The following papers numbered 1 to 26 were read on this motion by defendant, CISCO GENERAL CONSTRUCTION, INC., for an order pursuant to CPLR 3212 granting said defendant summary judgment dismissing the plaintiff's complaint and all cross-claims on the ground that CISCO is not liable to the plaintiff for damages:

Papers

Numbered

Notice of Motion-Affirmation-Exhibits-Memo of Law .....1 - 10

Defendant Parma Tile's Affirmation in Opposition......11 - 17

Defendant Hatziioannou Affirmation in Opposition......18 - 21

Defendant 14-33/35 Astoria Blvd's Affirmation

in Opposition.........................................19 - 22

Reply Affirmation.....................................23 - 26

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This is a subrogation action brought by plaintiff, Hermitage Insurance Company (Hermitage), to recover monies it paid to its [*2]insured, Polis, Inc (Polis). Hermitage made payment to Polis when a cinder block wall, being built as part of a construction project at an adjacent property, collapsed on December 8, 2008 and damaged a building owned by Polis located at 14-37 Astoria Boulevard, Astoria, New York. Hermitage paid $428,721.50 to Polis under the terms of its policy and seeks to recover that sum from the defendants named in this action.

Plaintiff commenced the instant action by filing a summons and complaint on April 12, 2011. Issue was joined by defendant Cisco by service of its answer dated February 12, 2012.

According to the complaint, Polis Inc, Hermitage's subrogor owns a building consisting of leased commercial space and residential apartments located at 14-37 Astoria Boulevard, Astoria New York. At the time of the accident, the neighboring building located at 14-33/35 was undergoing a construction project. The complaint alleges that defendant Parma Tile was a construction manager, defendants 14-33/35 Astoria Boulevard, Papas, Alpha Engineering, and Anthony Sifounios were general contractors, and Cisco and Hatziiooannou were general contractors and construction managers. The complaint asserts that on December 7, 2008, a concrete wall at the construction site collapsed as a result of the negligent, reckless and careless construction activities at the neighboring construction site. As a result of the collapse, Hermitage paid its subrogor, Polis, Inc., an aggregate amount of $428,721.50. In its 22 causes of action the plaintiff asserts that the defendants were negligent in that they failed to use reasonable care in the hiring of the various general contractors, in failing to properly supervise their employees, in failing to ensure the use of proper means and methods of construction, in negligently excavating the neighboring property, and in failing to properly supervise, direct, and control the construction work at the neighboring work site.

Defendant Cisco now moves for summary judgment dismissing the plaintiff's complaint and all cross-claims against it on the ground that Cisco was hired only to build a sidewalk shed/bridge for the project and that it performed no work relating to the collapsed wall. In his affirmation in support of the motion, Cisco's counsel, Sam R. Shapiro, Esq., states that in June 2008, construction began at the 14-33/35 property for a two to three story addition to the existing building. Counsel asserts that the evidence indicates that Parma was the entity to whom the contracts and proposals were addressed. Parma hired Anthony Hatziioannou as the architect for the project and engaged Papas Iron Works to do the steel work. George's Home Improvement and George Sifounis were hired to perform interior construction. Counsel states that on November 11, 2008, Parma Tile contracted [*3]with Cisco to build a sidewalk shed/bridge, including wiring and lighting for the project. Cisco contends that the complaint alleges that the defendants' negligence arises from the construction of the concrete wall that collapsed. Counsel contends that as Cisco only built a sidewalk shed and had no role in the construction of the wall, Cisco cannot be held liable for damages caused by the collapse of the wall.

In support of the motion, Cisco submits a copy of the pleadings, as well as a letter from Mr. Hatziioannou at AHA Architect Planner to Parma Tile proposing that it would render architectural services including preparing schematic design and construction documents for a proposed two to three story vertical addition and modifications to the first floor of the existing one story building at 14-33/35 Astoria Boulevard, Astoria, New York. Counsel also submits a proposal addressed to Parma Tile from Papas Iron Works indicating that Papas would supply and install structural steel and would be responsible for all cranes and permits associated with crane use. George's Home Improvements submitted an estimate for its work on the project which included framing of interior walls suspending ceilings, installing windows and doors providing and installing insulation and sheetrock, painting, performing tiling in nine bathrooms and installing floor tiles. Defendant Cisco also submits its contract with Parma in which it agreed to install a sidewalk shed.

Cisco also submits an affidavit from Balwinder Kaur, the President of Cisco General Construction dated November 29, 2012 in which he states that Cisco's contract with Parma was for the construction of a sidewalk shed/bridge at the premises and that Cisco was not involved in the construction of any concrete walls at the property. He states that the sidewalk bridge was installed on or about November 14, 2008 in accordance with approved drawings from the New York City Department of Buildings. He states that at no time between November 19, 2008 and December 8, 2008, when the wall collapsed, was Cisco involved in any further work at the subject construction site.

Counsel also submits the transcript of the examination before trial of George Sifounios, the owner of George's Home Improvement Corp., taken on April 5, 2011 in a related declaratory judgment action in the United States District Court for the Eastern District of New York. He testified that Jim Vissas of Parma Tile was the general contractor who hired him to do the interior work on the project. He stated that Vissas also asked him to build the cinder block walls. He stated that he constructed the cinder block walls up to the third floor but the steel contractor failed to connect the concrete wall to the steel [*4]structure by welding a rebar. He testified that even though the rebars were not being welded he continued to build the wall up to the third floor. He stated that the steel contractor had a dispute with the Vissas regarding building a fourth floor and as a result the steel contractor stopped working on the project. He stated that when building the wall he cemented a rebar through the middle of the cinder blocks and bent the rebar so that it could be welded to the steel structure. However, although he told Papas, the steel contractor, on at least four occasions to weld the steel rebar to the steel structure to brace the wall, Papas did not weld it because Papas had an ongoing dispute with Vissas. He stated that on the night that the wall fell it was 25 degrees and there was a lot of wind. He stated that when the temperature is that cold the cement to hold the cinder block to the rebar and to hold the cinder block together does not dry. He stated that although he told Vissas that it was too cold to work, Vissas wanted the job completed and told him to work anyway. When asked by Mr. Shapiro whether Sifounios had any interaction with Cisco with regard to construction of the cinder block wall he answered, "no." He stated that Cisco had done no work on the project related to the cinder block wall. He stated that Cisco was at the site to do "cement and foundation." Which was separate from the cinder block wall cement he testified to earlier.

Cisco also submits the deposition testimony of James Vissas, the owner of Parma Tile Mosaic and Marble Company, taken on May 23, 2011 also in connection with the U.S. Underwriters Insurance Company lawsuit in the Eastern District. He stated that he hired architect Hatziioannou to design the plans for the project and later he asked Hatziioannou to inspect the project to insure that the foundation, walls, and steel installation were all being done according to the architectural plans. He stated that he hired George Sifounios to be the general contractor on the project. When asked the scope of the work that Cisco did on the project, Mr. Vissas stated that the only work they did was to build the sidewalk bridge. Cisco did not do any other work on the project.

Cisco contends that it was responsible only for the construction of the sidewalk shed. Construction of the shed began on November 14, 2008 and ended on November 19, 2008. Cisco was not at the site at any time between the completion of the shed construction and the incident on December 7, 2008. Counsel asserts that the deposition testimony of Vissas and Sifounios both demonstrate that the cause of the wall collapse was based upon the improper construction and inspection of the wall by the architect, the steel contractor and Sifounios who was involved in the construction of the wall. According to Sifounios, the wall [*5]collapsed due to improper construction, cold temperatures and strong winds. Counsel contends that the evidence demonstrates, prima facie, that Cisco who only built the sidewalk shed

and had no involvement with the construction, inspection or maintenance of the cinder block wall and therefore bears no liability for the collapse of the wall.

In opposition , defendant 14-33/35 Astoria Blvd and defendant Anthony Hatziioannou submit that the motion must be denied as premature as Cisco has not yet appeared for a deposition to provide testimony regarding the services it provided at the subject project and therefore the parties have not been able to question a representative of Cisco as to the methods utilized by Cisco to construct the scaffolding /sidewalk bridge which may or may not have contributed to the collapse of the wall which allegedly caused the plaintiff's damage.

Counsel for defendant Parma submits an affirmation stating that Cisco was retained by Parma to construct a protective shed around the building to protect persons and property from injuries and damage. Counsel submits an affidavit from James Vissas president of Parma stating that Cisco failed to properly secure the premises by not applying for a permit and not securing the premises pursuant to the NYC Administrative Code. Counsel asserts that Cisco violated Section 27-1021(6) of the NYC Administrative Code in that Cisco failed to install horizontal safety netting when the building facade is not enclosed and there exposure to the pubic or adjacent property. Vissas contends that Cisco failed to secure the construction site and protect people and the adjacent property from sustaining damages as a result of the debris generated from the fall of the wall on December 7, 2008. In addition, Vissas asserts that Cisco may have installed the shed improperly and may have contributed in some way to the fall of the wall. Therefore, he contends that discovery on the contribution of Cisco to the wall accident is necessary. Counsel also asserts that there are material issues of fact as to whether the shed was constructed safely, whether the proper shed was installed and whether Cisco made misrepresentations in its application to the building department and installed a shed in violation of applicable codes and regulations.

Upon review and consideration of the defendant's motion, the affirmations in opposition and defendant's reply thereto, this court finds that the Cisco's motion to dismiss plaintiff's complaint and all cross-claims against it is denied without prejudice to renew following the completion of discovery. Here the depositions submitted by Cisco were not from the instant case [*6]and the co-defendants sufficiently raised questions regarding Cisco's responsibility for preventing damage to property, whether Cisco complied with applicable provisions of the Building Code, and the manner and methods used by Cisco in building the shed. Thus, even if Cisco was not involved in the actual construction of the collapsed wall, the deposition of Cisco might lead to relevant evidence and facts essential to justify opposition to the motion as to the method and means of construction of the shed, whether netting was required and Cisco's responsibility for protecting property from falling debris which facts are within the knowledge and control of Cisco (see CPLR 3212[f]; Bank of Am., N.A. v Hillside Cycles, Inc., 89 AD3d 653 [2d Dept. 2011]; Bond v DeMasco, 84 AD3d 1292 [2d Dept. 2011]; Dietrich v Grandsire, 83 AD3d 994 [2d Dept. 2011]; Botros v Flamm, 77 AD3d 602 [2d Dept. 2010]; Aurora Loan Servs., LLC v. LaMattina & Assoc., Inc., 59 AD3d 578 [2d Dept. 2009]; Trombetta v Cathone, 59 AD3d 526 [2d Dept. 2009]).

Dated: June 10, 2013

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.