Marney v Cornell Kent II Holdings, LLC

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Marney v Cornell Kent II Holdings, LLC 2018 NY Slip Op 31671(U) July 11, 2018 Supreme Court, Kings County Docket Number: 504701/13 Judge: Edgar G. Walker 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. [*FILED: KINGS COUNTY CLERK 07/17/2018 10:35 AM 1] INDEX NO. 504701/2013 NYSCEF DOC. NO. 252 RECEIVED NYSCEF: 07/17/2018 At an of IAS the State Adams day P R E N S E July, 90 of the in held York, at Supreme the on York, the at and Courthouse, New Brooklyn, Court for 360 1l* the 2018. T: EDGAR HON. Kings, Street, of New of of County Part Term, G. WALKER, Justice. - -------------- - - -----DENNIS - - - - - - - - --- -X X MARNEY, Plaintiff, - - against CORNELL KENT Index II HOLDINGS, RA CONSULTANTS, LLC HOLDINGS, 206 KENT REALTY No. 504701/13 LLC, KENT CORNELL 3RD 28 NORTH STREET, LLC, AND AVENUE OWNER, LLC, AND LLC, CORNELL LLC MANAGEMENT, Defendants. -------The --- - - - --papers following - - - - - - - - - - --- numbered 1 to 21 read - ----X on the motions herein: Papers Notice of Motion/Order Petition/Cross Affidavits Reply Motion Affidavits Affidavits LLC the complaint (RAC) 12,13,14,15,16,17 (Affirmation) Opposition pursuantto (plaintiff) 1-2.3-5,6-7,8-11 (Affirmations) Papers Upon moves, Annexed (Affirmations) Affidavit Other Numbered Cause/ and (Affirmations) Opposing Show to moves and papers, foregoing for CPLR3212, and for Reply all cross summary Briefs 18,19,20,21 defendant Cornell summaryjudgment claims judgment asserted disinissing 1 of 19 Realty LLC Management, dismissingplaintiffDennis against it. plaintiff Defendant s complaint (CRM) Marney's RA Consultants, and all cross [*FILED: KINGS COUNTY CLERK 07/17/2018 10:35 AM 2] INDEX NO. 504701/2013 NYSCEF DOC. NO. 252 claims RECEIVED NYSCEF: 07/17/2018 asserted against Holdings, LLC plaintiff's it. complaint (collectively, Cornell all against cross all claims The 2013 instant while Avenue in order to construction 22, February RAC at agreed the Hager North). in property an were Reichman managed the the proper property entity was property March asked prepared of 2013, at was a that, inasmuch and to owned prior deposition it that his sign off "mistake" on the by to why for by in a vacant the lot). The at the the Inc. proposal. 2 2 of 19 claims. behalf of 28 was sign to this be the the and At in which the Street, the were borings Shifra day, 3d sold on accident, same proposal owner being several Cornell. proposals Kent were CRM drill North 28 16, at 206 the of North April excavation to (WGI)to separate to before On accident, CRM as Comell on on samples on behalf defendant two for 200 located Prior conditions. by and plaintiff lot property proposal George RAC dismissing (6) core building. subsurface Kent cross-moves 241 §§ sustained a written Warren the proposal the in signed Cornell judgment Plaintiff Law samples or and History residential 10-story determine it. Labor conditions employer, to against injuries property Reichman identical testified subsurface plaintiff's signed, When (the summary Procedural core to take rig a planned order However, Cornell. was to retain and LLC Holdings, for his personal the Solomon 2013, signed proposals on of York determine work out drilling New Brooklyn, under Facts arises a mobile using in drilled action II asserted defendants Background Kent cross-move Cornell) and judgment summary Defendants time the LLC (28 Mr. signed, since of to property it the property, merely it [*FILED: KINGS COUNTY CLERK 07/17/2018 10:35 AM 3] INDEX NO. 504701/2013 NYSCEF DOC. NO. 252 2 RECEIVED NYSCEF: 07/17/2018 t, On or about the April aforementioned drilling was on which mounted numerous components that were attached well as a 140 into the in When diameter. a Ortiz, "helper" employed the of results With respect employees' samples in the his that engineer at the create and alone job to drill present operator the drilled was during where the drill the core string) was samples drill four as line inches one by operations had hoses, was assisted usually that to the rig itself, a drill (i.e., attached using rig hydraulic drill, by drilling to The lot machinery rods spoon" a "split hole of drilling spun plaintiff site operate rig a boring did have was to observe log, of methods was not site job itself did drilling at the to he the bore rig, Also engineers means the permitted told function order testified not to that sole supervise who drive The drilling WGI. which to samples. the by used piece connected at the WGI. employer, a complicated engine work drilling Angel an engineer and recorded drilling. the testified Papp, soil operating RAC, was his by including which employed by was a diesel the performing owned parts head, taking was truck, moving a drill when ground a flatbed hammer pound began which rig, and to plaintiff 4, 2013, responsible not the tell him and that and plaintiff's for how duty to the any drilling RAC's work. safe to operate drill. 3 3 of 19 operation the machine, rigs, operations did not the drilling and and direct, that rig, the Walter that record his soil or control, plaintiff Similarly, of owner, WGI's inspect engineers drilling the RAC's operations, drilling himself that engineer RAC's was [*FILED: KINGS COUNTY CLERK 07/17/2018 10:35 AM 4] INDEX NO. 504701/2013 NYSCEF DOC. NO. 252 RECEIVED NYSCEF: 07/17/2018 At the for lot the approximately time period, the time transmission lack to of he of WGI taken. a swivel to to to plaintiff gear reverse use the come malfunctioned rods held of plaintiff apart, and motor have the in a counter the In the two basic motor into into gear. forward to power clockwise did so, while downward rotation head to the my which clockwise, wrench hand twist ripped went quickly on was of it off the still the my rod from re-tightened 'cocked' As the stabilizing wrench or it on 'grabbed' twisted the the As a result, my hand. It only 4 4 of 19 needed and as downward rod. The thumb, a quarter or and the of into plaintiff rods began According However, rods, motor two handle. gear. the a part to perform allowed counter rotating when rig obtain drill the that: "[t]he the order This clutch neutral went unexpectedly in put rods. transmission on were "breaking direction. connected complained down" of and as the actions store terms, wrench he work process with as well remedial a hardware the clockwise motor's the to pipe that drilling Ortiz 24" hoses," no this issues testified performing began including at during "blown but samples testimony, rig further core drilling drilling problems Mr. a using been "swivel," together. to unscrew put motor sent threaded rod rod top these plaintiff were the Plaintiff was plaintiff released should about plaintiff lower the drill the that the spin so as to power this plaintiff, avers drill the rods. Thereafter, had deposition with bearings, Ware, accident, hose. Ortiz to plaintiff's drilling As a result, the two work, the Mr. problems pump the Robert "blew." repair water to hold vise before disconnecting this the and According numerous supervisor, hose needed 10 days. clutch, Shortly plaintiff accident, experienced a hydraulic his the a it machine plaintiff to [*FILED: KINGS COUNTY CLERK 07/17/2018 10:35 AM 5] INDEX NO. 504701/2013 NYSCEF DOC. NO. 252 RECEIVED NYSCEF: 07/17/2018 rotation before the turn caused the cock down and Although plaintiff accident. In not this been 206 work construction to catch tight frame the again, of he was that it was in accident, Avenue been off gloves, testified Kent were come finger." work the had pieces which the in machine, my issued Following to defendant rod wrench plaintiff regard, gloves. wearing property no had two or about undertaken to at the manipulate of January (Kent the At with the wrench time the of time the when Cornell 2014, Owner). connection in them wearing easier LLC Owner, not sold of the the sale, residential planned building. On his or injuries Law §§ complaint plaintiffs about August RAC against 240 200, defendants. the drilling the were forward not (6). when II claims him had to properly, it should hold which have plaintiff rig. to lower maintains caused gone the the into motor neutral. 5 5 of 19 an his the rod that to with the drill for Labor summons and Thereafter, Owner CRM and accident was rod, which wrench gears/clutch on shift when from by that would the as caused plaintiffmaintains a pipe unexpectedly of defendants. In particular, hold recover violations Kent that to amended as party allegation vise action alleging defendants drilling a hydraulic manually addition, is the instant filed and28North adding the involving LLC, subsequently LLC Holdings, the Holdings, complaint have In commenced Plaintiff plaintiff's for rods. working gear 241 Kent amended should need the uncoupling Cornell conditions rig plaintiff 2013, Kent Underlying defects/unsafe obviated and (1), a second two and Cornell adding filed 14, drill have he was motor reverse to [*FILED: KINGS COUNTY CLERK 07/17/2018 10:35 AM 6] INDEX NO. 504701/2013 NYSCEF DOC. NO. 252 ) In their answers RAC against plaintiff 9, RECEIVED NYSCEF: 07/17/2018 filed obtained a note his action a default issue.1 of against Kent asserted 28 complete May 15, In an order filed on On North. and claims cross On Owner. against is now Discovery CRM as indemnification. judgment CRM, Law Labor plaintiff's plaintiff's argue not constitute the soil testing on the property defendants RAC, the took issue and fall that no moving was filed, Cornell's action. under act under of the 2015, March August 2017, motions instant 21, are before actual core work. defendants while filed of or owned his motion cross it may timely for be considered motions the by (Grande the the the court v Peteroy, 6 6 of 19 not In argue that performing particular, the samples does maintain that soil defendants this was such inasmuch 39 AD3d as more or Cornell than as it is nearly 590, the place construction judgment work regard, taking inasmuch property summary was to take In work no he all construction/excavation statute. that dismissing defendants accident. moving future the note as in order excavation further Cornell samples planned protection construction of Further, any these inasmuch time judgment summary so moving, at the drilling Claim (6) for statute the from the In work demolition attenuated to plaintiff of or excavation is too place cause § 241 move separately covered mere The 'Although CRM, not or that work accident. of (6) construction note ever note is excavation defendants work § 241 accident construction, the Cornell and RAC, Law Labor Plaintiff's the contractual and well as court. the of Cornell complaint, discontinued plaintiff plaintiff the common-law seeking voluntarily 2015, to 591-592 60 moving at the time excavation sold days the after identical [2007]). to [*FILED: KINGS COUNTY CLERK 07/17/2018 10:35 AM 7] INDEX NO. 504701/2013 NYSCEF DOC. NO. 252 RECEIVED NYSCEF: 07/17/2018 undeveloped lot to Law Labor plaintiff's State § 241 (6) cause In further it, control the for support inasmuch owner or property. the into in § 241 geotechnical for the notes agreement, to the support (6) planned his own all inasmuch analysis that defendants' that of needed residential Comell cross the as Cornell order was building, owned the determine and in fact sign to RAC 7 7 of 19 the hired dismiss type of plaintiff's a claim or § 241 agent was foundation employer the proper proposal. Law this § 241 statute, under liability RAC the for RAC Labor the owned the under hired its of proposal to (9) of Cornell RAC subject or under an that his claim (6) support Cornell CRM property, Law Law an identical are Labor liability judgment summary defendants moving to the that New supervise further fact signed motions for In undisputed a mistake, did motion to the not a contractor not as the § 241 did subject not that such Labor work, is it initially this that (6). argue his Law § 241 it of support Labor firm was to respective of in points that and and support to drilling Law that although testified the Labor property that, general engineering contends CRM regard, in sites also inasmuch them plaintiff's performed the against too dismiss under own Reichman the to CRM CRM or defendants moving plaintiff inapplicable, liability this contends initially Law needed In The dismissed which plaintiff not be a professional as from it did must motion judgment, opposition and its which it as Mr. enter claim, Labor in claim either that, Further, work, to plaintiff argues contractor. In (6) of summary statute party are exempts drilling regulations action manner specifically the (6) 2014. of January Code of RAC against in § 241 Industrial York motion Owner Kent to that to conduct would carry be out [*FILED: KINGS COUNTY CLERK 07/17/2018 10:35 AM 8] INDEX NO. 504701/2013 NYSCEF DOC. NO. 252 l RECEIVED NYSCEF: 07/17/2018 work. this subject plaintiff Thus, to concludes as liability an agent that of the Comell is subject RAC and owner, to is CRM as an liability subject owner, liability as to is a general contractor. In support own ofhis that maintains excavation notes project motion for drilling work that construction this involved not points until begin conducted and further notes notes out that the merely the at the under and property the excavation statute. stage of In an investigation the constituted a plaintiff regard, development underlying building. 10-story work construction of this in plaintiff (6), accident constructing and § 241 ofthe time the first Law Lahor and motions, on subsurface the building conditions was completed. plaintiff constituted plaintiff was under judgment is covered that judgment summary performing geotechnical the Alternatively, accident he was excavating plaintiff Specifically, work respective summary work geotechnical that defendants' to cross the and that could opposition further repair that the that it work repair is argues of that that is covered construction undisputed work the that he under equipment he was was Law Labor the § 241 drilling the (6). under is covered repairing at performing rig In this at the the regard, statute. the of time Plaintiff time of the accident. As regulations In particular, a final plaintiff matter, which plaintiff are both avers argues and specific that 12 that applicable NYCRR defendants 23-9.2(a), 8 8 of 19 given violated the which several circumstances requires Industrial of that the repairs Code accident. be made [*FILED: KINGS COUNTY CLERK 07/17/2018 10:35 AM 9] INDEX NO. 504701/2013 NYSCEF DOC. NO. 252 RECEIVED NYSCEF: 07/17/2018 I when a defect violated. In or this regard, the lack the drill gears/clutch on as the drilling NYCRR 12 in use be was not removed the Law Labor from but job areas in which work set owners forth in and the was enacted "[a]ll be up to the violated and or repaired avers but accident, the with inasmuch plaintiff safeguards plaintiff to defects/unsafe Finally, immediately Here, leading was parts. prior as problems these (d) devices, safety occasions correct was equipment, as well 23-9.2 moving shall that was not points equipment or restored the drilling repaired or excavation shall performed equipped, workers adequate and engaged in protections, agents their to comply Code v Curtis-Palmer 9 9 of 19 so safety to lawfully safety and be as to provide protection or or guarded, conducted contractors, (Ross that: part, therein places." to provide and pertinent adequate such reasonable general Industrial NYCRR rods to damaged." and employed frequenting upon drill made against is being shored, and persons with the construction, operated reasonable work if in provides, § 241(6) arranged, excavation 12 several on were and days hold operated site. constructed, which that site in the properly to him power complained that job with repairs operable, demolition statute, no requires the he vise to protect and "All The that a hydraulic motor, sound operating from of which removed immediately rig kept notes guards 23-1.5(c), shall discovered plaintiffmaintains lacked rig is plaintiff In addition, conditions. to condition regarding accident the unsafe Hydro-Elec. construction, places with the Co., demolition, a nondelegable specific 81 NY2d and duty safety 494, rules 501- [*FILED: KINGS COUNTY CLERK 07/17/2018 10:35 AM 10] INDEX NO. 504701/2013 NYSCEF DOC. NO. 252 502 [1993]). must forth (id. Heart, at 69 Inc., 502 statue not In this until project Plaintiff the (1) subsequent NY2d 452, or 241 and (6) [2003]; the 960 in and of Law caused by circumstances a mere 959, that, Mgt. the merely ofthe reiteration § 241(6), a violation and accident, common-law of ; Mugavero [1992] plaintiff notes initial that the of design inspection the the work entity excavation, Prats of v Port or of no v the AD2d takes his planned Windows By or demolition Auth. of New at a site is 10 10 of 19 not and to the protected work (Panek New place v County Jersey, 100 on the impacted well-settled that commencement under is not the conditions. directly it is prior preliminary work York take subsurface However, place under construction and investigation (6) plaintiff covered could not § 241 Indeed, excavation the does Law Labor is work building. the samples [1998]). work regarding work out of 713 excavation demolition carrying purposes geotechnical planned core drilling that completed the that for argues law, was findings 253 stage by itself, work Group., investigation when Labor under proximately than or demolition excavation, construction, 457 finds and construction, §§ 240 rather that construction action were given NY2d Instead, plaintiff notes testing actual court Resources a geotechnical injuries conduct excavation, regard, further preliminary of the as it was her 80 of a cause is applicable of otherwise. inasmuch or his v State, matter, contend support [2010]). v Environmental work. upon 694 construction, (Fielding does ; Ares AD3d to that standard As an initial constitute that provision Code a concrete principals order demonstrate an Industrial sets in Accordingly, a plaintiff of RECEIVED NYSCEF: 07/17/2018 Labor in the involved of NY2d Law Albany, 878, 99 881 [*FILED: KINGS COUNTY CLERK 07/17/2018 10:35 AM 11] INDEX NO. 504701/2013 NYSCEF DOC. NO. 252 ; Martinez [2003] 82 RECEIVED NYSCEF: 07/17/2018 AD3d when or excavation, the initial since the the that subsequent employer and "necessary that finding who took asbestos integral" "[s]uch while removal work at was 326). in In so an by the ruling, the reach and plaintiff's rejected Law Labor statute Law statute than beyond any § 241 (6), terms" clear its of during Labor the specifically under of the the other is Court asbestos under entity Court coverage determining enlarges improperly out carried This construction, under covered Corp., the for protected work the in Martinez, a building not removal to any to Const. [2002]). 292 291, Thus, inspecting was v Plaza integral place. project prior analysis a test injured AD2d and necessary takes Toro [1999]; 293 Inc., eventually place NY2d is 326 322, v Pfizer, was removal 93 (Martinez, that asbestos work NY2d work work a larger inspection the Adams l]; a worker of phase 93 York, preliminary demolition found Appeals [201 505-506 505, even true ofNew v City (id.). facts The plaintiff particular, § 241 (6) project. as part Further, construction business excavation actual in work of boring or excavation the was of an at had holes construction work instant case out carrying initial the work drilling begun plaintiff on the geotechnical work. merely carried property. out to an 11 of 19 those in excavation no work, and was to portray that actual construction excavation was WGI, no Law Labor and employer, to have In Martinez. under covered plaintiff's argument 11 otherwise this investigations attempt from a planned Finally, Plaintiff's amounts not of phase investigatory time for indistinguishable are role his work as the his work was in any first or in the future phase necessary of and [*FILED: KINGS COUNTY CLERK 07/17/2018 10:35 AM 12] INDEX NO. 504701/2013 NYSCEF DOC. NO. 252 integral the RECEIVED NYSCEF: 07/17/2018 Court of or without § 241 merit a non-construction As final a supplemental with which attached considered reasons plaintiff's by the stated filed the Thus, court above, drilling the work the does that not at the on York and Shifra 131 bring excavation plaintiff's 12 12 of 19 Building's 1209, and work the 1210 submitted on under it this [2015]). the of the ultimately that In sold the affirmation the that surreply a (DOB) Cornell claim construction filed owner However, improper the hose. of as the of time plaintiff Cornell's fully under 2018, that project. AD3d in at the Hager demonstrates an machinery of Here, 16, Labor In covered Department constitutes in injured. was swivel March deemed he is not [2008]). was test under a piece which City development matter actual time on parts notwithstanding v Whelan, fact that evidence the is covered a worn-out/blown Realty" submission ( Jannetti work 510-511 above, integral" and accident component New with after his as noted However, Law. maintenance, notes project Labor repair replacing this place. a "necessary the 510, "Cornell plaintiff, were date. of attached forward moving AD3d court development exhibits return 48 list to the without property after and According proceeded the matter, permits property. the process the out routine in affirmation construction 2018 constitutes of that worn replacing Co., use under carrying Prop. was the argument was that v Abner plaintiff accident, 2, as he take eventually is covered is plaintiff's context ( Deoki would rejected work it is well-settled particular, and not inasmuch (6) that specifically whether Also statute work Appeals determining Law excavation to the any February cannot event, work took protection of be for place Labor [*FILED: KINGS COUNTY CLERK 07/17/2018 10:35 AM 13] INDEX NO. 504701/2013 NYSCEF DOC. NO. 252 Law RECEIVED NYSCEF: 07/17/2018 § 241 soil the from the soil the if it is assumed provided samples remote" after even (6) samples Under the been Labor summary for judgment To § 241 all which of work took place for motions action defendants relied upon was "too several years 881). at RAC's cause (6) work this plaintiff's contrary, NY2d and CRM, against the work, 100 (Prats, Cornel, Law plaintiff's dismissing motion taken out carrying construction and circumstances, contractors work. excavation had the plaintiff's by actual that are under granted. Plaintiff's Law Labor his judgment summary cross § 241 claim (6) denied.2 is denied. Plaintiff's CRM, plaintiff's these drilling Labor to defendants Law and this In they of plaintiff purposes the had means accident, concedes of Labor was his that Law and not Labor the § 240 Law based upon may upon CRM § 240 over note out (1) used means they construction, claim is inapplicable (1). 13 13 of 19 in this and were his not that the case authority drilling employed by present as well. not his a conclusively or demolition was the under out even moving, liable methods be dismissed accident so had they excavation, must since held carrying evidence the that that In allegations be while dismissing action. only a showing the defendants, carrying statute are they or control authority of plaintiff methods Claim judgment summary causes claims theory moving Cornell as plaintiff the and no for malfunctioned, to the regard, 2Inasmuch for otherwise Negligence negligence plaintiff's negligence according that plaintiff. event, or control common-law since that, defective However, time note move separately and § 200/common-law demonstrates at the § 200 all was supervise work. Law Claim/Common-Law § 200 Cornell and RAC, Labor rig Law Labor at work In any gravity-related the [*FILED: KINGS COUNTY CLERK 07/17/2018 10:35 AM 14] INDEX NO. 504701/2013 NYSCEF DOC. NO. 252 RECEIVED NYSCEF: 07/17/2018 3, at the property control over time his plaintiff work. § 200/common-law wherein he indicate that his did sole a boring methods of maintain and log, that plaintiff by holes claims to project, compliance Cornell, with branch an expert safety as this the to observe of the the circumstances, and the common-law other than and create and means defendants moving negligence that rigs, drilling the to testified Papp, supervise and rig, drilling operations drilling control, testimony, Mr. WGI's or direct, Law work owner, inspect any Labor the drilling its exercised deposition operation that duty to not § 200 was the affidavit respective CRM, these and OSHA Law Labor his attached Shawn by violations were regulations. in claims support White. of In In his must this 14 14 of 19 in regard, own negligence be White Mr. maintains the Mr. the accident contractor failing Mr. general to White cross claims, on regulations. and agent, his report report, OSHA several negligent of § 200/common-law forensic/investigative owner's owners, RAC and motions, and engineer, caused defendants' of under judgment summary accident that, notes any Under Law safe have plaintiff's dismiss own over also was to not them. a professional plaintiff's did work. Labor opposition submits site engineers drilling plaintiff's job the supervision have could to plaintiff's for RAC not did at the the or therefore motion its points responsible be drilled. RAC function plaintiff's against for should of RAC control any by that was and work, support claims, alone employed employees' In he his in addition, exercise the engineers motion that not where dismissed In negligence stated RAC that performed ensure points White that further on there to that an the was OSHA [*FILED: KINGS COUNTY CLERK 07/17/2018 10:35 AM 15] INDEX NO. 504701/2013 NYSCEF DOC. NO. 252 RECEIVED NYSCEF: 07/17/2018 "Multi-Employer responsible for exercised at the extensive which common-law control the Co., § 200 is to AD2d or unsafe v Baker, at issue, property § 200 if the actual or v Puccia, AD3d dangers for broke argues these down held RAC that was employees took needed and and controlled, owners caused [2005] 563 [and either the 61 the repairs. supervised of the methods dangerous On or be may the liable materials hand, of 15 15 of 19 the "when work, limited to or constructive 4 AD3d caused caused a claim recovery the the Stanley 315 against ; [2004] condition of accident out the is Law Labor or accident" arises who those v Morgan a violation in sounding a premises for that that action actual Constr., "[w]here condition other is upon v Herbert (Kim (Bradley East held condition of have accident Specifically, dangerous [2008]). or who v Park work to § 200 placed duty causes Law work, ; Aranda place for underlying [1998]). the a safe Labor plaintiff's contractors] created notice 54, the of common-law the Liability violations over 562, with [2000]). 868 AD2d in and directed, of employees that 866, constructive 57 or owner RAC that be may engineer/consultant place machine drilling employer plaintiff RAC as a taking a codification 712 supervision AD3d 247 were one addition, inasmuch testified provide and condition 21 Inc., the merely 709, negligence exercise when In than WGI. by 275 work operations Mr.Reichman contractors Co., regulation. overhis drilling more whereby OSHA an indicated that Law and Constr. defects while performed owners Akins site directive supervision notes Labor of and notes work notice violation job Plaintiffalso the the control present Policy" Citation had (Ortega of alleged owner or [*FILED: KINGS COUNTY CLERK 07/17/2018 10:35 AM 16] INDEX NO. 504701/2013 NYSCEF DOC. NO. 252 contractor general be RECEIVED NYSCEF: 07/17/2018 charged had In the accident was upon used Here, and CRM at any he never and the him never had job site where Moreover, received about In rig. the Under against drilling rod as (Reyes well as RAC and control v Arco that a plaintiff's CRM, and and maintains drill Cornell, rig defects circumstances, to supervise authority the the to party (id.). plaintiff the the alleged by hold to that work" the particular, vise claims was of the means did it fair and facie In this regard, drilling rig his these respect not to methods say entities, to RAC, of were the are means and Wentworth did him Mgt. whatever what you 16 16 of 19 know testified to perform direction, doing that an this the control at the job site testified owned the employee actual present only drilling or supervision of that property, engineer time the Cornell at the plaintiff who it had that present Further, although were even lacked they it is undisputed not not how that showing work. himself instruct that and drilling plaintiff operations, and a prima work. from With "[i]s made performing CRM. holes, asked, have plaintiff's instructions the the RAC maintain drilling to drill using. of caused was drilling operating supervise or any during when while plaintiff heard the it is shown unless performance a hydraulic had they and own received was negligence that the accident of of § 200 l]). and when control plaintiff motor the CRM, not or lack 5 1 [201 47, Cornell, did time on plaintiff by to control authority the by Law Labor underlying that a showing AD3d 83 the equipment caused under § 200/common-law dependent methods had supervise case, clutch Law Corp., to instant malfunctioning Labor be authority in the inadequacies the cannot the at told work. you accident [*FILED: KINGS COUNTY CLERK 07/17/2018 10:35 AM 17] INDEX NO. 504701/2013 NYSCEF DOC. NO. 252 In [WGI]," from came for RECEIVED NYSCEF: 07/17/2018 machine and safety plaintiff addition, RAC's to owner the observe engineers Mr. did that RAC the not direct, opposition to when did and soil or control, his tell to rather that also not began he supervisor testified operations Plaintiff engineer that, WGI his Papp drilling "yes." responded testified complained he rig, plaintiff supervise how him the employees to order the means RAC's prima operate the and the methods the drilling Finally, job of site log, a boring rig. drilling engineer. at create responsible with RAC function to he was problems on-site sole in that experience than samples testified was and to that plaintiff's the drilling work. In to raise a triable supervise his controlled meant had I cannot driller or the show the holes that and they fact he later "location or control Reichman you how done notations controlled indicating and supervised fact drilling actual 17 17 of 19 that drilling the In addition, methods speak as who far the when the cannot the Further, overseeing "I as it." engineer made get and means that, of for words used [RAC] is responsible, RAC rig told broke work. control and directed and and when by asked WGI because wasn' I wasn't where is if during whether plaintiff down failed direction RAC that has to authority testified borings." of the the understanding supervision testified borings his plaintiff showing, had Reichman that over facie they Mr. explained borings, Mr. tell although of supervision whether regarding particular, work, any there. of In operations, drilling the work. WGI's control RAC issue and CRM, Cornell, insufficient it's to the drill to [*FILED: KINGS COUNTY CLERK 07/17/2018 10:35 AM 18] INDEX NO. 504701/2013 NYSCEF DOC. NO. 252 RECEIVED NYSCEF: 07/17/2018 plaintiff Finally, misplaced. In RAC, or Cornell, AD3d this 1050, carries who had the created which he was alone that had the drilling 3The direct RAC of the court the over already was work, over unsafe the plaintiff's the involving and means alleged drilling methods employers and employed who or violations. on the an Indeed, only deposition rig he in which conditions, defects own apply only [2012]). OSHA for responsible 151 Constr., manner expert, is against plaintiff 933 930, correct violations the plaintiff's by from and Inasmuch plaintiff's from RAC determined not must that performing as the Labor liability court Law under Law Labor plaintiffs CRM, has it is exempt the held Masonry by regulations Here, rig, drilling that testimony that the while only entity performing WGL plaintiff accident. issues safety control cited created it is clear Further, for be may CMC cited v any AD3d 91 work, defendants circumstances, Comell, since plaintiff's since was the against dismissed time and work Under claims of WGL by authority condition none responsible was that unsafe issue or control directive underlying not Inc. v Baker, OSHA upon regulations authority (Ramos control did Constr. OSHA the have work her to an owned Assocs. Responsibility authority undisputed is or reliance OSHA that event, any White's notes otherwise Multi-Employer otherwise it his Mr. March In that out court (compare [2017]). or parties employee underthe CRM expert his the regard, 1055 employers to and Labor construction, also § 241 the and common-law negligence dismissed.3 be plaintiff's has § 200 Law (6) 18 18 of 19 claim pursuant the must (6) claim or demolition excavation, determined statute § 241 RAC also to Labor did not be work control be dismissed Law must § 241 at the or against (9). [*FILED: KINGS COUNTY CLERK 07/17/2018 10:35 AM 19] INDEX NO. 504701/2013 NYSCEF DOC. NO. 252 RECEIVED NYSCEF: 07/17/2018 Cross The on part the court of contractual has in asserted against which CRM, Cornell, they party. another covering that RAC. or CRM, Cornell, agreements insurance determined already Claims the agreed RAC was of none Further, to and all such not these caused is no are for negligence any entered or party basis claims by defendants another indemnify there Consequently, or accident obtain ofthe any into any liability cross claims dismissed. Summary In plaintiff's dismissing cross and motion 200 for causes This CRM, Cornell, summary, complaint judgment summary of action constitutes and RAC's and all cross against respective claims the motions against defendants for them are under his summary judgment granted. Plaintiff's Labor Law is denied. the decision, order, and judgment of E the N T court. R J. S. C. T gggg YT.SUNSHINE Clerk BZ:BNV HU3 Lf 1AI'$Hjt 19 1" Al.HA03 U3 II~ SBHIH 19 of 19 §§ 241 (6)

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