| Bevilacqua v Bloomberg, L.P. |
| 2010 NY Slip Op 00728 [70 AD3d 411] |
| February 2, 2010 |
| Appellate Division, First Department |
| Ottaviano Bevilacqua et al., Respondents, v Bloomberg,L.P., Appellant-Respondent, Scales Industrial Technologies, Inc., Sued Herein as ScalesIndustries Technologies, Inc., Respondent-Appellant, and Quincy Compressor, Appellant. (Anda Third-Party Action.) Scales Industrial Technologies, Inc., Second Third-PartyPlaintiff-Respondent, v Quincy Compressor, Second Third-Party Defendant-Appellant. ScalesIndustrial Technologies, Inc., Third Third-Party Plaintiff-Respondent, v Coltec Industries, Inc.,Third Third-Party Defendant-Appellant. |
—[*1] Segal, McCambridge, Singer & Mahoney, Ltd., New York (Theodore Eder of counsel), forQuincy Compressor and Coltec Industries, Inc., appellants. Savona, D'Erasmo & Hyer, LLC, New York (Raymond M. D'Erasmo of counsel), forrespondent-appellant/respondent. Daniel P. Buttafuoco & Associates, PLLC, Woodbury (Ellen Buchholz of counsel), forrespondents.
Order, Supreme Court, New York County (Judith J. Gische, J.), entered March 31, 2009,which denied the motion of defendant Bloomberg, L.P. and the cross motion of Scales IndustrialTechnologies, Inc., sued herein as Scales Industries Technologies, Inc. for summary judgmentdismissing the complaint and all cross claims as against them, the motions of defendant QuincyCompressor to dismiss the complaint and the second third-party complaint as against it, themotion of third third-party defendant Coltec Industries, Inc. to dismiss the third third-partycomplaint against it, and granted plaintiffs' cross motion for leave to serve a second amendedcomplaint, unanimously modified, on the law, to grant Bloomberg's motion and Scales's crossmotion, to vacate that portion of the order denying Quincy's motion to dismiss plaintiff'samended complaint for lack of personal jurisdiction and remand the matter for a traverse hearing,and otherwise affirmed, without costs. The Clerk is directed to enter judgment accordingly.
Plaintiff Ottaviano Bevilacqua was injured when, while working for his employer AmericanBuilding Maintenance (ABM), he slipped and fell on oil located on the floor near two aircompressors in a chiller plant owned by Bloomberg. According to plaintiff, an internal oil leak inone of the air compressors caused oil to leak onto the floor. ABM provided engineering servicesat the building pursuant to a service maintenance contract with Bloomberg. Quincy, anunincorporated division of Coltec, manufactured the air compressors, and Scales, an authorizeddistributor of Quincy compressors, inspected and repaired the air compressors at the buildingpursuant to the manufacturer's warranty.
The motion court improperly denied Bloomberg's motion and Scales's cross motion forsummary judgment dismissing the complaint and all cross claims as against them. A generalawareness of an internal oil leak in the compressors is insufficient to raise an issue of fact as towhether Bloomberg and Scales had actual or constructive notice of the oil on the floor (seePiacquadio v Recine Realty Corp., 84 NY2d 967, 969 [1994]). There is also no evidence thatScales was negligent in performing its services, or that its services caused the oil on the floor (see Ledesma v Aragona Mgt. Group,50 AD3d 510, 511 [2008]). "In the absence of a contract for routine or systematicmaintenance, an independent repairer/contractor has no duty to install safety devices or toinspect or warn of any purported defects" (Daniels v Kromo Lenox Assoc., 16 AD3d 111, 112 [2005]).
The motion court improperly denied that portion of Quincy's motion to dismiss the amendedcomplaint for improper service. While the process server's sworn affidavits of service constitutedprima facie evidence of proper service pursuant to CPLR 311 (a) (1), the affidavits of the personswho accepted service denying that they were authorized to do so, were sufficiently specific towarrant a traverse hearing (see Dunn vPallett, 42 AD3d 807 [2007]).
The motion court properly denied that portion of Quincy's motion to dismiss asserting thatplaintiffs' present counsel lacked the authority to amend the complaint because it did not file aconsent to change attorney form pursuant to CPLR 321 (b). Because Quincy communicated withplaintiffs' present firm, albeit regarding Quincy's motion to dismiss, prior to plaintiffs' filing thechange of attorney form, the actions of the present firm prior to the filing of the consent tochange attorney form should not be nullified (see Juers v Barry, 114 AD2d 1009, 1010[1985]; Deacon's Bench v Hoffman, 88 AD2d 734 [1982]). In any event, as the motioncourt noted, plaintiffs' mistake of not filing the consent to change form is, under thecircumstances, a mere formality and Quincy has shown no prejudice by plaintiffs'noncompliance with CPLR 321 (b).[*2]
The motion court also properly denied that portion ofQuincy's motion to dismiss asserting that plaintiffs' amended complaint is invalid becauseplaintiffs did not obtain leave of the court or act on an effective stipulation as required by CPLR1003 and CPLR 3025 (b). Because plaintiffs served the amended complaint naming Quincy as adefendant after the service of the third-party complaint upon Quincy and before Quincy served athird-party answer, plaintiffs properly commenced a direct action against Quincy pursuant toCPLR 1009 (see Guarino v 233 E. 69thSt. Owners Corp., 14 AD3d 652 [2005]).
The motion court properly denied that portion of Quincy's/Coltec's motion to dismiss thesecond third-party complaint for lack of jurisdiction. Where, as here, a foreign corporationauthorized to do business in the state is mistakenly served under the more stringent procedures ofBusiness Corporation Law § 307, rather than under Business Corporation Law §306, personal delivery of process to the Secretary of State in Albany is sufficient for thecompletion of service and the irregularities caused by proceeding under the wrong section shouldbe disregarded (see Marine Midland Realty Credit Corp. v Welbilt Corp., 145 AD2d 84[1989]). Scales's failure to name Coltec in the second third-party summons and complaint is amere irregularity which in no way affects jurisdiction (see generally Household Fin. Realty Corp. of N.Y. v Emanuel, 2 AD3d192 [2003]; Marine Midland Realty Credit Corp., 145 AD2d at 89).
The motion court properly denied that portion of Quincy's/Coltec's motions to dismiss thesecond and third third-party complaints on the ground of untimeliness and undue delay.Although the second and third third-party complaints were filed past the deadline set forth in aso-ordered stipulation, and more than 2½ years after the commencement of the mainaction, Quincy/Coltec has failed to show that it was prejudiced by the delay. Since no note ofissue has been filed by plaintiffs nor any final discovery deadline mandated by the court, Quincywill be allowed to conduct discovery in this matter. Furthermore, Scales has provided areasonable excuse for the delay, namely that it needed to conduct discovery in order to determineif there was a good faith basis to implead Quincy (compare DeLeon v 650 W. 172nd St. Assoc., 44 AD3d 305, 306[2007], with Juncal v W 12/14 WallAcquisition Assoc., LLC, 15 AD3d 447, 449 [2005]).
The motion court properly denied that part of Coltec's motion to dismiss asserting that Scalesimproperly brought successive third-party actions. Neither CPLR 1007, nor CPLR 1011, forbidsa defendant from bringing successive third-party actions. In any event, as the motion court held,a motion can be made or the parties can agree to consolidate the third-party actions.
The motion court properly granted plaintiffs' cross motion for leave to file a secondsupplemental summons and amended complaint. Because the second third-party complaint wasproperly filed and served, plaintiffs' claims against Quincy and Coltec, asserted in the amendedcomplaint, relate back, for statute of limitation purposes, to the date of service of the secondthird-party complaint (see CPLR 203 [f]; Duffy v Horton Mem. Hosp., 66 NY2d473 [1985]; Peretich v City of New York, 263 AD2d 410, 411 [1999]). Although Scalesattempted to serve the second third-party complaint upon Quincy pursuant to BusinessCorporation Law § 307, the motion court did not abuse its discretion in determining thatservice was properly effectuated pursuant to Business Corporation Law § 306, [*3]and thus that service was complete when the Secretary of State wasserved on April 4, 2008, within the applicable three-year statute of limitations (seeCPLR 214 [5]). Concur—Friedman, J.P., Catterson, Acosta, DeGrasse and Abdus-Salaam,JJ. [Prior Case History: 2009 NY Slip Op 30710(U).]