.............. --------- - --- --- --- - - ---- --- - -- ----- --- --- -- - - -- -- ----- - SHORT FORM ORDER SUPREME COURT, STATE OF NEW YORK COUNTY OF NASSAU JOSEPH CHINEA, Plaintiff Trial/AS Part Index No. 02-15815 Sequence No. 03, 05, 06 Submit Date 1/31/07 against NASSAU CABLE BUSINESS TRUST, CABLEVISION, CABLE VISION SYSTEMS CORPORATION, CABLEVISION SYSTEM LONG ISLAND CORPORATION, 1111 STEWART CORPORATION AND MCCANN, INC., Defendants The following papers read on this motion: Notice of Motion/Order to Show Cause... X Cross- Motio os...... Answ ering Affidavits......... X Replying Affidavits..... PRESENT: HON. JOSEPH P. SPINOLA The motion by defendant McCan made pursuant to CPLR 93212 and which seeks order granting summary judgment dismissing all claims and cross-claims asserted against him is hereby GRANTED for the reasons set forth hereinafter. The plaintiff s motion interposed by way of order to show cause pursuant to CPLR 9203(f), 93012 and 93025 for leave to amend the complaint and to add Rainbow Media Holdings, Inc. and Rainbow Media Holdings, LLC., as additional part defendants hereby DENIED for the reasons set forth hereinafter. The motion by defendants CSC Holdings, Inc. f/ka Cablevision Systems Corporation Cablevision Systems Long Island Corporation and 1111 Stewart Corporation made pursuant to CPLR 93212 and which seeks an order granting summary judgment and dismissing the complaint and all cross-claims asserted is hereby GRATED for the
reasons set forth hereinafter. Factual Posture: On September 11 2000, the plaintiff, Joseph Chinea, was employed by Augumentation Inc. and was engaged in the installation of certain audiovisual equipment. Durng the course thereof, Mr. Chine a sustained injur having fallen through unsecured subflooring and was caused to fall to the ground below. The subflooring through which the plaintiff claims to have fallen was allegedly installed by co-defendant McGann, Inc who was retained by Cablevision in 1997 as a general contract to perform certain renovations at 1111 Stewart Avenue(see Para Aff. Exh. C). Initially, it was the plaintiffs assertion that the subject accident occured at 1111 Stewart Avenue (see Fitzpatrck Aff. Exh. C). However, the plaintiff now asserts that the correct site of the accident was rather 620 Hicksvile Road (see Chine a Affidavit at 2). On September 27 2004 the underlying action, sounding in negligence, was commenced to recover damages for the injures sustained by the plaintiff. Motion by Defendant McGann In support of the within application, counsel for the defendant argues that defendant McGann is not responsible for the plaintiff s fall inasmuch as the work in which defendant McGann was engaged was completed a full nine months prior to the plaintiff s accident. Counsel provides the affidavit of Mr. Vincent Aliperti, Vice President of Mc Gan, Inc. Mr. Aliperti who, with respect to the work completed, avers that " attest that McGann completed this project in 1999 and did not perform any other work at the site after 1999. (see Aliperti Aff. at 3), Mr. Aliperti further avers that "McGan had no equipment, workers or materials at the site at any time 1999, including the date of Plaintiff s accident. (ld. In response to the motion interposed by defendant McGann, both the plaintiff, as well as the remaining co-defendants have each put forth opposition thereto. Defendant's counsel attacks the substance of the Aliperti Affidavit and argues that McGan has failed to set forth any evidentiary proof tending to establish that its acts or omissions did not create the alleged defective condition relative to the sub flooring through which the plaintiff fell. The plaintiff opposition is predicated upon the argument that there exists questions of fact with respect to the quality of the work performed by McGann or any subcontractors which may have been employed thereby. In addition to opposing the motion by McGann, the plaintiff has moved by way or Order to Show Cause to amend the within complaint and add additional named defendants to the action. Within said application, the plaintiff states inter alia that
Since the occasion of my Januar 5 2004 examination before tral... I have come to realize that the address at which I had been working was actually located at 620 Hicksvile Road and not 1111 Stewart Avenue. (see Chinea Affidavit at ~2). When a part moves for summary judgment, it is well established that the movant must make a prima facie showing of entitlement to judgment as a matter of law but proffering competent evidence to demonstrate the absence of any material issues of fact (Winegrad New York Univ. Med. Center 64 NY2d 851). Upon such a showing, the burden thereafter shifts to the nonmoving par to come forth with sufficient admissible evidence to establish the existence of material issues of fact, the existence of which necessitates a tral of the action (Alavrez Prospect Hospital 68 NY2d 320). In the matter sub judice defendant McGann has demonstrated the work it was contractually obligated to complete was done at the 1111 Stewart Avenue location and not at 620 Hicksvile Road (see Aliperti Affidavit at ~3). In opposition, the plaintiff has not proffered any evidence that McGann has performed any work at 620 Hicksvile Road, the alleged site of the plaintiff s accident. Upon review of the various documents annexed to the plaintiffs motion papers including the proposed amended complaint, as well as a permit issued by the Town on Oyster Bay, nowhere therein is there any indication that McGann was retained to complete any work at this location or was in any respect involved therewith. Based upon the foregoing, the motion by defendant McGann made pursuant to CPLR 93212 and which seeks and order granting summary judgment dismissing the plaintiffs complaint and any cross-claims asserted is hereby GRANTED. Motion by CSC Holdin2s/Motion by plaintiff Chinea Counsel for the moving defendants argue that the plaintiff has improperly identified the location of the subject accident and that the correct site is rather 620. As stated hereinabove, the plaintiff has conceded this point (see Chine a Affidavit at ~2). With respect to the site located at 620 Hicksvile Road, the defendant CSC asserts that the subject building was owned by an entity known as Stee1con, LLC and was leased by Rainbow Media Holdings/ Rainbow Media Holdings, LLC. fhereinafter Rainbow J, a wholly owned subsidiary of defendant CSC Holdings. Counsel for the moving defendants in general argue that neither CSC Holdings, Cablevision Long Island Systems nor 1111 Stewart Avenue was an owner, tenant, general contractor or agent of the owner of the premises located at 620 Hicksvile Road in Bethpage, New York. As to co-defendant CSC Holdings in paricular, counsel argue that while Rainbow was a wholly owned subsidiary of CSC, that CSC did not exercise any control over the day to day operations
of Rainbow and as such is not liable to the plaintiff for the injures sustained. In opposition to the application interposed by the defendants and in support of the order to show cause the plaintiff contends that defendant CSC Holdings and Rainbow are parties united in interest. Counsel urges that as a result of the relationship between CSC and Rainbow, the allegations which the plaintiff now seeks to assert against Rainbow relate back to the date upon which the action against CSC holdings was commenced. As support for these contentions, the plaintiff provides the affidavit of Mr. Protogerakis, a private investigator employed by the plaintiff who states inter alia that he visited the location of 620 Hicksvile Road and " observed a ' Cablevision' flag flying outside the premises (Protogerakis Aff. ~3)... " Mr. Protogerakis additionally states that I observed a steady stream of people both going into and coming out of the building. All of these individuals were observed to be wearing identification tags around their necks which bore ' Cablevision ' name and logo (ld. at ~3). The plaintiff additionally posits, and counsel for CSC Holdings concedes, that the is some commonality with regard to the directors of CSC and Rainbow. As adduced from the record, three of the directors of Rainbow were also directors of defendant CSC Holdings and three of eight officers of Rainbow were also officers of CSC (see Fitzpatrck Aff. in Opposition). Law: The doctrine commonly referred to as "relation back" is found in CPLR 9203(f) and the provisions therein embodied which provide the following: Claim in amended pleading. A claim asserted in an amended pleading is deemed to have been interposed as the time the claims in the original pleadings were interposed, unless the original pleading does not give notice of the transactions occurences, or series of transactions or occurences, to be proved pursuant to the amended pleading. To establish that the doctrne of relation-back has applicability, it is incumbent upon the plaintiff to demonstrate that the par sought to be added to the action is united in interest with defendants previously named (Gatto Smith Eisenberg, 280 AD2d 640; Mondello New York Blood Ctr. 80 NY2d 219). Parties are deemed to be united in interest only under circumstance where the interest of the parties relative to "subject-matter is such that they stand or fall together and that judgment against one wil similarly affect the other... (Moller Taliuaga 255 AD2d 563 quoting Prudential Insurance Company Stone, 270 NY 154; see also Desiderio
\' Rubin 234 AD2d 581). Within the context of an action sounding in negligence defendants wil be deemed to be parties united in interest where one defendant is vicariously liable for the torts of the other (Santiamagro County of Orange 226 AD2d 359 (2d Dept 1996);Desiderio Rubin 234 AD2d 581 supra; Connell Hayden, 83 AD2d 30). With paricular relevance to the liabilty which exists between a parent company and a subsidiary thereof, it has been held that " A parent company is not liable for the torts of its subsidiary, even if it is a wholly owned subsidiar, unless it can be demonstrated that the parent' s control over the subsidiary disregards it s corporate independence. (Bily Consolidated Mach Tool Corp. 51 NY2d 152). While the record as thus far developed does demonstrate the existence of some commonality with regard to the Officers and Directors ofcsc Holdings and Rainbow, such fact standing alone is insufficient to find that these two entities are " united in interest" for puroses of the invocation of the "relation back" doctrne. In the instant matter, the proof proffered by the plaintiff, in the form of the affidavit of Mr. Protogerakis and the averments therein contained, are not sufficient to demonstrate that CSC Holdings exercised complete control over Rainbow such that the corporate identity and independence of Rainbow was totally disregarded Consolidated Mach Tool Corp. 51 NY2d 152 supra). (Bily Moreover, the plaintiff has not demonstrated what relationship exists between co-defendants Cablevision Systems Long Island Corporation and 1111 Stewart Corporation with respect to the location of 620 Hicksvile Road, Bethpage, New York. Based upon the foregoing, the motion interposed by the defendants CSC Holdings Inc. f/ka Cablevision Systems Corporation, Cablevision Systems Long Island Corporation and 1111 Stewar Corporation made pursuant to CPLR 93212 and which seeks an order granting summary judgment and dismissing the plaintiff s complaint and all cross-claims asserted is hereby GRANTED and the plaintiffs application interposed by way of order to show cause pursuant to CPLR 9203(f), 93012 and 93025 which seeks leave to amend the complaint and to add Rainbow Media Holdings, Inc. and Rainbow Media Holdings, LLC., as additional part defendants is hereby DENIED TWs constimtes ile decision and order 0:: co 'r-j ;t) Dated: May 15, 2007 oseph P. Spinola, Justice Supreme Cour, Nassau County..\ c:s c?oy. "U Off\C