Occidental Fire & Cas. Co. of N. Carolina v. RJ 4th Ave LLC

Occidental Fire & Cas. Co. of N. Carolina v RJ 4th Ave LLC 2025 NY Slip Op 31690(U) May 8, 2025 Supreme Court, Kings County Docket Number: Index No. 528723/2024 Judge: Anne J. Swern Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official publication.

FILED: KINGS COUNTY CLERK 05/09/2025 02:20 PM INDEX NO. 528723/2024 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 05/09/2025

At an IAS Trial Term, Part 75 of the Supreme Court of the State of New York, Kings County, at the Courthouse located at Adams Street, Brooklyn, New York on the 8th day of May 2025 PRESENT: HON.ANNE J. SWERN, J,S,C.

OCCIDENTAL FIRE AND CASUALTY COMPANY OF DECISION & ORDER NORTH CAROLINA a/s/oMOHAMED ALTHAIBANI, Index.No.: 528723/2024 Piatmiffa; CalendarNo.: 33 -.against~ Motion Seq.: I RJ 4TH AVE LLC, RE!\:N, LLC, FRANK J ..RIO, METROPOLITAN REAf,TY EXEMPTIONS; INC., Retµtn Date: 3/13/2025 IvfARTIN JOSEPH, REAL LAND GROUPLLC, MOSHE ROSENBERG . . ' XOLLEDEMO LLC' F AND M 82 CORPORATION, CAPITAL CONCRETE NY INC., CAJ?ITALCONCRETE NY2 INC., CAPITAL EQUIPMENT NY LLC, CAPITAL NY MAINTENANCE INC., CAPITAL DRILLING NY.INC., ON STAR MANAGEMENT LLC, .GEM M. BRUTUS~ MAXIENNE K. BRUTUS, HOUSING LINE JNG., ~d GERTLER& WENTE ARCIIlTECT$~ LLP,.

Defendants.

ReGiiation ofthe following papers as required by CPLR.22T9(a): Papers Numbered Notice of Moti9rt, Affirmation, Affida:vits·and.Exhibits (NYSCEF15-23) ................ ,, .... , .. ,......... ,.. ,, .............. ..1, 2 Affinnation,. Affidavit and .Exhibits in Opposition . {NYSCEF . 50-59}...... ,.......... .3 Repl)'Affirmation and Exhibits (NYSCEF6◊-62) .......;....... ;....................... ;.......4 .

Upon theforegoingpapers and after oral argument; the decision and order of the Court is as follows: Introduction Pfatrttiffs commenced this subrogation action .for property damage allegedly sustaine.d by piaintiff1 Mohamed Althaibani, the subrogee ofOccidental Fire .anci Casualty Company of North

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Carolina (Occidental) and owner uf 3 58. Dean Street, Brooklyn, New York (the "insured premises''). Itis alleged that the.insured property sustained damageas·the result of demolition and construction on the adjoining properties located at 3 54/3 56 Dean Street and 360 Dean Street/52 4th Avenue (Collectively the "project site").

Arguments of Counsel Defendant, Metropolitan Realty Exemptions, Inc, (Metropolitan), })as now moved this Court for an order pursuant to CPLR § 3211 [a] [1] and [7] dismissing this action. In support of the motion, Metropolitan submits the affidavit of Martin Joseph, together with the deeds .for the ptojectsite. Mr. Joseph states that as reflected irt the deeds fonhe project site, Metropolitan has no ownership interestin arty oftheproperties that are the subjectofthis action (NYSCEF 18--20).

Further, Metropolitan did not contract in any way for the demolition and construction work performed atthe project. Metropolitan is an entity that assists real estate owners to obtain tax abatelllents. 1 Therefore,. the documentary evidence demonstrates that Metropolitan has no nexus to the project site, or the demolition and construction performed thereat.

In opposition, plaintiffs submitthe affidavit of Najla Althaibarii, the subrogee's son who states that he communicated with Martin Joseph concerning the issues at the project site. An emailin response one sent 1:,y Najla was signed as follows: Martin. Joseph/CEO Metropolitan Realty Exemptions, Inc. Office: 349 Keep Street, Brooklyn, New York 11211 Mailing: 118 Middleton Street, Brooklyn, NY 112062 Plaintiffs also subm1.tan internet news article that states,-"Excavation work is set to begin at 52 Fourth Avenue, the site ofa nine•story residential building in Boerum Hill; Brooklyn..

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Designed by Gertler & Wente Arr;hitects c1nd New York developed by Metropolitan Realty Exewptio_ns 1,Jnder the RJ ·4th Avenue LLC, the 55, 0Q._0._squarefootstructure ·will yield-a-52 rental apartments averaging 775 squarefeet apiec:e ... ;,J

NajlaAlthaihani.h as·a power ofattoiney to ·acton his father'S:-behalf; 4 ·The $Ubrogee signeda written agreement with defendantREKNl LLC{REKN)thro ugh its nianagfog inember, Frank J.. Rlo, 5 This· agreement provided REKN with access to the stibrogee's property·for the demolition an:d construction work to ·be conclucted on the adjohling ·project site. Najla states that Mr. Rio advised him that Martin Joseph was his partner dwing the project. Therefore, Najla communicated with Mt. Joseph concerning· the issues at tbe project-site and the insur~.d premises. 6· Law &.Analysis a) CPLR §"3211 [al (ll "A n10tion _pursu~t to CPLR § 32:1 l [a] [1] to dismiss the complaint on the ground that the action is barred.by documentary evidence may be. [appropriately] granted only where the.

documentary evidence utteriy refutes the plaintiff's factual allegation$,. thereby conclusively es.tablishing a defense, as a matter oflaw" (Karpovich v City ofNew York~ 162 AD3d. 996, 997 [2d Dept2018] citfng Mawere v Landau, 130AD3d 986,987 [2dDept 2015]; see also Beal Sav.

Bank v-Sommer, ·g NY3d Jl 8, 324 ri.001] (The cottstructfoli of an unambiguous contract is a.

matter of law;] and Goshen v A.,{uiual Life. lnsur~nce . Co. ofNY., 98 NY2d 314,. 326 [2002]). "To . .

constitute 'documentary' evidence, the evidence must be lltlarobigu.ous, authentic, and

6 NYSCEF

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3 of 7 [* 3] FILED: KINGS COUNTY CLERK 05/09/2025 02:20 PM INDEX NO. 528723/2024 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 05/09/2025 undeniable, such as judicial records.anq documents reflecting out-:of-court transactions such as· mortgages, deeds, contracts, and other papers, the Contents of which are essentially undeniable" (Karpovich v City ofNew York, 162 AD3dat997'-998; see Prati v Lewin & Baglio, 150 AD3d 908, 909 [2d Dept 2017]). Affidavits submitted in support of such motion do not qualify as documentary evidence because their "contents can be.controverted by other evidence, such as another affidavit'' (Phi/lips v Taco Bell Corp., 152 AD3d. 806, 807 [2d Dept 2017); Prott v Lew in & Baglio, 150 AD3d at 909). However, emails can be documentary evidence that when considered· as part of the totality oftlle ·documte:ntary evidence, support a favorable inference in a plaintiff's favorand a denial ofdefendanfs motion to dismiss (see Ko/chins v Evolul.ionMarkets, Inc,, Jl NY3d 100, 105 [2018]).

Here, under the totality of the evidence, the emails and YIMBY online[news] articles submittedby plaintiff do not establish that Metropolitan had.a nexus to the demolition and construction at the project site·adjoining the insured premises, or the access agreement between the subrngee and REK.N. A review of the entail chain starting on 4/13/2022 demonstrates that it is ambiguous asit is chronologically out oforder and lacks identifying email addresses and headers as follows (NYSCEF 54, pp.6-10): 7 L 9:09 AM from Najla to FnmkRio. 8 ii. 10:01 AM from Najla to Frank Rio.

111. 1:10 PM from Najla sends a blank email to an unidentifiedrecipient. 9 iv. 10:14 AM from Moshe Rosenberg to unknown re<.!ipients.that reads,.interalia, "looping in Mayer." v. 3:09 PM from Najla addressing "Raja" in the body of the email. However, the re9,ipientsi identities and email· addresses are unknc:rwn. vi. 2:18 PMMayer•respondsto·unknownrecipients ..

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vn. 2:40 PM and 2:49 PM Najla sends two additional emails.

On 4/25/2022, Mr. Josephi~;e:tnail address ([email protected]) appears for the first time in an email time stampedJl :35 AM from Najla to multiple recipients Stating that, ''The ibills [sic] must be-paid today pleaSe,' 1 The email response from "Tilly Blum'' asks; ''Frank, Are you paying this?" 10 Then, N ajla emails an unknown. recipient on 4/26/22 at 1:5 7 PM stating that Martin Joseph called him. Najla also questions the unknown recipient concerning Frank's authority.u However, an emailfrom Martin Joseph to "Frank.and Chris" (but notNajla), appears chronolo~ically outofordet at I L:22 AM. The top of the email chain has redactions or "blackened boxes" indicating that the document was redacted without explanation in Najla's affidavit. 12 Based on the foregoing gaps and inconsistencies, this email chain does notrefute MetropoHtan;s unambiguous, authentic, and undeniable documentary evidence in the deeds to defeat the motion to dismiss pursuant to CPLR§ 3211 [al [11 (Compare, see Kolchins v Evolution Markets, Inc;, 31 NY3d 105). Although plaintiffhas established that Martin Joseph may be Frank.Rio'spartnerin REK.N, there is no evidence in the record to support that Metropolitan had any nexus to theAccessAgreement or the project site. Likewise, the "YIMBY'' website.-[news] articles donotrefute the documentary evidence since they do not state the stmtce of the information (id.).

b) CPLR§ 3211 [al [7J Plaintiffs may subniit affidavitsin opposition to 11 motion to dismiss pursu;:tnt to CPLR § 3211 [al [7] but it does not obligate them to do so to avoid adis111issal{Sce ~ovello v Orofino

IO NYSCEF 54, pA ll jd, at pp:2~6 12.Jd. at pp. l-2

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RealtyCo., 40 NY2d 63 3, 635 [1976)). Therefore, plaintiff may stand on the plea.dings alone, ''confident that its allegations are sufficient to state all ofthe necesf;,ary elements of a cognizable cause of action" to survive a motion to dismiss under CPLR § 3211 [a] [7] (id). When detertnining a motion to dismiss pursuant to CPLR § 3211 [a] [7], the Court must accept the factuaLallegaticms in the complaintas true and "accord plaintiffs the benefit of every possible favorable inference and determine only whether the facts as alleged fit into any cognizable legal theory" (Leon v Martinez, 84 NY2d ,83, 88 [1994]).

However, if the Court considers evidentiary material outside the pleadings and the motion is not converted to one for summary judgment, ''the. question becomes whether the pleader has a cause of action, not whether the pleader has stated one and, unless it has been shown that a material fact as claimed by the pleader is not a fact at all, and Unless it can be said that no significant dispt1teexistsregarding it, [a] dismissal.should not [be granted]" (Board of Mgr& of C:ongress C:ondominium v SDS Congress; LLC, 152 AD3d 478, 480 [2d Dept. 2017]).

Metropolitan has demonstrated that the material facts of ownership and nexus to the demolition and construction atthe project site adjacent to the insured premises as alleged ih the Complaint are not facts at all. Futhet, the documentary evidence submitted by plaintiff outside the complaint establishes that no significant dispute exists establishing that Metropolitan had any nexus to the demolition and construction at the project site. (Id).

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The Court has considered plaintiff's remaining arguments and finds them to be without merit.

According1y,·it is hereby ORDERED that defendant METROPOLITAN REALTY EXEMPTION$, INC.'s motion for order pursuant to CPLR § 3211 [a] TI] and [7] dismissing this action against it is granted, and it is further ORDERED that defendant METROPOLITAN REALTY EXEMPTIONS, INC. shall serve a copy of this Order with Notice of Entry on all parties within 30 days of its entry in NYSCEF, and it is.further ORDERED that defendant shallsettle ajudgment on notice to all parties·within 30 day$ of service of this Order with Notice Entry; This constitutes the decision and order of the Ccri.Irt.

Hon. Anne J. Swern, J.S.C. Dated: S/8/2025 For Clerks use ohly: MG _ _ MD _ _ Motion seq.# _ _ __

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