The opinion
AIG Prop. Cas. Co. v Cohen
2024 NY Slip Op 33426(U)
September 30, 2024
Supreme Court, New York County
Docket Number: Index No. 150395/2022
Judge: Mary V. Rosado
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
INDEX NO. 150395/2022
NYSCEF DOC. NO. 215 RECEIVED NYSCEF: 09/30/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON.MARYV.ROSADO PART 33M
Justice
---------------------------------------------------------------------------------X INDEX NO. 150395/2022
AIG PROPERTY CASUAL TY COMPANY, PACIFIC
MOTION DATE 04/18/2024
INDEMNITY COMPANY A/S/O ROBERT BERGMAN AND
LAURIE MCCANNEL, GREAT NORTHERN INSURANCE
COMPANY NS/0 ROBERT WETENHALL, PACIFIC MOTION SEQ. NO. 005
INDEMNITY NS/0 CLIVE J. DAVIS PACIFIC INDEMNITY
COMPANY NS/0 GERTRUDE GLEKEL, CLIVE J. DAVIS
PACIFIC INDEMNITY COMPANY A/S/O GERTRUDE
GLEKEL, LOUISE S. LEHRMAN,
Plaintiff,
DECISION + ORDER ON
- V - MOTION
GLORIA COHEN, MILLER & RAVED, INC.,FORWARD
MECHANICAL CORP., RITZ COHEN LLC,Z.W. PLUMBING
& HEATING CORP.,
Defendant.
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FORWARD MECHANICAL CORP. Third-Party
Index No. 595650/2022
Plaintiff,
-against-
Z.W. PLUMBING & HEATING CORP., ON SITE DEMOLITION
& TRUCKING, CORP.
Defendant.
-------------------------------------------------------------------------------X
MILLER & RAVED, INC. Second Third-Party
Index No. 595131/2023
Plaintiff,
-against-
Z.W. PLUMBING & HEATING CORP., ON SITE DEMOLITION
& TRUCKING, CORP.
Defendant.
-------------------------------------------------------------------------------X
FORWARD MECHANICAL CORP. Third Third-Party
Index No. 595559/2023
150395/2022 AIG PROPERTY CASUALTY COMPANY vs. COHEN, GLORIA ET AL Page 1 of 5
Motion No. 005
1 of 5
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INDEX NO. 150395/2022
NYSCEF DOC. NO. 215 RECEIVED NYSCEF: 09/30/2024
Plaintiff,
-against-
THE RITZ TOWER, INC., THE BOARD OF DIRECTORS OF
THE RITZ TOWER, INC., RICHARD A VEFFER, MANAGING
DIRECTOR C/0 THE BOARD OF DIRECTORS OF THE RITZ
TOWER, INC.
Defendant.
------------------------------------------------------------------------------· X
The following e-filed documents, listed by NYSCEF document number (Motion 005) 163, 164, 165, 166,
167, 168, 169, 170, 171,172,173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187,
188, 189,190,192, 193, 194, 195, 196, 197,198,200,201,202,203,204,205,206
were read on this motion to/for JUDGMENT-SUMMARY
Upon the foregoing documents, Plaintiff AIG Property Casualty Company a/s/o Sherman
Investors 2020 LLC, Edward Pantzer, and Pamela Pantzer' s ("Plaintiff') motion for summary
judgment against Defendant Ritz Cohen LLC ("Ritz Cohen") and for an order severing and
continuing this action against the remaining defendants, is denied without prejudice.
I. Background
This is a subrogation action to recover insurance proceeds paid to various insureds as a
result of alleged water damage to residential apartments. Plaintiff insured unit 1OB at 465 Park
Avenue, New York, New York. Unit 1OB is owned by Sherman Investors 2020 LLC. Defendant
Ritz Cohen owns apartments 11B, l lC, 1 lD, l lE, and 1 lF on the eleventh floor of the building.
In 2005, Ritz Cohen performed a gut renovation to combine its various owned apartments into one
apartment. To obtain approval for the gut renovation, Ritz Cohen submitted an alteration
application.
Many years later, on August 2, 2021, a metal plug allegedly inserted into a pipe in the Ritz
Cohen Apartments failed and caused water to flow down into several apartments, including unit
lOB. The metal plug apparently failed because it became rusted. Plaintiff seeks summary judgment
based on an indemnification clause found in the alteration agreement submitted by Ritz Cohen in
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Motion No. 005
2 of 5
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INDEX NO. 150395/2022
NYSCEF DOC. NO. 215 RECEIVED NYSCEF: 09/30/2024
connection with its gut renovation project. Plaintiff further submits a variety of New York City
Department of Building applications regarding the renovation work and the expert affidavit of
Philip J. Smalley, P .E. Plaintiff relies on the language of the indemnification clause in the alteration
agreement and Mr. Smalley's report to argue it is entitled to summary judgment.
Ritz Cohen opposes the motion. Ritz Cohen challenges the evidentiary proof in support of
Plaintiffs motion and argues that it is not properly authenticated and therefore inadmissible. They
further argue that an indemnification obligation 15 years after the renovation was complete was
not clearly implied from the language and purposes of the alteration agreement. Specifically, Ritz
Cohen argues that the alteration agreement is unsigned and there is no proper foundation laid
regarding the admissibility of that document. Ritz Cohen further argues that the New York City
DOB reports and the building incident report are hearsay which have not been properly
authenticated by anyone with personal knowledge of those documents or the contents contained
therein. Ritz Cohen further argues that Plaintiff has failed to show it was assigned any purported
indemnification rights under the alteration agreement.
II. Discussion
"Summary judgment is a drastic remedy, to be granted only where the moving party has
tendered sufficient evidence to demonstrate the absence of any material issues of fact." (Vega v
Restani Const. Corp., 18 NY3d 499, 503 [2012]). The moving party's "burden is a heavy one and
on a motion for summary judgment, facts must be viewed in the light most favorable to the non-
moving party." (Jacobsen v New York City Health and Hasps. Corp., 22 NY3d 824, 833 [2014]).
Once this showing is made, the burden shifts to the party opposing the motion to produce
evidentiary proof~ in admissible form, sufficient to establish the existence of material issues of fact
which require a trial. See e.g., Zuckerman v City of New York, 49 NY2d 557, 562 [1980];
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Motion No. 005
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NYSCEF DOC. NO. 215 RECEIVED NYSCEF: 09/30/2024
Pemberton v New York City Tr. Auth., 304 AD2d 340, 342 [1 st Dept 2003]). Mere conclusions of
law or fact are insufficient to defeat a motion for summary judgment (see Banco Popular North
Am. v Victory Taxi Mgt., Inc., 1 NY3d 381 [2004]).
As Ritz Cohen correctly points out, summary judgment must be denied due to the lack of
admissible evidence. Here, Plaintiff has failed to meet its prima facie burden of showing its
entitlement to summary judgment through admissible evidence. Plaintiff has failed to submit an
affidavit from someone with personal knowledge of the alteration proposal, agreement, and
varying riders, and instead relies on Plaintiff's counsel's affirmation to introduce these documents.
Nor is there any deposition testimony annexed authenticating the documents. The same error has
been made regarding the various Department of Building permits inspection agreements, and the
On Site Contract.
Pursuant to CPLR § 4518(a), a document may be considered a business record and
therefore exempt from the rule against hearsay if there is testimony which shows it was made in
the regular course of any business at the time of the act, transaction, occurrence or event. Plaintiff's
counsel's affirmation fails to do this. This failure is fatal to Plaintiff's evidentiary burden on a
motion for summary judgment (see Muslar v Hall, 214 AD3d 77 [1st Dept 2023]; O'Connor v
Restani Const. Corp., 137 AD3d 672 [1st Dept 2016]). Here, these requirements have not been
met. As Plaintiff has not met their evidentiary burden, the Court does not yet reach the merits of
Plaintiff's arguments with respect to entitlement to indemnification.
Therefore, the motion is denied without prejudice, with leave to renew upon proper
documents and testimony. Indeed, according to the preliminary conference order (NYSCEF Doc.
169) depositions will not be complete until October 30, 2024.
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Motion No. 005
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INDEX NO. 150395/2022
NYSCEF DOC. NO. 215 RECEIVED NYSCEF: 09/30/2024
Accordingly, it is hereby,
ORDERED that Plaintiff AIG Property Casualty Company a/s/o Sherman Investors 2020
LLC, Edward Pantzer, and Pamela Pantzer's motion for summary judgment against Defendant
Ritz Cohen LLC and for an order severing and continuing this action against the remaining
defendants, is denied without prejudice, with leave to renew upon proper supporting documents
and testimony; and it is further
ORDERED that the parties are directed to comply with the directives set forth in this
Court' s preliminary conference order dated February 14, 2024 (NYSCEF Doc. 169), and should
any issues arise with compliance prior to the next scheduled conference date, they shall notify this
Court via e-mail to SFC-Part33-Clerk@nycourts.gov; and it is further
ORDERED that the parties are directed to appear for a compliance conference with the
Court on November 6, 2024 at 9:30 a.m. in Room 442, 60 Centre Street, New York, New York;
and it is further
ORDERED that within ten days of entry, counsel for Defendant Ritz Cohen LLC shall
serve a copy of this Decision and Order, with notice of entry, on all parties via NYSCEF.
This constitutes the Decision and Order of the Court.
9/30/2024
DATE
CHECK ONE : CASE DISPOSED NON-FINAL DISPOSITION
GRANTED 0 DENIED GRANTED IN PART □ OTHER
APPLICATION : SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE : INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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Motion No. 005
5 of 5
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