Simmons v New York City Tr. Auth.

Annotate this Case

Download PDF

Simmons v New York City Transit Authority 2006 NY Slip Op 30388(U) May 30, 2006 Supreme Court, New York County Docket Number: 0103349/2001 Judge: Robert D. Lippmann Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. 2 k 0 CD 3 r> n : .. U /-. / - tn \ 2 I MOTlONlCASE IS RESPECTFULLY REFERRED TO JUSTICE FOR THE FOLLOWING REASON(S): < ? 2 [* 1 ] [* 2 ] Iridcx No.: 103549/01 D EC I S I 0N /O I< D E R -againstNEW YORK C'I'I'Y 'TRANSIT AUTI-IORI'I'Y, R A TLROAD S/R A I I, W 01USS dWa 1M P 11LS E EN'I'ERPRISEIFRrV MEC'I-IANICAT,JV, JOHN P. PIC'ONE and FLORENCE 16"' CEN'I'URY MARBl,E, TNC., D c fcndant s . In this pcrsonal iiijuryinegligetice action, each or the defendanls iiiovcs scparatcly for summary judb'riiciit to dismiss thc plainti W s complaint and flic otlicr dcfcndants' cross claims (collectivcly, motion seqiicricc numbcr 002). For the following reasons, all of these motions are granted. BACKGROUND The Parties On Novcmbcr 29, 1999, plaintiff Troy Siiimoiis (Simmons) walking down a flighl of stairs to ciitcr the New York C'ity suhway, right loot and anklc as a rcsull. Notice of Motioii, Exhibit A (complaint), 7 20. 'l'he steps in qucstion were 011 [he sccond of'two flights of one of the stairways that leads down lrom streel levcl iiito Ihc Canal Strcct Station, which is localed at thc intcrscction oCHi-oadway and Clarial Streels in thc Statc, City a ~ i d County of New York. See Nolice of Motion, Zcgarclli AftTrmation, 1 1 1 More specifically, tlie subject flight of stairs is known as the "M3B stairway." Id. 1 I [* 3 ] The dci ciidant New York City Transit Autlioiily (NYCTA) owns and operates the Ncw York C i ty subway. On January 7, 1994, NYCTA retained defendant hiipulse Eiiteiyi-ise/F&V Mechanical, a Joint Vcnturc (Impulse), to serve as the gciicral contractor for certain renovation work at the Canal Street Station known as the Canal Strect Complex Rehabilitation Pwjcct (the Projcct). u.,13. Impiilsc thcrcafter subcontractcd with dcfcridaiit Joliii P. T icone (Picolic) 1 1 to perform structiiral stccl and coiicrcte block work on the Project. H.,14. 1 1 Dereiidanl Florence 16th Century Marhlc, Inc. (Florence) also ciiterecl into separate subcontracts with lmth TnipuIsc and Piconc to p e l - h i i tile installatioii work on h e Projcct. u, The work o f the Project was divided into h u r phases that bore the respective dcsigiiations Broadway Line, Lower Level, Broadway I,iiic, LJpper Level, Nassau Loop and I mi ngton Avenue Linc. u.,13. Repairs to tlic M3B stairway wcrc pcrlbniicd duiing the Broadway 71 Liiic, Upper Levcl phase. Id.,7 24. Inipulsc asserts that that phase was complcted on June 30, 1997, and presents a copy of the Beneficial Use C:ei-tiiicatinn, signed by officers of NYCTA, that stales thal thc work coiiiprising the Broadway I ,iiic, Upper Level phase had been inspectcd and was found to bc satishctory so that the public coiild again usc [he portions of the Canal Strect Station that had lxen nrl cctcd by that work. Id.;Exhibit S . Piconc states that NYCTA issued tlic Beneficial lJsc Ccrti licatiori before Impulsc had cngagecl Picone as a subcontractor, and h a t Picone did not do any work on the M3B slainvay. & Notice of Cross Motion (Picone), Boule Aft:rmation, 71 24. Florcncc also states that it had coiiiplcted its tile woi-k oil the M3B stairway before NYC HA signed off on the Beneficial Use Certification. I See Notice of Cross Tnipulse notes that it is sucd here incorrectly as Railroads dk/a Impulse Eiitcrprise/F&V Mcchanical 3V. 2 [* 4 ] Motion (Florence), Aratikli A&riiation,1 22. NYCTA, however, claims that there is an issue of 1 fact as In wliethcr Impulse and Piconc werc still performing work on the Prqjcct at the time 1 Simmons was irijurecl. See Notice of Cross Motion (NYC IA), Siege1 Arfifirmation, 1 34. Sirnilions appearcd for a General Municipal 1,aw 50-11 hearing on April 4,2000, and was latcr dcposed 011 Fcbi-uary 6, 2002, and again on October 22, 2003. See Noticc of Motion, Exhibits L, M, N. On each of those occasions, he was asked what had causcd him to trip and fall. At his 50-11 hearing, Simmons staled as follows: A. I think it was the stcps, the back addition or the steps. I know there was n construclion site in the area and stuff like that, and the darkricss. Wieii 1 was thcre I couldn t see vcry well. I think that s basically what madc me fall because 1 could see vcry well. I have vcry good vision. ... When I askcd you helore what caused you to fall you said thruc things, it might have been a had condition, that it was dim and that therc was a construction area. Wliicli is it? 0, (Plainti PFs coiinsel) Maybe it s all three. 1 think it was because when I fcll 11ica1-d lot of construction, a lot of a A. noise in the area and I m not siirc, you know, about was it eilher/or-. Q (PlairitiIf s counscl) He wants to know was there anything 0 1 1 the steps ! A. It seeniccl likc the slcps werc real slippery and was real griddy [sic gritty !]. I might have slipped on something that was there on the stcp. I m riot sure. I know it w m i t just me. Do you know irthere was dchns that causcd you to [-all ? ... Q. Q. A. 0. A. 0. A. Q. A. Ycs, I could say there was something on the steps, yes. Do you know what type ofgarbage was oil the stcps? I t scemcd like it was just like .,. (Plaintirr s co~insel)T you don t know, iPyou rc not S L I ~ C I I m not rcally quite siirc exactly what I slippcd on, but 1 know a lot oI steps wcrc prctty bad aiicl that s what iiiadc me fall. ... Was there coiislruction going on the staircase itsell? I m not sure, 1 111not s~ire. - Exhibit L, at Td., 18-20. At his h s t dcposition, Simmons stated 3s follows: 3 [* 5 ] As you were walking down the stairs, what liappened when you got to about thc tenth stcp ? A. I t seem likc I slipped on somcthing. I m i s t h a w shppccl on somclhing. I[ happencd so List and thcn iny ankle was turned all the way around complckly to the other sidc. 1 was rcally scarcd t)ccausc 1 ricver seen my foot facing in that d i recti 011. Do you know what you stepped on? Q. A. It - T think it was sonicthing froin the coristructioii like somctliing orange whcn 1 was 011 the groiiiid, T sccn :I lot o r the oi-ange thing 011 thc steps on thc ground and thc wood. ... Q. Q. Before you slippcd, did you see anything on the step that you slipped on aiiy particular item? A. T secn like thc yellow - sorile orangc typc ofthing. Q. (Plaintiffs counsel) Where was that, was that cxi tlie stairs or above tlic ground? A. It seeins likc i t was on thc stairs. Q. (Plaintiff s counsclj She is asking you before you fell. A. (Con t i 11ti i rg) Yea ti. Q. Did you scc this orange stuff on the stcp bcrorc you slipped ? A. No, 1 didn t sce it before I slipped because I think if I would have seen it, I would have walkcd around it. Q. Can you tell me how riiuch orange stuffwas there? A. When I was on the ground, I seen a lot of orange sturf bccause of the construction. I don t know. It could have bcen riom iinywherc. Q. Werc thcre any pcoplc working in the vicinity? A. Y C S . ... Q. (Continiiiugj Whcn you were walking down the stairs, was tlicrc anything else that you saw hcfore you re11 that may have caused you to slip ? A. Yeah. I secri likc a lot of gook and stui% Q. (Plaintiffs counscl) Dcbr-is? A. TAc debris. Q. P311ers? A. It seenicd rcally messy at the time. ... 0. A. Q. A. Q. A. Q. Was therc anyhing on the step that causcd you to slip? 11seem likc thcre was stiiff on the step. That would be ihc bottom step near tlie pole ! NO. What slep? Maybe likc fioni the bottom, maybe like six slcp from thc bottom. What was on that step that causcd y c tn k i l l ? ~ 4 [* 6 ] I think it was somctliing thc construction likc a nail or something. I1 A. could have bccn anything. Other than trash and debris, was there anything clsc wrong with the step ? Q. A. It seciii like the maintenance, didn t rcally have good iiiaintciiaiice. Q. Talking about cleaning ? A. Yes. Did you see any cracks or Q. A. I see cracks. - oii the stcp that you fell on? Q. A. I hc one that I slipped 011, not specifically. It seein like 1 slipped 011 a bad step. It could liavc been a crack. Q. But you arc not sure? A. I am not sure if I slipped on thc crack skppcd [sic]. It seciii to have a lot orcracks around the steps. (I- laintirl scounscl) She is asking you spcci lically about thc step. 1.Cyou Q. remembcl-, do you reiiieiiiber if it was like thc other steps you arc desci-ibing or was it a pcrkctly clcari step? A. (Contiiiiiiiig) It had a lot of stui roii i t like garlnge, maybe not a lot of gartxigc, but i t had sti.il l onit. I don t recall. I slipped 011 somctliing. I m not sw-c. M., Exhibit. M, at 19-2 1, 40-43. A.t his second deposition, Sirninons stated as rollows: Did you see anything 0 1 1 the stcps that you were walking onto? It was likc a little bit of stufl liere and thcrc 011the steps. What kind of little bit of stuff are you talking about? Q. Likc wood and stuff like that, you kiiow. A. Can you dcscri be the wood that yo11 saw? Q. It was like a lot of sawdust and wood and stuff, It was little stuff A. cvcrywherc, little yellow stun; ormge tape and stuff likc that. I seen a little bit OL that cvcrywhere, so I didn t know cxactly. ... Q. A. Q. A. Q. A. Q. A. v v. A. A. Q. This wood that you saw, what type o r wood was that? Likc sawclusl wood. Just regular wood. Other than sawdust, did you see any picccs of wood ? Like little picccs of wood. How big were these picccs? Aboiit two to three inches. Is that two to thrcc inches long? LJh-11u 11. What shape were they? I,ike chipped-ofl wood and stuK I hcycllow stuff you stated you saw, what was that. made out of? [* 7 ] A. Like plastic. Could y o ~ tcll iiie where it canic from? i Q. T m not sure. Maybe it s like from the work site. I m not sure. T was like i A. little orange stufrlikc on the bottom. The orange sturf that you arc sayng Q. (Plaintifrs counsel) She s asking about hdoorc you fcll. Right? Q. a That s right. This is before you fell, you said you s w yellow s t u K What Q. tY>eofyeiinw stL1rfrl (Plaintirf s counsel) Hc said plastic. Q. CT. You arc saying it was plastic? A. LJli-h uh. Did it have any writing on it? 0. A. No,just yellow. Q. Thin plastic? Like thin-ish, yeah, thin plastic. A. The orange stuff that you wcre describing bchre, describe to me what it Q. is ? It s like thc orange stuK from like thc construction. When they haw A. peoplc blocking and stuff like that, they put the orange scrccii or plastic over. I lhilik that s what it was. (1. Thc orange stuN that you saw, how big wcre those picces that you saw? A. Not big. Maybc four or five inchcs wide. ... What causcd you to kill ? Q. A. What caused m e to fall? What caused you to fall ? Q. Actually, I m not sure what caused Iiie to (all, but 1 think it was somelhing A. that was 011 thc stairs or whatcver that 1 slipped on. 1)id you scc what you slipped on? Q. A. Not cxactly. (Plaintilf s counsel) At the time hc stepped on it? Q. Right. At the tirnc that you took tlie stcp right before your 1.d1, did you see Q. yoiirsclf stcp on anything? I didn t see exactly what I slipped 011. A. After you fell, did you see anylhing that you might have stepped 011 or did Q. yon scr: what you stepped 011 after you fell ? Likc 1 said, J seen like a lot ofwood and stuff ar.id yellow stu11. A. I know you sa.id you saw the wood and yellow stuff in the area oC the Q. stainwcll. Did you actually see what you stepped on whcn you MI ? A. I think that s what it was that 1 stepped on. ... I m going to quickly go back to the actual time o f the accident. Do you Q. recall seeing any construction signs in place on the stair section that you [ell on? [* 8 ] A. Q. A. Q. recall A. Q. A. Q. A. Q. A. that Q. A. No, T don t recall seeing any coiistruction sigis or nothing. 110 you recall seeing any construction personnel ! No. You had mciitioncd somc orange-ish inatcrial that was in the arca; do you seeing any labels or words printed 011 this construction material? No. Yoir describcd somcthing also as being yellow in that arca. Likc wood. The wood itself was yellowish-brown? Y call. Can you describe the siLe of the wood picccs that were 011 the steps? Well, it was like a lot of little miall woods and little sawdust and stuff likc arourid there, aiid maybe about two iiichcs, three inches long. Were tlic stairs wet at the timc of the accidcnt ! Not that I could rcmcmhcr. T d Exhibit N, at 41-44, 53-54, 57-58. -+* 111 his bill of parliculars to NYCTA, Sininions statcd: 6. ... l laintiff claiins that the stairs wcrc caused, created aiid maintained in a dangcrous aiid hazardous, brokcn, dilapidated, chippcd and slippciy condition. This is inforiiiation in the control of dcfciidants. Plaintiff alleges that the stairs were defective due to defendants causing, 7. creating and maintaining brokcn, dilapidated, worn, cliippcd and slippery coiiciition. - Exhibit J, 11 0 , 7. I n his bill ofparticulars to Florciicc, Simmons claimed: Id., 11 3. That the defedant, [Florence], , , , [was] negligent ...in failing lo adequately and properly clean, repair, inspect, construct, maintain the ... public stairway, in causing and crcatirig a dangerous and hazardous condition ,.. iii fiilirig to 111 k e 11sc of proper arid ad eq u at e cl ca t i i 11g, con strirct i 011, in ai ii 1en a rice, a inspection and repair procedures; in railing to make use of proper and adcquatc supplies, niatcrials, tools and/or instrumentalitics .,, in Fiiiliiig to warn ... in failing to rcinove and eliminatc coiistruction debris and garbage [rom thc public sidcwalk ... . Id.,Exhibit K, 1 3. 1 The parties have not presented copies of Siiiiiiioiis other bills ofparliculars. P ri o r Proceed in gs Simmons initially coi~imencedan action solcly against NYCTA on Februaiy 13, 2001, to 7 [* 9 ] which NYC TA served an answer-. u., C, D. Simmoiis thcn coIiirtieiiccd a second Exhibits action against Impulse, Picone and Florence on June 3, 2002, to which all defendants servcd aiiswcrs. h. Exhibits A, H. NYCTA thercaftcr coitiriwnced a third-party action against liiipulse, J, Piconc and Florciicc or1 Septeiiibcr 9, 2002, to which all defendants served answers. M., Exhibits E, F. On April 23, 2007, this court issued an order that consolidatcd all of thc foregoing actions, and converted all of the respective counterclaims into cross claims. u., G. Siiiiiiions Exhibit asserts one cause o f action for negligence, while cacti of the defcndmts asscrts ct-oss claims 3g:ai list t 11 c o tl iers fo r coil tract 1-1 a1 and/or co iiuiion -1 aw i ii d cm n I t y . 1 c fend ants now ) CCLC1 i i i ov e 1 separately for sumiiiary judgment to dismiss the complaint a i d to dismiss the other dclkndants cross clainis. DISC US STON Inipul se s Motion 11e fi 1-st b rmc1I of. Imp 111se s motion scek s si1mni ary j 11dgm cn t d i s I iii ss i ng S i I no i i s 1 m causc of action h r ricgligence. Pursuaiil to New York law, the traditional corumoii-law elcinciits of negligciicc are: duty, breach, damages, causation a i d foresceability. I Tyatt v Metro-North Coinmuter R.R., 16 AD3d 2 18, 2 13 (1 a t Dcpt 2005). IIiipitlse argucs that Siiiimons 11as Iiilcd to cslablish the clement of causation. & Noticc of Motion, Zcgarelli Affin-nalioii, 17 11 15-20. In its recent decision i n Mazurck v Metropolitan Miiseum o f Art (27 AD3d 227 [2006]), thc Appcllatc Division, First Llcpartmenl, rccountcd that: The proponent of a motion for sumiiiary judgiiieiit must establish that there arc no material issues of fact in dispute and that it is cntitled to summary judgment as a matter of law (Wincgrad v New York I Jniv. Mccl. C tr., 64 NY2d 35 I , 853 [* 10 ] [ NSS]). ,.. The burdcn then shift[s] to plaintiff to present evidentiary facts in admissi blc form sufficient to raise a genuine, triable issue o r fact (Zuckemian v City of New York, 49 NY2d 557, 562 [ 19XOl). In this rcgard, plaintiff must show thc existence of facts and conditions from which the ncgligcnce of the defendant and the causation of the accidcnl by \hat negligence may bc reasonably itifelred (Schiieider v KinEs Highway Hasp. Ctr., 67 NY2d 743, 744 [1986]). l hc proof, however, must be sufficient to pcn-nit a finding of proxiiiiatc caiise based not upon speculation, but upon the logical infcrencc to be drawn from Ihe evidence (Robinson v C ity of New York, 18 AD3d 255, 256 [2OO51, quoting Schncider v K i n w Higliwav H ~ s DCtr., supra at 744), . - at Id. 228. In its carlier decision in Kanc v Estia Grcek Rest. (4AD3d 189 [ 1 Dcpl 2004]:), the Appcllatc Division, First Depai-lmcnt, had notcd that: As we have rcpeatedly statcd, [rlank speculation is no substitute for evidcntiary proof in admissiblc fonii that is required to establish the existence of a matciial issue or fact and, thus, defeat a molion for suniinary judgient (Saw11 v Schnen, 2 I5 AD2d 201 , 293 [ 19951, quoting TuiicsLiixmE v Bronx-Lchanon Hos13. Ctr., 21 3 AD2d 236, 238 [ 19951). Evcn ifthc plaintiff suffcrs mciiiory loss as a coiisequencc of the slip and fall, lie still must present a theory of liability and fiicts in support thereof oii which tlie jury can base a verdict. Absent an explication o r facts explaining the accident, the vci-dict would rcsl 011 only spcculation and guessing, warranting summaryjudgment (Lwn v l,-vnn, 21 6 AD2d 194 [ 19951). - at 190. I n 110th ol those cases, the Appcllatc Division. First Llcparttiient, reversed the trial Id. courts initial dciiials of summaIy judgment bccausc it found that the plainti l fs had not prescnted sufficiciit cvidcncc of causatiori for a jury lo makc a dctcmiinatioti that was bascd on itiorc than 7 In Mazurek v Mctropolitan Museum of A.rt, the Appellate Division found that [a]lthough plai utiff argucd that thc backing [up] of the tractor frightened her and caused her to fall, here is no evidence to support these conclusions. Plaintiffrepcatedly testilied k a t she did not know why she fell and slie ncver tcstifjed that she was frightened or that tlie traclor madc contact with her body. Plaititirf thcrefore failed to sct forth a prima hcie casc of riegligciicc against any dcl endant. 27 A R M at 228-229. In Kane v Estia Greek Restaurant. Inc., which involved a 72 year-old 1ii;in who died a12er falling down a iliglit of stairs, the Appellate Division found that [tlhe present case rests on piire surmise regarding thc cause of dccedcnt s fall arid the coiincction of the staircase, if any, with lie rcsulthg iiijuries. Accordingly, wc must dismiss, 4 AD3d at 191 , [* 11 ] Iriipulsc argues that thc siiiiic situation obtains hci-e. Itiipulsc speci Gcally contends that Simmons has failed to identify the speci (ic dckct allegedly rcsponsiblc for his injiiry pi-oducing fall, hut instcad ofkrs sevcral possiblc causes for his accident, including dirii lighting ... sawdust ... orangc mesh ... cven a cracked step. Set Notice of Molion, Zcgai-elli Affirmation, 1[1[ 18, 19. Iinpulsc concludcs that any finding ol-proximate catise i n this action would be prcdicaled or1 iiothiiig niore than rank speculation. Id., 20. 1 1 The court agrccs. As sel r orlh at Icngtli earlicr in this decision, Siinmons did indcccl advance four distinct theories oucausation i n his various depositions and bills of particulars. His responses to the qiicstioii of what caused him to MI varied from statcd adhercnce to one of those thcories to admissions that I don t know. In his opposition papcrs, S i m m o ~ contends that hnpdsc s and ~s thc othei- dcretidaIlts causation arguments arc bascd or1 selective quotations from his deposition & Gross Affhiation in Opposition, at 10. This is not so. A h liaving revicwed lcslimony. the entirety of Sinimons dcposition icstimony and his bills of parliciilars, and having accoi-ded Sinimons the beticlit of thc most ihvorablc possible reading of both, the court concludes that Simmons himself was nierely speculating as to thc cause of h i s fall on cveiy occasion on which he was asked aboiit it. It would be unrcasonable to assume that a jury prcsentcd with such evidence would do any diffcrcntly. Siminons also argucs that there can be several proxiniate caiises or coiilribuliiig causes to an accident," although tic cites 110 case law lo support this proposition. u.Be that as it may, however, this argumcnt is unavailing becausc Simmons testimony simply did not advance coiiipouiidcd thcories ol causalion. ltatlier, it is clcar- that - cven when read in the niost favorable light - Sirnmons was merely opining that he niight have slippcd 011 cmc or aiiothcr 1ype of construction dcbi-is, 011 a cracked step, J because of poor O [* 12 ] lighting. That defendants have admitted to using orange construction netting and plywood during their work cui the Project (and that scraps o r those items may therefore liave becn in the vicinity ol- the M3R slainvell) docs not avail Simmons because, altliough it might support one of his posited theories of causation, it does not excuse his repeated speculation about the others. Tliercror-e, the coui-t finds that Simnioiis has hilcd to raise a triable issue as to the causation clemciit of his negligence claim. Accordingly, the court grants the portion o f Impulse s motion I 1 1 that seek s s Ini rii ary .j 1 d gm ciit d i s 111is s i n g t 1 c coni p 1ai 11t against it , The 1~ ancc of 1I iip u I sc s 1110ti on sccks sum 111 aiy j 11d giii ciit d i s iii iss i n g the co LI i 1t CI-c 111s a1 1ai and cross clainis for contractual m d comrnoii-law indcnini ty that the other d c h : n d ~ mhave asserted against it. I hcse clainis arc all now moot because tlic court Iias dismissed the iinderlying complairit. Accordingly, thc court graiits Inipulse s application to dismiss all of the countcrclainis and cross claims asscrted against it herein on thal ground. Piconc s Cross Motion The first porlion of Picone s cross rnutioii secks sunimary j u d p i c n t disniissing thu complaint for the same reasons as Impulse advanced in its motion. The court grants this r c l i d for the s m i e rcasons as wcre discussed abovc, The sccond portion of Piconc s cross motion secks sumriiary judgment dismissing the ot h er d c I knd a 111s co ~ i it erc I ai iii s and cross c 1ai ins ag aimt it L r contr act ual and coiiiiiio 11 -1 ;1w i o indei-nnity. The court grants [his relief lor thc same reasons as were discussed above. Florence s Cross Motion The first portion of Florciice s cross inolion seeks summary judginenl dismissing the coinplaiilt for the same reasons as Impulse advanccd in its motion. I hc court granls this relief 11 [* 13 ] for the samc reasoils as were discussed above. The sccoiid portion of Florence s cross motion seeks summary judgment dismissing the other de ferid ants c ou ti t crc 1ai ti1s and cross c I ai m s agai n st it for c 011 tract ii a1 and co tiillion- 1aw indcmiiity. Thc court granls this 1-elicf Tor the same reasons as werc discusscd above. N Y CTA s Cross Motiori The first portion ol NYC I A s cross motion seeks summary judgiiiciit disiiiissiiig thc coniplaint ror thc samc reasons 3s Impulse advanced in its motion. Tlic ciiiirt granls this rclief Tor ihc sanic reasons as wcre discussed above. The sccond portion oPNYCTA s cross motion sccks siimniai-y jiidgruent dismissing the other clefcndants countcrclaims and cross claims against it for contractual and commoii-law The court grants this rcliel for the sanie reasons as wcre discussed abovc. DECISION AC C ORDINC;IJY, for ilie foregoing reasons, it is licreby ORDERED that the niotion, pursuant to CI LR 32 12, oCdefendant ImpLilse Eiitcrprise/ F&V Mechanical, a Joint Venturc (incorrectly sued hercin as Railroads atid/or Rail Works ) is ~iiid thc gr:inled coiiiplaint, as well as countcrclaims and cross claims asserted hcrein against said defcndant, are disiiiissed wilh costs and disburscments to ckfcndanl as taxed by the Clerk or the Court iipoii 3 tlic subniission of an appropriatc bill oucosts; ; and it is rurihcr W C T A opposed Impulse s, Picoiie s and Florcncc s motions 011 thc ground that thcre was an issue of fhct ;is to whether those entities were still performing work on the project at lhc time Simmons was irijured. Those dcrendants resporided with argumciits bascd 011the availability - or lack thereof - oT contractually requirccl insurance to iiideninify against any possiblc claims resulting h m thcir perfonnancc of such work. Howcvcr, tlic court nccd not address any of tlicse argiiinciits because i t has dismissed the undcrlying complaint. 111 particular, 12 [* 14 ] ORDERED that tlie Clerk is dii-ected to enter judgment accordingly; and it is rurtlicr ORDERED Ihal h e cross motion, pursuant to CPLR 32 12, of derenc-lant John P. Piconc is grantcd and the complaint, as well as counterclaims arid cross claims asserted herein against said Me endant, arc dismissed with costs and disbursements to dePe11dantas taxed by the Clerk of tlic C h u r t upon the submissioii or an appropriate bill of cost; and it is furthcr ORDERED that the Clcrk is directed to enter judgment accordingly; and it is fiirtheiCIRDEREI) that thc cross motion, pursuant to CPLR 321 3, of dcfcndant Florcnce 10lh Ccntury Marble, Inc. is granted and the complaint, as well as counterclaims and cross claims asserlcd hcrcin against said defendant, are dismissed wilh costs and disbursciiicnts to dcfcnd;iiit as taxed by tlic Clcrk o r the Court upon thc submission of an appropriate b i l l of cosls; atid it is rurther ORDEKED that thc Clcrk is directed to enter judgment accordingly; and it is fiirthcr ORDERED that the cross molion, pursuant to C PLR 321 2, of tlic dcfcndant Ncw York City Transit Airthorily is grantcd and thc complaint, as well as countei-claims and cross claims asserted herein against said dclendant, are dismissed with costs and disburseriienls to defendant as taxcd by tlic Clerk of [he Court upon thc submission oPan appropriate bill ofcosts; and it is rllrliler ORDEliED that tlic Clerk is directed to enter judgment accordingly. Dated: Ncw York, New York May ;, & ,2006 MAY 3 0 2006 13

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.