Commissioners of the State Ins. Fund v Greystone

Mgt. Solutions

2024 NY Slip Op 31929(U)

June 3, 2024

Supreme Court, New York County

Docket Number: Index No. 450504/2016

Judge: Dakota D. Ramseur

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.
450504/2016 Motion No. 003 004 005 Page 1 of 7

The following e-filed documents, listed by NYSCEF document number (Motion 003) 89, 90, 99, 111, 114, 

115, 116, 117, 118, 122

were read on this motion to/for SEVER ACTION .

The following e-filed documents, listed by NYSCEF document number (Motion 004) 91, 92, 93, 94, 95, 

96, 97, 98, 100, 112

were read on this motion to/for SEVER ACTION .

The following e-filed documents, listed by NYSCEF document number (Motion 005) 101, 102, 103, 104, 

105, 106, 107, 108, 109, 110

were read on this motion to/for RENEWAL .

In April 2016, plaintiff Commissioners of the State Insurance Fund, as the assignee of 

Fernando Salgado, commenced this action against defendants Greystone Management Solutions 

and Greystone & Co., Inc. (hereinafter, “Greystone”) to recover for personal injuries Salgado 

suffered during a slip and fall that took place in a Penn Station walkway that they allegedly 

manage through a contract with the Metropolitan Transit Authority (the “MTA”). In January 

2021, Greystone moved for summary judgment, which the Court resolved by Decision and Order 

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. DAKOTA D. RAMSEUR PART 34M

Justice 

---------------------------------------------------------------------------------X INDEX NO. 450504/2016

 MOTION DATE

N/A, N/A, 

01/05/2024

 MOTION SEQ. NO. 003 004 005

DECISION + ORDER ON 

MOTION

COMMISSIONERS OF THE STATE INSURANCE FUND, 

AS ASSIGNEE OF FERNANDO SALGADO, ASSIGNOR,

 Plaintiff, 

- v -

GREYSTONE MANAGEMENT SOLUTIONS, GREYSTONE 

& CO., INC.,

 Defendant. 

---------------------------------------------------------------------------------X

GREYSTONE MANAGEMENT SOLUTIONS, GREYSTONE & 

CO., INC., 

 Plaintiff,

 -againstMCDONALD'S USA, LLC

 Defendant.

--------------------------------------------------------------------------------X

 

 Third-Party

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dated June 24, 2022 (the “June 2022 Decision”). In denying said motion, the Court found issues 

of fact as to whether, under the MTA contract, Greystone “entirely displaced” MTA’s duty to 

maintain the premises where plaintiff allegedly injured himself. (NYSCEF doc. no. 79, Decision 

and Order.) On June 11, 2021, while the motion was sub judice, plaintiff filed the note of issue.

More than two years later, in September 2023, Greystone commenced a third-party action 

against McDonald’s USA, LLC (as Salgado’s employer and a tenant on the premises), asserting 

causes of action for contractual and common law indemnity, common law contribution, and 

failure to procure insurance. In motion sequence 003, plaintiff moves to sever Greystone’s thirdparty action against McDonalds from the main action pursuant to CPLR 603 and 1010; in motion 

sequence 004, McDonalds likewise moves to sever the two actions under the same civil practice 

rules; and in motion sequence 005, Greystone moves pursuant to CPLR 2221 (e) for leave to 

renew the Court’s June 2022 Decision. Each motion is opposed. Herein, the Court consolidates 

these motions for resolution. For the following reasons, plaintiff and McDonald’s motions to 

sever are granted; Greystone’s motion for leave to renew is granted, and upon renewal, the Court 

adheres to its original decision.

BACKGROUND

On June 17, 2013, Fernando Salgado slipped and fell in a walkway adjacent to a

McDonald’s restaurant located within Penn Station on the Long Island Rail Road (“LIRR”) level 

in Manhattan, New York. According to plaintiff, who was employed by McDonald’s at the time, 

he exited the restaurant’s premises to retrieve supplies from a storage room located elsewhere in 

Penn Station and slipped on a mixture of grease/oil and water. (NYSCEF doc. no. 57 at 45, 

plaintiff deposition transcript.) Garry Ryan, a project executive employed by Greystone to 

manage the company’s MTA account, testified that their contract covered all MTA-owned 

properties or, in all, about 4,000 leases, licenses, and permits in their portfolio, including the 

McDonald’s within Penn State (although not Penn Station itself). (NYSCEF doc. no. 58 at 15, 

Ryan deposition transcript.) As cited by the Court in its June 2022 Decision, Ryan described 

Greystone’s role as such: “We manage the agreements as opposed to the tenants or facilities 

themselves. So we bill and collect rent, we make sure that people have insurance in place, that 

the correct tenant is on-site and is maintaining the premises.” (Id. at 16.) In addition, Ryan 

explained that part of the responsibilities and duties of account managers with Greystone would

be to field tenant complaints or concerns. (Id. at 28.)

Before plaintiff’s accident, Ryan testified that McDonald’s had reported leaks to 

Greystone. (Id. at 73.) He explained that Greystone would likely have been in touch with the 

LIRR to investigate possible solutions to help McDonald’s but that Greystone “would not 

conduct any investigation. The Rail Road is the owner and manager of the property, and they 

would conduct an investigation as to the possible source or origin of the leak.” (Id. at 77.) The 

Court’s underlying decision also cited various provisions of Greystone’s proposed service 

agreement with the MTA. Sections 3. 4 (b), (e), and (f) provide: 

“b. Performing Periodic Site Inspections

...

The Director of Tenant Management [defendant’s employee] 

identifies issues and responds by establishing a Yardi [an MTA 

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database] Tenant Action, if necessary, and assigning and monitoring 

the enforcement, correction or document needed to remedy any 

issues. 

e. Investigating and Resolving Complaints.

The Project Executive [a GREYSTONE employee] will investigate 

and resolve complaints received from Agency personnel and the 

public. If necessary, the RED Contract Manager [an MTA 

employee] will immediately be contacted on all such matters and a 

Tenant Action will be created in Yardi to track follow-up.”

f. Responding to Emergency Conditions on a 24-Hour, 365 Day Per 

Year Basis

Greystone will continue to serve as the primary contact to licensees 

regarding emergency situations and will continue [to] respond to 

emergency calls on a 24/7, 365 day per year basis. We will maintain 

our on-site response time to be within one hour, if during normal 

business hours, or three hours, if during non-business hours.

(NYSCEF doc. no. 60, proposed service agreement.)

In its June 2022 Decision, the Court cited Espinal v Melville Snow Contractors, Inc. (98 

NY2d 136, 138 [2002]) for the proposition that, ordinarily, a party’s contractual obligation to 

another will not, standing alone, give rise to tort liability in favor of a third party, unless that 

contracting party assumed the other party’s duty to maintain a safe premise. (See NYSCEF doc. 

no. 79 at 3; see also Church ex rel. Smith v Callanan Indus., Inc., 99 NY2d 104, 111 [2002] 

[“Ordinarily, breach of a contractual obligation will not be sufficient in and of itself to impose 

tort liability to noncontracting third parties upon the promisor”].) The Espinal Court identified 

three instances in which a contracting party may become liable to a third party for negligence,

one of which is where, through the contract, the contracting party has “entirely displaced” the 

other’s duty. (Id.) In finding issues of fact as to whether Greystone’s duty entirely displaced the 

MTA’s duties, the Court relied on Ryan’s testimony and the above contractual provisions, 

specifically, those concerning Greystone’s ability to resolve complaints concerning the premise, 

the absence of a duty to report complaints to the MTA, and its broad authority to investigate and 

resolve claims. (Id.) Its holding relied upon Stevanovic v T.U.C. Mgmt. Co. (305 AD2d 133, 134 

[1st Dept 2003]), which found issues of fact where the management contract afforded the 

defendant broad authority to maintain the premise and make ordinary repairs, and Tushaj v 322 

Elm Mgmt. Assocs., Inc. ( 293 AD2d 44, 48 [1st Dept 2002]), which applied the exception where 

the defendant had an obligation to inspect the property to ensure it was maintained in good repair 

and the authority to undertake all repairs costing less than $500.

Greystone premises their motion to renew under CPLR 2221 (e) on the affidavit of David 

Florio, who worked as the MTA’s Director of Real Estate Transactions and Operations from 

June 2017 through March 2022, when he became the MTA’s Chief Real Estate Transactions and 

Operations Officer. He avers that, under their contract, (1) Greystone has been acting as the 

MTA’s tenant manager for the 4,000 accounts under the MTA Real Estate Department’s purview 

since 2011 (NYSCEF doc. no. 107 at ¶¶ 3, 5, Florio affidavit), (2) the Real Estate Department 

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had no maintenance oversight responsibilities over common areas located outside of McDonald’s 

(id. at ¶ 6), (3) the contract and scope of services did not require Greystone “to investigate 

complaints, inspect conditions, maintain, operate, or repair any premises, and certainly not in the 

common areas within Penn Station” (id. at ¶ 7), (4) Greystone “was not responsible for 

inspecting, investigating, and/or remedying conditions, including wet conditions or leaks, within 

these common areas within Penn Station, including the location that is the subject of this 

underlying action” (id. at ¶ 8.)

As described above, while Greystone’s motion for summary judgment was pending sub 

judice, plaintiff filed the note of issue on June 11, 2021. Despite being aware of McDonald’s 

presence as a potentially interested party in this litigation from its infancy, Greystone did not 

commence a third-party action until more than two years after the note of issue was filed and 

more than seven years after plaintiff served its complaint.

DISCUSSION

Motion to Renew Under CPLR 2221 (e)

CPLR 2221 (e) provides that a motion for leave to renew (1) shall be identified 

specifically as such; (2) shall be based upon new facts not offered on the prior motion that would 

change the prior determination; and (3) shall contain reasonable justification for the failure to 

present such facts on the prior motion. “While it is true that a motion for leave to renew is 

intended to direct the court’s attention to new or additional facts which, although in existence at 

the time the original motion was made, were unknown to the movant...the rule is not inflexible 

and the court, in its discretion may grant renewal, in the interest of justice, upon facts known to 

the movant at the time of the original motion.” (Rancho Santa Fe Assn. v Dolan-King, 36 AD3d 

460, 461 [1st Dept 2007] [internal citations omitted].) While there remains a statutory 

prescription to present new evidence, the court may grant a renewal motion so as not to “defeat 

substantive fairness.” (Henry v Peguero, 72 AD3d 600, 602 [1st Dept 2010]; Ross v Lewis, 181 

AD3d 423, 424 [1st Dept 2020].)

Here, Greystone has not presented a reasonable justification for its failure to include 

David Florio’s affidavit in the original motion. Counsel for Greystone merely offers, without 

supporting evidence, that “Greystone had to go through various entities and individuals at the 

MTA in order to obtain this evidence” and that “Greystone was incapable of obtaining Mr. 

Florio’s affidavit prior to the deadline to submit their motion for summary judgment due to 

miscommunication between Greystone and other relevant parties...in scheduling and meeting 

Mr. Florio.” (NYSCEF doc. no. 102 at ¶¶ 17 and 18, Yapchanyk affirmation in support.) Such 

vague and unsupported assertions are precisely those upon which courts cannot find a reasonable 

justification. (See Wang v LaFrieda, 189 AD3d 732, 732 [1st Dept 2020] [“Plaintiff also failed to 

provide a ‘reasonable justification’ for their failure to submit the Leetsi affidavit in timely 

manner. While plaintiff made some vague assertions regarding their attempts to contact Leetsi 

earlier, they have not put forth any specific information regarding their efforts to locate her or 

obtain the affidavit.”]) This is especially true given that Greystone filed their motion for 

summary judgment on January 12, 2021, weeks before the Court mandated February 1, 2021 

deadline to file the notice of issue (which, to that point, had already moved back on several 

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occasions) and months before the time to file dispositive motions had elapsed once plaintiff had 

actually filed the note of issue. (See NYSCEF doc. no. 51, status order entered 11/16/20.) Even 

though plaintiff argued as such in its opposition, Greystone does not address this deficiency in 

their reply papers. 

Nonetheless, Greystone contends that the Court may still grant leave to renew to avoid 

defeating substantive justice. In their view, because Florio avers that Greystone was not 

responsible for investigating complaints, inspecting conditions, and maintaining or repairing any 

part of premises, including any common areas, any and all issues of fact identified by the Court 

in its June 2022 Decision have been eliminated. In opposition, plaintiff contends that, even in 

cases concerning the substantive justice/fairness doctrine, Greystone must still have proffered a 

reasonable excuse, which it did not. The Court agrees. In Global Liberty v Ins. Co. v Laruenceau 

(187 AD3d 570, 571 [1st Dept 2020]), Ross v Lewis (181 AD3d at 424), and Henry v Peguero

(72 AD3d at 602), the First Department made clear that it is the statutory requirement to present 

new evidence that need not be strictly applied so as to defeat substantive fairness. These cases do 

not excuse, as Greystone’s position would have it, a moving party’s failure to meet the statutory 

requirement to provide a reasonable justification for omitting said facts, new or not, on the 

previous motion. Indeed, in Henry, the First Department noted that the new evidence 

requirement of CPLR 2221 (e) may be relaxed only where the movant presents a reasonable 

excuse in the first instance. This result is consistent with Second Department caselaw, which 

uniformly holds that the Supreme Court lacks the discretion to grant renewal where the movant 

has not provided a reasonable justification. (See Greene v New York City Housing Authority, 283 

AD2d 458, 459 [2d Dept] [“In light of the mandatory language used by the Legislature in CPLR 

2221 (e) (3), we reject the plaintiffs’ contention that the Supreme Court had discretion to grant 

renewal, notwithstanding their omission of a reasonable justification for their failure to present 

new facts”]; Cando v Ajay Gen. Contr. Co. Inc., 200 AD3d 750, 755 [2d Dept 2021].)

Accordingly, Greystone’s motion for leave to renew is granted, and upon renewal, the Court 

adheres to its previous decision.

Plaintiff’s and McDonald’s Motions to Sever Under CPLR 603 and 1010

Under CPLR 603, entitled “Severance and separate trials,” courts may sever claims or 

order separate trials on any claims or issues to further convenience or avoid prejudice to the 

parties. (See CPLR 603.) Similarly, CPLR 1010, entitled “Dismissal or separate trial of thirdparty complaint,” provides courts with the discretion to order separate trials of third-party claims. 

The rule requires that, in exercising their discretion, courts “shall consider whether the 

controversy between the third-party plaintiff and the third-party defendant will unduly delay the 

determination of the main action or prejudice the substantial rights of any party.” (CPLR 1010.) 

Here, severance is warranted. First, Greystone waited until approximately seven years 

after plaintiff filed the underlying action to commence their third-party action against 

McDonald’s. Greystone did so even as plaintiff’s complaint alleged that Fernando Salgado was 

employed by a McDonald’s franchise located within one of the MTA-owned properties to whom 

they provided service. It continued waiting until nearly two years after plaintiff filed the note of 

issue, which, as plaintiff’s point out, was only filed after the parties engaged in an extensive 

discovery process. Even after filing the third-party action, Greystone’s conduct has not provided 

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any reassurances that it is willing to conduct the necessary discovery in the third-party action 

with the necessary speed to avoid an undue delay. Plaintiff’s counsel agreed to two stipulations 

in which Greystone’s opposition would be adjourned to January 8, 2024, and January 23, 2024, 

respectively. (NYSCEF doc. no. 100 and 112, stipulations.) Notwithstanding the second return 

date, Greystone filed its opposition to the motion on January 29, 2024, one day before the motion 

was made returnable. (See NYSCEF doc. no. 114.) Moreover, despite receiving McDonald’s 

Demand for Bill of Particulars and Omnibus Discovery Demands on October 30, 2023, 

Greystone only supplied a Bill of Particulars on January 29, 2024. Lastly, since the main action 

involves factual issues as to whether MTA’s duty to keep the premises safe was “entirely 

displaced” by Greystone’s contractual duties, and the third-party action involves contractual 

issues such as indemnification, severance of the third-party action is appropriate. (See Torres v 

Visto Realty Corp., 106 AD3d 645, 645 [1st Dept 2013] [“Since the main action involves the 

factual issue whether there was a defect in the sidewalk that contributed to plaintiff's injury, and 

the third-party action involves lease contract issues such as indemnification, and plaintiff, who 

has filed a note of issue, would be prejudiced by the delay caused by the need for discovery in 

the third-party action, severance of the third-party action was appropriate.”]

Accordingly, for the foregoing reasons, it is hereby

ORDERED that defendants Greystone Management Solutions and Greystone & Co., 

Inc.’s motion for leave to renew pursuant to CPLR 2221 (e) is granted, and upon renewal, the 

Court adheres to its June 2022 Decision; and it is further;

ORDERED that plaintiff Commissioners of the State Insurance Fund and third-party 

defendant McDonald’s USA, LLC’s motion to sever under CPLR 603 and 1010 is granted; and it 

is further 

ORDERED that the third-party action under Index No. 595855/2023 is severed from 

Index No. 450504/2016; and it is further

ORDERED that the plaintiff serve a copy of this order with notice of entry on the Clerk 

of this Court (60 Centre Street, Room 141B); and it is further

ORDERED that the Clerk of this Court, upon service of a copy of this order with notice 

of entry, shall sever the action and record such action in the Clerk's records; and it is further

ORDERED that within 30 days from entry of this order, counsel for plaintiff shall serve a 

copy of this order with notice of entry upon the Clerk of the General Clerk's Office (60 Centre 

Street, Room 119); and it is further

ORDERED that upon the service of such documents, the Clerk of the General Clerk's 

Office shall mark the court's records to reflect the separate actions in Part 46; and it is further

ORDERED that service upon the Clerk of this Court and the Clerk of the General Clerk's 

Office shall be made in accordance wit the procedures set forth in the Protocol on courthouse and 

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County Clerk Procedures for Electronically Filed Cases (accessible at the “E-Filing” page on this 

court's website at the address www.nycourts.gov/supctmanh); and it is further

ORDERED that counsel for plaintiff shall serve a copy of this order, along with notice of 

entry, on all parties within thirty (30) days of entry.

6/3/2024

DATE DAKOTA D. RAMSEUR, J.S.C.

CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

GRANTED DENIED GRANTED IN PART X OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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