MOISES ORTIZ v. Saab Management, Inc., Defendant. (2023)

Order, Supreme Court, New York County (Gerald Lebovits, J.), entered on or about July 28, 2022, which granted third third-party defendant RA Consultants, LLC's (architect) motion to dismiss the third third-party complaint seeking common-law indemnification and contribution as precluded by a prior ruling on the same issue, unanimously reversed, on the law, without costs, the motion denied, and the matter remanded for further proceedings.

Order, same court and Justice, entered September 29, 2022, which granted fourth third-party defendant RA Consultants, LLC's motion to dismiss the fourth third-party complaint upon finding the claims for common-law indemnification and contribution to be precluded by an order, same court and Justice, dated November 2, 2020, and the newly asserted causes of action for malpractice and breach of contract to be time-barred, unanimously modified, on the law, to deny dismissal as to the common-law indemnity and contribution claims and otherwise affirmed, without costs.

The motion court improvidently dismissed the common-law indemnity and contribution claims in the third third-party action and fourth third-party action as precluded by the same court's prior order granting dismissal of such claims against the architect for failure to state such causes of action.  Contrary to the architect's argument, the doctrine of collateral estoppel does not apply as the causes of action were dismissed prior to the close of the proponent's evidence on such claims, and as such, the merits of the claims were not reached (see CPLR 5013;  Maitland v. Trojan Elec. & Mach. Co., 65 N.Y.2d 614, 615, 491 N.Y.S.2d 147, 480 N.E.2d 736 [1985];  Clearwater Realty Co. v. Hernandez, 256 A.D.2d 100, 101, 681 N.Y.S.2d 270 [1st Dept. 1998]).  The doctrine of law of the case, which bars reconsideration of an issue that has been previously decided between the parties does not apply as to the third third-party plaintiff excavation subcontractor (RNC), as the architect's motion to dismiss the second third-party claims of the owner (FDB) and general contractor (Pav–Lak) did not involve RNC as a party affected by such relief, nor did it involve the same proof as RNC proffers in support of its allegations in the third third-party action (see generally Ruiz v. Anderson, 96 A.D.3d 691, 692, 948 N.Y.S.2d 44 [1st Dept. 2012];  Colpitts v. Cascade Val. Land Corp., 145 A.D.2d 750, 751, 535 N.Y.S.2d 483 [3d Dept. 1988]).  The law of the case doctrine also does not bar the claims asserted by FDB/Pav–Lak in the fourth third-party action since even though they were parties involved in the second third-party complaint, an additional expert's affidavit probative of the claims asserted was submitted which supplemented the allegations in the fourth third-party action.

On the separate motions to dismiss the third third-party claims and fourth third-party claims seeking common-law indemnification and contribution, pursuant to CPLR 3211(a)(1) and (7), a court “must give the pleadings a liberal construction, accept the allegations as true and accord the plaintiffs every possible favorable inference” (Chanko v. American Broadcasting Cos. Inc., 27 N.Y.3d 46, 52, 29 N.Y.S.3d 879, 49 N.E.3d 1171 [2016]).  A court may consider affidavits submitted by a party opposing a motion to dismiss pursuant to CPLR 3211 to remedy any defects in a complaint (see Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635–636, 389 N.Y.S.2d 314, 357 N.E.2d 970 [1976]).  The allegations in the third third-party complaint and fourth third-party complaint seeking common-law indemnification and contribution, as supplemented in this case by expert affidavits that supported the claims raised, supporting inferences of active negligence on the part of the architect in, inter alia, designing the underpinning of the adjacent building, failing to properly inspect and monitor the underpinning's performance, and failing to make appropriate changes to the underpinning constructed by RNC as the circumstances warranted, all of which allegedly contributed to the falling of a cement object from a neighboring building which struck plaintiff, injuring him (see Shelton v. Chelsea, L.P., 214 A.D.3d 490, 183 N.Y.S.3d 739 [1st Dept. 2023];  Demetro v. Dormitory Auth. of the State of N.Y., 170 A.D.3d 437, 96 N.Y.S.3d 30 [1st Dept. 2019]).  There can be more than one proximate cause of an injury (Kull v. Ahern Rentals, Inc., 219 A.D.3d 1224, 195 N.Y.S.3d 470 [1st Dept. 2023]).

FDB's newly asserted claim alleging RA's malpractice and breach of contract was properly dismissed as time-barred by the applicable three-year statute of limitations (see CPLR 214[6]).  The fourth third-party action was commenced in March 2022 and the damages sought herein for personal injury accrued on February 27, 2017, the date of the accident (see Ackerman v. Price Waterhouse, 84 N.Y.2d 535, 541, 620 N.Y.S.2d 318, 644 N.E.2d 1009 [1994]).