Nolan v J.C.S. Realty, LLC

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Nolan v J.C.S. Realty, LLC 2010 NY Slip Op 33738(U) February 3, 2010 Supreme Court, New York County Docket Number: 400046/2007 Judge: Judith J. Gische Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 21812010 [* 1] I - 1 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PART . #.--d- .. * Index Number : 40004612007 INDEX NO. NOLAN, MICHAEL vs. J.C.S. REALTY MOTION DATE MOTION SEQ. NO. SEQUENCE NUMBER : 001 MOTION CAI.. NO. SUMMARY JUDGMENT this motion to/for Notice of Motion/ Order to Show Cause Anrwerlng Affidavits - Affldavlts - Exhibits ... - Exhiblts Upon the foregolng papers, It I ordered that thlr motlon s FEB 0 3 2010 Dated: J. S C. . Check one: $ FINAL DISPOSITION Check if appropriate: I: NO .! i 1 DONOTPOST AL DISPOSITION [* 2] SUPREME C O U R T OF THE STATE OF N E W YORK COUNTY NEW OF YORK:IAS PART10 ____c___-____________________*__________I_l_l___-_____I_______ X Michael Nolan, DECISION/ ORDER Plaintiff (s), Index No.: Seq. No.: 400046/2007 001 -against- J.C.S. Realty, LLC, The Proctor & Gamble Company and As the World Turns, Recitation, as required by CPLR 9 2219 [a] of the papers considered in the review of this (these) rnotion(s): Numbered M n/m (CPLR 3212) w/BC amd, WJF affirm, exhs . . . 1 Def JCS x/m (CPLR 3212) w/PLR affirm, exhs . . . . . . . . . . . . . . . . . . 2 Pltf s opp to JCS x/m w/EJP affirm, exhs . . . . . . . . . . . . . . . . . . . . . . . 3 Defs P&G, ATWT opp to JCS dm, reply WNVJF affirm . . . . . . . . . . . . 4 JCS reply w/PLR afftrm, exh . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 6 Stip so ordered I1/18/09 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Papers . Defs P&G, A . Upon the foregoing papers, the decision and order of the court is as follows: Plaintiff Michael Nolan ( plaintiff) alleges he was injured while unloading carpet at the premises owned by defendant J.C.S. Realty, LLC ( Realty ). He has asserted Labor Law claims against each named defendant (sections 240, 241 [6]) as well as claims of ordinary negligence (Labor Law 5 200). Issue has been joined and the note of issue was filed on February 20, 2009.. Presently before the court is a motion and cross motion for summary judgment by the defendants. At oral argument plaintiff withdrew his Labor Law violation claims -Page 1 of 6- [* 3] against the defendants and all claims against Televest, incorrectly sued herein as Proctor & Gamble and As the World Turns. Hereinafter Proctor & Gamble and As the World Turns will be referred to as Televest, although no longer a part of this case. Televest s motion was filed timely brought, within 120 days of the note of issue being filed and it was filed on June 22, 2009. The cross motion by Realty for summary judgment was served June 22, 2009 which is within 120 days after the note of issue was filed, Realty did not, however, file its cross motion with the court until September 16, 2009. Plaintiff argues that because Realty s motion was not filed within a 120 days of the filing of the note of issue, it is untimely and should be denied for that reason, without reaching the merits. A motion on notice is made when it is served (CPLR 221 I). is also true of This a cross motion (Rosario v P,R. Kanvon & SQn, 258 AD2d 265 [IAt 19991). Dept Therefore, the cross motion by Realty for summary judgment is timely, although it was filed after the 120 day period to make a motion had expired (Russo \I, EVas Development CgrB., 256 AD2d 566 [2ndDept 19983). Since the cross motion is timely, it will be decided on the merits. The court s decision and order is as follows: Arguments Plaintiff claims that on March 7 , 2005 he was injured when some improperly stored rolls of carpet he fell on him. At the time of his accident, plaintiff was employed as a stagehandlbayman by J.C. Studios, LLC ( Studios ), a non-party to this action. Studios leased space at the premises located at 1268 East 14thStreet, Brooklyn, New Ywk ( premises ). The premises are owned by Realty. Realty and Studios have some officers in common. Pursuant to an operating agreement between and Televest made -Page 2 of 6- [* 4] in March 2005, Studios prodded production facilities, services and personnel for As the World Turns. Plaintiff was deposed and testified at his deposition ( EBT )that he was instructed by Sal Rotondo to get a roll of carpet from one of the racks located in the bay area of the studio. On the day of the accident Rotondo was employed by Studios as its crew chief and he was plaintiffs supervisor. Plaintiff testified at his EBT that Rotondo was the only person that he reported to, although there were other Studios workers in his crew (Nolan EBT p. 13). The rack where the carpet was stored was bolted to the wall and several feet off the ground. Plaintiff opened an 8 foot aluminum A-frame ladder and was standing on the second step from the top with one hand on one of the rolls when several rolls of carpet and linoleum tumbled down onto him. One of them hit him on the chest, knocking him to the floor. Realty contends it is entitled to summary judgment dismissing the complaint because it did not supervise or control plaintiffs work or any of the Studios employees. Michael Stiegelbauer, the manager of Realty was deposed. Stelgelbauer testified at his EBT that decisions about how rolls of carpet and linoleum were removed from these racks was made by Studios, in particular Larry Scotty ( Scotty ), one of Studio s employees and its facilities manager who was in charge of the bay. Steigelbauer testified that although Realty employees were present on a daily basis at the premises they collected rent and paid bills, but had no involvement with Studios employees. In opposition to Realty s motion, plaintiff argues that there is an issue of fact whether Realty indirectly controlled how the rolls in the bay area were stored because -Page 3 of 6- [* 5] !/dias j/?dh?/& have OfiCtYS h cOmmOn and Scotty, the facilities manager of ~~~~t~ afsa cmm 8 percentage of Studios. Discussion On a motion for summary judgment, it is the movant's burden to set forth evidentiary facts to prove its prima facie case that would entitle it to judgment in its favor, without the need for a trial (&clw rman v. Citv of New York, 49 N.Y.2d 557, 562 [1980]). The party opposing the motion must demonstrate, by admissible evidence, the existence of a factual issue requiring a trial of the action, or tender an acceptable 68 excuse for hislherlits failure so to do (Alvareg vaProSmct HOSP., N.Y.2d 320 [1986]). Having withdrawn all his Labor Law claims, the only remaining issue for the court to decide is whether Realty is entitled to summary judgment dismissing plaintiffs remaining claim for ordinary negligence. Where a plaintiff contends that the owner of the premises ig liable for his injuries, the owner, to prevail on its motion for summary judgment, must prove that it did have the authority to control the activity that caused injury (Rizruto v, Wea ner Contr, Co., 91 N.Y.2d 343, 352 [1998]; Come8 v. New Yarb State Elec. 8 Gas C orp., 82 N.Y.2d 876, 877 [1993]). If the owner has direct supervision or control over plaintiff's work or the work's safety, this establishes the requisite supervisory control (Pizzuto v. Weaner Contr, Co, , 01 N.Y.2d at 352-53; Havlin v. Citv Qf New Ywk, 17 AD3d 172, 172-73 [I@' Dept 20051). Plalntiffs own deposition testimony shows that he took directions from Rotondo and was instructed by Rotondo how to do his job. Rotondo was a Studios' employee, just like plaintiff. The EBT testimony of Realty's witness (Steigelbauer) is that Realty was only involved on the business side of Studios' operations and was not involved in -Page 4 O f 6- [* 6] how Studios did its job or stored its props. Plaintiff s argument, that both companies have officers in common, does not raise a triable issue of fact. There is no claim by plaintiff that at the time of his accident he was supervised by anyone other than Rotondo. Even if Scotty was an officer of both companies, there is no claim by plaintiff that Rotondo was really employed by Realty. Even had that argument been made, plaintiff has not come forward with any triable issues of fact that either company was negligent in the manner the rolls of carpet were maintained, had notice of a dangerous condition, or created the condition. Realty has met its burden on this cross motion for summary judgment dismissing plaintiffs claim of negligence. The plaintiff has not come forward with triable issues of fact to defeat the cross motion. Therefore, Realty s cross motion for summary judgment is granted and the remaining claim against Realty is hereby dismissed. Conclusion In accordance with the foregoing, IT I HEREBY: S ORDERED that the motion by Televest (incorrectly sued herein as Proctor & Gamble and As the World Turns ) for summary judgment is granted since plaintiff has voluntarily withdrawn all claims against that defendant (see stip so ordered 11/18/09); and it is further ORDERED defendant J.C.S. Realty, LLC s cross motion for summary that judgment is also granted since all Labor Law claims against that defendant were also withdrawn by plaintiff against that defendant and J.C.S. Realty, LLC has prevailed on -Page 5 of 6- [* 7] plaintiffs remaining claim against it for ordinary negligence; and it is further ORDERED the clerk shall enter judgment in favor of Defendant Televest that (incorrectly sued herein as Proctor & Gamble and As the World Turns ) and Defendant J.C.S. Realty, against plaintiff Michael Nolan, dismissing the complaint in its entirety and all cross claims between the defendants; and it is further ORDERED that any relief not expressly addressed herein is denied; and it is further ORDERED this constitutes the decision and order of the court. that Dated: New York, New York February 3, 2010 So Ordered: 3Y Hon. Ju th -Page 6 of 6- Gische, J.S.C.

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