Opinion
12064 Index No. 155373/12 Case No. 2019-3824
10-15-2020
Olga MIKENSHINA, Plaintiff–Appellant, v. TISHMAN CONSTRUCTION CORPORATION, et al., Defendants–Respondents.
[And a Third–Party Action] Index No. 155373/12 Case No.2019–3824 Wingate, Russotti, Shapiro & Halperin, LLP, New York (David M. Schwarz of counsel), for appellant. Morris Duffy Alonso & Faley, New York (Iryna S. Krauchanka of counsel), for Tishman Construction Corporation, New York Convention Center Development Corporation, New York Convention Center Operating Corporation, The Jacob K. Javits Convention Center, New York State Economic Development Corporation, New York State Urban Development Corporation and Empire State Development Corporation, respondents. French & Casey, LLP, New York (Scott J. Laird of counsel), for Atlantic Hoisting & Scaffolding, LLC, respondent.
[And a Third–Party Action] Index No. 155373/12 Case No.2019–3824 Wingate, Russotti, Shapiro & Halperin, LLP, New York (David M. Schwarz of counsel), for appellant.
Morris Duffy Alonso & Faley, New York (Iryna S. Krauchanka of counsel), for Tishman Construction Corporation, New York Convention Center Development Corporation, New York Convention Center Operating Corporation, The Jacob K. Javits Convention Center, New York State Economic Development Corporation, New York State Urban Development Corporation and Empire State Development Corporation, respondents.
French & Casey, LLP, New York (Scott J. Laird of counsel), for Atlantic Hoisting & Scaffolding, LLC, respondent.
Renwick, J.P., Gesmer, Gonza´lez, Scarpulla, JJ.
Order, Supreme Court, New York County (W. Franc Perry, J.), entered April 17, 2019, which, insofar as appealed from as limited by the briefs, granted defendants Tishman Construction Corporation, New York Convention Center Development Corporation, New York Convention Center Operating Corporation, The Jacob K. Javits Convention Center, New York State Economic Development Corporation, New York State Urban Development Corporation d/b/a Empire State Development Corporation, and Empire State Development Corporation's motion for summary judgment dismissing the common-law negligence and Labor Law § 200 claims as against them and granted defendant Atlantic Hoisting & Scaffolding, LLC's motion for leave to file a motion, and upon granting leave, granted its motion for summary judgment dismissing the common-law negligence and Labor Law § 200 claims as against it, unanimously affirmed, without costs.
Defendants established prima facie, through photographic and testimonial evidence, that the scaffolding handrail on which plaintiff's lanyard was caught, causing her to fall, was open and obvious and not inherently dangerous (see e.g. Matthews v. Vlad Restoration Ltd. , 74 A.D.3d 692, 904 N.Y.S.2d 391 [1st Dept. 2010] ; Rivera v. Victoria's Secret Stores, LLC , 130 A.D.3d 436, 11 N.Y.S.3d 481 [1st Dept. 2015] ). Defendants also established, through an expert affidavit, that the handrail, which was a prefabricated component, was consistent with custom and practice in the industry and was not a hazardous projection in violation of OSHA regulations (see Hinton v. City of New York , 73 A.D.3d 407, 901 N.Y.S.2d 21 [1st Dept. 2010], lv denied 15 N.Y.3d 715, 2010 WL 5110085 [2010] ; see also 29 CFR 1926.451 [e][4][v] ). In opposition, plaintiff failed to raise an issue of fact.
The court providently exercised its discretion in entertaining Atlantic's untimely cross motion, given counsel's showing of good cause for the delay (see Pena v. Women's Outreach Network, Inc. , 35 A.D.3d 104, 108, 824 N.Y.S.2d 3 [1st Dept. 2006] ).