Vovchik v Metropolitan Dev. Partners II, LLC

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Vovchik v Metropolitan Dev. Partners II, LLC 2012 NY Slip Op 30179(U) January 20, 2012 Sup Ct, NY County Docket Number: 109050/06 Judge: Judith J. Gische 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. SCANNED ON 112612012 [* 1] 3 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY HCN JUDITH J. GISCHE PRESENT: PART \ (3 Index Number : 109050/2006 INDEX NO. VOVCHIK STEVE MOTION DATE vs. MOTKIN SEP. NO. METROPOLITAN DEVELOPMENT - SEQUENCE NUMBER : 002 OOd 3tlon totfor IN O W SUMMARY JUDGMENT 1N O W 1Wd. Upon the foregoing papem, IT 18orueruu u m U I I ~ IIIULIUII IP W E v) 3 7 e P W Y .. +E A, p : FILED 3 0' JAN 26 2012 NEW YORK COUNTY CLERK'S OFFICE U Y P 4 ELL J.S.C. I 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: 3. CHECK IF APPROPRIATE: ........................... MOTION is: ................................................ 0 CASE DISPOSED . NON-FINAL DISPOSITION DENiED b . ' x w w m E D PART IN CI OTHER SUBMIT ORDER 0SEllLE ORDER 0DO NOT POST 0FIDUCIARY APPOINTMENT REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 10 X _ _ l - l _ _ _ _ _ _ _ _ _ _ _ _ _ f _ _ _ _ _ _ _ _ _ Qecision and Order: I n d e x No. 109050/06 Seq No. 002 STEVEN VOVCHIK and MARIE VOVCHIK, Plaintiffs, Present: -against- Hoxl METROPOLITAN DEVELOPMENT PARTNERS 11, LLC and GOTHAM CONSTRUCTION COMPANY, LLC, t Judith J, Gische JSC METROPOLITAN DEVELOPMENT PARTNERS 11, LLC and GOTHAM CONSTRUCTION COMPANY, LLC, Third-party Plaintiffs, Third-party Index No. 590139/07 -against- FILED HIGH-RISE ELECTRIC, INC., JAN 26 2012 NEWYORK COUNTY CLERK'S OFFICE , Recitation, as required by CPLR 5 2219 [a] of the p a p e r s considered in the review of this (these) motion(s) : Papers Numbered 1,2 High-Rise n/m 3212 w/MEB affirm, exhs (sep b a c k s ) Vovchik opp w/MJS affirm, exhs . . . . . . . . . . Metropolitan and Gotham supporting affirm (DP) . . Vovchik supp opp w / M J S affirm, exh . . . . . . . . Metropolitan and Gotham reply to Vovchik w / D P affirm High-Rise reply w/MEB affirm . . . . . . . . . . . . 3 4 5 6 7 _________--_________--------------------------------------------Upon t h e f o r e g o i n g p a p e r s , t h e d e c i s i o n a n d o r d e r of t h e court is a s f o l l o w s : This is a personal injury action in which plaintiff Steven Vovchik ("Vovchik") a l l e g e s defendants violated sections 240 [l], Page 1 of 12 [* 3] 241 [6] and 200 of the New York State Labor Laws and that such violations were a proximate cause of his injuries. Vovchik's c w i f e has asserted a derivative claim. Plaintiff's accident is alleged to have occurred on July 9, 2004 when, while moving a core drilling mach ne from a ramp on a construction site owned by Metropolitan, the p l a n k s shifted, causing plaintiff to lose his balance and fa 1 into a ditch or trench directly below. Metropolitan Development Partners 11, LLC (Metropo1itan)and Gotham previously moved for conditional partial summary judgment on their third party claims against High-Rise for contractual indemnification (2nd cause of action) and breach of contract (4t.h cause of action). In the court's decision and o r d e r dated October 19, 2010 (prior order), Gotham and Metropolitan's motion for summary j u d g m e n t on t h e i r 2nd cause of a c t i o n (contractual indemnification) was granted only as to Metropolitan, b u t denied as to Gotham. Metropolitan and Gotham's motion, however, f o r summary judgment on their 4th cause of action (breach of contract/failure to p r o c u r e insurance coverage) was granted as to both third p a r t y plaintiffs. The reader is presumed familiar with the court's prior order as well as the facts alleged and arguments previously asserted by t h e parties. Third-party defendant High-Rise Electric, Inc. (High-Rise), Page 2 of 12 [* 4] plaintiff s employer on the date of the accident, now moves, pursuant to CPLR 3212, for summary judgment dismissing: (1) plaintiffs Labor Law 5 200 and common-law negligence claims as against Metropolitan; (2) the parts of plaintiffs Labor Law 5 241 (6) claim against both Metropolitan and Gotham that a r e based on Industrial Code (12 NYCRR Part 23) 55 23-1.7 (b), (d), ( e ) , (f) and 23-1.16; and (3) defendants/third-party plaintiffs third-party claims for common-law indemnification and contribution. Plaintiffs expressly state that they do not oppose dismissal of their Labor Law 5 200 and common-law negligence claims as against Metropolitan, since this court, in its O r d e r d a t e d October 19, 2010, has already determined t h a t Metropolitan (the owner). has . . . shown that it did not exercise supervision or control over the work performed by Vovchik, it d i d not have actual or constructive notice of the dangerous condition alleged [nor] did it create the condition (10/19/10 Order, at 8 of 10). Accordingly, that part of High-Rise s motion that seeks summary judgment dismissing plaintiffs Labor Law § 200 and common-law negligence claims as against Metropolitan is granted. In addition, plaintiffs withdraw t h a t part of their Labor Law 5 241 (6) claim as is based on Industrial Code 5 23-1.16, and 23-1.7 (b) (1) (ii) and (iii) as they concede those subsections are inapplicable. Therefore, High-Rise s motion f o r summary Page 3 of 12 [* 5] judgment f o r summary judgment dismissing plaintiffs' Labor Law 5 241 (6) claim, to the extent it is based upon violations of Industrial Code 5 23-1.16, and 23-1.7 ( b ) (1) (ii) and (iii) is granted as well. The court notes that plaintiffs' Supplemental Affirmation in Opposition dated September 20, 2011 purports to present the sworn affidavit of one of Vovchik's co-workers in further opposition to High-Rise's motion. That same co-worker, Orlando Franco, previously provided an unsworn statement which plaintiffs annexed to their opposition papers dated August 26, 2011 as Exhibit C. Moving defendants a r g u e that the unsworn statement must be rejected because it is not evidence in admissible form and also ask the court to reject the later submitted sworn statement on t h e basis that it is improper to do in reply. Although supplemental submissions should n o t be used to present new theories to the court, the court may, in its discretion, allow such submissions to, for example, address procedural oversights ( O s t r o v v. Rozbruch, -- N.Y.S.2d --I, WL 5780 [lst Dept. 20121). 2012 Plaintiffs' supplemental affirmation with Franco's sworn affidavit is illustrative of this principle and will, therefore, be permitted. Plaintiffs has simply recast the unsworn statement into a sworn affidavit and the affidavit supports the arguments plaintiffs have asserted in other ways, including Vovchik's own sworn deposition testimony. Page 4 of 12 [* 6] Since issue was joined by the moving defendants and this motion is timely, having been brought within 120 d a y s of the noti! of issue being filed, the motion will be decided on the merits ( C P L R 5 3212; Brill v. C i t y of N e w Y o r k , 2 NY3d 648 [ 2 0 0 4 ] ; Ostrov v. Rozbruch, -- AD3d ---, 2012 Law APP licable to Motjons for Sumrnarv WL 5780 [ l g tDept.,2012]). Judqment A movant seeking summary judgment in i t s favor must make a prima facie showing of entitlement to judgment as a matter of l a w , tendering sufficient evidence to eliminate any material issues of fact from the c a s e (Winegrad v. New Y o r k U n i v . Med. Ctr., 64 N.Y.2d 851 [ 1 9 8 5 ] ) . The evidentiary proof tendered, however, must be in admissible form ( F r i e n d s of Animals v. Assoc. F u r Manufacturers, 4 6 N.Y.2d 1065 [1979]). Once met, this burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact ( A l v a r e z v. Prospect Hosp., 68 N.Y.2d 320 [1986]; Zuckerman v. C i t y of New Y o r k , 4 9 N.Y.2d 557 [1980]). Qrscussl on Labor Law § 241 (6) imposes a n o n d e l e g a b l e duty ... upon owners and contractors to provide reasonable a n d adequate protection and safety to [workers involved in "constructing or demolishing buildings or d o i n g any excavating in connection therewith"]. To recover on a cause of action alleging a Page 5 of 12 [* 7] violation of Labor Law 5 241 ( 6 ) , a plaintiff must establish the violation of an Industrial Code p>ovision which sets f o r t h specific safety standards. The rule or regulation alleged to have been breached must be a specific, positive command and b e applicable to the facts of the case [internal quotation marks and citations omitted] (Forschner v J u c c a C o . , 6 3 AD3d 996, Dept 2 0 0 9 1 ) . 9 9 8 [2d When an issue of law is raised in connection w i t h a motion for summary judgment, the court may and should resolve it without the need for a testimonial hearing. S e e : Hindes v, WeiSZ, 303 A.D.2d 459 ( 2 n d Dept 2003). The question of whether t h e plaintiff has alleged a concrete specification of t h e Industrial Code, and whether the condition alleged is within the scope of the Industrial Code regulation, usually presents a legal issue for the court to decide. 121 Meggjna v. Citv of New York, 3 0 AD2d Dept 2 0 0 2 ) . The Industrial Code 5 23-1.7 subsections relied upon by plaintiffs have all been found to be specific enough to support a section 2 4 1 (6) claim: section 23-1.7 (b) (Bell v Bengomo R e a l t y , 36 AD3d 479 [lst Dept 20071); section 23-1.7 ( d ) (Rizzuto v L . A . Wenger C o h t r a c t i n g Co., 91 NY2d 343 [1998]; Lopez v C i t y of N e w York T r a n s i t Authority, 21 AD3d 259 [ l s t Dept 2 0 0 5 1 ) ; section 23- 1.7 ( e ) ( S m i t h v McClier C o r p . , 22 AD3d 369 [lst Dept 20051); and section 2 3 - 1 . 7 (f) (Mugavero v Windows By H a r t , I n c . , Page 6 of 12 6 9 AD3d 694 [* 8] [2d Dept 20101). Thus the issue is whether, liberally construing t' evidence in the light most favorable to plaintiff (Kesselman he v. Lever House Restaurant, 29 A D 3 d 302 [ l s t Dept. 2 0 0 6 ] ) , t h e s e sections apply to the facts of this case, as alleged. Plaintiff testified at his EBT that the accident occurred as he was wheeling a core drill machine down some planks he described as being "warped" which wobbled when he walked on them. According to plaintiff, beneath the ramp was a 6-8 feet long ditch or trench. Although there is conflicting evidence as to whether there was a ditch o r trench, section 23-1.7 (b) does not apply to a ditch or trench and, therefore, cannot be used to s u p p o r t plaintiff's section 241 (6) claim in this matter ( s e e K a l e t a v N e w York S t a t e E l e c t r i c & Gas Corp., 41 AD3d 1257, 1259 [4th Dept 20071 [ d r a i n a g e ditch was not "a hazardous opening within the meaning of the regulation"]). Section 23-1.7 (d) pertains to slipping hazards caused by a "foreign substance'' that makes a surface slippery. Plaintiffs contend that the boards of the ramp themselves, in that they were warped and wobbly, were what caused him to slip. substance was involved. No foreign Therefore, section 23-1.7 (d) is inapplicable to the facts of this case as well. Section 23-1.7 (e) covers tripping hazards caused by dirt and debris. There is no allegation by plaintiffs that dirt and Page 7 of 12 [* 9] debris contributed to the cause of this accident. Consequently, Section 23-1.7 ( e ) does not apply to the f a c t 3 of this case either. However, section 23-1.7 (f), which governs vertical passages, applies to the facts of this case, as alleged by plaintiffs, because plaintiff claims the ramp "provided a means of access to different working levels" ( C o n k l i n v Triborough Bridge & Tunnel Authority, 4 9 AD3d 320, 321 [lst Dept 2 0 0 8 1 ) . Therefore, the part of High-Rise's motion which seeks summary judgment dismissing plaintiffs' Labor Law 5 241 (6) claim is granted with r e s p e c t to Industrial Code 55 23-1.7 (b), (d) and ( e ) , b u t is denied with respect to section 23-1.7 (f). Metropolitan and Gotham have asserted claims f o r common law a n d contractual indemnification, as well as for contribution. High- Rise seeks summary judgment dismissing those claims on the basis that, as plaintiff's employer, it cannot be h e l d liable for common law indemnification where plaintiff did not sustain a "grave injury." High-Rise points out that plaintiff does not a l l e g e he sustained a grave injury nor did he testify to any injuries that would qualify under the applicable statute as being "grave. If Metropolitan and Gotham do n o t oppose dismissal of their common-law indemnification and contribution claims as long as Page 8 of 12 [* 10] such dismissal is "without prejudice," leaving open the option of reasserting thgse claims in the event that plaintiff's condition may change to one which meets the criteria of Workers' Compensation Law 5 11. "Workers' Compensation Law 5 11 prohibits a third-party action for common-law indemnification or contribution against an employer except in the case where, inter alia, the employee has sustained a grave injury" ( C o c o m - T a m b r i z v S u r i t a Demolition C o n t r a c t i n g , Inc., 8 4 A D 3 d 1300, 1301 [Zd Dept 20111). The definition of "grave injury" is s e t by statute (Workers' Compensation Law 5 la), and those conditions listed, and only those conditions listed, constitute a "grave injury": death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability "The categories of grave injuries listed in section 11, providing the sole bases for a third-party action, 'are deliberately both narrowly and completely d e s c r i b e d ' ; the list, extended absent further legislative action' (Governor's Approval Page 9 of 12 [* 11] Mem at 55 [emphasis added]) ( F l e m i n g v Graham, 10 N Y 3 d 296, 300 [2008]). High-Rise s motion to dismiss the third-party claims for common-law indemnification and contribution was made on the basis that plaintiff has not suffered a grave injury and, therefore, such claims fail against High-Rise (the employer), as a matter of law. Plaintiff makes no claim that he suffered a grave injury within the meaning of he Workers Compensation Law, section 11 and, although plaintiffs have opposed High-Rise s motion on other g r o u n d s , they reiterate that the plaintiffs do n o t claim [Vovchik s] i n j u r i e s constitute a grave injury within the meaning of Workers Compensation Law § 11. Although Metropolitan and Gotham seek to discontinue their claims against High-Rise without prejudice, t h a t is not agreed to and there is no stipulation that their claims b e so marked. Were the court to mark these claims in that manner, this decision would not have a res judicata effect (see A. C o l i s h , I n c . v. Abramson, 178 A.D.2d 252 [l Dept. 19911). The purpose of a motion for summary judgment is to grant judgment where the movant has established as a matter of law their claims ( o r defenses) or where there are no triable issues of fact. What Metropolitan and Gotham propose is antithetical to what CPLR 3212 is intended to achieve: finality, without a trial. Page 10 of 12 [* 12] There is no basis to permit Metropolitan and Gotham to voluntarily withdraw withollt prejudice their common law indemnification and contribution claims. Metropolitan and Gotham cannot reserve rights they do n o t presently h a v e or could not have obtained b y litigating this matter (see e . g . , O'Brien v . City of Syracuse, 54 N Y 2 d 253 [1981]). Therefore, the court grants High-Rise's motion for summary judgment dismissing the third-party claims against it for common-law indemnification anc contribution on the merits. Thus, it is now the law of the case that plaintiff has no grave injury, since no s u c h claim is made, either directly by the plaintiff of by way of affirmative defense asserted. High-rise's motion f o r summary judgment dismissing Metropolitan and Gotham's claim against it (the employer) for 'common law indemnification or contribution is granted, on the merits (see S i n g h v. F r i e d s o n , 10 AD3d 721 [ 2 n d Dept 20041). CONCLUSION Accordingly, It is hereby ORDERED that the part of High-Rise E l e c t r i c , Inc.'s motion that seeks summary judgment dismissing plaintiffs' Labor Law 5 2 0 0 and common-law negligence claims as against Metropolitan Development Partners 11, LLC is granted; a n d it i s further ORDERED that the part of High-Rise Electric, Inc.'s motion Page 11 of 12 [* 13] which seeks summary judgment dismissing plaintiffs' Labor Law 5 241 (6) claim is ,granted with respect to Industrial Code §§ 23- 1.7 (b), ( d ) and (e), but is denied with respect to section 2 3 - 1.7 (f); and it is further O R D E R E D that the p a r t of High-Rise Electric, Inc.'s motion which seeks summary judgment dismissing the third-party claims it is further O R D E R E D that t h i s case is ready to be tried s i n c e the n o t e of issue has been filed; plaintiff Vovchik shall serve a copy of this decision/order on the Office of Trial Support so that the case may be scheduled for Trial; and it is further O R D E R E D that any relief requested but n o t specifically addressed is hereby denied; and it is further court. Dated: New Y o r k , New York J a n u a r y 20, 2 0 1 2 So Ordered: FILED NEW YORK (:OUNTY CLERK'S OFFICE Page 12 of 12

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