Dorador v Trump Palace Condominium

Dorador v Trump Palace Condominium 2015 NY Slip Op 02423 Decided on March 24, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 24, 2015
Tom, J.P., Renwick, DeGrasse, Manzanet-Daniels, Clark, JJ.
101992/09 -590446/09 -590297/10 14604 14603 14602

[*1] Ivan Dorador, Plaintiff-Respondent,

v

Trump Palace Condominium, Defendant-Appellant. [And a Third-Party Action] Trump Palace Condominium, Second Third-Party Plaintiff-Appellant, R & J Company, LLC, et al., Second Third-Party Defendants.

Lester Schwab Katz & Dwyer, LLP, New York (John Sandercock of counsel), for appellant.

Pollack, Pollack, Isaac & DeCicco, LLP (Beth S. Gereg of counsel), for respondent.

Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered May 1, 2014, which, to the extent appealed from, granted plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) claim and denied defendant/second third-party plaintiff's (Trump) cross motion for summary judgment dismissing that claim, unanimously affirmed, without costs. Order, same court and Justice, entered April 30, 2014, which, to the extent appealed from as limited by the briefs, upon reargument, granted second third-party defendants' motion to stay the second third-party action as against second third-party defendant R & J Company, LLC pending resolution of a proceeding in the bankruptcy court, and granted plaintiff's cross motion to sever the second third-party action from the main action, unanimously affirmed, without costs. Order, same court and Justice, entered April 30, 2014, which, to the extent appealed from as limited by the briefs, stayed Trump's motion for summary judgment on its contractual indemnification claim against R & J, unanimously affirmed, without costs.

Upon a review of the factors set forth in Soto v J. Crew Inc. (21 NY3d 562, 568 [2013]), the motion court correctly found that plaintiff, at the time of his accident, was engaged in a "cleaning" activity under Labor Law § 240(1). Plaintiff's application of masking tape to windows in preparation for stripping and relacquering of the brass on the facade of Trump's building is not the type of task that is performed on a relatively frequent and recurring basis as [*2]part of ordinary maintenance (see Soto, 21 NY3d at 568). Further, plaintiff's work on a scaffold six to seven feet above the sidewalk involved a significant elevation risk (id.; see generally Auriemma v Biltmore Theatre, LLC, 82 AD3d 1, 9 [1st Dept 2011]).

The motion court properly stayed the second third-party action and Trump's motion against R & J, the nondebtor codefendant in the second third-party action. R & J, as the alleged indemnitee of its codefendant, is united in interest with its codefendant, the discharged debtor. Accordingly, the bankruptcy court's discharge injunction should extend to R & J (see generally In re St. Vincent's Catholic Medical Centers of New York, 2014 WL 3545581, *7-9, 2014 US Dist LEXIS 97808, *17-25 [SD NY, July 16, 2014, Nos. 14-cv-3293(PKC), 10-11963(CGM)]).

The motion court providently exercised its discretion in severing the second third-party action from plaintiff's action to avoid prejudice to plaintiff by further delay of his trial-ready action (see CPLR 603).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 24, 2015

CLERK