The following e-filed documents, listed by NYSCEF document number (Motion 002) 22, 23, 24, 25, 26, 27, 39, 51, 52, 53, 56, 58, 60, 63, 65, 68, 70, 72, 76 were read on this motion to/for DISMISS. The following e-filed documents, listed by NYSCEF document number (Motion 003) 40, 41, 42, 43, 44, 45, 46, 48, 57, 59, 61, 62, 64, 66, 67, 71, 73, 74, 75 were read on this motion to/for DISMISS. DECISION + ORDER ON MOTION In motion sequence number 002, defendants OP Development Corp. (OP) and Benenson Capital Partners, LLC (Benenson) (together, OP Defendants) move, pursuant to CPLR 3211(a)(1), (5) and (7), to (i) dismiss the first, second, and fourth causes of action for breach of contract, indemnification and trespass as time-barred; (ii) partially dismiss the third cause of action for violations of Article 12 of New York’s Navigation Law as to the diminution in the value of property claim as time-barred; and (iii) dismiss the verified complaint in its entirety as against Benenson for failure to state a cause of action. In motion sequence number 003, defendant S&S Cadillac Motors Corp. n/k/a KAM Auto Mall Corp. (Kristal)1 moves, pursuant to CPLR 3211 (a)(5) and (7), to dismiss the verified complaint on the grounds that (i) plaintiff’s claims are time-barred; (ii) plaintiff failed to state a cause of action upon which indemnification under the Navigation Law may be granted; and (iii) claims cannot be brough against Kristal Chevrolet Motors Corp, KAM Auto Mall Corp, and KAM Chevrolet Motors Corp. as these are not actual entities that exist or existed in New York. Background Plaintiff Irma C. Pollack LLC (Pollack) alleges claims against OP, Benenson, Kristal, and KAM Chevrolet Motors Corp. (KAM) for (i) breach of a lease agreement between Pollack and OP2 (Lease) pertaining to real property located at 5200 Kings Highway, Brooklyn, New York (Property); (ii) indemnification for the damages arising from or relating to the contamination of the Property, including clean-up costs and diminution of the Property’s value; (iii) trespass, by causing, allowing and/or failing to remediate the contamination of the Property; and (iv) violations of the Navigation Law by causing, allowing and/or failing to remediate the discharge of petroleum on and/or into the Property. Unless indicated otherwise, the following facts are taken from the verified complaint, and for the purposes of these motions to dismiss, are accepted as true. Pollack was the owner of the Property at all relevant times. (NYSCEF 24, Verified Complaint 1.) Benenson directly or indirectly owned OP. (Id. 10.) Pursuant to the assignment of the Lease, OP entered into possession of the Property on May 21, 1968. (Id. 17.) On November 1, 1986, Kristal and/or KAM (collectively, Subtenants) entered into possession of the Property pursuant to a sublease between them and OP (the Original Sublease). (Id. 18.) Through extensions or renewals of the Original Sublease, at least one of the Subtenants remained in continuous possession of the Property, and possession continued through subsequent subleases with OP, the last one dated May 1, 2005 (the Sublease). (Id. 19.) The Lease and Sublease expired on August 31, 2008, but OP and the Subtenants continued to holdover in possession of the Property without permission, requiring litigation against OP and Subtenants in the Civil Court of the City of New York, Kings County. (Id.
20, 21.) On December 12, 2008, the Civil Court found OP and Subtenants liable for holding over and owing use and occupancy. (Id. 22.) OP and the Subtenants continued to holdover until March 31, 2018, at which time they vacated the Property. (Id. 24.) On June 5, 2018, Pollack sold the Property to nonparty PTMA 5200 Kings Highway LLC. (Id. 25.) Pollack alleges that the soil and groundwater at the Property were not contaminated by hazardous substances or petroleum when the Lease commenced, but became contaminated by “petroleum, chlorinated solvents, and semi-volatile organic chemicals” during the Lease and/or Sublease period as a result of defendants’ operation of a retail automobile dealership. (Id.
