Upon the foregoing cited papers and after oral argument on June 5, 2024, pursuant to CPLR §§3211(a)(1) and/or (a)(7), Defendants Erie Basin Marine Associates, Hughes Bros. Inc., Hughes Maritime, Inc., RCI Partners, LLC and Reinauer Realty Holdings, LLC’s (collectively “Marine”) Motion for an Order dismissing the claims asserted against them is DENIED. BACKGROUND: On February 12, 2024, Plaintiff Great American Insurance Company (“GAIC”), as subrogated underwriter of Sevenson Environmental Services Inc. (“Sevenson” or “Subrogor”), commenced this action by filing a summons and a complaint verified by counsel1. The complaint alleges that Defendants Hughes Bros, Hughes Maritime, RCI Partners and/or Reinauer Realty are the member partners of the Erie Basin Marine Associates General Partnership. The complaint alleges that “Sevenson was staging an extensive length of HDPE piping in the ‘Erie Basin Bargeport’ immediately adjacent to the [Erie Basin's] building located at 700 Columbia Avenue in [Brooklyn]…wherein NYC housed a Police Department Evidence Storage Warehouse” (“Evidence Warehouse”)2. Sevenson was allegedly staging the piping at the Premises for use in a construction project on the Gowanus Canal for non-parties Cashman Dredging and Marine Construction Co., LLC., pursuant to a purchase order for piping with Defendant Hughes Bros. in or about December 20223. Sevenson’s property was damaged as a result of a fire on December 13, 2022 at the NYPD Evidence Warehouse which allegedly: “was the result of Erie Basin and/or NYC/NYPD’s failure to prudently and properly, own, lease, keep, maintain, and control the subject Premises, and the fire spread due the failure of Erie Basin and/or NYC/NYPD to appropriately maintain the fire suppression system in a manner sufficient to service the Premises”4. The complaint asserts the first cause of action for negligence against Defendants based on the allegation that “the fire was the result of Erie Basin and/or NYC/NYPD’s failure to prudently and properly, own, lease, keep, maintain, and control the subject Premises, and the fire spread due [Defendants'] failure…to appropriately maintain the fire suppression system in a manner sufficient to service the Premises”5. The second cause of action asserts a claim for breach of the purchase order by Hughes Bros. The complaint alleges that “Hughes Bros. had an obligation under the purchase order to reimburse Sevenson for any damages, including property damage and loss of use or services, resulting from any act or omission by Hug[h]es Bros.” and that “Hughes Bros. breached that obligation under the purchase order by failing to reimburse Sevenson for the damages it suffered as result of the fire occurring on December 13, 2022″6. Notably, while the complaint seeks damages of $565,246.00, it also explicitly alleges that GAIC only paid Sevenson $163,587.007. Marine Defendants’ Pre-Answer Dismissal Motion: On March 29, 2024, pursuant to CPLR §3211 (a) (1) and/or (a) (7), Marine Defendants e-filed a pre-answer motion seeking dismissal of the claims asserted against them. Notably, Marine Defendants submit only an attorney affirmation arguing that “Plaintiffs have failed to include the critical factors of the Purchase Order and fail to state that Plaintiff G[AIC's] Subrogor, Sevenson, also entered into a Hold Harmless Agreement with Marine Defendants prior to the date of the fire at the Premises”8. Defendants submitted copies of the December 7, 2022 Hold Harmless Agreement and the December 14, 2022 purchase order, and asserts that the purchase order with the indemnification provision post-dates the December 13, 2022 fire9. Defendants assert that the Hold Harmless Agreement, which was in effect at the time of the fire, “explicitly provides for first-party indemnification between the parties by specifically addressing Sevenson’s ‘operations at the Erie Basin Bargeport’”10. Defendants assert that “the indemnity language of the Purchase Order entered after the casualty and which is applicable only to third-party claims does not support a viable cause of action for breach of contract against Marine Defendants”11. The moving Defendants also assert that the Hold Harmless Agreement requires that Sevenson indemnify Hughes, which is “the opposite of what is pleaded in this lawsuit”12. Defendants “[d]ocumentary evidence refutes Plaintiffs’ allegations that Marine Defendants are all members of the New York Erie Basin Marine Associates General Partnership”13. Defendants submit a copy of the Erie Basin partnership agreement, which cofirms “Erie Basin Marine Associates General Partnership has two members: Hughes Maritime, Inc. and RCI Partners L.P.”14. Without admissible proof, Defendants assert that “[n]either Hughes Bros. Inc. nor Reinauer Realty Holdings, LLC have ownership interests in the premises where the fire occurred or any other legally cognizable responsibility sounding in negligence with respect to the fire…”15. In addition to an attorney affirmation annexing the complaint, the Hold Harmless Agreement, the Purchase Order and the Erie Basin Partnership Agreement, Marine Defendants submit a memorandum of law arguing that “the Purchase Order relied upon by Plaintiffs post-dates the casualty, was executed after the casualty, has no retroactive effect and does not include the specific location of the alleged incident, clearly supporting dismissal based upon documentary evidence”16. The City’s Opposition: The City of New York and The New York City Police Department (collectively “City”), in “partial opposition,” argue that “[t]here is nothing [in the moving papers] demonstrating what the responsibilities of the respective parties are regarding the subject premises[,]” such as a deed reflecting what entity owns the Premises at which the fire occurred, and “ there has been no discovery to shed light on these material issues”17. In contrast to the assertion by the Marine Defendants, the City Defendants submit information obtained from the website of the Premises (eriebasinbargeport.com), which includes a “Fact Sheet” advising that the Premises are owned and operated by Defendants Reinauer Transportation and Hughes Bros18. The City Defendants assert that the Partnership Agreement submitted by Marine Defendants fails to establish that Defendants Hughes Bros. and Reinauer Realty Holdings had no ownership interest or other responsibilities regarding the subject Premises on the date of the casualty and the dismissal motion does not include a fact affidavit from someone with personal knowledge19. The City Defendants take no position on the breach of contact claim against Hughes Bros. Inc., nor which language controls between the non-municipal parties, the one in the purchase order or in the hold harmless agreement20. GAIC’s Opposition: In opposition, GAIC submits an attorney affirmation asserting that at the time of the December 13, 2023 fire, “Sevenson was utilizing the area immediately adjacent to the Premises pursuant to the oral Purchase Order with the Owner of the Premises…” and that “[t]he terms of the Purchase Order were ultimately memorialized the day after the fire…”21. Plaintiffs’ counsel seemingly asserts that the indemnification provision in the parties’ Purchase Order executed after the fire was somehow retroactively applied22. Plaintiffs’ counsel further argues that the Purchase Order and the Hold Harmless Agreement are “ambiguous,” and therefore, dismissal pursuant to CPLR §3211(a)(1) is not warranted based on documentary evidence23. Marine Defendants’ Reply: In reply, Marine Defendants submit an affirmation from Patrick McTigue, Vice President of Operations for Erie Basin. Mr. McTigue affirms that, as documented in the Erie Basin Partnership Agreement, the only partners of Erie Basin are Hughes Maritime, Inc. and RCI Partners, LLC, and that Erie Basin is the owner of the Premises24. McTigue also submits a copy of the City’s lease of the Premises with Erie Basin, which identifies Erie Basin as the fee owner of the Premises25. Moving Defendants also submit a reply affirmation from Brian Hughes, Vice President of Operations and Sales for Defendant Hughes Bros. Inc. For the first time, Mr. Hughes provided information regarding the parties’ execution of the Purchase Order26. Discussion: “A motion to dismiss made pursuant to CPLR §3211(a)(1) will fail unless the documentary evidence that forms the basis of the defense resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim[s]” (Shaya B. Pacific, LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 37 [2d Dept 2006]; see also 1911 Richmond Ave. Assocs., LLC v. G.L.G. Cap., LLC, 60 AD3d 1021, 1022 [2d Dept 2009]). “In order for evidence submitted in support of a CPLR §3211(a)(1) motion to qualify as documentary evidence, it must be unambiguous, authentic, and undeniable” (Feldshteyn v. Brighton Beach 2012, LLC, 153 AD3d 670, 670-671 [2d Dept 2017] [internal quotations omitted]). Documentary evidence that is not admissible for lack of a foundation cannot serve as the basis for a motion to dismiss, pursuant to CPLR §3211(a)(1) (see Advanced Global Technology, LLC v. Sirius Satellite Radio Inc., 44 AD3d 317, 318 [1st Dept 2007]). Pursuant to CPLR §3211(a)(7), in considering a motion to dismiss for failure to state a cause of action “the pleadings must be liberally construed” and “[t]he sole criterion is whether from [the complaint's] four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law” (Gershon v. Goldberg, 30 AD3d 372, 373 [2d Dept 2006], quoting Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977]; see also Leon v. Martinez, 84 NY2d 83, 87-88 [1994]). “The facts as alleged in the complaint are accepted as true, with the plaintiff accorded the benefit of every favorable inference” (Ginsburg Development Companies, LLC v. Carbone, 85 AD3d 1110, 1111 [2d Dept 2011]; see also Sokol v. Leader, 74 AD3d 1180, 1180-1181 [2d Dept 2010]). Here, the Marine Defendants failed to establish that dismissal is warranted based on defense counsel’s submission of the Purchase Order and the Hold Harmless Agreement. Defendants failed to provide an evidentiary foundation for the admission of such documentary evidence, which is not self-authenticating. Even if the Purchase Order and the Hold Harmless Agreement are considered, on their face, those documents do not utterly refute the allegations in the complaint and/or conclusively establish a complete defense to GAIC’s negligence and breach of contract claims, as a matter of law (see, i.e., Attias v. Costiera, 120 AD3d 1281, 1283 [2d Dept 2014]). Finally, Marine Defendants cannot rely on the affirmations from McTigue and Hughes, because they were improperly submitted for the first time on reply to establish which defendants are members of Erie Basin, the owner of the Premises, and regarding the execution of the Purchase Order (Davis v. Henry, 212 AD3d 597, 598 [2d Dept 2023] [holding that "Pelican cannot rely on additional material improperly submitted for the first time in reply"]). Accordingly it is hereby ORDERED that Moving Defendants’ dismissal motion (mot. seq. 1) is denied. It is further ORDERED that Moving Defendants e-file their answer to the complaint within 10 days after service of this Decision and Order with notice of entry. This constitutes the Decision and Order of the Court. Dated: October 10, 2024
