Roberts v Simon Prop. Group, Inc. 213 NY Slip Op 33158(U) December 6, 213 Sup Ct, Ne York County Docket Number: 11185/29 Judge: Debra A. James Cases posted ith a "3" idtifier, i.e., 213 NY Slip Op 31(U), are republished from various state and local governmt ebsites. These include the Ne York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication.
[* 1] ANNED ON 12/17/213 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: SEAN ROBERTS, DEBRA A. JAMES Justice Plaintiff, SIMON PROPERTY GROUP INC., J. CREW GROUP, INC. and SHAMROCK DEVELOPMENT, INC., and THE RETAIL PROPERTY TRUST, PART 59 Index No.: 11185/29 Motion Date: 5/17/213 Motion Seq. No.: 3 Defdants. THE RETAIL PROPERTY TRUST, z (.) <( _ I- ::: C!> :;~ 3: 1- c...j...j o:::o ::: LL LL J: Wl- ::: ::: >O...J LL...J :::> LL 1- (.) c. ::: ~ <( ~ z j::: ::?: Third Party Plaintiff, MADEWELL INC. and BLACK HAWK, SHAMROCK DEVELOPMENT, INC., Third Party Defd~nts~ INC., Second Third Party Plaintiff, TP Index No. 5918/29 MADEWELL, INC. I BLACK HAWK, INC. and INDIAN 2 TP Index No. 591114/29 HARBOR INSURANCE, Second Third Party Defdants. The folloing papers, numbered 1 to 5 ere read on this motion to reargue. Notice of Motion/Order to Sho Cause -Affidavits -Exhibits Ansering Affidavits - Exhibits Replying Affidavits - Exhibits No (s). No(s). No(s). 1, 2 3 f 4 Cross-Motion: D Yes 181 No Upon the foregoing papers, it is ordered that this motion of plaintiff to reargue this Court's 5 ' 1. CHECK ONE: CASE DISPOSED 181 NON-FINAL DISPOSITION 2. CHECK AS APPROPRIATE: MOTION IS: 181 GRANTED DENIED GRANTED IN PART OTHER 3. CHECK IF APPROPRIATE: SETTLE ORDER SUBMIT ORDER D DO NOT POST D FIDUCIARY APPOINTMENT D REFERENCE
[* 2] order dated December 2, 212 ("original order") is granted. Upon reargumt, the Court vacates its original order, dies defdants' motion and cross motion for summary judgmt dismissing the Labor La 241(6) claims, reinstates the complaint as to such claims, and dies the cross motion of defdant J. Cre Group Inc, first and second third party defdants Madeell Inc and Black Hak, Inc and defdant/first third party plaintiff The Retail Property Trust for summary judgmt on their cross claims-for common la and contractual indemnification against defdant Shamrock Developmt Inc and third party defdant Madeell, Inc are died on the merits. As to plaintiff's cross motion for partial summary judgmt of liability, there are issues of fact as to the circumstances of the offding all demolition, and therefore the Court likeise otherise adheres to its origina~ decision. Although plaintiff served its notice of motion to days late, i.e. on January 16, 213, and its motion for reargumt is therefore technically untimely under CPLR 2221(d), the court, in its discretion, reconsiders its prior ruling. Garcia v The Jesuits of Fordham, 6 AD3d 163, 165 (1st Dept 24). Upon reconsideration, the court finds that it overlooked precedt that establishes the principle that plaintiff's failure to idtify the provision of the Industrial Code in the complaint or bill of particulars is not fatal to such claim (Ortega v 2
[* 3] Everest Realty LLC, 84 AD3d 542 [1st Dept 213]), here the belated allegations that the defdants violated Code provisions involve no ne factual allegations, raise no ne theories of liability, and caused no prejudice to the defdants. See Klimoicz v Poell Cove Associates, LLC, ~ AD2d ~' 213 WL 59727551 (2d Dept 213). The sole reason for this Court's summary dismissal of plaintiff's 241(6) Labor La claim as because his attorney cited a provision of an Industrial Code section, specifically 23-3.3 (b) (3), hich, except for the caption of such section, is idtical to the provisions of 23-3.4 (b), the section that is appartly applicable. It seems incongruous ith the ruling in Ortega, supra that states that there is no requiremt that plaintif ev cite a specific Industrial Code section in its complaint or bills of particulars, that plaintiff should be non suited for citing the precise language of the applicable Industrial Code section, but the rong section, so the court reinstates plaintiff 1 s Labor La 241(6) claims. Hoever, for the reasons stated in its original decision, the court adheres the grant of defdants' motion for summary judgmt dismissing the Labor La 24(1) claims. It also does not disturb its dial of plaintiff's cross motion for partial summary judgmt of liability pursuant to Labor La 241(6), since plaintiff has not established prima facie that defdants violated Industrial Code 23-3.4. Defdant Shamrock 3
[* 4] Developmt, Inc. and third party defdant Madeell, Inc are also correct that co-defdants motion for summary judgmt on their indemnification cross claims are premature as there has be no finding of negligce. Gomez v Sharon Baptist Board of Directors, 55 AD3d 446 (1st Dept 28). It is, therefore, ORDERED that motion to reargue this Court's order dated December 2, 212 of the plaintiff is granted and upon reargumt the court vacates such decision; and it is further ORDERED that upon vacatur this Court dies dismissal of the Labor La Labor La 241(6) claim, reinstates the complaint to that extt and dies the cross motion for summary judgmt dismissing the cross claims against the first and second third party defdants Shamrock Developmt, Inc and Blackell, Inc interposed by defd~nt J. Cre, Group, Inc, first third party defdants Madeell, Inc and The Retail Property Trust; and it is further ORDERED that the court otherise adheres to its original order dated December 2, 212, and it is further ORDERED that the action is restored to the trial caldar i and the parties shall appear in conferce on March 4, 214, 2:3 PM. Dated: December 6, 213-4- DEC 11 213 E~,~~iYORK Dre-+ial COUNTYC~~~.t>)'...J 4= DEBRA A. JAMES. J.s.c. I I