Preview
FILED: NEW YORK COUNTY CLERK 10/02/2018 10:57 PM INDEX NO. 150083/2014
NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 10/03/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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ROSENBAUM, ROSENFELD & SONNENBLICK, LLP Index No.: 150083/2014
R&R PROPERTIES LLC AND COMPUTERIZED
DIAGNOSTIC SCANNING ASSOCIATES, P.C.,
Plaintiffs, MEMORANDUM OF LAW IN REPLY
- against -
EXCALIBUR GROUP NA, LLC, A SUPERIOR
SERVICE AND REPAIR CO. INC., HOME SYSTEMS
ENGINEERING, INC., PHILIPS HEALTHCARE,
PHILIPS MEDICAL SYSTEMS NORTH AMERICA
COMPANY, PHILIPS ELECTRONICS NORTH
AMERICA CORPORATION, PHILIPS MEDICAL
SYSTEMS NORTH AMERICA, INC., PHILIPS
HEALTHCARE INFORMATICS, INC.
and ESTATE OF MERLE H. EISENSTEIN,
Defendants.
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R&R THIRD PROPERTIES, LLC, ROSENBAUM, Index No.: 651377/2013
ROSENFELD & SONNENBLICK, LLP, and
COMPUTERIZED DIAGNOSTIC SCANNING
ASSOCIATES, PC,
Plaintiffs,
- against -
GREATER NEW YORK MUTUAL INSURANCE
COMPANY, FEDERAL INSURANCE COMPANY,
TRAVELERS INSURANCE COMPANY OF
CONNECTICUT, and THE HARTFORD STEAM
BOILER INSPECTION AND INSURANCE COMPANY,
Defendants.
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PHILIPS'
REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF
MOTION FOR SUMMARY JUDGMENT
Of Counsel: Christen Giannaros, Esq.
Daniel P. Mevorach, Esq.
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Defendants PHILIPS HEALTHCARE, PHILIPS MEDICAL SYSTEMS NORTH
AMERICA COMPANY, PHILIPS ELECTRONICS NORTH AMERICA CORPORATION,
PHILIPS MEDICAL SYSTEMS NORTH AMERICA, INC., PHILIPS HEALTHCARE
Plaintiffs'
INFORMATICS, INC. ("Philips") submit this Memorandum of Law in reply to and
Philips'
Excalibur Group, NA, LLC's opposition papers and in further support of Motion for
Plaintiffs'
Summary Judgment dismissing complaint.
PRELIMINARY STATEMENT
Plaintiffs have no case against Philips because: (i) Philips did not breach any of its
agreements with the Plaintiffs: it had a Turnkey Construction Agreement, which obligated it to
fund, and hire contractors and design professionals to perform construction work necessary to
create the interior space where the Scanner would be operated (but did not, contrary to Plaintiff's
obligations, impose any duty on Philips to perform that work, or supervise the contractors and
designers), ithad a Service Agreement, which obligated itto repair the Scanner (except in case of
casualty loss, such as the flood event in this case), and it did not, have (as Plaintiffs apparently
concede in their opposition) any agreement with the Plaintiffs to repair the Scanner. Philips breach
none of those agreement.
In addition, since both Plaintiffs and their insurer, Federal Insurance relied on their own
experts, not Philips, to determine whether the Scanner was repairable and whether repairs had been
satisfactorily repaired, no claim for negligent misrepresentation lies.
Plaintiffs'
argument that Philips was negligent in the design, supervision, and installation
of the plumbing system is belied by the terms of the Turnkey Proposal, which only obligate Philips
"furnish"
to the plumbing plans and drawings for the jobsite. Philips is not a contractor, engineer,
or design professional and was under no duty to approve, sign off, or design the actual plumbing
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system. Moreover, Plaintiffs fail to explain how or why the plumbing system was negligently
installed, supervised, and designed and submit no expert evidence to support this contention.
Philips'
Additionally, no claim for negligent repair of the Scanner exists. For the repairs to
Philips'
have been negligent, Plaintiffs must demonstrate that performance of the repairs caused
consequential damage. If Philips failed to repair the Scanner, having been hired by Federal to
repair it,then Federal might conceivably have a remedy against Philips. But in this instance, the
Plaintiff's remedy if the Scanner was not repaired is against Federal only, not Philips.
PHILIPS WAS UNDER NO DUTY TO APPROVE OR
DESIGN THE PLUMBING DRAWINGS
Philips'
moving papers establish that Philips did not perform any aspect of the construction
or plumbing work and itcannot be held vicariously liable for the torts of independent contractors.
See, e.g. Sanabria v. Aguero-Borges, 117 A.D.3d 1024 (2nd Dept. 2014). In opposition, Plaintiffs
argue for the first time that Philips was negligent in the design of the plumbing system at the
Plaintiffs'
property, which resulted in two overflows of water from a clogged toilet. This argument
finds no basis in fact.
Services"
The "Design and Expediting section of the Turnkey Proposal provides that
drawings"
Philips will "Furnish sealed architectural and "Furnish sealed engineer drawings for
work." "E"
structural, mechanical, electrical and plumbing See Exhibit to original moving papers.
Philips, a scientific equipment manufacturer, did not promise to undertake an independent
review of the - under the contract its was limited to
engineering drawings, responsibility furnishing
the plans for the work. Furthermore, there is no evidence whatsoever that the plumbing plans were
Plaintiffs'
negligently prepared or faulty in any way. bald argument that "Philips was negligent in
system"
the design of the plumbing is entirely speculative and unsupported.
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NO CAUSE OF ACTION FOR NEGLIGENT
REPAIR EXISTS
Philips was hired by FEDERAL INSURANCE COMPANY to repair a machine that
sustained water damage from a flood. At worst, Philips did not make adequate repairs and the
machine remained inoperable. Plaintiff has no viable tort claim since no legal duty independent of
the contract was violated, and since ithad alleged only economic loss. A simple breach of contract
does not give rise to a tort claim unless a legal duty independent of the contract has been violated
See Clark-Fitzpatrick, Inc. v Long Is. R. R. Co., 70 N.Y.2d 382, 389 (1987). Additionally, a
contracting party seeking only a benefit of the bargain recovery, viz., economic loss under the
contract, may not sue in tort notwithstanding the use of familiar tort language in its pleadings.
Here, the alleged failure to repair did not result in any consequential damage. Children's Corner
Learning Center v. A. Miranda Contracting Corp., 64 A.D.3d 318 (1st Dept. 2009).
repair"
The "negligent claim is brand new, concocted by the Plaintiffs for the first time in
"
opposition to this motion. See Exhibit "T. Plaintiffs rely on their inclusion of the language
demand"
"Plaintiffs previously produced documents responsive to this to somehow incorporate
the claim that Philips negligently repaired the Scanner. This reference to unidentified external
documents, however, is not permitted. Responses to a demand for a bill must clearly detail the
defendant."
specific acts of negligence attributed to each Miccarelli v. Fleiss, 219 A.D.2d 469, 470
(1st Dept. 1995). Therefore, "response by reference to other documents or items is improper in a
request for a bill of particulars. Each item of a demand should be answered separately and
categorically under its own number without reference to either the complaint or to other portions
particulars."
of the bill of Whirl Knits, Inc. v. Adler Business Machines, Inc., 54 A.D.2d 760, 760
(2d Dept. 1976). It follows that this would also prohibit references to any other document outside
the bill of particulars.
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Plaintiffs' discovery"
reference to documents "previously exchanged in is nothing more
than an attempt to lead the Court on a wild goose chase and an attempt to throw up a blizzard of
documents to prevent the court from ruling on this motion.
DR. PECHT'S EXPERT AFFIDAVIT IS CONCLUSORY
Dr. Pecht's expert affidavit is speculative and conclusory, fails to set forth foundational
facts, assumes facts not supported by the evidence, and does not explain how the expert came to
his and is insufficient to raise a triable issue of fact. Rizzo v. Sherwin-
conclusions, therefore,
Williams Co., 49 A.D.3d 847 (2d Dept. 2008). Here, Dr. Pecht's affidavit (1) fails to specify his
knowledge, experience, and/or training in CT/PET Scanners specifically; (2) offers vague and
conclusory opinions as to the repair of the Scanner; (3) does not describe the methods and manner
in which Dr. Pecht reached his conclusions; (4) does not define or state the industry standard of
care or how any deviation caused the damage to the Scanner; and (5) draws conclusions from and
refers to cherry-picked portions of a document from an FDA investigation without any indication
that the circumstances in the FDA investigation were identical to the circumstances at issue here.
The most glaring of these omissions are Dr. Pecht's bald, conclusory statements scattered
throughout his affidavit. For example, without any detail or explanation of Dr. Pecht's
methodology or reasons, Dr. Pecht opines that:
• ...the scanner is not repairable, and should never have been attempted to be
fixed; and presents a reliability and safety risk and that at a minimum a
complete bake out of all electronics would have been necessary prior to the
occurrence of any corrosion products (and not just a "drying out")
• That all electronics should have been replaced at the factory, and properly
requalified.
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• That the repairs made were insufficient and the water-raw sewage damage
reduced the reliability.
Dr. Pecht's affidavit is of comprised of eight one-to-two sentence long bullet points that
arrive at unsubstantiated, unsupported, and unfounded conclusions. There is no mention of what
steps, methods, or steps Dr. Pecht took to arrive at these conclusions. An opposing expert's
affidavit cannot simply contain and rely on bald, conclusory statements, but must set forth the
specific factors, which led the expert to his conclusions. See Micciola v. Sacchi, 36 A.D.3d 869
(2d Dept. 2007); Miller v. City of New York, 242 A.D.2d 370, (2d Dept. 1997); Menzel v. Plotnick,
202 A.D.2d 558 (2d Dept. 1994). Moreover, an expert's lack of expertise or credibility goes to the
weight of consideration and reliability of that expert's opinions. See Adamy v. Ziriakus, 92 N.Y.2d
396 (1998); Erbstein v. Savasatit, 274 A.D.2d 445 (2d Dept. 2000). Neither Dr. Pecht's affidavit
nor his 100-page curriculum vitae cite a single reference to Dr. Pecht's expertise in working with
CT/PET Scanners, which are highly complex and sophisticated machines. Dr. Pecht's inexperience
with CT/PET Scanners specifically renders him unqualified to give his opinions, conclusions and
testimony regarding the Scanner in this case.
NEITHER PLAINTIFFS NOR FEDERAL RELIED ON
PHILIPS'
STATEMENTS REGARDING THE
REPAIRABILITY OF THE SCANNER
Philips'
Neither Federal nor RRS relied on statements regarding the repairability of the
Scanner. Federal retained itsown expert, LWG Consulting, to inspect and give recommendations
"
to Federal regarding the repairs to the Scanner. See Exhibit "J. In itsexpert report to Federal,
LWG inspected the Scanner and concluded that "based on the evidence found, LWG recommends
repaired."
that this machine be Id. Moreover, in an email to Federal from Frank Cuoco, an LWG
condition."
consultant, Mr. Cuoco advised Federal that "the unit was repaired to pre-loss See
"
Exhibit "K, pgs 7-8. LWG believed that the Scanner was repaired and Federal was entitled to
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rely on its expert's independent conclusion in making its policy determinations. Philips
representations about the Scanner did not cause any party to act.
Additionally, Plaintiffs have no special or privity-like relationship with Philips such that
Philips had a duty to impart correct information to the Plaintiffs. Nor was such a relationship pled.
Plaintiffs' Philips."
opposition merely states that Plaintiffs "had a contractual relationship with As
Philips'
more thoroughly briefed in Affirmation in Support, Philips did not have a contract with
"arms-length"
the Plaintiffs to repair the Scanner. Even ifit did, however, such an transaction does
not constitute a relationship of a confidential or fiduciary nature. See Northeast Gen. Corp. v.
Wellington Adv., 82 N.Y.2d 158, 162 (1993) (fiduciary relationships are "grounded in a higher
level of trust than normally present in the marketplace between those involved in arm's length
business transactions.") All of the cases cited by Plaintiffs relate to situations where the plaintiff
and speaker of the misrepresentation shared a special relationship that required the speaker to
impart information with a duty of care. This simply does not exist in the case at bar.
Plaintiffs'
(1) failure to plead the existence of a special relationship of trust or confidence
between the Plaintiffs and Philips and (2) failure to assert facts showing that such a relationship in
Plaintiffs'
fact existed mandate dismissal of negligent misrepresentation claim. See Fidelity Natl.
Tit. Ins. Co. v. NY Land Tit.Agency LLC, 121 A.D.3d 401, 403 (1st Dept. 2014) ("The court
properly dismissed the negligent misrepresentation claims against defendants...the complaint does
not even allege that plaintiff had a special relationship with [defendant]"; Baby Phat Holding Co.,
LLC v. Kellwood Co., 123 A.D.3d 405, 408 (1st Dept. 2014) ("Defendant is correct, however, that
the negligent misrepresentation claim asserted against it fails for lack of any special relationship
between plaintiff and defendant").
Alternatively, Plaintiffs argue that there was a direct misrepresentation by Philips to
Plaintiffs that the Scanner was repairable on site. This claim fails for the same reasons mentioned
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above - both Plaintiffs and Federal had their own experts to evaluate whether the Scanner was
repaired and could be repaired on site, they merely hired Philips to perform the repair.
PHILIPS DID NOT CONTRACT TO UNDERTAKE ANY OF
THE DUTIES AND OBLIGATIONS ALLEGED BY
PLAINTIFFS
Philips' Plaintiffs'
moving papers establish that the contractual breaches alleged in Bill of
Philips'
Particulars do not align with obligations imposed by the Turnkey Proposal. In opposition,
Philips'
Plaintiffs allege that the version of the Turnkey Proposal annexed to moving papers
(Exhibit El) creates a question of fact because itcontains two additional pages that were not
Philips'
disclosed during discovery. These two pages, however, do not alter contractual obligations
in any way and do not disturb the fact that Philips never contracted to undertake any of the
obligations alleged by Plaintiffs.
The only reference to the plumbing work in the Turnkey Proposal is the following: "Rough
schematic." " Plaintiffs'
In Plumbing as per See Exhibit "E. Bill of Particulars provide that Philips
breached the Turnkey Proposal when it:
• failed to install,repair, maintain, and/or inspect the system and/
properly plumbing
or plumbing related lines/pipes at the premises;
• failed to conduct a proper inspection to detect the dangers associated with the
improper installation, maintenance, and/or servicing of the plumbing system and/or
pipes, which Philips knew or should have known created an unreasonable risk of
failure;
• failed to ensure that its agents, servants, contractors and/or workmen abided by
applicable codes, ordinances, rules and regulations concerning the safe installation,
maintenance, service, inspection, and/or repair of the plumbing system and/ or
drainage pipes at the premises;
• failed to advise local authorities of the nature, and hazards associated with
properly
the plumbing system;
• failed to adequately, and inspect and test the and/or
properly safely piping plumbing
and/or its internal components;
1 Pleasenote thatPhilips'Affirmation inSupport refersto Exhibit"E" (the as Exhibit "D,"
mistakenly Turnkey Proposal)
and refersto Exhibit "D" (the Construction as Exhibit"E." Plaintiffs'
opposition also
mistakenly Turnkey Agreement)
refersto Philips'Exhibits inthismanner. For purposes ofthis Exhibits D and E have been
Reply Affirmation, correctly
referred to.
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• failed to recognize the obvious hazard presented the improper installation of the
by
plumbing system and/or drainage pipes at the premises;
• plaintiffs'
failed to warn plaintiffs of the additional risk to the property as a result
of the unsafe servicing, maintenance, installation, and/ or inspection of the
plumbing system and/or drainage pipes at the premises; and
• failed to do those things which were to safe [sic], preserve, and protect
necessary
plaintiffs'
property.
• failed to hire competent servants, contractors, agents, employees and/or workmen
to properly install, repair, maintain, service, and/or inspect the plumbing system
and/or pipes of the premises to avoid the backup of water;
• failed to and supervise the work done its contractors,
properly adequately being by
servants, agents, employees and/or workmen in performing itsplumbing work;
• failed to and instruct its servants, contractors, employees
properly adequately
and/or workmen as to the safe and proper installation of the plumbing system and/or
drainage pipes at the premises; and
• retained incompetent, unlicensed employees, agents, servants, workers,
subcontractors, without the requisite skills and abilities to install, inspect and detect
the potential risk of improper installation of the sanitary and drainage lines as
related to the plumbing system and/or pipes at the premises.
"
See Exhibit "U.
The Turnkey Proposal does not make Philips responsible for performing, inspecting,
supervising, repairing, installing or maintaining the plumbing system. The Turnkey Proposal does
not speak to these obligations and does not impose them upon Philips. Thus, even without the last
two pages of Exhibit "E", the face of the contract establishes that Philips was not obligated to
install, repair or maintain the plumbing system and therefore cannot be held liable for breach of
these obligations. There is no dispute over the material terms of the contract. In any event, the First
Department previously found that A Superior's plumbing work contemplated by its contract was
not performed negligently.
Philips' Philips'
Plaintiffs do not oppose those portions of motion regarding breach of the
Turnkey Construction Agreement (to which Plaintiffs were not a party), breach of the Equipment
Agreements"
Service Agreement, or breach of "Subsequent to repair the Scanner.
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PHILIPS DID NOT TORTIOUSLY INTERFERE WITH
PLAINTIFF'S INSURANCE CONTRACT BECAUSE
INSURER DID NOT RELY ON ANY STATEMENT BY
PHILIPS
Plaintiffs'
attempt to amend their complaint to add a cause of action for tortious inference
Plaintiffs'
of contract is a belated and unavailing attempt to repackage faulty negligent
Plaintiffs'
misrepresentation claim. Both claims fail for the same reason: insurer did not rely on
any statement by Philips.
Plaintiffs'
The crux of claim is that Philips interfered with the insurance contract between
Federal and RRS such that Federal did not want to replace the Scanner. Philips did not intentionally
procure Federal's conduct in this regard - Federal retained its own LWG to
expert, Consulting,
"
opine on whether repairs to the Scanner were appropriate. See Exhibit "J. LWG inspected the
Scanner and concluded that "based on the evidence found, LWG recommends that this machine
repaired."
be Id. Federal's decision to repair, and not replace, the Scanner, was Federal's
independent decision and was based on the information itreceived from LWG. As such, Philips
must be granted summary judgment on Plaintiff's tortious interference of contract claim.
In any event, a motion for summary judgment cannot be defeated by the assertion of new
theories not previously pleaded. Desay ex rel. Yard v. COPO Management, LLC, 105 A.D.3d 453
(1st Dept. 2013). Plaintiffs, for the first time in this litigation, assert a cause of action of tortious
interference with contract. Additionally, "Failure to plead in nonconclusory language facts
establishing all the elements of a wrongful and intentional interference in a contractual relationship
action."
requires dismissal of the Bonanni v. Straight Arrow Publishers, Inc., 133 A.D.2d 525, 587
Plaintiffs' Philips'
(1st Dept. 1987). Within the Complaint, the extent of claims regarding
relationship with Federal are limited to the following:
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76. Philips has made the representation to insurance companies
and to the other defendants that the Scanner is functional.
Philips'
77. Based on representation that the Scanner is
functional and can be used in the medical practice, insurers
have refused to pay for the replacement of the machine and
have refused to pay for business interruption loss beyond the
date when Philips claims the Scanner was operational for
use.
Plaintiffs'
84. Based upon the representations by Philips to
insurers that the Scanner is operational, the insurers have
objected to removal and replacement of the Scanner.
"
See Exhibit "F.
Plaintiffs'
opposition states that Philips, in seeking a lucrative contract to repair the
Scanner, tortuously interfered with the insurance contract between Federal and RRS to replace the
Scanner. The Complaint, however, does not plead any facts establishing (1) the existence of a valid
contract between Plaintiffs and Federal; (2) that Philips had knowledge of that contract; (3) that
Philips intentionally and improperly procured the breach of the contract; and (4) that the breach
resulted in damage to Plaintiffs. The failure to plead these basic elements of a tortious interference
claim mandate dismissal of this claim. See Lama Holding Co. v. Smith Barney Inc., 88 N.Y.2d 413
(plaintiffs'
(1996) failure to plead that the defendant intentionally procured a financial advisor's
breach of its contract with a holding company mandated dismissal of tortious interference of
contract claim.)
EXCALIBUR'S CROSS-CLAIMS AGAINST
PHILIPS MUST BE DISMISSED
Excalibur's cross-claims against Philips must be dismissed. Excalibur argues that because
Philips failed to establish the Scanner was repaired and restored to itsoriginal state, questions of
Philips' Plaintiffs'
fact remain as to own negligence. As detailed above, claim that the Scanner
Plaintiffs' "negligent"
was not repaired does not sound in negligence, because cannot point to any
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conduct cc--2"nd Philips that further damaged the Seannar Nor did Philips plead a cause of
by
Philips'
action for ñcgligent repair. Whether or not Philips repaired the Scanner is irrelevant to
liability and does not preclude su=.mary judgment on Excalibur's cross-claims.
CONCLUSION
For all of the above-stated reasons, it is respectfully reqüésted that this Heñ0rable Court
issue an Order: (1) Pursuant to the Civil Praedee Laws and Rules ("CPLR") Rule §
3212 granting
Plaintiffs'
ma.g judgmcñ‡ and dismissing Complaint and Excalibur's Cross-Claim as against
Defr='==ts PHILIPS HEALTHCARE, PHILIPS MEDICAL SYSTEMS NORTH AMERICA
COMPANY, PHILIPS MEDICAL SYSTEMS NORTH AMERICA, INC., and PHILIPS
HEALTHCARE INFORMATICS, INC.; (2) Pursuant to CPLR § 602(a), joining the instant action
Plaintiffs'
for trial with compdcñ action, captioned R&R Third Properties, LLC, v. Greater New
York Mutual Insurance Company, et al., Index No. 651377/13; and (3) granting costs, fees,
disbursemcñts and such other and further relief as this Court deems just and proper.
Dated: New York, New York
October 3, 2018
Yours etc.,
GALLO VITUCCI KLAR LLP
By: Thristen-diannaros, Esq.
Attorneys for Defendants
Philips Healthcare,
Philips Medical Systems North America Company,
Philips Medical Systems North America Inc.
and Philips Healthcare Informatics, Inc.
126
90 Broad Street, Floor
New York, New York 10004
(212) 683-7100
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7/9/24
Trial Date:
12/6/24
[TENTATIVE] RULING RE:
Plaintiff
Jonathan Neil & Associates, Inc.s Motion to Deem Admissions Admitted and for Monetary Sanctions (Attorney Fees and Costs) Against Defendant Ara Tovmassian in the Amount of $850.00 [Res ID # 0191].
I.
Background
On January 2, 2024, Plaintiff purportedly served Requests for Admission (RFAs), Set One, on Defendant Tovmassian. Responses to RFAs, Set One, were purportedly due on February 6, 2024, 35 days after purported service by mail on January 2, 2024.
Defendant Tovmassian allegedly failed to serve responses to RFAs, Set One, by February 6, 2024.
On March 20, 2024, based on Defendant Tovmassians alleged non-response to RFAs, Set One, Plaintiff filed a motion to deem the truth of RFAs, Set One, admitted as against Defendant Tovmassian. Plaintiffs motion also requests monetary sanctions in the amount of $850 against Defendant Tovmassian. Plaintiff served the motion on Defendant Tovmassian by mail that same day.
Defendant Tovmassian has failed to oppose Plaintiffs motion despite service.
Plaintiffs motion is now before the Court.
II.
Motion to Deem Truth of RFAs Admitted and Request for Sanctions
A.
Motion to Deem Truth of RFAs Admitted
:
GRANTED.
1.
Legal Standard
The discovering party can make a motion to deem as admitted any unanswered requests for admission or any requests answered in a late or unverified response. (See Code Civ. Proc., § 2033.280, subd. (b); Code Civ. Proc., § 2033.240, subd. (a) [RFA responses must be signed by responding party under oath]; see
Appleton v. Superior Court
(1988) 206 Cal.App.3d 632, 636 [unsworn response to RFAs is treated like no response].) These requests are not automatically deemed admitted; the discovery party must make the motion. (See Code Civ. Proc., § 2033.280, subd. (b).)
To establish this ground, a movant must show:
(1) Proper service (see Code Civ. Proc., § 2033.070);
(2) Expiration of the deadline for the initial response 30 days after service or on date agreed to by parties (see Code Civ. Proc., § 2033.250, subds. (a), (b)); and
(3) That (a) the responding party served no response (Code Civ. Proc., § 2033.280, subd. (b)), (b) the propounding party served a late response (Code Civ. Proc., § 2033.280, subd. (b)); or (3) the responding party served an unsworn response (see
Appleton v. Superior Court
,
supra
, 206 Cal.App.3d at p. 636 [unsworn response to RFAs is treated like no response]).
A court must deny a motion to compel initial discovery where the discovery sought is outside the scope of discovery. (See
CBS, Inc. v. Superior Court
(1968) 263 Cal.App.2d 12, 19; see also Code. Civ. Proc., § 2017.010 [scope of discovery].)
2.
Courts Determination
The Court finds in favor of Plaintiff.
The moving papers points and authorities contend that RFAs, Set One, was served on Defendant Tovmassian on January 2, 2024. (Mot., pp. 3 [service], 5 [signature, not sworn].) However, the points and authorities are unsworn and not entitled to evidentiary credence. (
In re Zeth S.
(2003) 31 Cal.4th 396, 413 [the unsworn statements of counsel are not evidence];
South Sutter, LLC v. LJ Sutter Partners, L.P.
(2011) 193 Cal.App.4th 634, 668, fn. 14 [unsworn arguments of counsel in a legal memorandum are not evidence].)
The original Natalia A. Minassian counsel declaration filed on March 20, 2024 did not support service on January 2, 2024, as to RFAs, Set One. However, at the initial hearing on July 2, 2024, the Court pointed out what appeared to
be an inadvertent failure to include substance in that declaration. The Court continued the hearing to July 9, 2024 to allow Plaintiffs counsel to address the error.
On July 3, 2024, Plaintiffs counsel filed a notice of errata and a revised Declaration of Natalia Minassian. It included both averments by counsel as well as attaching the Requests for Admission, along with the Proof of Service, showing service by mail on the Defendant on January 2, 2024. For this reason, the Court finds that service has been shown. Moreover, the evidence supports the fact that the discovery was served on the date alleged in the motion, and thus the Court finds no prejudice from the initial failure to attach the proof of service to the motion.
Second, Defendant has failed to oppose this motion, and did not appear at the initial hearing on July 2, 2024. The evidence in the moving papers sets forth that the Defendant did not respond, and this evidence is thus unrebutted.
Third, the court finds that the 17 RFAs are relevant to the facts involved in this case and are otherwise appropriate, clear and unambiguous.
Given these findings, the Court GRANTS Plaintiffs motion.
B.
Request for Sanctions
:
GRANTED.
1.
Legal Standard
The Court must award sanctions when a partys response is untimely, and the discovering party makes a motion to deem the requests admitted. (Code Civ. Proc., § 2033.280, subd. (c); see
Stover v. Bruntz
(2017) 12 Cal.App.5th 19, 31-32; see e.g.,
Appleton v. Superior Court
,
supra
, 206 Cal.App.3d at pp. 635-636 [sanctions are mandatory].)
The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed. (Cal. Rules of Court, rule 3.1348, subd. (a).)
2.
Courts Determination
The motion to deem admitted has been denied without prejudice, and Defendant has failed to respond or oppose this motion in any way. The requested sanctions of $850 for legal fees of $790 at an hourly rate of $395 and the $60 filing fee for the motion are eminently reasonable. Accordingly, the Court grants sanctions in the amount of $850.
III.
Conclusion
Plaintiff
Jonathan Neil & Associates, Inc.s Motion to Deem Admissions Admitted and for Monetary Sanctions (Attorney Fees and Costs) Against Defendant Ara Tovmassian in the Amount of $850.00 [Res ID # 0191] is GRANTED.
Sanctions in the amount of $850 are ordered to be paid to Hatkoff & Minassian within 30 days of this Order. Failure to do so could result in further sanctions as ordered by the Court.
Ruling
TALAL ALTAMIMI, ET AL. VS LIEF ORGANICS, LLC
Jul 10, 2024 |
23CHCV02417
Case Number:
23CHCV02417
Hearing Date:
July 10, 2024
Dept:
F47 Dept. F47
Date: 7/10/24
Case #23CHCV02417
MOTION TO STRIKE
Motion filed on 5/28/24.
MOVING PARTY: Defendant Lief Organics, LLC
RESPONDING PARTY: Plaintiff Mankind Essentials, Inc.
NOTICE: ok
RELIEF REQUESTED
: An order
striking the Second Amended Complaint filed by Plaintiff Mankind Essentials, Inc. and for sanctions against Plaintiff and Plaintiffs counsel in the amount of $4,042.50 pursuant to CCP 128.5.
RULING
: The motion is denied.
SUMMMARY OF FACTS & PROCEDURAL HISTORY
This action arises out of an agreement entered into by former plaintiffs Talal Altamimi, III (Altamimi) and Plaintiff Mankind Essentials, Inc. (Mankind/Plaintiff) and Defendant Lief Organics, LLC (Defendant) for the manufacture of fertility and dietary products for Mankind.
Based on three orders, Altamimi and Plaintiff paid Defendant deposits totaling $22,787.50.
Plaintiff alleges that Defendant failed to perform under the agreement.
On 8/11/23, Altamimi and Mankind filed this action against Defendant for: (1) Breach of Contract, (2) Fraudulent Deceit, (3) Breach of the Covenant of Good Faith and Fair Dealing, (4) Promissory Fraud and (5) Negligence.
After attempts to meet and confer regarding the issues Defendant had with the complaint were unsuccessful, on 11/20/23, Defendant filed and served a demurrer to the
original complaint.
On 12/28/23, 9 court days before the 1/11/24 hearing date on the demurrer, Plaintiff Mankind Essentials, Inc. (Plaintiff), alone, filed and served a First Amended Complaint which rendered the demurrer moot.
(
See
1/11/24 Minute Order citing CCP 472(a); CCP 1005(b)).
After meet and confer efforts failed to resolve the issues Defendant had with the First Amended Complaint, pursuant to an extension of time to respond to the First Amended Complaint, on 2/9/24, Defendant filed and served a demurrer to the 2
nd
, 4
th
and 5
th
causes of action in the First Amended Complaint.
On 3/7/24, the date a reply was due to be filed and served, Defendant filed and served a Notice of Non-Opposition to the demurrer.
See
CCP 1005(b)
On that same date and without any explanation, Plaintiff filed and served a late opposition to the demurrer.
On 3/8/24, Defendant filed and served a reply to the opposition.
On 3/14/24, the Court sustained the demurrer with 30 days leave to amend making a Second Amended Complaint due on or before 4/15/24.
(
See
3/14/24 Minute Order).
Plaintiff filed and served its Second Amended Complaint on 5/2/24.
Thereafter, Defendant contacted Plaintiff regarding the impropriety of filing the Second Amended Complaint beyond the deadline set by the Court and asked Plaintiffs counsel to withdraw the Second Amended Complaint.
(Bamford Decl. ¶¶6-7, Ex.C).
Plaintiff did not directly respond to the request to withdraw the Second Amended Complaint and has not withdrawn the pleading.
(Bamford Decl. ¶¶6-7).
On 5/28/24, Defendant filed and served the instant motion seeking an order striking the Second Amended Complaint filed by Plaintiff and for sanctions against Plaintiff and Plaintiffs counsel in the amount of $4,042.50 pursuant to CCP 128.5.
At the 5/29/24 Case Management Conference, former plaintiff Talal Altamimi represented that Plaintiff was no longer represented by counsel, although a substitution of attorney had not been filed.
(
See
5/29/24 Minute Order).
On 6/14/24, at the hearing on Defendants Motion to Compel Arbitration, Plaintiffs counsel represented that Plaintiffs counsel had substituted out; however, a substitution of attorney had still not been filed.
(
See
6/14/24 Minute Order).
At the same hearing, defense counsel represented to be in contact with Plaintiff; the parties had entered into a settlement agreement and requested the hearing on the motion be continued.
Id
.
Therefore, the hearing on the motion to compel arbitration was continued to 8/14/24.
Id
.
Despite the foregoing, on 7/2/24, Defendant filed a Notice of Non-Opposition to the instant motion to strike.
Also, on 7/2/24, Plaintiff filed a substitution of attorney indicating that former plaintiff, Talal Altamimi, is substituted in as counsel for Plaintiff.
As noted on the Substitution of Attorney form itself, unless Altamimi is an attorney, Altamimi cannot represent the corporate Plaintiff in court.
ANALYSIS
Defendant seeks to strike the Second Amended Complaint on the ground that it was not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court because it was filed beyond the 30-day deadline set forth in the Courts 3/14/24 order sustaining Defendants demurrer with 30 days leave to amend.
See
CCP 436(b).
Defendant also seeks sanctions against Plaintiff and Plaintiffs (former) counsel on the ground that the filing of the Second Amended Complaint beyond the court ordered deadline constitutes frivolous conduct.
See
CCP 128.5.
While the Second Amended Complaint was filed and served beyond the court-ordered deadline, Defendant has not shown that it has suffered any prejudice as a result of the late filing and service.
Similarly, the Court does not find the late filing and service of the Second Amended Complaint constitutes frivolous conduct which warrants the imposition of sanctions.
CONCLUSION
Based on the foregoing, the motion is denied.
As noted above, unless Talal Altamimi is an attorney, Altamimi cannot represent Plaintiff Mankind Essentials, Inc. in court.
Therefore, Altamimi cannot appear on behalf of Plaintiff at this hearing or any future hearing.
If Altamimi is not an attorney, Plaintiff
must obtain counsel before the next scheduled court hearing or the Court will set an Order to Show Cause as to why the action should not be dismissed.
Ruling
Edwards, et al. vs. General Motors LLC
Jul 10, 2024 |
22CV-0200334
EDWARDS, ET AL. VS. GENERAL MOTORS LLC
Case Number: 22CV-0200334
Tentative Ruling on Motion for Attorney Fees and Costs: Plaintiffs David and Stephanie
Edwards filed this action alleging violation of the Song-Beverly Consumer Warranty Act (“Act”)
against General Motors, LLC (“GM”) and Taylor Motors, Inc. (“TMI”) on August 4, 2022.
Following extensive motion practice, primarily concerning discovery issues, the parties settled the
matter on May 7, 2024. Pursuant to the Act, and the terms of the settlement agreement, Plaintiffs
are the prevailing party entitled to recover reasonable attorney fees and costs. Plaintiffs seek a total
of $319,464.80 in attorney fees and costs. This request consists of $149,773.50 in attorney fees
for 269.3 hours of work litigating this matter from August 5, 2022 to the present, a 2.0 multiplier,
and $19,917.80 in costs.
Objections to Evidence: Plaintiffs have raised 10 Objections to portions of the Declaration of
Cameron Major on the grounds that certain statements and supporting exhibits are improper
argument, lack foundation, are conclusory, and lack personal knowledge. The Objections are
OVERRULED.
Song-Beverly: The Song-Beverly Act contains a cost-shifting provision that specifically allows
prevailing buyers to recover their costs, including attorney’s fees. Civ. C. § 1794(d). The
attorney’s fee award is limited to the amount the court determines was reasonably incurred by the
buyer in commencing and prosecuting the action, based on actual time expended. The prevailing
buyer has the burden of proving the fees were both reasonably necessary to conduct the litigation
and reasonable in amount. Civil Code § 1794(d); Robertson v. Fleetwood Travel Trailers of
California, Inc., (2006) 144 Cal. App. 4th 785. The lodestar method applies to determining
attorney’s fees under the Song-Beverly Act. Id. at 817. When determining a reasonable attorney's
fee award, using the lodestar method, the judge begins by deciding the reasonable hours the
prevailing party's attorney spent on the case and multiplies that number by the prevailing hourly
rate for private attorneys in the community who conduct non-contingent litigation of the same
type. Doppes v Bentley Motors, Inc. (2009) 174 CA4th 967, 998. Plaintiff is entitled to be
compensated at rates that reflect the reasonable market value of their services in the community.
Serrano v. Unruh (1982) 32 Cal.3d 621, 643. In determining the amount of attorney's fees to
which a litigant is entitled, an experienced trial judge is the best judge of the value of professional
services rendered in his or her court. Granberry v. Islay Investments (1995) 9 Cal. 4th 738, 752.
Reasonableness of Hours: The court has discretion to decide which of the hours expended by the
attorneys were reasonably spent on litigation. Hammond v. Agran (2002) 99 Cal.App.4th 115,
133. The predicate of any attorney fee award is the necessity and usefulness of the conduct for
which compensation is sought. Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819,
846. The court’s focus in evaluating the fee request should be to provide a fee award reasonably
designed to completely compensate attorneys for the services provided. The starting point for this
determination is the attorney’s time records. Absent clear indication they are erroneous, verified
time records are entitled to credence. Horsford v. Board of Trustees of Calif. State Univ. (2005)
132 Cal.App.4th 359, 395-397.
Plaintiffs seek a total of $149,773.50 in attorney’s fees associated with 269.3 hours of work
performed by four attorneys and one unknown individual. Plaintiffs have submitted detailed time
records to support their request. Defendant challenges numerous specific entries. (Opposition pp.
8 – 11.) The Court has reviewed the billing records in detail, as well as Defendant’s objections.
Counsel billed a total of 269.3 hours to this litigation, which commenced August 4, 2022. The
parties engaged in extensive law and motion practice over 22 months of litigation. The matter
settled on the eve of trial for the maximum possible recovery under the law. The Court finds the
time spent was reasonably expended, with the following exceptions: 1) time billed by Erika
Kavicky – no information regarding this attorney’s qualifications and experience has been
provided, a total of 0.6 hours will be stricken for Ms. Kavicky’s time, and 2) time billed by Angela
Mason – no information regarding this individual’s position, qualifications or experience has been
provided, a total of 1.7 hours will be stricken for Ms. Mason’s time. The billing records Plaintiffs
provided show the following hours were reasonably expended: 133.9 by Deborah Horowitz, 115.4
by Joseph Kaufman and Associates, and 18.4 for the Kaufman and Kavicky firm. The total hours
reasonably expended on this matter are therefore 267.7.
Reasonableness of Rates: A reasonable hourly rate is determined by the prevailing rate charged
to attorneys of similar skill and experience in the relevant community. See PLCM Group, Inc. v.
Drexler (2000) 22 Cal.4th 1084, 1095. However, the court may also consider the attorney’s skill
and expertise, the nature of the work performed, the relevant area of expertise and the attorney’s
customary billing rates. Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 632.
A plaintiff seeking to recover hourly rates for out-of-town counsel that are higher than the local
rates must show (1) a good faith effort to find local counsel, and (2) demonstrate that hiring local
counsel was impracticable. Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1243.
The Court is the best judge of the value of professional services provided and may use its discretion
to apply rates in line with the market rates for the services provided. Ketchum v. Moses (2001) 24
Cal.4th 1122, 1132. This Court has extensive experience in presiding over Song Beverly actions
including motions for attorney’s fees, costs and expenses under Song Beverly. As such this Court
is aware of the reasonable hourly rates charged in actions of this nature. It is also aware of the
prior hourly rates found to be reasonable. Based on the Court’s extensive knowledge and
experience, it finds that reasonable hourly rates are $400 per hour for the partners, and $350 per
hour for the associate (Isaac Agyeman - 10 years of experience). The Court notes that Plaintiff
Anthony Edwards has submitted a Declaration indicating that he made a good faith effort to find
local counsel but was unable to do so. The Court has reviewed this voluminous case file, which
contains numerous discovery motions supported by attorney declarations regarding fees. It
appears that Plaintiff has not previously submitted a declaration regarding inability to find local
counsel in support of hourly rates above reasonable local rates. The Court has previously,
consistently, found a rate of $400 per hour a reasonable rate for partners in this matter. In the
interest of consistency within this case, and fairness to Defendants who have previously been
ordered to pay sanctions at the rate of $400 per hour, the Court will again find that $400 per hour
is a reasonable rate for partners in this matter. The Court finds that $350 per hour is a reasonable
rate for the associate in this matter. The Court notes that the billing records submitted do not break
out total hours billed by each individual partner and associate. Considering the large number of
billing entries, it is impractical for the Court to recalculate the correct billing at the approved rates.
Plaintiffs are ordered to submit recalculated totals using the Court’s approved rates.
Multiplier: Plaintiffs seek a 2.0 multiplier based on the results obtained and the contingent risks.
Adjustment factors that may be considered in awarding a multiplier include: 1) the novelty and
difficulty of the questions involved, 2) the skill displayed in presenting them, 3) the extent to which
the litigation precluded other employment, 4) the contingent nature of the fee award. Komarova
v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, 348. Plaintiff has not
demonstrated a multiplier is warranted in this case. The issues involved in this litigation were
neither novel nor difficult. Counsel have demonstrated they are specialists, who are experienced
and skilled in this area of law, but this case involved routine issues under Song-Beverly. This
litigation precluded other employment to the extent any litigation would. The matter was taken on
a contingent fee basis as is all Song-Beverly litigation. The Court acknowledges Plaintiffs’
Counsel obtained the maximum award for the client. However, simply obtaining a positive result
in a factually and legally standard Song-Beverly case does not warrant a multiplier.
Costs and Expenses: The Song-Beverly Act provides that the court will award a successful
plaintiff a sum equal to the aggregate amount of costs and expenses, which have been determined
to have been reasonably incurred. Civil Code § 1794(d). Plaintiffs have requested an award of
costs and expenses in the amount of $19,917.80. However, the declarations submitted in support
of the moving papers only include itemized costs for a total of $16,247.81. The discrepancy is
addressed only in the Reply materials. (Plaintiffs submitted a Supplemental Declaration of Isaac
Agyeman which attaches a record of costs of $3,730 as Exhibit 6.) GM did not have the
opportunity to review and oppose those costs, as they were raised for the first time in the Reply
brief. Therefore, they will not be awarded. The remaining amount of $16,247.81 appears
reasonably incurred with the following exceptions, which will be stricken: 1) $602.26 for
Plaintiff’s mistakenly filing the Complaint twice, 2) $304.99 for Plaintiff’s “Re-Filing” Motion for
Leave to Amend, as it is a duplicate entry without explanation, 3) $180.16 and $592.73 for
Plaintiff’s Notice of Association of Counsel and Substitution of Attorney, respectively, as they are
business expenses of Counsel, not proper litigation expenses.
As for costs related to Taylor Motors, the Court notes the parties’ settlement agreement is between
and among David Edwards and Stephanie Edwards (“Plaintiffs”) and General Motors LLC and
Taylor Motors, Inc (“Defendants”). The agreement provides “Defendants shall pay Plaintiffs
attorney’s fees, costs, and expenses in an amount determined by the Court, by way of a single
noticed motion…” (Decl. Kaufman Ex. 1.) The Court finds the parties’ agreement contemplates
that Plaintiffs’ costs related to Taylor Motors would be included in the instant motion for fees and
costs. The total costs and expenses reasonably incurred are $14,567.67.
The Motion for Fees and Costs is GRANTED in part, as detailed above. Plaintiff is ordered to
prepare a proposed order consistent with the Court’s ruling. Plaintiff is also ordered to file and
serve a declaration which includes the recalculated totals for attorney fees using the Court-
approved rates detailed above. This matter is set for Monday August 12, 2024, at 8:30 a.m. in
Department 64 for review regarding the supplemental declaration and proposed order. If a
satisfactory supplemental declaration and proposed order are submitted at least five court days
prior to the continued date, the hearing may be vacated.
P.J. MCAULIFFE FAMILY PARTNERSHIP, L.P. VS. THE
TESTATE OR INTESTATE SUCCESSORS OF NORA
Ruling
BILLY SNOW VS DLK CONTRACTING, INC., ET AL.
Jul 09, 2024 |
6/18/2022 |
23SMCV00120
Case Number:
23SMCV00120
Hearing Date:
July 9, 2024
Dept:
I Code of Civil Procedure requires that a party suing a licensed architect for malpractice must obtain a certificate of merit (with certain exceptions not relevant here) before bringing suit.
The moving party, Fenske, contends that cross-complainant does not have such a certificate and brought a motion to dismiss on that basis.
Cross-complainant has filed no opposition, presumably because there is no such certificate.
Accordingly, the motion is GRANTED.
The cross-complaint against Fenske is DISMISSED.
Fenske to recover his costs.
Because Fenske is no longer a party, any motion involving him is MOOT and the stay, having served its purpose, is lifted.
Fenske is to prepare the written order of dismissal and lodge it with the court within 20 days.
Ruling
Miguel Aguilar vs General Motors, LLC.
Jul 10, 2024 |
23CV-03969
23CV-03969 Michael Aguilar v. General Motors, LLC
Demurrer by General Motors, LLC to Plaintiff’s First Amended Complaint’s Fifth Cause of Action
for Fraudulent Inducement (Concealment) because (1) It is barred by the statute of limitations,
(2) Fails to state facts sufficient to establish a cause of action, and (3) Fails to allege a
transactional relationship giving rise to a duty to disclose.
The Demurrer by General Motors, LLC to Plaintiff’s First Amended Complaint’s Fifth
Cause of Action for Fraudulent Inducement (Concealment) because (1) It is barred by the
statute of limitations, (2) Fails to state facts sufficient to establish a cause of action, and
(3) Fails to allege a transactional relationship giving rise to a duty to disclose is
SUSTAINED ON ALL GROUNDS WITH LEAVE TO AMEND to provide Plaintiff with an
opportunity to (1) Plead around the statute of limitations, (2) Plead fraudulent inducement
with specificity, and (3) Establish a relationship giving rise to a duty to disclose. The
Second Amended Complaint will be filed by November 29, 2024, to give Plaintiff sufficient
time to conduct discovery to obtain the facts necessary for Plaintiff to amend.
Motion by Defendant General Motors, LLC too Strike Punitive Damages Claim
The Motion by Defendant General Motors, LLC too Strike Punitive Damages Claim is
SUSTAINED WITH LEAVE TO AMEND to state a cause of action that supports a claim for
punitive damages and to allege the facts necessary to establish a punitive damages
claim. The Second Amended Complaint will be filed by November 29, 2024, to give
Plaintiff sufficient time to conduct discovery to obtain the facts necessary for Plaintiff to
amend.
Ruling
PHILLIP PHARELL MCGOWAN, ET AL. VS FAME GARDENS, LP
Jul 15, 2024 |
23STCV24498
Case Number:
23STCV24498
Hearing Date:
July 15, 2024
Dept:
20
Tentative Ruling
Judge Kevin C. Brazile
Department 20
Hearing Date:
July 15, 2024
Case Name:
McGowan, et al. v. Fame Gardens LP
Case No.:
23STCV24498
Matter:
OSC re: Default Judgment
Ruling:
The Default Judgment Application is denied without prejudice.
Plaintiffs to give notice.
This is a habitability matter. Plaintiffs
Phillip Pharell Mcgowan, Devon Monique Martinez, Joseph Manuel Eddins, and Cereniti Claire Martinez Mcgowan
seek a default judgment against Defendant Fame Gardens LP.
While Plaintiffs request $540,000 in damages, the Complaint fails to make any
specific
request for damages against Defendant.
This is problematic as [t]he relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint . . . . (Code Civ. Proc. § 580.) Further, phrases such as in an amount not less than do not give notice for the purposes of Code Civ. Proc. § 580. (
Electronic Funds Solutions, LLC v. Murphy
(2005) 134 Cal.App.4
th
1161, 1173-1174.) Code Civ. Proc. § 580 applies even when a defendant has defaulted after having filed an answer and having participated in discovery. (See
Greenup v. Rodman
(1986) 42 Cal.3d 822, 828;
Elec. Funds Sols., LLC v. Murphy
(2005) 134 Cal.App.4th 1161, 1175.) That a statement of damages was served is irrelevant as this is not a personal injury or wrongful death action.
Thus, Plaintiffs can either accept the jurisdictional minimum of $25,001
in damages or else amend the Complaints allegations as to damages, which would be a material change opening Defendants default. (
Cole v. Roebling Const. Co.
(1909) 156 Cal. 443;
Leo v. Dunlap
(1968) 260 Cal.App.2d 24, 27-28.)
Accordingly
, the Default Judgment Application is denied without prejudice.
Plaintiffs to give notice.
Preview
FILED: NEW YORK COUNTY CLERK 10/02/2018 10:57 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 10/03/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------X ROSENBAUM, ROSENFELD & SONNENBLICK, LLP Index No.: 150083/2014 R&R PROPERTIES LLC AND COMPUTERIZED DIAGNOSTIC SCANNING ASSOCIATES, P.C., Plaintiffs, MEMORANDUM OF LAW IN REPLY - against - EXCALIBUR GROUP NA, LLC, A SUPERIOR SERVICE AND REPAIR CO. INC., HOME SYSTEMS ENGINEERING, INC., PHILIPS HEALTHCARE, PHILIPS MEDICAL SYSTEMS NORTH AMERICA COMPANY, PHILIPS ELECTRONICS NORTH AMERICA CORPORATION, PHILIPS MEDICAL SYSTEMS NORTH AMERICA, INC., PHILIPS HEALTHCARE INFORMATICS, INC. and ESTATE OF MERLE H. EISENSTEIN, Defendants. ---------------------------------------------------------------------X R&R THIRD PROPERTIES, LLC, ROSENBAUM, Index No.: 651377/2013 ROSENFELD & SONNENBLICK, LLP, and COMPUTERIZED DIAGNOSTIC SCANNING ASSOCIATES, PC, Plaintiffs, - against - GREATER NEW YORK MUTUAL INSURANCE COMPANY, FEDERAL INSURANCE COMPANY, TRAVELERS INSURANCE COMPANY OF CONNECTICUT, and THE HARTFORD STEAM BOILER INSPECTION AND INSURANCE COMPANY, Defendants. ---------------------------------------------------------------------X PHILIPS' REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF MOTION FOR SUMMARY JUDGMENT Of Counsel: Christen Giannaros, Esq. Daniel P. Mevorach, Esq. 1 of 14 FILED: NEW YORK COUNTY CLERK 10/02/2018 10:57 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 10/03/2018 Defendants PHILIPS HEALTHCARE, PHILIPS MEDICAL SYSTEMS NORTH AMERICA COMPANY, PHILIPS ELECTRONICS NORTH AMERICA CORPORATION, PHILIPS MEDICAL SYSTEMS NORTH AMERICA, INC., PHILIPS HEALTHCARE Plaintiffs' INFORMATICS, INC. ("Philips") submit this Memorandum of Law in reply to and Philips' Excalibur Group, NA, LLC's opposition papers and in further support of Motion for Plaintiffs' Summary Judgment dismissing complaint. PRELIMINARY STATEMENT Plaintiffs have no case against Philips because: (i) Philips did not breach any of its agreements with the Plaintiffs: it had a Turnkey Construction Agreement, which obligated it to fund, and hire contractors and design professionals to perform construction work necessary to create the interior space where the Scanner would be operated (but did not, contrary to Plaintiff's obligations, impose any duty on Philips to perform that work, or supervise the contractors and designers), ithad a Service Agreement, which obligated itto repair the Scanner (except in case of casualty loss, such as the flood event in this case), and it did not, have (as Plaintiffs apparently concede in their opposition) any agreement with the Plaintiffs to repair the Scanner. Philips breach none of those agreement. In addition, since both Plaintiffs and their insurer, Federal Insurance relied on their own experts, not Philips, to determine whether the Scanner was repairable and whether repairs had been satisfactorily repaired, no claim for negligent misrepresentation lies. Plaintiffs' argument that Philips was negligent in the design, supervision, and installation of the plumbing system is belied by the terms of the Turnkey Proposal, which only obligate Philips "furnish" to the plumbing plans and drawings for the jobsite. Philips is not a contractor, engineer, or design professional and was under no duty to approve, sign off, or design the actual plumbing 2 of 14 FILED: NEW YORK COUNTY CLERK 10/02/2018 10:57 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 10/03/2018 system. Moreover, Plaintiffs fail to explain how or why the plumbing system was negligently installed, supervised, and designed and submit no expert evidence to support this contention. Philips' Additionally, no claim for negligent repair of the Scanner exists. For the repairs to Philips' have been negligent, Plaintiffs must demonstrate that performance of the repairs caused consequential damage. If Philips failed to repair the Scanner, having been hired by Federal to repair it,then Federal might conceivably have a remedy against Philips. But in this instance, the Plaintiff's remedy if the Scanner was not repaired is against Federal only, not Philips. PHILIPS WAS UNDER NO DUTY TO APPROVE OR DESIGN THE PLUMBING DRAWINGS Philips' moving papers establish that Philips did not perform any aspect of the construction or plumbing work and itcannot be held vicariously liable for the torts of independent contractors. See, e.g. Sanabria v. Aguero-Borges, 117 A.D.3d 1024 (2nd Dept. 2014). In opposition, Plaintiffs argue for the first time that Philips was negligent in the design of the plumbing system at the Plaintiffs' property, which resulted in two overflows of water from a clogged toilet. This argument finds no basis in fact. Services" The "Design and Expediting section of the Turnkey Proposal provides that drawings" Philips will "Furnish sealed architectural and "Furnish sealed engineer drawings for work." "E" structural, mechanical, electrical and plumbing See Exhibit to original moving papers. Philips, a scientific equipment manufacturer, did not promise to undertake an independent review of the - under the contract its was limited to engineering drawings, responsibility furnishing the plans for the work. Furthermore, there is no evidence whatsoever that the plumbing plans were Plaintiffs' negligently prepared or faulty in any way. bald argument that "Philips was negligent in system" the design of the plumbing is entirely speculative and unsupported. 3 of 14 FILED: NEW YORK COUNTY CLERK 10/02/2018 10:57 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 10/03/2018 NO CAUSE OF ACTION FOR NEGLIGENT REPAIR EXISTS Philips was hired by FEDERAL INSURANCE COMPANY to repair a machine that sustained water damage from a flood. At worst, Philips did not make adequate repairs and the machine remained inoperable. Plaintiff has no viable tort claim since no legal duty independent of the contract was violated, and since ithad alleged only economic loss. A simple breach of contract does not give rise to a tort claim unless a legal duty independent of the contract has been violated See Clark-Fitzpatrick, Inc. v Long Is. R. R. Co., 70 N.Y.2d 382, 389 (1987). Additionally, a contracting party seeking only a benefit of the bargain recovery, viz., economic loss under the contract, may not sue in tort notwithstanding the use of familiar tort language in its pleadings. Here, the alleged failure to repair did not result in any consequential damage. Children's Corner Learning Center v. A. Miranda Contracting Corp., 64 A.D.3d 318 (1st Dept. 2009). repair" The "negligent claim is brand new, concocted by the Plaintiffs for the first time in " opposition to this motion. See Exhibit "T. Plaintiffs rely on their inclusion of the language demand" "Plaintiffs previously produced documents responsive to this to somehow incorporate the claim that Philips negligently repaired the Scanner. This reference to unidentified external documents, however, is not permitted. Responses to a demand for a bill must clearly detail the defendant." specific acts of negligence attributed to each Miccarelli v. Fleiss, 219 A.D.2d 469, 470 (1st Dept. 1995). Therefore, "response by reference to other documents or items is improper in a request for a bill of particulars. Each item of a demand should be answered separately and categorically under its own number without reference to either the complaint or to other portions particulars." of the bill of Whirl Knits, Inc. v. Adler Business Machines, Inc., 54 A.D.2d 760, 760 (2d Dept. 1976). It follows that this would also prohibit references to any other document outside the bill of particulars. 4 of 14 FILED: NEW YORK COUNTY CLERK 10/02/2018 10:57 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 10/03/2018 Plaintiffs' discovery" reference to documents "previously exchanged in is nothing more than an attempt to lead the Court on a wild goose chase and an attempt to throw up a blizzard of documents to prevent the court from ruling on this motion. DR. PECHT'S EXPERT AFFIDAVIT IS CONCLUSORY Dr. Pecht's expert affidavit is speculative and conclusory, fails to set forth foundational facts, assumes facts not supported by the evidence, and does not explain how the expert came to his and is insufficient to raise a triable issue of fact. Rizzo v. Sherwin- conclusions, therefore, Williams Co., 49 A.D.3d 847 (2d Dept. 2008). Here, Dr. Pecht's affidavit (1) fails to specify his knowledge, experience, and/or training in CT/PET Scanners specifically; (2) offers vague and conclusory opinions as to the repair of the Scanner; (3) does not describe the methods and manner in which Dr. Pecht reached his conclusions; (4) does not define or state the industry standard of care or how any deviation caused the damage to the Scanner; and (5) draws conclusions from and refers to cherry-picked portions of a document from an FDA investigation without any indication that the circumstances in the FDA investigation were identical to the circumstances at issue here. The most glaring of these omissions are Dr. Pecht's bald, conclusory statements scattered throughout his affidavit. For example, without any detail or explanation of Dr. Pecht's methodology or reasons, Dr. Pecht opines that: • ...the scanner is not repairable, and should never have been attempted to be fixed; and presents a reliability and safety risk and that at a minimum a complete bake out of all electronics would have been necessary prior to the occurrence of any corrosion products (and not just a "drying out") • That all electronics should have been replaced at the factory, and properly requalified. 5 of 14 FILED: NEW YORK COUNTY CLERK 10/02/2018 10:57 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 10/03/2018 • That the repairs made were insufficient and the water-raw sewage damage reduced the reliability. Dr. Pecht's affidavit is of comprised of eight one-to-two sentence long bullet points that arrive at unsubstantiated, unsupported, and unfounded conclusions. There is no mention of what steps, methods, or steps Dr. Pecht took to arrive at these conclusions. An opposing expert's affidavit cannot simply contain and rely on bald, conclusory statements, but must set forth the specific factors, which led the expert to his conclusions. See Micciola v. Sacchi, 36 A.D.3d 869 (2d Dept. 2007); Miller v. City of New York, 242 A.D.2d 370, (2d Dept. 1997); Menzel v. Plotnick, 202 A.D.2d 558 (2d Dept. 1994). Moreover, an expert's lack of expertise or credibility goes to the weight of consideration and reliability of that expert's opinions. See Adamy v. Ziriakus, 92 N.Y.2d 396 (1998); Erbstein v. Savasatit, 274 A.D.2d 445 (2d Dept. 2000). Neither Dr. Pecht's affidavit nor his 100-page curriculum vitae cite a single reference to Dr. Pecht's expertise in working with CT/PET Scanners, which are highly complex and sophisticated machines. Dr. Pecht's inexperience with CT/PET Scanners specifically renders him unqualified to give his opinions, conclusions and testimony regarding the Scanner in this case. NEITHER PLAINTIFFS NOR FEDERAL RELIED ON PHILIPS' STATEMENTS REGARDING THE REPAIRABILITY OF THE SCANNER Philips' Neither Federal nor RRS relied on statements regarding the repairability of the Scanner. Federal retained itsown expert, LWG Consulting, to inspect and give recommendations " to Federal regarding the repairs to the Scanner. See Exhibit "J. In itsexpert report to Federal, LWG inspected the Scanner and concluded that "based on the evidence found, LWG recommends repaired." that this machine be Id. Moreover, in an email to Federal from Frank Cuoco, an LWG condition." consultant, Mr. Cuoco advised Federal that "the unit was repaired to pre-loss See " Exhibit "K, pgs 7-8. LWG believed that the Scanner was repaired and Federal was entitled to 6 of 14 FILED: NEW YORK COUNTY CLERK 10/02/2018 10:57 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 10/03/2018 rely on its expert's independent conclusion in making its policy determinations. Philips representations about the Scanner did not cause any party to act. Additionally, Plaintiffs have no special or privity-like relationship with Philips such that Philips had a duty to impart correct information to the Plaintiffs. Nor was such a relationship pled. Plaintiffs' Philips." opposition merely states that Plaintiffs "had a contractual relationship with As Philips' more thoroughly briefed in Affirmation in Support, Philips did not have a contract with "arms-length" the Plaintiffs to repair the Scanner. Even ifit did, however, such an transaction does not constitute a relationship of a confidential or fiduciary nature. See Northeast Gen. Corp. v. Wellington Adv., 82 N.Y.2d 158, 162 (1993) (fiduciary relationships are "grounded in a higher level of trust than normally present in the marketplace between those involved in arm's length business transactions.") All of the cases cited by Plaintiffs relate to situations where the plaintiff and speaker of the misrepresentation shared a special relationship that required the speaker to impart information with a duty of care. This simply does not exist in the case at bar. Plaintiffs' (1) failure to plead the existence of a special relationship of trust or confidence between the Plaintiffs and Philips and (2) failure to assert facts showing that such a relationship in Plaintiffs' fact existed mandate dismissal of negligent misrepresentation claim. See Fidelity Natl. Tit. Ins. Co. v. NY Land Tit.Agency LLC, 121 A.D.3d 401, 403 (1st Dept. 2014) ("The court properly dismissed the negligent misrepresentation claims against defendants...the complaint does not even allege that plaintiff had a special relationship with [defendant]"; Baby Phat Holding Co., LLC v. Kellwood Co., 123 A.D.3d 405, 408 (1st Dept. 2014) ("Defendant is correct, however, that the negligent misrepresentation claim asserted against it fails for lack of any special relationship between plaintiff and defendant"). Alternatively, Plaintiffs argue that there was a direct misrepresentation by Philips to Plaintiffs that the Scanner was repairable on site. This claim fails for the same reasons mentioned 7 of 14 FILED: NEW YORK COUNTY CLERK 10/02/2018 10:57 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 10/03/2018 above - both Plaintiffs and Federal had their own experts to evaluate whether the Scanner was repaired and could be repaired on site, they merely hired Philips to perform the repair. PHILIPS DID NOT CONTRACT TO UNDERTAKE ANY OF THE DUTIES AND OBLIGATIONS ALLEGED BY PLAINTIFFS Philips' Plaintiffs' moving papers establish that the contractual breaches alleged in Bill of Philips' Particulars do not align with obligations imposed by the Turnkey Proposal. In opposition, Philips' Plaintiffs allege that the version of the Turnkey Proposal annexed to moving papers (Exhibit El) creates a question of fact because itcontains two additional pages that were not Philips' disclosed during discovery. These two pages, however, do not alter contractual obligations in any way and do not disturb the fact that Philips never contracted to undertake any of the obligations alleged by Plaintiffs. The only reference to the plumbing work in the Turnkey Proposal is the following: "Rough schematic." " Plaintiffs' In Plumbing as per See Exhibit "E. Bill of Particulars provide that Philips breached the Turnkey Proposal when it: • failed to install,repair, maintain, and/or inspect the system and/ properly plumbing or plumbing related lines/pipes at the premises; • failed to conduct a proper inspection to detect the dangers associated with the improper installation, maintenance, and/or servicing of the plumbing system and/or pipes, which Philips knew or should have known created an unreasonable risk of failure; • failed to ensure that its agents, servants, contractors and/or workmen abided by applicable codes, ordinances, rules and regulations concerning the safe installation, maintenance, service, inspection, and/or repair of the plumbing system and/ or drainage pipes at the premises; • failed to advise local authorities of the nature, and hazards associated with properly the plumbing system; • failed to adequately, and inspect and test the and/or properly safely piping plumbing and/or its internal components; 1 Pleasenote thatPhilips'Affirmation inSupport refersto Exhibit"E" (the as Exhibit "D," mistakenly Turnkey Proposal) and refersto Exhibit "D" (the Construction as Exhibit"E." Plaintiffs' opposition also mistakenly Turnkey Agreement) refersto Philips'Exhibits inthismanner. For purposes ofthis Exhibits D and E have been Reply Affirmation, correctly referred to. 8 of 14 FILED: NEW YORK COUNTY CLERK 10/02/2018 10:57 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 10/03/2018 • failed to recognize the obvious hazard presented the improper installation of the by plumbing system and/or drainage pipes at the premises; • plaintiffs' failed to warn plaintiffs of the additional risk to the property as a result of the unsafe servicing, maintenance, installation, and/ or inspection of the plumbing system and/or drainage pipes at the premises; and • failed to do those things which were to safe [sic], preserve, and protect necessary plaintiffs' property. • failed to hire competent servants, contractors, agents, employees and/or workmen to properly install, repair, maintain, service, and/or inspect the plumbing system and/or pipes of the premises to avoid the backup of water; • failed to and supervise the work done its contractors, properly adequately being by servants, agents, employees and/or workmen in performing itsplumbing work; • failed to and instruct its servants, contractors, employees properly adequately and/or workmen as to the safe and proper installation of the plumbing system and/or drainage pipes at the premises; and • retained incompetent, unlicensed employees, agents, servants, workers, subcontractors, without the requisite skills and abilities to install, inspect and detect the potential risk of improper installation of the sanitary and drainage lines as related to the plumbing system and/or pipes at the premises. " See Exhibit "U. The Turnkey Proposal does not make Philips responsible for performing, inspecting, supervising, repairing, installing or maintaining the plumbing system. The Turnkey Proposal does not speak to these obligations and does not impose them upon Philips. Thus, even without the last two pages of Exhibit "E", the face of the contract establishes that Philips was not obligated to install, repair or maintain the plumbing system and therefore cannot be held liable for breach of these obligations. There is no dispute over the material terms of the contract. In any event, the First Department previously found that A Superior's plumbing work contemplated by its contract was not performed negligently. Philips' Philips' Plaintiffs do not oppose those portions of motion regarding breach of the Turnkey Construction Agreement (to which Plaintiffs were not a party), breach of the Equipment Agreements" Service Agreement, or breach of "Subsequent to repair the Scanner. 9 of 14 FILED: NEW YORK COUNTY CLERK 10/02/2018 10:57 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 10/03/2018 PHILIPS DID NOT TORTIOUSLY INTERFERE WITH PLAINTIFF'S INSURANCE CONTRACT BECAUSE INSURER DID NOT RELY ON ANY STATEMENT BY PHILIPS Plaintiffs' attempt to amend their complaint to add a cause of action for tortious inference Plaintiffs' of contract is a belated and unavailing attempt to repackage faulty negligent Plaintiffs' misrepresentation claim. Both claims fail for the same reason: insurer did not rely on any statement by Philips. Plaintiffs' The crux of claim is that Philips interfered with the insurance contract between Federal and RRS such that Federal did not want to replace the Scanner. Philips did not intentionally procure Federal's conduct in this regard - Federal retained its own LWG to expert, Consulting, " opine on whether repairs to the Scanner were appropriate. See Exhibit "J. LWG inspected the Scanner and concluded that "based on the evidence found, LWG recommends that this machine repaired." be Id. Federal's decision to repair, and not replace, the Scanner, was Federal's independent decision and was based on the information itreceived from LWG. As such, Philips must be granted summary judgment on Plaintiff's tortious interference of contract claim. In any event, a motion for summary judgment cannot be defeated by the assertion of new theories not previously pleaded. Desay ex rel. Yard v. COPO Management, LLC, 105 A.D.3d 453 (1st Dept. 2013). Plaintiffs, for the first time in this litigation, assert a cause of action of tortious interference with contract. Additionally, "Failure to plead in nonconclusory language facts establishing all the elements of a wrongful and intentional interference in a contractual relationship action." requires dismissal of the Bonanni v. Straight Arrow Publishers, Inc., 133 A.D.2d 525, 587 Plaintiffs' Philips' (1st Dept. 1987). Within the Complaint, the extent of claims regarding relationship with Federal are limited to the following: 10 of 14 FILED: NEW YORK COUNTY CLERK 10/02/2018 10:57 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 10/03/2018 76. Philips has made the representation to insurance companies and to the other defendants that the Scanner is functional. Philips' 77. Based on representation that the Scanner is functional and can be used in the medical practice, insurers have refused to pay for the replacement of the machine and have refused to pay for business interruption loss beyond the date when Philips claims the Scanner was operational for use. Plaintiffs' 84. Based upon the representations by Philips to insurers that the Scanner is operational, the insurers have objected to removal and replacement of the Scanner. " See Exhibit "F. Plaintiffs' opposition states that Philips, in seeking a lucrative contract to repair the Scanner, tortuously interfered with the insurance contract between Federal and RRS to replace the Scanner. The Complaint, however, does not plead any facts establishing (1) the existence of a valid contract between Plaintiffs and Federal; (2) that Philips had knowledge of that contract; (3) that Philips intentionally and improperly procured the breach of the contract; and (4) that the breach resulted in damage to Plaintiffs. The failure to plead these basic elements of a tortious interference claim mandate dismissal of this claim. See Lama Holding Co. v. Smith Barney Inc., 88 N.Y.2d 413 (plaintiffs' (1996) failure to plead that the defendant intentionally procured a financial advisor's breach of its contract with a holding company mandated dismissal of tortious interference of contract claim.) EXCALIBUR'S CROSS-CLAIMS AGAINST PHILIPS MUST BE DISMISSED Excalibur's cross-claims against Philips must be dismissed. Excalibur argues that because Philips failed to establish the Scanner was repaired and restored to itsoriginal state, questions of Philips' Plaintiffs' fact remain as to own negligence. As detailed above, claim that the Scanner Plaintiffs' "negligent" was not repaired does not sound in negligence, because cannot point to any 11 of 14 FILED: NEW YORK COUNTY CLERK 10/02/2018 10:57 PM INDEX NO. 150083/2014 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 10/03/2018 conduct cc--2"nd Philips that further damaged the Seannar Nor did Philips plead a cause of by Philips' action for ñcgligent repair. Whether or not Philips repaired the Scanner is irrelevant to liability and does not preclude su=.mary judgment on Excalibur's cross-claims. CONCLUSION For all of the above-stated reasons, it is respectfully reqüésted that this Heñ0rable Court issue an Order: (1) Pursuant to the Civil Praedee Laws and Rules ("CPLR") Rule § 3212 granting Plaintiffs' ma.g judgmcñ‡ and dismissing Complaint and Excalibur's Cross-Claim as against Defr='==ts PHILIPS HEALTHCARE, PHILIPS MEDICAL SYSTEMS NORTH AMERICA COMPANY, PHILIPS MEDICAL SYSTEMS NORTH AMERICA, INC., and PHILIPS HEALTHCARE INFORMATICS, INC.; (2) Pursuant to CPLR § 602(a), joining the instant action Plaintiffs' for trial with compdcñ action, captioned R&R Third Properties, LLC, v. Greater New York Mutual Insurance Company, et al., Index No. 651377/13; and (3) granting costs, fees, disbursemcñts and such other and further relief as this Court deems just and proper. Dated: New York, New York October 3, 2018 Yours etc., GALLO VITUCCI KLAR LLP By: Thristen-diannaros, Esq. Attorneys for Defendants Philips Healthcare, Philips Medical Systems North America Company, Philips Medical Systems North America Inc. and Philips Healthcare Informatics, Inc. 126 90 Broad Street, Floor New York, New York 10004 (212) 683-7100