Opinion
No. 10256/2009.
2012-02-27
Dickey JOHNSON, Plaintiff, v. QUEENS CROSSING CONDOMINIUM, F & T International, Top 8 Construction Corp., Olympic Plumbing & Heating, Inc. & Martin Associates, Inc. d/b/a Martin Mechanical and Sirina Fire Protection Corp., Defendants. Queens Crossing Condominium, F & T International, and Top 8 Construction Corp., Third–Party v. Titan Exterior Wall Panel Systems, Inc., Third–Party Defendant.
Bosco, Bisignano & Mascolo, by James A. Maleady, Esq., Staten Island, for the Plaintiff. Dougherty, Ryan, Giuffra, Zambito & Hession, by Robert J. Giuffra and Craig M. Flanders, Esqs., New York, for Defendants/Third–Party Plaintiffs Queens Crossing Condominium, F & T International, and Top 8 Construction Corp.
Bosco, Bisignano & Mascolo, by James A. Maleady, Esq., Staten Island, for the Plaintiff. Dougherty, Ryan, Giuffra, Zambito & Hession, by Robert J. Giuffra and Craig M. Flanders, Esqs., New York, for Defendants/Third–Party Plaintiffs Queens Crossing Condominium, F & T International, and Top 8 Construction Corp.
Camacho Mauro Mulholland, LLP, Melville, New York, for Defendant Martin Associates, Inc. d/b/a Martin Mechanical.
Ahmuty, Demers & McManus, by David S. Conklin, Esq., Albertson, for Defendant Sirina Fire Protection Corp.
Dillon, Horowitz & Goldstein, LLP, by Thomas Dillon, Esq., New York, for Defendant Olympic Plumbing & Heating, Inc.
Kral, Clerkin, Redmond, Ryan, Perry & Girvan, LLP, by Michael G. Walker, Esq., Mineola, for Third–Party Defendant Titan Exterior Wall Panel Systems, Inc.
CHARLES J. MARKEY, J.
On August 13, 2007, the plaintiff Dickey Johnson, was employed as a granite worker by third-party defendant Titan Exterior Wall Panel Systems, Inc. (“Titan”) to replace damaged granite on the facade of the fourth floor of the building owned by Queens Crossing Condominium (“Queens Crossing”) and F & T International (“F & T”) and for which Top 8 Construction Corp.(“Top 8”) was a general contractor.
At the time of the accident, plaintiff was exiting the fourth floor outside balcony where he had been working by climbing through a window to access the inside of the building. According to plaintiff's deposition testimony, he tripped and fell on pipe cuttings strewn on the floor when he stepped inside the window and turned around to take the tool buckets his assistant was handing in to him through the window. Plaintiff alleged that, at the start of his work day, he noticed long uncut two-inch circumference pipes on the floor underneath the window he used to access the balcony, and that, during the day, he observed what he assumed were pipe fitters for the sprinkler contractor cutting the pipes into pieces with a machine.
The Court is presented with several motions, all discussed and decided in this one decision and order. Upon the foregoing papers, defendant Sirina Fire Protection Corp. (“Sirina”) moves for summary judgment in its favor dismissing plaintiff's complaint and all cross claims and counterclaims asserted against it. Defendant Olympic Plumbing & Heating, Inc. (“Olympic”) moves for summary judgment in its favor dismissing plaintiff's complaint and all cross claims and counterclaims asserted against it. Defendants/Third–Party Plaintiffs Queens Crossing, F & T, and Top 8 also move for summary judgment in their favor dismissing the complaint. Queens Crossing, F & T and Top 8 also move to extend the time to complete discovery. Plaintiff Dickey Johnson moves for leave to amend his bill of particulars to include violations of 12 NYCRR 23–1.7(e)(1) and (2).
With respect to defendant Sirina's summary judgment motion, Marcel Ramalaho, project manager of Sirina, avers that Sirina's employees were not installing sprinklers at the time of plaintiff's accident and submits internal documents which allegedly demonstrate that work was completed and paid for and that employees could therefore not have been present on August 13, 2007. These submissions may imply that Sirina's employees were not on the job site on the date in question, but do not conclusively demonstrate that Sirina's employees were not present. Sirina, accordingly, has failed to meet its burden to demonstrate its entitlement to summary judgment on the common law negligence causes of action. However, since it is undisputed that Sirina is not an owner or general contractor, summary judgment is granted to it as to the Labor Law causes of action.
Similarly, in support of its summary judgment motion, Olympic submits the deposition testimony of its president Vincent Gamba, and Top 8's project manager Tom Barone. The offered testimony fails to demonstrate that Olympic's employees were not installing the pipes which plaintiff allegedly tripped on. Olympic thus also fails to meet its burden to demonstrate its entitlement to summary judgment on the common law negligence causes of action. However, since it is undisputed that Olympic is neither an owner nor a general contractor, summary judgment is also granted to it as to the Labor Law causes of action.
The Court notes that the motion of defendant owners/general contractor Queens Crossing, F & T, and Top 8 is untimely pursuant to Brill v. City of New York (2 N.Y.3d 648 [2004] ). The undersigned, in Necco v. Elmcor Youth & Adult Activities, Inc. (929 N.Y.S.2d 201 [Table], 2011 WL 1832803, 2011 N.Y. Slip Op. 50846(U) [Sup Ct Queens County 2011] ), denied a defense summary judgment motion as untimely. In Necco, the undersigned stated:
“Litigation deadlines in the view of many lawyers are merely precatory. The Court of Appeals has maintained: ‘Litigation cannot be conducted efficiently if deadlines are not taken seriously, and we make clear again, as we have several times before, that disregard of deadlines should not and will not be tolerated.’ (Andrea v. Arnone, Hedin, Casker, Kennedy and Drake, Architects and Landscape Architechts, P.C., 5 N.Y.3d 514, 521 [2005].)
“Both in Miceli v. State Farm Mut. Auto. Ins. Co., 3 N.Y.3d 725, 786 N.Y.S.2d 379, 819 N.E.2d 995, and Brill v. City of New York, 2 N.Y.3d 648, 781 N.Y.S.2d 261, 814 N.E.2d 431, the Court of Appeals reversed the grant of summary judgment on substantive grounds and denied the motions for procedural default. Failure under those controlling precedents to explain ‘good cause’ for a late summary judgment motion requires outright denial of the motion without an examination of the motion's substantive merit.”
An untimely motion or cross motion for summary judgment may be considered by a court where a timely motion for summary judgment was made on nearly identical grounds ( see, Bressingham v. Jamaica Hosp. Med. Ctr., 17 A.D.3d 496, 793 N.Y.S.2d 176 [2nd Dept.2005]; Boehme v. A.P.P.L.E., A Program Planned for Life Enrichment, 298 A.D.2d 540, 749 N.Y.S.2d 49 [2nd Dept.2002]; Miranda v. Devlin, 260 A.D.2d 451, 688 N.Y.S.2d 578 [2nd Dept.1999] ). In such circumstances, the issues raised by the untimely motion or cross motion are already properly before the court and, thus, the nearly identical nature of the grounds may provide the requisite good cause ( see,CPLR 3212[a] ) to review the untimely motion or cross motion on the merits (Grande v. Peteroy, 39 A.D.3d 590, 833 N.Y.S.2d 615 [2nd Dept.2007] ).
In the case at bar, the untimely motion of defendants Queens Crossing, F & T, and Top 8, that is based on their status as owners and a general contractor under the Labor Law, is not on nearly identical grounds of the timely motions of Sirina and Olympic, that are based on common law negligence of co-subcontractors. In light of the foregoing, the untimely motion of Queens Crossing, F & T, and Top 8, seeking summary judgment on different grounds, will not be considered.
The Court will next address plaintiff's motion for leave to amend his bill of particulars. With respect to a claim pursuant to Labor Law section 241(6), the plaintiff must allege a violation of a specific and applicable provision of the Industrial Code ( see, Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494 [1993];Galarraga v. City of New York, 54 A.D.3d 308, 863 N.Y.S.2d 47 [2nd Dept.2008] ). A failure to identify the Industrial Code provision in the complaint or bill of particulars is not fatal to such a claim ( see, Galarraga v. City of New York, 54 AD3d at 310; Dowd v. City of New York, 40 A.D.3d 908, 837 N.Y.S.2d 668 [2nd Dept.2007]; Latino v. Nolan & Taylor–Howe Funeral Home, 300 A.D.2d 631, 754 N.Y.S.2d 289 [2nd Dept.2002]; Kelleir v. Supreme Indus. Park, 293 A.D.2d 513, 740 N.Y.S.2d 398 [2nd Dept.2002] ).
Rather, leave to amend the pleadings to identify a specific, applicable Industrial Code provision “may properly be granted, even after the note of issue has been filed, where the plaintiff makes a showing of merit, and the amendment involves no new factual allegations, raises no new theories of liability, and causes no prejudice to the defendant” (Galarraga v. City of New York, 54 A.D.3d at 310, 863 N.Y.S.2d 47;see, Dowd v. City of New York, 40 A.D.3d at 911, 837 N.Y.S.2d 668;Kelleir v. Supreme Indus. Park, 293 A.D.2d at 514).
Plaintiff, in the case at bar, demonstrates the merit of his Labor Law section 241(6) claim by alleging the violation of concrete specifications of the Industrial Code (12 NYCRR parts 4–59; Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 505, 601 N.Y.S.2d 49, 618 N.E.2d 82;see, St. Louis v. Town of North Elba, 16 N.Y.3d 411 [2011] [Court of Appeals, in 4–3 split, upheld claim under Labor Law section 241(6) ]; Naughton v. City of New York, 94 A.D.3d 1, 2012 WL 573166, 2012 N.Y. Slip Op. 01378, slip op. at 3 [1st Dept.2012] [reversing dismissal of claim under Labor Law section 241(6) claim by IAS Court] ). In St. Louis v. Town of North Elba (16 N.Y.3d 411, 923 N.Y.S.2d 391, 947 N.E.2d 1169,supra ), the New York Court of Appeals recently stated that, in determining whether a particular provision of the Industrial Code is applicable, the Code “should be sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against hazards in the workplace” ( Id. at 416, 923 N.Y.S.2d 391, 947 N.E.2d 1169).
In his complaint, plaintiff alleges that he was injured when he allegedly tripped over pipe-cutting debris strewn on the floor of the work site. Plaintiff asserts violations of 12 NYCRR 23–1.7(e)(1) and (2), requiring that all passageways and working areas “be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping ... and from scattered ... materials” and have been held sufficient to support a section 241(6) claim ( see, D'Elia v. City of New York, 81 A.D.3d 682, 916 N.Y.S.2d 196 [2nd Dept.2011]; Scannell v. Mt. Sinai Med. Ctr., 256 A.D.2d 214, 683 N.Y.S.2d 18 [1st Dept.1998]; Herman v. St. John's Episcopal Hosp. ., 242 A.D.2d 316, 678 N.Y.S.2d 635 [2nd Dept.1997]; Lehner v. Dormitory Auth., 221 A.D.2d 958, 633 N.Y.S.2d 911 [4th Dept.1995]; Sergio v. Benjolo N.V., 168 A.D.2d 235, 562 N.Y.S.2d 476 [1st Dept.1990] ). In light of the foregoing, since the defendants fail to show that the amendment involves new factual allegations or raises new theories of liability or that any prejudice would result from permitting the amendment, leave to amend is granted.
The motion by Queens Crossing, F & T, and Top 8 to extend the time to complete discovery has been rendered academic by their subsequent admission that discovery is now complete.
Accordingly, the separate summary judgment motions of defendants Sirina and Olympic are granted as to the Labor Law causes of action, but denied as to the common law negligence causes of action; the summary judgment motion of defendants Queens Crossing, F & T, and Top 8 is denied as untimely; the motion by Queens Crossing, F & T, and Top 8 to extend the time to complete discovery is denied as academic; and plaintiff's motion for leave to amend his Bill of Particulars is hereby granted.
The foregoing constitutes the decision, order, and opinion of the Court.