SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK COUNTY OF NASSAU - PART 15 Present: HON. WilLIAM R. LaMARCA Justice SilVANA CONSTANTINIDES and leonidas CONSTANTINIDES, Motion Sequence #4 Submitted October 16, 2009 Plaintiffs, -against- INDEX NO: 17818/08 ROBERT C. MITCHEll, lowe' S HOME CENTERS, INC." ROBINSON, MUllER & SCHIAVONE ENGINEERS P.C., CLIVE SAMUELS & ASSOCIATES CONSULTING ENGINEERS, E.W. HOWELL CO., INC. and ALL COUNTY PAVING CORPORATION, Defendants. lowe' S HOME CENTERS, INC., Third-Part Plaintiff, -against- ROBERT C. MITCHEll, Third-Part Defendant. The following papers were read on this motion: Notice of Motion......... Memorandum of law in Support...
Unopposed motion by defendant, CLIVE SAMUELS ASSOCIATES CONSULTING ENGINEERS (hereinafter referred to as " CSA"), for an order, pursuant to CPLR 3212, granting it summary judgment dismissing the complaint and all cross-claims against it is granted. An Affidavit of Service reflects that all interested parties were duly served with the instant motion, on September 1, 2009, but no papers are submitted in opposition to the motion, and the relief requested is appropriate. By affidavit, Alan Abramson, the President of CSA, states that his company, which focuses on the engineering of heating, ventilation and air conditioning (HVAC), as well as electrical, fire protection and plumbing systems for buildings of various sizes, was not responsible for and did not furnish any services relating to the design or construction of the Parking Lot at the LOWE' S HOME CENTER, located at 700 Dibble Drive, Garden City, New York, where the car accident occurred for which plaintiffs, SILVANA CONSTANTINIDES and LEONIDAS CONSTANTINIDES, seek to recover for personal injuries. The ROSENTHAL DESIGN GROUP, a prior defendant who was granted dismissal of the action as against them, by Short Form Order dated September 29 2009 contracted with CSA to provide engineering consulting services for the HVAC, electrical and plumbing systems at the building within the ROSENTHAL DESIGN GROUP's scope of services for the LOWE' S HOME IMPROVEMENT warehouse and garden center, but CSA was not responsible for, and did not provide, engineering services for the design or construction of the Parking Lot. It appears that CSA completed its services on May 16 2002, four (4) years before the subject accident on October 29 2006, and asserts that it never exercised supervision or control over the traffic in the Parking Lot. It is urged that there is no basis for imposing liability on CSA.
The summary judgment standards are well settled. The movant must establish the cause of action or defense by submitting evidentiary proof in admissible form "sufficiently to warrant the court as a matter of law in directing judgment" (Zuckerman v City of New York 49 NY2d 557, 427 NYS2d 595, 404 NE2d 718(C.A. 1980) (citation omitted)). Failure to do so "requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr. 64 NY2d 851 853, 487 NYS2d 316, 476 NE2d 642 (C.A.1985)). When such a showing has been made by the movant, then to defeat summary judgment "the opposing party must show facts sufficient to require a trial of any issue offact (CPLR ~3212, subd (b))" (Zuckerman v City of New York, supra at 562). On a summary judgment motion, the evidence must be viewed in a light most favorable to the nonmoving party (Branham v Loews Orpheum Cinemas, Inc. 8 NY3d 931, 834 NYS2d 503, 866 NE2d 448 (C. A.2007)). After a careful reading of the submissions herein, and there being no opposition, it is the judgment of the Court that CSA is entitled to the requested relief. The Court is satisfied that CSA had no involvement with the parking lot in which plaintiff' s accident occurred and no issues of fact have been raised to require a trial as to CSA. It is therefore ORDERED that CSA' s motion for summary judgment dismissing the complaint and all cross-claims against it is granted; and it is further ORDERED that the caption shall henceforth read as follows:
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU SILVANA CONSTANTINIDES and LEONIDAS CONSTANTINIDES, Plaintiffs, -against- INDEX NO: 17818/08 ROBERT C. MITCHELL, LOWE' S HOME CENTERS, INC., ROBINSON, MULLER & SCHIAVONE ENGINEERS P., E.W. HOWELL CO., INC., and ALL PAVING CORPORATION, Defendants. LOWE' S HOME CENTERS, INC. Third-Part Plaintiff, -against- ROBERT C. MITCHELL, Third-Part Defendant. and it is further ORDERED, all parties are to appear for a previously scheduled Certification Conference on December 21 2009 at 9:30 AM. There wil be no adjournments, except by formal application pursuant to 22 NYCRR 9125. _." :1,
,. All further requested relief not specifically granted is denied. This constitutes the decision and order of the Court. Dated: December 16, 2009 WILLIAM R. LaMARCA, J. TO: Barry E. Schulman, Esq. ENTE IiD Attorney for Plaintiffs 16 Court Street, Suite 2901 Brooklyn, NY 11241 DEC 23 2009 SAU \'VUI j Y COUNTY CLERK' S OFFICE Kreig Associates, PC Attorneys for Defendants Robinson, Muller & Schiavone Engineers, PC 5 Heather Court Dix Hills, NY 11746 Kral, Clerkin, Redmond, Perry & Girvan, LLP Attorneys for Defendant Lowe s Home Centers, Inc. 496 Smithtown By-Pass, Suite 204 Smithtown, NY 11787 Lewis, Johs, Avallone, Aviles, LLP Attorneys for Defendant Robert C. Mitchell 425 Broad Hollow Road Melville, NY 11747 Polin, Prisco & Villafane, Esq. Attorneys for Defendant E.W. Howell Co., Inc. One School Street, Suite 206 Glen Cove, NY 11542 Arent Fox, LLP Attorneys for Defendant Clive Samuels & Associates Consulting Engineers 1675 Broadway New York, NY 10019 Ahmuty, Demers & McManus, Esqs. Attorneys for Defendant All County Paving Corporation 200 I. U. Wilets Road Albertson, NY 11507 constanlinides-mitchell #4/sumjudg