Opinion
Index No. 310642/2008
05-02-2014
FARUK THAQUI and ARDITA THAQI, Plaintiffs, v. ONE BRYANT PARK LLC, et als., Defendants
DECISION / ORDER
PRESENT: Honorable Mary Ann Brigantti-Hughes The following papers numbered 1 to 6 read on the below motions noticed on January 15, 2014 and duly submitted on the Part IA15 Motion calendar of February 5, 2014:
| Papers Submitted | Numbered |
| Pl. Notice of Motion, Exhibits | 1,2 |
| Defs.' Aff. in Opp., Exhibits | 3,4 |
| Pl. Reply Aff, Exhibits | 5,6 |
Upon the foregoing papers, the plaintiffs Faruk Thaqui and Ardita Thaqi ("Plaintiffs") move for partial summary judgment against defendants One Bryant Park LLC. and Tishman Construction Company of New York (collectively "Defendants") on the issue of their liability under Labor Law §240(1). In the event of denial, Plaintiffs seeks alternative relief in the form of precluding Defendants' pleadings for failure to comply with discovery orders. Plaintiffs alternatively seek an order compelling certain outstanding discovery from the Defendants, and directing dates certain for all parties' depositions. In any event, Plaintiffs seek an Order "vacating the plaintiffs' (purported) approximate one-and-a-half (1 ½) month default/delay in serving one (1) additional IRS authorization, and a supplemental bill of particulars as to Industrial Code Violations. Defendants oppose the motion.
Background
According to documentation provided in support of the motion, defendant One Bryant Part LLC allegedly owns the property where Plaintiff was working as a laborer on or about December 28, 2005, the date of the alleged accident. Tishman was allegedly the General Contractor for the construction project as of that date.
According to the affidavit of non-party witness Urim Zeqiraj, he and Plaintiff were working in a tunnel at the accident location on December 28, 2005 at approximately 8:45PM. At that time, he and Plaintiff were working on the ground level of the tunnel. There was a backhoe machine, whose tracks were on the ground one floor above where the Plaintiff was working, at least ten feet higher. The backhoe operator lowered the boom of his machine so as to place the bucket at the end of its upon the ground where Plaintiff and Mr. Zeqiraj were standing. He did this in order to help hoist a rock splitter and its power pack up to a point several feet higher than the floor above the floor where the backhoe was. Mr. Zeqiraj states that he saw laborers place the power back - a metal box containing hydraulic fluid weighing at least 100 pounds - into the backhoe's bucket, and it was not secured in any manner. The backhoe raised its boom at least ten feet about Plaintiff's head, and the power pack then fell out of the bucket, striking Plaintiff on the head.
Plaintiff has provided his own affidavit, wherein he states briefly that at the aforementioned time and place, he was struck in the head by a "rock splitter/power pack" which fell from a height while being hoisted.
In opposition to the motion, Defendants argue that summary judgment is premature, and in any event, there are discrepancies in the plaintiff's version of events that give rise to questions of fact as to his credibility. Defendants argue that Plaintiffs themselves have had their own "discovery failures" that resulted in three prior motions to preclude or compel discovery. They note that Plaintiffs at no time requested the documentation that they now seek in the subject motion. They argue that the 2010 preliminary conference order was "not legible" and since receipt of the instant motion, Defendants' counsel has contacted their clients for the requested information, which will be provided upon receipt.
Applicable Law and Analysis
"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers." (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). There is no requirement that the proof for said motion be submitted in affidavit form, rather, the requirement is that the evidence proffered be in admissible form. (Id.) Accordingly, affirmations from attorneys having no personal knowledge of the facts are not evidence and offer nothing more than hearsay. (Reuben Israelson v. Sidney Rubin, 20 A.D.2d 668 [2nd Dept. 1964]; Erin Federico v. City of Mechanicville, 141 A.D.2d 1002 [3rd Dept. 1988]).
Once a movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact. (Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]). When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. (Knepka v. Tallman, 278 A.D.2d 811 [4th Dept. 2000]).
If the trial judge is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied. (Bush v. Saint Claire's Hospital, 82 N.Y.2d 738,[1993]; Bronx County Public Adm'r v. New York City Housing Authority, 182 A.D.2d517 [1st Dept. 1992]).
As a threshold matter, an injured worker must have been engaged in one of the statute's enumerated activities in order to fall under its special protections (see Jock v. Fien, 80 N.Y.2d 965968 [1992]). The focus of inquiry is on the "type of work the plaintiff was performing at the time of injury" (Joblon v. Solow, 91 N.Y.2d 457, 465 [1998] ). Here, Plaintiff submits no admissible evidence conclusively establishing the type of work he was performing at the time of the accident, and whether it constituted one of the enumerated activities that warrants the statute's protection. Plaintiff's three-sentence affidavit only states that he was a "laborer" who was "working in a construction tunnel" within the scope of his employment with "Civette Cousins JV, LLC." His co-worker, Urim Zeqiraj, only states that he and Plaintiff was "working on the ground within a tunnel." This evidence is inadequate to demonstrate that Plaintiff was engaged in a covered activity at the time of his alleged accident (Martinez v. City of New York, 93 N.Y.2d 322 [1999]). Plaintiffs' motion for partial summary judgment on the issue of liability under Labor Law §240(1) will therefore be denied, without prejudice, and with leave to renew following completion of discovery.
Regarding the alternative relief sought, the drastic remedy of striking a pleading is usually not warranted unless the evidence is crucial and the party intentionally, contumaciously, or in bad faith fails to comply with a discovery order (see Henderson-Jones v. City of New York, 87 A.D.3d 498 [1 Dept. 2011]). After review of the papers, this Court determines that such willful conduct has not been demonstrated, as both parties delayed in complying with the 2010 and 2011 discovery orders, resulting in motions filed by both the defendants as well as the plaintiffs (see Anderson v. Ariel Servs., Inc., 93 A.D.3d 525 [1 Dept. 2012]).
Nevertheless, Plaintiffs are entitled to vacatur of their default in serving the IRS authorization and supplemental bill of particulars, in compliance with the July 18, 2013 preclusion order. Plaintiffs have provided a reasonable excuse for the default as well as a meritorious claim, and defendants have not alleged that they were prejudiced by this delay (see Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74 [2010]). Accordingly, any default on the part of Plaintiffs in complying with the July 18, 2013 Order is hereby vacated.
Moreover, Plaintiffs are entitled to an Order compelling Defendants to provide the following disclosure within 45 days after service of this Decision and Order with Notice of Entry: (1) documentation of insurance coverage, (2) progress reports, (3) safety meeting minutes, (4) contracts with sub-contractors, (5) witness information, (6) opposing party statements, and (7) photographs. Failure to provide responses to the above discovery demands will result in either a preclusion of defendants' pleadings or preclusion of defendants' evidence at the time of trial, upon notice of motion by the party seeking disclosure, unless otherwise provided by the Court;
All outstanding depositions are to be completed on or before June 30, 2014. Failure to comply with this directive will result in either a preclusion of the defaulting party's pleadings or preclusion of testimony from that witness at the time of trial, upon notice of motion by the party seeking disclosure, unless otherwise provided by the Court;
The time to file Note of Issue is hereby extended until August 1, 2014.
The above constitutes the Decision and Order of this Court
__________
Hon. Mary Ann Brigantti-Hughes, J.S.C.