Preview
FILED: BRONX COUNTY CLERK 04/12/2021 11:22 PM INDEX NO. 35478/2020E
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 04/12/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
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DAVID FISHER,
Index No: 35478/2020E
Plaintiff,
-against-
TUTOR-PERRINI, CITY OF NEW YORK,
TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY,
METROPOLITAN TRANSPORTATION AUTHORITY
and PORT AUTHORITY OF NEW YORK AND NEW
JERSEY,
Defendants.
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MEMORANDUM OF LAW IN SUPPORT OF
TUTOR PERINI CORPORATION’S PRE-ANSWER MOTION TO DISMISS
CULLEN and DYKMAN LLP
Attorneys for Defendant
TUTOR PERINI CORPORATION i/s/h/a TUTOR-
PERRINI
44 Wall Street, 15th Floor
New York, NY 10005
(212) 732-2000
File No: 5444-37
Counsel:
Cody A. Brittain, Esq.
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PRELIMINARY STATEMENT
Plaintiff allegedly sustained personal injuries sustained on March 21, 2020 while working
for Restani Construction Corp. (“Restani”) at the Henry Hudson Bridge. However, Plaintiff’s
claims against Defendant, TUTOR PERINI CORPORATION i/s/h/a TUTOR-PERRINI (“Tutor
Perini”), must be dismissed because Tutor Perini had absolutely no involvement with Plaintiff’s
alleged injury or the work he was performing when the alleged injury occurred.
When the alleged accident occurred, Restani was performing work pursuant to an
agreement with Defendant, TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY
(“TBTA”). The agreement, known as Contract # HH-88B/HH-13A, is formally entitled:
“Reconstruction of Upper and Lower Level Toll Plazas and Southbound Approach at the Henry
Hudson Bridge and Lighting Replacement at Northbound/Southbound Henry Hudson
Parkways.” Tutor Perini did not contract for any work on this project; did not perform any work
on this project; and did not work in the vicinity of this project.
Tutor Perini agreed to perform work pursuant to an entirely separate TBTA contract. THe
work was located in an entirely separate location and done pursuant to separate contracts and
scopes of work. Tutor Perini was engaged on Contract # HH-89, formally entitled: “Design-
Build for Rehabilitation of Skewbacks, Viaduct Piers, and Lower Level North Abutment for
Henry Hudson Bridge.”
Tutor Perini cannot be held liable for the alleged accident. It did not perform any work or
services in the vicinity of the alleged accident had had no authority to supervise or control the
work which caused the alleged accident.
STANDARD OF REVIEW
The New York Civil Practice Laws and Rules authorize a party to move to dismiss a
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cause of action where “a defense is founded upon documentary evidence”. See CPLR 3211(a)(1).
Although pleadings are generally construed liberally when confronted with motions to dismiss,
“allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by
documentary evidence are not entitled to any such consideration.” Simkin v. Blank, 19 N.Y.3d
46, 52 (2012). In other words, the ordinary “entitlement to the presumption of truth and the
favorable inferences is rebutted [. . .] [w]here documentary evidence flatly contradicts the factual
claims.” Scott v. Bell Atl. Corp., 282 A.D.2d 180, 183 (1st Dep’t 2001), aff'd as modified sub
nom. Goshen v. Mut. Life Ins. Co. of New York, 98 N.Y.2d 314 (2002); see also Biondi v.
Beekman Hill House Apartment Corp., 257 A.D.2d 76, 81 (1st Dep’t 1999), aff'd, 94 N.Y.2d 659
(2000) (“In cases where the court has considered extrinsic evidence on a CPLR 3211 motion, the
allegations are not deemed true [. . .]. The motion should be granted where the essential facts
have been negated beyond substantial question by the affidavits and evidentiary matter
submitted.”) (internal citations omitted).
Thus, “[i]n assessing a motion to dismiss a cause of action pursuant to CPLR §
3211(a)(7), where evidentiary material is adduced in support of the motion, the court must
determine whether the proponent of the pleading has a cause of action, not whether the
proponent has stated one.” Peter F. Gaito Architecture, LLC v. Simone Development, 46 A.D.3d
530, 530 (2d Dep’t 2007).
Here, the documentary evidence consists of the TUTOR PERINI and Restani contracts
including their respective drawings; the Restani incident report; and the WSP/URS design-
services agreement See, e.g., Lakhi Gen. Contractor, Inc. v. New York City Sch. Const. Auth.,
147 A.D.3d 917, 919, 48 N.Y.S.3d 417, 419 (2d Dep’t 2017) (documentary evidence supporting
a pre-answer motion to dismiss included the construction contracts and the various conditions
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and exhibits contained in such contracts). Together, this evidence conclusively establishes as a
matter of law that Plaintiff has no cause of action against TUTOR PERINI.
Alternatively, should this Court not determine this case as one for dismissal, this Court,
pursuant to CPLR § 3211(c), should treat this motion as one for summary judgment, and upon
treating this motion as one for summary judgment, and upon the documentation submitted as part
of this motion, granting TUTOR PERINI summary judgment. See California Suites, Inc. v.
Russo Demolition, Inc., 98 A.D.2d 144 (1st Dep’t 2012).
ARGUMENT
POINT I
THE COURT IS EMPOWERED TO GRANT TUTOR PERINI’S MOTION
The New York Civil Practice Laws and Rules authorize a party to move to dismiss a
cause of action on the ground that “a defense is founded upon documentary evidence”.” See
CPLR 3211(a)(1). Although pleadings are generally construed liberally when confronted with
motions to dismiss, “allegations consisting of bare legal conclusions as well as factual claims
flatly contradicted by documentary evidence are not entitled to any such consideration.” Simkin
v. Blank, 19 N.Y.3d 46, 52 (2012). In other words, the ordinary “entitlement to the presumption
of truth and the favorable inferences is rebutted [. . .] [w]here documentary evidence flatly
contradicts the factual claims.” Scott v. Bell Atl. Corp., 282 A.D.2d 180, 183 (1st Dep’t 2001),
aff'd as modified sub nom. Goshen v. Mut. Life Ins. Co. of New York, 98 N.Y.2d 314 (2002); see
also Biondi v. Beekman Hill House Apartment Corp., 257 A.D.2d 76, 81 (1st Dep’t 1999), aff'd,
94 N.Y.2d 659 (2000) (“In cases where the court has considered extrinsic evidence on a CPLR
3211 motion, the allegations are not deemed true [. . .]. The motion should be granted where the
essential facts have been negated beyond substantial question by the affidavits and evidentiary
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matter submitted.”) (internal citations omitted).
Thus, “[i]n assessing a motion to dismiss a cause of action pursuant to CPLR §
3211(a)(7), where evidentiary material is adduced in support of the motion, the court must
determine whether the proponent of the pleading has a cause of action, not whether the
proponent has stated one.” Peter F. Gaito Architecture, LLC v. Simone Development, 46 A.D.3d
530, 530 (2d Dep’t 2007).
Here, the documentary evidence conclusively establishes as a matter of law that Plaintiff
has no cause of action against TUTOR PERINI.
Alternatively, should this Court not determine this case as one for dismissal, this Court,
pursuant to CPLR § 3211(c), should treat this motion as one for summary judgment, and upon
treating this motion as one for summary judgment, and upon the documentation submitted as part
of this motion, granting TUTOR PERINI summary judgment. See California Suites, Inc. v.
Russo Demolition, Inc., 98 A.D.2d 144 (1st Dep’t 2012).
POINT II
TUTOR PERINI OWED NO DUTY TO PLAINTIFF
Plaintiff alleges that each of the Defendants breached their common law duty owed to
Plaintiff and committed violations of Sections 200, 240(1), and 241(6) of the New York Labor
Law. However, documentary evidence, together with the affidavit of Mr. Nastro, establishes that
TUTOR PERINI cannot be held liable under any of the alleged causes of action.
It is well-settled that Sections 240(1) and 241(6) of the New York Labor Law apply only
to “owners”, “contractors”, and their “agents”. Indeed, the express statutory language of those
statutes limits liability to these three designations. It is equally well-settled that by “contractors”
and “agents”, Sections 240(1) and 241(6) of the Labor Law refer to entities who have authority
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to insist upon safe work practices. See Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 317
(1981) (“[T]he history underlying section 241, as amended, clearly manifests the legislative
intent to place the ultimate responsibility for safety practices at building construction jobs where
such responsibility actually belongs, on the owner and general contractor.”) (internal citations
omitted).
In the instant matter, the alleged incident occurred on a Project which was entirely
separate and distinct from TUTOR PERINI’s project. The Restani project was done in separate
locations, pursuant to separate contracts and scopes of work, and through different contractors.
TUTOR PERINI cannot be held liable as a “contractor” or “agent” under the Labor Law because
it had no contractual relationship, privity or agency with Plaintiff’s employer or with TBTA
specifically concerning the Restani Project.
Nor can Plaintiff maintain a claim under common law negligence or Labor Law § 200
(which codifies the common law duty of care). “An implicit precondition to this duty is that the
party charged with that responsibility has the authority to control the activity bringing about the
injury.” Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877 (1993) (internal
citations omitted); see also Cahill v. Triborough Bridge & Tunnel Auth., 31 A.D.3d 347, 350–51,
819 N.Y.S.2d 732 (2006) (“Liability under [Labor Law §200] requires not only direct
supervision or control over the injury-producing work, but also actual or constructive notice of
the dangerous condition that caused plaintiff's injury.”).
It is clear that TUTOR PERINI cannot be held liable because it had no authority to
supervise or control the Restani Project which Plaintiff alleges caused his injuries.
Furthermore, Plaintiff’s common law negligence claim against TUTOR PERINI must
fail because TUTOR PERINI had no duty or authority, and did not, supervise or control the any
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work occurring on the Restani Project. TUTOR PERINI’s scope of work was completely
separate and apart from Restani’s scope of work. In fact, TUTOR PERINI never worked in the
vicinity of the alleged accident. Therefore, TUTOR PERINI did not create or have notice of an
allegedly dangerous condition or work practice.
Accordingly, Plaintiff’s claims arising under Labor Law § 200 and common law
negligence must be dismissed as against TUTOR PERINI because TUTOR PERINI lacked
authority to supervise or control Plaintiff’s work, and additionally because TUTOR PERINI did
not supervise or control the means and methods of Plaintiff’s work or create or have notice of a
dangerous condition.
CONCLUSION
As explained above, TUTOR PERINI had no involvement with the construction project
on which Plaintiff was engaged when his accident occurred. In fact, TUTOR PERINI’s work
had been long-complete prior to Plaintiff’s incident.
Because TUTOR PERINI neither contracted for nor exercised/had the authority to
exercise control over any aspect of Plaintiff’s work, TUTOR PERINI cannot be held liable for
Plaintiff’s claims, particularly where Plaintiff’s alleged injury arose from his means and methods
and from his use of equipment of which TUTOR PERINI had no involvement. The documentary
evidence, along with the affidavit of Mr. Nastro, make TUTOR PERINI’s showing irrefutable.
WHEREFORE, it is respectfully submitted that the Court grant an Order:
(a) Pursuant to § 3211(a)(1) and 3211(a)(7) of the New York Civil
Practice Law and Rules (“CPLR”), granting TUTOR PERINI’s
pre-answer motion to dismiss as against all claims and cross-
claims because TUTOR PERINI cannot be held liable for those
causes of action alleged in Plaintiff’s Complaint, and because no
triable issue of fact exists as to TUTOR PERINI’s entitlement to
judgment as a matter of law;
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(b) Pursuant to CPLR § 3211(c), treating this motion as one for
summary judgment, and upon treating this motion as one for
summary judgment, and upon the documentation submitted as part
of this motion, granting TUTOR PERINI summary judgment as
against all claims and cross-claims; and/or
(c)For such other and further relief as this Court may deem just and
proper.
Dated: New York, New York
April 12, 2021
CULLEN and DYKMAN LLP
By: ____________________________________
Cody A. Brittain
Attorneys for Defendant
TUTOR PERINI CORPORATION i/s/h/a
TUTOR-PERRINI
44 Wall Street, 15th Floor
New York, New York 10005
(212) 732-2000
File No.: 5444-37
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Preview
FILED: BRONX COUNTY CLERK 04/12/2021 11:22 PM INDEX NO. 35478/2020E NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 04/12/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ---------------------------------------------------------------------X DAVID FISHER, Index No: 35478/2020E Plaintiff, -against- TUTOR-PERRINI, CITY OF NEW YORK, TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY and PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Defendants. ---------------------------------------------------------------------X MEMORANDUM OF LAW IN SUPPORT OF TUTOR PERINI CORPORATION’S PRE-ANSWER MOTION TO DISMISS CULLEN and DYKMAN LLP Attorneys for Defendant TUTOR PERINI CORPORATION i/s/h/a TUTOR- PERRINI 44 Wall Street, 15th Floor New York, NY 10005 (212) 732-2000 File No: 5444-37 Counsel: Cody A. Brittain, Esq. {00931115.DOCX} 1 of 8 FILED: BRONX COUNTY CLERK 04/12/2021 11:22 PM INDEX NO. 35478/2020E NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 04/12/2021 PRELIMINARY STATEMENT Plaintiff allegedly sustained personal injuries sustained on March 21, 2020 while working for Restani Construction Corp. (“Restani”) at the Henry Hudson Bridge. However, Plaintiff’s claims against Defendant, TUTOR PERINI CORPORATION i/s/h/a TUTOR-PERRINI (“Tutor Perini”), must be dismissed because Tutor Perini had absolutely no involvement with Plaintiff’s alleged injury or the work he was performing when the alleged injury occurred. When the alleged accident occurred, Restani was performing work pursuant to an agreement with Defendant, TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY (“TBTA”). The agreement, known as Contract # HH-88B/HH-13A, is formally entitled: “Reconstruction of Upper and Lower Level Toll Plazas and Southbound Approach at the Henry Hudson Bridge and Lighting Replacement at Northbound/Southbound Henry Hudson Parkways.” Tutor Perini did not contract for any work on this project; did not perform any work on this project; and did not work in the vicinity of this project. Tutor Perini agreed to perform work pursuant to an entirely separate TBTA contract. THe work was located in an entirely separate location and done pursuant to separate contracts and scopes of work. Tutor Perini was engaged on Contract # HH-89, formally entitled: “Design- Build for Rehabilitation of Skewbacks, Viaduct Piers, and Lower Level North Abutment for Henry Hudson Bridge.” Tutor Perini cannot be held liable for the alleged accident. It did not perform any work or services in the vicinity of the alleged accident had had no authority to supervise or control the work which caused the alleged accident. STANDARD OF REVIEW The New York Civil Practice Laws and Rules authorize a party to move to dismiss a {00931115.DOCX} 2 of 8 FILED: BRONX COUNTY CLERK 04/12/2021 11:22 PM INDEX NO. 35478/2020E NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 04/12/2021 cause of action where “a defense is founded upon documentary evidence”. See CPLR 3211(a)(1). Although pleadings are generally construed liberally when confronted with motions to dismiss, “allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration.” Simkin v. Blank, 19 N.Y.3d 46, 52 (2012). In other words, the ordinary “entitlement to the presumption of truth and the favorable inferences is rebutted [. . .] [w]here documentary evidence flatly contradicts the factual claims.” Scott v. Bell Atl. Corp., 282 A.D.2d 180, 183 (1st Dep’t 2001), aff'd as modified sub nom. Goshen v. Mut. Life Ins. Co. of New York, 98 N.Y.2d 314 (2002); see also Biondi v. Beekman Hill House Apartment Corp., 257 A.D.2d 76, 81 (1st Dep’t 1999), aff'd, 94 N.Y.2d 659 (2000) (“In cases where the court has considered extrinsic evidence on a CPLR 3211 motion, the allegations are not deemed true [. . .]. The motion should be granted where the essential facts have been negated beyond substantial question by the affidavits and evidentiary matter submitted.”) (internal citations omitted). Thus, “[i]n assessing a motion to dismiss a cause of action pursuant to CPLR § 3211(a)(7), where evidentiary material is adduced in support of the motion, the court must determine whether the proponent of the pleading has a cause of action, not whether the proponent has stated one.” Peter F. Gaito Architecture, LLC v. Simone Development, 46 A.D.3d 530, 530 (2d Dep’t 2007). Here, the documentary evidence consists of the TUTOR PERINI and Restani contracts including their respective drawings; the Restani incident report; and the WSP/URS design- services agreement See, e.g., Lakhi Gen. Contractor, Inc. v. New York City Sch. Const. Auth., 147 A.D.3d 917, 919, 48 N.Y.S.3d 417, 419 (2d Dep’t 2017) (documentary evidence supporting a pre-answer motion to dismiss included the construction contracts and the various conditions {00931115.DOCX} 3 of 8 FILED: BRONX COUNTY CLERK 04/12/2021 11:22 PM INDEX NO. 35478/2020E NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 04/12/2021 and exhibits contained in such contracts). Together, this evidence conclusively establishes as a matter of law that Plaintiff has no cause of action against TUTOR PERINI. Alternatively, should this Court not determine this case as one for dismissal, this Court, pursuant to CPLR § 3211(c), should treat this motion as one for summary judgment, and upon treating this motion as one for summary judgment, and upon the documentation submitted as part of this motion, granting TUTOR PERINI summary judgment. See California Suites, Inc. v. Russo Demolition, Inc., 98 A.D.2d 144 (1st Dep’t 2012). ARGUMENT POINT I THE COURT IS EMPOWERED TO GRANT TUTOR PERINI’S MOTION The New York Civil Practice Laws and Rules authorize a party to move to dismiss a cause of action on the ground that “a defense is founded upon documentary evidence”.” See CPLR 3211(a)(1). Although pleadings are generally construed liberally when confronted with motions to dismiss, “allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration.” Simkin v. Blank, 19 N.Y.3d 46, 52 (2012). In other words, the ordinary “entitlement to the presumption of truth and the favorable inferences is rebutted [. . .] [w]here documentary evidence flatly contradicts the factual claims.” Scott v. Bell Atl. Corp., 282 A.D.2d 180, 183 (1st Dep’t 2001), aff'd as modified sub nom. Goshen v. Mut. Life Ins. Co. of New York, 98 N.Y.2d 314 (2002); see also Biondi v. Beekman Hill House Apartment Corp., 257 A.D.2d 76, 81 (1st Dep’t 1999), aff'd, 94 N.Y.2d 659 (2000) (“In cases where the court has considered extrinsic evidence on a CPLR 3211 motion, the allegations are not deemed true [. . .]. The motion should be granted where the essential facts have been negated beyond substantial question by the affidavits and evidentiary {00931115.DOCX} 4 of 8 FILED: BRONX COUNTY CLERK 04/12/2021 11:22 PM INDEX NO. 35478/2020E NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 04/12/2021 matter submitted.”) (internal citations omitted). Thus, “[i]n assessing a motion to dismiss a cause of action pursuant to CPLR § 3211(a)(7), where evidentiary material is adduced in support of the motion, the court must determine whether the proponent of the pleading has a cause of action, not whether the proponent has stated one.” Peter F. Gaito Architecture, LLC v. Simone Development, 46 A.D.3d 530, 530 (2d Dep’t 2007). Here, the documentary evidence conclusively establishes as a matter of law that Plaintiff has no cause of action against TUTOR PERINI. Alternatively, should this Court not determine this case as one for dismissal, this Court, pursuant to CPLR § 3211(c), should treat this motion as one for summary judgment, and upon treating this motion as one for summary judgment, and upon the documentation submitted as part of this motion, granting TUTOR PERINI summary judgment. See California Suites, Inc. v. Russo Demolition, Inc., 98 A.D.2d 144 (1st Dep’t 2012). POINT II TUTOR PERINI OWED NO DUTY TO PLAINTIFF Plaintiff alleges that each of the Defendants breached their common law duty owed to Plaintiff and committed violations of Sections 200, 240(1), and 241(6) of the New York Labor Law. However, documentary evidence, together with the affidavit of Mr. Nastro, establishes that TUTOR PERINI cannot be held liable under any of the alleged causes of action. It is well-settled that Sections 240(1) and 241(6) of the New York Labor Law apply only to “owners”, “contractors”, and their “agents”. Indeed, the express statutory language of those statutes limits liability to these three designations. It is equally well-settled that by “contractors” and “agents”, Sections 240(1) and 241(6) of the Labor Law refer to entities who have authority {00931115.DOCX} 5 of 8 FILED: BRONX COUNTY CLERK 04/12/2021 11:22 PM INDEX NO. 35478/2020E NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 04/12/2021 to insist upon safe work practices. See Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 317 (1981) (“[T]he history underlying section 241, as amended, clearly manifests the legislative intent to place the ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor.”) (internal citations omitted). In the instant matter, the alleged incident occurred on a Project which was entirely separate and distinct from TUTOR PERINI’s project. The Restani project was done in separate locations, pursuant to separate contracts and scopes of work, and through different contractors. TUTOR PERINI cannot be held liable as a “contractor” or “agent” under the Labor Law because it had no contractual relationship, privity or agency with Plaintiff’s employer or with TBTA specifically concerning the Restani Project. Nor can Plaintiff maintain a claim under common law negligence or Labor Law § 200 (which codifies the common law duty of care). “An implicit precondition to this duty is that the party charged with that responsibility has the authority to control the activity bringing about the injury.” Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877 (1993) (internal citations omitted); see also Cahill v. Triborough Bridge & Tunnel Auth., 31 A.D.3d 347, 350–51, 819 N.Y.S.2d 732 (2006) (“Liability under [Labor Law §200] requires not only direct supervision or control over the injury-producing work, but also actual or constructive notice of the dangerous condition that caused plaintiff's injury.”). It is clear that TUTOR PERINI cannot be held liable because it had no authority to supervise or control the Restani Project which Plaintiff alleges caused his injuries. Furthermore, Plaintiff’s common law negligence claim against TUTOR PERINI must fail because TUTOR PERINI had no duty or authority, and did not, supervise or control the any {00931115.DOCX} 6 of 8 FILED: BRONX COUNTY CLERK 04/12/2021 11:22 PM INDEX NO. 35478/2020E NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 04/12/2021 work occurring on the Restani Project. TUTOR PERINI’s scope of work was completely separate and apart from Restani’s scope of work. In fact, TUTOR PERINI never worked in the vicinity of the alleged accident. Therefore, TUTOR PERINI did not create or have notice of an allegedly dangerous condition or work practice. Accordingly, Plaintiff’s claims arising under Labor Law § 200 and common law negligence must be dismissed as against TUTOR PERINI because TUTOR PERINI lacked authority to supervise or control Plaintiff’s work, and additionally because TUTOR PERINI did not supervise or control the means and methods of Plaintiff’s work or create or have notice of a dangerous condition. CONCLUSION As explained above, TUTOR PERINI had no involvement with the construction project on which Plaintiff was engaged when his accident occurred. In fact, TUTOR PERINI’s work had been long-complete prior to Plaintiff’s incident. Because TUTOR PERINI neither contracted for nor exercised/had the authority to exercise control over any aspect of Plaintiff’s work, TUTOR PERINI cannot be held liable for Plaintiff’s claims, particularly where Plaintiff’s alleged injury arose from his means and methods and from his use of equipment of which TUTOR PERINI had no involvement. The documentary evidence, along with the affidavit of Mr. Nastro, make TUTOR PERINI’s showing irrefutable. WHEREFORE, it is respectfully submitted that the Court grant an Order: (a) Pursuant to § 3211(a)(1) and 3211(a)(7) of the New York Civil Practice Law and Rules (“CPLR”), granting TUTOR PERINI’s pre-answer motion to dismiss as against all claims and cross- claims because TUTOR PERINI cannot be held liable for those causes of action alleged in Plaintiff’s Complaint, and because no triable issue of fact exists as to TUTOR PERINI’s entitlement to judgment as a matter of law; {00931115.DOCX} 7 of 8 FILED: BRONX COUNTY CLERK 04/12/2021 11:22 PM INDEX NO. 35478/2020E NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 04/12/2021 (b) Pursuant to CPLR § 3211(c), treating this motion as one for summary judgment, and upon treating this motion as one for summary judgment, and upon the documentation submitted as part of this motion, granting TUTOR PERINI summary judgment as against all claims and cross-claims; and/or (c)For such other and further relief as this Court may deem just and proper. Dated: New York, New York April 12, 2021 CULLEN and DYKMAN LLP By: ____________________________________ Cody A. Brittain Attorneys for Defendant TUTOR PERINI CORPORATION i/s/h/a TUTOR-PERRINI 44 Wall Street, 15th Floor New York, New York 10005 (212) 732-2000 File No.: 5444-37 {00931115.DOCX} 8 of 8