Defendants/third party defendants, REDCO HOMES, INC., REDCO CONTRACTING CORP. a/k/a REDCO CONSTRUCTION CORP. and BARRY T.LITUCHY, move for an order, pursuant to CPLR §3212, granting summary judgment to BARRY T. LITUCHY as an individual defendant dismissing all claims against him, granting summary judgment to REDCO HOMES, INC., dismissing all claims against it based on the April 21, 2003 fire, granting summary judgment to REDCO CONTRACTING CORP. dismissing all claims and cross-claims against it in their entirety and directing hearing on the issue of sanctions against the law firm of Murray & McCann, pursuant to 22 NYCRR §130-1.1. An Affidavit of Services reflects that counsel for all parties herein were duly served with the instant motion, on April 13, 2007, but only counsel for plaintiffs, DANIEL FRASER in Actions #

2 and #

5 and plaintiffs LOUIS A. ALFASI and KELLY A. ALFASI in Actions #

3 and #

4, opposes the motion, which is determined as follows:

All of the above captioned actions arise out of a fire and explosion that occurred at the PINE TOWN HOUSES, located at 143-153 Pine Street, Long Beach, New York. It is alleged that on March 27, 2004, a fire originated in Unit 147A of the complex as a result of ALL WAYS ELECTRIC CORP's (hereinafter referred to as "ALL WAYS") negligence in installing electrical service to said unit and that the fire was caused by heat generated by an electrical failure in an energized circuit of said unit. It appears that ALL WAYS had entered into a contract with REDCO MANAGEMENT, the agent for PINE TOWN HOUSES [*2]CO., to perform electrical services at the complex as part of a renovation to the apartments which had previously been damaged as a result of a fire in April 2003 originating in Unit 145A from an unattended candle.

Action #

1 is one for subrogation in which plaintiff, ASSURANCE COMPANY OF AMERICA a/s/o PINE TOWN, seeks to recover against ALL WAYS for payments made to its insured, PINE TOWN, for, inter alia, property damage caused by the fire in the approximate sum of $328,000.00. Action #

2 is a personal injury action against ALL WAYS, commenced by DANIEL FRASER, a fire fighter, who claims he was injured in the course of his employment fighting the fire on the March 27, 2004 date. Action #

3 is also a personal injury action against ALL WAYS, commenced by LOUIS A. ALFASI, a fire fighter, and KELLY ALFASI, his wife who has interposed a derivative action, in which LOUIS A. ALFASI claims that he was injured in the course of his employment fighting the fire on the March 27, 2004 date. On all three (3) of these actions, ALL WAYS has interposed a third-party action against third-party defendants, OCEANSIDE PLUMBING & HEATING CONTRACTORS, INC. (hereinafter referred to as "OCEANSIDE"), PINE TOWN HOUSES COMPANY, L.P., REDCO MANAGEMENT CORP. and REDCO CONTRACTING CORP (hereinafter referred to as "REDCO CONTRACTING"). It is ALL WAYS position that, at the time of the fire in March 2004, OCEANSIDE was involved in the renovations to the apartments and was installing heating pipes in Unit 147A and Unit 147B. ALL WAYS alleges that OCEANSIDE's negligent acts or omissions caused the fire when the torches it used to sweat the heating pipes ignited combustible matter in the void between the first floor UNIT 147A and Unit 147B, causing the fire. Moreover, ALL WAYS alleges that OCEANSIDE stored dangerous chemicals, fluids and gasses at the site, in violation of statutes, that caused an explosion and contributed to the spread of the fire. ALL WAYS alleges that PINE TOWN, REDCO MANAGEMENT and REDCO CONTRACTING negligently hired, retained and supervised OCEANSIDE at the apartment complex, particularly with respect to the storage of the dangerous materials, and thus contributed to the firefighters' injuries.

Action #

4 is a personal injury action commenced by LOUIS A. ALFASI and KELLY ALFASI against REDCO REAL ESTATE DEVELOPMENT CO. (hereinafter referred to as "REDCO REAL ESTATE"), PINE TOWN, REDCO CONTRACTING, REDCO MANAGEMENT, BARRY T. LITUCHY, MSR ARCHITECTURE and OCEANSIDE. In said action, LOUIS A. ALFASI seeks to recover for injuries sustained during the course of his employment as a firefighter, from the first fire, in April 2003, and the second fire, in March 2004. He alleges negligence by all said defendants. Action #

5 is a personal injury action commenced by DANIEL FRASER against the same defendants in Action #

4, in which FRASER seeks to recover for injuries sustained during the course of his employment as a firefighter, from the March 2004 fire. He alleges negligence by all said defendants.

On the instant motion, counsel for REDCO HOMES, INC., REDCO CONTRACTING CORP.. and BARRY T. LITUCHY, states that the allegations of negligence against these [*3]three (3) defendants is based upon their alleged ownership, occupancy, use or construction of the premises where the fires occurred. In a sworn affidavit of LITUCHY, the President of REDCO MANAGEMENT CORP., the Vice President of REDCO HOMES, INC, and the Vice-President of REDCO CONTRACTING CORP., he asserts that a corporation exists independently of its owners and that he does not exercise complete dominion and control over the REDCO corporations and has not used complete dominion and control over the corporations to perpetrate a wrongful or unjust act. LITUCHY states that it is perfectly legal to incorporate for the express purpose of limiting the liability of the corporate owner and contends that the claims against him in his individual capacity must be dismissed.

With respect to REDCO HOMES, INC., LITUCHY states that it was not retained to work on the subject premises until after the fire in April 2003 and that it was not the owner, possessor or general contractor at the premises at the time of the first fire and therefore owed no duty to the claimants with respect to the use of candles at said premises. As to REDCO CONTRACTING CORP., LITUCHY claims that said corporation did not come into existence until March 16, 2004 and had no connection with the premises until after the fire of March 27, 2004. He asserts that REDCO CONTRACTING CORP. was not the owner, possessor or general contractor of the premises at the time of either fire and, as a matter of law, owed no duty with respect thereto and cannot be held liable in these actions. Counsel argues that the hope that the parties might be able to uncover some evidence during the discovery process is insufficient to defeat the motion for summary judgment and that merit less claims against certain defendants should be dismissed at this juncture. It is counsel's position that no party can make an evidentiary showing that facts exist but cannot now be stated because of the need for additional discovery, citing CPLR §3212(f) and Connecticut Indem. Co. v Travelers Ins., 300 AD2d 530, 752 NYS2d 560 (2nd Dept. 2002). Counsel states that overtures to the firm of Murray and McCann to discontinue the merit-less ALFASI claims against these defendants were refused which requires the imposition of sanctions.

Counsel for the FRASER and ALFASI plaintiffs asserts that the motion is both premature and frivolous and should be denied. Without addressing the distinction between LITUCHY as an individual and LITUCHY as an officer and director of the subject corporations, counsel contends that LITUCHY is a principal of the moving corporations as well as other inter-related entities such as PINETOWN HOUSES CO. and REDCO MANAGEMENT CORP., MSR ARCHITECTURE and REDCO REAL ESTATE DEVELOPMENT CO. The Court notes that the parties stipulated to discontinue the action against MSR ARCHITECTURE and REDCO REAL ESTATE DEVELOPMENT CO, without prejudice, based upon their waiver of any statute of limitations defense in the event that further discovery demonstrated their involvement in these actions. Counsel for FRASER and ALFASI, suggests that, at all relevant times, LITUCHY had overall responsibility for the maintenance and management of the premises and the construction and safety procedures thereon. He claims that both FRASER and ALFASI responded to the alarm on March 27, 2004 and that their serious injuries occurred when an explosion occurred during the course of their responding to the fire. Counsel claims that the fire on the premises in March 2004 was caused by the negligence of one (1) or more of the named defendants, which ignited one (1) or more large propane gas cylinders which were illegally [*4]stored on the property causing an explosion. It is counsel's position that the explosion was caused by the negligence of the defendants, including the movants herein and two (2) sub-contractors assisting in the renovations and repairs, ALLWAYS ELECTRIC and OCEANSIDE PLUMBING. Counsel urges that summary judgment should be denied where it appears from the affidavits submitted in opposition that facts essential to justify the opposition may exist but cannot then be stated because additional discovery is required. CPLR §3212(f). Counsel suggests that a genuine issue of material fact exists simply because LITUCHY has created a web of inter-related entities, sharing the same address at 3115 Long Beach Road, Oceanside New York, as well as the same officers and employees. Counsel argues that these various entities, as well as LITUCHY himself, have been involved in the ownership, operation, maintenance and reconstruction of the premises where the two (2) firefighters were injured. He urges that further discovery is needed to determine exactly which entities had the responsibility for the ownership, maintenance, operation and renovation of the subject premises during the relevant period of time. Counsel claims that LITUCHY acknowledged his personal involvement with the subject premises in the deposition held with respect to Action #

1 and the building Superintendent identified LITUCHY as the Boss and Manager who regularly came to the site during construction. Counsel urges that there remain genuine issues of material fact which, at least, requires further discovery as to LITUCHY's personal role in the premises and his responsibility for the fires that occurred there and his use of a "web of inter related entities in an apparent attempt to avoid liability". With respect to the April 2003 fire, even though the Fire Marshal found that said fire was caused by a poorly attended candle lit by a tenant, counsel maintains that the defendants should have properly maintained and supervised the subject premises and complied with industry rules and regulations and standards regarding the structure and maintenance of the premises including appropriate means to contain a potential fire and the use of materials in the structure that would not be a danger to fire fighters and other emergency personnel. Counsel states that there is no basis to impose sanctions on plaintiffs or their attorney for their claim is not frivolous and the motion is brought, rather, to "short circuit" discovery.

In reply, counsel for defendant LITUCHY contends that, based upon his clients affidavit, that he was not individually involved with the subject premises in any manner on April 21, 2003 and March 27, 2005, he has made a prima facie showing that requires plaintiffs' counsel to come forward with evidence in admissible form that raises an issue of fact that LITUCHY was involved, not as an officer of a corporation but in his individual capacity. With respect to REDCO HOMES, INC., LITUCHY states that REDCO HOMES, INC. was not retained to do work at the premises until after the April 21, 2003 fire and was not the owner, possessor or general contractor on the date of the first fire. Counsel argues that only the owner or tenant in possession of realty has a duty of reasonable care to maintain the property. Similarly, LITUCHY states that REDCO CONTRACTING CORP. did not come into existence until March 16, 2004 and had no connection with the premises until after the March 2004 fire and, therefore, it had no duty with respect thereto and cannot be held liable in these actions. Counsel contends that the party asserting that evidence obtained through discovery would defeat the motion must demonstrate to the Court a good faith factual basis for that belief. Counsel for defendants urges that the evidence submitted in opposition to the motion falls far short of that needed to defeat the motion for summary [*5]judgment.

In viewing motions for summary judgment, it is well settled that summary judgment is a drastic remedy which may only be granted where there is no clear triable issue of fact (see, Andre v Pomeroy, 35 NY2d 361, 362 NYS2d 131, 320 NE2d 853 [C.A. 1974]; Mosheyev v Pilevsky, 283 AD2d 469, 725 NYS2d 206 [2nd Dept. 2001]. Indeed, "[e]ven the color of a triable issue, forecloses the remedy" Rudnitsky v Robbins, 191 AD2d 488, 594 NYS2d 354 [2nd Dept. 1993]). Moreover "[i]t is axiomatic that summary judgment requires issue finding rather than issue-determination and that resolution of issues of credibility is not appropriate" (Greco v Posillico, 290 AD2d 532, 736 NYS2d 418 [2nd Dept. 2002]; Judice v DeAngelo, 272 AD2d 583, 709 NYS2d 817 [2nd Dept. 2000]; see also S.J. Capelin Associates, Inc. v Globe Mfg. Corp., 34 NY2d 338, 357 NYS2d 478, 313 NE2d 776 [C.A.1974]). Further, on a motion for summary judgment, the submissions of the opposing party's pleadings must be accepted as true (see Glover v City of New York, 298 AD2d 428, 748 NYS2d 393 [2nd Dept. 2002]). As is often stated, the facts must be viewed in a light most favorable to the non-moving party. (See, Mosheyev v Pilevsky, supra ). The burden on the moving party for summary judgment is to demonstrate a prima facie entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issue of fact (Ayotte v Gervasio, 81 NY2d 1062, 601 NYS2d 463, 619 NE2d 400 [C.A.1993]; Winegrad v New York University Medical Center, 64 NY2d 851, 487 NYS2d 316, 476 NE2d 642 (C.A. 1985); Drago v King, 283 AD2d 603, 725 NYS2d 859 [2nd Dept. 2001]). If the initial burden is met, the burden then shifts to the non-moving to come forward with evidence to demonstrate the existence of a material issue of fact requiring a trial. (CPLR§ 3212, subd [b]; see also GTF Marketing, Inc. v Colonial Aluminum Sales, Inc., 66 NY2d 965, 498 NYS2d 786, 489 NE2d 755 [C.A. 1985]; Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595, 404 NE2d 718 [C.A. 1980]). The non-moving party must lay bare all of the facts at its disposal regarding the issues raised in the motion. (Mgrditchian v Donato, 141 AD2d 513, 529 NYS2d 134 [2nd Dept. 1988]).

Generally, the Courts will not pierce the corporate veil to reach a shareholder since the corporate form is a legitimate means of avoiding personal liability (see, Bartle v Home Owners Co-op., 309 NY 103, 127 NE2d 832 [C.A. 1955]). When, however, a corporation has been so dominated by an individual or corporation, and its separate identity so ignored that it transacts the dominator's business instead of its own, and can be called the other's alter ego, the corporate form may be disregarded to achieve an equitable result (Austin Powder Co. v McCullough, 216 AD2d 825, 628 NYS2d 855 [3rd Dept. 1995])

In Morris v New York State Department of Taxation and Finance, 82 NY2d 135, 603 NYS2d 807, 623 NE2d 1157 (C.A. 1993), the New York Court of Appeals stated as follows:

Because a decision whether to pierce the corporate veil in a given instance will necessarily depend on the attendant facts and equities, the New York cases may not be reduced to definitive rules governing the varying circumstances when the power may be exercised (see Presser, Piercing the Corporate Veil § 2.33[1], at 2-291-2-293). Generally, however, piercing the corporate veil requires a showing that: (1) the owners exercised complete domination of the corporation in respect to the transaction attacked; and (2) [*6]that such domination was used to commit a fraud or wrong against the plaintiff which resulted in plaintiff's injury (citations omitted).

While complete domination of the corporation is the key to piercing the corporate veil, especially when the owners use the corporation as a mere device to further their personal rather than the corporate business (see Walkovszky v Carlton, 18 NY2d 414), such domination, standing alone, is not enough; some showing of a wrongful or unjust act toward plaintiff is required (citations omitted). The party seeking to pierce the corporate veil must establish that the owners, through their domination, abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice against that party such that a court in equity will intervene (citations omitted).

In an action for negligence, the law provides that a defendant is not an insurer, and negligence may not be inferred solely from the happening of an accident, but rather claimant must prove that the defendant breached a duty of care owed to claimant and that the breach of duty proximately caused the claimant's injury. Valentine v State of New York, 192 Misc. 2nd 706, 747 NYS2d 282 (Court of Claims, 2002). Patrick v Bally's Total Fitness, 292 AD2d 433, 739 NYS2d 186 (2nd Dept. 2002), instructs that, while the owner or possessor of property has a duty to maintain the property in a reasonably safe condition and may be held liable for injures arising from a "dangerous condition" on the property, liability attaches to the owner or possessor only if the owner possessor created the condition or had actual knowledge or constructive notice of it, and a reasonable time to remedy it. To constitute constructive notice, "a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it". Gordon v American Museum of Natural History, 67 NY2d 835, 501 NYS2d 646, 492 NE2d 774 (C.A. 1986).

Discussion

After a careful reading of the submissions herein, it is the judgment of the Court that defendants have established their prima facie right to summary judgment and that plaintiffs have failed to submit any evidence to demonstrate LITUCHY's dominion and control of the REDCO companies in his individual capacity to warrant that the corporate form of the businesses should be disregarded. Although counsel for plaintiffs has asserted that LITUCHY had overall responsibility for the maintenance and management of the premises and the construction and safety procedures thereon, plaintiffs have not demonstrated that LITUCHY had complete domination of the companies and used same to commit a fraud or wrong against the plaintiffs which resulted in plaintiffs' injuries. Based on the record herein, it appears that all of LITUCHY's involvement with the subject premises was in his capacity as an officer or employee of the various REDCO entities and not as an individual.

The deeds for the premises from 1972 through 2007 reflect that Mr. LITUCHY is not a listed owner and plaintiffs' have failed to raise a triable issue of fact in response.

With respect to REDCO HOMES, INC., plaintiffs have failed to rebut that said [*7]corporation was not the owner, possessor or general contractor of the premises at the time of the April 21, 2003 fire. As such, it had no duty to the plaintiffs seeking damages for the first fire. Moreover, plaintiffs have failed to counter REDCO CONTRACTING CORP.'s argument that it only came into existence on March 16, 2004 and did not have any connection with the subject property until after the fires. The hope or speculation that discovery may lead to material or relevant information necessary to defeat the motion is insufficient. No good faith basis has been demonstrated for that belief. Connecticut Indem. Co. v Travelers Ins., supra .

ORDERED, that defendants' motion to dismiss all claims against BARRY T. LITUCY in his individual capacity is granted; and it is further

ORDERED, that defendants' motion to dismiss all claims against REDCO HOMES INC. with respect to the April 2003 fire is granted; and it is further

ORDERED, that defendants' motion to dismiss all claims against REDCO CONTRACTING CORP. with respect to both fires is granted; and it is further

ORDERED, that the caption shall henceforth read as follows:

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NASSAU

_______________________________________

ASSURANCE COMPANY OF AMERICA as

subrogee of PINETOWN HOUSES CO. c/o

REDCO MANAGEMENT CORP., and PINETOWN

HOUSES CO. c/o REDCO MANAGEMENT CO.,

Plaintiffs,

-against-INDEX NO: 3454/05

ALL WAYS ELECTRIC CORP.,Action #

1

Defendants,

_______________________________________

ALL WAYS ELECTRIC CORP.,

Third-Party Plaintiff,

-against-

OCEANSIDE PLUMBING & HEATING CONTRACTORS,

INC.,

Third-Party Defendant.

_______________________________________

_______________________________________ [*8]

DANIEL FRASER,

Plaintiff,

-against-INDEX NO: 6197/06

ALLWAYS ELECTRIC CORP. a/k/aAction #

2

ALL WAYS ELECTRIC CORP.

Defendant.

_______________________________________

ALL WAYS ELECTRIC CORP.,

Third-Party Plaintiff,

-against-

OCEANSIDE PLUMBING & HEATING CONTRACTORS,

INC., PINE TOWN HOUSES COMPANY, L.P., REDCO

MANAGEMENT CORP.,

Third-Party Defendants.

_______________________________________

LOUIS A. ALFASI and KELLY A. ALFASI,

Plaintiffs,

-against-INDEX NO: 6186/06

ALLWAYS ELECTRIC CORP. a/kaAction #

3

ALL WAYS ELECTRIC CORP.,

Defendants.

_______________________________________

ALL WAYS ELECTRIC CORP.

Third-Party Plaintiff,

-against-

OCEANSIDE PLUMBING & HEATING CONTRACTORS,

INC., PINE TOWN HOUSES COMPANY, L.P.,

REDCO MANAGEMENT CORP.,

Third-Party Defendants.

_______________________________________ [*9]

_______________________________________

LOUIS A. ALFASI and KELLY A. ALFASI,

Plaintiffs,

-against-INDEX NO: 14100/05

REDCO REAL ESTATE DEVELOPMENT CO.,Action #

4

PINE TOWN HOUSES CO. a/k/a PINE TOWN

COMPANY, REDCO MANAGEMENT,

MSR ARCHITECTURE, and OCEANSIDE

PLUMBING & HEATING, INC.,

Defendants.

_______________________________________

DANIEL FRASER,

Plaintiff,

-against-INDEX NO: 14061/05

REDCO REAL ESTATE DEVELOPMENT CO.,Action #

5

PINE TOWN HOUSES CO., a/k/a PINE TOWN

COMPANY, REDCO MANAGEMENT,

MSR ARCHITECTURE, and OCEANSIDE

PLUMBING & HEATING, INC.,

Defendants.

_______________________________________

and it is further

ORDERED, that defendants' request for a hearing pursuant to 22 NYCRR §130-1.1 is denied. Counsel for plaintiffs have named numerous defendants in prosecuting this litigation of behalf of the injured firefighters that they represent. The Court does not find that their actions rise to the level contemplated by the statute to warrant sanctions; and it is further

ORDERED, that counsel for all remaining parties shall appear for a previously scheduled Certification Conference, on October 17, 2007, at 9:30 A.M.

All further requested relief not specifically granted is denied.

This constitutes the decision and order of the Court.

Dated: September 20, 2007

_________________________

WILLIAM R. LaMARCA, J.S.C.

assurance-pinetown,redco-allways,#

04/sumjudg