Opinion
21604/04
12-07-2007
Raul Salazar, Plaintiff, v. Novalex Contracting Corp., 96 ROCKAWAY, LLC, and T. CONSTRUCTION CO., INC., Defendants.
For Plaintiff: Cyril Baines, Esq Perecman & Fanning, PLLC For Defendant 96 Rockaway, LLC - BJ Finneran, Esq. One Whitehall St. For Defendant/Third Party Defendant T Construction Co., Inc. - Rhonda D. Thompson, Esq. Kral, Clerkin, Redmond, Ryan, Perry & Girvan, LLP For Defendant/Third Party Plaintiff Novalex Contracting Corp.- William White, Esq. White, Quinlan, Staley, Smith & Laquercia, LLP
Appearances of Counsel:
For Plaintiff: Cyril Baines, Esq Perecman & Fanning, PLLC
For Defendant 96 Rockaway, LLC - BJ Finneran, Esq. One Whitehall St.
For Defendant/Third Party Defendant T Construction Co., Inc. - Rhonda D. Thompson, Esq. Kral, Clerkin, Redmond, Ryan, Perry & Girvan, LLP
For Defendant/Third Party Plaintiff Novalex Contracting Corp.- William White, Esq. White, Quinlan, Staley, Smith & Laquercia, LLP
Mary Ann Brigantti-Hughes, J.
The following papers numbered 1 to 7 read on this Motion noticed on April 11, 2007 and No. 17 on the Motion Calendar of July 3, 2007 of Part IA15
Papers Submitted Numbered
Motion & Attachments1
Novalex Cross-Motion & Attachments2
Rockaway Cross-Motion & Attachments3
Affirmation in Opposition & Attachments4
Affirmation in Partial Opposition5
Novalex Reply6
T construction Reply7
Upon the foregoing papers, the Decision and Order on this motion is as follows:
Defendant/Third party Defendant T Construction Co. Inc., hereinafter T Construction, move for summary judgment dismissing Plaintiff's Labor Law §200, §240 and §246(1) claims; excepting the §241(6) claims predicated on NYCRR 23-1.7(b). Defendant/Third party Plaintiff Novalex Contracting Corp., hereinafter Novalex and Defendant 96 Rockaway, LLC, hereinafter Rockaway, adopted T Construction's arguments and also moved for summary judgment; however additionally moved for indemnification against T Construction. For the reasons stated herein, Defendants' motions are hereby granted to the extent provided herein.
Labor Law §240 claims are not applicable to the instant case as Plaintiff's accident did not result from a fall from a significant height or gravity related risk that could have been prevented with the use of one of protective devices enumerated in the statute. In addition, Labor Law §200 claim must fail as the accident did not occur as a result of Defendants' negligence or failure to provide safety measures, but occurred as a result of Plaintiff's own negligence. Additionally, Labor Law §241(6) claims must also fail as the sections of the Codes, Rules and Regulations of the State of New York which Plaintiff claims were allegedly violated are not applicable to the instant case. Given that none of the NYCRR sections cited by Plaintiff are applicable to the instant case, the Court finds that all of Plaintiff's Labor Law claims must be dismissed.
Even though dismissal of Plaintiff's Labor Law §246(1) claim predicated on NYCRR 23-1.7(b) was not specifically requested, CPLR § 3212(b) permits the court to search the record and grant summary judgment to a Defendant, where warranted, even though such relief was not requested where there is no prejudice or surprise. Milbrook Hunt, Inc. v. Smith, 249 AD2d 283 (2nd Dept. 1998) and Olean Urban Renewal Agency v. Iona Herman et al., 101 AD2d 712 (4th Dept. 1984). Insofar as the subject of this motion is the applicability of Plaintiff's labor law claims and the motion seeks summary judgment of Plaintiff's labor law claims and Plaintiff's own proof regarding how the accident took place does not raise an issue of fact as to whether his labor law claims are applicable, Plaintiff is not prejudiced. See also, Federal Nat'l Mortgage v. Katz, 33 AD3d 755 (2nd Dept. 2006) proper to award summary judgment on issue that was subject before the Court and Dunham v. Hilco Construction Company, Inc., 89 NY2d 425 (1996).
NYCRR 23-1.7(b) was intended to protect workers from falling through an opening to the floor below. In the instant case, Plaintiff did not fall through an opening to a level below. Plaintiff was at one level and fell onto the same level. Furthermore, the purpose of NYCRR 23-1.7 is to protect workers from general and unintended risks, not specific risks inherent in short-term projects. Plaintiff alleges that while walking backward, he did not watch where he was walking and fell over cement integral to the work that was being performed, as such, NYCRR 23-1.7 is not applicable. Having searched the record provided and a careful review of the uncontroverted facts of the circumstances surrounding Plaintiff's accident, the Court finds that NYCRR 23-1.7(b) is not applicable to the instant case.
Accordingly, it is hereby
Ordered, Plaintiff's complaint as against Novalex Contracting Corp. and 96 Rockaway, LLC is hereby dismissed, and it is further
Ordered, Plaintiff's labor claims against T Construction Co., Inc. are hereby dismissed.
Accordingly, Novalex Contracting Corp. and 96 Rockaway, LLC claims for indemnification against T Construction Co. are moot.
This constitutes the Decision and Order of this Court.
Hon. Mary Ann Brigantti-Hughes, J.S.C.