Maciejewski v 975 Park Ave. Corp.

[*1] Maciejewski v 975 Park Ave. Corp. 2005 NY Slip Op 52258(U) [10 Misc 3d 1079(A)] Decided on December 6, 2005 Supreme Court, Kings County Knipel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 6, 2005
Supreme Court, Kings County

Sebastian Maciejewski, et ano., Plaintiffs,

against

975 Park Avenue Corporation, et ano., Defendants.



26018/03



Sebastian Maciejewski and Magdalena Maciejewski (plaintiffs)

Attorney - Samuel J. Lurie, Esq.

475 Park Avenue South - 28th Fl.

New York, NY 10016

(212) 685-7411

975 Park Avenue Corporation and Charles H. Greenthal Management Corp. (defendants)

Attorney - Nathan Losman, Esq.

5 Zavatone Court

New Hempstead, NY 10977

(212) 227-1735

975 Park Avenue Corporation and Charles H. Greenthal Management Corp. (third-party plaintiffs)

Attorney - Nathan Losman, Esq.

5 Zavatone Court

New Hempstead, NY 10977

(212) 227-1735

Roy E. Green and Harriet Green (third party defendants)

Attorney - Hoey, King, Toker & Epstein, Esqs.

5 Water Street - 28th Fl.

New York, NY 10041

(212) 6124200

Lawrence S. Knipel, J.

Upon the foregoing papers, third-party defendants Roy E. Green and Harriet Green (collectively, the "Greens") move for an order, pursuant to CPLR 3212, granting them summary judgment dismissing the third-party complaint. Plaintiffs [FN1] Sebastian Maciejewski and Magdalena Maciejewski cross-move for an order, pursuant to CPLR 3212, granting them partial summary judgment on the issue of defendants' liability under [*2]Labor Law § 240 (1). Defendants/third-party plaintiffs 975 Park Avenue Corporation (975 Corp.) and Charles H. Greenthal Management Corp. (Greenthal Corp.) cross-move for: (1) an order, pursuant to CPLR 3126, striking the answer of third-party defendants, or, in the alternative, precluding third-party defendants from testifying at trial; and (2) an order pursuant to CPLR 3212, granting them summary judgment against third-party defendants.

Facts and Procedural Background

On June 24, 2003, Mr. Maciejewski was injured while performing restoration work in the cooperative unit known as apartment 14C of 975 Park Avenue in Manhattan. Defendant 975 Corp. owns the subject building and employs defendant Greenthal Co. as managing agent. Third-party defendants Roy E. Green and Harriet Green lease apartment 14C pursuant to a proprietary lease agreement with 975 Corp.

With a view to renovate apartment 14C, third-party defendants hired various construction contractors including Ziggy's Painting Company, Mr. Maciejewski's employer. On the date of the accident, Mr. Maciejewski was instructed by his supervisor to remove broken plaster from the ceiling of one of the bathrooms in apartment 14C. Mr. Maciejewski's supervisor instructed him to use a metal A-frame ladder. While Mr. Maciejewski was standing on the third step of the subject ladder and removing plaster from the ceiling, the ladder began to shift. The ladder then fell, causing Mr. Maciejewski to fall and sustain injuries.

Plaintiffs then commenced the instant action on or about July 3, 2003. Plaintiffs allege, inter alia, that the subject ladder was defective and notes that the ladder was not secured when he ascended to the third step. Plaintiffs argue that the fact that Mr. Maciejewski was not provided with an adequate ladder, as well as the fact that the subject ladder was unsecured amount to negligence and violations of the Labor Law. Plaintiffs further argue that defendants, as owner and managing agent of the subject building, are vicariously liable for negligence and violations of the Labor Law.

Defendants/third-party plaintiffs commenced the instant third-party action on or about March 29, 2004. Defendants claim that the Greens entered into an alteration agreement with 975 Corp. prior to the date of Mr. Maciejewski's accident. Defendants argue that they did not breach any obligation or engage in any wrongdoing, and that any injuries to Mr. Maciejewski were caused by the Greens. Defendants further argue that the Greens have breached their contractual obligations and are required to indemnify 975 Corp.

Plaintiffs filed a note of issue in the instant action on February 3, 2005.

The Motion for Summary Judgment Dismissing the Third-Party Complaint by Roy E. Green and Harriet Green [*3]

In support of their motion for summary judgment, the Greens assert that there is no provision of either their proprietary lease agreement with 975 Corp. or the subject alteration agreement that requires them to indemnify defendants for Mr. Maciejewski's accident. Specifically, the Greens argue that they would only be obligated to indemnify if Mr. Maciejewski had been injured in the process of performing structural construction work, in contrast to the painting work Mr. Maciejewski was to perform. The Greens assert that they did nothing to cause the conditions that precipitated the subject accident.

The Greens submit the affidavits of Roy E. Green and Harriet Green. Both affidavits state that neither Roy E. Green nor Harriet Green supervised, directed or controlled the work of Mr. Maciejewski or any other employee of Ziggy's Painting Company. The affidavits also state that neither Roy E. Green nor Harriet Green provided any equipment to Mr. Maciejewski or any other employee of Ziggy's Painting Company. Lastly, the affidavits of Roy E. Green and Harriet Green each affirm that an agent of Greenthal Corp. stated that an alteration agreement was not required by the managing agent before interior painting commenced.

Roy E. Green and Harriet Green conclude that since they neither contributed to the subject accident nor breached any obligation to 975 Corp. or Greenthal Corp., they are thus entitled to summary judgment dismissing the third-party complaint.

In opposition, 975 Corp. and Greenthal Corp. assert that it would be premature for this court to determine the summary judgment motion as neither Roy E. Green nor Harriet Green have been deposed. 975 Corp. and Greenthal Corp. argue that without a deposition, the roles of the Greens in Mr. Maciejewski's work cannot be determined. 975 Corp. and Greenthal Corp. further argue that the affidavits submitted by the Greens are self-serving.

The proponents of a motion for summary judgment must demonstrate their entitlement to judgment as a matter of law by tendering evidence in admissible form that establishes the absence of material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986];see also Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Here, the Greens have submitted affidavits demonstrating that they neither were involved in supervising the work performed by Mr. Maciejewski nor provided him with any equipment. As Mr. Maciejewski does not allege a dangerous condition or a negligent act or omission on the part of the Greens, they are not liable in negligence or Labor Law § 200 (see e.g. Lara v St. John's Univ., 289 AD2d 457 [2001]). Moreover, the Greens are not liable for Mr. Maciejewski's injuries under Labor Law §§ 240 (1) or 241 (6) because they did not direct or control the subject work and because of their status as proprietary lessees entitles them to the so-called "homeowner's exception" (see e.g. Xirakis v 1115 Fifth Ave. Corp., 226 AD2d 452, 453 [1996[). Lastly, their uncontradicted testimony demonstrates that the work performed by Mr. Maciejewski did not implicate any obligations contained in either the subject proprietary lease or any alteration agreement. Their affidavits thus establish, [*4]prima facie, the lack of any liability on their part.

The burden thus shifts to the opponents of the motion, here, 975 Corp. and Greenthal Corp., to tender evidence in admissible form to refute the prima facie showing by the Greens (see e.g. Rose v Horton Med. Ctr., 5 AD3d 459 [2004]). Here, 975 Corp. and Greenthal Corp offer the affidavit of counsel, who opines that the Greens must be deposed before their motion for summary judgment can be determined. Counsel for the opponents of the motion misstate the law. While a party should be permitted a reasonable opportunity to conduct discovery before the determination of a summary judgment motion (see e.g. Urcan v Cocarelli, 234 AD2d 537 [1996]), the mere fact that one party has not completed discovery does not prevent summary judgment (Chemical Bank v Pic Motors Corp., 58 NY2d 1023 [1983]). Here, the Greens have established that they are not liable under the Labor Law or under a common-law theory of negligence, and have asserted that hiring a painting contractor does not implicate any provisions of either the subject proprietary lease or any alteration agreement. Indeed, 975 Corp. and Greenthal Corp. do not even dispute the contentions by the Greens. The sworn statements by the Greens—that they were not involved in the work performed by Mr. Maciejewski and have no potential contractual liability—are thus undisputed. Nevertheless, counsel for 975 Corp. and Greenthal Corp. claims that depositions are required.

As here, the mere claim that more discovery is relevant is insufficient to preclude summary judgment (Jeffries v New York City Hous. Auth., 8 AD3d 178 [2004]). There is no factual support for the conclusory assertion by counsel for 975 Corp. and Greenthal Corp. that further discovery is warranted, and as such, the assertion is insufficient to preclude summary judgment (Standard Microsystems Corp. v Access Data Prods., Inc., 138 AD2d 479 [1988]). Moreover, the hope expressed by counsel for 975 Corp. and Greenthal Corp. that depositions will uncover further evidence is also insufficient to preclude summary judgment (Romeo v City of New York, 261 AD2d 379 [1999]). Lastly, in the face of the prima facie entitlement to summary judgment made by the Greens, the affirmation of counsel for 975 Corp. and Greenthal Corp. is not sufficient to raise a triable issue of fact as it makes no reference to personal knowledge of relevant facts.

Accordingly, the Greens are entitled to summary judgment dismissing the third-party complaint. The motion by the Greens for summary judgment dismissing the third-party complaint is granted and the third-party complaint is dismissed. The cross motion by 975 Corp. and Greenthal Corp. for summary judgment and other relief against Roy E. Green and Harriet Green is denied.

Plaintiffs' Cross Motion for Partial Summary Judgment on the Issue of Defendants' Liability Under Labor Law § 240 (1)

In support of their cross motion for partial summary judgment on the issue of defendants' liability under Labor Law § 240 (1), plaintiffs claim that Mr. Maciejewski had previously complained to his supervisor that the subject ladder was unsteady and had a tendency to wobble. Plaintiffs further claim that Mr. Maciejewski was told by his [*5]supervisor that the subject ladder was the only one available. Plaintiffs note that at his examination before trial, Mr. Maciejewski testified that while standing on the third step of the subject ladder, the ladder began to slide and fall, causing him to fall and sustain injuries. Mr. Maciejewski also testified that there were no people securing the ladder, and also that there were no devices engaged to prevent the ladder from slipping. Plaintiffs conclude that Mr. Maciejewski was subject to an elevation-related hazard while performing work within the purview of Labor Law § 240 (1). Plaintiffs further conclude that the failure to secure the subject ladder establishes a violation of Labor Law § 240 (1).

In opposition, 975 Corp. and Greenthal Corp. advance two main arguments. Initially, 975 Corp. and Greenthal Corp. note that plaintiffs filed a note of issue in the instant action on February 3, 2005. 975 Corp. and Greenthal Corp. further note that plaintiffs' cross motion was not filed until May 2, 2005. 975 Corp. and Greenthal Corp. thus claim that plaintiffs' cross motion is untimely under rule 13 of the Uniform Civil Trial Rules of the Supreme Court, Kings County, which provides that summary judgment motions must be made within sixty days after a note of issue has been filed (see e.g. Weitzner v Elazarov, 189 Misc 2d 646 [2001]). 975 Corp. and Greenthal Corp. conclude that, as plaintiffs have offered no "good cause" for the delay, plaintiffs' cross motion should thus be denied.

The court denies plaintiffs' cross motion. It is undisputed that the cross motion was filed almost three months after the note of issue was filed, in violation of rule 13 of the Uniform Civil Trial Rules of the Supreme Court, Kings County. Thus, plaintiffs had the burden of establishing good cause for the delay (see CPLR 3212 [a]; Bevilacqua v City of New York, 21 AD3d 340 [2005]; Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; Brill v City of New York, 2 NY3d 648, 652 [2004]; First Union Auto Fin., Inc. v Donat, 16 AD3d 372 [2005]; Breiding v Giladi, 15 AD3d 435 [2005]).

However, as 975 Corp. and Greenthal Corp. correctly point out, plaintiffs have not provided the court with an excuse for the delay. Indeed, the issue is not even mentioned in plaintiffs' moving papers. " [G]ood cause' in CPLR 3212 (a) requires a showing of good cause for the delay in making the motion a satisfactory explanation for the untimeliness rather than simply permitting meritorious, non-prejudicial filings, however tardy" (Brill, 2 NY3d at 652). "No excuse at all, or a perfunctory excuse, cannot be good cause'" (id.). Plaintiffs have thus failed to demonstrate "good cause."

In reply, plaintiffs assert that their cross motion should be entertained because the motion by third-party defendants (the Greens) was timely. This argument lacks merit. "Although [plaintiffs] denominated [their] motion a cross motion, [their] effort to piggyback' on [the] timely motion for summary judgment [by third-party defendants] is unavailing since a cross motion can only be made for relief against a moving party' (Gaines v Shell-Mar Foods, Inc., 21 AD2d 986 [2005]; see also CPLR 2215; Williams v Sahay, 12 AD3d 366 [2004]). In short, since plaintiffs' so-called "cross motion" sought relief against non-moving parties (975 Corp. and Greenthal Corp.), plaintiffs' "cross [*6]motion" is untimely notwithstanding the fact that the motion by third-party defendants was timely (id.). Accordingly, plaintiffs' "cross motion" for summary judgment is denied.

Summary

In sum, the motion by third-party defendants Roy E. Green and Harriet Green for summary judgment dismissing the third-party complaint is granted. Plaintiffs' "cross motion" for partial summary judgment on the issue of defendant's liability under Labor Law § 240 (1) is denied. The cross motion by 975 Corp. and Greenthal Corp. for summary judgment and other relief against Roy E. Green and Harriet Green is denied.

This constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1: The claims asserted by Magdalena Maciejewski are derivative to the claims asserted by Sebastian Maciejewski, the physically injured plaintiff. Sebastian Maciejewski will hereinafter be referred to as Mr. Maciejewski.