Opinion
12657 Index No. 20823/18E Case No. 2019-04135
12-15-2020
Dana JONES, Plaintiff–Appellant, v. The NEW YORK AND PRESBYTERIAN HOSPITAL, Defendant–Respondent.
Law Offices of Jeffrey K. Levine, New York (Jeffrey K. Levine of counsel), for appellant. Cullen & Dykman, LLP, New York (Adam C. Del Vecchio of counsel), for respondent.
Law Offices of Jeffrey K. Levine, New York (Jeffrey K. Levine of counsel), for appellant.
Cullen & Dykman, LLP, New York (Adam C. Del Vecchio of counsel), for respondent.
Kapnick, J.P., Mazzarelli, Singh, Kennedy, JJ.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered September 20, 2019, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment on his claim pursuant to Labor Law § 241(6), an order striking defendant's answer for purported discovery violations and spoliation, and for an order of contempt against a nonparty witness, unanimously affirmed, without costs.
The court correctly found that questions of fact exist such that summary resolution of plaintiff's Labor Law § 241(6) claim in his favor is unwarranted. There are issues as to whether the location of plaintiff's accident is the type contemplated by Industrial Code § 23–1.7(e)(1) and whether the object alleged to have caused the accident was an integral part of the work (see Krzyzanowski v. City of New York, 179 A.D.3d 479, 118 N.Y.S.3d 10 [1st Dept. 2020] ; see also 12 NYCRR 23–1.7 [e][1], [2] ).
Plaintiff's motion seeking spoliation sanctions against defendant concerning alleged surveillance tapes was also properly denied in that plaintiff failed to establish that they existed, and if so, why they are no longer available (see Mohammed v. Command Sec. Corp., 83 A.D.3d 605, 921 N.Y.S.2d 252 [1st Dept. 2011], lv denied 17 N.Y.3d 708, 2011 WL 4030041 [2011] ). Nor were discovery sanctions warranted, as defendant was not in violation of any court order (see McGilvery v. New York City Tr. Auth., 213 A.D.2d 322, 324, 624 N.Y.S.2d 158 [1st Dept. 1995] ).
The motion court correctly denied that portion of plaintiff's motion seeking contempt sanctions against a nonparty (see Judiciary Law § 756 ; Matter of Estate of Devine, 126 A.D.2d 491, 495, 511 N.Y.S.2d 231 [1st Dept. 1987] ). In any event, since the basis for those contempt claims are the nonparty's purported failure to respond to a subpoena, and the subpoena was quashed, any failure to respond is moot. Moreover, since the subpoena was quashed by a stipulation resolving the motion, that determination is unappealable (see Yuen Lin Lee v. Kwok Wai Lee, 68 A.D.3d 421, 889 N.Y.S.2d 577 [1st Dept. 2009] ). Furthermore, plaintiff did not appeal that determination, but appeals from the denial of a motion to reargue that stipulation, denoted as one for renewal and reargument, from which there is no appeal (see Smith v. Pereira, 176 A.D.3d 491, 107 N.Y.S.3d 854 [1st Dept. 2019] ).
We have considered plaintiff's remaining arguments and find them unavailing.