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Kenny v. Turner Construction Co.

Supreme Court of New York, First Department

November 16, 2017

Patricia Kenny, Plaintiff-Respondent,
v.
Turner Construction Company, et al., Defendants, The Corporate Source, Inc. Defendant-Appellant. Patricia Kenny, Plaintiff-Appellant,
v.
Turner Construction Company, et al., Defendants-Respondents, The Corporate Source, Inc., et al., Defendants. [And Third and Fourth-Party Actions]

          Hardin, Kundla, McKeon & Poletto, P.A., New York (Ian M. Friend of counsel), for the Corporate Source, Inc., appellant.

          The Altman Law Firm, PLLC, New York (Michael T. Altman of counsel), for Patricia Kenny, appellant.

          Roth & Roth, LLP, New York (David Roth of counsel), for respondent/appellant.

          Malapero & Prisco LLP, New York (Paul Carney of counsel), for Turner Construction Company, respondent.

          Zetlin & De Chiara LLP, New York (Bill P. Chimos of counsel), for Richards Meier & Partners, respondent.

          Quinn McCabe LLP, New York (Jonathan H. Krukas of counsel), for Michael Harris Spector, AIA, P.C., the Spector Group, Spector Group Home, LLC and Spector Associates, LLP, respondents.

          Byrne & O'Neill, LLP, New York (Dominic Donato of counsel), for Ysrael A. Seinuk, P.C, respondent.

          Westermann Sheehy Keenan Samaan & Aydelott, LLP, Uniondale (Joanne Emily Bell of counsel), for Kings County Waterproofing Corp., respondent.

          Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale (Michael T. Reagan of counsel), for Coken Company, Inc., respondent.

          Renwick, J.P., Manzanet-Daniels, Andrias, Kern, Oing, JJ.

         Order, Supreme Court, New York County (Carol R. Edmead, J.), entered Match 16, 2015, which, to the extent appealed from, denied defendant Corporate Source, Inc.'s motion for summary judgment dismissing the complaint and all cross claims against it, unanimously affirmed, without costs. Order, same court and Justice, entered on or about October 14, 2015, which, upon reargument, adhered to the determination on the original motion, granting defendants Turner Construction Company's, Kings County Waterproofing Inc.'s, Coken Company, Inc.'s, Richard Meier & Partners, Michael Harris Spector, AIA, P.C. a/k/a and d/b/a the Spector Group and Spector Group Home, LLC and Spector Associates, LLP's, and Ysreal A. Seinuk, P.C.'s motions for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

         The court providently exercised its discretion in denying as untimely Corporate Source's motion for summary judgment dismissing the complaint as against it (see Brill v City of New York, 2 N.Y.3d 648');">2 N.Y.3d 648 [2004]; CPLR 3212[a]). Counsel's excuse that the attorney handling the matter had been on trial for two weeks does not constitute good cause, i.e., "a satisfactory explanation for the untimeliness" (id. at 652; see Maschi v City of New York, 110 A.D.3d 460');">110 A.D.3d 460 [1st Dept 2013]). Nor does the fact that the case is complicated and voluminous constitute good cause. We note that 14 other parties to the case made timely motions.

         Plaintiff was injured, in 2005, when she fell on a patch of ice in the parking garage of a courthouse where she worked. The construction of the courthouse, including the garage, had been completed in 2000. Plaintiff's theory of liability is that defendants owe her a duty of care because they negligently caused the conditions, thereby launching a force of harm, that injured her (see Espinal v Melville Snow Contrs., 98 N.Y.2d 136');">98 N.Y.2d 136 [2002]).

         Turner Construction, the general contractor, demonstrated that it owes plaintiff no duty of care since it did not perform the alleged defective work, and its contractual obligation to the owner to supervise the project did not create a duty of care to plaintiff (see Timmins v Tishman Constr. Corp., 9 A.D.3d 62, 68 [1st Dept 2004], lv ...


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