Can Lan Lu v. Elk Mas 86 E. 10th, LLC

Can Lan Lu v Elk Mas 86 E. 10th, LLC

2026 NY Slip Op 30791(U)

March 6, 2026

Supreme Court, New York County

Docket Number: Index No. 154690/2019

Judge: John J. Kelley

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

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York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

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file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.1546902019.NEW_YORK.001.LBLX000_TO.html[03/13/2026 3:45:55 PM]

FILED: NEW YORK COUNTY CLERK 03/09/2026 11:49 AM INDEX NO. 154690/2019

NYSCEF DOC. NO. 221 RECEIVED NYSCEF: 03/06/2026

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. JOHN J. KELLEY PART 56M

Justice

---------------------------------------------------------------------------------X INDEX NO. 154690/2019

CAN LAN LU,

MOTION DATE 03/06/2026

Plaintiff,

MOTION SEQ. NO. 005

-v-

ELK MAS 86 EAST 10TH, LLC DECISION + ORDER ON

MOTION

Defendant.

---------------------------------------------------------------------------------X

ELK MAS 86 EAST 10TH, LLC,

Third-Party Plaintiff,

-against-

FAÇADE IMPROVEMENT, INC., also known as FAÇADE

CONSTRUCTION SERVICES, INC., and FAÇADE

CONSTRUCTION SERVICES, INC.,

Third-Party Defendants.

--------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 005) 193, 194, 195, 196,

197, 198, 199, 200, 201, 202, 203, 204, 205, 206, 211, 212, 213, 214, 215, 218, 219

were read on this motion to/for RENEWAL .

In this action to recover damages for personal injuries arising from a demolition site

accident, alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and

241(6), the third-party defendants move pursuant to CPLR 2221(e) for leave to renew their

opposition to the motion of the defendant third-party plaintiff, Elk Mas 86 East 10th, LLC (Elk),

for summary judgment on the issue of liability on its third-party cause of action for contractual

indemnification (MOT SEQ 003), which had been granted in an order dated July 3, 2025, and to

renew their own motion for summary judgment dismissing that cause of action (MOT SEQ 004),

which had been denied in that same order. They request that, upon renewal, the court deny

Elk’s summary judgment motion, grant their summary judgment motion, and permit a continued

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deposition of their president and owner, Huat Beng Khoo, also known as Robert Khoo, to further

explain the genesis of the contract containing the subject indemnification clause. Elk opposes

the instant motion and the parties’ intentions with respect thereto. The instant motion is denied.

Initially, the court notes that, in their notice of motion, which was served and filed on

February 23, 2026, the third-party defendants noticed this motion to be heard on March 6, 2026,

and demanded that any opposition be served at least seven days before that return date. CPLR

2214(b) provides that

“[a] notice of motion and supporting affidavits shall be served at least eight days

before the time at which the motion is noticed to be heard. Answering affidavits

shall be served at least two days before such time. Answering affidavits and any

notice of cross-motion, with supporting papers, if any, shall be served at least

seven days before such time if a notice of motion served at least sixteen days

before such time so demands; whereupon any reply or responding affidavits shall

be served at least one day before such time.”

Although the third-party defendants demanded that opposition papers be served at least 7 days

prior to March 6, 2026, they did not provide Elk with the 16 days’ notice required by CPLR

2214(b), but only provided Elk with 11 days’ notice. Since the motion was, however, made on

more than the 8 days’ notice, which is the minimum notice required by the statute, it was proper

that Elk served its opposition papers 2 days prior to the return date.

In the July 3, 2025 order, this court concluded that Elk had established, prima facie, that

it had entered into a contract with the third-party defendants, that the contract included a

provision pursuant to which the third-party defendants agreed to indemnify Elk to the extent

permissible by law, and that the indemnification provision was enforceable inasmuch as the

primary claim upon which liability against Elk was grounded was a statutory, strict liability cause

of action under Labor Law § 240(1) (see Brown v Two Exch. Plaza Partners, 76 NY2d 172, 179

[1990]). The court further concluded that the third-party defendants failed to raise a triable issue

of fact in opposition to Elk’s showing, which was based, in part, upon the submission of the

subject seven-page contract, signed by Khoo on October 28, 2018 on behalf of the third-party

defendants, and by Morry Kalimian on October 29, 2018 on behalf of Elk. Elk’s submissions

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also included portions of the transcript of Khoo’s January 22, 2023 deposition testimony, in

which he identified and authenticated the contract, as well as his signature thereon.

The third-party defendants now argue that, after the determination of the motions

submitted under Motion Sequences 003 and 004, Khoo discovered emails in which a five-page

version of the contract, which excluded such a clause, were exchanged. Among other things,

those six emails, which were dated between November 13, 2018 and November 15, 2018,

forwarded proposed purchase orders and scope-of-work statements, as well as pages 1, 3, 5,

and 7 of a proposed contract between Elk and the third-party defendants that was undated and

unsigned, and pages 1, 3, 1, and 7 of a proposed contract, dated and signed by Khoo on

October 28, 2018, which was not countersigned by anyone on behalf of Elk, along with a

proposed purchase order signed only by Khoo. In the affirmation that he submitted in support of

the instant motion, Khoo averred that

“[i]t is obvious when reviewing ELK MAS's five (5) page contract proposal that

there is no indemnity provision. I had entered into numerous contract

agreements prior to this contract agreement with ELK MAS for work at the

Subject Location, and, while I am not an attorney and have no formal legal

training or education, based on this and my many years of experience in the

construction industry, I do understand what an indemnity provision is and how it

operates.

“On November 15, 2018, at 12:17 p.m., I sent email correspondence to Mr.

Kalimian and Ms. Perugini, stating ‘pls find signed contract, Robert.’

*****

“Attached to my November 15, 2018, email correspondence was a signed copy

of the five (5) page contract proposal, back-dated to October 28, 2018, as

requested by Mr. Kalimian and Ms. Perugini, titled ‘CCF11152018’, which I had

received from Ms. Perugini the day prior.

*****

“At no point in time, prior to the commencement of the instant litigation, was I

ever provided a copy of a contract agreement from ELK MAS that was seven (7)

pages in length, or one which contained an indemnity provision. I never signed

such an agreement. I never intended to be bound by such an agreement. It

was, at the time I received and executed the five (5) page contract agreement, . .

. my understanding that FACADE's work for ELK MAS did not require any

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agreement to indemnify ELK MAS for liability it may face from claims arising from

FACADE's work at the Subject Location.

“Lastly, my attorneys have asked me why I did not raise these emails, or the

issue of the five (5) page contract agreement that did not contain an indemnity

provision, during my January 2023 deposition. When I gave testimony in this

matter, I was never asked about the indemnity provision. Because it was never

brought up, I did not offer any testimony about it.”

In opposition to the motion, Elk argues that the third-party defendants did not provide a

reasonable excuse for failing to include these emails and proposed drafts in opposition to Elk’s

initial summary judgment motion or in support of their initial summary judgment motion. It

further contends that, even were the court to excuse such a late, eve-of-trial submission, it

would not alter the outcome, since, at his deposition, Khoo authenticated the seven-page

contract containing the indemnification clause, as well as his signature thereon, he has no basis

for accusing Elk’s principal of forging his signature on that contract, and the unsigned and

partially signed contracts submitted on the instant motion are unenforceable in any event.

CPLR 2221(e) provides that

“A motion for leave to renew:

“1. shall be identified specifically as such;

“2. shall be based upon new facts not offered on the prior motion that would

change the prior determination or shall demonstrate that there has been a

change in the law that would change the prior determination; and

“3. shall contain reasonable justification for the failure to present such facts on

the prior motion”

(see Melcher v Apollo Med. Fund Mgt., LLC, 105 AD3d 15, 23 [1st Dept 2013]; American Audio

Serv. Bur. Inc. v. AT & T Corp., 33 AD3d 473, 476 [1st Dept 2006]). “‘A renewal motion is not a

second chance to remedy inadequacies that occurred in failing to exercise due diligence in the

first instance’” (Holtz v Blackstone Bldrs. Holding Co., LLC, 235 AD3d 1207, 1208 [3d Dept

2025], quoting Matter of Vaughan v New York State Dept. of Transp., 223 AD3d 1010, 1012 [3d

Dept 2024]; Queens Unit Venture, LLC v Tyson Ct. Owners Corp., 111 AD3d 552, 552 [1st Dept

2013]). As of November 2018, Khoo was already in possession of the emails and attachments

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on which he premises his argument that there are “new facts” that had not been submitted to

the court in connection with the earlier motions. Where a party already is in possession of

documents that form the basis for a renewal motion, it generally will not be able to establish a

reasonable justification for failing to submit them in connection with the initial motion (see

English v Avon Prods., Inc., 2020 NY Slip Op 30679[U], *4, 2020 NY Misc LEXIS 1117, *9 [Sup

Ct, N.Y. County, Mar. 5, 2020] [Mendez, J.]). Moreover, inasmuch as the issue of the

indemnification clause was raised both by Elk in its summary judgment motion, and by the third-

party defendants in their summary judgment motion, it strains credibility that, in preparing

papers to oppose Elk’s motion and to support his companies’ motion, Khoo somehow simply

forgot to inform his attorneys that these emails and proposed contracts were in existence.

In any event, even if the third-party defendants could have demonstrated a reasonable

justification for failing to submit or refer to these emails in connection with the initial summary

judgment motions, the existence thereof would not alter the outcome of those motions.

Generally, an unsigned contract is unenforceable (see Plaza Dr. Group of CNY, LLC v Town of

Sennett, 115 AD3d 1165, 1166 [4th Dept 2014]), although “an unsigned contract may be

enforceable, provided there is objective evidence establishing that the parties intended to be

bound” (Flores v Lower E. Side Serv. Ctr., Inc., 4 NY3d 363, 369 [2005]; see Ajche v Park Ave.

Plaza Owner, LLC, 171 AD3d 411, 414 [1st Dept 2019]). The third-party defendants adduced

no evidence that Elk intended to be bound by the unsigned, incomplete, five-page proposed

contract that excluded any indemnification agreement. In connection with the incomplete

contract that Khoo signed and forwarded by email to Elk, “‘[a]t least one document signed by the

party to be charged must establish a contractual relationship between the parties, with the

unsigned documents referring on their face to the same transaction’” (Solartech Renewables,

LLC v Vitti, 156 AD3d 995, 998 [3d Dept 2017], quoting Post Hill, LLC v E. Tetz & Sons, Inc.,

122 AD3d 1126, 1127 [3d Dept 2014] [some internal quotation marks, brackets, and citations

omitted]). Inasmuch as the third-party defendants seek to charge Elk with adherence to a

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contract that omitted any mention of an obligation to indemnify Elk, and they cannot establish

that anyone from Elk executed such a contract, the proposed five-page contract signed only by

Khoo is unenforceable.

“It is axiomatic that statements made by a party in . . . a deposition that are not denied

by the party constitute an admission, and that later, conflicting statements containing a different

version of the facts are insufficient to defeat summary judgment, as the later version presents

only a feigned issue of fact” (Estate of Mirjani v DeVito, 135 AD3d 616, 617 [1st Dept 2016]; see

Garzon-Victoria v Okolo, 116 AD3d 558, 558 [1st Dept 2014]; Garcia-Martinez v City of New

York, 68 AD3d 428, 429 [1st Dept 2009]). To the extent that Khoo now avers that he never

signed the seven-page contract containing the indemnification clause that he identified and

authenticated at his deposition, and that he never intended to do so, the court concludes that he

is presenting a feigned issue of fact that is insufficient to defeat Elk’s right to summary judgment

on its third-party cause of action for contractual indemnification.

Inasmuch as the court is denying renewal, the third-party defendants’ request for a

continued eve-of-trial deposition of Khoo is denied as academic.

Accordingly, it is,

ORDERED that the third-party defendants’ motion for leave to renew is denied.

This constitutes the Decision and Order of the court.

3/6/2026 $SIG$

DATE JOHN J. KELLEY, J.S.C.

CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

□

GRANTED X 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

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