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NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 07/17/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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CAROLYN DISBROW,
Plaintiff, Index No. 651602/2020
:
-against-
Motion Seq. No. 1
THE NORMANDIE CONDOMINIUM, THE IAS Part 63
BOARD OF MANAGERS OF THE NORMANDIE Hon. Tanya R. J.S.C.
Kennedy,
CONDOMINIUM, METRO MANAGEMENT &
DEVELOPMENT, INC., GLOBAL SOLUTIONS
APPLIANCE REPAIR INC., GLOBAL ORAL ARGUMENT
SOLUTIONS APPLIANCE REPAIR NYC LLC, REQUESTED
HADAS A. JACOBI, BRIAN STRONG, AND
KERI STRONG
Defendants.
.
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PLAINTIFF'S MEMORANDUM OF LAW IN OPPOSITION TO
DEFENDANT HADAS JACOBI'S MOTION TO DISMISS THE COMPLAINT
AND IN SUPPORT OF CROSS-MOTION FOR ALTERNATIVE RELIEF
HERRICK, FEINSTEIN LLP
William R. Fried
Janice I.Goldberg
Maame Esi Austin
2 Park Avenue
New York, New York 10016
(212) 592-1400
Attorneys for Plaintiff Carolyn
Disbrow
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Plaintiff Carolyn Disbrow ("Disbrow"), by her attorneys, Herrick, Feinstein LLP,
respectfully submits this memorandum of law (i) in opposition to defendant Hadas Jacobi's
("Jacobi's") motion to dismiss the sixth cause of action alleging negligence against Jacobi as set
forth in Plaintiff's Verified Complaint dated March 10, 2020 ("Complaint"); and (ii) in the
alternative, in support of her cross-motion for leave to amend the Complaint. All capitalized terms
not otherwise defined herein shall have the meaning ascribed in the Complaint.
PRELIMINARY STATEMENT
On May 25, 2018, Disbrow suffered extensive water damage in her condominium unit on
the second floor of the Normandie Condominium. Disbrow learned that the water damage was
caused by a leak from an open water line in a condominium unit on the sixth floor. Specifically,
the water line had been negligently left open while repairs were being performed to a
malfunctioning refrigerator in the sixth-floor unit. At the time the refrigerator malfunctioned,
necessitating the repair, the sixth-floor unit was occupied by Jacobi, and Jacobi hired the appliance
repair company who ultimately caused the leak, damaging Disbrow.
Disbrow commenced this action in March 2020, asserting claims sounding in breach of
contract, breach of fiduciary duty, and negligence against multiple defendants, including the
Normandie Condominium, the Normandie Condominium's Board of Managers, the managing
agent, the appliance repair companies, Jacobi, and the record owners of the sixth-floor unit. Now,
Jacobi moves to dismiss the negligence claim asserted against her on the sole basis that the
appliance repair company is an independent contractor and Jacobi cannot be held liable for the
negligent repair work of the appliance repair company as a matter of law.
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Jacobi is incorrect. As discussed herein, the Complaint, taken together with affidavits and
affirmations submitted to the Court by Jacobi and by the owners of the sixth-floor unit, the Strongs,
states a claim of negligence against Jacobi.
First, Disbrow has stated a claim against Jacobi for the appliance repair company's
negligent repair of the refrigerator because Jacobi had a nondelegable duty to "assume[s] all
repair..."
obligations for maintenance and of the sixth-floor unit at the time that Jacobi retained
the appliance repair company to repair the malfunctioning refrigerator. Jacobi assumed this
nondelegable duty in a contract with the Strongs pursuant to which Jacobi was permitted to occupy
and possess the sixth-floor unit from April 1, 2018 through May 31, 2018. This duty, though
contractually undertaken as between Jacobi and the Strongs, nonetheless gives rise to tort liability
in favor of Disbrow, a third party to the contract. See Point II, infra at 6-9.
Second, Disbrow has alleged that Jacobi herself acted negligently by retaining and failing
to supervise the appliance repair company, which Jacobi concedes is a valid claim. Jacobi argues,
however, that Disbrow has not alleged facts sufficient to support the allegations of the Complaint,
to support a claim for negligent retention and supervision, warranting dismissal. But, as discussed
below, this is a pre-answer, pre-discovery motion to dismiss and Disbrow has not yet had the
opportunity to take discovery on the facts surrounding Jacobi's retention and supervision of the
appliance repair company, which facts are exclusively within Jacobi's knowledge and control.
This, too, should not serve as a basis for dismissal of the claim. See Point II, infra at 9.
Finally, as alternative relief, Disbrow requests leave to amend the Complaint should the
Court determine that the Complaint is deficient as to the claim asserted against Jacobi. Under the
liberal standards of CPLR 3025(b), such relief is well within the Court's discretion to award. See
Point III, infra at 10-11.
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In sum, as set forth in further detail herein, Jacobi's arguments to dismiss the sixth cause
of action of the Complaint should be rejected, and the motion should be denied.
STATEMENT OF FACTS
The relevant facts discussed herein are set forth in the Complaint, which are deemed to be
true for the purposes of a motion to dismiss under CPLR 3211(a)(7)¹; and the following documents
submitted to the Court by Jacobi and defendants Brian Strong and Keri Strong (the "Strongs") in
Strongs'
connection with Jacobi's motion to dismiss the cross-claims (Motion Seq. No. 3,
NYSCEF Doc. Nos. 27-33, 46-50): (1) the Affidavit of Hadas Jacobi sworn to June 8, 2020 and
Aff.,"
the exhibits thereto ("Jacobi NYSCEF Doc. Nos. 31-32) and (2) the Affirmation of Laurent
Aff.," 46-
Chevalier dated June 16, 2020 and the exhibits thereto ("Chevalier NYSCEF Doc. Nos.
49.)2
The information contained within the Jacobi Aff. and the Chevalier Aff. and the attached
exhibits was previously unknown to Disbrow at the time of the filing of the Complaint, and, as
discussed herein, is relevant to the determination of the instant motion.
A. Disbrow's Apartment Unit Suffers Extensive Damage
Disbrow is the owner of a Unit in the Normandie Condominium. On May 25, 2018,
Disbrow's Unit, and the personal property located in the Unit, sustained significant water-related
damage caused by a water leak originating from the kitchen of the Strong Unit. Specifically, while
performing repair work on a refrigerator in the Strong Unit, defendants Global Solutions Appliance
Repair Inc. and Global Solutions Appliance Repair NYC LLC (the "GS Entities") failed to shut
1
As the Complaint is verified,itmay alsobe treated as an affidavitby the Court pursuant to CPLR 105(u), stating
pleading' required."
"A 'verified may be utilized as anaffidavit whenever the latter
is
2 Affidavit of Jacobi Affirmation ofLaurent Chevalier
The Hadas and the exhibits thereto,and the and the exhibits
thereto are submitted simultaneously herewith as Exhibits A and B tothe Affirmation of Janice I.Goldberg, dated
July 17, 2020.
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off a water line causing the leak and the resulting water damage to Disbrow's Unit and property.
(Complaint ¶¶ 4, 23-26.)
B. Jacobi's Occupancy of the Strong Unit and Obligation to Repair the Refrigerator in
the Strong Unit
At the time the Complaint was filed, and as alleged in the Complaint, Disbrow understood
that Jacobi had sold the Strong Unit to the Strongs, subject to Jacobi agreeing to repair the
refrigerator in the Strong Unit, and further understood that Jacobi had hired the GS Entities to
perform the repairs. (Complaint ¶ 25-26, 83, 91.)
As is now clear from the Chevalier Aff. and the exhibits thereto, Jacobi entered into both
a sale contract pursuant to which the Strong Unit was sold to the Strongs, and a post-closing
possession agreement (the "Possession Agreement"), pursuant to which Jacobi was contractually
permitted to occupy the Strong Unit after the closing date up through May 31, 2018. (Chevalier
Aff. ¶ 4, Jacobi Aff. ¶ 4, Exhibit C.) Jacobi states she did occupy the Strong Unit until May 18,
2018. (Jacobi Aff. ¶ 6.) Pursuant to the post-closing possession agreement, Jacobi was under the
obligation to maintain and deliver the Strong Unit "in the same condition as detailed in the contract
sale,"
for and made a security deposit to the Strongs intended to "cover the cost of any post-sale
repairs."
damages or (Chevalier Aff. ¶ 4; see also Jacobi Aff. Exhibit C, ¶ 10 ("Seller will assume
all obligations for maintenance and repair (other than related to casualty events) of the property
during the holdover period. The Seller will be responsible for delivery of the property at the
conclusion of the holdover in a physical condition equal to that which existed at the time of closing
of title.") During Jacobi's post-sale occupancy of the Strong Unit, the refrigerator required repairs,
and Jacobi and non-party Alex Lynch hired the GS Entities to perform the refrigerator repairs,
obtaining an estimate for such repairs dated May 16, 2018 (i.e.,while Jacobi was occupying the
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Strong Unit). Jacobi paid for the refrigerator repairs and ultimately for the replacement of the
thereto.)3
refrigerator. (Chevalier Aff. ¶ 5, Exhibits B and C
ARGUMENT
I. STANDARD ON A MOTION TO DISMISS
Upon a motion to dismiss, brought pursuant to CPLR 3211(a)(7), the court's sole focus
must be to determine whether the proponent of the pleadings has a cause of action. See EBC I,
Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 175 (2005) ("Whether a
plaintiff can ultimately establish itsallegations is not part of the calculus in determining a motion
to dismiss"); Cayuga Partners, LLC v. 150 Grand, LLC, 305 A.D.2d 527, 527, 759 N.Y.S.2d 347,
348 (2d Dep't 2003) ("So liberal is the standard . . . that
the test is simply 'whether the proponent
action,'
of the pleading has a cause of not even 'whether he has stated one.'") (citation omitted);
see also Duran v. Bautista, 47 Misc. 3d 1207(A), at *10, 15 N.Y.S.3d 711 (Sup. Ct. N.Y. Cnty.
April 7, 2015) ("the court is concerned whether a pleading states a cause of action, rather than the
ultimate determination of the facts.") (citing Stukuls v. State, 42 N.Y.2d 272, 275, 397 N.Y.S.2d
740 (1977).) In reviewing such an application, the "court should construe the pleadings in a liberal
fashion by accepting the facts alleged in the complaint and interpreting them in a light most
plaintiff."
favorable to the Duran, 47 Misc. 3d 1207(A), at *10, 15 N.Y.S.3d 711. Accordingly,
"[s]uch motion will not be granted unless the moving papers conclusively establish that no cause
exists."
of action Id.
3 Inher motion sixth of Jacobi allegation that Jacobi
to dismissDisbrow's cause action, states"[t]he Ms. retained GS
false."
Entitiesto repairthe refrigeratorinthe Strong's [sic]Unit isdemonstrably (See Defendant Hadas A. Jacobi's
Memorandum of Law in Support of Motion toDismiss Pursuant to CPLR 3211(a)(7) ("Jacobi Mem."), NYSCEF
Doc. No. 17 at p.2.).Jacobi offers no support forthis statement and, as shown above, the Strongs have provided
documentary evidence indicating thatJacobi did hirethe GS Entities.
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In assessing a motion under CPLR 3211(a)(7), a court may freely consider affidavits
submitted by the plaintiff to remedy any defects in the Complaint. Leon v. Martinez, 84 N.Y.2d
83, 87-88 (1994) (citing Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635 (1976)). Here,
Disbrow relies not on her own affidavit, but on the affidavits and affirmations submitted and filed
on the electronic docket by Jacobi and the Strongs in connection with Motion Seq. No. 3, which
documents provide information regarding the relationship between the Jacobi and the Strongs
previously unknown to Disbrow. Disbrow respectfully submits that the Court can, in its
determination of this motion, take judicial notice of the documents filed on the electronic docket
by Jacobi and the Strongs in connection with Motion Seq. No. 3. See, e.g.,RGH Liquidating Trust
(1st
v. Deloitte & Touche, LLP, 71 A.D.3d 198, 207-08 Dep't 2009), rev. on other grounds, 17
N.Y.3d 397 (2011) ("it is well established that a court may take judicial notice of undisputed court
records and files"); see also Mayerhoff v. Timenides, 269 A.D.2d 369, 369 (2d Dep't 2000) ("on a
motion to dismiss, the court "may ...consider evidentiary submissions to assess the viability of a
complaint....")
Under these settled standards, Jacobi bears the burden to show that, even accepting the
facts alleged in Disbrow's Complaint as true and according her the benefit of every favorable
inference, that Disbrow has not stated a cause of action against Jacobi. Jacobi has not met that
burden.
II. DISBROW HAS SUFFICIENTLY PLED A CLAIM FOR NEGLIGENCE
AGAINST JACOBI
In order to set forth a prima facie case of negligence, a plaintiff is required to allege (1) the
existence of a duty on defendant's part as to plaintiff; (2) a breach of this duty; and (3) that such
breach was a substantial cause of the resulting injury. See Merino v. New York City Transit Auth.,
218 A.D.2d 451, 457 (1st Dep't 1996), aff'd 89 N.Y.2d 824 (1996) (citations omitted). The
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existence and scope of a duty of care is a question of law for the courts. Church ex rel. Smith v.
Callanan Indus., Inc., 99 N.Y.2d 104, 110-11 (2002).
On the instant motion, Jacobi's sole argument in support of dismissal of the sixth cause of
action for negligence is the bare legal conclusion that the allegations of the Complaint can only be
infer[]"
read to "reasonably that the GS Entities were retained as an independent contractor by
Entities'
Jacobi, and thus Jacobi cannot be liable for the GS negligence as a matter of law under
the rule espoused by the Court of Appeals in Kleeman v. Rheingold, 81 N.Y.2d 270, 273-74 (1993).
(Jacobi Mem. at 2-5.) Jacobi's argument should be rejected.
As stated above, at the time that the Complaint was filed, Disbrow only generally
understood that Jacobi had some obligation to repair the refrigerator in the Strong Unit and had
retained the GS Entities to do so, and that the GS Entities performed the repair negligently by
failing to shut the water line in the kitchen of the Strong Unit. Thus, Disbrow's pleading alleges
the foregoing facts and further alleges that Jacobi "(a) negligently and carelessly retained the GS
Entities to perform the repairs in the Strong Unit; (b) negligently and carelessly failed to supervise
the repairs being performed by the GS Entities in the Strong Unit; (c) permitted the GS Entities to
negligently and carelessly perform the repairs in the Strong Unit; and (d) failed to exercise that
circumstances..."
degree of care that a reasonable person would have under the same, foreseeable
(Complaint ¶¶ 25-26, 93.)
Now, based on the filings of Jacobi and the Strongs, Disbrow has learned that Jacobi was
in fact an occupant of the Strong Unit at the time that the refrigerator malfunctioned and required
repairs, which repairs were ultimately performed in a negligent manner damaging Disbrow.
Indeed, Jacobi should be deemed an occupying tenant in possession based on the terms of the
Possession Agreement executed by Jacobi and the Strongs, which includes provisions regarding a
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setoff to the purchase price to reflect Jacobi's payment of rent for the period April 1, 2018 through
June 1, 2018 and payment of a security deposit into escrow. (Jacobi Aff. Exhibit C ¶¶ 4, 6.)
Moreover, Jacobi had the contractual obligation under the Possession Agreement to pay for "all
maintenance and repair (other than related to casualty events) of the property during the holdover
period."
(Id. ¶ 10.) Thus, the appropriate analysis, based on the allegations of the Complaint
coupled with the affidavits and affirmations submitted by Jacobi and the Strongs, is whether a
claim for negligence lies against Jacobi as the occupying tenant of the Strong Unit with the
obligations set forth in the Possession Agreement, and the answer to this question is undoubtedly
yes.
As a threshold is a legal malpractice case that deals with the non-
matter, Kleeman, supra,
delegable duties of a law firm, which could not evade responsibility for a negligent process server
and is thus completely inapposite to the facts at issue here. Nonetheless, as the Kleeman court
noted and as Jacobi also concedes, there are exceptions to the general rule that a party who hires
an independent contractor is generally not liable for the independent contractor's negligence. One
such exception is where the employer (like the defendant law firm n Kleeman) has a nondelegable
duty. (Jacobi Mem. at 3-4.) Here, Jacobi had the nondelegable duty to "assume[s] all obligations
period."
for maintenance and repair...of the property during the holdover (Jacobi Aff. Exhibit C,
¶ 10.) This duty, though contractually undertaken as between Jacobi and the Strongs, can
nonetheless give rise to tort liability in favor of Disbrow because itfalls within the scenario "where
safely."
the contracting party has entirely displaced the other party's duty to maintain the premises
Church, 99 N.Y.2d at 112; see also Palka v. Servicemaster Mgmt. Servs. Corp., 83 N.Y.2d 579,
589 (1994) ("[W]hen a party contracts to inspect and repair and possesses the exclusive
management and control of real or personal property which results in negligent infliction of injury,
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its assumed duty extends to noncontracting individuals reasonably within the zone and
contemplation of the intended safety services.").
Here, the Possession Agreement provides that Jacobi "assume[s] all obligations for
period."
maintenance and repair...of the property during the holdover (Jacobi Aff. Exhibit C, ¶
10.) Thus, accepting the facts as alleged in the Complaint as true and according Disbrow the
benefit of every possible favorable inference, Disbrow has stated a claim that Jacobi acted
negligently in retaining and failing to supervise GS Entities while performing her contractual
obligations under the Possession Agreement to assume all obligations for maintenance and repair
of the Strong Unit.
Moreover, Jacobi acknowledges that another exception to the independent contractor rule
stated in Kleeman is where there is negligence of the employer in selecting, instructing or
contractor."
supervising the (Jacobi Mem. at 4-5, citing Kleeman, 81 N.Y.2d at 274.) Jacobi
argues that the allegations of the Complaint that Jacobi was negligent in hiring and supervising the
GS Entities are bare and conclusory (see id.) but this argument should be rejected because of the
pre-answer, pre-discovery posture of the case. Disbrow has not yet had an opportunity to take
discovery of either Jacobi or the GS Entities, and information concerning the process by which
Jacobi retained the GS Entities and the circumstances of the negligent repair is information that is
not within Disbrow's present knowledge or control. Disbrow's claim against Jacobi should not be
dismissed for failure to allege facts that are as yet unknown to her and are within Jacobi's exclusive
control. See, e.g., CPLR 3211(d) ("Should itappear...that facts essential to justify opposition may
exist but cannot then be stated, the court may deny the motion....")
For the foregoing reasons, Disbrow has stated a claim for negligence against Jacobi and
dismissal prior to discovery is inappropriate.
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III. ALTERNATIVELY, THE COURT SHOULD GRANT PLAINTIFF LEAVE TO
AMEND THE COMPLAINT TO CURE ANY PLEADING DEFICIENCIES
As set forth above, Disbrow has shown that the Complaint states a claim for negligence
and that Jacobi has failed to show that dismissal of the Complaint pursuant to CPLR 3211(a)(7) is
warranted. However, as alternative relief, Disbrow cross-moves herein for leave to amend the
Complaint to cure any pleading deficiencies that may be identified by the Court.
CPLR 3025(b) provides that a party may amend itspleading at any time with leave of court.
It is well-settled under New York law that "[1]eave to amend pleadings under CPLR 3025(b)
should be freely given, and denied only ifthere is 'prejudice or surprise resulting directly from the
delay' law."
or if the proposed amendment 'is palpably improper or insufficient as a matter of
McGee v. Odell, 96 A.D.3d 449, 450 (1st Dep't 2012) (internal citations omitted); see also Smith
v Haggerty, 16 A.D.3d 967, 967-68 (3d Dep't 2005) ("[p]rovided that there is no prejudice to the
nonmoving party and the amendment is not plainly lacking in merit, leave to amend pleadings
under CPLR 3025(b) should be freely granted"); see also Dittmar Explosives, Inc. v. A.E.
'freely'
Ottaviano, Inc., 20 N.Y.2d 498, 502-03 (1967) ("leave to amend should be granted even
if the amendment substantially alters the theory of recovery.")
Disbrow respectfully submits that to the extent the Court agrees that Jacobi is correct that
the Complaint fails to sufficiently plead a claim for negligence, such deficiency could be cured
with an amended pleading setting forth further facts in support of Disbrow's claim based upon the
evidence submitted by Jacobi and the Strongs, and additional theories of liability, if applicable,
based upon Jacobi's now known status as an occupying tenant of the Strong Unit. Upon direction
of the Court, Disbrow is prepared to file a proposed amended pleading for the Court's
consideration. Such amended pleading would not lack merit or be palpably insufficient given the
evidence submitted by Jacobi and the Strongs. Nor would such amended pleading unduly
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prejudice or surprise Jacobi given the pre-answer, pre-discovery posture of Jacobi's motion to
dismiss. Accordingly, alternative relief granting Disbrow leave to amend the Complaint should
be granted.
CONCLUSION
WHEREFORE, for all of the foregoing reasons, Plaintiff Carolyn Disbrow respectfully
requests that this Court enter an order (i)denying Defendant Hadas Jacobi's motion to dismiss the
sixth cause of action in the Complaint or (ii)in the alternative, grant Disbrow leave to amend the
Complaint pursuant to CPLR 3025(b) and direct that Disbrow submit a proposed amended
Complaint for the Court's review, and (iii)awarding Disbrow such other and further relief as the
Court deems just and equitable.
Dated: New York, New York
July 17, 2020
HERRICK, FEINSTEIN LLP
By: /s/Janice I. Goldberg
William R. Fried
Janice I.Goldberg
Maame Esi Austin
2 Park Avenue
New York, New York 10016
(212) 592-1400
Attorneys for Plaintiff Carolyn Disbrow
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HF13413927v.1
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Preview
FILED: NEW YORK COUNTY CLERK 07/17/2020 09:35 PM INDEX NO. 651602/2020 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 07/17/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------x CAROLYN DISBROW, Plaintiff, Index No. 651602/2020 : -against- Motion Seq. No. 1 THE NORMANDIE CONDOMINIUM, THE IAS Part 63 BOARD OF MANAGERS OF THE NORMANDIE Hon. Tanya R. J.S.C. Kennedy, CONDOMINIUM, METRO MANAGEMENT & DEVELOPMENT, INC., GLOBAL SOLUTIONS APPLIANCE REPAIR INC., GLOBAL ORAL ARGUMENT SOLUTIONS APPLIANCE REPAIR NYC LLC, REQUESTED HADAS A. JACOBI, BRIAN STRONG, AND KERI STRONG Defendants. . ----------------------------------------------------------------x PLAINTIFF'S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT HADAS JACOBI'S MOTION TO DISMISS THE COMPLAINT AND IN SUPPORT OF CROSS-MOTION FOR ALTERNATIVE RELIEF HERRICK, FEINSTEIN LLP William R. Fried Janice I.Goldberg Maame Esi Austin 2 Park Avenue New York, New York 10016 (212) 592-1400 Attorneys for Plaintiff Carolyn Disbrow 1 of 12 FILED: NEW YORK COUNTY CLERK 07/17/2020 09:35 PM INDEX NO. 651602/2020 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 07/17/2020 Plaintiff Carolyn Disbrow ("Disbrow"), by her attorneys, Herrick, Feinstein LLP, respectfully submits this memorandum of law (i) in opposition to defendant Hadas Jacobi's ("Jacobi's") motion to dismiss the sixth cause of action alleging negligence against Jacobi as set forth in Plaintiff's Verified Complaint dated March 10, 2020 ("Complaint"); and (ii) in the alternative, in support of her cross-motion for leave to amend the Complaint. All capitalized terms not otherwise defined herein shall have the meaning ascribed in the Complaint. PRELIMINARY STATEMENT On May 25, 2018, Disbrow suffered extensive water damage in her condominium unit on the second floor of the Normandie Condominium. Disbrow learned that the water damage was caused by a leak from an open water line in a condominium unit on the sixth floor. Specifically, the water line had been negligently left open while repairs were being performed to a malfunctioning refrigerator in the sixth-floor unit. At the time the refrigerator malfunctioned, necessitating the repair, the sixth-floor unit was occupied by Jacobi, and Jacobi hired the appliance repair company who ultimately caused the leak, damaging Disbrow. Disbrow commenced this action in March 2020, asserting claims sounding in breach of contract, breach of fiduciary duty, and negligence against multiple defendants, including the Normandie Condominium, the Normandie Condominium's Board of Managers, the managing agent, the appliance repair companies, Jacobi, and the record owners of the sixth-floor unit. Now, Jacobi moves to dismiss the negligence claim asserted against her on the sole basis that the appliance repair company is an independent contractor and Jacobi cannot be held liable for the negligent repair work of the appliance repair company as a matter of law. 1 2 of 12 FILED: NEW YORK COUNTY CLERK 07/17/2020 09:35 PM INDEX NO. 651602/2020 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 07/17/2020 Jacobi is incorrect. As discussed herein, the Complaint, taken together with affidavits and affirmations submitted to the Court by Jacobi and by the owners of the sixth-floor unit, the Strongs, states a claim of negligence against Jacobi. First, Disbrow has stated a claim against Jacobi for the appliance repair company's negligent repair of the refrigerator because Jacobi had a nondelegable duty to "assume[s] all repair..." obligations for maintenance and of the sixth-floor unit at the time that Jacobi retained the appliance repair company to repair the malfunctioning refrigerator. Jacobi assumed this nondelegable duty in a contract with the Strongs pursuant to which Jacobi was permitted to occupy and possess the sixth-floor unit from April 1, 2018 through May 31, 2018. This duty, though contractually undertaken as between Jacobi and the Strongs, nonetheless gives rise to tort liability in favor of Disbrow, a third party to the contract. See Point II, infra at 6-9. Second, Disbrow has alleged that Jacobi herself acted negligently by retaining and failing to supervise the appliance repair company, which Jacobi concedes is a valid claim. Jacobi argues, however, that Disbrow has not alleged facts sufficient to support the allegations of the Complaint, to support a claim for negligent retention and supervision, warranting dismissal. But, as discussed below, this is a pre-answer, pre-discovery motion to dismiss and Disbrow has not yet had the opportunity to take discovery on the facts surrounding Jacobi's retention and supervision of the appliance repair company, which facts are exclusively within Jacobi's knowledge and control. This, too, should not serve as a basis for dismissal of the claim. See Point II, infra at 9. Finally, as alternative relief, Disbrow requests leave to amend the Complaint should the Court determine that the Complaint is deficient as to the claim asserted against Jacobi. Under the liberal standards of CPLR 3025(b), such relief is well within the Court's discretion to award. See Point III, infra at 10-11. 2 3 of 12 FILED: NEW YORK COUNTY CLERK 07/17/2020 09:35 PM INDEX NO. 651602/2020 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 07/17/2020 In sum, as set forth in further detail herein, Jacobi's arguments to dismiss the sixth cause of action of the Complaint should be rejected, and the motion should be denied. STATEMENT OF FACTS The relevant facts discussed herein are set forth in the Complaint, which are deemed to be true for the purposes of a motion to dismiss under CPLR 3211(a)(7)¹; and the following documents submitted to the Court by Jacobi and defendants Brian Strong and Keri Strong (the "Strongs") in Strongs' connection with Jacobi's motion to dismiss the cross-claims (Motion Seq. No. 3, NYSCEF Doc. Nos. 27-33, 46-50): (1) the Affidavit of Hadas Jacobi sworn to June 8, 2020 and Aff.," the exhibits thereto ("Jacobi NYSCEF Doc. Nos. 31-32) and (2) the Affirmation of Laurent Aff.," 46- Chevalier dated June 16, 2020 and the exhibits thereto ("Chevalier NYSCEF Doc. Nos. 49.)2 The information contained within the Jacobi Aff. and the Chevalier Aff. and the attached exhibits was previously unknown to Disbrow at the time of the filing of the Complaint, and, as discussed herein, is relevant to the determination of the instant motion. A. Disbrow's Apartment Unit Suffers Extensive Damage Disbrow is the owner of a Unit in the Normandie Condominium. On May 25, 2018, Disbrow's Unit, and the personal property located in the Unit, sustained significant water-related damage caused by a water leak originating from the kitchen of the Strong Unit. Specifically, while performing repair work on a refrigerator in the Strong Unit, defendants Global Solutions Appliance Repair Inc. and Global Solutions Appliance Repair NYC LLC (the "GS Entities") failed to shut 1 As the Complaint is verified,itmay alsobe treated as an affidavitby the Court pursuant to CPLR 105(u), stating pleading' required." "A 'verified may be utilized as anaffidavit whenever the latter is 2 Affidavit of Jacobi Affirmation ofLaurent Chevalier The Hadas and the exhibits thereto,and the and the exhibits thereto are submitted simultaneously herewith as Exhibits A and B tothe Affirmation of Janice I.Goldberg, dated July 17, 2020. 3 4 of 12 FILED: NEW YORK COUNTY CLERK 07/17/2020 09:35 PM INDEX NO. 651602/2020 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 07/17/2020 off a water line causing the leak and the resulting water damage to Disbrow's Unit and property. (Complaint ¶¶ 4, 23-26.) B. Jacobi's Occupancy of the Strong Unit and Obligation to Repair the Refrigerator in the Strong Unit At the time the Complaint was filed, and as alleged in the Complaint, Disbrow understood that Jacobi had sold the Strong Unit to the Strongs, subject to Jacobi agreeing to repair the refrigerator in the Strong Unit, and further understood that Jacobi had hired the GS Entities to perform the repairs. (Complaint ¶ 25-26, 83, 91.) As is now clear from the Chevalier Aff. and the exhibits thereto, Jacobi entered into both a sale contract pursuant to which the Strong Unit was sold to the Strongs, and a post-closing possession agreement (the "Possession Agreement"), pursuant to which Jacobi was contractually permitted to occupy the Strong Unit after the closing date up through May 31, 2018. (Chevalier Aff. ¶ 4, Jacobi Aff. ¶ 4, Exhibit C.) Jacobi states she did occupy the Strong Unit until May 18, 2018. (Jacobi Aff. ¶ 6.) Pursuant to the post-closing possession agreement, Jacobi was under the obligation to maintain and deliver the Strong Unit "in the same condition as detailed in the contract sale," for and made a security deposit to the Strongs intended to "cover the cost of any post-sale repairs." damages or (Chevalier Aff. ¶ 4; see also Jacobi Aff. Exhibit C, ¶ 10 ("Seller will assume all obligations for maintenance and repair (other than related to casualty events) of the property during the holdover period. The Seller will be responsible for delivery of the property at the conclusion of the holdover in a physical condition equal to that which existed at the time of closing of title.") During Jacobi's post-sale occupancy of the Strong Unit, the refrigerator required repairs, and Jacobi and non-party Alex Lynch hired the GS Entities to perform the refrigerator repairs, obtaining an estimate for such repairs dated May 16, 2018 (i.e.,while Jacobi was occupying the 4 5 of 12 FILED: NEW YORK COUNTY CLERK 07/17/2020 09:35 PM INDEX NO. 651602/2020 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 07/17/2020 Strong Unit). Jacobi paid for the refrigerator repairs and ultimately for the replacement of the thereto.)3 refrigerator. (Chevalier Aff. ¶ 5, Exhibits B and C ARGUMENT I. STANDARD ON A MOTION TO DISMISS Upon a motion to dismiss, brought pursuant to CPLR 3211(a)(7), the court's sole focus must be to determine whether the proponent of the pleadings has a cause of action. See EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 175 (2005) ("Whether a plaintiff can ultimately establish itsallegations is not part of the calculus in determining a motion to dismiss"); Cayuga Partners, LLC v. 150 Grand, LLC, 305 A.D.2d 527, 527, 759 N.Y.S.2d 347, 348 (2d Dep't 2003) ("So liberal is the standard . . . that the test is simply 'whether the proponent action,' of the pleading has a cause of not even 'whether he has stated one.'") (citation omitted); see also Duran v. Bautista, 47 Misc. 3d 1207(A), at *10, 15 N.Y.S.3d 711 (Sup. Ct. N.Y. Cnty. April 7, 2015) ("the court is concerned whether a pleading states a cause of action, rather than the ultimate determination of the facts.") (citing Stukuls v. State, 42 N.Y.2d 272, 275, 397 N.Y.S.2d 740 (1977).) In reviewing such an application, the "court should construe the pleadings in a liberal fashion by accepting the facts alleged in the complaint and interpreting them in a light most plaintiff." favorable to the Duran, 47 Misc. 3d 1207(A), at *10, 15 N.Y.S.3d 711. Accordingly, "[s]uch motion will not be granted unless the moving papers conclusively establish that no cause exists." of action Id. 3 Inher motion sixth of Jacobi allegation that Jacobi to dismissDisbrow's cause action, states"[t]he Ms. retained GS false." Entitiesto repairthe refrigeratorinthe Strong's [sic]Unit isdemonstrably (See Defendant Hadas A. Jacobi's Memorandum of Law in Support of Motion toDismiss Pursuant to CPLR 3211(a)(7) ("Jacobi Mem."), NYSCEF Doc. No. 17 at p.2.).Jacobi offers no support forthis statement and, as shown above, the Strongs have provided documentary evidence indicating thatJacobi did hirethe GS Entities. 5 6 of 12 FILED: NEW YORK COUNTY CLERK 07/17/2020 09:35 PM INDEX NO. 651602/2020 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 07/17/2020 In assessing a motion under CPLR 3211(a)(7), a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the Complaint. Leon v. Martinez, 84 N.Y.2d 83, 87-88 (1994) (citing Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635 (1976)). Here, Disbrow relies not on her own affidavit, but on the affidavits and affirmations submitted and filed on the electronic docket by Jacobi and the Strongs in connection with Motion Seq. No. 3, which documents provide information regarding the relationship between the Jacobi and the Strongs previously unknown to Disbrow. Disbrow respectfully submits that the Court can, in its determination of this motion, take judicial notice of the documents filed on the electronic docket by Jacobi and the Strongs in connection with Motion Seq. No. 3. See, e.g.,RGH Liquidating Trust (1st v. Deloitte & Touche, LLP, 71 A.D.3d 198, 207-08 Dep't 2009), rev. on other grounds, 17 N.Y.3d 397 (2011) ("it is well established that a court may take judicial notice of undisputed court records and files"); see also Mayerhoff v. Timenides, 269 A.D.2d 369, 369 (2d Dep't 2000) ("on a motion to dismiss, the court "may ...consider evidentiary submissions to assess the viability of a complaint....") Under these settled standards, Jacobi bears the burden to show that, even accepting the facts alleged in Disbrow's Complaint as true and according her the benefit of every favorable inference, that Disbrow has not stated a cause of action against Jacobi. Jacobi has not met that burden. II. DISBROW HAS SUFFICIENTLY PLED A CLAIM FOR NEGLIGENCE AGAINST JACOBI In order to set forth a prima facie case of negligence, a plaintiff is required to allege (1) the existence of a duty on defendant's part as to plaintiff; (2) a breach of this duty; and (3) that such breach was a substantial cause of the resulting injury. See Merino v. New York City Transit Auth., 218 A.D.2d 451, 457 (1st Dep't 1996), aff'd 89 N.Y.2d 824 (1996) (citations omitted). The 6 7 of 12 FILED: NEW YORK COUNTY CLERK 07/17/2020 09:35 PM INDEX NO. 651602/2020 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 07/17/2020 existence and scope of a duty of care is a question of law for the courts. Church ex rel. Smith v. Callanan Indus., Inc., 99 N.Y.2d 104, 110-11 (2002). On the instant motion, Jacobi's sole argument in support of dismissal of the sixth cause of action for negligence is the bare legal conclusion that the allegations of the Complaint can only be infer[]" read to "reasonably that the GS Entities were retained as an independent contractor by Entities' Jacobi, and thus Jacobi cannot be liable for the GS negligence as a matter of law under the rule espoused by the Court of Appeals in Kleeman v. Rheingold, 81 N.Y.2d 270, 273-74 (1993). (Jacobi Mem. at 2-5.) Jacobi's argument should be rejected. As stated above, at the time that the Complaint was filed, Disbrow only generally understood that Jacobi had some obligation to repair the refrigerator in the Strong Unit and had retained the GS Entities to do so, and that the GS Entities performed the repair negligently by failing to shut the water line in the kitchen of the Strong Unit. Thus, Disbrow's pleading alleges the foregoing facts and further alleges that Jacobi "(a) negligently and carelessly retained the GS Entities to perform the repairs in the Strong Unit; (b) negligently and carelessly failed to supervise the repairs being performed by the GS Entities in the Strong Unit; (c) permitted the GS Entities to negligently and carelessly perform the repairs in the Strong Unit; and (d) failed to exercise that circumstances..." degree of care that a reasonable person would have under the same, foreseeable (Complaint ¶¶ 25-26, 93.) Now, based on the filings of Jacobi and the Strongs, Disbrow has learned that Jacobi was in fact an occupant of the Strong Unit at the time that the refrigerator malfunctioned and required repairs, which repairs were ultimately performed in a negligent manner damaging Disbrow. Indeed, Jacobi should be deemed an occupying tenant in possession based on the terms of the Possession Agreement executed by Jacobi and the Strongs, which includes provisions regarding a 7 8 of 12 FILED: NEW YORK COUNTY CLERK 07/17/2020 09:35 PM INDEX NO. 651602/2020 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 07/17/2020 setoff to the purchase price to reflect Jacobi's payment of rent for the period April 1, 2018 through June 1, 2018 and payment of a security deposit into escrow. (Jacobi Aff. Exhibit C ¶¶ 4, 6.) Moreover, Jacobi had the contractual obligation under the Possession Agreement to pay for "all maintenance and repair (other than related to casualty events) of the property during the holdover period." (Id. ¶ 10.) Thus, the appropriate analysis, based on the allegations of the Complaint coupled with the affidavits and affirmations submitted by Jacobi and the Strongs, is whether a claim for negligence lies against Jacobi as the occupying tenant of the Strong Unit with the obligations set forth in the Possession Agreement, and the answer to this question is undoubtedly yes. As a threshold is a legal malpractice case that deals with the non- matter, Kleeman, supra, delegable duties of a law firm, which could not evade responsibility for a negligent process server and is thus completely inapposite to the facts at issue here. Nonetheless, as the Kleeman court noted and as Jacobi also concedes, there are exceptions to the general rule that a party who hires an independent contractor is generally not liable for the independent contractor's negligence. One such exception is where the employer (like the defendant law firm n Kleeman) has a nondelegable duty. (Jacobi Mem. at 3-4.) Here, Jacobi had the nondelegable duty to "assume[s] all obligations period." for maintenance and repair...of the property during the holdover (Jacobi Aff. Exhibit C, ¶ 10.) This duty, though contractually undertaken as between Jacobi and the Strongs, can nonetheless give rise to tort liability in favor of Disbrow because itfalls within the scenario "where safely." the contracting party has entirely displaced the other party's duty to maintain the premises Church, 99 N.Y.2d at 112; see also Palka v. Servicemaster Mgmt. Servs. Corp., 83 N.Y.2d 579, 589 (1994) ("[W]hen a party contracts to inspect and repair and possesses the exclusive management and control of real or personal property which results in negligent infliction of injury, 8 9 of 12 FILED: NEW YORK COUNTY CLERK 07/17/2020 09:35 PM INDEX NO. 651602/2020 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 07/17/2020 its assumed duty extends to noncontracting individuals reasonably within the zone and contemplation of the intended safety services."). Here, the Possession Agreement provides that Jacobi "assume[s] all obligations for period." maintenance and repair...of the property during the holdover (Jacobi Aff. Exhibit C, ¶ 10.) Thus, accepting the facts as alleged in the Complaint as true and according Disbrow the benefit of every possible favorable inference, Disbrow has stated a claim that Jacobi acted negligently in retaining and failing to supervise GS Entities while performing her contractual obligations under the Possession Agreement to assume all obligations for maintenance and repair of the Strong Unit. Moreover, Jacobi acknowledges that another exception to the independent contractor rule stated in Kleeman is where there is negligence of the employer in selecting, instructing or contractor." supervising the (Jacobi Mem. at 4-5, citing Kleeman, 81 N.Y.2d at 274.) Jacobi argues that the allegations of the Complaint that Jacobi was negligent in hiring and supervising the GS Entities are bare and conclusory (see id.) but this argument should be rejected because of the pre-answer, pre-discovery posture of the case. Disbrow has not yet had an opportunity to take discovery of either Jacobi or the GS Entities, and information concerning the process by which Jacobi retained the GS Entities and the circumstances of the negligent repair is information that is not within Disbrow's present knowledge or control. Disbrow's claim against Jacobi should not be dismissed for failure to allege facts that are as yet unknown to her and are within Jacobi's exclusive control. See, e.g., CPLR 3211(d) ("Should itappear...that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion....") For the foregoing reasons, Disbrow has stated a claim for negligence against Jacobi and dismissal prior to discovery is inappropriate. 9 10 of 12 FILED: NEW YORK COUNTY CLERK 07/17/2020 09:35 PM INDEX NO. 651602/2020 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 07/17/2020 III. ALTERNATIVELY, THE COURT SHOULD GRANT PLAINTIFF LEAVE TO AMEND THE COMPLAINT TO CURE ANY PLEADING DEFICIENCIES As set forth above, Disbrow has shown that the Complaint states a claim for negligence and that Jacobi has failed to show that dismissal of the Complaint pursuant to CPLR 3211(a)(7) is warranted. However, as alternative relief, Disbrow cross-moves herein for leave to amend the Complaint to cure any pleading deficiencies that may be identified by the Court. CPLR 3025(b) provides that a party may amend itspleading at any time with leave of court. It is well-settled under New York law that "[1]eave to amend pleadings under CPLR 3025(b) should be freely given, and denied only ifthere is 'prejudice or surprise resulting directly from the delay' law." or if the proposed amendment 'is palpably improper or insufficient as a matter of McGee v. Odell, 96 A.D.3d 449, 450 (1st Dep't 2012) (internal citations omitted); see also Smith v Haggerty, 16 A.D.3d 967, 967-68 (3d Dep't 2005) ("[p]rovided that there is no prejudice to the nonmoving party and the amendment is not plainly lacking in merit, leave to amend pleadings under CPLR 3025(b) should be freely granted"); see also Dittmar Explosives, Inc. v. A.E. 'freely' Ottaviano, Inc., 20 N.Y.2d 498, 502-03 (1967) ("leave to amend should be granted even if the amendment substantially alters the theory of recovery.") Disbrow respectfully submits that to the extent the Court agrees that Jacobi is correct that the Complaint fails to sufficiently plead a claim for negligence, such deficiency could be cured with an amended pleading setting forth further facts in support of Disbrow's claim based upon the evidence submitted by Jacobi and the Strongs, and additional theories of liability, if applicable, based upon Jacobi's now known status as an occupying tenant of the Strong Unit. Upon direction of the Court, Disbrow is prepared to file a proposed amended pleading for the Court's consideration. Such amended pleading would not lack merit or be palpably insufficient given the evidence submitted by Jacobi and the Strongs. Nor would such amended pleading unduly 10 11 of 12 FILED: NEW YORK COUNTY CLERK 07/17/2020 09:35 PM INDEX NO. 651602/2020 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 07/17/2020 prejudice or surprise Jacobi given the pre-answer, pre-discovery posture of Jacobi's motion to dismiss. Accordingly, alternative relief granting Disbrow leave to amend the Complaint should be granted. CONCLUSION WHEREFORE, for all of the foregoing reasons, Plaintiff Carolyn Disbrow respectfully requests that this Court enter an order (i)denying Defendant Hadas Jacobi's motion to dismiss the sixth cause of action in the Complaint or (ii)in the alternative, grant Disbrow leave to amend the Complaint pursuant to CPLR 3025(b) and direct that Disbrow submit a proposed amended Complaint for the Court's review, and (iii)awarding Disbrow such other and further relief as the Court deems just and equitable. Dated: New York, New York July 17, 2020 HERRICK, FEINSTEIN LLP By: /s/Janice I. Goldberg William R. Fried Janice I.Goldberg Maame Esi Austin 2 Park Avenue New York, New York 10016 (212) 592-1400 Attorneys for Plaintiff Carolyn Disbrow 11 HF13413927v.1 12 of 12