Progressive Cas. Ins. Co. v Marjam Supply Co., Inc.

Annotate this Case

Download PDF

Progressive Cas. Ins. Co. v Marjam Supply Co., Inc. 2017 NY Slip Op 33190(U) June 28, 2017 Supreme Court, Ulster County Docket Number: 13-1727 Judge: Christopher E. Cahill Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] CASE#: 2013-1727 06/30/2017 DECISION&ORDER Image: 1 of 4 .~ .. c..:.i ' .f' STATE OF NEW YORK SYPREME COURT NICHOLAS WILEY, · ULSTER COUNTY Plaintiff, -against- Decision & Order . Index No.: 13-1727 MARJAM SUPPLY CO., INC., MARJAM SUPPLY OF BA YSHORE, INC., MARJAM SUPPLY OF REWE STREET, LLC., PLAYHOUSE AND ELWYNN LIMITED PARTJ\IERSHIP, WOODSTOCK COMMONS HOUSING. DEVELOPMENT FUNDING COMPANY, INC., RURAL ULSTER PRESERVATION COMPANY, INC., LIBOLT & SONS, INC., d/b/a AFFORDABLE HOUSING CONCEPTS, THE ROCKER II DRYWALL SERVICES, LLC., CHICKETA WATSON, JUMPSTART REALTY, LLC, HTR CONSTRUCTION LTD., TRI-CON CONSTRUCTION, LTD., MOMBASHA ELECTRIC CONTRACTING, INC., and DYNAMIC PLUMBING, HEATING & AIR CONDITIONING COMPANY, INC., Defendants. FILED _:iH~M JUN 30 2017 NINA POSTUPACK ULSTER COUNTY CLERK Supreme Court, Ulster County Motion Return Date: May 19, 2017 RJI No. 55-13-02129 Present: Christopher E. Cahill, JSC Appearances: MAINETTI, MAINETTI & O'CONNOR, PC Attorneys for. Plaintiff 130 North Front Street Kingston, New York 1240 l By: Michael Kolb, Esq. CARTAFALSA, SLATTERY, TURPIN & LENOFF Attorneys for Defendants Marjam Supply Co., Inc., Marjam Supply ofBayshore, Inc., and Marjam Supply ofRewe Street, LLC . · 660 White Plains Road Suite 400 Tarrytown, New York 10591 By: Christopher J. Turpin, Esq. I . [* 2] CASE#: 2013-1727 06/30/2017 DECISION&ORDER Image: 2 of 4 SHA.NTZ & BELKIN Attorneys for Defendants Playhouse and Elwynn Limited Partnership, Woodstock Commons Housing Deyelopment · Funding Company, Inc., Libolt & Sons, Inc., d/b/a Affordable Housirig Concepts · · 26 Century Hill Drive Suite 202 Lathani, New York 12110 By: M. Randolph Belkin, Esq. THE LAW OFFICES OF CRAIG P. CURCIO . Attorneys for Defendant The Rocker II Drywall Services, LLc 384 Crystal Run Road Suite 202 Middletown, new York 10941 By: Ryan Bannon, Esq. Cahill, J.: Plaintiff moves to reargue this court's prior order dated January 26, ~O 17 in which all defendants were awarded summary judgment. By this motion, plaintiff seeks reinstatement of his Labor Law. § 241. (6) cause of action against defendants Li bolt & . Sons, Inc., d/b/a/ Affordable Housing Concepts, Playhouse and Elwyn Limited Partnership, and Woodstock Commons Housing Development Funding Company, Inc., by / contending that the court improperly conclvded that 12 NYCRR 23-2. l was not sufficiently specific to support a cause of action predicated upon a violation thereof. A ·motion to reargue seeks to convince the court that it overlooked or misapprehended relevant facts or misapplied relevant law (see CPLR § 2221 [d] [2]; Adderley v State, 35 AD3d 1043, 1044 [2006]). Its purpose is not to permit a party to reargue, once again, the very questions the court has already decided (see Foley v Roche, 2 [* 3] CASE#: 2013-1727 06/30/2017 DECISION&ORDER Image: 3 of 4 68 AD2d 558 (i" Dept 1979). In the present case, to the extent that the decision was read in that manner, it.was in error. This court was responding to the argument advanced by plaintiff that there are two ·separate means to invoke 12 NYCRR 23-2.l (a) (I) in that "[a]ll building materials shall be stored in a safe and orderly manner"_or "[m]aterial piles shall be stable under all conditions and so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare." Following such contention, the c0urt noted that had such regulation been meant to be interpreted in the manner argued, i.e. - to store building materials in a "safe and orderly manner," the regulation would be deemed too general to supply a directive sufficiently specific to support a cause of action under Labor Law § 241 (6). While the court did cite to Ginter for such principle, it was meant tp demonstrate, in a general manner, how a regulation which is not "sufficiently specific" cannot be the foundation of such a claim under the Labor Law. In no way was this court concluding that 12 NYCRR 23-2.1 (a) (1) cannot be the basis ofa viable claim if the material piles were found to be either. unstable or obstructing passageways or other thoroughfares. As noted by defendants in opposition to th_is motion, this ·court found the rcgulationto be inapplicable not because it was unspecific, but because there was no viable challenge to defendant's prima facie proof establishing that the sheetrock at issue was stored in a stable manner and not obstructing and passageway or thoroughfare at the time of the accident. 3 [* 4] CASE#: 2013-1727 06/30/2017 DECISION&ORDER Image: 4 of 4 • For these reasons, this court grants.plaintiff's motion for reargument to the extent that it could be interpreted as misapprehending relevant facts or. inisapplying relevant law. However, upon reconsideration, this court will adhere to its original determination that no triable issue had been raised. All matters not decided herein are hereby denied. This shall constitute the decision and order of the court. The original decision and order and all other papers are being delivered to the Supreme Court Clerk for . transmission to the Ulster County Clerk for filing. The signing of this decision and order shall not constitute entry or filing under CPLR § 2220. Counsel is not relieved from the applicable provisions of that rule regarding notice of entry. FILED JHJLM JUN SO 2017 SO ORDERED. r NINA POSTUPACK ULSTER COUNTY CLERK Dated: Kingston, New York di!?, 2017 CHRI Papers considered: Motion dated March 13, 2017 with affirmation in support by Joseph E. O'Connor, Esq., with exhibits; afllrmation in opposition by M. Randolph Belkin, Esq., dated April26,2017. . 4

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.