Opinion
Index No. 153260/2018 Third-Party Index No. 595818/2018 Second Third-Party Index No. 595217/2020 Third Third-Party Index No. 596072/2021 Fourth Third-Party Index No. 595014/2024 Motion Seq. Nos. 013 015
11-13-2024
ROSARIO LARDIERE, Plaintiff, v. SITE 6 DSA OWNER LLC, SITE 6 COMMERCIAL LLC, TACONIC INVESTMENT PARTNERS, L&M DEVELOPMENT PARTNERS, BFC PARTNERS, L.P, DELANCEY STREET ASSOCIATES LLC, NYU LANGONE HEALTH SYSTEM, HUNTER-ROBERTS CONSTRUCTION GROUP, LLC,BFC PHASE 1 DSA LLC, THE PACE COMPANIES NEW YORK, INC., PEEPELS MECHANICAL CORP., Defendant. SITE 6 DSA OWNER LLC, TACONIC INVESTMENT PARTNERS, L&M DEVELOPMENT PARTNERS, DELANCEY STREET ASSOCIATES LLC, NYU LANGONE HEALTH SYSTEM, HUNTER-ROBERTS CONSTRUCTION GROUP, LLC Plaintiff, v. GIL-BAR INDUSTRIES, THE PACE COMPANIES NEW YORK INC., PEEPELS MECHANICAL CORP Defendant. SITE 6 DSA OWNER LLC, SITE 6 COMMERCIAL LLC, TACONIC INVESTMENT PARTNERS, L&M DEVELOPMENT PARTNERS, DELANCEY STREET ASSOCIATES LLC, NYU LANGONE HEALTH SYSTEM, HUNTER-ROBERTS CONSTRUCTION GROUP, LLC, BFC PHASE 1 DSA LLC Plaintiff, v. SITE SAFETY, LLC, MECHANICAL PIPING SOLUTIONS Defendant. SITE 6 DSA OWNER LLC, SITE 6 COMMERCIAL LLC, TACONIC INVESTMENT PARTNERS, L&M DEVELOPMENT PARTNERS, DELANCEY STREET ASSOCIATES LLC, NYU LANGONE HEALTH SYSTEM, HUNTER-ROBERTS CONSTRUCTION GROUP, LLC, BFC PHASE 1 DSA LLC Plaintiff, v. COMMODORE CONSTRUCTION CORP. Defendant. PEEPELS MECHANICAL CORP Plaintiff, v. COMMODORE CONSTRUCTION CORP., MECHANICAL PIPING SOLUTIONS INC. Defendant.
Unpublished Opinion
MOTION DATE 11/12/2024.
PRESENT: HON. ARLENE P. BLUTH, Justice.
DECISION + ORDER ON MOTION
HON. ARLENE P. BLUTH, Justice.
The following e-filed documents, listed by NYSCEF document number (Motion 013) 975, 976, 977, 999, 1000, 1003, 1006, 1007, 1008 were read on this motion to/for REARGUE.
The following e-filed documents, listed by NYSCEF document number (Motion 015) 978, 979, 980, 981, 982,1001,1004, 1005 were read on this motion to/for REARGUE. Motion Sequence Numbers 013 and 015 are consolidated for disposition. Defendant The
Pace Companies New York Inc. ("Pace")'s motion (MS013) to reargue and third-party defendant Gil-Bar Industries ("Gil-Bar")'s motion (MS015) to reargue are granted and, upon rearguement, the Court modifies its prior decision as described below.
Background
In this Labor Law action, plaintiff claims he was hit in the head by a pipe while visiting a construction site. This Court previously found, in connection with a prior decision on multiple summary judgment motions, that plaintiff was not entitled to protection under Labor Law §§ 240(1) and 241(6) because he was not actively engaged in any construction activities at the time of his accident (NYSCEF Doc. No. 959). Plaintiff was a commissioned salesperson who sold HVAC units for Gil-Bar and was at the construction site that day merely to take a look at the HVAC unit; he was not there to do any construction work.
Both Pace and Gil-Bar now move to reargue. Pace, the entity that installed the sprinkler, contends that the Court should find that plaintiff is not entitled to protection under Labor Law § 200. Gil-Bar makes similar arguments.
Discussion
The Court grants rearguement, and upon rearguement, the Court now dismisses the Labor Law § 200 claim. The Court's prior determination with respect to Labor Law § 200 was based on the text of the statute, which provides that "All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places" (Labor Law § 200[l ]). The Court viewed plaintiff as an individual who was "lawfully frequenting" the area under instructions from his employer. However, the Court observes that this phrase, "lawfully frequenting" has been interpreted narrowly (Mordkcfsky v V.C.V. Dev. Corp., 76 N.Y.2d 573, 577, 561 N.Y.S.2d 892 [1990] [observing that Labor Law § 200 was designed to protect workers and declining to extend its protection to a contract-vendee]).
More recently, the Appellate Division, First Department held that an employee of nonparty moving company hired to move a large computer server rack was not entitled to the protections of the Labor Law, including section 200, because he was not hired to do construction work nor was his task "necessary and incidental" to the construction work (Minholz v Columbia Univ., 222 A.D.3d 595, 596, 204 N.Y.S.3d 468 [1st Dept 2023]). This case law compels the Court to find that plaintiff is not entitled to assert a Labor Law § 200 claim.
However, plaintiffs common law negligence claim remains for the reasons the Court articulated in the prior decision (NYSCEF Doc. No. 959 at 19-21). The Court cannot embrace Pace's view of the facts on a motion for summary judgment. Moreover, plaintiff and defendant Peepels Mechanical Corp, identified issues of fact concerning Pace's presence on the job site and the exact reason for why the pipe fell.
Accordingly, it is hereby
ORDERED that the motions (MS013 and MS015) to reargue are granted and, upon rearguement, the Court dismisses plaintiffs Labor Law § 200 claim but otherwise adheres to its prior decision.