Bradley v HWA 1290 III LLC

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Bradley v HWA 1290 III LLC 2017 NY Slip Op 30596(U) February 28, 2017 Supreme Court, New York County Docket Number: 157576/2012 Judge: Lucy Billings Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 03/29/2017 11:22 AM 1] INDEX NO. 157576/2012 NYSCEF DOC. NO. 149 RECEIVED NYSCEF: 03/29/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW.YORK: PART 46 ------------~~------------------------x MARIE BRADLEY, as Administratrix for · the Estate of EDWARD BRADLEY. (Deceased),· and MARIE BRADLEY, Individually, Index No. ~57576/2012 Plaintiffs DECISION AND ORDER - against HWA 1290 III·LLC, HWA 1290 IV LLC, HWA 1290 V LLC, and UNITED ELEVATOR CONSULTANTS SERVICE,. INC., Defendants -------------------------------~------x LUCY BILLINGS, J.S.C~: I. BACKGROUND Plaintiffs sue defendants, clp.iming their negligence and violations of New York Labor Law§§ 200 and 241(6) I to recover damages for deceased Edward Bradley's personal injury and wrongful death and his widow plaintiff Marie Bradley's _lost services sustained March 28, 2012. On that date the d~cedent, an employee of nonparty Schindler Elevator Corporation, was working in an elevator machine room at 1290 Avenue of the Americas, New York County, premises owned by defendants HWA 1290 III LLC, HWA 1290 IV LLC, and HWA 1290 V LLC, which contracted with defendant United Elevator Consultants Service, Inc., to modernize the· premises' elevator system. The decedent, an elevator mechanic, was found dead from electrocution in the elevator machine room, l also referred to as the motor room~ in front of an open electrical cabinet, which housed an elevator control panel. bradley.180 1 2 of 17 ~. [*FILED: NEW YORK COUNTY CLERK 03/29/2017 11:22 AM 2] I NYSCEF DOC. NO. 149 INDEX NO. 157576/2012 RECEIVED NYSCEF: 03/29/2017 I Defendants move for summary judgment dismissing the complaint. C.P.L.R. § 3212(b). For tli.e reasons explained below, the court grants defendants' motion in part. II. A. C.P.L.R. § 3212(b) and (e). APPLICABLE STANDARDS SUMMARY JUDGMENT To obtain summary judgment, defendants must make a prima, facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact. C.P.L.R. § 3212(b); Friends of Thayer Lake LLC v. Brown, 27 N.Y.3d 1039, 1043 (2016); Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 26 N.Y.3d 40, 49 (2015); Voss v. Netherlands Iris. Co., 22 N.Y.3d 728, 734 Restani Constr. Corp., 18 N.Y.3d 499, 503 (2014); Vega v. (2012). Only if defendants satisfy this standard, does the burden shift to plaintiffs to rebut that prima facie showing, by producing evidence, in admissible form, sufficient to require a trial of material factua-1 issues. De Lourdes Torres v. Jones, 26 N. Y. 3d 742, 763 (2016); Nomura Asset Capital Corp. v. Cadwalader Wickersham & Taft LLP, 26 N.Y.3d at 49; Morales v. D & A Food. Serv., 10 N.Y.3d 911, 913 -_ (2008); Hyman v. Queens County Bancorp, Inc., 3 N.Y.3d 743, 744 (2004). In evaluating ,the evidence for purposes of defendants' motion, the court construes the .evidence in the light most favorable to plaintiffs. De Lourdes .Torres v. Jones, 26 N.!.3d at 763; Vega v. RestanL-Constr. Corp., 18 N.Y.3d at 503; Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 37 (2004) . bradley.180 If defendants fail to meet their initial burden, the 2 3 of 17 [*FILED: NEW YORK COUNTY CLERK 03/29/2017 11:22 AM 3] NYSCEF DOC. NO. 149 INDEX NO. 157576/2012 RECEIVED NYSCEF: 03/29/2017 court must deny them summary judgment despite any insufficiency in plaintiffs' opposition.· ·Voss v .. Netherlands Ins. Co., 22 N.Y.3d at 734; Vega v. Restani Constr. Corp., 18 N.Y.3d at 503; Smalls v. AJI Indus., Inc., 10 N.Y.3d 733, 735 (2008); JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y.3d 373, 384 (2005). B. PLAINTIFFS' RELAXED BURDEN OF PROOF IN AN ACTION FOR · WRONGFUL DEATH Plaintiffs maintain that the death of Edward Bradley, preventing him from describing the occurrence, entitles them to a relaxed burden of proof:. Wingerter v. State of New York, 58 N.Y.2d 848, 850 (1983); Noseworthy v. City of New York, 298 N.Y. ' 76, 80 (1948); Melendez v. Parkchester Me~. Servs., P.C., 76 A.D.3d 927, 928 (1st Dep't 2010); Black v. Loomis, 236 A.D.2d 338, 338 (1st :Dep't 1997). See Williams v. Hooper, 82 :A.D.3d ! 448, 449 (1st Dep't 2011); Lynn v. Lynn, 216 A~D.2d 19~, 194 (1st Dep't 1995). · Apf>lication of this doctrine requires plaintiffs to show facts from which defendants' negligence may be inferred, Rugova v. Davis, 112 A;D.3d 404, 405 (1st Dep't 2013); .Melendez v. Parkchester Med. Servs., P.C. 1 76 A.D.3d at 928; Black v. Loomis, 236 A.D.2d at 338, which at this stage plaintifis have failed to show. Therefore they are not entitled to the lesser burden of proof in the evaluation of their evidence. rebutting. defendants' motion. Rugova v. Davis, 112 A.D.3d at 405; Melendez v. Parkchester Med. Servs., P.C., 76 A.D.3d at 928; Lynn v. Lynn, 216 · A. D . 2 d at 19 6 ; Ban tos v . City of New York, 13 5 A. D . 2 d 4 2 6 , 431 (1st Dep't 1987). The doctrine is also inapplicable at this stage because the undisputed evidence in the current record shows bradley.180 .3 4 of 17 [*FILED: NEW YORK COUNTY CLERK 03/29/2017 11:22 AM 4] NYSCEF DOC. NO. 149 INDEX NO. 157576/2012 RECEIVED NYSCEF: 03/29/2017 that defendants' knowledge of the cause of Edward Bradley's unwitne.ssed death is no greater than plaintiffs' knowledge of the occurrertce. Walsh v. Murphy, 267.A.D.2d 172, 172 (1st Dep't 1999); Lynn v. Lynn, 216 A.D.2d at 195. III. A. DEFENDANTS~ MOTION FOR SUMMARY JUDGMENT VIOLATION LABOR LAW § 241 (6) Labor Law § 241(6) applies to a worker engaged irt construction, demolition, or excavation. See Esposito v. New York City Indus. Dev. Agency, 1 N.Y.3d 526; 528 (2003); Nagel v. D & R Realty· Corp., 99 N.Y.2d 98, 103 (2002); Garcia v. 225 E. 57th St. Owners; Inc., 96 A.D.3d 88, 91 (1st Dep't 2012); Mata v. Park Here G~rage Corp., 71 A.D.3d 423, 424 (1st Dep't 2010) Concomitantly, 12 N.Y.C.R.R. §.23-1.13(b) (iii), requiring warnings about electrical hazards, and § 23-1.30, requiring adequate lighting, that plaintiffs claim defendants violated to support their violation of Labor Law §.241(6), ·like all the provisions of 12 N.y:c.R.R. Part 23, protect construction, demolition, and excavation workers. Nostrom v. A.W. Chesterton Co., 15 N.Y.3d 502, 507 (2010); Peluso v. 69 Tiemann Owners Corp., 301 A.D.2d 360, 361 (1st Dep't 2003) Construction work is defined as all: work of the types performed in construction, erection, alteration, repair, maintenance, painting or moving. of buildings or other structures, whether or not such work is performed in proximate relation to a specific building or other structure, and includes, by way of illustration and not by way of limitation, th~ work of hoisting, land clearing, earth moving, grading, excavatirtg, treµching, pipe and cond~it laying, road and bridge construction, ~ concreting, cleaning of the exterior surfaces including windows of any _building or other structure under · bradley.180 4 5 of 17 [*FILED: NEW YORK COUNTY CLERK 03/29/2017 11:22 AM 5] INDEX NO. 157576/2012 NYSCEF DOC. NO. 149 RECEIVED NYSCEF: 03/29/2017 construction, equipment installation and the structural installation of wood, metal, glass, plastic, masonry and_ other building materials in any form or for any purpose.'12 N.Y.C.R.R. § 23-l.4(b) (13); Nagel v. D & R Realty Corp., 99 N.Y.2d at 102-103. (1998). See Jablon v. Solow, 91 N.Y.2d 457,: 466 The work specified in this regulation, however, still must be carried out in the context of construction, demolition, or excavation to fall under Labor Law§ 241(6). Esposito v. New York City Indus. Dev. Agency, 1 N.Y.3d at 528; Nagel v.- D & R Realty Corp., 99 N.Y.2d at 103; Bautista v. 165 W. End Ave. Assoc., L.P., 137 A.D.3d 714, _715 (1st Dep't 2016); Cab~n v. Maria Estela Houses I Assoc., L.P., 63 A.D.3d 639, 640 (1st Dep'~ 2009). Although elevator modernization may be considered construction work to which Labor Law § 241 ( 6) applies, ,see, g_,_g_,_, Franco v. Jay Cee of N.Y. Corp., 36 A.D.3d 445, 446 (1st Dep't 2607); Nevins v. Essex Owners Corp., 276 A.D.2d 315, 317 (1st Dep't 2000), defendants present evidence establishing Ghat.the decedent was not engaged in the modernization project. John Soutar, a supervisor for Schindler Elevator, the decedent's \ - - . employer, attests that the decedent was the resident elevator mechanic for 1290 Avenue of the Americas, where he was ,assigned to perform preventive maintenance, troubleshoot malfunctions, and undertake minor repairs. Building and security personnel advised the decedent of elevator malfunctions, which he handled as he saw fit. Schindler Elevator's modernization department was completely separate from its maintenance and repair department. . - bradley.180 5 6 of 17 [*FILED: NEW YORK COUNTY CLERK 03/29/2017 11:22 AM 6] INDEX NO. 157576/2012 NYSCEF DOC. NO. 149 RECEIVED NYSCEF: 03/29/2017 The decedent bore no responsibilities for the modernization work. Juan Melendez, a Schindler Elevator employee who worked as the decedent's helper, testified at his deposition that the decedent'.s job was to maintain and provide service to elevators. Melendez's testimony that he was removed. as the decedent's helper and reassign~d to the modernization project further illusttat~s that the decedent ,·s work was unrelated to the modernization project. This evidence is corroborated by the deposition testimony of Philip Garcia, the president of United Elevator Cons·ultants, that an elevator mechanic's job was to maintain elevators, which included cleaning, greasing, and lubricating them; troubleshooting, which Garcia defiJJ.ed as fixing shutdowns; and making repairs and adjustments, which included work in the machine room. Through this combined evidence, defendants have met their initial burden of demonstrating that the work was unrelated to the modernization project. dec~dent's· Barnes v. City of New York, 77 A.D.3d 481.1 481 (1st Dep't 2010). See Bayo v. 626 Sutter Ave. Assoc., LLC, 106 A.D.3d 648, 649 (1st Dep't 2013) . If Edward Bradley was engaged in routine maintenance of elevators, Labor Law § 241(6) does not apply to his work, Moscoso v. Overlook Towers Corp., 121 A.D.3d 438, 438 (1st Dep't 2014). See Agli v. Turner Constr. Co., 246 A.D.2d 16, ;24 (1st Dep't 1998). Although the evidence indicatep an elevator brake fault tnat shut down an elevator in defendants' bradley.180 6 7 of 17 buildi~g Maren [*FILED: NEW YORK COUNTY CLERK 03/29/2017 11:22 AM 7] NYSCEF DOC. NO. 149 INDEX NO. 157576/2012 RECEIVED NYSCEF: 03/29/2017 28, 2012, before Edward Bradley was found dead, no admissible evidence. establishes that he was called to investigate ,or repair that malfunction or that he even was informed of it. Assuming nonetheless that the decedent's work with the elevator .control panel was not routine, but constituted repair of a malfunction within the definition of construction work to which Labor Law § v. 241(6) would apply, see Esposito New York City Indus. Dev. Agency, 1 N.Y.3d at 528; Bautista v. 165 W. End Ave. Assoc., Assoc~, L.P., 137 A.D.3d at 715; Caban v. Maria Estela Houses I L.P., 63 A.D.3d at 640; Cohen v. Columbia Univ. in City of N.Y., 44 A.D.3d 533, 533 (1st Dep't 2007), his repair work was not connected with the modernization project ahd thus was not in the context of that project's construction, demolition, or excavation . . Nagel v. D & R Realty Corp., 99 N.Y.2d at 101~102; Morales v. Avalon Bay Communities, Inc., 140 A.D.3d 533, 534 (1st Dep't 2016); Bautista v. 165 W. End Ave. Assoc., L.P., 137 A.D.3d at 715; Martinez v. Bauer, 1 121 A.D.3d 495, 496 (1st De:8't 2014). See Desimone v. City of New York, 121 A.D.3d 420, 421 (1st Dep't 2014) . Although plaintiffs rely on the decedent's log book to demonstrate his work on the modernization project, the entries indicate only that the decedent was occasionally in the presence of United Elevator Consultants and Schindler Elevator employees I • from the modernization project, not that he worked on it, and thus fail to raise a factual issue that he was engaged in such work. See Bayo v. 626 Sutter Ave. Assoc., LLC, 106 A.D.3d at. bradley.180 7 8 of 17 [*FILED: NEW YORK COUNTY CLERK 03/29/2017 11:22 AM 8] NYSCEF DOC. NO. 149 649. INDEX NO. 157576/2012 RECEIVED NYSCEF: 03/29/2017 Nor does any evidence indicate that he otherwise was engaged in construction, demolition, or excavation. Butler v. Quest Prop. Mgt. V. Corp., 95 A~'D.3d 678, 679 (1st Dep't 2012); Coyago v. Mapa Props., Inc., 73 A.D.3d 664, 664-65 (1st Dep't 2010·) . B. VIOLATION OF LABOR LAW § 200 AND NEGLIGENCE Labor Law § 200 codifies the duty of owners and general contractors of a construction site and their agents to maintain site safety. Rizzuto v. L.A. Wegner Contr. Co., 91 N.1.3d 343, 352 (1998); Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877-78 (1993). Unlike Labor Law§ 241(6), Labor Law § 200 does not require the decedent to have been engaged in construction. Mejia v. Levenbaum, 30 A.D.3d 262, 263 2006); Agli v. Turner Constr. Co., 246 A.D.2d at 24. dange~ous (1st,De~'t If a condition arising from a contractor's work caused the decedent's injury and death, defendant owners and their general contractor or agent may be liable for negligently allowing that condition and violating Labor Law § 200, if they superv:ised or exercised control over the activity that caused his injury. Rizzuto v. L.A. Wegner Contr. Co., 91 N.Y.2d at 352; Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d at 877; Maggio v. 24 W. 57 APF, LLC, 134 A.D.3d 621, 626 (1st Dep't 2015); Cappabianca v. Skanska USA Bldg. Inc.,- 99 A.D.3d 139, 144 (1st Dep't 2012). See Ocampo v .. Bovis Lend Lease LMB, Inc., 123 A.D.3d 456, 457 (1st Dep't 2014); Francis v. Plaza Constr. Corp., 121 A.D.3d 427, 428 (1st Dep't 2014) bradley. 18.0 If a dangerous condition on the work site 8 9 of 17 [*FILED: NEW YORK COUNTY CLERK 03/29/2017 11:22 AM 9] INDEX NO. 157576/2012 NYSCEF DOC. NO. 149 RECEIVED NYSCEF: 03/29/2017 caused the injury, liability depends on defendants' creation or actual or constructive notice 6f the condition. Maggio v. 24.W. 57 APF, LLC, 134 A.D.3d at 626; Cappabianca v. Skanska USA Bldg. Inc., 99 A.D.3d at 144. The parties agree that the decedent's right bicep, the r~ght side of his torso, and his chest were in contact with a transformer in the electrical cabinet and were burned from electrocution. Plaintiffs allege that the absence of a cover around the transformers in the electrical cabinet where the decedent was working, the inadequate lighting. in the machine room, and the reassignment of the decedent's helper created dangerous working conditions known to defendants. Defendants. fail to demonstrate that the uncovered transformers and the lighting did not create dangerous conditions readily observable to defendants. 1. The Uncovered Transformers in the Electrical Cabinet Douglas Smith, an inspector for the New York City Department of Citywide Administrative Services, who investigated the death, conducted testing with Schindler Elevator that detected no loose wires, no voltages that were stray, high, or otherwise .out of control, nor anything out of the ordinary in the electrical cabinet. While Smith in his deposition testimony concluded that the electrical cabinet lacked any defect in design, was safe for mechanics to perform troubleshooting inside it, and served.as the ~qver for the transformers, he was not qualified as an)expert~ Mahai-Sharpe v. Riverbay Corp., 126 A.D.3d 573, 573 (1st Dep't bradley.180 9 10 of 17 [*FILED: NEW YORK COUNTY CLERK 03/29/2017 11:22 AM 10] NYSCEF DOC. NO. 149 INDEX NO. 157576/2012 RECEIVED NYSCEF: 03/29/2017 2015); Schechter v. 3320 Holding LLC, 64 A.D.3d 446, 4.51 (1st Dep't 2009). Even were Smith qualified as an expert, he failed to demonstrate how the el·ectrical cabinet complied with accepted industry standards and practices, to establish that it was in a safe condition. Leone v. BJ's Wholesale Club, Inc., 89 A.D.3d 406, 407 (1st Dep't 2011); Boyle v. City of New York, 79 A.D.3d 664, 665 (1st Dep't 2010); McGuire v. 3901 Independence Owners, Inc., 74 A.D.3d 434, 435 (1st Dep't 2010). Jon Halpern, defendants' expert engineer, attests that the electrical cabinet complied with a manufacturing standard and was safe for a mechanic to troubleshoot inside the cabinet. These conclusions, however, rely on hearsay evidence that the New York City Department of Buildings found no design defects in the electrical cabinet when it was installed and that the investigator did not issue any notices of code violations relating to the cablnet after Edward Bradley's death. v. 1254 Sherman Ave. Corp., 94 A.D.3d 590, · 592 ,San Andres (1st Dep't 2012); Goldin v. Riverbay Corp., 67 A.D.3d 489, 490 (1st Dep't 2009). Since the assumption that the decedent was troubleshooting when he died is u~supported, the conclusion that the cabinet was safe for troubleshooting lacks relevance. Feliciano v. St. Vincent De Paul Residence, 139 A.D.3d 463, 464 (1st Dep't 2016); Barone v. Della Russo Laser Vision Med. Care, PLLC, 139 A.D.3d 418, 419. (1st Dep't 2016); Wallace v. City of New York, 138 A.D .. 3d 509, 510 (1st Dep't 2016); Stroiek v. 33 E. 70th St. Corp., 128 A.D.3d 490, 491 (1st Dep't 20i5). bradley.180 10 11 of 17 [*FILED: NEW YORK COUNTY CLERK 03/29/2017 11:22 AM 11] NYSCEF DOC. NO. 149 INDEX NO. 157576/2012 RECEIVED NYSCEF: 03/29/2017 In sum, defendants maintain that the electrical cabinet itself guarded against persons coming in physical contact with the transformers within the cabinet. While the cabinet may have served as a cover over the transformers from above, once a mechanic was inside the cabinet, defendants concede that nothing served as a barrier or other protection against contact with the transformers. Finally, no evidence indicates that any warning was placed in the machine room or that any warning or protective gear was provided to elevator mechanics to guard against electrocution. 2. The Lighting The conflict between Melendez's testimony that the lighting in the motor room was poor and Smith's testimony that the lighting there was adequate leaves a factual issue, depend~nt on credibility, Velez v. City of New York, 134 A.D.3d 447,. 447 (1st Dep't 2015), whether the lighting was inadequate and thus created a dangerous working condition. Auliano v. 145 E. 15th St. Tenants Corp., 129 A.D.3d 469, 470 (1st Dep't 2015); Joachim v. AMC Multi-Cinema, Inc., 129 A.D.3d 433, 434 (1st Dep't 2015);. Eyssallem v. Engel, 309 A.D.2d 594, 594 (1st Dep't 2003). New York City Fire Department Captain Jeffrey Facinelli, who responded to the scene of the decedent's electrocution, and Smith in their deposition testimony recalled discovery of a near the decedent. ~mall light Smith admitted that such a light may have been used to.illuminate a dark area of the electrical cabinet. This testimony further raises a factual issue whether the bradley.180 11 12 of 17 [*FILED: NEW YORK COUNTY CLERK 03/29/2017 11:22 AM 12] NYSCEF DOC. NO. 149 INDEX NO. 157576/2012 RECEIVED NYSCEF: 03/29/2017 decedent lacked visibility of the electrical components in the machine room and thus whether inadequate lighting contributed to his electrocution. See Lee v. New York City Tr. Auth., 138 A.D.3d 579, 579 (1st Dep't 2016); Miano v. Battery Place Green LLC, 117 A.D.3d 489, 490 (1st Dep't 2014). 3. Defendants' Notice Richard Wallace, a property manager at 1290 Avenue of the Americas since June 2007 and the·HWA 1290 defendant owners' agent, testified at his deposition that United.Elevator Consultants was an elevator engineering consultant that defendant owners hired to develop specifications for the elevator modernization performed by Schindler Elevator at the premises, No one from either United Elevator Consultants or S"chindler Elevator reported to Wallace that the lighting in the machine room was inadequate or did not comply with applicable codes. Nor did the City of New York or United Elevator Consultants report any deficiencies or hazards in the machine room after inspections. This evidence demonstrates the HWA 1290 d,efendants' lack of actual notice of the deficient and hazardous conditions . alleged by piainti£fs: the lack of covers for the transformers and the inadequate lighting. Nepomuceno v. City of New York, .137 A.D.3d 646, 646-47 (1st Dep't 2016); Graham v. YMCA of Greater N.Y., 137 A.D.3d 546, 547 (1st Dep't 2016); Brooks-Torrence v. Twin Parks Southwest, 133 A.D.3d 536, 536 (1st Dep't 2q15); Green v. Gracie Muse Rest. Corp., 105 A.D.3d 578, 578 (1st Dep't 2013). Melendez testified that United Elevator Consultants bradley.180 12 13 of 17 [*FILED: NEW YORK COUNTY CLERK 03/29/2017 11:22 AM 13] INDEX NO. 157576/2012 NYSCEF DOC. NO. 149 RECEIVED NYSCEF: 03/29/2017 inspected the machine room, elevators, and elevator pits only once per year. Wallace testified that United Elevator Consultants inspected the elevators quarterly. Garcia testified that United Elevator Consultants inspected the work on the elevators as it was completed to ensure conformity with United Elevator Consultants' specifications, but did not observe routine maintenance, and was not in the building daily. Defendants fail to establish that none of them owed any duty to determine whether the elevator machine room was so constructed that, during maintenance, troubleshooting malfunctions, or repair of a building elevator, an elevator mechanic or a tool he was holding foreseeably would come in inadvertent physical contact with an exposed live electrical component. Nor do defendants support a conclusion that· such inadvertent contact by the decedent was improbable or that his contact with the live Even if United Elevator Consultants' ' functions were limited to the elevator system's modernization, transformers was willful. the consultant surely owed a duty to assure that the modernized system, which included the machine room, was safe. The limited scope of United Elevator Consultants' inspections, the conflicting testimony regarding their frequency, and the absence of evidence of the other defendants' inspections leave issues whether transformer covers were lacking and the lighting was inadequate in the electrical cabinet and whether those conditions remained long enough for defendants to discover them. O'Connor v. Restani Constr. Corp., 137 A.D.3d 672, 673 bradley.180 13 14 of 17 [*FILED: NEW YORK COUNTY CLERK 03/29/2017 11:22 AM 14] NYSCEF DOC. NO. 149 INDEX NO. 157576/2012 RECEIVED NYSCEF: 03/29/2017 (1st Dep't 2016); Joachim v. AMC Multi-Cinema, Inc., 129 A.D.3d at 434; Ladingnon v. Lower Manhattan Dev. Corp., 128 A.D.3d 534, 535 (1st Dep't 2015); Beltran v. Navillus Tile, Inc., 108 A.D.3d 414, 415 (1st Dep't 2013). See Nepomuceno v. City of New York, 137 A.D.3d at 647; Brooks-Torrence v. Twin Parks Southwest, 133 A.D.3d at 536. Assuming those conditions were dangerous, defendant owners, moreover, fail to demonstrate that they did not create those conditions when they constructed the electrical cabinets and installed the lighting. Jimenez v. City of New York, 117 A.D.3d 535, 536 (1st Dep't 2014); Perez v. New York City Hous. Auth., 114 A.D.3d 586, 586 (1st Dep't 2014); O'Halloran v. City of New York, 78 A.D.3d 536, 537 (1st Dep't 2010). 4. Removal of the Helper · The final alleged deficiency that created hazardous working conditions for the decedent is the removal of Melendez ,as the. decedent's helper. Plaintiffs rely on § 6.4.1 of the contract between the HWA 1290 defendants and Schindler Elevator [requiring it to assign a mechanic and a helper to perform elevator maintenance for the building. To recover for breach of a contract as third party beneficiaries, plaintiffs, at trial or upon their motion for summary judgment, must establish that this contract provision was intended for the mechanic's benefit and that this benefit was sufficiently immediate as to impose a duty on the contracting parties to compensate the mechanic if he lost this benefit. bradley.180 14 15 of 17 [*FILED: NEW YORK COUNTY CLERK 03/29/2017 11:22 AM 15] (~~~~~~~~~~~~~~~~~~~~~~~~~~~~---J i NYSCEF DOC. NO. 149 INDEX NO. 157576/2012 RECEIVED NYSCEF: 03/29/2017 Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 181-82 (2011); Mendel v. Henry Phipps Plaza W., Inc., 6 N.Y.3d 783, 786 (2006); Edge Mgt. Consulting, Inc. v. Blank, 25 A.D.3d 364, 368 (1st Dep' t 2006) ; LaSalle Natl. Bank v. Ernst 101, 108 (1st Dep't 2001). & Young, 285 A. D. 2d The benefit to the mechanic, a nonparty to the contract, must be evident from the face of the contract. 108. LaSalle Natl. Bank v. Ernst & Young, 285 A.D.2d at See Adelaide Prods., Inc. v. BKN Intl. AG, 38 A.D.3d 221, 226 (1st Dep't 2007). The·contract's terms are the best evidence of an intent to bestow a benefit on a nonparty to the contract. National Bank Ltd. v. Secu~ity Mgt. Co. Ltd., 29 A.D.3d 408, 408 (1st Dep't 2006); 767 Third Ave. LLC v. ORIX Capital Mkts., LLC, 26 A.D.3d 216, 218 (1st Dep't 2006); 243-249 Holding Co. v. Infante, 4 A.D.3d 184, 185 (1st Dep't 2004); Alicea v. City of New York, 145 A.D.2d 315, 318 (1st Dep't 1988). Defendants show that the contract was not intended for any nonparty's benefit. Article 19 of the contract provides: Except as otherwise provided herein, no provision of this Contract shall in any way inure to the benefit of any third party (including the public at large) so as :to constitute any such person .as a third party beneficiary of this Contract or of any one or more of the terms hereof or otherwise give rise to any cause of action in any person not a party hereto. Aff. of Richard Sabatini Ex. W, at 10. Thus the contr~ct expressly precludes nonparties to the contract as third party beneficiaries. Adelaide Prods., Inc. v. BKN Intl. AG, ,38 A.D.3d at 226; Rahim v. Sottile Sec. Co., 32 A.D.3d 77, 80 (1st Dep't 2006) i 767 Third Ave. LLC v. ORIX Capital Mkts., LLC, 26 A.D.3d bradley.180 15 16 of 17 [*FILED: NEW YORK COUNTY CLERK 03/29/2017 11:22 AM 16] .... NYSCEF DOC. NO. 149 INDEX NO. 157576/2012 RECEIVED NYSCEF: 03/29/2017 at 218; Greece Cent. School Dist. v. Tetra Tech Engrs., Architects &,Landscape Architects, P.C., 78 A.D.3d 1701, 1702 (4th Dep't 2010) . . Plaintiffs do not claim any other basis on which defendants owed a duty to assign the decedent, who was not their employee, a helper to provide safe working conditions. IV. CONCLUSION Based on the evidence and applicable legal principles set forth above, the court grants defendants' motion for summary judgment to the limited extent of dismissing plaintiffs' claims based on violations of Labor Law § 241(6) and 12 N.Y.C.R.R. §§ 23-1.13(b) (iii) and 23-1.30 and on removal of Edward Bradley's helper, but otherwise denies defendants' motion. 3212(b) and (e). The parties shall appear for a pretrial conference May 26, 2017, at 9:30 a.m., in Part 46. § C.P.L.R. § 22 N.Y.C.R.R. 202.26. DATED: February 28, 2017 LUCY BILLINGS, J.S.C. bradley.180 16 17 of 17

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