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Leahey v. SP Center, LLC

United States District Court, S.D. New York

November 3, 2017

WILLIAM LEAHEY and LAUREN LEAHEY, Plaintiffs,
v.
SP CENTER, LLC, MALL 1-BAY PLAZA, LLC, a/k/a BAY PLAZA, LLC a/k/a BAY PLAZA MALL, LLC, AURORA CONTRACTORS, INC. and MACY'S, INC., Defendants. SP CENTER, LLC, MALL 1-BAY PLAZA, LLC, a/k/a BAY PLAZA, LLC, a/k/a BAY PLAZA MALL, LLC Third-Party Plaintiffs,
v.
GLOBAL PRECAST INC., UNISTRESS CORP. and PRECAST SERVICES, INC., Third-Party Defendants. AURORA CONTRACTORS, INC., Fourth-Party Plaintiffs,
v.
UNISTRESS CORP. and PRECAST SERVICES, INC., Fourth-Party Defendants. PRECAST SERVICES, INC. Fifth-Party Plaintiffs,
v.
RUTTURA & SONS CONSTRUCTION CO., INC., and CONSTRUCTION & REALTY SAFETY GROUP d/b/a CR SAFETY GROUP, Fifth-Party Defendants. MALL 1-BAY PLAZA, LLC a/k/a BAY PLAZA, LLC a/k/a BAY PLAZA MALL, LLC and AURORA CONTRACTORS, INC., Sixth-Party Plaintiffs,
v.
CONSTRUCTION & REALTY SAFETY GROUP, INC., RUTTURA & SONS CO., INC., RUTTURA & SONS CONSTRUCTION CO., INC., and CONSTRUCTION & REALTY SAFETY GROUP, INC., Sixth- Party Defendants.

          NAPOLI SHKOLNIK, PPLC Joseph P. Napoli, Esq. Attorneys for Plaintiffs

          LAW OFFICE OF JAMES J. TOOMEY John C. Spataro, Esq. Attorneys Third-Party Plaintiffs/Fourth-Party Plaintiffs/Sixth-Party Plaintiffs

          LEWIS JOHS AVALLONES AVILES, LLP David L. Metzger, Esq. Attorneys for Third/Fourth-Party Defendant/Fifth-Party Plaintiff

          OPINION

          ROBERT W. SWEET, U.S.D.J.

         Third- and fourth-party Defendant/fifth-party Plaintiff Precast Services, Inc. ("Precast") and sixth-party Plaintiffs Mall 1-Bay Plaza ("Bay Plaza") and Aurora Contractors, Inc. ("Aurora") (collectively, the "Defendants") have moved pursuant to Fed.R.Civ.P. Rule 56 for summary judgment to dismiss the Complaint (the "Complaint") of the Plaintiffs William Leahey ("Mr. Leahey") and Lauren Leahey ("Mrs. Leahey") (collectively, the "Plaintiffs"). Based on the facts and conclusions set forth below, the motions of the Defendants are denied.

         I. Prior Proceedings

         The Plaintiffs commenced this action by filing the Complaint on September 12, 2014 alleging claims of negligence, loss of services, and violations of New York State Labor Laws §§ 200, 240, and 241(b). Answers were filed by Bay Plaza on October 16, 2014, and by Aurora on January 2, 2015.

         An amended third-party complaint was filed by SP Center, LLC and Bay Plaza against third-party defendant Precast on November 14, 2014, to which Precast filed an answer on December 22, 2014.

         Aurora filed a fourth-party complaint against Precast on January 16, 2015, to which Precast answered on February 11, 2015. The actions against defendants SP Center, Macy's, and Unistress Corp. were then discontinued on July 13, 2015, July 15, 2015, and August 22, 2015, respectively.

         A fifth-party complaint was filed by Precast against Ruttura & Sons Construction Co, Inc. ("Ruttura Construction") and Construction & Realty Safety Group ("Construction & Realty") on November 24, 2015, and answers were interposed by both parties.

         A sixth-party complaint was filed by Bay Plaza and Aurora against Ruttura Construction and Construction & Realty on November 25, 2015, and answers were interposed by both parties.

         The instant motions for summary judgment were filed by Precast and Aurora on July 10, 2017. Oral argument was heard on September 20, 2017. The motions were adjourned until October 18, 2017, pending the Honorable Andrew B. Altenburg, Jr. of the U.S. Bankruptcy Court for the District of New Jersey's (the "Bankruptcy Court") reconsideration of whether to add this action as an asset, at which point the motions were heard and the case was marked fully submitted.

         II. The Facts

         The facts have been set forth in the Defendants' and the Plaintiffs' Rule 56.1 Statements, and are ...


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