Opinion
Index No. 102474/2011
09-24-2014
JHON PIZARRO, Plaintiff v. DENNIS JAMES BOYLE, INC., and CATHERINE LIGNELLI, Defendants DENNIS JAMES BOYLE, INC., Third Party Plaintiff v. COMPLETE COPPER WORKS, INC., Third Party Defendant
APPEARANCES: For Plaintiff Richard Becker Esq. Ronai & Ronai, L.L.P. 34 Adee Street, Port Chester, NY 10573 For Defendant Lignelli Michael F. Harris Esq. Goldberg Segalla LLP 11 Martine Avenue, White Plains, NY 10606 For Third Party Defendant Complete Copper Works, Inc. Richard A. Gash Esq. Mintzer Sarowitz Zeris Ledva & Meyers, LLP 39 Broadway, New York, NY 10006
ORDER WITH NOTICE OF ENTRY
PLEASE TAKE NOTICE, that annexed is a true copy of an Order duly entered in the office of the Clerk of the within named Court on October 17, 2014. Dated: New York, New York
October 17, 2014
Yours, etc.,
/s/_________
BARRY WASHOR
QUELLER, FISHER, WASHOR, FUCHS
& KOOL, LLP
Attorneys for Plaintiff
233 Broadway, Suite 1800
New York, New York 10279
(212) 406-1700
Our File No.: 2014-05582
TO: GORTON & GORTON, LLP
Attorney For Defendant
DENNIS JAMES BOYLE, INC.
1539 Franklin Avenue, 3rd flr.
Mineola, NY 11501
Phone: (516) 742-8466
GOLDBERG SEGALLA LLP
Attorney for Defendant
CATHERINE LIGNELLI
11 Martine Avenue, Suite 750
White Plains, NY 10606
Phone: (914) 798-5400
MINTZER, SAROWITZ, ZERIS LEDVA & MEYERS, LLP
Attorney For Third Party Defendant
COMPLETE COPPER WORKS
39 Broadway, Suite 950
New York,, NY 10006
Phone: (212) 968-8300
DECISION and ORDER
APPEARANCES: For Plaintiff
Richard Becker Esq.
Ronai & Ronai, L.L.P.
34 Adee Street, Port Chester, NY 10573
For Defendant Lignelli
Michael F. Harris Esq.
Goldberg Segalla LLP
11 Martine Avenue, White Plains, NY 10606
For Third Party Defendant Complete Copper Works, Inc.
Richard A. Gash Esq.
Mintzer Sarowitz Zeris Ledva & Meyers, LLP
39 Broadway, New York, NY 10006
LUCY BILLINGS, J.:
In an order dated January 6, 2014, the court granted original defendant Jeffrey Lignelli's motion for summary judgment dismissing all claims against him based on the exemption from liability under New York Labor Law §§ 240(1) and 241 for owners of single family dwellings and the similar standard for liability under Labor Law § 200 and for negligence. C.P.L.R. § 3212(b). The court also granted plaintiff's cross-motion to join Catherine Lignelli as a defendant and to amend the complaint to add claims against her, but only under Labor Law §§ 240(1) and 241(6), similar to the claims originally alleged under those statutes against Jeffrey Lignelli. C.P.L.R. §§ 1002(b), 3025(b). The court denied plaintiff's cross-motion insofar as it sought to amend his complaint to add claims against Catherine Lignelli under Labor Law § 200 or based on her negligence. Plaintiff was to serve and file a supplemental summons and amended complaint as permitted. C.P.L.R. §§ 305(a) and (c).
Nonetheless, Jeffrey Lignelli now moves again to dismiss the second amended complaint served and filed by plaintiff, based on the law of the case, insisting that the second amended complaint still includes claims against Jeffrey Lignelli. People v. Evans, 94 N.Y.2d 499, 503 (2000); Dukett v. Wilson, 31 A.D.3d 865, 868-69 (3d Dep't 2006); Brownrigg v. New York City Hous. Auth., 29 A.D.3d 721, 722 (2d Dep't 2006); Kve Po Choi v. O.R. Dev. Corp., 17 A.D.3d 538 (2d Dep't 2005). See BDCM Fund Advisor, L.L.C. v. Zenni, 106 A.D.3d 596, 597 (1st Dep't 2013); Chappelear v. Dollar Rent-A-Car, 33 A.D.3d 513 (1st Dep't 2006). In opposition, plaintiff insists that he does not claim against Jeffrey Lignelli. Based on this concession, as well as the order of January 6, 2014, there are no longer any claims against Jeffrey Lignelli in this action, and the second amended complaint shall not be construed as including such claims.
Catherine Lignelli also now moves to dismiss the second amended complaint's claims against her, insisting that the second amended complaint, like plaintiff's proposed second amended complaint supporting his cross-motion to join her and to amend the complaint to add claims against her, still includes claims against her on legal grounds other than under Labor Law §§ 240(1) and 241(6). In opposition, plaintiff again insists that he does not claim against Catherine Lignelli on any other grounds. Based on this concession and the order of January 6, 2014, there are no claims against Catherine Lignelli in this action other than under Labor Law §§ 240(1) and 241(6), and the second amended complaint shall not be construed as including such claims.
In sum, the claims under Labor Law §§ 240(1) and 241(6) are against Catherine Lignelli and not against Jeffrey Lignelli, and all other claims against either Jeffrey Lignelli or Catherine Lignelli have been dismissed or discontinued. C.P.L.R. § 3212(b), 3217(b). Complete elimination of these claims against the Lignellis from this action prevents the possibility of any confusion as to construction of the second amended complaint in these respects. All the above limitations on this action, however, are of course without prejudice to the parties' rights upon appeal of the order of January 6, 2014.
Finally, Catherine Lignelli moves to dismiss the second amended complaint's claims against her because they are barred by the applicable statute of limitations of three years. C.P.L.R. §§ 214(2) and (5), 3211(a)(5). Plaintiff's claims accrued September 10, 2010, when he was injured. He filed his cross-motion to join Catherine Lignelli and to amend the complaint to add claims against her January 9, 2013, when only two years, three months, and 19 days of the limitations period had expired and therefore still within the limitations period. C.P.L.R. § 214(2) and (5). This filing tolled the statute of limitations until the January 2014 order was entered January 16, 2014, extending the limitations period to Monday, September 22, 2014. Perez v. Paramount Communications, 92 N.Y.2d 749, 755-56 (1999); Long v. Sowande, 27 A.D.3d 247, 248 (1st Dep't 2006). See, e.g., Hickman v. Motor Veh. Acc. Indent. Corp., 75 N.Y.2d 975, 977 (1990); Ambrus v. Citv of New York, 87 A.D.3d 341, 342, 344-45 (2d Dep't 2011). Plaintiff filed his second amended complaint February 3, 2014, well within that deadline. Perez v. Paramount Communications, 92 N.Y.2d at 756; Long v. Sowande, 27 A.D.3d at 249. Therefore the court denies Catherine Lignelli's motion insofar as it seeks to dismiss the two claims against her under Labor Law §§ 240() and 241(6) in the second amended complaint. C.P.L.R. §§ 214(2) and (5), 3211(a)(5).
Catherine Lignelli's motion insofar as it seeks to dismiss any other claims against her and Jeffrey Lignelli's motion to dismiss claims against him are denied as moot based on plaintiff's concessions and the order of January 6, 2014, as set forth above. This decision constitutes the court's order. DATED: September 24, 2014
/s/_________
LUCY BILLINGS, J.S.C.