Franza v London Terrace Gardens

[*1] Franza v London Terrace Gardens 2005 NY Slip Op 51507(U) [9 Misc 3d 1112(A)] Decided on July 26, 2005 Supreme Court, Richmond County Maltese, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 26, 2005
Supreme Court, Richmond County

Raymond Franza, Plaintiff,

against

London Terrace Gardens, ABSOLUTE INTERIORS, INC., LIDO CONSTRUCTION CORP., PHASE I DEMOLITION, PHASE ONE REMOVALS, INC., PHASE I CONSTRUCTION ENTERPRISES, INC., and GREG ROCCONOVA, Defendants.



10251/02

Joseph J. Maltese, J.

Plaintiff Raymond Franza (hereafter "Franza") commenced this personal injury action alleging that he was injured on two separate occasions while working as a shop steward for third-party defendant Vanguard Construction and Development Co., Inc. (hereafter "Vanguard") on premises located at 435 West 23rd Street, New York, New York and owned by defendant/third-party plaintiff London Terrace Gardens (hereafter "London"). Franza alleges that his first accident occurred March 2, 1999 at an indoor courtyard area at the complex, when he stepped on some construction and renovation debris, slipped and fell injuring his right ankle and knee (hereafter "the first accident"). Franza alleges that his second accident occurred on April 27, 1999 in another building of the complex, when a temporary door came off its hinges and struck him in the head, causing him to fall and re-injure the same ankle and knee (hereafter "the second accident"). At the time of both accidents, Vanguard, as general contractor, was overseeing a major first-story renovation at the site, which contained multiple buildings and entrances. Various subcontractors were also present at the site, including defendants Absolute Interiors, Inc. (hereafter "Absolute"), Lido Construction Corp. (hereafter "Lido") and the "Phase One" defendants, Phase One Removals, Inc. s/h/a Phase One Demolition, and Phase One Construction Enterprises, Inc. (hereafter collectively "Phase One"). This action was commenced by the filing and service of a summons and complaint on or about January 18, 2002. Issue was joined by the service of an answer by London on or about March 18, 2002. Thereafter, the remaining defendants served their answers, and on or about July 25, 2002, London commenced a third-party action against Vanguard which the latter answered on or about July 15, 2003 [FN1]. On October 13, [*2]2004, plaintiff filed his notice of issue, thereby certifying that discovery is complete and the case is ready for trial.

Pending before this Court are three motions and one cross motion for summary judgment, as well as plaintiff's cross motion for leave to amend his bill of particulars. Before considering the summary judgment motions, the Court will consider plaintiff's cross motion.

In his application, Franza seeks leave to amend his bill of particulars to include alleged violations of Multiple Dwelling Law § 78 and 12 NYCRR § 23-3.3(c). Franza also seeks to enforce a prior preclusion order against Absolute, dated August 26, 2004 or, in the alternative, granting him summary judgment against said defendant based upon its failure to complete discovery. London, Vanguard and Phase One oppose the motion to amend, while Absolute opposes the motion to preclude.

In support of his application for leave to amend, Franza relies upon the basic proposition that leave to amend should be freely granted in the absence of prejudice. Franza contends that the proposed amendment does not alter his theory of liability or prejudice the defendants. Franza further contends that due to inadvertence and law office failure, the proposed amendments were mistakenly omitted from the initial bill of particulars. As further support, Franza refers to Exhibit "K", the affidavit of his expert Shawn McKeon, who opines that 12 NYCRR §23-3.3(c) was violated in this case by the failure to regulate the demolition work as it went along. The Court notes that Exhibit "K" is not attached to the cross motion, but rather to the affirmation in opposition to London's motion for summary judgment.

In opposition to the leave motion, London, Vanguard and Phase One allege (1) gross laches, (2) substantial prejudice, (3) the absence of a reasonable excuse for the delay and (4) the absence of any proof that the alleged violations are applicable to the present action. In reply, Franza alleges that no prejudice will inure to the defendants from the proposed amendment, and that both Multiple Dwelling Law § 78 and the cited Industrial Code section are applicable to this case. In addition, Franza alleges that Vanguard has no standing to oppose the cross motion.

It is beyond cavil that leave to serve an amended pleading should be freely given and that such application is committed to the sound discretion of the Court (Edenwald Contr. Co. v City of New York, 60 NY2d 957). In exercising such discretion, the Court will look at such factors as the length of the delay, the creation of prejudice and, where the case has long been certified as ready for trial, how long the moving party had full knowledge of the substance of the amendment for which leave is sought (Smith v Hercules Constr. Corp., 274 AD2d 467, 468 [2d Dept 2000]). Thus, it has been held that "[l]eave to serve an amended bill of particulars should not be granted where a certificate of readiness has been filed, except upon a showing of special and [*3]extraordinary circumstances" (Sampson v Barber Salvage Co., Inc., 78 AD2d 977 [4th Dept 1980]). However, where a movant can demonstrate both good cause for the failure to move earlier and the absence of prejudice, the Second Department has held that leave should be granted even when the action has long been certified as ready for trial (Mular v Fredericks, 305 AD2d 648 [2d Dept 2003]; cf. Felix v Lettre, 204 AD2d 679 [2d Dept 1994]). In the instant case, Franza alleges law office failure, claiming that counsel's inadvertence caused these two items to be mistakenly omitted form the initial bill of particulars dated June 30, 2002.

Plaintiff's cross motion for leave to amend is denied. In exercising its discretion, the Court notes that the proposed amendments stem from an expert affidavit dated February 23, 2005, i.e., more than two years and eight months after the bill of particulars was served and more than four months after the note of issue was filed, and then only in response to defendants' summary judgment motions. Under these circumstances, Franza's claim of inadvertence is wholly lacking in credibility and fails to constitute good cause for the proposed amendment. Moreover, even if granted, the proposed inclusion of Multiple Dwelling Law § 78 would only apply to London as the owner of the premises (see Weiss v City of New York, 16 AD3d 680 [2d Dept 2005]). Next, the Court will consider the balance of plaintiff's cross motion.

In seeking preclusion against Absolute, plaintiff relies upon a Court order dated August 26, 2004 requiring the production of certain discovery. Franza alleges that Absolute completely failed to comply with said order and should be sanctioned accordingly. However, this allegation is not supported by the record, which includes an uncontroverted affidavit by the president of Absolute, Theresa Pistone, who responded to the discovery order by indicating that a search by Absolute failed to yield the requested records. This response was discussed at length during a conference with the Court on September 17, 2004, at which Franza and third-party defendant Vanguard were both present. As a result, Vanguard withdrew its motion to strike based on Absolute's inability to produce the materials requested, the case was certified as ready for trial and plaintiff subsequently filed his note of issue. On these facts, Franza's application, made more than four months after his note of issue was filed, fails to satisfy the heavy burden of proof necessary for this Court to grant the harsh remedy of preclusion, as plaintiff has failed to show that any discovery failure on the part of Absolute was either willful or contumacious (see Lombard v St. Francis Hosp Rehabilitation Servs, 16 AD3d 385 [2d Dept 2005]). Therefore, the balance of plaintiff's cross motion is also denied. Having disposed of the cross motion, the Court will consider defendants' summary judgment applications following a brief review of the applicable law.

Labor Law § 241(6)

Labor Law § 241(6) provides as follows: "All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:

[*4]* * * (6) All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.

It is well settled that this section of the Labor Law was enacted to provide reasonable and adequate safety protection for all workers engaged in construction, demolition or excavation without regard to any height differential (Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d at 501-502). In order to accomplish this result, a non-delegable duty of compliance was imposed upon owners, general contractors and their agents to comply with the specific rules and regulations regarding safety set forth in the New York State Industrial Code, with liability predicated upon proof that a worker's injuries were proximately caused by the violation of a specific command of said Code regarding safety (id. at 502-504). It must be noted that comparative negligence is a valid defense under this section, as the violation thereof is merely some evidence of negligence (Long v Forest-Fehlhaber, 55 NY2d 154, 160-161). In addition, liability under Labor Law § 241(6) is not limited to accidents that occur on an actual building site (Mosher v State of New York, 80 NY2d 286), and applies to all construction work as defined in the Industrial Code (Jock v Fien, 80 NY2d 965, 967), including "[a]ll work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures" (12 NYCRR 23-1.4[b][13].

Labor Law § 200Labor Law § 200 represent a codification of the common-law duty placed upon owners and contractors to provide employees with a safe place to work (Jack v Fein, 80 NY2d at 967; DeBlase v Herbert Constr. Co., 5 AD3d 624 [2d Dept 2004]). Thus, liability is limited, to parties who exercise supervision or control over the work out of which the injury arises, or who have actual or constructive notice of an unsafe condition which causes an accident (see Lozado v Felice, 8 AD3d 633, 634 [2d Dept 2004]; Aranda v Park E. Constr., 4 AD3d 315 [2d Dept 2004]; Saverino v Reiter, 1 AD3d 427, 428 [2d Dept 2003]).

Summary Judgment

Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Rotuba Extruders v Ceppos, 46 NY2d 223; Herrin v Airborne Freight Corp., 301 AD2d 500 [2d Dept 2003]). On a motion for summary judgment, the function of the Court is issue finding, not issue determination (see Weiner v Ga-Ro Die Cutting, 104 AD2d 331, affd 65 NY2d 732). In making such an inquiry, the proof must be scrutinized carefully in the light most favorable to the party opposing the motion (see Glennon v Mayo, 148 AD2d 580 [2d Dept 1989]).

[*5]

Defendant/Third Party Plaintiff London

London moves by notice of motion for an order granting summary judgment in its favor dismissing the complaint and any cross claims against it. In the alternative, London asks for summary judgment in its favor on their third-party claim for indemnification against Vanguard. Vanguard supports that part of the application seeking to dismiss the complaint but opposes that part of the application seeking indemnification. Franza opposes dismissal of his complaint as against London.

London contends that plaintiff's claims under Labor Law §240(1) must be dismissed because neither of his accidents involved an elevation related hazard.[FN2] London also contends that any claims under Labor Law §241(6) are barred as a matter of law since the code violations alleged in plaintiff's bill of particulars are either inapplicable or insufficiently specific to impose liability. Finally, London contends that plaintiff's claims under Labor Law §200 and common-law negligence will not lie against it, as London had no control over the work being performed or notice of any condition which was a substantial factor in causing either of plaintiff's accidents.

In opposition, Franza alleges that his claims under Labor Law §§241(6) and 200 are not barred as a matter of law. With respect to Labor Law §241(6) Franza cites numerous Industrial Code sections from his bill of particulars which have been held legally sufficient as predicates for liability. With respect to Labor Law §200, Franza alleges that not only did London exercise an extraordinary degree of supervision and control over the work involved in both accidents, but that it also had notice of defects that were substantial factors in causing the accidents.

Initially, the court finds that so much of London's application as seeks dismissal of the cause of action pleaded under Labor Law §240(1) should be dismissed, as there is no view of the evidence that either accident was the result of an elevation related hazard (Rubino v Fisher Reese W.P. Assocs., 243 AD2d 620 [2d Dept 1997], lv denied 94 NY2d 755). Next, the court will examine in greater detail the predicates of liability enunciated by Franza in support of his claim under Labor Law §241(6) and whether or not they apply to either or both of his accidents.[FN3]

Plaintiff's verified bill of particulars alleges violations of the Industrial Code (12 NYCRR) under sections 23-1.5 (general responsibility of employers), 1.6 (responsibility of employees), 1.7(d) (slipping hazards), 1.7(e) (tripping hazards), 1.7(f) (vertical passage), 1.30 (illumination) and 2.1 (maintenance and housekeeping). In addition, he alleges violations of Rules 30.3 and 30.5, as well as numerous OSHA violations (i.e. the Occupational Safety and Health Administration standards contained in 29 CFR Parts 1910 and 1926). However, in his opposition papers, Franza relies solely upon alleged violations of 12 NYCRR §§23-2.1(a) (storage of material equipment), 2.1(b) (disposal of debris), 1.7(d) (slipping hazards) and 1.7 (e) (tripping hazards).

Here, it is undisputed that the first accident occurred in an interior courtyard where Phase One was demolishing a marble-type floor installed over an underlay of concrete or some other hard [*6]substance. It is alleged that as Franza was ambulating over a path where demolition had occurred he either (1) slipped on the floor, (2) tripped over debris or (3) the floor gave way, causing him to fall. Each of these views finds support in Franza's deposition testimony from April 8, 2003 and December 18, 2003, as well as accident reports prepared by him contemporaneously with the incident. It is also undisputed that the second accident occurred at a different location, i.e., near an entranceway on 24th Street, when a temporary wooden door was blown off its hinges and struck Franza in the head, again causing him to fall.

Initially, this Court finds that Franza's reliance upon alleged the OSHA violations is misplaced as they are not applicable to owners or general contractors, but rather to employers only (see Pellescki v City of Rochester, 198 AD2d 762, 763 [4th Dept 1993]). Moreover, it is well settled that a violation of an OSHA regulation will not support a cause of action under Labor Law §241(6) (see Greenwood v Shearson, Lehman & Hutton, 238 AD2d 311, 313 [2d Dept 1997]). Next, the court will consider ad seriatim the Industrial Code violations alleged by Franza in the bill of particulars.

As applicable, Industrial Code §23-1.5 has been held to constitute a general safety standard which will not support a claim under Labor Law §241(6) (see Sparkes v Berger, 11 AD3d 601 [2d Dept 2004]; Webster v Wetzel, 262 AD2d 1038 [4th Dept 1999]; Greenwood v Shearson, Lehman & Hutton, 238 AD2d at 312; cf. Gonzalez v United Parcel Serv., 249 AD2d 210 [1st Dept 1998]). 12 NYCRR §23-1.6 is also insufficient, as it refers to the responsibility of employees to, e.g., utilize available safety equipment, (see Lawyer v Rotterdam Ventures, Inc., 204 AD2d 878 [3d Dept 1994] lv dismissed 84 NY2d 864). However, alleged violations of 12 NYCRR §1.7 may serve as a sufficient predicate for Labor Law liability, as 12 NYCRR §1.7(d) has been held to mandate a distinct safety standard and the kind of specificity required under Labor Law §241(6) (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 350; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 503-505; Beltrone v City of New York, 299 AD2d 306 [2d Dept 2002]; Cameron v City of Long Beach, 297 AD2d 773 [2d Dept 2002]; cf. Salinas v Barney Skanska Constr. Co., 2 AD3d 619 [2d Dept 2003]; Morra v White, 276 AD2d 536 [2d Dept 2000]), and the same is true of 12 NYCRR §1.7(e) (see Roman v Hudson Tel Assocs., 15 AD3d 227 [1st Dept 2005]; McDonagh v Victoria's Secret, 9 AD3d 395 [2d Dept 2004]; cf. Madir v 21-23 Maiden Lane Realty, LLC, 9 AD3d 450 [2d Dept 2004]). Finally, while 12 NYCRR §§23-1.7(f) and 1.30 may also serve as predicates for liability under Labor Law §241(6), they are factually inapplicable to the facts in this case (see Betke v Archwood Estates 261 AD2d 427 [2d Dept 1999]; see also Long v Forest-Fehlhaber, 55 NY2d at 158 n3), as are plaintiff's other alleged Industrial Code violations.

In sum, upon applying the foregoing to the uncontroverted facts of this case, it is the Court's conclusion that triable issues of fact exist as to plaintiff's first accident relative to the alleged violations of 12 NYCRR §23-1.7(d) and (e), and that summary judgment may not be granted to London on this aspect of plaintiff's Labor Law §241(6) cause of action. However, with respect to the second accident, the Court concludes that no triable issues of fact have been raised relative to Labor Law §241(6), as Franza has failed to demonstrate any colorable violation of the New York State Industrial Code upon which any such liability may be based. Therefore, London's application for summary judgment is granted as to that part of Franza's complaint under Labor Law §241(6) which relates to the second accident, and so much of said cause of action will be severed and dismissed . Next, the court will consider London's motion for summary judgment as to those causes [*7]of action pleaded against it under Labor Law §200 and common-law negligence.

On this branch of its motion, London alleges that it had no control over Franza's work, nor did it have any notice of the conditions which allegedly caused either of the two accidents. In support of this position, London has submitted incomplete copies of the depositions of Gary Durso (held on April 8, 2003), Thomas Daly (held on July 9, 2003), Jeffrey Koffler (held on January 6, 2004) and Carlo Rocconova (held on March 8, 2004). Vanguard joins in this branch of London's motion and has submitted complete copies of the indicated deposition testimony of two of the same witnesses, Gary Durso, an employee of Clarendon Management (the company that managed the subject site for London) and Jeffrey Koffler, the project manager for Vanguard. According to Mr. Durso's testimony while Clarendon managed the 10 buildings (with 1500 tenants) occupying the site and was present during the renovation project, it had no function relative to said project other than casual contact with some of the subcontractors. Vanguard, as the general contractor, oversaw the project. In addition, Mr. Durso testified that he had no recollection of any complaints from any of the tenants.

In opposition, Franza relies upon testimony elicited during a subsequent deposition of Gary Durso taken on December 18, 2003 in an effort to demonstrate that London took an active role in the methods and means of construction, including that aspect of the project in which plaintiff sustained his injuries. With respect to the issue of notice, Franza makes no offer of proof as to his first accident, but in apparent reliance on the deposition testimony of Thomas Pyle, alleges with respect to the second accident that there was a prior complaint about another door that blew off and struck either a tenant or a pedestrian. In further opposition, Franza relies upon an affidavit dated February 23, 2005 in which he alleges for the first time that he was present at meetings held in Vanguard's office regarding , e.g., safety conditions at the job site, at least twice a week and that Andrew Hoffman, one of London's owners, Hoffman's (unnamed) father, also an owner, or Gary Durso would also attend. In addition, Franza alleges that London's managers and owners expressed concerns about the constant complaints of its tenants regarding alleged unsafe conditions caused by the subcontractors, particularly on the walking surfaces. Franza also alleges that at least four times a day, Mr. Hoffman or Mr. Durso would walk through the areas being renovated, and that if either of them saw something that was unacceptable, it would immediately be brought to the attention of the workers involved or Ken Chiarito. Finally, Franza reiterates that he was told after his second accident that one of the other doors had previously been blown off and struck someone.

In reply, London alleges that Franza's self-serving affidavit is unworthy of belief and purports to raise feigned issues of fact which contradict his earlier deposition testimony. Moreover, London contends even if the new allegations concerning the activities of Hoffman and Durso were to be believed, they still do not rise to the level necessary to establish liability under Labor Law §200.

In the opinion of this Court, Franza's affidavit has all the appearances of having been tailored to raise triable issues of fact in opposition to London's motion, going so far as to rely upon doubly hearsay in an attempt to create notice of the second accident [FN4]. [*8]

As such, plaintiff is deemed to have tendered only feigned issues (see Sanchez v City of New York, 305 AD2d 487 [2d Dept 2003]) in an ultimately unsuccessful attempt to defeat the consequences of London's prima facie showing that it did not supervise or control plaintiff's work, nor did it have notice of any defective condition (see Dennis v City of New York, 304 AD2d 611, 612 [2d Dept 2003]). In this context, the mere presence of London/Clarendon on the site during construction does not rise to the level of supervision and control necessary to impose liability under Labor Law §200 or the common law, even if they had on occasion inspected the work site to check on progress or ensure compliance with known safety regulations (see DosSantos v STV Engrs, Inc., 8 AD3d 223 [2d Dept 2004], lv denied 4 NY3d 702; Warnitz v Liro Group., 254 AD2d 411 [2d Dept 1998]; D'Antuono v Good Year Tire & Rubber Co., 231 AD2d 955 [4th Dept 1996]; Aragon v 233 W. 21st St., 201 AD2d 353, 354 [1st Dept 1994]). Nor has it been established that they had notice of any dangerous condition which was a substantial factor in causing either of plaintiff's accidents.

Accordingly, that part of London's motion which is for summary judgment dismissing that so much of Franza's complaint as sounds in Labor Law §200 and common-law negligence is granted. (see Amaxes v Newmark & Co Real Estate, 15 AD3d 321, 322 [2d Dept 2005]).[FN5] Having limited London's potential liability under Labor Law §241(6) to two alleged violations of the New York State Industrial Code, the Court will now address that branch of London's motion which seeks indemnification.

London maintains on this aspect of its motion that it is entitled to both contractual and common-law indemnification against plaintiff's employer, Vanguard. In this regard, since it has already determined that London did not direct, control or supervise the plaintiff's work, its liability, if any, must be vicarious in nature. However, this factor is not dispositive.

With respect to contractual indemnification, London relies upon the indemnification clause contained in paragraph 3.18.1 of the general conditions of its contract with Vanguard. As relevant, this document reads as follows:

To the fullest extent permitted by law, the Contractor shall

indemnify and hold harmless the Owner. . .from and against

all claims, damages, losses and expenses, including but not

limited to attorney's fees, arising out of or resulting from

performance of the Work, provided that such claim, damages,

loss or expense is attributed to bodily injury, sickness, disease

or death. . .but only to the extent caused in whole or in part by

negligent acts or omissions of the Contractor, a Subcontractor,

anyone directly or indirectly employed by them or anyone for

whose acts they may be liable, regardless of whether or not such

claim, damage, loss or expense is cause [d] in part by a party indemnified [*9]

hereunder.

Vanguard contends that application is premature as neither it nor any of the subcontractors have yet been held responsible for either of Franza's accidents. In addition, Vanguard alleges that since it is uncontroverted that Franza did not suffer a "grave" injury while in its employ, implied or common-law indemnification is not available to London.

Where issues of fact exist as to how an accident occurred, it may be appropriate on a motion for summary judgment to deny a conditional grant of contractual indemnification (see Soto v Alert No. 1 Alarm Sys, 272 AD2d 466, 468 [2d Dept 2000]). In the instant case, however, it is clear that plaintiff's first accident falls within the scope of the indemnification clause of the proffered contract. Accordingly, London is entitled to summary judgment on its third-party cause of action conditioned upon a finding of liability on the part of Vanguard or its subcontractor, Phase One under Labor Law §241(6) (see Rivera v Urban Health Plan, Inc., 9 AD3d 322, 323 [1st Dept 2004]). London is not, however, entitled to implied or common-law indemnification against plaintiff's employer, as there is no view of the evidence which would support a finding that Franza suffered a grave injury within the meaning of Workers Compensation Law §11 (see Fitzpatrick v Chase Manhattan Bank, 285 AD2d 487 [2d Dept 2001]). Next, the court will consider the motion by Phase One.

The Phase One Defendants Phase One Removals, Inc. s/h/a Phase 1 Demolition and Phase 1 Construction Enterprises, Inc. moves by notice of motion dated December 7, 2004 for an order pursuant to CPLR 3212 granting summary judgment in its favor and dismissing the complaint and all cross claims asserted against it with respect to the second accident only. However, in an amended notice of motion dated January 12, 2005, Phase One expands its prayer for relief to summary judgment with respect to both accidents. Franza opposes such applications. London conditionally opposes the motion, contending that if its motion for summary judgment is denied, then Phase One's application should also be denied. Vanguard adopts the position asserted by London. As is relevant, Phase One was hired by Vanguard to perform interior demolition at the project, i.e., remove existing flooring, ceilings and wall coverings to make way for new construction.

It is uncontroverted that plaintiff's second accident occurred on April 27, 1999, when a door allegedly fell from its hinges. According to Franza, the door in question was installed by Lido a couple of weeks prior to his accident and apparently became unhinged because the retaining pins used were too short.[FN6] Phase One alleges that it had no involvement in the installation of the door in question. With respect to the first accident, Phase One alleges that plaintiff has failed to present any evidence of negligence on its part or notice of any defective condition. Furthermore, Phase One alleges that any claims under Labor Law §§240 and 241(6) must be dismissed, as neither accident involved an elevation-related hazard, nor has plaintiff presented any evidence of a causative Industrial Code violation. Franza offers no opposition to dismissal of any Labor Law §240(1) claim, and concedes that Phase One was not involved with the second accident. Accordingly, Phase One's application for summary judgment and dismissal of the complaint against it must be granted with respect to the second accident and to any part of Franza's complaint sounding in Labor Law §240(1).[*10]

Nevertheless, Franza contends that there is a plethora of evidence connecting Phase One with the first accident under Labor Law §§241(6) and 200, as well as the common law.

Viewing the evidence, as required, in a light most favorable to Franza, numerous triable issues exist which preclude the granting of Phase One's motion for summary judgment in connection with plaintiff's first accident, including alleged violations of previously discussed sections of Industrial Code. Moreover, since it is uncontroverted on these papers that Phase One was performing demolition work at the site of the first accident, triable issues of fact plainly exist that may warrant the imposition of liability on Phase One pursuant to Labor Law §200 and the common law. Accordingly, the balance of Phase One's motion for summary judgment is denied. Next, the court will consider the cross motion by Absolute.

Absolute Defendant

Absolute cross-moves by notice of motion for an order pursuant to CPLR 3212 granting summary judgment and dismissing all of the claims asserted against it. Franza opposes such application. Once again, London conditionally opposes the motion, contending that should their motion for summary judgment be denied, Absolute's application should also be denied.

As is relevant, Absolute, a subcontractor, was hired by Vanguard to do carpentry work at the project site. Absolute alleges that because it was not a union shop, Lido eventually took over its duties, and relying on the deposition testimony of its foreman, Carlo Rocconova, and plaintiff's deposition testimony, alleges that it did not install the temporary doors at the construction site. Moreover, it alleges that there is no view of the evidence which can connect it with either accident.

In opposition, Franza contends that notwithstanding his deposition testimony and that of Carlo Rocconova, the deposition testimony of Jeffrey Koffler raises a triable issue of fact as to whether Absolute installed the door which occasioned plaintiff's second accident. In this regard, plaintiff also points out Absolute's failure to submit an affidavit or sworn deposition testimony from any one with knowledge who can state with certainty that Absolute did not install the door in question.

Once again, London takes the position that the complaint should be dismissed in its entirety, but conditionally agrees that should its motion for summary judgment be denied based upon the existence of triable issues of fact, then Absolute's motion should likewise be denied.

With respect to the first accident and all of the claims sounding in Labor Law §§240(1) or 241(6), Absolute's motion for summary judgment is granted for reasons previously stated. However, with respect to the second accident and so much of the complaint as sounds in Labor Law §200 and common-law negligence, the motion is denied. Again viewing the evidence in a light most favorable to Franza as the party opposing the motion, triable issues of fact exist as to this defendant, including but not limited to whether Absolute, despite being forced off the job site at some point in time, installed the door involved in the second accident. Pertinent to this conclusion is the existence of purchase orders which seem to indicate that Absolute did install some new doors and hardware into existing frames at the project.

Accordingly, it is hereby:

ORDERED, that plaintiff's motion is denied in its entirety; and it is further

ORDERED, that the motion by defendant/third- party plaintiff London Terrace Gardens for [*11]summary judgment and dismissal of the complaint and all cross claims against it is granted except for the causes of action pleaded under Labor Law §241(6), as herein indicated; and it is further

ORDERED, that so much of this motion as seeks contractual indemnification from third-party defendant Vanguard Construction and Development Co., Inc. is granted, conditionally, and is otherwise denied; and it is further

ORDERED, that the motion by defendant Phase One Removals, Inc. s/h/a Phase One Demolition and Phase One Construction Enterprises, Inc. for summary judgment and dismissal of the complaint and all cross claims against it is granted as to any and all causes of action arising from the accident of April 27, 1999, as well as under Labor Law §240(1), but is denied as to the causes of action arising from the accident of March 2, 1999 under Labor Law §241(6), as herein limited, and under Labor Law §200 and common-law negligence; and it is further

ORDERED, that the motion by defendant Absolute Interiors, Inc. for summary judgment and dismissal of the complaint and all cross claims against it is granted as to any and all causes of action arising from the accident of March 2, 1999 and under Labor Law §§240(1) and 241(6), but denied as to the causes of action arising from the accident of April 27, 1999 under Labor Law §200 and common-law negligence; and it is further

ORDERED, that those causes of action which are dismissed be severed from the remaining causes of action; and it is further

ORDERED, that the Clerk of the Court enter judgment accordingly.

E N T E R ,

Dated: July 26, 2005

J.S.C. Footnotes

Footnote 1:By decision and order dated July 26, 2002, a default judgment in favor of Franza was granted against non-answering defendants Lido Construction Corp., Phase One Construction Enterprises, Inc. and Greg Rocconova. At present only Lido remains in default, as Phase One Removals, Inc. has answered on behalf of Phase One Construction Enterprises, Inc., as has Greg Rocconova. Accordingly, the Decision and Order dated July 26, 2002 is deemed amended to vacate the default judgments against Phase One and Rocconova nunc pro tunc. With respect to Mr. Rocconova, by decision and order dated July 8, 2004, the action against him was dismissed. Mr. Rocconova remains in the caption as no motion has been made to amend same to reflect to the dismissal.

Footnote 2:The Court notes that while plaintiff's complaint alleges a violation of Labor Law §240, his bill of particulars does not, implying a concession that said section is inapplicable in this action.

Footnote 3:Since leave to amend the bill of particulars has not been granted, any argument offered by plaintiff concerning 12 NYCRR §23-3.3(c) of the Industrial Code and Multiple Dwelling Law §78 will not be considered as predicate violations under Labor Law §241(6).

Footnote 4:Although not named, Franza appears to be relying upon the deposition testimony of Thomas Pyle, a non-party witness and fellow shop steward, who testified that he heard that a door had fallen upon an unidentified man and woman. Critically, when pressed for the source of this information, Mr. Pyle was equivocal, unsure and said that it may have come from laborers at the site.

Footnote 5:Implicit in this determination is the inapplicability of the doctrine of res ipsa loquitor since it is uncontroverted that the door involved in plaintiff's second accident was not within the exclusive control of London.

Footnote 6:It should be noted that certain deposition testimony and some of the exhibits support the conclusion that Absolute installed the door in question (see Exhibit "D" to London's Affirmation in Opposition to Phase One's application, Koffler EBT pp 21-22; 34-36).