Opinion
Index No. 31690/2018 Mtn. Seq. 2
08-07-2019
ABRAHAM RUIZ, Plaintiff, v. PARKCHESTER SOUTH CONDOMINIUM, INC., ABU SHAKOOR, SITA NAWAL, JOSEPH MILETO, XINOS CONSTRUCTION CORP. and L&D BUILDERS CORP., Defendants. PARKCHESTER SOUTH CONDOMINIUM, INC., ABU SHAKOOR, SITA NAWAL, JOSEPH MILETO, Third-Party Plaintiffs, v. ROCK GROUP NY CORP., Third-Party Defendant.
Unpublished Opinion
PART 19
DECISION AND ORDER
Hon. Lucindo Suarez, Judge
The issue in Defendant L&D Builder Corp's. ("L&D") motion for summary judgment is whether it made a prima facie showing that Plaintiffs complaint and cross-claims asserted against it should be dismissed. The court finds that L&D established its prima facie burden for a dismissal of Plaintiff s complaint and all cross-claims as non-movants failed to raise any triable issues of fact with respect to same.
This action was commenced by Plaintiff for injuries he allegedly sustained while he was working on a construction site located at 1490 East Avenue Bronx, New York ("subject premises"). On the day of loss, Plaintiff purportedly fell off a sidewalk bridge-type scaffold to the concrete below causing him to sustain injuries.
Here, L&D contended that it should be dismissed from this matter as: (1) L&D did not perform any work at the subject premises; (2) L&D was not contracted with nor was it otherwise hired or retained to perform any work at the subject premises; and (3) L&D was not involved in any way with the work allegedly being performed at the time of loss. L&D buttressed its arguments by attaching the affidavit of L&D's Vice President, Louis Bieler, who averred same.
In opposition, all the non-movants proffered similar arguments positing that the instant motion should be denied as it was prematurely made since discovery just commenced and limited discovery has been interchanged. Non-movants argued that discovery could yield information tying L&D in some manner to Plaintiffs injury-producing work. In addition, Plaintiff in his opposition attached an unverified printout of a work permit data form from the New York City Department of Buildings' ("DOB") website. Said document provided that the DOB issued a work permit to L&D's Vice President, Louis Bieler, to perform interior alterations to 1480 East Avenue Bronx, New York ("adjacent premises").
Plaintiff argued that DOB's work permit demonstrated that L&D was the general contractor for construction, renovation and/or demolition work done at the adjacent premises. Therefore, he reasoned that since the scaffold/sidewalk bridge that he fell from extended from 1480 East to 1490 East it could be possible that L&D was involved with his injury-producing work.
The court finds non-movants' argument with respect to discovery is unavailing. They cannot avoid summary judgment by speculating that discovery will provide the necessary evidence to demonstrate that L&D was involved with Plaintiffs injury-producing work, and the mere fact that depositions have not been held is an insufficient ground to excuse the deficiencies in non-movants' proof. See Baxter St. Condominium v. LPS Baxter Holding Co., LLC, 126 A.D.3d 417, 5 N.Y.S.3d 52 (1st Dep't 2015).
Moreover, even if the court were to consider the unverified DOB work permit it limited L&D's scope of work to interior alterations to the adjacent premises. The permit did not authorize L&D to do any exterior work to the adjacent premises, which undermines Plaintiffs theory that L&D could possibly be involved with his injuries. Thus, it appears that the permit further supports L&D's averments.
Therefore, the court finds that Plaintiff does not possess a factual basis to assert Labor Law §§200, 240(1), and 241(6) claims against L&D nor do the co-defendants have viable cross-claims for contribution, common law indemnification or contractual indemnification against same requiring a dismissal of Plaintiff s complaint and co-defendants' cross-claims.
Accordingly, it is
ORDERED, that L&D's motion for summary judgment is granted; and it is further
ORDERED, that the Clerk of Court shall enter judgment accordingly.
This constitutes the decision and order of the court.