Clancy v Silverstein Props. , Inc

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Clancy v Silverstein Props. , Inc 2012 NY Slip Op 30884(U) March 29, 2012 Sup Ct, Nassau County Docket Number: 6958/10 Judge: Denise L. Sher 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. [* 1] SCAN SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK. PRESENT: HON. DENISE L. SHER Acting Supreme Court Justice TRIALIIAS PART 31 NASSAU COUNTY KATHLEEN CLANCY Plaintiff Index No. : 6958/10 Motion Seq. Nos. : 04 Motion Dates: 11/28/11 - against - 01/13/12 SILVERSTEIN PROPERTIES , INC. and TISHMAN REALTY & CONSTRUCTION CO. , INC. Defendants. The followin2 vavers have been read on these motions: Papers Numbered . No. 04 Affrmation and Exhibits Affirmation in O osition to Motion . No. 04 and Exhibits Reply Affirmation to Motion (Seq. No. 04) Notice of Motion (Seq. No. 05). Affirmation and Exhibits and Memorandum of Law Affirmation in Opposition to Motion (Seq. No. 05) and Exhibits Reply Affirmation to Motion (Seq. No. 05) and Exhibits Amended Notice of Motion Upon the foregoing papers , it is ordered that the motions are decided as follows: Defendants Tishman Realty & Constrction Co. , Inc. and Tishman Construction Corporation ! (collectively " Tishman ) move (Seq. No. 04), pursuant to 22 NYCRR 202. 21(e), Although Tishman Construction Corporation is not named as a defendant in the caption above by Short Form Order dated December 1 , 2010 , this Court , pursuant to CPLR g 602(a), consolidated this action (entitled Kathleen Clancy v. Silverstein Properties, Inc. and Tishman Realty Construction Co. , Inc. with the action entitled Kathleen Clancy v. Tishman Construction Corporation. The caption of this action was never amended. Nonetheless , it is clear that there are three defendants in this action: to wit , Silverstein Properties , Inc. , Tishman Realty & Construction Co. , Inc. and Tishman Construction Corporation. [* 2] for an order striking the Note of Issue in this action and directing that all outstanding discovery be completed. Plaintiff opposes the motion. 3212 , for an order Defendants Tishman further move (Seq. No. 05), pursuant to CPLR granting them summar judgment and dismissing the Verified Complaint in this action. Plaintiff opposes the motion. This action arises from an accident that occured on March 4 , 2008 , at the construction site of One World Trade Center in the County, City and State of New York. Plaintiff, a surveyor employed by non- par Garden State Engineering, Sureying and Planng of New York , P. Garden State ), alleges that she sustained injuries as a result of tripping and fallng on a raised piece of plywood at the World Trade Center Freedom Tower work site (hereinafter referred to as the " Site Defendants Tishman were the construction manager of the building at the Site. By stipulation dated August 23 , 2011 , plaintiff has discontinued her action against defendant Silverstein Properties , Inc. As best as can be determined from the papers submitted herein, the facts are as follows: On the date of the accident , plaintiff was employed as an " instruent State. See person" Defendants Tishman s Affirmation in Support (Motion Seq. No. 05) Exhibit E p. 10. She stated that her duties and responsibilities at the Site included caring instruments , field work , points. Id. by Garden climbing ladders , and setting up walking the job site and establishing traffic verse She stated that when she stared work with Garden State in December supervisor was Luigi Morsella (" Morsella stated that she would receive her work Id ), an employee of Garden State. assignments through Morsella. Id 2007 , her at pp. 18- 19. She at p. 20. Plaintiff [* 3] testified that , on the day of her accident , upon checking in with Morsella , she leared that the at p. 89. Id work she was to perform that day was to set out the survey points within the Site. Plaintiff also stated that when she first stared working at the Site , she attended weekly Id safety meetings held by Garden State. at pp. 21- 22. She stated that she wore a hardhat , a tool belt and a reflective vest at all times while on the Site. Id at pp. 24- 25. She also stated that would wear a haress or belt when necessary, including when she was working on the edge of a building. ld (Id at 25. According to plaintiff, the hardhat was provided by defendants Tishman at pp. 25- 26), the reflective vest was provided by Garden State and the tool belt belonged to her. Id at p. 26. Plaintiff testified that , in 2006 or 2007 , she took Occupational Safety and Health Administration classes that encompassed general safety at a constrction site for which she received a certificate. Id at pp. 79- 80. She also stated that , before she started wor ng at the Site she took required safety courses specific to working at the Site. These courses , she recalled , were either provided by Garden State or Id defendants Tishman. courses , she was given a card , as well as a sticker for her hardhat. at p. 80. Upon completion of said Id at 81. Plaintiff testified that Garden State primarily conducted all of their work out of a van located on the site. This is where Garden State Id s personnel and equipment were located. pp. 26- 27. She stated that Garden State would also make use of a trailer provided by the " super. This trailer was also made available for use by people other than Garden State employees. Id pp. 27- 28. Plaintiff testified that she would report to and advise Morsella as to the progress of her work during the course of the day. the Site. Id Id at pp. 28- 29. Morsella was the foreman for Garden State at at p. 82. She stated that if she thought that there was an unsafe job would speak to an assistant supervisor with defendants Tishman. Id at p. 32. condition , she [* 4] With respect to the subject accident , plaintiff testified that she tripped and fell at approximately 8:00 a. , on March 4; 2008 , at the Site. Specifically, she testified that she was walking from a " setup point" to " layout was carring, with both hands , Id ld at pp. 40- 41. At the time of her fall , she a tripod and a bucket of accident happened " below ground level sky. Id a point." tools. Id at p. 41. She stated that " an areathat she described as being the mostly open to the at p. 44. She testified that she tripped over plywood , approximately " four by six " in size. at p. 45. She stated that this was not the only piece of plywood in the area and that there were Id. others which abutted each other to form a ramp. at pp. 97- 98. Plaintiff stated that the accident happened in the Freedom Tower , below street level. She testified that there were approximately four to six levels below street level at the Site at the time of the accident (Id at p. 87), but that her accident took place approximately two to thee levels Id. below street level. With respect to the actual happening of the accident , plaintiff testified that her " toe (on her left foot) got caught on the edge of the plywood sticking up Id. " and she tripped and fell. She testified that she had not seen that piece of plywood upon which she fell before her fall. at p. 59. She stated that she had walked down this same path " several times , daily " Id accident. at p. 60. She testified that it was after her fall when she first observed that the plywood , over which she tripped , was raised. Id at p. 96. The area where she fell consisted of more than one piece of plywood , all of which were abutting each other. of plywood were placed all over a ramp that she traversed right before her fall. ramp was constructed of the plywood she fell. the ramp. on the ramp. before her (Id Id at p. 97. These pieces Id at p. 98. The at p. 99), including the piece of plywood upon which at pp. 120- 121. She testified that , at the time of the accident , she was walking down Id Id at p. 121. The piece of plywood upon which she fell was the last piece of plywood Id at p. 122. She stated that she had walked on this ramp before the date of the [* 5] Id accident. at p. 99. The plywood ramp was covered over with a layer of dirt. Id at pp. 119- 120. Plaintiff testified that there were other people in the vicinity of the accident when she fell. ld ld. the point that she had to layout. (Id Id at p. 47. Two laborers helped her up after her fall. at p. 50. She was unable to walk to Plaintiff went to the Site nurse and , at the nurse s direction at p. 103), she ultimately walked with a co-worker to New York Downtown Hospital. Id 50- 51. Plaintiff testified that , after the accident took place , she returned to the Site from the hospital and spoke regarding the accident. with Morsella , as well as with the Id supervisor at defendants Tishman at p. 56. She stated that she had also informed Morsella of Id accident before her visit to the hospital. the at p. 106. In bringing this suit , plaintiff advances three causes of action: violations of Labor Law ~ 241(6), violations of Labor Law ~ 200 and common law negligence. Her Labor Law ~ 241(6) claim is predicated upon alleged violations of New York State Industrial Code provisions 12 NYCRR ~~ 23- 1.7 , 23- 1.7(b), 23- 1.7(b)(1); 23- 1.7(d); 23- 1.7(e), 23- 1.7(e)(I), 23- 1.7(e)(2), 231. 7(f), and 23- Upon Motion Sequence No. OS , defendants Tishman seek sumar judgment and dismissal of plaintiffs Verified Complaint in its entirety. To grant sumar judgment , the cour must find that there are no material , triable issues of fact , that the movant has established his or her cause of action or defense sufficiently to warrant the cour , as a matter of law , directing judgment in his or her favor , and that the proof tendered is in admissible form. See Menekou v. Crean 222 A.D. 2d 418 , 634 N. S.2d 532 (2d Dept. 1995). If the movant tenders suffcient admissible evidence to show that there are no [* 6] material issues of fact , the burden then shifts to the opponent Id. establishing a material issue of fact. to produce admissible proof at 420. Labor Law 9 200 and Common Law Negligence Labor Law ~ 200 is a codification common law duty of an owner or general of the See Comes contractor to provide and maintain a safe construction site. v. New York State Elec. & 2d 168 (1993). That is , Labor Law ~ 200 claims fall into Gas Corp. 82 N. Y.2d 876 , 609 N. two broad categories: those involving injuries arising from allegedly defective or dangerous premises conditions and those involving injuries arising from the maner in which the work is performed. Rodriguez 57 A. 3d 121 , 867 N. Y.S.2d 123 (2d Dept. 2008); Puccia 57 AD.3d 54 , 866 N. Y.S.2d 323 (2d Dept. 2008). It is evident that plaintiffs v. Ortega v. See Chowdhury . claims in this action sticking up - fall i. e. a trip and fall accident over a piece of plywood that was allegedly under the former class of cases. Thus , to prevail on such a claim , plaintiff must show that defendants Tishman either created the dangerous constructive notice of the condition. 78 AD. 3d 144 v. See Ortega condition or had actual or Puccia , supra; Slikas v. Cyclone Realty, LLC 908 N. Y.S.2d 117 (2d Dept. 2010). Although a construction manager , such as defendants Tishman , is generally not considered a contractor responsible for the safety of the workers at a construction site pursuant to Labor Law ~~ 200 and 241(6) (Rodriguez v. Y.S.2d 40 (2d Dept. 2011)), where , as in this case authority and duties of a general contractor premises Picciano (Walls v. Turner Constr. Co. JMB Architecture , LLC 82 AD. 3d 4 N. 949 , 919 , it has effectively been delegated the , or if it fuctions as an agent of the owner of the 3d 861 , 798 N. Y.S.2d 351 (2005); Russin v. Louis Son 54 N. Y.2d 311 , 445 N. Y.S.2d 127 (1981)), it may nonetheless become responsible under Labor Law ~ 200 and/or ~ 241(6). [* 7] Here , based upon the papers presented for the Cour' s consideration , the Cour finds that the evidence establishes that defendants Tishman were indeed charged with the authority of a general contractor or owner. Specifically, the testimony of Anthony Fedor ("Fedor ), defendants Tishman s Senior Safety Manager at the Site at the time of plaintiffs accident , confirms that he oversaw the safety of workers at the Site and walked said Site every day. Defendants See Tishman s Affirmation in Support (Motion Seq. No. 05) Exhibit F pp. 7- , 10 , 65. Furher , Fedor confirmed that , to his knowledge , there were no general defendants Tishman were the sole construction contractors for this project and that at pp. 10- 12. Id. manager on the job. Furher Fedor testified that, as a Site Safety Manager , defendants Tishman indeed had the authority on the job to " stop work" if either of them observed a dangerous condition. at pp. 20- 21. Id Although overall responsibility for th safety of the work done by workers , a duty to supervise and enforce general safety stadards at the work site , and the right to stop work if a safety violation is noted , may be insufficient to charge the defendant with that degree of control required to find liability under common law negligence or Labor Law Diamonds, LLC, 24 AD. 3d 138 , 805 N. Y.S. 2d 58 (18t Dept. 2005); Co., Inc. 28 A. D.3d 225 , 813 N. Y.S. 2d 373 (18t Dept. 2006) ~ 200 (Singh v. Sullvan affrmed 7 N. Black v. IDI Constr. 3d 805 , 822 Y.S.2d 745 (2006)), where , as in this case , the evidence is undisputed and clear that there was no general contractor at the Site and that defendants Tishman were the sole construction manager at the Site that day, this Cour finds that defendants Tishman indeed fall under the ambit of Labor Law ~~ 200 and 241(6). of New York 74 AD. 3d 1260 , 905 N. See Walls v. Turner Constr. Co. , supra; Aragona v. State 2d 237 (2d Dept. 2010). Thus , on their instant motion for summar judgment and dismissal of plaintiffs Labor Law ~ 200 claims , defendants Tishman bear the burden of establishing that they neither created the defective or dangerous condition which allegedly injured plaintiff, nor did they have actual [* 8] or constructive notice of same. v. See Ortega Puccio , supra; Slikas v. Cyclone Realty, LLC supra. In that regard , by submitting and relying upon inter alia plaintiff s testimony and the expert affdavit of John P. Coniglio , the curent Executive Occupational Safety & Environmental Assoc. , Inc. (see Vice President of Operations of Defendants Tishman s Affirmation in Support (Motion Seq. No. 05) Exhibit H), this Cour finds that defendants Tishman prima facie established their have entitlement to judgment as a matter of law. There is no evidence on this record that defendants Tishman caused or placed the pieces of plywood in the ramp position that they did so to create a " lip " over which the plaintiff or any other individual could fall or that See Knight they actually or otherwise intended to create a tripping hazard. AD. 2d 658 N. Y.S.2d 391 v. Certifed Oils , 239 337 (2d Dept. 1997). Further , defendants Tishman have established that the alleged defective condition over which plaintiff fell was not " visible (or) apparent (or that it) exist(ed) for a sufficient length of time prior to the accident" such that they could have discovered or remedied it. American Museum of Natural History, See Gordon 67 N. Y.2d 836 , 501 N. Y.S. 2d 646 (1986). Indeed plaintiff s own testimony establishes that she walked down the pathway several times daily and never saw the piece of plywood sticking up. In light of defendants Tishman s showing of entitlement to judgment as a matter of law the burden shifts to plaintiff, as the pary opposing the motion , to produce evidentiar proof in admissible form sufficient to establish the existence of material issues of fact requiring a trial. See Alvarez v. Prospect Hospital 68 N. Y.2d 320 508 N. Y.S.2d 923 (1986). In opposition , counsel for plaintiff baldly and conclusively states that " Tishman failed to submit any evidence in any form as to when the subject ramp, or accident piece of plywood that was a component of the ramp, was last inspected" and that " Tishman fails to offer any evidence [* 9] regarding any paricularized or specific inspection of the plywood ramp in the area of Clancy fall on or before the date of Clancy s accident." See Plaintiffs Affirmation in Opposition 73. Not only are these assertions unsubstantiated by the record , but the (Motion Seq. No. 05) Court notes that plaintiff has failed entirely to oppose defendants Tishman s motion for summar judgment with respect to plaintiff's Labor Law ~ 200 and common law negligence claims with See Zuckerman any evidentiary proof in admissible form. v. City of New York, 49 N. Y.2d 557 427 N. Y.S. 2d 595 (1980). Specifically, Anthony Fedor , the Director of Safety for defendants Tishman , testified at his deposition that he would walk the job site on a daily basis and that if a condition was discovered , he would note it in his site safety manager s log. See Defendants Tishman Affrmation in Support (Mo tion Seq. No. 05) Exhibit F pp. 65- 66. Further , the record contains evidence of defendants Tishman s daily reports which show that the area where the alleged incident occured was cleaned one day before the incident and also on the day of the incident. See Defendants Tishman s Reply Affirmation (Motion Seq. No. 05) Exhibit A. In light of plaintiffs failure to present a triable issue of fact , motion for summar judgment and dismissal of plaintiff s Labor Law defendants Tishman 200 and common law negligence claims is hereby GRANTED. Said claims are herewith dismissed. Labor Law 9 241 (6) Labor Law ~ 241 (6) imposes a non- delegable duty upon owners and general contractors to provide reasonable and adequate protection and safety for their workers. Picciano Son , supra. See Russin In order for a defendant to be liable under Labor Law ~ v. Louis 241(6), a plaintiff must establish that the defendant violated a specific Industrial Code provision that is applicable to the circumstances of the accident and demonstrate that his or her injuries were proximately cause,d by a violation of an Industrial Code regulation that is applicable to the [* 10] See Ross circumstances of the accident. Zimmer Y.S.2d 49 (1993); v. Curtis-Palmer Hydro Elec. Co. 81 N. Y.2d v. Chemung County Performing Arts 65 N. 102 (1985). In order to impose liability 2d 513 , 241(6), the under Labor Law regulation at issue must contain " concrete specifications " " or " suitable " canot be used as a Hydro Electric Co. , supra 493 N. S.2d Industrial Code and those that establish general safety v. See Ross basis for a ~ 241 (6) claim. proper effective standards through the use of general descriptive terms , such as " adequate safe 494 601 Curtis-Palmer at 504- 505. In support of their claim that plaintiff did not sustain an injur as a result of defendants Tishman s alleged breach of its non- delegable duty to provide reasonable and adequate v. (Russin protection and safety under Labor Law ~ 241(6) Son , supra), Louis N Picciano defendants Tishman submit the expert affidavit of John P. Coniglio , a afety and workplace professional and the curent Executive Vice President of Operations of Occupational Safety & Environmenta Assoc. , Inc. , a company engineering, workplace safety evaluation , training. See that specializes in among other technical analysis , on-site safety things , safety management and Defendants Tishman s Affrmation in Support (Motion Seq. No. 05) Exhibit H. Although expert testimony on the question of whether a certain condition or omission constitutes 900 (1995); Y.2d 803 , Row: v. Caiola 254 A. D.2d 182 , Green 84 N. Y.2d 679 N. 795 , 622 N. Y.S.2d 2d 53 (1st Dept. 1998) v. (Dufel a violation of a statute or regulation is permitted Iv denied 93 689 N. Y.S.2d 16 (1999)), the determination as to applicability and meaning of the law , including whether a particular condition or omission was in violation of a regulation , is the province of the cour. 3d 936 , v. See Spence 914 N. Y.S.2d 203 (2d Dept. 2010); Penta Y.S.2d 140 (2d Dept. 2001). 10- statute or Island Estates at Mt. Sinai IL LLC, 79 v. Related Cas. 286 AD. 2d 674 , 730 [* 11] Notably, in opposition to defendants Tishman s motion for summar judgment , plaintiff argues that only 12 NYCRR ~~23- 1.7(e)(1) and (e)(2) constitute a predicate for her Labor Law ~ 241(6) claim. Indeed , counsel for plaintiff " concedes (in his Affirmation in Opposition) NYCRR Sections 23- 1.7 , 1.7(b), 1.7(d), 1.7(f), 2. that 12 , 2.1(2), 1.7(b)(I), 1.3 , and 2.1(a), previously pled by CLANCY as the predicate to her Labor Law Section 214(6) (sic) claim , do not apply to the facts at bar. See Plaintiffs Affirmation in Opposition (Motion Seq. No. 05) With respect to plaintiffs provisions 12 NYCRR ~g contention that defendants 23- 1.7(e)(I) 83. Tishman violated Industrial Code and 23- 1.7(e)(2), the Cour finds that there remain questions of fact that canot be determined at this junctue. Specifically, Industrial Code 12 NYCRR ~~ 23- 1.7(e) refers to " tripping and other hazards " where subsection (1) specifically deals with . Passageways " and subsection (2) deals with " Working areas. " 12 NYCRR ~~ 23- (e)(1) and (2) read as follows: (e) Tripping and other hazards. (1 )Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered. (2)Working areas. The pars of floors , platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from shar projections insofar as consistent with the work being performed. 11- may be [* 12] As to ~ 23- 1.7(e)(1), while the Court is persuaded that the plywood ramp that plaintiff was traversing at the time of the subject accident was a "passageway" inasmuch as it was a part of New York, supra; Bopp Rizzo Elec. Contrs. , v. v. (Aragona of a designated walkway on the job site leading to an area where she worked Inc. State 19 AD.3d 348 , 796 N. Y.S.2d 153 (2d Dept. 2005), there remains an issue of fact as to whether the " sticking up " piece of plywood was " an obstruction(J or condition() which could cause tripping. Realty Associates 268 AD. 2d 293 A. D.2d 514 , 740 N. 365 , 702 N. Y.S.2d 263 (1 v. See Bongiovanni st Dept. 2000); Kerins v. KMO- 361 Vassar Coli. 2d 400 (2d Dept. 2002). Neither defendants Tishman, nor their expert , address the issue of whether the " sticking up " piece of plywood constituted a tripping hazard within the meaning of 12 NYCRR 1.7(e)(I). Instead , counsel for defendants Tishman argues that ~ 23- 1.7(e)(1) is inapplicable because plai tiff was injured in an open area of a construction and not a passageway. This is factually unfounded. Similarly, ~ 23- 1.7(e)(2), which requires owners and general contractors to keep " (t)he parts of floors , platforms and similar areas where persons work ... free from accumulations dirt and debris ... insofar as may be consistent with the work being performed " issues of fact as to cQnstituted a tripping hazard. whether the raised plywood which allegedly See O' Sullvan City Hous. Auth. 71 AD.3d 985 , 897 N. v. IDI Constr. Co. , also presents caused plaintiffs Inc. , supra; Smith of v. injuries New York S.2d 232 (2d Dept. 2010). Accordingly, defendants Tishman s motion for summar judgment and dismissal of plaintiffs Labor Law ~ 241(6) claim is hereby DENIED. Defendants Tishman s motion (Seq. No. 04) for an order striking the Note ofIssue in this DENIED. action on the basis that discovery has not been completed is also hereby The Note ofIssue may be vacated pursuant to New York Court Rules ~ 202.21 (e) if the following circumstances are present: 12- [* 13] Within 20 days after service of a note of issue and certificate of readiness , any pary to the action or special proceeding may move to vacate the note of issue , upon affdavit showing in what respects the case is not ready for trial , and the court may vacate the note of issue if it appears that a material fact in the certificate of readiness is incorrect , or that the certificate of readiness fails to comply with the requirements of this no such motion shall be section in any material respect. *** After such period allowed except for good cause shown. At any time , the cour on its own motion may vacate a note of issue if it appears that a material fact in the certificate of readiness is incorrect , or that the certificate of readiness fails to comply with the requirements of this section in some material respect. * * * That is , a timely motion to vacate the Note of Issue pursuant to 22 NYCRR ~ 202.21(e) See Mosley v. Flavius need only demonstrate in what respects the case is not ready for trial. AD. 3d 346 , 785 N. Y.S. 2d 742 (2d Dept. 2004); 707 N. Y.S.2d Audiovox Corp. 137 (2d Dept. 2000). However , v. Benyamini 265 AD.2d 135 if the pary seeking discovery moves to compel such discovery after the twenty (20) day period provided by 22 NYCRR 202. 21(e) has expired the more stringent standard under 22 NYCRR 202.21(d) requiring the movant to demonstrate unusual or unanticipated circumstances and substantial prejudice must be met. In this case , plaintiff fied the Note of Issue and Certificate of Readiness on October 18 2011. Defendants Tishman s instant motion (Seq. No. 04) to strike the Note ofIssue was fied on November 15 , 2011. No Affidavit of Service has been provided to the Court as to when the Note of Issue and Certificate of Readiness were served upon defendants Tishman. Having said that plaintiff also fails to oppose defendants Tishman grounds that the motion is made outside the " 20 for the puroses of this Cour' s s motion to days " strike the Note of Issue on the limit set forth in the statute. Accordingly, determination , this Cour herewith interprets defendants Tishman s motion as having been timely made. Therefore , the provision which controls here is 22 NYCRR ~ 202. 21 (e) which requires defendants Tishman s mere showing that the case is not trial ready. The claim of lack of trial readiness in this case , however , is premised upon defendants Tishman s claim that it has not 13- [* 14] received authorizations for plaintiffs medical providers , including plaintiffs pnmary care physician (with whom plaintiff has been treating for ten years and underwent arhroscopic shoulder surgery in Januar 2007), as well as records pertaining to plaintiffs car accident in which she sustained a laceration to her left wrist. Additionally, defendants Tishman claim that since plaintiff is advancing a claim for loss of wages in this action , they are entitled to plaintiff s 2 records and wage records from 2005 to present. Since plaintiff has indeed provided the requested authorizations in response to defendants Tishman s instant motion and since defendants Tishman have also been provided with the W- and an Affdavit of plaintiff that she did not work from 2009 til date , defendaits Tishman claim of lack of trial readiness is unfounded. Accordingly defendants Tishman s motion (Seq. No. 04) to strike the Note of Issue pur Cf Amoroso City of New York 66 A. The paries ' DENIED. uant to ~ 202.21(e) is hereby 3d 618 , 887 N. Y.S.2d 163 (2d Dept. 2009). remaining contentions have been considered and do not warant discussion. In conclusion , defendants Tishman s motion (Seq. No. 04), pursuant to 22 NYCRR 202.21(e), for an order striking the Note ofIssue in this action and directing that all outstanding DENIED. discovery be completed is hereby Furhermore , defendants Tishman with respect to defendants Tishman s other motion (Seq. No. 05), s motion for sumar judgment and dismissal of plaintiffs Labor Law 200 and common law dismissed. However , defendants Tishman plaintiffs Labor Law ~ 241(6) claim is hereby Said claims are herewith GRANTED. negligence claims is hereby s motion for summary judgment and DENIED. DENIED. All applications not specifically address are hereby 14- ~ dismissal of [* 15] All parties shall appear for Trial in Nassau County Supreme Cour , Differentiated Case Management Part (DCM) at 100 Supreme Cour Drive , Mineola, New York , on April 12 , 2012 at 9:30 a. This shall constitute the Decision and Order of this Court. DENISE L. SHER, A. Dated: Mineola, New York March 29 2012 ENTER APR 02 2012 NASSAU tauN COUNTY Clllt" OFFICE 15-

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