Salazar v Novalex Contr. Corp.

[*1] Salazar v Novalex Contr. Corp. 2007 NY Slip Op 52680(U) Decided on December 7, 2007 Supreme Court, Bronx County Brigantti-Hughes, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 7, 2007
Supreme Court, Bronx County

Raul Salazar, Plaintiff,

against

Novalex Contracting Corp., 96 ROCKAWAY, LLC, and T. CONSTRUCTION CO., INC., Defendants.



21604/04



Appearances of Counsel:

For Plaintiff:

Cyril Baines, Esq

Perecman & Fanning, PLLC

250 W. 57th St., Suite 401

New York, NY 10107

For Defendant 96 Rockaway, LLC -

BJ Finneran, Esq.

One Whitehall St.

New York, NY 10004-2109

For Defendant/Third Party Defendant T Construction Co., Inc. -

Rhonda D. Thompson, Esq.

Kral, Clerkin, Redmond, Ryan, Perry & Girvan, LLP

170 Broadway, Suite 500

New York, NY 10038

For Defendant/Third Party Plaintiff Novalex Contracting Corp.-

William White, Esq.

White, Quinlan, Staley, Smith &

Laquercia, LLP

377 Oak St.

PO Box 9304

Garden City, NY 11530

Mary Ann Brigantti-Hughes, J.

The following papers numbered 1 to 7 read on this Motion noticed on April 11, 2007 and No. 17 on the Motion Calendar of July 3, 2007 of Part IA15 [*2]

Papers SubmittedNumbered

Motion & Attachments1

Novalex Cross-Motion & Attachments2

Rockaway Cross-Motion & Attachments3

Affirmation in Opposition & Attachments4

Affirmation in Partial Opposition5

Novalex Reply6

T construction Reply7

Upon the foregoing papers, the Decision and Order on this motion is as follows:

Defendant/Third party Defendant T Construction Co. Inc., hereinafter T Construction, move for summary judgment dismissing Plaintiff's Labor Law §200, §240 and §246(1) claims; excepting the §241(6) claims predicated on NYCRR 23-1.7(b). Defendant/Third party Plaintiff Novalex Contracting Corp., hereinafter Novalex and Defendant 96 Rockaway, LLC, hereinafter Rockaway, adopted T Construction's arguments and also moved for summary judgment; however additionally moved for indemnification against T Construction. For the reasons stated herein, Defendants' motions are hereby granted to the extent provided herein.

Labor Law §240 claims are not applicable to the instant case as Plaintiff's accident did not result from a fall from a significant height or gravity related risk that could have been prevented with the use of one of protective devices enumerated in the statute. In addition, Labor Law §200 claim must fail as the accident did not occur as a result of Defendants' negligence or failure to provide safety measures, but occurred as a result of Plaintiff's own negligence. Additionally, Labor Law §241(6) claims must also fail as the sections of the Codes, Rules and Regulations of the State of New York which Plaintiff claims were allegedly violated are not applicable to the instant case. Given that none of the NYCRR sections cited by Plaintiff are applicable to the instant case, the Court finds that all of Plaintiff's Labor Law claims must be dismissed.

Even though dismissal of Plaintiff's Labor Law §246(1) claim predicated on NYCRR 23-1.7(b) was not specifically requested, CPLR § 3212(b) permits the court to search the record and grant summary judgment to a Defendant, where warranted, even though such relief was not requested where there is no prejudice or surprise. Milbrook Hunt, Inc. v. Smith, 249 AD2d 283 (2nd Dept. 1998) and Olean Urban Renewal Agency v. Iona Herman et al., 101 AD2d 712 (4th Dept. 1984). Insofar as the subject of this motion is the applicability of Plaintiff's labor law claims and the motion seeks summary judgment of Plaintiff's labor law claims and Plaintiff's own proof regarding how the accident took place does not raise an issue of fact as to whether his labor law claims are applicable, Plaintiff is not prejudiced. See also, Federal Nat'l Mortgage v. Katz, 33 AD3d 755 (2nd Dept. 2006) proper to award summary judgment on issue that was subject before the Court and Dunham v. Hilco Construction Company, Inc., 89 NY2d 425 (1996).

NYCRR 23-1.7(b) was intended to protect workers from falling through an opening to the floor below. In the instant case, Plaintiff did not fall through an opening to a level below. Plaintiff was at one level and fell onto the same level. Furthermore, the purpose of NYCRR [*3]23-1.7 is to protect workers from general and unintended risks, not specific risks inherent in short-term projects. Plaintiff alleges that while walking backward, he did not watch where he was walking and fell over cement integral to the work that was being performed, as such, NYCRR 23-1.7 is not applicable. Having searched the record provided and a careful review of the uncontroverted facts of the circumstances surrounding Plaintiff's accident, the Court finds that NYCRR 23-1.7(b) is not applicable to the instant case.

Accordingly, it is hereby

Ordered, Plaintiff's complaint as against Novalex Contracting Corp. and 96 Rockaway, LLC is hereby dismissed, and it is further

Ordered, Plaintiff's labor claims against T Construction Co., Inc. are hereby dismissed.

Accordingly, Novalex Contracting Corp. and 96 Rockaway, LLC claims for indemnification against T Construction Co. are moot.

This constitutes the Decision and Order of this Court.

Dated: December 7, 2007

Hon. Mary Ann Brigantti-Hughes, J.S.C.