Roque v 475 Bldg. Co., LLC

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Roque v 475 Bldg. Co., LLC 2017 NY Slip Op 32192(U) September 14, 2017 Supreme Court, Bronx County Docket Number: 305076/2014 Judge: Jr., Kenneth L. Thompson Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX IA 20 X ALEJANDRO ANTONIO ROQUE, Index No: 305076/2014 Plaintiff, -against- DECISION AND ORDER 475 BUILDING CO., LLC and 475 MANAGING MEMBER, LLC, Present: HON. KENNETH L. THOMPSON, JR. Defendants. The following papers numbered 1 to 6 read on this motion for summary judgment No On Calendar of June 16, 2017 PAPERS NUMBER Notice of Motion-Order to Show Cause - Exhibits and Affidavits Annexed------------------_ _ l, 4_ _ Answering Affidavit and Exhibits-------- ---------------------------------------------------- 2, 5_ _ Replying Affidavit and Exhibits--------------------------------------------------------------- 3, 6_ _ Affidavit------------------------------------------------------------------------------------------Pleadings -- Exhibit--------------------------------------------------------------------------------Memorandum of Law-------------------------------------------------------------------------------------Stipulation -- Referee's Report --Minutes--------------------------------------------------------------Filed papers-------------------------------------------------------------------------------------------Upon the foregoing papers and due deliberation thereof, the Decision/Order on this motion is as follows: Defendants move pursuant to CPLR 3212 for summary judgment dismissing the complaint in this Labor Law action. Plaintiff cross-moves for a default judgment against defendants for their failure to serve an answer to the amended complaint. Defendant, 475 Managing Member, LLC, (Managing), moves pursuant to CPLR 321 l(a)(S) to dismiss the amended complaint as against it for lack of personal jurisdiction. This action arose as a result of personal injuries sustained by plaintiff when a nail he was attempting to remove from a scaffold, struck him in the eye. Plaintiff admitted to having googles at home the day of his injury, that were provided by a previous employer. The affidavit of service indicates that service of process was made upon Managing, a foreign limited liability corporation, pursuant to Limited Liability [* 2] Company Law 303, by serving the Office of the Secretary of the State ofNew York. Plaintiff admits that the attempted service was made pursuant to LLCL 304 not LLCL 303 as indicated on the affidavit of service. However, LLCL 304 requires not only service upon the Office of the Secretary of the State ofNew York, but pursuant to LLCL 304(c)(l) or (2), there must be some form of service of process made upon the foreign limited liability company from a list of specified alternative forms of service. Admittedly, none of the specified forms of service in LLCL 304( c)( 1) or (2) were employed by plaintiff. Accordingly, process was not properly served upon Managing. With respect to the defendants' motion to dismiss on substantive grounds, the Labor Law 200 and 240(1) causes of action are dismissed without opposition. With respect to plaintiffs Labor Law 241 (6) cause of action, all the predicate alleged Industrial Code violations cited in plaintiffs Bill of Particulars are dismissed without opposition except Industrial Code 23-1.8(a). Plaintiff cites to the following case. At the very least, in our view, a viable cause of action raising triable issues was presented under Labor Law § 241 (6), and more particularly pursuant to the regulation promulgated by the Industrial Board of Appeals (12 NYCRR 23-1.8 [a]), which provides: "Eye protection. Approved eye protection equipment suitable for the hazard involved shall be provided for and shall be used by all persons while employed in welding, burning or cutting operations or in chipping, cutting or grinding any material from which particles may fly, or while engaged in any other operation which may endanger the eyes." (Emphasis added.) Cappiello v. Telehouse Int'l Corp. ofAm., 193 A.D.2d 478, 479 [1st Dept 2 [* 3] 1993]). The facts of Cappiello are similar to the facts of this action. Cappiello was a carpenter who was driving a nail into plywood to attach it to underlying concrete. The nail flew back and hit him in the eye. Whether Industrial Code 23-1.8(a) was violated in the instant action is an issue of fact and cannot be decided as a matter of law. Plaintiffs motion for a default judgment is denied. Defendants provided a reasonable excuse for their failure to timely interpose an amended answer, and provided a meritorious defense. Accordingly, the Verified Answer to the Amended Verified Complaint, served with the cross-motion to dismiss the complaint, is deemed timely served upon plaintiff. CONCLUSION Defendant, 475 Managing Member, LLC's motion pursuant to CPLR 321 l(a)(8) to dismiss the amended complaint as against it for lack of personal jurisdiction is granted. Defendants motion pursuant to CPLR 3212 for summary judgment dismissing the complaint is granted to the extent that plaintiffs claims of violation of Labor Law 200 and 240( 1) are dismissed, and the plaintiffs claim of violation of Labor Law 241(6) is dismissed to the extent that all the predicate alleged Industrial Code violations cited in plaintiffs Bill of Particulars are dismissed except Industrial Code 23-l.8(a). Plaintiffs cross-motion for a default 3 [* 4] judgment against defendants for their failure to serve an answer to the amended complaint is denied. The Verified Answer to the Amended Verified Complaint, served with the cross-motion to dismiss the complaint is deemed timely served upon plaintiff. The foregoing constitutes the decision and order of the Court. N JR. J.S.C. KEN 4

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