Opinion
162524/2014
08-03-2021
Robert CONNOR, Plaintiff, v. AMA CONSULTING ENGINEERS PC, AMA Development, LLC, Jamestown Premier Chelsea Market, LP, AMA Development Infrastructure LLC, MLB Advanced Media L. P., Andrew James Interiors, Inc., Defendants.
Subin Associates, LLP, New York, NY (Denise A. Rubin of counsel), for plaintiff. Kaufman Dolowich & Voluck LLP, Woodbury, NY (Roland A. Vitanza of counsel) for defendant AMA Development Infrastructure LLC. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, NY (Larry H. Lum of counsel) for defendant MLB Advanced Media, L.P. Kennedys CMK LLP, New York, NY (Elizabeth J. Streelman of counsel) for third-party defendant T.F. Nugent, Inc. Cullen & Dykman, LLP, New York, NY (Adrienne Yaron of counsel) for defendant/third-party defendant Andrew James Interiors, Inc. Rivkin Radler, LLP, Uniondale, NY (Janine L. Peress of counsel), for defendant Jamestown Premier Chelsea Market, LP.
Subin Associates, LLP, New York, NY (Denise A. Rubin of counsel), for plaintiff.
Kaufman Dolowich & Voluck LLP, Woodbury, NY (Roland A. Vitanza of counsel) for defendant AMA Development Infrastructure LLC.
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, NY (Larry H. Lum of counsel) for defendant MLB Advanced Media, L.P.
Kennedys CMK LLP, New York, NY (Elizabeth J. Streelman of counsel) for third-party defendant T.F. Nugent, Inc.
Cullen & Dykman, LLP, New York, NY (Adrienne Yaron of counsel) for defendant/third-party defendant Andrew James Interiors, Inc.
Rivkin Radler, LLP, Uniondale, NY (Janine L. Peress of counsel), for defendant Jamestown Premier Chelsea Market, LP.
Gerald Lebovits, J.
The following e-filed documents, listed by NYSCEF document number (Motion 007) 196, 197, 198, 199, 200, 201, 202, 203, 204, 205, 206, 207, 208, 210, 213, 319, 320, 328, 334, 335, 336, 337, 338, 339, 340, 341, 342, 343, 344, 345, 346, 347, 348, 349, 350, 351, 352, 354, 355, 362, 363, 364, 365, 366, 373, 375, 376 were read on this motion to/for JUDGMENT - SUMMARY.
The following e-filed documents, listed by NYSCEF document number (Motion 008) 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 212, 312, 313, 314, 315, 316, 317, 318, 321, 322, 323, 329, 356, 361 were read on this motion to/for JUDGMENT - SUMMARY.
The following e-filed documents, listed by NYSCEF document number (Motion 009) 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 224, 225, 226, 227, 228, 229, 230, 231, 232, 233, 234, 235, 236, 237, 238, 239, 288, 301, 302, 303, 304, 305, 332, 333, 353, 357, 367, 368, 369 were read on this motion to/for JUDGMENT - SUMMARY.
The following e-filed documents, listed by NYSCEF document number (Motion 010) 240, 241, 242, 243, 244, 245, 246, 247, 248, 249, 250, 251, 252, 253, 254, 255, 256, 257, 258, 259, 289, 290, 292, 293, 299, 306, 307, 308, 309, 310, 311, 358, 370, 372 were read on this motion to/for JUDGMENT - SUMMARY.
The following e-filed documents, listed by NYSCEF document number (Motion 011) 260, 261, 262, 263, 264, 265, 266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, 277, 278, 279, 280, 281, 282, 283, 284, 285, 286, 291, 294, 295, 296, 297, 298, 300, 330, 331, 359, 360, 371, 374 were read on this motion to/for JUDGMENT - SUMMARY.
BACKGROUND
On January 27, 2014, plaintiff Robert Connor, then a painting foreman on a renovation project, was struck on the left side of his head and injured by a falling sheetrock panel. The renovation project involved several contractors working simultaneously. The building where the accident took place is owned by defendant Jamestown Premier Chelsea Market, LP. (Jamestown). The accident occurred on the fifth floor of the building, where defendant MLB Advanced Media, L.P. (MLB), is a leaseholder; MLB had decided to undertake renovations on the floor. Defendant AMA Development Infrastructure, LLC (AMA), was the general contractor of the renovation project, although a written contract between MLB and AMA was never put in place. During the course of the project, AMA's laborers were responsible for cleaning the jobsite and disposing of discarded materials. Plaintiff was hired as a painting foreman by a subcontractor, T.F. Nugent, Inc. (Nugent). Subcontractor Andrew James Interiors, Inc. (AJI), was responsible for carpentry and was also on the site at the time of the accident.
Before he was injured, plaintiff was walking on the fifth-floor construction site between a series of walled-off offices and a parallel series of round columns. Plaintiff was not wearing a hardhat. Plaintiff testified at deposition that the falling sheetrock panel, which was leaning against one of the columns, was eight feet tall, four feet wide, and five-eighths of an inch thick. The panel was standing on the ground on its shorter side, alleged to have been four feet long. Non-party witness Adeliz Mendez, the only witness to the accident, testified that the falling sheetrock panel caused plaintiff's accident. Neither plaintiff nor Mendez recalls seeing the panel before the accident. Neither knows when, how, or by whose actions it arrived at its leaning position on the column.
Plaintiff is claiming permanent disabling injuries to his neck and back, and associated pain in his legs, head, and joints. Plaintiff was hospitalized twice for surgeries related to his injury; he claims estimated hospital expenses of $10,000 and a loss of over $1,500,000 of earnings between the date of his incapacitation and his expected retirement age of 65.
Plaintiff, in his complaint and two subsequent amendments, is asserting claims of common-law negligence and also liability under New York Labor Law §§ 200, 240 (1), and 241 (6) against defendants AMA, MLB, AJI, and Jamestown. AMA has impleaded Nugent as a third-party defendant.
Labor Law § 240 imposes a duty on "all contractors and owners and their agents" to use "scaffolding and other devices" to protect workers at a jobsite where those devices are needed. Labor Law § 241 (6) mandates compliance with Industrial Code provisions, promulgated by the commissioner of the New York State Department of Labor, to ensure "reasonable and adequate protection and safety" to persons employed in construction work. (See 12 NYCRR §§ 23-1.7 and 23-2.1.)
In his original bill of particulars, plaintiff supported his § 241 (6) claim with claims of violations by "all defendants" of Industrial Code " Section 23-1.7 a, b, c, d & e." Subdivision (a) of this section pertains to overhead hazards; (b) pertains to falling hazards, whereby a worker falls into an opening; (c) to drowning hazards; (d) to slipping hazards; and (e) to tripping and "other hazards" in both (1) passageways and (2) working areas. Plaintiff now moves for leave to supplement his bill of particulars with what he claims are two additional Code provisions, the latter of which was not incorporated in his original bill of particulars. The first of these provisions is codified at 12 NYCRR § 23-1.7 (e) (2) and pertains to tripping and "other" hazards from items left in working areas. The second is codified at 12 NYCRR § 23-2.1 (a) (1) and mandates that "[a]ll building materials shall be stored in a safe and orderly manner" and that "[m]aterial piles shall be stable under all conditions and so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare."
AMA, answering plaintiff's complaint, asserts cross-claims for common-law indemnity, contractual indemnity, and contribution against Jamestown, MLB, and AJI. AMA also asserts third-party claims for common-law indemnity, contractual indemnity, contribution, and breach of contract for failure to procure insurance against Nugent and AJI. Defendant Jamestown, also in response to plaintiff's complaint, brings cross-claims against AMA, Nugent, MLB, and AJI for contribution, contractual indemnity, common-law indemnity, and, under Kinney v G.W. Lisk Co., Inc. (76 NY2d 215 [1990] ), for failure to procure insurance. Also in response to plaintiff's complaint, MLB brings cross-claims for common-law indemnity, contractual indemnity, breach of contract and contribution against AMA, Nugent, and AJI. Third-party defendant Nugent, in response to AMA's third-party claim against it, asserts cross-claims against AMA, Jamestown, MLB, and AJI for contribution and common-law indemnity. (NYSCEF Doc. Nos. 175, 176, and 178.) Also in response to AMA's third-party claim against it, AJI brings counter- and cross-claims against AMA, Jamestown, MLB, and Nugent for contribution, common-law indemnity, and contractual indemnity.
Plaintiff's request for leave to amend his bill of particulars is denied. All of plaintiff's causes of action are dismissed on the basis of defendants’ and third-party defendants’ motions for summary judgment. All branches of defendants’ and third-party defendants’ motions seeking indemnification and contribution from co-defendants and third-party defendants are denied as academic.
DISCUSSION
A party bringing a motion for summary judgment "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." ( Alvarez v Prospect Hosp. , 68 NY2d 320, 324 [1986] [internal citations omitted].) "A movant's failure to sufficiently demonstrate its right to summary judgment requires a denial of the motion regardless of the sufficiency, or lack thereof, of the opposing papers." ( Cugini v Sys. Lbr. Co., Inc. , 111 AD2d 114, 115 [1st Dept 1985].) Once prima facie entitlement has been established, the opposing party must, to defeat the motion, "assemble, lay bare, and reveal his proofs in order to show his defenses are real and capable of being established on trial ... and it is insufficient to merely set forth averments of factual or legal conclusions." ( Genger v Genger , 123 AD3d 445, 447 [1st Dept 2014].)
I. Defendant/Third-Party Defendant AJI's Motion for Summary Judgment (Motion Sequence 007)
In motion sequence 007, defendant/third-party defendant AJI moves for summary judgment seeking dismissal of all of plaintiff's causes of action as to AJI as well as to all other defendants. AJI also moves for summary judgment seeking dismissal of MLB, Jamestown and Nugent's separate cross-claims against AJI for common-law indemnity, contractual indemnity and contribution.
A. The Branch of AJI's Motion Seeking Summary Judgment Dismissing Plaintiff's Claim under Labor Law § 240
AJI moves for summary judgment as to plaintiff's first cause of action under New York Labor Law § 240, which imposes a duty upon "all contractors and owners and their agents" to employ "scaffolding and other devices" to protect workers at a jobsite where those devices are needed. AJI is not an entity subject to liability under this section. This branch of AJI's motion is granted.
New York courts have read "contractors and owners" to include only general contractors and "owners of the worksite." ( D'Amico v New York Racing Ass'n , 203 AD2d 509, 510 [2d Dept 1994].) Neither definition encompasses AJI, a subcontractor with responsibility only for work within a defined trade (carpentry). Subcontractors’ liability as agents, meanwhile, is limited to cases where an injury arises from the particular "area or activity" over which that subcontractor was delegated "the authority to supervise and control" by an owner or general contractor. ( Russin v Louis N. Picciano & Son , 54 NY2d 311, 318 [1981].) In Russin , the fact that a defendant subcontractor was given agency only over "heating, ventilation and air-conditioning work" but not the "general construction activity which produced the plaintiff's injury" sufficed to remove that defendant from the scope of § 240 liability.
In this case, Nugent was responsible for plaintiff's painting work while defendant AMA, the general contractor hired by MLB, oversaw general construction activity and was responsible for hiring subcontractors. AMA's contract with AJI contains a provision requiring that AJI "exercise best efforts to maintain a safe job site." But the contract does not contain any express delegation of supervision or control over either the painting work that plaintiff performed at the time of his injury, or the totality of all work on the jobsite involving sheetrock. (NYSCEF Doc. No. 335 at 2). AJI has thus demonstrated, unopposed by plaintiff, that AJI does not fall within the statutory definition of contractor, owner, or agent, and cannot as a matter of law be found liable under § 240.
AJI also moves for the dismissal of plaintiff's Labor Law § 240 claim against "all" defendants and third-party defendants, claiming that no party is liable under § 240. But AJI cites no subdivision of CPLR 3211 or 3212, or any case, to support the notion that a defendant has standing to move for summary judgment seeking dismissal of a plaintiff's claims as to other defendants. This branch of AJI's motion is denied. Each of the other defendants—i.e. , MLB, Jamestown, Nugent, and AMA—filed their own motions for summary judgment seeking dismissal of the same § 240 claims advanced by plaintiff. This court rules on the merits of those motions below.
B. The Branch of AJI's Motion Seeking Summary Judgment Dismissing Plaintiff's Claim under Labor Law § 241 (6)
AJI moves for summary judgment dismissing plaintiff's first cause of action under Labor Law § 241 (6). This subdivision provides the Commissioner of the New York State Department of Labor with authority to promulgate rules (specifically, Industrial Code provisions) that mandate safety measures at construction sites. This branch of AJI's motion is granted as to plaintiff's claims against AJI. The limitations that New York courts have imposed on Labor Law § 240 ’s definition of "all contractors and owners and their agents" also apply to § 241 ’s identical enumeration of entities potentially subject to liability. ( Russin , 54 NY2d at 317.) As such, AJI may not be found liable under § 241.
AJI also requests summary judgment dismissing plaintiff's Labor Law § 241 (6) claim as to all defendants and third-party defendants. This branch of AJI's motion is denied for the same lack-of-standing reason as the branch of AJI's motion seeking dismissal of plaintiff's § 240 claims as against all defendants.
C. The Branch of AJI's Motion Seeking Dismissal of Plaintiff's Claims under Labor Law § 200 and Common-Law Negligence
Plaintiff indirectly asserted common-law negligence claims against AJI, and similar claims under Labor Law § 200, which codifies a common-law duty to provide workers with safe working conditions. (See Hunter v R.J.L. Dev., LLC , 44 AD3d 822, 825 [2d Dept 2007].) In plaintiff's original complaint (and subsequent amended complaints), plaintiff asserted his common-law negligence and § 200 claims against "the defendants," failing to specify AJI or any other defendant. (See e.g. NYSCEF Doc. No. 341, ¶¶ 55-62.) AJI now moves for summary judgment to dismiss these claims as to AJI. AJI has introduced evidence through the testimony of its witness John McGinnis that AJI was not working with sheetrock in the area where plaintiff's accident occurred. (See NYSCEF Doc. No. 186, at 59.) AJI also asserts on the basis of this testimony that its workers would never rest sheetrock panels on their shorter edge, which is how the sheetrock panel was standing when it fell and struck plaintiff. (Id. at 114.) As such, AJI has established prima facie that it was not negligent in a manner that proximately caused plaintiff's injury.
In plaintiff's opposition to all defendants’ summary-judgment motions, plaintiff opposes only "so much of defendants’ and third-party defendants’ motions for summary judgment (Motion sequences 009, 010, 011, 012) as seek dismissal of plaintiff's Labor Law § 200 [claim]." (NYSCEF Doc. No. 354 at 2). Since this list of motions does not include sequence 007 (AJI's), and plaintiff makes no arguments elsewhere opposing dismissal of this claim, this branch of AJI's motion is unopposed. This branch of AJI's motion is granted.
Additionally, plaintiff's opposition to defendant's summary judgment motions makes no argument at all (beyond this passing introductory statement) opposing dismissal of plaintiff's Labor Law § 200 and common-law claims. All defendants’ summary judgment motions are accordingly granted as unopposed to the extent that they seek dismissal of these claims.
The branches of AJI's summary-judgment motion for summary judgment seeking dismissal of all cross-claims made against AJI for indemnity and contribution are denied as academic.
II. Plaintiff's Cross-Motion (Motion Sequence 007)
On July 7, 2020, plaintiff cross-moved for three forms of relief. First, partial summary judgment under Labor Law §§ 240 (1) and 241 (6). Second, leave to supplement his bill of particulars to include 12 NYCRR § 23-1.7(e) (2), which pertains to tripping and "other" hazards from items left in working areas and 12 NYCRR § 23-2.1 (a) (1), which mandates that "[a]ll building materials shall be stored in a safe and orderly manner" and that "[m]aterial piles shall be stable under all conditions and so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare," and for denial of defendants’ motions for summary judgment ("Motion sequences 009, 010, 011, 012") to the extent they seek dismissal of plaintiff's Labor Law §§ 200, 240 (1), and 241 (6) claims.
This would-be cross-motion is untimely. Under a March 27, 2020, stipulation executed by all parties to this case, the parties had through June 9, 2020 to serve their respective summary judgment motions. This stipulation extended a previous deadline to account for emergency circumstances relating to the outbreak of the COVID-19 pandemic in the United States. All parties except for plaintiff filed their summary judgment motions by the June 9 deadline.
Plaintiff claims that Executive Order 202.8, signed by Governor Cuomo on March 20, 2020, supersedes the effect of the March 27 stipulation. In its relevant part, the Order reads as follows:
"In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate's court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020. [This date was subsequently extended through August 6, 2020, after the filing of plaintiff's cross-motion]."
Plaintiff's motion was indeed a "legal action, notice, motion, or other process or proceeding" as enumerated by the Order. However, the time limit on filing motions was not "prescribed by the procedural laws of the state." It was prescribed by a stipulation that plaintiff himself agreed to—a stipulation that explicitly accounted for disturbances caused by the onset of COVID-19. As such, plaintiff did not timely file this summary-judgment motion.
Plaintiff correctly notes that under certain circumstances, a court may consider the merits of a cross-motion that has not been timely filed. This is because under CPLR 3212, a court may grant summary judgment in favor of a nonmoving party without the need for a cross-motion. (See CPLR 3212 [b].) The issues on which summary judgment may be granted to a nonmoving party must, however, be "nearly identical" to those raised in the main motion to which the cross-motion responds (in this case, the motions filed by defendants AJI, Nugent, AMA, MLB, and Jamestown.) (See Maggio v 24 W. 57 APF, LLC , 134 AD3d 621, 628 [1st Dept 2015].) To the extent that plaintiff's cross-motion for summary judgment relies on issues that defendants’ motions did not raise, plaintiff's cross-motion must be denied as untimely.
A. The Branch of Plaintiff's Cross-Motion Seeking Partial Summary Judgment on Plaintiff's Cause of Action under Labor Law § 240 (1)
The branch of plaintiff's motion seeking summary judgment on his cause of action under Labor Law § 240 (1) is denied. Defendants’ summary-judgment motions seeking dismissal of this cause of action are granted.
Labor Law § 240 (1) imposes a duty upon "all contractors and owners and their agents" to employ "scaffolding and other devices" to protect workers in situations where there is a risk that an object may fall and strike a worker. ( Makarius v Port Auth. of New York & New Jersey , 76 AD3d 805, 807 [1st Dept 2010] ["There can be no liability under the statute where the work is not being performed at an elevated level or where there is no appreciable height differential between a worker and the falling object that strikes him or her."].) Plaintiff argues that he is entitled to summary judgment on his § 240 claim because his accident, caused by falling sheetrock that had been leaning vertically against a circular column, was "precisely the sort of gravity-related injury" contemplated by the statute. (NYSCEF No. 354 at 28.) Plaintiff points to caselaw supporting the principle that liability under § 240 (1) can exist where a falling object was resting on the same ground level as where a worker was standing. (See Wilinski v 334 E. 92nd Hous. Dev. Fund Corp. , 18 NY3d 1, 5 [2011].)
Plaintiff's claim is indeed not categorically barred by the fact that the sheetrock that injured him tipped over while standing at ground level. Plaintiff's claim is barred, rather, by the fact that the sheetrock did not fall from a significant elevation differential. ( Makarius , 76 AD3d at 808 ["Clearly a significant height differential between the work being performed and the object being hoisted or secured continues to be a required element of the statute."].)
Plaintiff and Mendez each testified in their respective depositions that the sheetrock panel which struck plaintiff was approximately eight feet long. (See NYSCEF Doc. No. 343, at 34 [expert-witness affidavit].) Plaintiff is five feet and eight inches tall. Depending on the angle at which the board was leaning against the column prior to its fall, and the distance plaintiff was standing from the base of the sheetrock panel, this means that the sheetrock fell a maximum of about two-and-a-half feet from its original leaning position to where it struck plaintiff's head. This figure corresponds with that given by AMA's expert witness John Whitty. (See NYSCEF Doc. No. 320, at ¶ 46.) Plaintiff and defendants offer different estimated figures for how much the sheetrock panel weighed. AMA's expert witness claims the panel weighed up to 45 pounds, while plaintiff claims a weight of 40 to 80 pounds. (See plaintiff's reply brief, NYSCEF Doc. No. 373, at ¶ 28; aff of plaintiff, NYSCEF Doc. No. 340, at ¶ 84.)
Plaintiff claims on reply that the actual distance was "at least two-three feet." (See NYSCEF Doc. No. 373, at ¶ 29.)
Plaintiff admits in his affidavit supporting this cross-motion that the panel "did not have a great distance to fall" before it struck him on the head. (Id. at ¶ 151.) Plaintiff notes that the weight and potential harm of a falling object can nevertheless render even a small elevation differential "significant" for the purpose of § 240 liability. But the weights of the falling objects in the cases that plaintiff cites in support of this proposition—each significantly heavier than the sheetrock panel here—show that the exception that plaintiff succeeds in carving out does not apply to circumstances of this case. (See e.g. McCallister v 200 Park, L.P. , 92 AD3d 927, 927, 928-929 [2d Dept 2012] [four stacked scaffolds weighing 450 to 550 pounds]; Pritchard v Tully Const. Co., Inc. , 82 AD3d 730, 731 [2d Dept 2011] [motor 300 to 350 pounds]; Gutman v City of New York , 78 AD3d 886, 886, 887 [2d Dept 2010] [1,300—pound subway rail]; accord DiPalma v State , 90 AD3d 1659, 1660 [4th Dept 2011] [large box full of concrete debris].)
The smallest of these weights is over four times as heavy as the maximum 80-pound figure that plaintiff offers as the sheetrock panel's weight. This court therefore concludes that to the extent that even a short elevation differential can be deemed "significant" on account of the weight of a falling object, the sheetrock panel at issue here was not heavy enough to qualify for this exception. (Cf. Wiley v Marjam Supply Co., Inc. , 166 AD3d 1106, 1108-1109 [3d Dept 2018] [finding no Labor Law § 240 (1) liability where a stack of sheetrock panels, presumably heavier than the single panel at issue here, fell on a worker's ankle].)
Plaintiff also fails to show, as required by Labor Law § 240, that his injury was proximately caused by the failure of any defendant to prevent the sheetrock panel from falling through the use of a device of a kind enumerated in the statute. (See Runner v New York Stock Exch., Inc. , 13 NY3d 599, 603 [2009].) The enumerated devices are "scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection." ( Labor Law § 240.) Plaintiff claims that the failure to employ a drywall clip, such as a product called a "Rock Steady Clip," caused plaintiff's injury. A drywall clip is a device that "secur[es] sheets of drywall, leaned against a wall, into a stabilized stack." ("Rocksteady Instructions," NYSCEF Doc. No. 363.)
Plaintiff has not shown why the Rock Steady clip could have been used to secure sheetrock against the metal columns on the premises where plaintiff was injured. The clip's instructions provide that wooden or metal studs are required for proper use. (Id. ) The sheetrock that hit plaintiff, moreover, was a single piece that could not have been tied into a "stabilized stack" as contemplated by the clip's instructions.
B. The Branch of Plaintiff's Cross-Motion Seeking Partial Summary Judgment on Plaintiff's Cause of Action under Labor Law § 241 (6)
The branch of plaintiff's cross-motion seeking summary judgment on his cause of action under Labor Law § 241 (6) against all defendants is denied. Labor Law § 241 (6) requires owners, contractors, and their agents "to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor." ( Ross v Curtis-Palmer Hydro-Electric Co. , 81 NY2d 494, 501 [1993].) "To establish a cause of action for a violation of Labor Law § 241 (6), a plaintiff must plead and prove a violation of a specific provision of the [Industrial] Code." ( Galarraga v City of New York , 54 AD3d 308, 309 [2d Dept 2008].)
Plaintiff's original bill of particulars cited " Section 23-1.7 a, b, c, d & e" in support of plaintiff's § 241 (6) claim. As discussed below, plaintiff has moved to supplement his bill of particulars with what plaintiff claims are two additional Code sections. One is 12 NYCRR § 23-2.1 (a) (1) ("Storage of Material or Equipment"), which requires that all building materials be "stored in a safe and orderly manner, and that material piles shall be stable under all conditions and so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare." The other is 12 NYCRR § 23-1.7 (e) ("Protection from general hazards .... Tripping and other hazards in [1] Passageways or in [2] Working Areas.") In this motion for summary judgment, plaintiff invokes only these two sections to support his § 241 (6) claim and does not mention subdivisions a, b, c, and d of § 23-1.7.
Subdivisions (a) through (d) of Industrial Code § 23-1.7 are in any event inapplicable to the instant case. Subdivision (a) does not apply because the site of plaintiff's accident is not a site that is "normally exposed to falling material or objects." (Buckley v Columbia Grammar & Preparatory , 44 AD3d 263, 271 [1st Dept 2007].) Subdivision (b) does not apply because plaintiff did not incur his injury by falling into a hazardous opening. Subdivision (c) does not apply because no drowning hazards existed at plaintiff's jobsite. Subdivision (d) does not apply because plaintiff does not allege that he incurred his injury from a slipping hazard.
This branch of plaintiff's motion is denied with respect to his claim under § 241 (6) as supported by 12 NYCRR § 23-2.1 (a) (1). Plaintiff did not raise the issue of § 241 (6) liability as supported by this Code section prior to this untimely motion for summary judgment. Therefore, since plaintiff's invocation of this code section presents an issue that differs substantially from those raised in defendants’ main summary judgment motions, this branch of plaintiff's motion is denied as untimely.
Plaintiff's motion is also denied with respect to his claim as supported by Industrial Code § 23-1.7 (e) (2), which plaintiff did mention in his original bill of particulars. This section pertains to "tripping and other hazards," and "other hazards" is limited to "sharp projections which could cut or puncture any person." Plaintiff has never asserted that his injury was proximately caused by a tripping hazard or by any sharp projection at the jobsite. Plaintiff attributes the theory that his injury was tripping-related to unspecified defendants who "suggested" at plaintiff's deposition that plaintiff might have tripped. (Aff of plaintiff, NYSCEF Doc. No. 354, at ¶ 91.) As plaintiff has not presented any factual basis for § 241 (6) liability under Industrial Code § 23-1.7 (e) (2), he has not established a prima facie case for entitlement to summary judgment. AMA's own motion for summary judgment dismissing plaintiff's § 241 (6) claim under Industrial Code § 23-1.7 (e) (2) is correspondingly granted, as discussed below.
C. The Branch of Plaintiff's Cross-Motion Seeking Leave to Amend the Bill of Particulars to Add New Industrial-Code Allegations
The branch of plaintiff's cross-motion seeking leave to supplement his bill of particulars with additional alleged Industrial Code violations is denied. Although the March 27, 2020, stipulation controls the timeliness of motions for summary judgment in this case, a motion for leave to amend under CPLR 3025 (b) may be filed "at any time by leave of court." Under CPLR 3025, "a party may amend a pleading at any time by leave of court before or after judgment to conform the pleading to the evidence" if other parties cannot demonstrate prejudice. ( Kimso Apts., LLC v Gandhi , 24 NY3d 403, 411 [2014] ; Kelleir v Supreme Indus. Park , 293 AD2d 513, 514 [2d Dept 2002].) The burden of establishing prejudice is on the party opposing the amendment. That burden requires showing some hindrance in the preparation of the case or prevention from taking some measure in support of a position. (Id. ). The decision to allow or deny amendment under CPLR 3025 is "committed to the court's discretion." ( Edenwald Contr.Co., Inc. v City of New York , 60 NY2d 957, 959 [1983].)
Defendants have met their burden of demonstrating that plaintiff's proposed amendment to his bill of particulars, filed within an untimely motion for summary judgment after all five defendants and third-party defendants had already filed their own timely summary-judgment motions, would cause significant prejudice.
Plaintiff agreed to a September 14, 2016 stipulation that directed "[plaintiff] to supp. [supplement] BP [his bill of particulars] as to notice and statutes" within thirty days. (NYSCEF Doc. No. 84 at item 10). Plaintiff filed this motion for leave to amend his bill of particulars to include Industrial Code § 23-2.1 (a) (1) nearly four years after the October 14, 2016, deadline set by this stipulation. AJI argues, and this court agrees, that that this matter is "indistinguishable" from Smith v Hercules Const. Corp. , (274 AD2d 467 [2d Dept 2000] ). In Smith , the plaintiffs’ motion to supplement their bill of particulars with new Industrial Code violations was denied because a time limit for such supplements, set by a preliminary conference order, had lapsed. The order in Smith "expressly directed the plaintiffs to supplement their verified bill of particulars within 30 days by specifying the Industrial Code Regulations allegedly violated." ( Id. at 468 ). Allowing plaintiff to supplement his bill of particulars in this case—four years after a deadline to which plaintiff himself expressly agreed—would improperly strip the parties’ stipulations of their binding effect. (See CPLR 2104 ; Ragen v City of New York , 45 AD2d 1046, 1046 [2d Dept 1974].) Plaintiff has made no showing of good cause that might countervail the effect of a multi-attorney stipulation duly so-ordered by the court.
Section 23-2.1 (a) (1) of the Industrial Code is a rule promulgated by the Commissioner of the New York State Department of Labor, not a statute. However, since no cause of action may lie under Labor Law § 241 (6) without an underlying violation of a Code provision, the addition of an Industrial Code provision is a supplement to plaintiff's bill of particulars "as to" a statute.
This court finds that defendants’ reliance on plaintiff's representations of the extent of his Industrial Code claims—encouraged both by the September 2016 stipulation and by the fact that plaintiff made no mention whatsoever of a § 23-2.1 (a) (1) violation until his untimely cross-motion for summary judgment four years after his initial pleading—would render a grant of leave to supplement plaintiff's bill of particulars prejudicial.
III. Third-Party Defendant T.F. Nugent's Motion for Summary Judgment (Motion Sequence 008)
In motion sequence 008, third-party defendant T.F. Nugent, Inc. moves for (1) summary judgment dismissing AMA's third-party claim and all cross-claims against it; (2) granting Nugent summary judgment on its cross-claims against AJI; and (3) granting summary judgment dismissing plaintiff's claims under Labor Law §§ 200, 240 (1), and 241 (6). Branch (3) of this motion is granted in part and denied in part; branches (1) and (2) of the motion are denied as academic.
A. The Branch of Nugent's Motion for Summary Judgment Seeking Dismissal of Plaintiff's Claims against AMA under Labor Law §§ 200, 240 (1), and 241 (6)
1. Nugent's Request for the Dismissal of Plaintiff's Claim Under Labor Law § 200
Plaintiff asserted a claim against AMA under Labor Law § 200, which codifies a common-law duty to provide workers with safe working conditions. ( Hunter , 44 AD3d at 825.) Nugent seeks summary judgment dismissing this claim as to AMA, which impleaded Nugent as a third-party defendant. This unopposed sub-branch of Nugent's motion is denied due to Nugent's failure to establish a prima facie case that AMA was not negligent. As discussed below, however, plaintiff's negligence claims against AMA are dismissed in connection with AMA's own motion for summary judgment.
AMA is liable under § 200 if it "created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident." ( Ortega v Puccia , 57 AD3d 54, 61 [2d Dept 2008].) Nugent has not established prima facie that AMA lacked either actual or constructive knowledge of the placement of the sheetrock panel on the column from which it fell and hit plaintiff. Pointing to plaintiff's and Mendez's statements at deposition that neither person saw the panel before the accident, Nugent asserts merely that "there is no evidence that AMA caused, created or had notice of [a defective condition]" and that "it is more likely than not that the sheetrock had been placed on the column just moments prior to the accident" (aff of Nugent, NYSCEF Doc. No. 174, ¶ 41). These conclusory statements do not establish entitlement to judgment as a matter of law.
2. Nugent's Request for the Dismissal of Plaintiff's Claim under Labor Law § 240 (1)
This sub-branch of Nugent's motion is granted. As discussed above in connection with plaintiff's cross-motion, and as argued here by Nugent, the record demonstrates as a matter of law that no defendant is liable to plaintiff under Labor Law § 240 (1). The sheetrock that allegedly fell on plaintiff did not fall far enough, or weigh enough, to constitute a liability-triggering mechanism under the statute. Plaintiff has also failed to demonstrate the existence of a material issue of fact about whether the sheetrock's fall could have been prevented by the use of a statutorily enumerated safety device.
3. Nugent's Request for the Dismissal of Plaintiff's Claim under Labor Law § 241 (6)
This sub-branch of Nugent's motion is granted for the reasons discussed above in connection with plaintiff's cross-motion for summary judgment (motion sequence 007). The record shows as a matter of law that none of the Industrial Code provisions that plaintiff timely asserted to have been violated in a manner that would trigger § 241 (6) liability, namely 12 NYCRR § 23-1.7 (a), (b), (c), (d), and (e), apply here. Plaintiff did not (a) incur his injury in an area "normally exposed to falling material or objects," (b) fall into an opening, (c) drown, (d) slip, or (e) trip or incur a wound from a sharp object. As plaintiff has failed to raise any material issues of fact in response to Nugent's (or any other defendant's) prima facie showing to this effect, Nugent is entitled to summary judgment dismissing plaintiff's § 241 (6) claim against AMA.
IV. Defendant AMA's Motion for Summary Judgment (Motion Sequence 009)
In motion sequence 009, defendant AMA seeks summary judgment dismissing plaintiff's common-law negligence claims and his claims under Labor Law §§ 200, 240 (1), and 241 (6).
A. The Branch of AMA's Motion for Summary Judgment Dismissing Plaintiff's Claims for Common-Law Negligence and under Labor Law § 200
This branch of AMA's motion is granted. AMA has established a prima facie case that it was not negligent. AMA contends on the basis of testimony from plaintiff, Mendez, and AMA's expert witness, John Whitty, that AMA had no actual or constructive notice of what plaintiff alleges was a dangerous condition, namely that the sheetrock panel was leaning against a column. AMA also contends, on the basis of Whitty's affidavit, that that AMA did not create this condition. (See Aff of John Whitty, NYSCEF Doc. No. 239, at ¶ 43.) Plaintiff raises no arguments in opposition to this prima facie showing. AMA is entitled to summary judgment dismissing plaintiff's common-law and § 200 claims.
Constructive notice " ‘will generally be found where the defect is visible and apparent, and has been in that condition so long that the city or the contractor is presumed to have seen it, or to have been negligent in failing to see it.’ " (Lewis v Metro. Transp. Auth. , 99 AD2d 246, 249 [1st Dept 1984] [quoting Schmidt v City of New York , 179 AD 667, 669 [1st Dept 1917], affd , 228 NY 572 [1920] ], affd , 64 NY2d 670 [1984].) In light of plaintiff's and Mendez's testimony that that no one saw the leaning sheetrock panel before it fell and struck plaintiff, AMA argues that it had neither constructive nor actual notice.
B. AMA's Motion to for Summary Judgment Dismissing Plaintiff's Claim under Labor Law § 240 (1)
This branch of AMA's motion to dismiss plaintiff's Labor Law § 240 claim is granted for the reasons discussed above in connection with plaintiff's cross-motion on motion sequence 007. This court finds as a matter of law that the mechanism of plaintiff's injury—a sheetrock panel weighing up to 80 pounds falling up to two-and-a-half feet—does not give rise to a cause of action under § 240 (1).
C. The Branch of AMA's Motion for Summary Judgment Dismissing Plaintiff's Claims under Labor Law § 241 (6)
This branch of AMA's motion is also granted for the reasons discussed in connection with plaintiff's cross-motion and Nugent's motion for summary judgment (motion sequences 007 and 008, respectively). Plaintiff has failed to support his claim of § 241 (6) liability with an applicable and timely-pleaded Industrial Code provision.
AMA also seeks summary judgment dismissing all cross-claims brought by other defendants; this branch of AMA's motion is denied as academic.
V. Defendant MLB's Motion for Summary Judgment (Motion Sequence 010)
In Motion Sequence 010, defendant MLB moves for summary judgment dismissing plaintiff's common-law negligence claims and his claims under Labor Law §§ 200, 240 (1), and 241 (6).
A. The Branch of MLB's Motion for Summary Judgment Dismissing Plaintiff's Claims for Common-Law Negligence and under Labor Law §§ 200, 240 (1), and 241 (6)
The sub-branch of MLB's motion for summary judgment dismissing plaintiff's common-law negligence claims and claims under Labor Law § 200 is granted. MLB has established a prima facie case that it was not negligent, and thus not liable either under § 200 or at common law. On the basis of depositions by AMA partner Howard Cohen, Nugent vice president Joseph Turzilli, and AJI foreman John McGinnis, MLB argues that MLB had no supervisory authority or control over any work performed by any contractor. MLB further contends that it had "no involvement at all" in the construction project on which plaintiff was injured beyond its engagement of AMA to undertake the project. (Memorandum of Law of MLB, NYSCEF Doc. No. 259, at 6.) Plaintiff has made no argument in opposition to MLB's prima facie showing of non-negligence. MLB is entitled to summary judgment dismissing plaintiff's common-law and § 200 claims against plaintiff.
The sub-branch of MLB's motion for summary judgment dismissing plaintiff's Labor Law § 240 (1) claim against MLB is granted for the reasons discussed in connection with plaintiff's cross-motion for summary judgment on the same claim (motion sequence 007).
The sub-branch of MLB's motion to dismiss plaintiff's claim under Labor Law § 241 (6) is granted for the reasons discussed in connection with the other defendants’ motions for summary judgment dismissing the same claim. The record demonstrates that none of plaintiff's claims of fact constitute a violation by any defendant of any Industrial Code provision that plaintiff has properly specified in his bill of particulars.
MLB also seeks summary judgment on its claims of common-law indemnification against codefendants AMA, Nugent, and AJI; these branches of MLB's motion are denied as academic.
VI. Defendant Jamestown's Motion for Summary Judgment (Motion Sequence 011)
In Motion Sequence 011, Defendant Jamestown moves for summary judgment seeking dismissal of plaintiff's claims at common law and under Labor Law §§ 200, 240 (1), and 241 (6).
The branch of Jamestown seeking dismissal of plaintiff's Labor Law § 200 and common-law negligence claims against Jamestown is granted. Jamestown argues that it was not negligent and that it is a passive building owner with no role in the construction project on which plaintiff was injured. Thus, Jamestown argues, Jamestown had no actual or constructive notice of any allegedly dangerous condition at the premises such as would trigger liability at common law or under § 200. Plaintiff raises no argument in opposition to Jamestown's showing of non-negligence. Jamestown is entitled to summary judgment dismissing plaintiff's common-law and § 200 claims.
The branch of Jamestown's motion for summary judgment seeking dismissal of plaintiff's Labor Law §§ 240 (1) and 241 (6) claims against Jamestown is granted for the reasons discussed above in connection with plaintiff and other defendants’ motions for summary judgment on these claims.
Jamestown also seeks summary judgment dismissing all cross-claims made against it and in favor of Jamestown's own cross-claims of indemnity against other defendants. These branches of Jamestown's motion are denied as academic.
Accordingly, for the foregoing reasons, it is hereby
ORDERED that the branch of AJI's motion under CPLR 3212 seeking summary judgment dismissing plaintiff's claims (mot seq 007) is granted as to plaintiff's claims against AJI, and denied as to plaintiff's claims against the other defendants; and it is further
ORDERED that the branches of AJI's motion under CPLR 3212 seeking summary judgment dismissing the other defendants’ cross-claims against it (mot seq 007) are denied as academic; and it is further
ORDERED that the branch of plaintiff's cross-motion under CPLR 3025 (b) for leave to amend his bill of particulars (mot seq 007) is denied; and it is further
ORDERED that the branch of plaintiff's cross-motion seeking summary judgment in his favor on his claims against defendants (mot seq 007) is denied; and it is further
ORDERED that Nugent's motion under CPLR 3212 seeking summary judgment dismissing plaintiff's claims against AMA (mot seq 008) is granted in part and denied in part; and it is further
ORDERED that the branch of AMA's motion under CPLR 3212 seeking summary judgment dismissing plaintiff's claims against it (mot seq 009) is granted; and it is further
ORDERED that the branches of AMA's motion under CPLR 3212 seeking summary judgment dismissing the other defendants’ cross-claims against it (mot seq 009) are denied as academic; and it is further
ORDERED that the branch of MLB's motion under CPLR 3212 seeking summary judgment dismissing plaintiff's claims against it (mot seq 010) is granted; and it is further
ORDERED that the branches of MLB's motion under CPLR 3212 seeking summary judgment in its favor on its cross-claims against the other defendants (mot seq 010) are denied as academic; and it is further
ORDERED that that the branch of Jamestown's motion under CPLR 3212 seeking summary judgment dismissing plaintiff's claims against it (mot seq 011) is granted; and it is further
ORDERED that the branch of Jamestown's motion under CPLR 3212 seeking summary judgment in its favor on its cross-claims against the other defendants, and summary judgment dismissing the other defendants’ cross-claims against it (mot seq 011) is denied as academic; and it is further
ORDERED that the action and third-party action are dismissed, with costs and disbursements awarded as against plaintiff to each defendant in the main action separately filing a bill of costs, as taxed by the Clerk upon submission of an appropriate bill of costs; and it is further
ORDERED that defendants are to serve a copy of this order with notice of its entry on all parties and on the office of the County Clerk, which is directed to enter judgment accordingly.