Matter of Jones v 260-261 Madison Ave. LLC

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Matter of Jones v 260-261 Madison Ave. LLC 2018 NY Slip Op 33104(U) December 4, 2018 Supreme Court, New York County Docket Number: 155495/15 Judge: Lynn R. Kotler 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: 1] NEW YORK COUNTY CLERK 12/05/2018 10:25 AM NYSCEF DOC. NO. 202 INDEX NO. 155495/2015 RECEIVED NYSCEF: 12/05/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 8 ----------------------------------------------------------------------------------------x IN RE: 260 MADISON AVENUE HVAC UNIT COLLAPSE DECISION/ORDER ----------------------------------------------------------------------------------------x This Decision/Order Relates To: Kenneth Jones v. 260-261 Madison Ave. LLC et al., Richard Beck v. 260-261 Madison Ave. LLC et al. -andGregory Welch v. 260-261 Madison Ave. LLC et al. Ind. No. 155495/15 Mot Seq. No. 007 Ind. No. 152458/17 Mot Seq. No.003 Ind. No. 162167/15 Mot Seq. No. 006 Present: Hon. Lynn R. Kotler, J.S.C. ----------------------------------------------------------------------------------------x These actions arise from a crane accident which occurred on May 31, 2015 at 261 Madison Avenue, New York, New York, when an HVAC chiller unit fell while being hoisted by the crane to the 3Q1h floor of the subject premises. Its alleged that one of the straps on a sling was used to secure the HVAC unit snapped while it was being hoisted which caused property damage and personal injuries. In the three motions referenced above under index numbers 155495/15, 152458/17 and 162167/15, defendant Bay Crane Service Inc. ("Bay Crane") moves for summary judgment pursuant to CPLR § 3212 dismissing the complaint and all cross-claims against it. Defendant 260-261 Madison Avenue LLC ("260-261 Madison") oppose the three motions. No other party has taken a position with respect to Bay Crane's motions for summary judgment. The motions are hereby consolidated for the court's consideration and disposition in this single decision/order. The relevant facts are as follows. Bay Crane leased a mobile crane to Skylift Contractor Page 1of5 2 of 6 [*FILED: 2] NEW YORK COUNTY CLERK 12/05/2018 10:25 AM NYSCEF DOC. NO. 202 INDEX NO. 155495/2015 RECEIVED NYSCEF: 12/05/2018 Corp. which Skylift used to hoist an air conditioning unit up into the building at 260-261 Madison Avenue, New York, New York on May 31, 2015. The air conditioning unit became loose from the rigging straps and fell to the ground. Bay Crane leased the crane to Skylift for the project pursuant to a written Standard Rental Agreement. Bay Crane argues that the complaint against it must be dismissed because it had no responsibility for the accident or the operations that led to the accident. It further argues that the crane was safe for its intended operations, that DOB declared immediately after the accident that the crane supplied to Skylift was safe, and that DOB and third-party testing confirmed that the crane functioned properly and was not defective prior to and even after the accident. Moreover, Bay Crane alleges that the Standard Rental Agreement provides that its only obligation was to provide the crane to Skylift, that it had no personnel at the site nor did a Bay Crane employee operate the crane or monitor or supervise the work of Skylift or any other contractor or vendor at the site. Finally, Bay Crane argues that defendant's contractual indemnification cross-claims must be dismissed because Bay Crane never agreed to indemnify 260-261 Madison under any circumstance and had no contract with 260-261 Madison. Defendant 260-261 Madison argues that Bay Crane's motions should be denied as premature because there is outstanding discovery, that Bay Crane did not satisfy its burden of proof as the proponent of a summary judgment motion, that there exist triable issues of fact, more specifically the denial that Chris Crosban was not an employee of Bay Crane and 260-261 Madison has identified conflicting evidence regarding Bay Crane's potential involvement. Discussion On a motion for summary judgment, the proponent bears the initial burden of setting forth evidentiary facts to prove a prima facie case that would entitle it to judgment in its favor, without the need for a trial (CPLR 3212; Winegrad v. NYU Medical Center, 64 NY2d 851 [1985]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). The party opposing the motion must Page 2 of 5 3 of 6 [*FILED: 3] NEW YORK COUNTY CLERK 12/05/2018 10:25 AM NYSCEF DOC. NO. 202 INDEX NO. 155495/2015 RECEIVED NYSCEF: 12/05/2018 then come forward with sufficient evidence in admissible form to raise a triable issue of fact (Zuckerman, supra). If the proponent fails to make out its prima facie case for summary judgment, however, then its motion must be denied, regardless of the sufficiency of the opposing papers (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; Ayotte v. Gervasio, 81 NY2d 1062 [1993]). Granting a motion for summary judgment is the functional equivalent of a trial, therefore it is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue (Rotuba Extruders v. Ceppos, 46 NY2d 223 [1977]). The court's function on these motions is limited to "issue finding," not "issue determination" (Sillman v. Twentieth Century Fox Film, 3 NY2d 395 [1957]). At the outset, to the extent that the defendant 260-261 Madison contends that summary judgment is premature because there is outstanding discovery from expert witnesses, to wit, depositions and written responses to discovery demands that may reveal relevant information regarding Bay Crane's potentially negligent operation of the crane and/or its causal link to the snapped sling and Crosban's employment status, this argument fails. Summary judgment is premature when "facts essential to justify opposition may exist but cannot then be stated" (CPLR 3212[f]). Here, aside from pointing to general categories of information, 260-261 Madison has failed to identify what specific information is in Bay Crane's possession which would enable it to defeat the motion. In the "Welch" and "Jones" actions, both pending since 2015, Bay Crane responded to the preliminary conference order as well as provided responses to 260-261 Madison boilerplate demands which it denied that it had any relevant documents, photographs, names of witnesses and statements etc. There is nothing in the record nor does 260-261 Madison explain what material or information it believes Bay Crane possesses to suggest that additional discovery would lead to a different result. Finally, 260-261 Madison Page 3 of 5 4 of 6 [*FILED: 4] NEW YORK COUNTY CLERK 12/05/2018 10:25 AM NYSCEF DOC. NO. 202 INDEX NO. 155495/2015 RECEIVED NYSCEF: 12/05/2018 didn't even sue Bay Crane in its own action under index number 157898/17. For all these reasons, the motions are not premature. Substantively, Bay Crane argues that it merely leased the crane to Skylift, that Skylift was required to retain its own team to operate the crane, that Bay Crane had no employees at the job site and that pursuant to the rental agreement it "did not and was not required to, supervise or monitor the work of Skylift or any other contractor or vendor at the site." Therefore, it argues, it had no responsibility or duty for any other contractor or other individual or entity at the accident site. 260-261 Madison oppose the motions claiming there was a question of fact as to "the relationship between Bay Crane, Skylift and Christopher Crosban and their respedive direction, supervision and control of the instrumentalities purportedly giving rise to the alleged incident". Here, movant has established that the crane was not defective prior to the accident and that there was no act or omission by it which caused of the accident. On March 6, 2017, NYC DOB Inspector John Moran testified under oath at the New York City Office of Administrative Trials and Hearings (OATH) hearing in the Matter of NYC Department of Buildings v. Brad Allecia, that he was present at the job site as Supervisor, Cranes and Derricks and that there were no issues with.the crane on the date of the accident. In addition, NYC DOB John Damiani, employed as Chief Inspector, testified that it's the master rigger's responsibility how the load should be slung. Brad Allecia is listed on the permit submitted to NYC DOB that he was the master rigger for the project at 261 Madison Avenue. Christopher Crosban also testified under oath that he was the crane operator and that he was working for Skylift on May 31, 2015. The fact that Christopher Crosban was a crane operator who has worked with many different rigging companies during his career is insufficient to create an issue of fact that he was an employee of Bay Crane on the date of the accident. Moreover, the alleged "Crosban affidavit" is not signed by Crosban nor is it notarized. Therefore, it is not in admissible form and cannot create a triable Page 4 of 5 5 of 6 [*FILED: 5] NEW YORK COUNTY CLERK 12/05/2018 10:25 AM NYSCEF DOC. NO. 202 INDEX NO. 155495/2015 RECEIVED NYSCEF: 12/05/2018 issue of fact. As the record shows, based upon the Bernardo affidavit and the Standard Rental Agreement, Bay Crane was no more than a lessor of the crane. It had no personnel at the site; nor did it control or direct the operation of the crane. No evidence was offered in opposition to Bay Crane's showing that it merely leased the crane to Skylift and did not supervise the crane operator or have any on-site responsibility. Based upon the foregoing, Bay Crane is entitled to summary judgment dismissing all claims and cross-claims against it in all three actions. Conclusion In accordance herewith, it is hereby ORDERED that defendant Bay Crane's motions for summary judgment under index numbers 155495/15 (motion seq 007), 152458/17 (motion seq. 003) and 162167/15 (motion seq 006) are granted in their entirety and the complaints and cross-claims against Bay Crane, are severed and dismissed. Dated: New York, New York December 4, 2018 Page 5 of 5 6 of 6

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