Alley v Casino Constr.
Annotate this CaseDecided on May 24, 2007
Supreme Court, Richmond County
Daniel Alley, Plaintiff,
against
Casino Construction, Veteran Properties, Inc., Veterans Properties, Inc. d/b/a Casino Construction, Celebration Townhouse Owners, Corp., Michael Boccieri, Jack Thaon, Jack Thaon d/b/a Casino Construction, Celebration, LLC. Duo Plumbing & Heating Corp., New York City Partnership Housing Development Fund Company, Defendants,
100698/05
Judith N. McMahon, J.
On April 15, 2002, the plaintiff allegedly was injured when he tripped and fell on wood molding left on the floor at a construction site at 28 Sky Lane, Staten Island, New York. The plaintiff was an employee of A & B Heating and Air Conditioning, a subcontractor responsible for installing the furnaces at the construction site. The owners of the property were Celebration, LLC and New York City Partnership Housing Development Fund Company [NYCPHDFC]. Duo Plumbing and Heating Corp. was a subcontractor responsible for plumbing at the construction site. Michael Boccieri was one of the owners of Duo Plumbing. Duo Plumbing also owned more than 50% of Celebration, LLC.
In February, 2005, the plaintiff commenced this action against, inter alia, Celebration, NYCPHDFC, Michael Boccieri and Duo Plumbing & Heating Corp. alleging violations of Labor Law §§ 200, 240(1) and 241(6) and common law negligence. [All remaining defendants named in the caption have either obtained stipulations of discontinuance or did not answer the complaint and no motions for default judgment have been made against them.] The complaint specifically set forth that the plaintiff was injured because the defendants failed to "clean[] up wood, molding and other debris on the job site".
After issue was joined by service of answers by all defendants and the completion of discovery, Celebration and NYCPHDFC moved, and Duo Plumbing and Boccier cross-moved for summary judgment dismissing the complaint. The plaintiff cross-moved for leave to amend his bill of particulars to allege violations of 12 NYCRR 23.17(d), and 12 NYCRR 23-1.7(e)(1) and (2). [*2]
Initially, the defendants contend that the plaintiff's cross-motion should not be considered by the court as it was made more than 60 days after the note of issue was filed and therefore was untimely. This deadline, set forth in the Uniform Civil Term Rules of Supreme Court, Richmond County, applies to dispositive, summary judgment motions (see, Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; Brill v. City of New York, 2 NY3d 648 [2004]). It is inapplicable to the plaintiff's cross-motion which requests leave to amend his bill of particulars. As the plaintiff is seeking to amend the bill or particulars after the filing of the note of issue, he needs permission of the court, and such permission can be granted until the eve of trial (see, CPLR 3025[b]; CPLR 3042[b]; Rosse-Glickman v. Beth Israel Medical Center, 309 AD2d 846 [2d Dept. 2003]; Barrera v. City of New York, 265 AD2d 516 [2d Dept. 1999]. In any event, even if the cross-motion was untimely, this court can consider it as it was made in response to the defendants' still pending, timely summary judgment motions (see, Osario v. BRF Constr. Corp., 23 AD3d 202 [1st Dept. 2005]; Bressingham v. Jamaica Hosp. Med. Ctr., 17 AD3d 496 [2d Dept. 2005]).
The plaintiff concedes that the cause of action alleging a violation of Labor Law § 240(1) must be dismissed as there was no elevation-relation risk because the subject work site was at ground level (see, Keavey v. New York State Dormitory Authority, 6 NY3d 859 [2006]; Toefer v. Long Is. R.R., 4 NY3d 399 [2005]).
Labor Law § 241(6) imposes a "nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers" (Comes v. New York State Elec. and Gas. Corp., 82 NY2d 876, 877 [1993]). To support a cause of action pursuant to § 241(6), the plaintiff must allege a specific and concrete provision of the Industrial Code was violated and that the violation proximately caused his injuries (see, Rosado v. Briarwoods Farm, 19 AD3d 396 [2d Dept. 2005]; Plass v. Solotoff, 5 AD3d 365 [2d Dept. 2004]). The plaintiff admits that he failed to allege any violation of the Industrial Code in his bill of particulars. Instead, he has cross-moved for leave to amend his bill of particulars to allege such specific Industrial Code violations.
Contrary to the defendants' contention, the plaintiff's allegation of specific Industrial Code provisions for the first time in his opposition to the summary judgment motions is not fatal to his claim (see, Latino v. Nolan and Taylor-Howe Funeral Home, Inc., 300 AD2d 631 [2d Dept. 2002]; Kelleir v. Supreme Industrial Park, LLC, 293 AD2d 513 [2d Dept. 2002]). The amendment presents no new factual allegations or new theories and thus, does not prejudice the defendants (see, Ellis v. J.M.G., Inc., 31 AD3d 1220 [4th Dept. 2006]; Walker v. Metro-North Commuter Railroad, 11 AD3d 339 [1st Dept. 2004]). Accordingly, the plaintiff's motion to amend his bill of particulars to allege violations of 12 NYCRR 23.17(d), and 12 NYCRR 23-1.7(e)(1) and (2) is granted. Additionally, that branch of Celebration and NYCPHDFC's motion to dismiss the cause of action alleging a violation of Labor Law § 241(6) is denied as the plaintiff's allegation that the owners' violations of these specific Industrial Code provisions proximately caused his injury was sufficient to raise a triable issue of fact pursuant to Labor Law § 241(6) (see, Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 NY2d 343 [1998]; Ferrero v. Best Modular Homes, Inc., 33 AD2d 847 [2d Dept. 2006]; Johnson v. Flatbush Presbyterian Church, 29 AD3d 862 [2d Dept. 2006]; Latino v. Nolan and Taylor-Howe Funeral Home, Inc., 300 AD2d 631, supra).
Labor Law § 200 is a codification of the common-law duty imposed upon an owner or [*3]employer to provide construction site workers with a safe place to work (see, Jock v. Fien, 80 NY2d 965, 967 [1992]; Brown v. Brause Plaza, LLC, 19 AD3d 626 [2d Dept. 2005]). For an owner to be held liable for common law negligence or pursuant to Labor Law § 200, a plaintiff must show that the owner supervised or controlled the work being performed, or had actual or constructive notice of such the unsafe condition causing the accident (see, Lombardi v. Stout, 80 NY2d 290, 294-295[1992]; DeBlase v. Herbert Constr. Co., Inc., 5 AD3d 624 [2d Dept. 2004]). Here, there are questions of fact as to Celebration and NYCPHDFC's supervision and control over the work site and whether they had actual or constructive notice of the allegedly defective condition because it was their responsibility to clean up after the subcontractors (see, Acosta v. Hadjigavriel, 18 AD3d 406 [2d Dept. 2005]; Galassa v. Lizda Realty, Ltd., 18 AD3d 809 [2d Dept. 2005]; Bobo v. Slattery Ass., Inc., 251 AD2d 439 [2d Dept. 1998]).
However, the cross-motion for summary judgment of Duo Plumbing and Michael Boccieri must be granted. Labor Law §§ 200 and 241 liability cannot be assessed against a subcontractor who did not control and supervise the work that caused the plaintiff's injury or has the authority to direct the construction procedures or safety measures employed at the site (see, Russin v. Picciano & Son, 54 NY2d 311 [1981]; Walker v. Metro-North Commuter Railroad, 11 AD3d 339, supra; Zervos v. City of New York, 8 AD3d 477 [2d Dept. 2004]]; Lopes v. Interstate Concrete, 293 AD2d 579 [2d Dept. 2002]). In the instant case, the plaintiff failed to submit any evidence that either Duo Plumbing or Boccieri had any involvement in the installation of wood molding or the authority to direct the construction procedures or safety measures at the site. Rather, the plaintiff asserts that Duo Plumbing is responsible for his injuries because it is as an owner of Celebration and Boccieri is responsible because he is an owner of Duo Plumbing. However, the plaintiff did not submit any evidence which would warrant piercing the corporate veil of either Celebration or Duo Plumbing (see, Albstein v. Elany Contracting Corp., 30 AD3d 210 [1st Dept. 2006]; Gonzalez v. Southbay Commons, Inc., 15 Misc 3d 1117(A) [Sup. Ct, Richmond Cty. 2007]).
Accordingly, it is,
ORDERED that the branch of the motion of defendants Celebration, LLC and New York City Partnership Housing Development Fund Company for partial summary judgment dismissing the cause of action based on a violation of Labor Law § 240(1) is granted; and it is further,
ORDERED that the branches of the motions of defendants Celebration, LLC and New York City Partnership Housing Development Fund Company for partial summary judgment dismissing the causes of action based on violations of Labor Law §§ 200 and 241(6) and common law negligence are denied; and it is further,
ORDERED that the cross-motion of Duo Plumbing & Heating Corp. and Michael Boccieri for summary judgment dismissing the complaint against them is granted and the complaint is dismissed as against Duo Plumbing & Heating Corp. and Michael Boccieri; and it is further,
ORDERED that the plaintiff's cross-motion for leave to serve an amended bill of particulars alleging violations of 12 NYCRR 23.17(d) and 12 NYCRR 23-1.7(e)(1) and (2) is granted.
THIS IS THE DECISION AND ORDER OF THE COURT. [*4]
EN T E R,
Dated: May 24, 2007
J.S.C.
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