Sollitto v 7 Third Ave. Fee, LLC.

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Sollitto v 7 Third Ave. Fee, LLC. 2018 NY Slip Op 32118(U) July 9, 2018 Supreme Court, Bronx County Docket Number: 308244/2011 Judge: Norma Ruiz 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] /.--------..._,_ SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF THE BRONX-PART 22 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X MICHAEL SOLLITTO Index No. 308244/2011 Plaintiff, - against - DECISION/ ORDER 7 THIRD AVENUE FEE, LLC., et al. Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X Hon. Norma Ruiz Upon the foregoing papers defendants RIVCO CONSTRUCTION CORP, 7 THIRD A VENUE FEE, LLC, 7 THIRD A VENUE LEASEHOLD LLC, SAGE REAL TY LLC, and HUNTER ROBERTS CONSTRUCTION move and cross-move for summary judgment pursuant to CPLR 3212. After careful consideration of the motions and respective opposition thereto and upon due deliberation, the motions are decided as delineated herein. Plaintiff, an electrician, was performing work at 777 Third A venue, a commercial skyscraper owned by defendants 7 THIRD A VENUE FEE, LLC, 7 THIRD A VENUE LEASEHOLD LLC, and managed by defendant SAGE REALTY LLC. Defendant HUNTER ROBERTS was the general contractor and hired plaintiffs employer as the electrical subcontractor. Defendant RIVCO CONSTRUCTION CORP ("RIV CO") was the drywall and ceiling subcontractor. Plaintiff alleges that while engaged in renovating a space within the building, he ascended an A-frame ladder that "violently" shook and caused him to fall, sustaining injury. Plaintiff commenced the instant action alleging violations of Labor Law §§ 200, 240 (1) and 241 (6) and asserting claims for common law negligence. [* 2] The court's function on this motion for summary judgment is issue finding rather than issue determination (Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395 [1957]). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue (Rotuba Extruders v Ceppos, 46 NY2d 223 [1978]). The party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted and the papers will be scrutinized carefully in a light most favorable to non-moving party (Rodriguez v Parkchester South Condominium, Inc., 178 AD2d 231 [1st Dept. 1991 ]). The movant must come forward with evidentiary proofin admissible form sufficient to direct judgment in its favor as a matter of law (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). A party seeking summary judgment may not merely point to gaps in the opponent's proof to obtain relief. Rather, the movant must adduce affirmative evidence ofit entitlement to summary judgment (Torres v Industrial Container, 305 AD2d 136 [1st Dept. 2003]). Thus, when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied (Stone v Goodson, 8 NY2d 8 [1960]); Sillman v Twentieth Century Fox Film Corp., supra.). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Lesocovich v 180 Madison Avenue Corp., 81NY2d982 [1993]). Upon this showing, the burden shifts to plaintiff to come forward with sufficient evidence in admissible form, to defeat defendant's motion (Licari v Elliott, 57 NY2d 234 [1982]). DefendantRIVCOCONSTRUCTIONCORPmovesforsummaryjudgmentcontendingithad no supervision and control over plaintiffs work, nor did it act as an agent for the general contractor, and thus it can have no liability under the Labor Law, statutorily or otherwise. Further, RIVCO contends that there is no evidence that it created a hazardous condition nor did RIV CO have actual 2 [* 3] or constructive notice of any hazardous condition or defect such that they cannot be held liable for common law negligence. The court agrees. Labor Law§§ 200, 240 (1) and 241 (6) impose liability only upon owners, general contractors and their agents-RIVCO doesn't fit the bill for any of these. Further, as to plaintiffs claims for common law negligence, there is no evidence that RIV CO created any hazard giving rise to plaintiffs injuries. Although plaintiff alleges the defective ladder might have belonged to RIV CO, there is no evidence, beyond mere speculation, that will suffice to defeat summary judgment. The complaint, and all cross-claims against RIVCO, are hereby dismissed. The remaining defendants have demonstrated their prima facie entitlement to summary judgment as to plaintiffs Labor Law§§ 200, 241 (6) and common law negligence claims, ONLY. First, there is no evidence that defendants had any direction or control over the manner of plaintiffs work, such that liability under Labor Law § 200 would attach (see Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 505 [1993]). In fact, plaintiff himself testified that he took direction from no one other than his employer. As to plaintiffs common law negligence claims, there is no evidence that any of the herein defendants created a hazardous condition or had actual or constructive notice of same. Accordingly, plaintiffs common law negligence and Labor Law § 200 claims are dismissed as to all defendants. Next, in order to establish a violation of Labor Law§ 241 (6), the underlying statute or rule that the violation is premised upon must be one that mandates concrete specifications rather than a general safety standard (Rizzuto v L.A. Wenger Contr. Co., Inc., 91NY2d343, 349 [1998]). Plaintiff failed in this regard and his ad hoc attempts to cite the requisite "concrete specifications" for the first time in opposition will not be considered. Notably, plaintiff did not cross-move or otherwise seek to amend his complaint or bill of particulars to assert these Industrial Code violations (cf Galarraga 3 [* 4] v City ofNew York, 54 AD3d 308, 310 [2d Dept 2008]). Accordingly, plaintiffs Labor Law§ 241 (6) claims are dismissed as against all defendants. Notwithstanding, there are triable issues of fact surrounding plaintiffs remaining Labor Law § 240 (1) claim. Labor Law§ 240 (1) imposes a nondelegable duty and absolute liability upon owners, general contractors, and their agents for failing to provide safety devices necessary for workers subjected to elevation-related risks in circumstances specified by the statute (Fabrizi v 1095 Ave. of the Ams., LLC, 22 NY3d 658, 662 [2014]). "Labor Law§ 240 (1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person" (Ross vCurtis-Palmer Hydro-Elec. Co., 81NY2d494,501 [1993]). To prevail on liability under Labor Law § 240 (1), the plaintiff must establish a violation of the statute, and that the violation was a proximate cause of the injuries (Blake v Neighborhood Haus. Servs. of N. Y City, 1 NY3d 280, 287 [2003]). Here, defendants actually illuminate the issue of fact that is fatal to their motion: it is not certain whether plaintiff fell from a ladder or injured himself in another manner. Accordingly, that will be for a jury, hearing plaintiffs testimony of what transpired, to assess plaintiffs credibility and determine whether the statute was violated. It is not the court's function on a motion for summary judgment to assess credibility (Ferrante v Am. Lung Ass'n, 90 NY2d 623, 631 [1997]). "Credibility determinations, the weighing of the evidence, and the drawing oflegitimate inferences from the facts are jury functions, not those of a judge ... ruling on a motion for summary judgment" (Asabor v Archdiocese ofNew York, 102 AD3d 524, 527 [1st Dept 2013] [citation and internal quotation marks omitted]). 4 [* 5] Accordingly, plaintiffs claims for common law negligence and Labor Law§§ 200 and 241 (6) are dismissed as to all defendants. Plaintiffs claims for Labor Law § 240 (1) survive as against defendants 7 THIRD AVENUE FEE, LLC, 7 THIRD AVENUE LEASEHOLD LLC, SAGE REALTY LLC, and HUNTER ROBERTS CONSTRUCTION only. The complaint and all crossclaims are dismissed as to defendant RIVCO CONSTRUCTION CORP. Dated: /o :f q/t<:t. ENTE~ Norma Ruiz, J.S.C. 5

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