Guallpa v Club at Turtle Bay

[*1] Guallpa v Club at Turtle Bay 2009 NY Slip Op 51064(U) [23 Misc 3d 1133(A)] Decided on June 1, 2009 Supreme Court, Kings County Schneier, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 1, 2009
Supreme Court, Kings County

Manuel Guallpa, Plaintiff,

against

The Club at Turtle Bay, ROBERT J. CUBITTO, AS PRESIDENT OF THE BOARD OF MANAGERS OF THE CLUB AT TURTLE BAY, HALSTEAD MANAGEMENT COMPANY, LLC, AND BREND RENOVATION CORPORATION, Defendants,



20811/06



ATTORNEYS FOR PLAINTIFF TAUB and MARDER

450 SEVENTH AVENUE

37TH FLOOR

NEW YORK, NEW YORK 10123

212- 967-1122

ATTORNEYS FOR DEFENDANTS

MARGARET G. KLEIN & ASSOCIATES

200 MADISON AVENUE - 6TH FLOOR

NEW YORK, NEW YORK 10016

212- 683-9700

ATTORNEY FOR DEFENDANTS/THIRD-PARTY PLAINTIFFS

AHMUTY, DEMERS & McMANUE

200 I.U. WILLETS ROAD

ALBERTSON, NEW YORK 11507

516- 294-5433

Martin Schneier, J.

In this work related personal injury action plaintiff alleges violations of Labor Law Sections 240(1), 241(6) and 200, and common-law negligence. The defendants The Club At Turtle Bay, Robert J. Cubitto, as President of the Board of Managers Of The Club at Turtle Bay, Halstead Management Company, LLC (collectively, the "Turtle Bay defendants), the owner and managers, cross-claimed against defendant Brend Renovation Corporation (Brend), the general contractor, for indemnification. Brend then commenced the third-party action for indemnification against Kracow Restoration Corp. (Kracow), Brend's subcontractor and the plaintiff's employer. The Turtle Bay defendants move for summary judgment pursuant to CPLR Section 3212, dismissing the plaintiff's Labor Law §§ 200, 240(1) and common-law negligence claims and, for summary judgment on its contractual and common-law indemnity claims against Brend.

The plaintiff cross-moves for summary judgment on his Labor Law

§ 240(1) claim. Brend cross-moves pursuant to CPLR Section 3212 for summary judgment dismissing the Labor Law § 240(1) claim.

Background

The facts are uncontroverted.

Plaintiff was employed as a bricklayer by Kracow which was doing facade restoration work on the building at 236 East 47th Street, New York

(the "premises"). Plaintiff was working at the premises laying bricks from a hanging scaffold that was situated at the fifth floor level. At the same time, other workers were engaged in demolition work directly above the plaintiff, between the seventeenth and eighteenth floors. As plaintiff was lowering the scaffold to the ground, a falling brick struck his right ankle as the scaffold passed the second floor level. The brick fell approximately 13 to 14 stories.

Discussion

As a preliminary matter, the Turtle Bay defendants argue that plaintiff's cross-motion for summary judgment "must be denied as untimely because it has been served [*2]more than sixty (60) days after the filing of the Note of Issue." The plaintiff's cross-motion was, in fact, served 66 days after the filing of the Note of Issue. "However, an untimely motion or cross motion for summary judgment may be considered by the court where, as here, a timely motion for summary judgment was made on nearly identical grounds. In such circumstances, the issues raised by the untimely motion or cross motion are already properly before the court and thus, the nearly identical nature of the grounds may provide the requisite good cause (see CPLR 3212 [a]) to review the untimely motion or cross motion on the merits. Notably, the court, in the course of deciding the timely motion, is, in any event, empowered to search the record and award summary judgment to a nonmoving party (see CPLR 3212 [b])(Grandev v Peteroy, 39 AD3d 590, 591-92 [2d Dept 2007][internal citations omitted]). The grounds for the cross-motion are "nearly identical" to those in the main motion. Accordingly, the Court will consider the plaintiff's cross-motion.

Summary judgment is a drastic remedy that should only be employed when there is no doubt as to the absence of any triable issues of a material fact. (Kolivas v Kirch,14 AD2d 493 [2d Dept 2005]) "Issue finding, rather than issue determination is the courts function. If there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied." (Celardo v Bell 222 AD2d 547 [2d Dept 1995])

The party moving for summary judgment has the initial burden of coming forward with admissible evidence that establishes the absence of a material issue of fact (CPLR § 3212[b]; GTF Marketing, Inc. v. Colonial Aluminum Sales, Inc., 66 NY2d 965, 968 [1985]). However, once the moving party has satisfied this obligation, the burden shifts; "the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action" (Zuckerman v. City of New York, 49 NY2d 557, 560 [1980]).

Labor Law Section 240(1) provides, in pertinent part, that: "All contractors and owners, and their agents.....who contract for

but do not direct or control the work, in the erection, demolition.....of a building or structureshall furnish or erect, or cause to be furnished orerected for the performance of such labor, scaffolding,hoists, stays, ladders, slings, hangers, blocks, pulleys,irons, ropes and other devices which shall be so constructed,placed and operated as to give protection to a person soemployed."

"To prevail on a cause of action pursuant to Labor Law § 240(1), a plaintiff must prove both that the statute was violated and that the violation was a proximate cause of his injuries" (Galvan v. Triborough Bridge and Tunnel Authority, 29 AD3d 517, 517 [2d Dept 2006]). Liability may arise from falling objects or falling workers (Narducci v. Manhasset Bay Assoc., 96 NY2d 259 [2001]). In the instant case, it is undisputed that plaintiff was struck by a falling brick.

In Narducci (supra), the Court of Appeals stated "for section 240(1) to apply, a [*3]plaintiff must show more than simply that an object fell causing injury to a worker. A plaintiff must show that the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute" (id. at 268).The defendants move for summary judgment dismissing the Labor Law § 240(1) claim on the grounds that the brick which struck plaintiff did not fall while it was being hoisted or secured and, therefore, they did not violate this statute. The Court of Appeals, however, has recognized that this language is too constrictive and has subsequently ruled in 2008 that "[f]alling object" liability under Labor Law § 240 (1) is not limited to cases in which the falling object is in the process of being hoisted or secured" (Quattrocchi v. F.J. Sciame Const. Corp. 11 NY3d 757, 758 [2008]). Accordingly, the Turtle Bay defendants' motion for summary judgment dismissing the Labor Law

§ 240 (1) claim is denied. The Turtle Bay defendants' motion for summary judgment dismissing the Labor Law § 200 and common law negligence claims is granted without opposition.

With respect to the plaintiff's cross-motion for summary judgment on his Labor Law § 240 (1) claim, the plaintiff has established his prima facie entitlement to summary judgment as a matter of law and the defendants have failed to raise an issue of fact in opposition.

The defendants have failed to comply with the statute by providing safety devices that would have prevented dangerous objects, in this instance a brick that fell from 13 to 14 stories, from falling upon workers below. The plaintiff's cross-motion for summary judgment on his Labor Law Section 240(1) claim is, therefore, granted.

The Turtle Bay defendants also move for summary judgment on their contractual and common-law indemnification claims against Brend. With respect to the claim for contractual indemnity, Brend argues that the contract does not indemnify the Turtle Bay defendants for their own negligence. Since Brend does not, however, offer any evidence of negligence on the part of the Turtle Bay defendants the motion for summary judgment on the contractual indemnity claim is granted.

With respect to the claim for common-law indemnity, "[i]t is well settled that an owner or general contractor held vicariously liable under Labor Law § 240 is entitled to full indemnification from the actively negligent subcontractor so long as the owner can show that it did not direct, control, or supervise the work of the subcontractor (Danaher v. Notarfrancesco, 213 AD2d 444, 445 [2d Dept 1995]). In this case, the Turtle Bay defendants seek indemnification from the general contractor, not the subcontractor. Furthermore, the movants have failed to establish active negligence on the part of Brend. Thus, the motion for summary judgment on its common-law indemnity claim is denied.

Conclusion

In sum, the motion by defendants The Club at Turtle Bay, Robert J. Cubitto, as President of the Board of Managers of The Club at Turtle Bay, Halstead Management Company, LLC and, the cross-motion by defendant Brend Renovation Corporation to dismiss the cause of action arising under Labor Law § 240(1) are denied. The motion by defendants The Club at Turtle Bay, Robert J. Cubitto, as President of the Board of Managers of The Club at Turtle Bay, Halstead Management Company, LLC for [*4]summary judgment dismissing plaintiff's Labor Law § 200 and common law negligence claims is granted without opposition.

The plaintiff's cross-motion for summary judgment on his Labor Law

§ 240 (1) claim is granted.

The motion by defendantsThe Club at Turtle Bay, Robert J. Cubitto, as President of the Board of Managers of The Club at Turtle Bay, Halstead Management Company, LLC for indemnity from Brend Renovation Corporation is granted with respect to the contractual indemnity claim and denied with respect to the common-law indemnity claim.

This constitutes the Decision and Order of the Court.

_______________________

J.S.C.