Helen Griffin, Plaintiff, v. AVR ENTERPRISES LLC (2026)

The following papers, numbered 1- 3, were read and considered in connection with Second Third-Party Defendant, AVR ENTERPRISES' Notice of Motion (Motion Seq. No. 3) for an Order pursuant to Civil Practice Law and Rules §§ 1010 and 3211 dismissing the Verified Second Third- Party Complaint in its entirety and for such other and different relief as the Court deems just and proper; and is also read and considered in connection with Defendant/Second Third-Party Plaintiff CSC HOLDINGS, LLC i/s/h/a ALTICE USA, INC's., Notice of Motion (Motion Seq. No. 4) for an Order: (a) denying Second Third-Party Defendant AVR ENTERPRISES, LLC's motion to dismiss; (b) granting Defendant/Second Third-party Plaintiff CSC HOLDINGS, LLC i/s/h/a ALTICE USA, INC.'s cross-motion for leave to amend the second third-party complaint pursuant to Civil Practice Law and Rules § 3025(b) and/or for leave to replead the second third-party complaint pursuant to Civil Practice Law and Rules § 3211, if AVR's motion to dismiss is granted pursuant to Civil Practice Law and Rules § 3211(a)(7); (c) granting CSC's cross-motion to sever the second third-party complaint from the complaint and third-party complaint, pursuant to Civil Practice Law and Rules §§ 603 and 1010, if the court is inclined to grant AVR's motion to dismiss pursuant to Civil Practice Law and Rules §§ 1007 and/or 1010; and (d) granting such other and further relief as the court deems just and proper:

PAPERS NUMBERED

Notice of Motion (Motion Seq. No. 3)/Affirmation of German Rozencranc, Esq./Exhibits A-L/Memorandum of Law 1

Notice of Cross-Motion (Motion Seq. No. 4)/ Affirmation of Gretchen A. Becht, Esq./Memorandum of Law in Opposition to Motion Seq. No. 3 and in Support of Motion Seq. No. 4/Exhibits 1-14 2

Affirmation of German Rozencranc, Esq. in further support of Second Third-Party Defendant's Motion to Dismiss Plaintiff's Complaint (Motion Seq. No. 3) and in Opposition to Second Third-Party Plaintiff's Cross-Motion for Leave to Amend/Replead and/or Sever (Motion Seq. No. 4) 3

Upon the foregoing papers, the Court now rules as follows:

PROCEDURAL HISTORY

Plaintiff commenced the instant action on March 2, 2023, by the filing of a Summons and Verified Complaint seeking damages related to a trip and fall on July 15, 2022, while Plaintiff was walking on a walkway leading to Building No. 12 at Mountainview East II Condominiums. See NYSCEF Doc. No. 1. Defendant BOARD OF MANAGERS OF MOUNTAINVIEW EAST II CONDOMINIUM (hereinafter MOUNTAINVIEW) acknowledged receipt of the Summons and Verified Complaint on March 22, 2023, by service on Robert S. Knoebel, Jr., PLLC, an attorney for Defendant MOUNTAINVIEW. See NYSCEF Doc. No. 2. Defendant ALTIC USA, INC. (hereinafter ALTICE) was served on March 24, 2023, pursuant to Business Corporation Law § 306 by service on the Office of the Secretary of State of the State of New York. See NYSCEF Doc. No. 3. Defendant PETER NASTASI  ¹ and PETER NASTASI MANAGEMENT, LLC (hereinafter NASTASI) was served pursuant to Civil Practice Law and Rules §§ 308(1) and 311- a[a] on March 30, 2023, at 263 Canterbury Drive, Ramsey, New Jersey. See NYSCEF Doc. Nos. 4 and 5.

On April 3, 2023, Defendant MOUNTAINVIEW joined issue with the filing of a Verified Answer raising thirty (3) Affirmative Defenses and four (4) Cross-Claims against co-Defendants NASTASI and ALTICE. See NYSCEF Doc. No. 6. On June 19, 2023, Defendant ALTICE joined issue with the filing of a Verified Answer raising ten (10) Affirmative Defenses and one (1) Cross- Claim against co-Defendants MOUNTAINVIEW and NASTASI. See NYSCEF Doc. No. 13. On July 17, 2023, Defendants MOUNTAINVIEW and NASTASI filed a joint Verified Amended Answer raising fourteen (14) Affirmative Defenses and four (4) Cross-Claims against Defendant ALTICE. See NYSCEF Doc. No. 16.

On July 17, 2024, Defendants MOUNTAINVIEW and NASTASI filed a Third-Party Action pursuant to Civil Practice Law and Rules § 1007 against Third-Party Defendant WILLIAM DEE INSTALLATIONS, INC. (hereinafter WILLIAM DEE). See NYSCEF Doc. Nos. 23-26. On July 19, 2023, Defendant WILLIAM DEE was served pursuant to Business Corporation Law § 306 by service on the Secretary of State of the State of New York. See NYSCEF Doc. No. 28. Also on July 19, 2023, William Dee, authorized agent for Defendant WILLIAM DEE, was served pursuant to Civil Practice Law and Rules § 311 at 425 Western Highway, Suite #2, Tappan, New York. See NYSCEF Doc. No. 29. On September 14, 2023  ² the Third-Party Plaintiffs, MOUNTAINVIEW and NASTASI entered into a Stipulation extending Third-Party Defendant WILLIAM DEE's time to answer. See NYSCEF Doc. No. 31. A second Stipulation extending Third-Party Defendant WILLIAM DEE's time to answer was entered into on October 9, 2023. See NYSCEF Doc. No. 32.

On October 18, 2023, Third-Party Defendant WILLIAM DEE filed a pre-answer motion to dismiss the Third-Party Complaint (Motion Seq. No. 1). See NYSCEF Doc. No. 33-41. On July 11, 2024, by Decision and Order the Honorable Hal B. Greenwald, J.S.C. (retired) determined that Defendant NASTASI lacked standing to maintain an action against Third-Party Defendant WILLIAM DEE and dismissed that part of the Third-Party Complaint and retained the balance of the Third-Party claims alleged by Defendant/Third-Party Plaintiff MOUNTAINVIEW against WILLIAM DEE. See NYSCEF Doc. No. 63.

On August 7, 2024, Defendant/Third-Party Plaintiff NASTASI filed a motion for reargument (Motion Seq. No. 2) pursuant to Civil Practice Law and Rules § 2221(d) and vacatur of Judge Greenwald's July 11, 2024, Decision and Order. See NYSCEF Doc. No. 65. On January 8, 2025, Plaintiff's counsel submitted a letter to Judge Greenwald seeking a Preliminary Conference/discovery conference and noted that Defendant/Third-Party Plaintiff NATASI's motion for reargument (Motion Seq. No. 2) remained pending. See NYSCEF Doc. No. 77. In response, a Court Notice was issued on January 9, 2025, which directed the parties to appear on January 29, 2025, for an in-person conference. See NYSCEF Doc. No. 78.

On January 29, 2025, counsel for the parties appeared for an in-person conference. The pending motion for reargument (Motion Seq. No. 2) was "granted" and counsel for Defendants/Third-Party Plaintiffs MOUNTAINVIEW and NASTASI were directed to file an Order for the Court's signature memorializing the Court's decision. On January 31, 2025, a proposed Order was submitted by Defendants/Third-Party Plaintiffs MOUNTAINVIEW and NASTASI's counsel. See NYSCEF Doc. Nos. 79-80.³

On February 5, 2025, Third-Party Defendant WILLIAM DEE joined issue with the filing of an Answer to the Third-Party Complaint raising twenty-two (22) Affirmative Defenses and two (2) Cross-Claims against Defendants MOUNTAINVIEW and NASTASI. See NYSCEF Doc. No. 81.

On February 12, 2025, Defendants/Third-Party Plaintiffs MOUNTAINVIEW and NASTASI sent a letter to Judge Greenwald asking for the proposed Order filed on January 29, 2025, to be signed so that their Notice of Appeal -- of the Court's July 11, 2024, Decision and Order -- could be withdrawn. See NYSCEF Doc. Nos. 87-89.

On February 14, 2025, Plaintiff filed an Amended Summons and Complaint. See NYSCEF Doc. Nos. 96-97. Defendants/Third-Party Plaintiffs MOUNTAINVIEW and NASTASI joined issue on February 18, 2025, with the filing of a Verified Answer to the Second Amended Complaint raising fourteen (14) Affirmative Defenses and four (4) Cross-Claims against co- Defendants ALTICE and WILLIAM DEE. See NYSCEF Doc. No. 98. On March 19, 2025, Defendant ALTICE joined issue with the filing of a Verified Answer to the Plaintiff's Amended Complaint raising ten (10) Affirmative Defenses and a Cross-Claim against co-Defendants MOUNTAINVIEW, NASTASI and WILLIAM DEE. See NYSCEF Doc. No. 103. On September 10, 2025, Defendant/Third-Party Defendant WILLIAM DEE joined issue with a Verified Answer to Plaintiff's Second Amended Complaint raising twenty-eight (28) Affirmative Defenses and two (2) Cross-Claims against co-Defendants MOUNTAINVIEW, NASTASI and ALTICE. See NYSCEF Doc. No. 108. On September 15, 2025, Defendant ALTICE filed a Verified Answer purporting to be in response to Plaintiff's Second Amended Complaint which is a duplicate of the Verified Answer filed on March 19, 2025, other than the reference to the Plaintiff's Second Amended Complaint. See NYSCEF Doc. No. 109.

On November 6, 2025, counsel for Third-Party Defendant WILLIAM DEE sought a conference before Judge Greenwald regarding the outstanding written demands from Plaintiff and in response the Court scheduled a conference on November 12, 2025. See NYSCEF Doc. Nos. 110-111. At the conference before Judge Greenwald on November 12, 2025, the parties agreed upon a Compliance Order and same was e-filed. See NYSCEF Doc. No. 112.

On April 8, 2026, Defendant ALTICE filed a notice pursuant to Civil Practice Law and Rules § 3402(b) along with a Second-Third Party Complaint naming AVR ENTERPRISES, LLC (hereinafter AVR) as a Second Third-Party Defendant. See NYSCEF Doc. No. 116. Second Third-Party Defendant AVR was served pursuant to Limited Liability Company Law § 303 on April 13, 2026, by service on the Secretary of State of the State of New York. See NYSCEF Doc. No. 122. In response, on May 5, 2026, Second Third-Party Defendant AVR's counsel submitted a letter to the Court seeking a conference based upon issues with the schedule for depositions, discovery and the requirement to file a Note of Issue by June 26, 2026. See NYSCEF Doc. No. 123. On May 12, 2026, Second Third-Party Defendant AVR joined issue with the filing of a Verified Answer to the Second Third-Party Complaint raising twenty-four (24) Affirmative Defenses and a reply denying all Cross-Claims. See NYSCEF Doc. No. 126.

On May 20, 2026, Second Third-Party Defendant AVR filed the instant motion to dismiss (Motion Seq. No. 3). See NYSCEF Doc. No. 131-145. Defendant/Second Third-Party Plaintiff ALTICE filed a Cross-Motion (Motion Seq. No. 4) seeking denial of AVER's motion to dismiss and for leave to amend the Second Third-Party Complaint or replead same. See NYSCEF Doc. No. 146-162.

ARGUMENTS

Second Third-Party Defendant AVR's Motion to Dismiss (Motion Seq. No. 3)

AVR contends that their motion to dismiss, pursuant to Civil Practice Law and Rules § 3211, should be granted for three separate reasons: (1) Second Third-Party Plaintiff ALTICE impleaded AVR without leave after the 120 day period for impleading as required by Civil Practice Law and Rules § 1007; (2) the Second-Third Party Complaint is insufficient since it shifts liability to AVR through conclusory allegations and does not include the January 22, 2020 agreement, quote, indemnity and insurance procurement language and does not identify the scope of AVR's work; and (3) the Second Third-Party Complaint is filed four (4) years after the July 15, 2022 accident, which is outside the three (3) year statute of limitations for a personal injury negligence action and therefore an independent negligence theory against AVR is time-barred. As a result of the delays, AVR asserts they were unable to meaningfully cooperate in discovery and they have been prejudiced, such that the action should be dismissed.

Second Third-Party Plaintiff ALTICE's Cross Motion (Motion Seq. No. 4)

ALTICE asserts that AVR's motion to dismiss should be denied since AVR relies on a newly enacted version of Civil Practice Law and Rules § 1007 which did not impose a ninety (90) day deadline for impleading retroactively and only became effective on April 18, 2026. Also, ALTICE contends that, relying on the former version of § 1007 (which they contend is the proper version of the statute upon which the Court should rely), they were not required to seek leave of court to file the Second Third-Party Complaint. Further, ALTICE asserts that even if this Court were to rely upon the newly enacted Civil Practice Law and Rules § 1007, there is no 120-day deadline for filing a third-party complaint. Rather, ALTICE notes that § 1007 requires service of a third-party summons and complaint and all prior pleadings within 120 days of the filing of the third-party summons and complaint.

Second, ALTICE argues that AVR is not prejudiced by the discovery timeline and has sufficient time to defend the complaint, as the allegations within the complaint only involve basic indemnification, contribution, and breach of contract claims which are derivative of Plaintiff's action. Further, ALTICE notes that no other party, including Plaintiff in the primary action, has joined in AVR's application seeking dismissal of the third-party complaint. Additionally, ALTICE alleges that, through no fault of ALTICE, discovery in the primary action has proceeded at a slow speed due to several amendments to the complaint by Plaintiff and the filing of a First Third-Party Action. As a result of the delay in conducting discovery in this action, ALTICE asserts that AVR, like the other parties, had adequate time to prepare for Plaintiff's deposition and review the record.

ALTICE also contends that AVR speculatively asserts that they are prejudiced on the ground that they may no longer have access to employees or records such that they can defend the action, but AVR has not pointed to any specific employees or documents that they are unable to access due to the passage of time.

As to AVR's statute of limitations argument, Defendant Third-Party Plaintiff ALTICE asserts that the statute of limitations for direct negligence actions is inapplicable since they have not brought any direct negligence claims against AVR. ALTICE avers that the claims in the Second Third-Party Complaint are derivative claims against AVR for indemnification. contribution and breach of contract. In addition, ALTICE contends that AVR's argument that the allegations in the Second Third-Party Complaint are a disguised time-barred negligence claim is meritless since the indemnification claims are based upon AVR's breach of duty to Plaintiff based upon contractual obligations and should stand as the similar claims against Defendant/Third-Party Defendant WILLIAM DEE were not dismissed by the prior jurist.

Next, ALTICE asserts that AVR's claims in support of a dismissal pursuant to Civil Practice Law and Rules § 3211(a)(7) are not supported by the Second Third-Party Complaint or the contract between the parties annexed to same. ALTICE avers that the pleadings allege the elements for a cause of action for contractual indemnification in that they assert the existence of a contractual relationship between ALTICE and AVR and that the referenced contract has an indemnification provision. Moreover, ALTICE argues that they are not required to attach the parties' contract to the pleadings, but nonetheless they have annexed the contract which demonstrates the existence of indemnification terms consistent with the allegations within the Second Third-Party Complaint. However, ALTICE notes that AVR's work had no relationship to the work being completed on July 12, 2022, and that AVR has failed to address or submit any evidence refuting that they performed work during the month before the accident.

Finally, ALTICE contends they have sufficiently pleaded a breach of contract action in that they have alleged the existence of an agreement between themselves and AVR and that AVR agreed to obtain general liability insurance with ALTICE as an additional insured for the subject construction work, which AVR failed to do. ALTICE further asserts that they have suffered damages by having to defend the instant action and incurred expenses. According to ALTICE, the allegations within the complaint satisfy the requisite elements of a breach of contract claim and are sufficiently particularized so as to provide AVR notice of the claim and occurrences.

In reply, AVR asks this Court to disregard ALTICE's cross-motion and opposition as untimely since they were filed on June 5, 2026. AVR's counsel has not provided a transcript, but this Court's review of the notes indicates that ALTICE's opposition was due on June 3, 2026. In their moving papers, ALTICE failed to acknowledge that the opposition and motion to dismiss were filed past the date set forth by the undersigned or provide an explanation for the late filing. The balance of AVR's reply papers reiterate the original arguments raised in their motion to dismiss.

LAW/ANALYSIS

At the outset, the Court notes that ALTICE's cross-motion and opposition -- filed two (2) days after the date set forth by the undersigned for filing -- were untimely and no excuse for the delay was provided by ALTICE. Therefore, this Court is entitled to disregard ALTICE's cross- motion and opposition but has considered the merits of ALTICE's arguments based upon review of AVR's arguments for dismissal and the lack of evidence that AVR was prejudiced as they were able to timely file reply papers that this Court considered. See Bank of America, National Association, etc. v Bhagwandai Ragnauth, et al., 2026 WL 2416606, *1 [2d Dept August 19, 2026]; See also Hettinger v Amchem Products, 193 AD3dd 544 [1st Dept 2021]; Jiewen Lin v City of New York, 117 AD3d 913 [2d Dept 2014]; Mosheyeva v Distefano, 288 AD2d 448, 449 [2d dept 2001].

Second Third-Party Defendant AVR's Motion to Dismiss (Motion Seq. No. 3)

Civil Practice Law and Rules § 1007 was amended by the New York State Legislature and became effective immediately, except for sections one (1) and two (2) which became effective on the same date as the amendments to the civil practice law and rules relating to the "avoiding vexatious overuse of impleading to delay (AVOID)," which was April 18, 2026. See NY LEGIS 79 (2025), 2026 Sess. Law News of NY Ch. 79 (S. 8809) (McKINNEY's). Section two (2) in the version of § 1007 that was in effect on April 8, 2026, the time the Second Third-Party Complaint was filed, provided that "[a] third party defendant who proceeds with the filing of its own third-party summons and complaint, becoming in effect a second-third party plaintiff, shall proceed with the filing and serving of such summons and complaint against a second third-party defendant within forty-five days after serving an answer." Id.

As noted in the January 12, 2026, Committee Report from the New York State Legislature, the amendments to Civil Practice Law and Rules § 1007 were not only to comport with the effective date of AVOID but also were also "to only apply to cases commenced on or after the effective date." 2025 New York Senate Bill No. 8809, New York Two Hundred Forty-Eighth Legislative Session, Committee Report, January 12, 2026. Therefore, the New York State Legislature clearly did not intend for the amendments to Civil Practice Law and Rules § 1007 to be retroactively applied.

Further, as to a requirement of seeking leave of court before filing, the version of § 1007 that was effective at the time of the filing only required leave of court if a second third-party complaint was filed "twelve months after having filed an answer in the action without written consent of both the plaintiff and the court." Id. The Committee Report issued on January 12, 2026, provides that the purpose of the legislation and amendments was to "prohibit[ ] third-party summons and complaint filing and service after the note of issue filed unless there is good cause shown or in the interest of justice." 2025 New York Senate Bill No. 8809, New York Two Hundred Forty-Eighth Legislative Session, Committee Report, January 12, 2026. The insertion of the note of issue time frame indicates that the New York State Legislature intended on remedying the impleading of parties without leave of court after a case had reached readiness for trial, and not before. No Note of Issue was filed in this matter at the time the Second Third-Party Complaint was filed, and therefore even if the Court applied the newly enacted § 1007 requirements to the instant action. leave of court would not have been required based upon the procedural posture of the action.

Here, there is no dispute by the parties that the Second Third-Party Complaint was filed by ALTICE on April 8, 2026, ten (10) days before the amendments to Civil Practice Law and Rules § 1007 took effect. "Before its 2026 amendment, CPLR 1007 permitted the filing of a third party action so long as the liability to be imposed upon a third party defendant arose from or was conditioned upon the liability asserted against a third party plaintiff in the main action." Id. citing BBIG Realty Corp. v Ginsberg, 111 AD2d 91 [1st Dept 1985].

The Court understands AVR's assertion that ALTICE's filing of the Second Third-Party Complaint ten (10) days before the AVOID Act amendment was a tactical maneuver of the kind of which the amendments were intended to prevent. However, AVR's speculation of ALTICE's motives and intent regarding the filing date are not supported by any admissible evidence and do not alter the Court's requirement to analyze AVR's motion to dismiss for timeliness pursuant to the version of § 1007 in effect at the time of the filing -- on April 8, 2026. Therefore, this Court is bound to apply the time frames set forth in the former § 1007 to the filings in this action and evaluate them under the prior version of § 1007. See LAM Group v Anthony T. Rinaldi LLC, 89 Misc 3d 1210(A), *1 [Supreme Court, New York County June 5, 2026]. As such, AVR's motion to dismiss based upon failure to comply with the statutory time frames for filing set forth in Civil Practice Law and Rules § 1007 is denied.

Turning next to AVR's assertion that the Second Third-Party Complaint should be dismissed due to the delay and prejudice caused in failing to move during the four (4) years this action has been pending, the Court finds ALTICE's conduct in delaying the prosecution of the instant action was consistent with the actions of all the parties in this action. Additionally, there is no evidence presented that ALTICE, more than any other party in the primary and third-party action, engaged in any specific delay during the pendency of the action or that any significant discovery was even conducted prior to the filing of the Second Third-Party Complaint -- which added AVR to this case in April 2026. Through no fault of AVR, engagement in discovery by the parties in the initial action and First Third-Party Complaint has proceeded at a glacial speed, without any explanation for this significant delay. Also, the Court notes that this matter was assigned to a prior jurist from commencement in 2023 until January 2026, when this matter was assigned to the undersigned, and the significant delay occurred during that prior period.

In considering AVR's argument of prejudice, the Court notes that the action was commenced in March 2023, the initially named parties were served in March 2023, issue was joined by some of the defendants in April 2023 and in July 2023, presumably based upon a stipulation to extend time to answer (which was not filed in NYSCEF). See NYSCEF Doc. Nos. 1-5, 6, 13, and 16. The NYSCEF filings in this matter demonstrate that discovery vehicles, such as demands for bill of particulars, notices of discovery and inspection and general discovery demands, were filed in July 2023, prior to the filing of a Third-Party Complaint by Defendants MOUNTAINVIEW and NASTASI but unfortunately no discovery compliance order was ever issued by the prior jurist. See NYSCEF Doc. No. 8-12, 14, 18-21, and 23.

Subsequent to the filing of the First Third-Party Complaint, the parties entered into stipulations to extend time to answer in October 2023 and engaged in pre-answer motion practice (Motion Seq. No. 1) which did not conclude until a decision was issued in July 2024. Further motion practice (Motion Seq. No. 2) -- and more stipulations adjourning the return date of the motion -- delayed the action from August 2024 through January 2025, and a discovery schedule was not provided until a conference before the prior jurist on November 12, 2025 (see NYSCEF Doc. No. 112). The November 2025 Compliance Order demonstrates that more than three (3) years into the pendency of this action paper discovery had not been exchanged between Plaintiff and Third-Party Defendant WILLIAM DEE or Defendant ALTICE and that no depositions had been conducted. See NYSCEF Doc. No. 112. Despite the Court directive that depositions of all parties be completed on or before March 20, 2026, this Court learned in late February 2026, very little if any discovery had been exchanged and no depositions had been conducted. See NYSCEF Doc. Nos. 65-76, 79-80. In fact, on February 5, 2025, almost two (2) years after commencement of this action, the first Notice of Deposition was filed in NYSCEF in this matter by Third-Party Defendant WILLIAM DEE. See NYSCEF Doc. No. 82. It was only on February 26, 2026, two (2) months before AVR was brought into this action by way of the Second Third-Party Complaint, that the undersigned issued an updated discovery schedule requiring depositions by May 22, 2026, post deposition demands by June 22, 2026, an IME and report by July 10, 2026, and a Note of Issue to be filed by June 26, 2026. Unfortunately, before the parties could comply with the discovery order as set forth in February 2026, ALTICE commenced the Second Third-Party action against AVR which led to the current motion practice. Therefore, in May 2026, this Court amended the discovery schedule again.

Considering the foregoing and the fact that little to no paper discovery was exchanged or obtained via depositions prior to ALTICE's filing of the Second Third-Party Complaint on April 8, 2026, it is apparent to this Court that AVR has suffered no prejudice in conducting discovery. They are on the same timeline as the other parties to this action due to the innumerable delays since commencement. See Ambriano v Bowman, 234 AD2d 404, 405 [2d Dept 1997]; Solano v Castro, 72 AD3d 932, 933 [2d Dept 2010]. "Absent substantial prejudice, courts have found that delay in impleading third-party defendant[s] caused no prejudice where there remains an opportunity to conduct discovery." LAM Group v Anthony T. Rinaldi LLC, 89 Misc 3d 1210(A), *2 [Supreme Court, New York County June 5, 2026] citing Solano v Castro, 72 AD3d at 932.

The Court recognizes AVR's frustration -- due to the almost four (4) year delay in bringing them into the instant action -- but finds that they have suffered no prejudice due to the delay. Specifically, the delays in obtaining discovery in the instant action have affected all of the parties, including AVR. They have the same opportunity to conduct discovery, and the delay does not warrant dismissal of the Second Third-Party Complaint. In fact, as evidence of AVR's opportunity to conduct and engage in discovery with the other parties, the first deposition in this action occurred on May 6, 2026, a month after the Second Third-Party Complaint was filed, and no other depositions had been conducted prior to the filing of the Second Third-Party Complaint. Therefore, even though AVR is coming into this action four (4) years after commencement, they stand in the same place as the other parties in terms of discover. Finally, there is no impending trial date, which negates any prejudice to AVR.

Next, Defendant AVR's motion to dismiss pursuant to Civil Practice Law and Rules § 3211(a)(7), is also denied. "When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), 'the standard is whether the pleading states a cause of action,' and in considering such a motion, 'the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.' " Jones v Rochdale Village, Inc., 96 AD3d 1014, 1017 [2d Dept 2012] quoting Sokol v Leader, 74 AD3d 1180, 1180-1181 [2d Dept 2010]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]. " 'Whether a plaintiff can ultimately establish its allegations is not part of the calculus.' " Sokol v Leader, 74 AD3d at 1181 quoting EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]. Additionally, "[d]ismissal should not eventuate unless it has been shown that a material fact as claimed by the proponent to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it." Cajigas v Clean Rite Centers, LLC, 187 AD3d 700, 701 [2d Dept 2020] citing Guggenheimer v Ginzburg, 43 NY2d at 275.

Here, the Second Third-Party Complaint adequately pleaded causes of action sounding in contractual indemnification, and common law indemnification and/or contribution. First, AVR does not deny the existence of a written agreement between themselves and ALTICE. AVR's argument for dismissal of the contractual indemnification cause of action based upon ALTICE's failure to annex the contract to the complaint is meritless, as the lack of inclusion of the contract does not render the complaint insufficient. This Court finds that ALTICE sufficiently alleged in their Second Third-Party Complaint the existence of a written contract dated January 22, 2020, between ALTICE and AVR for supply, cable installation and repair and maintenance work at locations, which included the subject location. See NYSCEF Doc. No. 116, page 9, ¶ 9.

Further, Defendant/Second Third-Party Plaintiff ALTICE alleged that, pursuant to the written agreement, AVR agreed to defend, indemnify and hold ALTICE harmless from and against any claim, cost, expense or liability incurred in enforcing the indemnity which is attributable to personal injury that was caused or arose out of or was the result of performance of work by AVR or any subcontractor. See NYSCEF Doc. No. 116, page 10, ¶ 10. ALTICE also alleged in the Second Third-Party Complaint that Plaintiff, Helen Griffin, suffered a personal injury due to AVR's work at the subject location on July 15, 2022. See NYSCEF Doc. No. 116, page 10, ¶ 11. AVR provides no argument for dismissal of the second cause of action sounding in common law indemnification and/or contribution.

Turning to the third cause of action sounding in breach of contract in the Second Third- Party Complaint, the Court also finds that it was adequately pleaded. AVR does not deny the existence of the written agreement between the parties and instead argues that ALTICE failed to include the specific language of the insurance provision within the complaint. ALTICE alleges in the Second Third-Party Complaint that -- based upon the written agreement -- AVR agreed to procure general liability insurance for the benefit of ALTICE as an additional insured for the subject construction work and breached the agreement by failing to procure the general liability insurance. See NYSCEF Doc. No. 116, pages 12-13, ¶¶ 21-23.

Moreover, this Court finds AVR's arguments in support of dismissal of the third cause of action rely on the standard for a summary judgment motion pursuant to Civil Practice Law and Rules § 3212, and not a dismissal motion. Specifically, AVR argues that for a claim for failure to procure insurance requires allegations within the complaint of a specific request for a particular type of coverage and that the party obligated to procure that insurance failed to do so. In support of this theory, it cites American Bldg. Supply Corp v Petrocelli Group, Inc., which addressed the proof requirement for a § 3212 summary judgment motion, not a dismissal motion pursuant to § 3211(a)(7). See 19 NY3d 730, 735 [2012]. Additionally, AVR's reliance on American Bldg. Supply is spurious since the Court of Appeals' decision addressed the proof needed to be provided by a party whose breach of contract action was against their insurance broker for the broker's failure to recommend and provide the proper level of insurance requested and the facts in this action are that AVR failed to procure the contractually required insurance in a contract between themselves, as a subcontractor, and ALTICE, a contractor. See American Bldg, Supply Corp. v Petrocelli Group, Inc., 19 NY3d at 735.

Additionally, AVR's argument pursuant to Civil Practice Law and Rules § 3013 is also meritless, as the Second Third-Party Complaint clearly delineates the specific portion of the undisputed written agreement at issue which required the procurement of general liability insurance by AVR -- with ALTICE named as the insured in relation to the subject construction project. There is no requirement under § 3013 that the specific section of the parties' agreement be referenced or even that the language of the agreement be included in the complaint. As such, AVR's argument for dismissal -- due to a lack of specificity -- is also denied.

Finally, AVR's argument that the statute of limitations, pursuant to Civil Practice Law and Rules § 214(5), bars any direct negligence claims against AVR and requires dismissal is denied. As evidenced by a review of the Second Amended Complaint filed in this action, each of the three (3) causes of action are derivative claims against AVR for contractual and common law indemnification and contribution and breach of contract. See NYSCEF Doc. No. 97.

Defendant/Second Third-Party Plaintiff ALTICE's Cross-Motion (Motion Seq. No. 4)

Upon consideration of the cross-motion, the Court notes that the relief sought by ALTICE, specifically for leave to amend the Second Third-Party Complaint pursuant to Civil Practice Law and Rules § 3025(b), to replead pursuant to Civil Practice Law and Rules § 3211, and to sever pursuant to Civil Practice Law and Rules § 603, is all relief sought in the alternative if the Court granted AVR's motion to dismiss pursuant to Civil Practice Law and Rules §§ 3211, 1007 and/or 1010. The Court has denied AVR's motion to dismiss in its entirety and therefore need not reach the relief sought by ALTICE in its cross-motion. Other than the application to deny AVR's motion to dismiss, ALTICE's cross-motion is denied based upon the foregoing.

In arriving at this decision the Court has reviewed, evaluated, and considered all of the issues framed by these motion papers and the failure of the Court to specifically mention any particular issue in this Decision and Order does not mean that it has not been considered by the Court in light of the appropriate legal authority.

Accordingly, it is hereby

ORDERED that Second Third-Party Defendant AVR's Motion to Dismiss (Motion Seq. No. 3) the Second Third-Party Complaint is denied in its entirety; and it is further

ORDERED that Defendant/Second Third-Party Plaintiff ALTICE's Cross Motion (Motion Seq. No. 4) is denied as moot to the extent that relief sought by ALTICE was pursuant to Civil Practice Law and Rules §§ 3025(b), 3211, and 603, consistent with the foregoing; and it is further

ORDERED that the parties are reminded of the Compliance Order issued on the record on May 31, 2026, directing the following: (1) all depositions to be completed by September 11, 2026, (2) all post deposition demands of Plaintiff are to be made by August 28, 2026, (3) that the IME is be conducted and the report be issued by September 30, 2026, and (4) that the Note of Issue is to be filed on or before October 9, 2026; and it is further

ORDERED that all counsel appear for a status conference before the undersigned in Part 3 on October 14, 2026, at 9:30 a.m.

The foregoing constitutes the Decision and Order of this Court on Motion Seq Nos. 3 and4.

Dated: August 24, 2026

New City, New York

HON. JOHN P. COLLINS, Jr., J.S.C.

FOOTNOTES

1.   Peter Nastasi was served individually but is not an individual defendant in the instant action. He appears to have also been served as a member of Peter Nastasi Management LLC. See NYSCEF Doc. Nos. 4 and 5.

2.   The Stipulation was e-filed on NYSCEF on September 15, 2023, as Doc. No. 31.

3.   The Court signed the Proposed Order submitted by Defendants/Third-Party Plaintiffs MOUNTAINVIEW and NASTASI on March 19, 2025. See NYSCEF Doc. No. 105.

John P. Collins, Jr., J.