Kowalik v Lipschutz

[*1] Kowalik v Lipschutz 2010 NY Slip Op 50349(U) [26 Misc 3d 1232(A)] Decided on March 3, 2010 Supreme Court, Rockland County Jamieson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 3, 2010
Supreme Court, Rockland County

Adam Kowalik, Plaintiff,

against

Hadassah Lipschutz and PINCUS WEINBERGER, Defendants.



3667/2007



Neimark & Neimark LLP

Attorneys for Plaintiff

37 Congers Road

New City, NY 10956

Law Offices of Craig P. Curcio

Attorneys for Defendants

1 Edgewater Drive

Middletown, NY 10940

Linda S. Jamieson, J.

Defendants' motion seeks summary judgment dismissing the complaint in its entirety. At the outset, plaintiff concedes, in essence, that his claims under Labor Law § 240 have no basis and, accordingly, summary judgment as to those claims is granted.

The remaining claims that defendants seek to dismiss arise under Labor Law §§ 241(6) and 200.

With respect to Section 241(6), it is well-settled that "plaintiff was required to plead and prove a specific, positive demand' embodied in the Industrial Code. . . ." Sickler v. City of New York, 15 Misc 3d 48, 53, 834 NYS2d 607, 610-611 (NY Sup. App. Term 2007) (citations omitted). A plaintiff's failure to do so precludes liability under Section 241(6). Owen v. Commercial Sites, Inc., 284 AD2d 315, 725 NYS2d 574 (2d Dept. 2001). Here, plaintiff failed to "plead and prove a specific, positive demand embodied in the Industrial Code" until this motion for summary judgment was made. Under the circumstances present here, this is simply too late.

In this case, plaintiff served his first Verified Bill of Particulars in September 2007. Thereafter, plaintiff amended his complaint in December 2007, and again in May 2009. In none of these pleadings did plaintiff mention any specific provisions of the Industrial Code. In September 2009, plaintiff filed his Note of Issue, certifying that this case was, as of that date, trial-ready. In November 2009, defendants moved for summary judgment. It was only in response to the motion for summary judgment, approximately two and a half years after plaintiff had served his first complaint, and eight months after plaintiff had filed his third complaint in this action, that plaintiff first identified the provisions of the Industrial Code that he thought applied here. This is unacceptable; now that defendants have already had to answer three complaints, discovery is complete, and defendants have incurred the expense of a summary [*2]judgment motion, plaintiffs cannot first set forth information that they should have disclosed at the outset of the litigation.[FN1]

The cases that plaintiff cites in support of his argument that it is not too late for him to first disclose the Industrial Code provisions in opposition to this motion are inapplicable here. In Dowd v. City of New York, 40 AD3d 908, 837 NYS2d 668 (2d Dept. 2007), one of the cases plaintiff relies on, the Court did allow the late amendment of plaintiff's bill of particulars, but only "provided that the plaintiffs make a showing of merit and that the amendment "involve[s] no new factual allegations, raise[s] no new theories of liability, and cause[s] no prejudice to the defendants." Id. at 911 (citation omitted). See also Latino v. Nolan and Taylor-Howe Funeral Home, Inc., 300 AD2d 631, 633, 754 NYS2d 289, 291 (2d Dept. 2002) ("The amendment presented no new factual allegations or new theories of liability, and did not prejudice the Nolans.").

That is not the case here, where plaintiff made no showing of merit; the amendment [FN2] raises new factual allegations and theories of liability; and there is substantial prejudice to defendants. Indeed, a review of the Second Amended Complaint — the third complaint in this matter — shows that neither the allegation that sawdust on the floor created a slipping hazard, nor the allegation that the saw lacked a guard (and that there was inadequate training in the use thereof), are alleged at all, even vaguely. Nor does the Verified Bill of Particulars give defendants enough information to have allowed them to pursue discovery on these two allegations (without speculating) . It is, therefore, too late for plaintiff to first disclose the sections of the Industrial Code upon which he relies, and plaintiff's cause of action under Labor Law § 241(6) is dismissed. See Smith v. Hercules Construc. Corp., 274 AD2d 467, 711 NYS2d 453 (2d Dept. 2000).

With respect to plaintiff's claim under Labor Law § 200, however, the Court finds that plaintiff has raised enough questions of fact about the control of the work site and the applicability of the homeowner's exemption to defeat defendants' motion for summary judgment. This claim may proceed to trial.

The parties are directed to appear for a Pretrial Conference, in accordance with this

Court's Part Rules, on May 6, 2010 at 9:30.

The foregoing constitutes the decision and order of the Court.

Dated:New City, New York

March __, 2010

____________________________

HON. LINDA S. JAMIESON

Justice of the Supreme Court [*3]

To:Neimark & Neimark LLP

Attorneys for Plaintiff

37 Congers Road

New City, NY 10956

Law Offices of Craig P. Curcio

Attorneys for Defendants

1 Edgewater Drive

Middletown, NY 10940 Footnotes

Footnote 1:The Court notes that this is not the sort of case in which the applicable Code provisions only became clear after extensive discovery. That being said, defendants should not have to speculate about what plaintiffs were likely relying upon.

Footnote 2:Plaintiff calls it a "supplemental" Bill of Particulars, but it is really an amendment. Regardless of what it is called, it is far too late. See Morris v. Queens Long Island Medical Group, 49 AD3d 827, 854 NYS2d 222 (2d Dept. 2008).