The opinion
CGM-LLNR LLC v Sylvia Wald & Po Kim Art
Gallery
2024 NY Slip Op 30609(U)
February 27, 2024
Supreme Court, New York County
Docket Number: Index No. 153910/2017
Judge: Lyle E. Frank
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. 153910/2017
NYSCEF DOC. NO. 409 RECEIVED NYSCEF: 02/27/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: PART I IM
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CGM-LLNR LLC, INDEX NO. 153910/2017
Plaintiff,
MOTION DATE 08/09/2023
- V -
MOTION SEQ. NO. 013
THE SYLVIA WALD AND PO KIM ART GALLERY,
Defendant.
DECISION+ ORDER ON
MOTION
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THE SYLVIA WALD AND PO KIM ART GALLERY Third-Party
Index No. 595488/2020
Third-Party Plaintiff,
-against-
EPSTEIN ENGINEERING P.C., and BELLET
CONSTRUCTION CO., INC.,
Third-Party Defendant.
-------------------------------------------------------------------------------- X
-------------------------------------------------------------------------------- X
BELLET CONSTRUCTION CO. INC, Third-Party
Index No. 595488/2020
Second Third-Party Plaintiff,
-against-
ONLY PROPERTIES, LLC,
Second Third-Party Defendant.
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The following e-filed documents, listed by NYSCEF document number (Motion 013) 288,289,290, 291,
292,293,294,295,296,297,298,299,300,301,302,303,304,305,306,307,308,309,310,311,
312,313,314,315,316,317,379,380,391,394,395,396
were read on this motion to/for JUDGMENT - SUMMARY
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Motion No. 013
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INDEX NO. 153910/2017
NYSCEF DOC. NO. 409 RECEIVED NYSCEF: 02/27/2024
Upon the foregoing documents, third-party defendant Epstein Engineering's motion for
summary judgment is granted in its entirety.
The Court agrees that Epstein has demonstrated prima facie entitlement to summary
judgment. In support of its motion, the Epstein relies on an affidavit from its principal Alan
Epstein, emails between its principal Mr. Epstein and representatives of the third-party plaintiff
the Sylvia Wald and Po Kim Art Gallery, as well as deposition testimony from Wayne Bellet, the
Co-defendant Bellet's principal and Hyong T. Cho, president and chairman of the board of the
Sylvia Wald Gallery. In opposition, the Wald Gallery has failed to provide any affidavits or
other evidence in response to the affidavit and other evidence in support of Epstein's motion.
I. Breach of engineering contracts
In its third-party complaint, the Gallery alleges Epstein breached its engineering contracts
by failing to perform its contractual duties which then caused significant delay in the
performance of repair work, overcharges, increased construction costs, and directly increased the
delay in the Wald Gallery's performance of its duties under various contracts and license
agreement.
Epstein disputes the Gallery's allegations and contends that it completed all its
contractual obligations and further, that any delay was created by the adjacent building 415
Lafayette, and the Wald Gallery itself. As such, Epstein moves for summary judgment
dismissing the Wald Gallery's breach of contract claim. In support of its motion, Epstein relies
on the affidavit of its principal Mr. Epstein, who states that Epstein engineering inspected the
building fa9ade of the gallery and filed the local 11 report with the DOB as required in the
contract. Mr. Epstein states that Epstein performed all of its contractual duties, and had no
involvement in the issues, such as lack of access to the adjacent building, that is contends
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NYSCEF DOC. NO. 409 RECEIVED NYSCEF: 02/27/2024
contributed to the delay in the project. Moreover, Mr. Epstein contends that part way through
the project, the Wald Gallery switched contractors and hired the other third-party defendant
Bellet Construction Co., which it alleges further caused a delay in the project.
Additionally, Epstein points to the deposition testimony of Wayne Bellet. When asked
"Do you believe that Epstein Engineering caused any of the delay of this project?" Mr. Bell et
responded, "No." Moreover, Epstein further points to the president and chairman of the board of
the Ward Gallery who testified that it was the building owner of 415 Lafayette Street who caused
the delay.
In opposition, the Wald Gallery fails to address Epstein's arguments nor raise a triable
issue of fact. The Wald Gallery's conclusory denial to parts of Epstein's statement of material
facts is not sufficient to create a triable issue of fact. As plaintiff has failed to provide evidence in
opposition and failed to raise a triable issue of fact, defendant Epstein is entitled to summary
judgment dismissing plaintiffs breach of contract claim.
II. Professional negligence
Epstein contends the Wald Gallery utterly failed to produce any evidence of professional
negligence. In his affidavit Mr. Epstein contends that different representatives of the Wald
Gallery executed several contracts with Epstein Engineering during the five years that the project
at 417 Lafayette Street continued, and that Wald Gallery never lodged any complaints against
Epstein Engineering during the 14 years between 2006, when Wald Gallery first retained the
firm, until 2020, when the Wald Gallery terminated the contract between the parties.
In opposition, again the Wald Gallery simply "denies" Epstein's version of events but
supports its denial with no evidence and raises no specific triable issue of fact. Therefore, the
Wald Gallery's claim for professional negligence against Epstein is dismissed.
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NYSCEF DOC. NO. 409 RECEIVED NYSCEF: 02/27/2024
III. Indemnification
Next, Epstein moves to dismiss the Wald Gallery's claim for indemnification, on the
basis that it has established it was not responsible for the delays which are the basis of the
underlying action against the Wald Gallery. In opposition, the Wald Gallery merely responds,
"there is no doubt or issue of fact that Epstein failed to perform under the subject contracts and in
liable to defendant/third-party defendant Wald in the form of common law indemnity." Without
any supporting evidence to substantiate this claim, such a conclusory statement is not sufficient
to defeat Epstein's motion for summary judgment. The Court finds the Wald Gallery has failed
to raise any triable issue of fact and as such its claim for common law indemnification against
Epstein is dismissed.
IV. Contribution and Breach of Insurance Procurement
Lastly, in support of its position seeking dismissal of the Ward Gallery's contribution and
breach of contract claims, Epstein contends that its contracts did not require the company to
name the Wald Gallery as an additional insured or otherwise provide insurance coverage for the
Wald Gallery. Moreover, Epstein contends the Wald Gallery has failed to address this in its
motion papers and therefore has abandoned its claims for contribution and breach of insurance
procurement. Rodriguez v Dormitory Auth. of the State ofN.Y., 104 A.D.3d 529 [2013].
Vermette v. Kenworth Truck Co., 68 N.Y.2d 714 [1986]. Josephson LLC v Column Fin., Inc., 94
A.D.3d 479 [2012].
The Court agrees. The Wald Gallery has submitted no evidence in support of its claims,
has failed to address Epstein's arguments in its opposition papers, and thus its claims for
Contribution and Breach of Insurance Procurement must be dismissed.
Accordingly, it is hereby
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NYSCEF DOC. NO. 409 RECEIVED NYSCEF: 02/27/2024
ADJUDGED that third-party defendant's motion for summary judgment is granted in its
entirety; and it is further
ORDERED that the Clerk is directed to enter judgment dismissing the third-party
complaint as against EPSTEIN ENGINERING P.C. accordingly.
2/27/2024
DATE LYLE E. FRANK, J.S.C.
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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