Basko v. Civic Sherman LLC (2025)

Case details
Full caption
Kings County Maksim BASKO v. CIVIC SHERMAN LLC
Country
United States
Jurisdiction
New York (NY)
Court
New York Court of Appeals
Decided
2025
Disposition
Motion Denied
Basko v. Civic Sherman LLC, 2025 WL 2829356 (2025) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.12025 WL 2829356 (N.Y.Sup.), 2025 N.Y. Slip Op. 33766(U) (Trial Order)Supreme Court of New York.Kings County**1 Maksim BASKO, Plaintiff,v.CIVIC SHERMAN LLC, Noble Construction Group, LLC, AF Glenmore Avenue,LLC, Achievement First Brooklyn Charter. Schools, Achievement First, Waverly,LLC, Headquarters Mechanical Inc., and WWI Contracting, Corp., Defendants.Civic Sherman, LLC and Noble Construction Group, LLC, Third-Party Plaintiff,v.Headquarters Mechanical, Inc. and WWI Contracting Corp., Third-Party Defendants.No. 534991/2023.September 18, 2025.*1 Seq. 004Part LL1MEditor's Note: This document contains discussion of unverified citations, likely generatedby AI tools used by a party or counsel. These citations are not attributable to the Court. Theunverified citations have been preserved as part of the official record, but links are unavailable.Decision/OrderDevin P. Cohen.Recitation, as required by CPLR § 2219 (a), of the papers considered in the review of this MotionPapers Numbered Notice of Motion and Affidavits Annexed............................................... 1 Order to Show Cause and Affidavits Annexed........................................ ___ Answering Affidavits................................................................................ 2-3 Replying Affidavits................................................................................... 4 Exhibits..................................................................................................... ___ Other.......................................................................................................... ___ Upon the foregoing papers, defendants AF Glenmore Avenue LLC, Achievement First Brooklyn Charter Schools, andAchievement First Waverly LLC (AF Defendants)'s motion to dismiss all claims and cross-claims pursuant to CPLR 3211 andfor summary judgment against plaintiff and all claims/cross-claims pursuant to 3212 (Seq. 004) is decided as follows:
Basko v. Civic Sherman LLC, 2025 WL 2829356 (2025) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.2Facts and Procedural HistoryPlaintiff commenced this action to recover from damages he claims to have sustained on March 27, 2023, while working on aconstruction project at 2400 Pitkin Avenue, Brooklyn, New **2 York (the premises). Plaintiff's complaint alleges that CivicSherman LLC (Civic) owned the premises. In its answer, Civic denied ownership. AF Defendants “deny having knowledge orinformation sufficient to form a belief” as to ownership of 2400 Pitkin Avenue (AF Defendants Answer at 1). AF Defendantscontend in their moving papers that AF Glenmore Avenue LLC (Glenmore) was to be the tenant of the premises “pending thecompletion of the subject construction,” but emphasize said tenancy was to begin seven months after plaintiff's alleged incident(AF Defendants aff. in sup. at 5).AnalysisCPLR 3211 (a)(1)To dismiss a claim pursuant to CPLR 3211 (a) (1), the movant must produce documents that resolve “all factual issues as amatter of law, and conclusively [dispose] of the plaintiffs claim” (334 K, LLC v Flagstar Bank, FSB, 187 AD3d 971 [2d Dept2020]; see also Braun Soller v Dahan, 173 AD3d 803, 805 [2d Dept 2019]). Documentary evidence for the purpose of thisstatute includes “out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which areessentially undeniable” (McDonald v O'Connor, 189 AD3d 1208, 1210 [2d Dept 2020]). Affidavits are neither anticipated norintended by the CPLR as substitutes for testimony, and rarely warrant dismissal of a plaintiffs claims (Sokol v Leader, 74 AD3d1180, 1182 [2d Dept 2010]; Berger v Temple Beth-El of Great Neck, 303 AD2d 346 [2d Dept 2003]).AF Defendants argue that they were not involved and had no legal relationship to the premises' construction project. In support,AF Defendants submit multiple lease agreements and an amended lease between defendant Civic as landlord and Glenmore astenant. The original lease dated November 6, 2020, notes that Glenmore as “purchaser” executed a Purchase and Sale **3Agreement (PSA) on May 20, 2020 (lease at 5). Glenmore simultaneously assigned Civic the PSA to design, develop andcomplete construction on the premises (id.). Depending on the timeliness of the construction completion, Glenmore wouldreoccupy the premises on a corresponding commencement date (id. at 9). A Landlord's Certificate dated October 31, 2023,confirms that the lease was scheduled to commence on November 2, 2023 (AF Defendants Exhibit S at 1). AF Defendants alsoprovide an affidavit from Ketki Harale, Administrative Chief of Facilities for non-party Achievement First Inc., a company thatoperates charter schools in multiple states, including New York (Harale aff. at 1). Harale's affidavit states that such charterschools are created and owned by other entities, including AF Defendants, and that the premises at 2390 Pitkin Avenue was tobe a charter school (id.). Further, Harale contends that, on the date of plaintiffs alleged accident, AF Defendants “did not control,supervise or manage the work, the work site [or] the contractors and/or subcontractors” on the premises (Harale aff. at ¶17).*2 Since testimonial affidavits are inappropriate on a motion to dismiss, Ketki Harale's affidavit is insufficient to supportdismissal of plaintiff's claims or defendant's cross-claims. The remaining exhibits, including the lease and amended lease,contain ambiguous information that require further explanation. For example, despite assigning its purchaser rights to Civic,Glenmore appears to have had possessory rights to the premises prior to plaintiff's alleged accident. Additionally, there areparagraphs in the amended lease which allude to Glenmore's ability to participate in bi-weekly on-site construction meetings,and visually inspect the premises during construction (amended lease at 2.B [a] [ii]). Under the Labor Law, the term “owner”does not exclusively refer to the titleholder of the property, but also encompasses those who had “an interest in the propertyand . . . fulfilled the role of owner by contracting to have **4 work performed for his benefit” (Cruz v 1142 Bedford Avenue,LLC, 192 AD3d 859, 865 [2d Dept 2021], quoting Copertino v Ward, 100 AD2d 565, 566 [2d Dept 1984]). AF Defendants'documentary submissions do not, and cannot, prove that AF Defendants did not have representatives on the premises interactingwith, and perhaps controlling, the construction work being performed. These issues require discovery and are not resolved bythe documents submitted to the court.
Basko v. Civic Sherman LLC, 2025 WL 2829356 (2025) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.3Therefore, AF Defendants' motion to dismiss is denied.1CPLR 3212On a motion for summary judgment, the moving party bears the initial burden of making a prima facie showing that there are notriable issues of material fact (Giuffrida v Citybank, 100 NY2d 72, 81 [2003]). Once a prima facie showing has been established,the burden shifts to the non-moving party to rebut the movant's showing such that a trial of the action is required (Alvarez vProspect Hospital, 68 NY2d 320, 324 [1986]).AF Defendants contend they are not proper Labor Law statutory defendants and cannot be held liable for negligence. AFDefendants rely on the lease/amended lease documentation to demonstrate that they had no involvement with the premises'construction project and thereby cannot be charged with the nondelegable duty that “owners and general contractors” are subjectto under the Labor Law.As explained above, AF Defendants' contractual documents alone are insufficient. Depositions are necessary to determinewhether AF Defendants' relationship(s) with the premises exposes them to liability under the Labor Law. As of this motion'ssubmission, no **5 party in this action has been deposed2 (CPLR 3212 [f]; see e.g. Groves v Land's End Hous. Co., 80 NY2d978 [1992]). In the absence of any depositions, there are triable issues of fact concerning, inter alia, AF Defendants' relationshipwith work performed at the premises and whether it owed any kind of indemnification obligation to another party. Therefore,AF Defendants' motion is denied.In their reply papers, AF Defendants provide what appears to be a fictitious citation, including what appears to be a fabricatedholding in the citation's parenthetical.3 “Many harms flow from the submission of fake opinions. . . . The Court's time is takenfrom other important endeavors. The client may be deprived of arguments based on authentic judicial precedents. There ispotential harm to the reputation of judges and courts whose names are falsely invoked as authors of the bogus opinions and tothe reputation of a party attributed with fictional conduct. It promotes cynicism about the legal profession and the Americanjudicial system” (Mata v Avianca, Inc., 678 FSupp3d 443, [SDNY 2023]).*3 Pursuant to 22 NYCRR 130-1.1 (a),[T]he court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, exceptwhere prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney'sfees, resulting from frivolous conduct as defined in this Part. In addition to or in lieu of awarding costs, the court, in itsdiscretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolousconduct as defined in **6 this Part, which shall be payable as provided in section 130-1.3 of this Part (see alsoNY RPC3.3[a][1]).Therefore, the Court is well within its discretion to sanction counsel for such conduct.ConclusionDefendants' motion (Seq. 004) is denied. All sides are directed to appear on October 1, 2025 at 10:00am for a hearing to addressthe question of appropriate costs and/or sanctions.This constitutes the decision and order of the court.September 18, 2025DATE
Basko v. Civic Sherman LLC, 2025 WL 2829356 (2025) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.4<<signature>>DEVIN P. COHENJustice of the Supreme CourtFootnotes1Although AF Defendants' papers only cite CPLR 3211 (a) (7), their argument is entirely based on CPLR 3211 (a) (1). Therefore, AFDefendants' motion purportedly made under CPLR 3211 (a) (7) is denied as it is not supported by the moving papers.2Opposition was filed by both co-defendant/third-party plaintiff Headquarters Mechanical Inc. and plaintiff. While plaintiff's paperswere untimely, defendants did not meet their prima facie burden, thus the court need not consider the sufficiency of the opposingparties' papers.3AF Defendants cited “Torres v. New York City Hous. Auth., 199 A.D.3d 1002, 1003 (2d Dept. 2021) (out-of-possession owner withright to reenter and inspect not liable under Labor Law where no supervision or control exercised).” The proper citation for the case isTorres v. New York City Hous. Auth., 199 A.D.3d 852 (2d Dept. 2021), and the decision is only two pages long. The decision's holdingdoes not involve the Labor Law liability of an out-of-possession landlord. Page 1002 of the reporter contains Matter of Cardona vMcNeill, a denial of parental access petition. The court is, therefore, not convinced that this was a mere scrivener's error.End of Document© 2026 Thomson Reuters. No claim to original U.S. Government Works.
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