Opinion
Index Nos. 154007/2013 595561/2017 MOTION SEQ. Nos. 002 003 004 005
01-13-2023
Unpublished Opinion
MOTION DATE 07/28/2020
ORDER - AMENDED (MOTION RELATED)
PRESENT: HON. DEBRA A. JAMES, Justice.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 187, 204, 209, 210, 211, 212, 213, 214, 215, 216, 227, 228, 236, 237, 240, 244, 248 were read on this motion to/for JUDGMENT - SUMMARY
The following e-filed documents, listed by NYSCEF document number (Motion 003) 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 188, 205, 241, 245 were read on this motion to/for JUDGMENT - SUMMARY
The following e-filed documents, listed by NYSCEF document number (Motion 004) 93, 94, 95, 96, 97, 98,99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 189, 206, 217, 218, 219, 220, 221, 242, 246 were read on this motion to/for DISMISS
The following e-filed documents, listed by NYSCEF document number (Motion 005) 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 190, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203, 207, 208, 222, 223, 224, 229, 230, 231, 232, 233, 234, 235, 238, 243, 247 were read on this motion to/for JUDGMENT - SUMMARY.
ORDER
Upon the foregoing documents, it is
ORDERED that the Decision and Order dated January 10, 2023, resolving motion sequence numbers 002, 003, 004 and 005 in this action, is VACATED, RESETTLED AND CORRECTED, pursuant to CPLR § 5019(a) as follows:
ORDERED that the motion of defendant Weidlinger Associates, Inc, for summary judgment dismissing the complaint and cross claims against it (motion seq no 002) is granted to the extent that such claims are based upon any violation of Labor Law § 240(1) (the Scaffold Law) or of Labor Law § 241(6) predicated on Industrial Code §23-1.7(e), and such claims are dismissed; and it is further
ORDERED that the motion of defendant Weidlinger Associates, Inc is otherwise denied with respect to any violation of Labor Law § 200 and common law negligence or of Labor Law § 241(6) predicated upon Industrial Code § 23-5.8[h]; and it is further
ORDERED to the extent that it seeks summary judgment granting conditional summary judgment on its third party complaint for common law and contractual indemnification against third party defendant Savin Engineers, PC, the motion of third party plaintiff Weidlinger Associates, Inc (mot seq no 002) is denied; and it is further
ORDERED that the motion of defendant Savin Engineers, PC, for summary judgment dismissing the third party complaint against it is (motion seq no 003) is denied; and it is further
ORDERED that the motion of defendant TDA Construction, Inc., for summary judgment dismissing claims against it (motion seq no 004) is granted to the extent that such claims are based upon any violation of Labor Law § 240(1) (the Scaffold Law) or of Labor Law § 241(6) predicated upon Industrial Code §23-1.7(e), and such claims are dismissed; and it is further
ORDERED that the motion of defendant TDA Construction, Inc. is otherwise denied with respect to any violation of Labor Law § 200 and common law negligence or of Labor Law § 241(6) predicated upon Industrial Code § 23-5.8[h]; and it is further
ORDERED that the motion of defendant Safespan Scaffolding, LLC for summary judgment dismissing the claims and cross claims against it (motion seq no 005) is granted to the extent that such claims are based upon any violation of Labor Law § 240(1) (the Scaffold Law) or of Labor Law § 241(6) predicated on Industrial Code §23-1.7(e), and such claims are dismissed; and it is further
ORDERED that the motion of defendant Safespan Scaffolding, LLC is otherwise denied with respect to any violation of Labor Law § 200 and common law negligence or of Labor Law § 241(6) predicated on Industrial Code § 23-5.8[h].
DECISION
To the extent of Labor Law § 240(1), plaintiff has failed to raise an issue of fact that the unsecured deck constituted an elevation-related hazard. See Smith v New York State Elec &Gas Corp, 82 N.Y.2d 781 (1993).
In Pietrowski v ARE-East Riv Science Park, 86 A.D.3d 467 (1stDept 2011), the appellate court determined that Industrial Code § 23-58(h), Scaffold platform, set forth a specific regulation that constitutes a predicate for liability pursuant to Labor Law § 241(6). Defendants fail to prima facie establish that their actions or inactions were not a substantial factor in the decking having not be "nailed in placed or otherwise secured against displacement" causing the generator that plaintiff was moving to jerk, tripping him forward resulting in him striking his shoulder against the decking truss.
However, defendants have prima facie established the inapplicability of Industrial Code §23-1.7(e) to plaintiff's assertions, as plaintiff does not allege that he tripped on any dirt and debris or protrusions in the passageway.
Defendants have not prima facie established that they had no knowledge of the unsecured decking. See Torkel v NYU Hospitals Center, 63 A.D.3d 587, 591 (1st Dept 2009) ("plaintiff made a prima facie showing that [the general contractor] was responsible for or was aware of the dangerous condition.")
Finally, the record before the court contains an incomplete copy of the contract between third party defendant Savan Engineers, PC and third party plaintiff Thorton Tomasetti, Inc., formerly known as Weidlinger Associates, as such copy comprises only 7 of 9 pages of such contract (NYSCEF Document Numbers 125 and 174). The copy of Exhibit B to the contract that sets forth third party defendant Savan Engineers, PC's scope of work is not part of the record before this court. Thus, there is an issue of fact as to what inspection services third party defendant Savan Engineers, PC promised to perform under such contract, and whether Savan owes contractual indemnification to third party plaintiff Weidlinger Associates for any failure to perform.