Ramos v Blatt

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Ramos v Blatt 2018 NY Slip Op 33166(U) December 3, 2018 Supreme Court, New York County Docket Number: 158763/2017 Judge: Kathryn E. Freed 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] INDEX NO. 158763/2017 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 12/10/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. KATHRYN E. FREED PART IAS MOTION 2 INDEX NO. 158763/2017 Justice -------------------------------------------------------------------------------X GUILLERMO RAMOS, Plaintiff, MOTION SEQ. NO. 002 -vDAVID BLATT, CHERYL BLATT, EVE BLATT, CEPRINE CONSTRUCTION, INC, PROGENY RESTORATION CORP., HITE CONSTRUCTION INC., DECISION AND ORDER Defendants. --------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 29, 30, 31, 32, 33, 34, 35, 36, 37 were read on this motion to/for SUMMARY JUDGMENT In this personal injury action commenced by plaintiff Guillermo Ramos, defendant Ceprine Construction, Inc. d/b/a Ceprine Scaffolding Services ("C:eprine"), moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint and all cross-claims against it. After a review of the parties' papers and the relevant statutes and case law the motion, which is unopposed, is granted. FACTUAL AND PROCEDURAL BACKGROUND: On December 21, 2016, plaintiff, while employed at a construction site at 41 West 75th Street, New York, New York by a non-party employer, was allegedly struck by pieces of a scaffold. Plaintiff thereafter commenced this suit against defendants David Blatt, Cheryl Blatt, and Progeny Restoration Corp., alleging that his injuries resulted from defendants' negligence in 158763/2017 RAMOS, GUILLERMO vs. BLATT, DAVID Motion No. 002 Page 1of5 1 of 5 [* 2] INDEX NO. 158763/2017 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 12/10/2018 their maintenance and supervision of the construction site. Doc. No. 1. Issue was joined by Ceprine by service of its Verified Answer on or about December 11, 2017. Doc. No. 7. In their answers, defendants David Blatt, Cheryl Blatt, and Progeny Restoration Corp. ("Progeny") asserted cross-claims against each other and Ceprine for contribution and indemnification. (Docs. 13, 15). Defendant Progeny commenced a separate action against Hite Construction, Inc. ("Hite") under Index No. 151357/2018, which was consolidated with the within action under Index No. 158763/2017 by order of this Court dated July 12, 2016. Doc. No. 39. Ceprine now moves, pursuant to CPLR 3212, for summary judgment dismissing plaintiffs complaint and all cross-claims against it. In support of the motion, Ceprine submits a Stipulation of Partial Discontinuance (Doc. No. 31) between itself and the plaintiff, wherein plaintiff discontinues his action against Ceprine, without prejudice, based on an affidavit from Brian Friedenthal, the Operations Manager of Ceprine. Doc. No. 46. In his affidavit, Fridenthal avers that the only work Ceprine did at the subject premises was to install a supported steel frame pipe scaffold system at the rear of the building on April 17, 2017 and that Ceprine thus did not work at the premises until almost four months after plaintiff was injured. Ceprine additionally annexes a copy of the invoice between itself and Hite dated 4/18/2017. Doc. No. 45. LEGAL CONCLUSIONS: A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law on the undisputed facts. (See Wine grad v New York Univ. Med. 158763/2017 RAMOS, GUILLERMO vs. BLATT, DAVID Motion No. 002 Page 2 of 5 2 of 5 [* 3] INDEX NO. 158763/2017 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 12/10/2018 Ctr., 64 NY2d 851, 853 [1985].) The movant must produce sufficient evidence to eliminate any issues of material fact. (Id.) If the moving party makes a prima facie showing of entitlement to judgment as a matter of law, the burden then shifts to the party opposing the motion to present evidentiary facts in admissible form which raise a genuine, triable issue of fact. (See Mazurek v Metro. Museum ofArt, 27 AD3d 227, 228 [1st Dept 2006].) If, after viewing the facts in the light most favorable .to the non-moving party, the court concludes that a genuine issue of material fact exists, then summary judgment will be denied. (See Vega v Restani Constr. C01p., 18 NY3d 499, 503 12012]; Rotuba Extruder.\", Inc. v Ceppos, 46 NY2d 223, 231 [1978].). Additionally, the threshold question in tort cases is whether the defendant owed a duty of care toward the injured party. (See Espinal v Melville Snow Contrs., Inc., 98 NY2d 136, 138 [2002].) Here, Ceprine did not owe a duty of care toward plaintiff at the time of his accident because Ccprine was not present at the subject premises until four months after the injury. The Court also notes that not only has no party opposed this motion, but plaintiff has executed a stipulation of discontinuance as against Ceprine. Additionally, Ceprine has annexed the affidavit of Friedenthal and sufficient documentation that it is not liable for plaintiffs injury because it does not appear that it did any work at the site until a period ohime after the injury. (See Bermudez v City of New York, 21AD3d258, 258-59 [I st Dept 2005] (court granted summary judgment where defendant established that it had cancelled a construction contract and therefore had not commenced work at the site where plaintiff was injured).) 158763/2017 RAMOS, GUILLERMO vs. BLATT, DAVID Motion No. 002 Page 3 of 5 3 of 5 [* 4] INDEX NO. 158763/2017 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 12/10/2018 And, insofar as Ceprine has established that plaintiffs accident did not arise or result from its work, summary judgment dismissing the cross-claims of the co-defendants in this action for contribution and i~demnification must also be granted. (See Barto v NS Partners. LLC, 74 AD3d 171 7, 1720 [4th Dept 201 OJ (dismissing cross-claims for indemnification where defendant established its nonliability to plaintiff).) In accordance with the foregoing, it is hereby: ORDERED that defendant Ceprine Construction, Inc. d/b/a Ceprine Scaffolding Services' motion for summary judgment, dismissing the complaint and all cross-claims against it is granted, and the Clerk is directed to enter judgment accordingly; and it is further ORDERED that the action is severed and continued against the remaining defendants; and it is further ORDERED that the caption be amended to reflect the dismissal of defendant Ceprine Construction, Inc. d/b/a Ceprine Scaffolding Services and that all future papers filed with the court bear the amended caption; and it is further Page 4 of 5 158763/2017 RAMOS, GUILLERMO vs. BLATT, DAVID Motion No. 002 4 of 5 [* 5] INDEX NO. 158763/2017 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 12/10/2018 ORDERED that within twenty days. 7ofthe entry of this order, counsel for the moving party shall serve a copy of this order with notice of entry upon all parties, upon the Clerk of the Court (60 Centre Street, Room 1418), and upon the Clerk of the General Clerk's Office (60 Centre Street, Room 119), who are directed to mark the court's records to reflect the change in the caption herein; and it is further ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall b_e made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures.for Electronically Filed Cases (accessible at the "EFiling'ยท page on the court's website at the address www.nycourts.gov/supctmanh); and it is further ORDERED that this constitutes the decision and order of the court. 12/3/2018 DATE CHECK ONE: CASE DISPOSED GRANTED D N DENIED -FINAL DISPOSITION GRANTED IN PART APPLICATION: SETILE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT D D OTHER REFERENCE Page 5 of 5 158763/2017 RAMOS, GUILLERMO vs. BLATT, DAVID Motion No. 002 5 of 5