Gonzalez v Southbay Commons, Inc.

[*1] Gonzalez v Southbay Commons, Inc. 2007 NY Slip Op 50712(U) [15 Misc 3d 1117(A)] Decided on March 30, 2007 Supreme Court, Richmond County Gigante, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 30, 2007
Supreme Court, Richmond County

Juan Gonzalez, Plaintiff,

against

Southbay Commons, Inc., TGC Construction Corp., A. Glynn Properties, Inc., Thomas Spinelli, Giovanni Culotta, Guido Passarelli, Garber Building Supplies, Inc., JNM Contractors and Allied Building Products Corp., Defendants. JNM Contractors, Third-Party Plaintiffs, Miroslav Rada and MGS Construction, Third-Party Defendants.



12023/02

Robert J. Gigante, J.

Upon the foregoing papers, (1) the motion of defendant GUIDO PASSARELLI (No. 2996) for summary judgment dismissing the complaint and all cross claims against him is granted only to the extent that plaintiff's claims against him under Labor Law §200 and common-law negligence are dismissed; (2) the cross motion of defendants SOUTHBAY COMMONS, INC. and THOMAS SPINELLI (No. 3535) is granted only to the extent that any claims and cross claims against THOMAS SPINELLI, individually, under Labor Law §§240(1), 241(6) and 200 and common-law negligence are dismissed; (3) the cross motion of third-party defendant MIROSLAV RADA (No. 3478) for summary judgment dismissing the complaint and all cross claims against him is granted; (4) plaintiff's cross motion (No. 454) for summary judgment against defendants GUIDO PASSARELLI and SOUTHBAY COMMONS, INC. is granted only to the extent that partial summary judgment is granted as against defendant GUIDO PASSARELLI under Labor Law §240(1); (5) the cross motion of defendant GUIDO PASSARELLI (No. 654) for summary judgment dismissing plaintiff's Labor Law §240(1) is denied; (6) the cross motion of defendants SOUTHBAY COMMONS, INC. and THOMAS SPINELLI (No. 854) for summary judgment dismissing plaintiff's Labor Law §240(1) claims is denied; and (7) the cross motion of defendants TGC CONSTRUCTION CORP. and GIOVANNI CULOTTA (No. 3601) for summary judgment dismissing the complaint and all cross claims against them is granted only to the extent that any claims and cross claims against GIOVANNI CULOTTA, individually, are dismissed. In all other respects, the motion and cross motions are denied.

Plaintiff commenced this action to recover damages for injuries he allegedly sustained while working at a construction site located on the corner of Bay Street and Townsend Avenue in Staten Island, New York. In his complaint, plaintiff asserts violations of Labor Law §§200, 240(1) and 241(6), as well as common-law negligence, fraud and negligent misrepresentation.

By way of background, on October 26, 2001, defendant GUIDO PASSARELLI (hereinafter PASSARELLI) contracted with defendant THOMAS SPINELLI, on behalf of defendant SOUTHBAY COMMONS, INC. (hereinafter SOUTHBAY), to sell property owned by him on Bay Street in Staten Island. Attached to the contract was an amendment containing a clause which permitted SOUTHBAY to install concrete foundations for forty-two (42) townhouses on the property prior to the closing of title, at its own risk and expense.[FN1] The amendment further provided that SOUTHBAY would purchase liability insurance protecting PASSARELLI from any claims of personal injury, death and/or property damage arising out of or in any way connected with work at [*2]the premises, and naming PASSARELLI as an insured under the policy. Moreover, SOUTHBAY contractually agreed to indemnify, defend and hold PASSARELLI harmless from any and all losses, claims, damages, liability and expense (including reasonable attorneys' fees and expenses) arising out of or in connection with the breach of any of the representations, warranties, covenants and agreements made by SOUTHBAY.

It is alleged that once the foundations were in place, and notwithstanding the failure to close, SOUTHBAY continued with the construction of the townhouses by erecting the frames, walls and roofs, all without PASSARELLI's knowledge or consent. Plaintiff was allegedly hired during this phase of the construction to perform certain carpentry work, and was using a pneumatic nail gun to install a handrail on an exterior staircase leading to the elevated rear deck of one of the townhouses when a bundle or stack of roofing shingles suddenly fell from the roof, hitting him on the head and causing him to fall backwards some nine feet down the stairway to the ground below. As a result, the nail gun is alleged to have discharged and embedded a nail into plaintiff's leg.

In moving for summary judgment dismissing plaintiff's complaint and all cross claims against him (Motion No. 2996), defendant PASSARELLI admits that he was the legal owner of the premises at the time of plaintiff's accident, and that he permitted his contract-vendee (SOUTHBAY) to begin laying the foundations for the 42 planned townhouses before title had closed. He further admitted that he agreed to do so because the original construction permit was about to expire, and that the new zoning laws would have prevented SOUTHBAY from developing the property as intended. In return, it was allegedly promised that SOUTHBAY would indemnify PASSARELLI for any and all claims arising out of its construction activities, and would provide him with proof of its liability insurance coverage.

According to PASSARELLI, SOUTHBAY breached this contract by (1) failing to provide him with proof of insurance coverage, and (2) proceeding to frame and roof many of the units after the foundations were poured. While he admits that he would be statutorily liable to plaintiff under Labor Law §240(1) if the accident occurred as described, PASSARELLI asserts that he is nonetheless entitled to contractual indemnification from SOUTHBAY, and common-law indemnification from it and any other codefendant which may have been actively negligent in causing plaintiff's accident. However, he asserts that he cannot be held liable under Labor Law §200 or common-law negligence since it is undisputed that he had no involvement in the construction, and no notice of any dangerous condition that allegedly caused plaintiff's injury.

In their cross motion for summary judgment (Motion No. 3535), defendants SOUTHBAY and SPINELLI contend that since PASSARELLI's ownership of the subject premises on the date of plaintiff's accident (April 29, 2002) is uncontested, they cannot be held liable as "owners" under the Labor Law. In this regard, it appears that SOUTHBAY did not close on the property until December 2002. These defendants also contend that PASSARELLI is not entitled to contractual indemnification, as the contract provision upon which he purports to rely is void as an attempt to exempt himself from liability for his own negligence (see General Obligations Law § 5-322.1).

With regard to claims against SPINELLI, individually, it is claimed that he cannot be held personally liable for the acts SOUTHBAY without "piercing the corporate veil". Here, SPINELLI contends that plaintiff has failed to establish that he exercised the requisite domination of the corporation or the project; that he used his position with the corporation to further his personal interests; or that he used this position to commit fraud or any other wrong as against plaintiff. According to SPINELLI, he is merely a shareholder in SOUTHBAY, which is a domestic residential [*3]development company that predominately relies upon subcontractors to perform most of the necessary work. Moreover, he argues that there is no proof that SOUTHBAY committed any unlawful act towards any party to this action. Finally, he notes that there is no claim of fraud arising out of SOUTHBAY's role in the instant project. On these facts, it is claimed that the corporate veil cannot be pierced.

With regard to PASSARELLI's claim for common-law indemnification and/or contribution, SOUTHBAY and SPINELLI claim that a party seeking such relief must be able to show that the party from which indemnification is sought either created or had notice of the alleged dangerous condition out of which the claim arises, or that it directed, supervised or controlled the work of the injured party at the time of the accident. Here, it is claimed that there is no proof of either.

With regard to Labor Law §200 and common-law negligence, SOUTHBAY and SPINELLI contend that they cannot be held liable in the absence, e.g., supervisory control over the work which ultimately caused plaintiff's injury, and that there is no proof that either exercised any supervision or control over plaintiff's work. Moreover, while plaintiff claims to have been employed by SOUTHBAY, the latter claims that plaintiff was an independent subcontractor with his own carpentry crew. In support, SPINELLI cites SOUTHBAY's acceptance of plaintiff's proposal to charge $5,800.00 per unit for framing and blocking-in the buildings. Finally, SOUTHBAY contends that while SPINELLI visited the site weekly to monitor progress, it was the subcontractors who controlled the work of their respective employees on a daily basis. Based upon these facts, both SOUTHBAY and SPINELLI contend that summary judgment against them on PASSARELLI's claims for common-law indemnification and/or contribution must also be denied.

Third-party defendant MIROSLAV RADA (hereinafter RADA) also cross-moves for summary judgment dismissing all claims and cross claims against him (Motion No. 3478). According to RADA, he was originally impleaded by defendant JNM CONTRACTORS on the theory that he may have done some work on the roof of the unit where plaintiff was injured. However, RADA contends that he merely installed siding at a different location on the property, and that it was another subcontractor, MGS CONSTRUCTION, that performed the roofing work on the townhouse where plaintiff's accident occurred. There is no opposition to RADA's motion.

In cross-moving for partial summary judgment against defendants PASSARELLI and SOUTHBAY (Motion No. 454), plaintiff contends that the former is liable as the owner of the premises under Labor Law §240(1) regardless of his alleged lack of supervision or control. In such circumstances, liability is said to depend on (1) proof of ownership; (2) proof that the statute was violated; (3) and proof that said violation was a proximate cause of plaintiff's injuries. Here, it is undisputed that PASSARELLI was the title owner of the property when plaintiff was injured, and that title did not pass until after the accident had occurred. Given this fact, plaintiff claims that the law is well-settled that the contract-vendor remains liable as an owner under the Labor Law, and that the acquisition of an equitable interest and/or the assumption of control by the contract-vendee is ineffective to relieve the former of his non-delegable duty to provide workers with a safe place to work. Finally, plaintiff contends that this case falls squarely within the purview of section 240(1) of the Labor Law, as it involves the precise type of elevation-related risk to which the statute is addressed, and it is undisputed that he was not provided with any type of safety device or equipment.

With regard to his motion for partial summary judgment against SOUTHBAY, plaintiff contends that it is liable as the general contractor, and that its further status as contract-vendee does not alter the situation. According to plaintiff, it was SOUTHBAY that had the right to control the [*4]work at the premises, and that whether or not it exercised control is irrelevant. Moreover, it was SOUTHBAY that hired the subcontractors and inspected their work. In this regard, plaintiff contends that it is undisputed that SPINELLI, acting on behalf of SOUTHBAY, visited the jobsite at least once a week to monitor progress and pay the various subcontractors. In addition, plaintiff claims (1) that he had personally received instructions from both a SOUTHBAY supervisor named "Al" and defendant SPINELLI, and (2) that it was the latter who scheduled the work of the various trades. In the alternative, plaintiff claims that SOUTHBAY held itself out to the New York City Building Department as the owner of the property by posting a sign at the construction site identifying itself as such, and naming codefendant TGC as the general contractor. Either way,

plaintiff contends that both PASSARELLI and SOUTHBAY are strictly liable for plaintiff's injuries under Labor Law §240(1).

In their responsive cross motion (Motion No. 854), defendants SOUTHBAY and SPINELLI seek dismissal of plaintiff's claims against them under Labor Law §240(1), as well as dismissal of PASSARELLI's claim for contractual and/or common-law indemnification. In support, they claim that it was codefendant TGC CONSTRUCTION CORP. (hereinafter TGC) rather than SOUTHBAY that was the general contractor on the project. In fact, it is noted that plaintiff testified at his EBT that there was a sign posted at the jobsite which specifically identified SOUTHBAY as the owner and TGC as the general contractor. According to these defendants, plaintiff cannot simply chose SOUTHBAY as the general contractor and ignore the role of TGC.

SOUTHBAY also contends that while SPINELLI acted on its behalf to coordinate the work of the subcontractors, each subcontractor was responsible for the daily instruction of its own employees. At no time did SPINELLI direct, supervise or control the methods and means of any of the subcontractors' performance.

Finally, SOUTHBAY and SPINELLI contend that not every height-related accident at a construction site is entitled to the protection afforded by Labor Law §240(1). In this regard, they argue that plaintiff fell from a permanent exterior staircase, a normal appurtenance, and not one of the safety devices designated in the statute. In support, they cite plaintiff's EBT testimony that the accident occurred while he was installing a handrail on a staircase affixed to the rear deck of one of the townhouses. According to these defendants, plaintiff has failed to show that he was exposed to the risk of falling "from an elevated work site", or that the absence or inadequacy of any required safety device was the proximate cause of his accident. Moreover, they contend that there is no proof that the stairway itself was defective, or that any such defect was the proximate cause of the injury. Based on the foregoing, SOUTHBAY and SPINELLI contend that plaintiff's cross motion for partial summary judgment against them on his Labor Law §240(1) claim must be denied, and that their cross motion to dismiss this claim must be granted.

In cross-moving for like relief (Motion No. 654), defendant PASSARELLI adopts the arguments tendered by codefendants SOUTHBAY and SPINELLI.

In a final cross motion (Motion No. 3601), defendants TGC and GIOVANNI CULOTTA seek summary judgment dismissing the complaint and all crossclaims against them under Labor Law §§200, 240(1) and 241(6), and under common-law negligence. According to these defendants, CULOTTA is the sole shareholder and president of TGC, which is in the business of new home construction. As for their involvement in this project, Culotta contends that he merely obtained the building permits for SOUTHBAY as a favor to SPINELLI, and that neither he nor TGC ever performed any work at the job site. According to CULOTTA, TGC was in a better position than [*5]SOUTHBAY to obtain the building permits because it already had the required liability insurance in place. Since SOUTHBAY did not have such coverage, and since PASSARELLI'S permits were about to expire, TGC applied for the permits on behalf of SOUTHBAY to avoid any interruption in construction due to their expiration. Thus, notwithstanding its designation on the permits as the general contractor, TGC did not have any authority to direct or control any of the activities at the site; SOUTHBAY was the general contractor.

As for the claims against him personally, CULOTTA contends that he is merely a shareholder of TGC, and that he never acted in his individual capacity with regard to the subject project. Moreover, he claims that there is no legal basis to pierce the corporate veil and hold him individually liable. In this regard, CULOTTA contends that he never abused the privilege of doing business in the corporate form to perpetrate an injustice or to defraud anyone, including this plaintiff. According to CULOTTA, this is an action to recover damages for personal injuries only, and is completely devoid of any claims of corporate misconduct.

With regard to plaintiff's claims under Labor Law §§240 and 241, TGC claims that it had no ability or authority to control any of the work at the jobsite and that it was neither an owner or general contractor, nor the statutory agent of either. In support, TGC cites defendant SPINELLI's EBT testimony to the effect that SOUTHBAY hired all of the subcontractors, and that neither TGC nor any of its employees was hired to perform any work at the location. CULOTTA's own testimony confirms that TGC performed no work at the jobsite, and that it did not hire, pay or have any other relationship with plaintiff. Thus, according to CULOTTA, TGC was never present at the site, and did not issue any checks to anyone with regard to this project. For these same reasons, defendants CULOTTA and TGC contend that they have no liability to plaintiff under Labor Law §200 and common-law negligence.

In his opposition papers, plaintiff agrees that his Labor Law claims against SPINELLI, individually, should be dismissed, but he opposes dismissal of the claims against him for fraud and misrepresentation. According to plaintiff, material issues of fact exist regarding a general release that SPINELLI claims was executed by plaintiff, and the circumstances surrounding plaintiff's alleged acceptance and subsequent refusal of money from SPINELLI in lieu of filing a Worker's Compensation claim.

In opposition to TGC and CULOTTA, plaintiff contends that by holding itself out to the Building Department as the owner of the subject premises and using its general liability insurance coverage to support the permit applications, TGC should be estopped to deny its alleged status. As for to his claims against CULOTTA, individually, plaintiff contends that he and CULOTTA entered into a contract whereby plaintiff agreed to frame six townhouses for $5,800.00, and that CULOTTA paid plaintiff from his personal bank account. Thus, CULOTTA's liability is not predicated upon piercing the corporate veil, but rather on his personal involvement in the project.

With regard to his claims under Labor Law §§240(1) and 241(6), plaintiff contends that TGC acted as the general contractor for the project, and that it held itself out as such. Accordingly, plaintiff maintains that TGC cannot now escape liability by claiming that it was not involved in any way in the project. Moreover, he notes that the Labor Law does not exempt from liability a general contractor which "pulls" permits as a favor for another builder in order to circumvent Building Department requirements.

With regard to his claims under Labor Law §200 and common-law negligence, plaintiff contends that TGC and CULOTTA exercised sufficient supervisory control over both the project [*6]and his work to be held accountable. According to plaintiff, CULOTTA was physically present at the construction site and gave him specific instructions on how, e.g., to correct work that was allegedly substandard. Furthermore, plaintiff contends that CULOTTA identified himself as the "super", and represented to plaintiff that he would "keep the job going" and "keep an eye on the guys" in order to make sure that the work was being done properly. Finally, plaintiff contends that CULOTTA had the authority to fire subcontractors who were not doing their job correctly. For these same reasons, plaintiff contends that CULOTTA and TGC may be held accountable for any dangerous condition which existed at the jobsite.

The motion and cross motions are decided as follows.

In the opinion of this Court, so much of the motion and cross motion of each defendant as seeks dismissal of plaintiff's claims under Labor Law §240(1) must be denied. Labor Law §240(1) evinces a clear legislative intent not only to provide workers with exceptional protection against the special hazards that arise when the work site is elevated, but also those hazards that rise when the work site is positioned below the level where materials or loads are being hoisted or secured (see Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500-501). Thus, it is well established that a worker who has not been furnished with adequate safety devices may recover under this section where an object that was not properly secured falls from a height and causes him injury (see Narducci v. Manhasset Bay Assoc., 96 NY2d 259, 267-268). Here, the unequivocal proof indicates a total absence of safety devices, and that plaintiff was injured when a bundle of shingles fell from the roof above him while he was attempting to install a handrail. Under these circumstances, defendants' attempts to dismiss plaintiff's claims under Labor Law §240(1) must be denied, and his cross motion for partial summary judgment against defendant-owner PASSARELLI granted. However, as indicated below, the existence of a triable issue of fact as to SOUTHBAY's status as general contractor requires that so much of plaintiff's cross motion as seeks partial summary judgment against it must be denied.

As for plaintiff's claims under Labor Law §241(6), this statute operates to impose liability on owners and general contractors where the breach of a specific safety rule or regulation proximately causes a worker to become injured. Control or supervision of the work site is not required (see Rizzuto v. Wenger Contr. Co., 91 NY2d 343, 348-349). Nevertheless, as neither SOUTHBAY nor TGC has demonstrated its per se entitlement to dismissal of this cause of action against it, and a factual issue has been raised as to whether either or both may be cast in liability as a general contractor or agent, the summary dismissal of plaintiff's claims against either under this section of the Labor Law would be improper [FN2] . Since the question of whether the Industrial Code

violations cited by plaintiff are applicable to this lawsuit has not been addressed by the parties, this Court has no occasion to reach the issue.

With regard to defendant PASSARELLI's motion for summary judgment, there is no dispute that he was the legal owner of the premises at the time of plaintiff's accident. Accordingly, he assumed the non-delegable duty under Labor Law §240(1) to respond in damages if the statute was violated (see Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 500-501). For these purposes, the exercise of supervision or control is irrelevant (id. at 502). Essentially, the same is true under [*7]Labor Law under §241(6) (see Rizzuto v. Wenger Contr. Co., 91 NY2d at 348-349). Accordingly, he remains ultimately responsible for any statutory breach which proximately caused plaintiff's injuries. Thus, his motion insofar as it seeks to dismiss plaintiff's claims under Labor Law §§240(1) and 241(6) is denied.

So much of PASSARELLI's motion as seeks summary judgment on his cross claims for common-law and contractual indemnification must also denied. While PASSARELLI may be entitled to seek common-law indemnification from, e.g., a contractor whose negligence contributed to the accident or who directed, supervised or controlled the work giving rise to plaintiff's injury (cf. Buccini v. 1568 Broadway Assocs., 250 AD2d 466, 468-469), any right to indemnification against any of these defendants cannot be determined at this juncture in view of existing material issues of fact regarding the responsibilities of the various defendants inter se, including the determination of which defendant or defendants occupied the role of general contractor at the site. Nor has there been any finding as yet as to the negligence of any party. Similarly, while PASSARELLI seeks indemnification based on his contract with SOUTHBAY, it is unclear at this juncture whether SOUTHBAY was the general contractor and, therefore, responsible of directing, supervising and controlling the work out of which his liability arises. Therefore, any determination of PASSARELLI's right to indemnification on either basis against any party would be premature.

With regard to so much of PASSARELLI's motion as seeks dismissal of plaintiff's claims of common-law negligence and under Labor Law §200, it is the opinion of this Court that there has been no showing of negligence by PASSARELLI in failing to provide a safe place to work, nor is there any proof establishing that he exercised supervision and control over the work that brought about the injury (see Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 505-506; Rizzuto v. Wenger Contr. Co., 91 NY2d at 353). Also, there is no evidence that PASSARELLI either created or had knowledge of any dangerous condition which caused plaintiff's accident. Therefore, any claims under §200 of the Labor Law and/or common-law negligence as against this defendant must be severed and dismissed.

With regard to so much of the cross motions of defendants SOUTHBAY, SPINELLI, TGC and CULOTTA as seek dismissal of plaintiff's claims under Labor Law §§240(1) and 241(6), both SOUTHBAY and TGC potentially share the same liability as PASSARELLI with respect to any violation of these statutes. Accordingly, since the facts pertinent to the role of each are in sharp dispute, any award of summary judgment dismissing the claims against either would be improper. For example, it is not disputed that a sign at the jobsite identified TGC as the general contractor, or that TGC filed the permit applications with the New York City Department of Buildings. Moreover, plaintiff alleges that TGC performed activities at the construction site that are typically performed by a general contractor, e.g., coordinating and overseeing the work of the subcontractors. TGC denies these allegations and contends that SOUTHBAY was general contractor, but given these factual issues, the entry of summary judgment in the favor of either SOUTHBAY or TGC is unwarranted. Similarly, summary judgment in the favor of either defendant dismissing plaintiff's claims of common-law negligence and/or violation of Labor Law §200 is unwarranted given the unresolved issues of fact regarding their role, if any, in the construction project (see Freeman v. National Audubon Socy., 243 AD2d 608, 609).

However, with regard to the cross motion of defendant RADA, there is no proof suggesting that he performed any work at the subject location, nor is there any opposition to his motion. Accordingly, the complaint and all cross claims against this defendant must be severed and [*8]dismissed.

As for plaintiff's claims against the individual defendants SPINELLI and CULOTTA, it is the opinion of this Court that there has been no showing of any facts on the part of either defendant which would warrant piercing the corporate veil of either SOUTHBAY or TGC. Thus, there is no evidence sufficient to raise a material issue of fact regarding, e.g., the misuse of power by either of these defendants to further their personal rather than corporate goals (see Shimamoto v. S&F Warehouses, Inc. , 257 AD2d 334, 340; see also Matter of Morris v. New York State Dept. of Taxation & Fin., 82 NY2d 135, 140-142). Accordingly, the physical presence of either at the construction site or their assertion of oversight relative to the work being performed furnishes no basis for holding them personally liable for the acts of the defendant corporations. In fact, plaintiff agrees that his Labor Law claims against defendant Spinelli should be dismissed.

Nevertheless, plaintiff's claims of fraud and misrepresentation against defendant SPINELLI must remain. While these allegations do not in any way affect SPINELLI's liability with regard to the alleged violations of the Labor Law and/or common-law negligence, they make out independent causes of action for which separate damages may be awarded. In this connection, plaintiff's detailed description of the circumstances surrounding SPINELLI's alleged visits to plaintiff's home for the purpose of persuading him to accept money in lieu of pursuing his legal rights, as well as his specific denial of signing the release which is claimed to bar this action as against defendants SPINELLI and SOUTHBAY, preclude the summary dismissal of these claims. As to defendant CULOTTA, however, the absence of any proof establishing injury to plaintiff as a result of any misrepresentations made by CULOTTA, e.g., to the Building Department, warrant the dismissal of plaintiff's claims of fraud and misrepresentations against him personally (see generally Vermeer Owners v. Guterman, 78 NY2d 1114, 1116).

Accordingly, it is

ORDERED that the motion for summary judgment (No. 2996) of defendant GUIDO PASSARELLI is granted only to the extent that plaintiff's claims against him under Labor Law §200 and/or common-law negligence are severed and dismissed; and it is further

ORDERED that the cross motion for summary judgment (No. 3535) of defendant SOUTHBAY COMMONS, INC. and THOMAS SPINELLI is granted only to the extent that any claims and cross claims pertaining to alleged violations of the Labor Law and/or common-law negligence by defendant THOMAS SPINELLI, individually, are severed and dismissed; and it is further

ORDERED that the cross motion for summary judgment (No. 3478) of third-party defendant MIROSLAV RADA is granted, and the complaint and all cross claims against him are severed and dismissed; and it is further

ORDERED that plaintiff's cross motion (No. 454) for partial summary judgment against defendant GUIDO PASSARELLI under Labor Law §240(1) is granted; and it is further

ORDERED that the amount of damages to be awarded thereon shall be determined at trial; and it is further

ORDERED that the cross motion for summary judgment (No. 654) of defendant GUIDO PASSARELLI dismissing plaintiff's Labor Law §240(1) cause of action is denied; and it is further

ORDERED that the cross motion for summary judgment (No. 854) of defendants SOUTHBAY COMMONS, INC. and THOMAS SPINELLI dismissing plaintiff's Labor Law [*9]§240(1) cause of action is denied; and it is further

ORDERED that the cross motion for summary judgment (No. 3601) of defendants TGC CONSTRUCTION CORP. and GIOVANNI CULOTTA is granted only to the extent that the claims and cross claims against defendant GIOVANNI CULOTTA, individually, are severed and dismissed; and it is further

ORDERED that the balance of the motion and cross motions are denied; and it is further

ORDERED that the Clerk enter judgment accordingly.

E N T E R,

Robert J. Gigante,J.S.C.

Dated: March 30, 2007 Footnotes

Footnote 1: This amendment was allegedly executed in order to circumvent upcoming changes to the zoning laws which would have prevented the desired development of the property.

Footnote 2:For whatever reason, plaintiff has not sought partial summary judgment against defendant PASSARELLI under this section of the Labor Law.