before S & Rtook possession of the premises as a tenant thereof (see Crosby v Stone, 137 AD2d 785[1988]). The Lofstad motion was improperly granted as to S & R and Ice Lease for the additionalreason that a triable issue of fact exists as to whether the shed was blown off the premises roof byan act of God, as evidenced by EBT testimony that there were 70 mile-per-hour winds at the timeand place of the accident (see generallyTora v GVP AG, 31 AD3d 341 [2006]; Tel Oil Co. v City of Schenectady, 303AD2d 868 [2003]).
Lofstad's contention that the granting of his summary judgment motion should be affirmed,nonetheless, based on a nuisance theory is without merit. Lofstad failed to meet his initial burdenof proving that the allegedly negligently constructed shed interfered with the public's right of wayon the adjacent waterway for a period of time before the accident (see generally Wheeler vLebanon Val. Auto Racing Corp., 303 AD2d 791, 792 [2003]). Accordingly, the SupremeCourt improperly granted Lofstad's motion for summary judgment.
Inasmuch as Havel's motion for summary judgment was made more than 120 days after thenote of issue was filed, it was untimely (see CPLR 3212 [a]; Jones v Ricciardelli, 40 AD3d 936[2007]). Since Havel failed to provide good cause for his late filing, his motion for summaryjudgment should have been denied as untimely (see Brill v City of New York, 2 NY3d 648 [2004]). We note thatwhile the Lofstad and Havel actions are related, they were only joined for trial and notconsolidated. Thus, they remain separate actions; Havel is not now, and never was, a party in theLofstad action. Accordingly, Lofstad's timely motion for summary judgment cannot provide goodcause for the untimely filing of Havel's motion, irrespective of whether the grounds were nearlyidentical (see CPLR 3212 [b]; Jones v Ricciardelli, 40 AD3d 936 [2007]).
We agree with the Ice Lease defendants' contention that the Supreme Court erred in denyingtheir motions for summary judgment dismissing the Lofstad and Havel complaints insofar asasserted against them. The Ice Lease defendants met their initial burden of demonstrating primafacie entitlement to judgment as a matter of law by tendering sufficient evidence that they neithercreated nor had actual or constructive notice of the alleged defective condition, and that, in anyevent, the so-called "independent contractor rule" applied. In response, the plaintiffs failed toraise an issue of fact as to notice or demonstrate that any of the exceptions to the general ruleconcerning independent contractor liability are applicable herein (see Pisano v Young Women's ChristianAssn. of Brooklyn, 43 AD3d 814 [2007]; Powell v Pasqualino, 40 AD3d 725 [2007]; Langer v BJ'sWholesale Club, Inc., [*5]39 AD3d 714 [2007]; Chou v A to Z Vending Serv. Corp., 36AD3d 745 [2007]; Chorostecka vKaczor, 6 AD3d 643 [2004]; Abrams v Powerhouse Gym Merrick, 284 AD2d487 [2001]). Contrary to the Supreme Court's finding, the record does not establish that, nor arethere issues of fact as to whether, Ice Lease retained a continued contractual right to inspect theshed. The documentary evidence, i.e, the clear and unambiguous terms of the ice machine lease,shows that the shed was not covered by the lease, as Ice Lease never owned the sheds.
Soleau's motion for summary judgment dismissing the Lofstad complaint should have beengranted as well because there is no basis for piercing the corporate veil of his corporations tohold him personally liable for the alleged conduct of his corporations (see Kok Choy Yeen v NWE Corp., 37AD3d 547 [2007]; Aetna Elec. Distrib. Co. v Homestead Elec., 279 AD2d 541[2001]). Spolzino, J.P., Krausman, Goldstein and Dickerson, JJ., concur.