Silva v Hehe Enters., LLC

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Silva v Hehe Enters., LLC 2018 NY Slip Op 34319(U) December 11, 2018 Supreme Court, Rockland County Docket Number: Index No. 034141/2016 Judge: Thomas E. Walsh II 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. INDEX NO. 034141/2016 FILED: ROCKLAND COUNTY CLERK 12/12/2018 07:20 AM NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 12/11/2018 SU PRE COURT OF THE ST TE OF CO TY OF RO KLA D EW YORK -----------------------------------------------------------------------x LA RCIO TLVA Plaintiffs DE JSIO & ORDER Index No. 034141/2016 -against- Motion # 1 - MG and MD otion #2 - MD HEH E EN ERPRI ES, LLC and ROSE IMPROVEMENT, I Defi ndant DCAdj: 1/23/19 --- --- ------------ -------- ------------ -------- ------------ ---------- ---x Hon. Thomas E. Walsh II J.S. . Th following pap rs numbered 1- 4 wer consid red in connection with Plaintiffs Notice of Motion ( otion # 1) for an Ord r pursuant to ivil Practice Law and Rules § 3212 granting um mar Judgm nt in f. or of Plaintiff and aga inst th Defi ndant Ro e lmpro ement, Inc. on the issue of liability that the matters be set down for trial as to damages and for uch oth rand fu r1her r li ef a the Court deem just and prop r· and I o con idered in conn ction with Plain ti ff s Notice of Motion (Motion #2) for an Ord r pursuant to 'ivil Practice law and Rules§ 602(b) con olidating Action 1 (SILVA v. HEHE TERPRISE , et an ., Ind x # 34141 /20 16) and Action 2( lLV A. et al. , v. WAVERLY HOM ~ et ano. Ind x # 511 295/20 I 8 on the ground that bo th Actions have identical questions of law and fact : PAPERS NUMBERED otice of Motion (Motion # })/Affirmation of Richard Winograd , Esq./ Exhibits (A - ) Affirmation of Kirby J. Smith, Esq. In Opposition/Exhibit A 2 Rep ly Affirmation of Tim thy\ . 3 orton, Esq. ot ice of otion ( otion 1)/ ffirmat i n of Rj hard M. Winograd, Exhibits (A-E) [* 1] 1 of 12 q./ 4 • INDEX NO. 034141/2016 FILED: ROCKLAND COUNTY CLERK 12/12/2018 07:20 AM NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 12/11/2018 The instant action are for p r onaJ inj uries arising out of an ac ident that occ urred on Ju ne 28. 20 16 when Plaintiff alleg h fell from an uns cured 28 foot alu minum ladder whil w rking on a constructi on proj ct at "The Waverly Gardens Proj ect, 7 Luttman Place, Monticello, New York 1270 I, Rockland ounty. Plaintiff commenced the A tion # 1 (Index #34141 /20 16) wi h the fi li ng ofa Summons and om plaint on September 29, 20 I against DeD ndant Rose rmprovemen t (herei nafter Rose) the g neral contractor at the con tru tion project and Heh to De ndant Rose Impro ement b nt rpris s, L . Issue was joined a r ic of an Ans er on Januar 17, 2017. Discovery was wner f Ro e Isaac Rosenberger b th appeared for deposi tions xchanged and Plaintiff and th ( neon April 3, 2018 and the other n ay 16, 20 18. Subsequently, Plaint iff fi led a ote of ue along with a Certificate of Readiness in Action # 1 on June 27, 20 18. On June 1, 2018 Action #2 wa co mmenced in Kings County by fi Iing and serving a umn, on and Complaint again t D f nd ants Waverly Homes D v lopm nt, LLC and Highview Build rs Group, Inc. (Ind x # 1129 /2018 1) . On July 27, 2018 i u wa joined by Defendant High iew Builders Group In b th fi li ng ofan Ans er. Accord ing to Plaintiff the second tion \ as commenced as it was d t rm ined that Waver! Home D lopment LLC and I !ighview Builders Group lnc. w re ··viable' defendants sine they "owned, managed, con trolled, maintained and/or operated the premises known as 1 he Wav rl y Gardens Project cated at 7 Lutman Place, Monticell o, ew York 12701. Plaintiff contends that he was installing framing at a constru tion proj ect located at 7 Lutman Place, Monticello, ew York 1270 l in which Defendant Ros lmprovem nt was the gen ral contractor. Accord ing to Plaintiff he was installing plywood and was working alone u ing a 28-foot aluminum !add r pro ided to him b Defendant. Plainti f te tified that he was not provided with a safety ham · or an othe r safety equipm nt by Defendant and no safe! harness or equipment was avai labl fo r hi use at the construct ion site. The Plaintiff testified Plaintiff submits that Acti on #2 was assigned Index# 24038/20 17 in paragraph 8 on the Affirmation annexed to orion #2. However, the copy of the Summon and Complaint annexed to the Affirmation indicates that the Index # is 511295/2018. 1 2 [* 2] 2 of 12 INDEX NO. 034141/2016 FILED: ROCKLAND COUNTY CLERK 12/12/2018 07:20 AM NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 12/11/2018 that the aforementioned ladder was plac on top of a thre (3) to four (4) foot circu lar mound and he began installin g the plywood. Based upon Plaintiff's Examination Before Trial (hereinafter EBT) transcript, th aforementioned ladd r slipped backward hit a "neighboring" building and came to rest . According to Plaintiff aft r the ladder fe ll backwards he tried to grab a \, indow in the building upon which he was\ orking, but he fe ll at the am time as th ladd r ~ 11 resulting in hanging by th ladder with one (1) I g. Plaintifftestifi d that he was hanging fr m the ladder screaming for about two (2) minutes before another worker came and pulled him from the ladder to a sheet of plywood. The Plaintiff t stified that as a resu lt of the fall he was tak n to a hospital emergenc ro m via ambulance. a re ult of the fall , Plaintiff ubmit that h uffi red a displaced intra-arti ular lateral tibial pl teau fracture, non-disp laced fracture of th right fi bula, lateral meniscu t ar in right knee, right knee joint effusion, baker's cyst and pain in his right knee . Plaintiff underwent an intern al fix ation surgery a. Summary Judgment on Labor Law§ 240(1) Claims Plaintiff argues that it is undisputed that he was engaged in a protected activity under the Labor Law since at the time of the ubj ect accident he, a engaged in work activiti s that placed him at an ele at d height and that th ork he v.as engag din as relat d to th on truc tion project. The Plaintiff also contends that there is no dispute that Defendant Ro e wa the general contractor of the con truction proj ect where the accident occurred. As the gen ra l contractor, Plaintiff submits that Defendant was r quired to provide prop r safety protection to workers on the project and i liable for not providing the proper safet protection. Further Pl aintiff av rs that based on hi BT testimon and that f Defendants r pr entati ve the D fendan t fa iled to provide any device to protect Plaintif during his elevated work and therefor Defi ndant has abso lute liability against them under labor Law§ 240. In oppo ition Defendant Ro e distinguishes the factua l scenarios in the cases cited by Plaintiff in supp rt of their argum nt arguing that tho e factual differences make the findings in the cases inapp li ble. pecificall D fi ndant argues that each of the cases cited the accident 3 [* 3] 3 of 12 INDEX NO. 034141/2016 FILED: ROCKLAND COUNTY CLERK 12/12/2018 07:20 AM NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 12/11/2018 was caus d by · d f tiv ladd r or th "application of force upon the ladder/plaintiff'' which contributed to th fall. Defendant contends that in the instant action th r is no et of fa ts that demonstrat th inad quac of a primar safet de ice, but rather the fa t demon tra t that the Plaint iff wa th le pr ximate cau e of the accident. In support of th ir aroum nt D fi ndant note that th Pia int iff t tifi d that he his boss pro ided him ladd rs of arious I ngth (h ight ) rom ixt n 16) t t fo rt -two (42) feet fo r use at the subject con truction proj ct. Defendant argu that Plaintiff tcstifted he was initially using the sixteen (16) fo t !add r, switch d to the tw nty- ight (28) foot alumi num ladder and placed the ladder on t p fa thr e (3) to fo ur (4) fi ot m und f dirt rather than use a longer ladder. Further, Defendant argue that Plaintiffs fall wa so lely as a result of Plaintiffs own actions since he testified he had variou lengths of !add rs , incl uding several taller ladders, and that he had did not testi fy that h was unable to place th subj ect ladder on flat and stable land. Additionally, Defendants ' ubmit that Plaintiff never testifi ed abou t a defect in the ladder or the application of force on the ladder r him se lf which wa the cause of his fa ll . In Reply Plaintiff argues that he cannot be the sole proximate cause ofth ubject acc ident in a circurn lance in which he was not provided adequate safe ly equipment. Rath r Plaintiff argu s that it is " undi puted .. that he was working alone on a 28 foot !add r th t had no mechani al s uri ty m a ur to pr vent sli ppage and was not being h Id in plac by a p r on at the bottom. Furth r Pl aintiff contends that it is undisputed he was,,. orking from a h ight of approximate! thirt ( 0 ~ t without a safety harne s or an fall protection. Based upon th fac ts pre nt d the Plaintiff ubmit that they ha e established a prima fac ie ent itlemen t to summary judgm nt pur uant to Labor LaH ·s 240(1) and 24 1(6) . As to D ~ ndanfs argum nt that a dif~ r nt !add r could have been used, the Plaintiff argu s that any failure on hi pa11 to u e a .. sli ght ly le inad quat unsecured ladder" does not remove the fact that the D fi nd nt vio lated Labor Law'· requi r ment to provide safety devices and a fall protection y tern . Fu rth r, Plai nti ff subm it that the proximate cause of Pla intiffs injuries was not the u e of a smaller ladder or place ment on a dirt mound, but rather the Defendant 's fai lure to supply proper safety equipm ent. 4 [* 4] 4 of 12 FILED: ROCKLAND COUNTY CLERK 12/12/2018 07:20 AM NYSCEF DOC. NO. 35 INDEX NO. 034141/2016 RECEIVED NYSCEF: 12/11/2018 New York Labor Law § 240(1) creates a statutory cause of action for strict liabi lity against landowners who do not provide adequate protection for \.vork being performed at a construction site, and negligence on the part of a worker cmmot bar or reduce the worker's recovery. [Blake v. Neighborhood Housing Services ofNew York City, 1 .Y.3d 280 (2003)]. All contractors, owners, and their agents in the erection of a bui]ding or structure must furnish or erect, or cause to be furnished or erected, for the performance of such labor, scaffolding, hoists, ladders, stays, hangers, slings, blocks, pulleys, braces, irons, ropes and other devices which must be so constructed, placed, and operated as to give proper protection to a person so employed. [Labor Law§ 240(1)]. This statutory cause of action applies to types of work where an inherent risk emanates from the h ight at which the work is to be performed, or from the application of the force of gravity to an object or person. [Rocovich v Consolidated Edison Co., 78 NY2d 509 ( 1991 ); Biafora v. City ofNew York, 27 AD3d 506 (2d Dept 2006)]. Public policy protecting workers requires that the Labor Law be construed as liberally as possible in order to afford appropriate protections to the worker. [Kosavick v. Tishman Const. Corp. o(New York, 50 AD3d 287 (1st Dept 2008); Panek v. Countv ofA!banv, 99 NY2d 452 (2003)]. The purpose of the Labor Law is to place the ultimate responsibility for safety practices on owners and contractors instead of on workers, who as a practical matter lack the means of protecting themselves from accidents. [Martinez v. City o(New York, 93 NY2d 322 (1999)]. The proponent of a summary judgment motion must establish his or her claim or defense sufficient to warrant a court directing judgment in its favor as a matter oflaw, tendering sufiicient evidence to demonstrate the lack of material issues of fact. [Giuffrida v. Citibank Corp .. et al., 100 Y2d 72 (2003), citing Alvarez v. Prospect Hosp .. 68 NY2d 320 (1986)]. The failure to do so requires a denial of the motion without regard to the sufficiency of the opposing papers. [Lacagnino v. Gonzalez, 306 AD2d 250 (2d Dept 2003)]. However, once such a showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form demonstrating material questions of fact requiring trial. [Gonzalez v. 98 Mag Leasing Corp. , 95 v. New York Univ. Med. Center, 64 Y2d 124 (2000), citing Alvarez, supra, and Winegrad Y2d 851 (1985)]. Mere conclusions or unsubstantiated allegations unsupported by competent evidence are insufficient to raise a triable issue. [(Gilbert 5 [* 5] 5 of 12 INDEX NO. 034141/2016 FILED: ROCKLAND COUNTY CLERK 12/12/2018 07:20 AM NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 12/11/2018 Frank Corp. v. Federal Ins. Co., 70 Y2d 966 ( 198 8)· Zuckerman v. City o(New York, 49 Y2d 557 (1980)]. Where material issue of [act ex i t th t cannot b re olved on the papers fi led in support of and in opposition Lo summary judg m nt the motion mu t b den ied. [Maller of = ~ ~ ~--=--.c.~~'-'-'-".,...=.=~~~-"-"---'--'-"-'=-'-M"""'"' .• Plaint iff has establi hed that th lack of afi t 83 Y2d l 78 ( I 993)]. quipment provided to him whil h was working at the subject construction it wa a i lation of Labor Law violation was the proximate cau 240(1) and that the of his injuri . Th ab nc of appropriate afety devic s constitutes a violation ofth statut a a matt r of law. Andino v. BF Partn rs, 303 AD2d 338 (2d Dept 200")). Defendan t ar not afG rd d ximat cause or "reca lcitrant worker" defen es. Whil a orker annot r ect ion 240 I) if hi s conduct was th ol pro una ailable if the orker section. [Blake v. eighborhood Hou ing a not pro id d Pia int irrs act ion cannot b r un aid to b th s proximate cause of his injuri r lion f th Labor La, other than f hi injurie . thi defen e i ith ad qua! fa ll prot ction a req uired b that Y3d 2 0 2003)). Here, pr imat cau e of hi inj urie since another pr p r afi t equ ipm nt to com pl tc the fra ming or\ a Pl ain ti ff a recalcitrant worker, since work on the horn at the subj ct c n tructi n it . he did not deliberate! refus direct in tru ti n to u a sar ty d vice whi ch was a ailable, _'t~"~'~~--- -------vis ible and in place at the work sit . [~B~a_/1~a~za~1_-_\._F (2d D pt 2000); Arey v. McDunn, 29 AO3d 11 7 ( d pt 2006)). It i well ettled that' a generic tatement of the availability of saf ty d vi in u 1ci nt to create an issue of fact that plaint iff was the so le proximate cau e ofhi injury." [Kosavick v. Tishman ADJd 287 (I st D pt 2008)]. Defi ndant ' hav n t on t. Corp., 50 ev n made a ge neric statement of the avai labili ty of safety d vices. In fact there is no as erti on by Defendants that any safety dev ices we re available or provided to Plain ti ff a part f hi · framing work wh ich he wa engaged in at the tim e of the subject ace id nt. As such, Plaintiff's motion for summary judgment as to liability pursuant to Labor Law § 240( 1) is grant d. 6 [* 6] 6 of 12 FILED: ROCKLAND COUNTY CLERK 12/12/2018 07:20 AM NYSCEF DOC. NO. 35 INDEX NO. 034141/2016 RECEIVED NYSCEF: 12/11/2018 b. Summary Judgment on Labor Law§ 241(6) Claims Plaintiff submits that similar to the absolute liability imposed on Defendant pursuant to Labor Law§ 240, Labor Law§ 241(6) imposes a non-delegable duty to a general contractor at a construction site to provide reasonable and adequate protection and safety to workers and to comply with specific safety rules and regulations set forth by the Commissioner of the Department of Labor. The Plaintiff contends that since the duties set forth under Labor Law § 241 ( 6) are non-delegable the Plainti ff is not required to show the Defendant exercised supervision or control over the worksite for a right of recovery. Rather, Plaintiff avers that he need show that Defendant violated sections of the Industrial Code and that the violation was the proximate cause of the injury. The Plaintiff argues that Defendant violated Industrial Code Sections 12 YCRR 23l.21 (b)( 4)(iv), 12 NYCRR 23-l.21(b)(4)(ii) and 12 NYCRR 23-1.21(b)(3)(iv). Specifically, the Plaintiff argues that he was on a ladder higher than ten (10) feet above the ladder footing, there was no method to secure the ladder at the top and no person holding the bottom to prevent slippage as required by 12 YCRR 23-l.2l(b)(4)(iv). In regards to the footing of the ladder used by Plaintiff, he testified in his EBT that the ladder was placed on top of a three (3) to four (4) four foot circular mound, leaving the ladder unsecure and placed on an improper and unsafe surface in violation oflndustrial Code 12 YCRR 23-l.2l(b)(4)(ii). Finally, Plaintiff argues that the ladder provided by Defendant to Plaintiff was "flawed and defective" in violation of Industrial Code 12 NYCRR 23-1.21 (b)(3)(iv) and the flaw and defect caused Plaintiff to fall. In opposition Defendant argues that the Industrial Code sections are inapplicable to the facts in the instant action and as such there is no liability under Labor Law§ 241(6). The Defendant again notes that the cases cited by Plaintiff in support of their arguments are distinguishable since there are "clear factual distinctions." Specifically, Defendants note that the Plaintiff never testified in his EBT and no testimony has been elicited that the ladder the Plaintiff was using when he fell was unsafe, had a material defect or there were insecure objects used as ladder footi ngs. In contrast, Defendant notes that Plaintiff testified in his EBT that the ladder he was using was new. Defendant submits that the Plaintiff has failed to demonstrate a violation of 7 [* 7] 7 of 12 INDEX NO. 034141/2016 FILED: ROCKLAND COUNTY CLERK 12/12/2018 07:20 AM NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 12/11/2018 any of the thre Indu ·tri al Cod a viola ti n und r th and the 'mere fact that the ladder fell is not enough to establi h tatu te." Labor law 24 1(6) imp se a non-delegable duty of rea enable care up n wn r and contrac t rs "' to pr id r a enab le and adequate protection and safi ty'' top r n d in, or la full fr qu nting all area in,. hich construction, excavation or d rnoliti n, ork i bei ng perfi rm d. n additi nal purpo e of Labor Law · 241 (6) is that it r quire th contract r to wner and mp l with pecific safer rules and regulations promulgated b the Camm i ion r of th D partment of Labor. [Ross v. Curtis-Palmer Hvdro-Electri o., 81 Y2d 494 501 -502 1993 . lahor law § 241 (6) is considered a hybrid of the common-law principles and Labor Law§ 240, in that it includes the general common-law standard of car and als considers th sp cific deta il ed rul es through the Labor Commissioner's ru le making authority. [Ross, 81 Y2d at 503). In a circumstance in which there is no ongoing construction 241 (6) Labor aw Construction ction not intended to confer liability on a Defendant. [Toro v. Plaza I orp. 82 AD3d 505 , 506 (1st Dept 201 1)]. A plain ti ff mu t demonstrate a violation of any one of the aforementioned regulati ons mm, sioner of the Department of Labor. [Ross v. Curti ·-Palmer Hydro- promu lgat d by the Efec. Co, 8 1 Y2d at 502]. The plaintiff must demonstrate that the vio lation of th regulation wa the prox im l au e ofth injurie uffered. [Rizzuto v. LA . Wegner ontr. o.. 91 Y2d 343 1998 ]. Th prop n nt fa ummary judgment motion must establi h hi or her !ai m rd ufficie nt to arrant a cou rt directing judgment in its fa or as a matter of la , t nderi ng ufficient evi n Corp., et al. , 10 t d mon trate the lack of material issues of fact. [Giuffrida Y2d 72 (2003) citing Alvarez v. Prospect Hosp. , 68 fa il ure t dos r quir 1. itibank Y2d 320 ( 1986)]. Th ad nial of the motion without regard to the ·ufficiency f th opposi ng papers. [Lacagnino v. Gonzalez 306 AD2d 250 (2d Dept 2003)]. However, once such a showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admi sib le form demonstrating material questions of fact requiring trial. [Gonzalez v. 98 Mae Leasing Corp. , 95 NY2d 124 (2000), citing Alvarez, supra, and Winegrad v. New York Univ. Med Ce nter, 64 Y2d 851 (1985)]. Mere conclusions or unsub tantiated 8 [* 8] 8 of 12 INDEX NO. 034141/2016 FILED: ROCKLAND COUNTY CLERK 12/12/2018 07:20 AM NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 12/11/2018 allegations unsupported by compel nt ev id nee are insufficient to raise a triabl e issue. [(Gilbert Frank Corp. v. Federal Ins. Co. 70 Y2d 966 ( 1988); Zuckerman v. 'ity o(New York, 49 Y2d 557 (1980) . Wh re material i sues or fact exi t that cannot be resolved on the papers filed in support of and in opposilion to summary judg nt th m ti n mu t be de nied . [Matter of 111 Suffolk County Department o(Social S ~rvices 1. Jams M., 83 Plaintiff has establi hed his prim a f i upon the vio lat ion oflndu trial Cod 12 Y2d 178 (1993)] . !aim fa vio lation of labor Law 246(1) based Y RR 23 -1.2 I (b)(4)(iv) shifting the burden to Defendant to ra i ea i sue of material !act a to th wh ther the D fe ndant violated that Industrial Code as assen d b Plaintiff. he ou rt grant based sole! on the iolation of 12 Code iolations, 12 umm ry judgment a to Labor La11 § 246(1) Y RR 23-1.21 (b 4)(i . Y RR 2"-1.2 1 b 4 ii) and 12 that the Pl aintiff has not tab Ii h d hi judgment. Specificall , the to the other two industri al Y RR 23 -l. 21(b)( )(i . the Court finds I im uffi i nt t wanant the ourt granting summary oui1 ti nd that Plaintiff has fa i I d to d m n trat that the two lndu trial Code are appli ab! t the in tant a id nl, n er hifting the burden to D D ndant a f fa to those t, o code violation . Mat rial qu ti n t pr cludin 0 ummary judgment remain. Therefore. the Plaintiff mo tion for ummar jud ment a t the Labor law based upo n violation ofl2 YCRR 23- l. 2 1(b)(4 (ii nd 12 246( I) claims YCRR23 -1.2l (b) 3)(iv)i denied. C. Argument Regarding Comparative Fault is Inapplicable to I sue of Defendant's Liability under Labor Law§ 241 (6) Plaintiff direc t the Court to the r c nt ourl of pp al ruling, Rodriguez v. City o[New York, 31 Y3d 312 (2018) in wh ich the ourt found that the plaintiff does not bear the "double burden" of establishing the abs nc of hi s/her own comparative fa ult to obtain summary judgment on the issue ofa d fi ndant s liability. The Plaintiff argues that based upon the recent Rodriguez ruling their motion should be granted a to the Defendant's li ability and the Court cannot consider Plaintiffs compara ti ve fault. Defendant fai ls to raise any argument in their opposition as to the applicability of Rodriguez to the instant action. 9 [* 9] 9 of 12 FILED: ROCKLAND COUNTY CLERK 12/12/2018 07:20 AM NYSCEF DOC. NO. 35 INDEX NO. 034141/2016 RECEIVED NYSCEF: 12/11/2018 PLAI TIFF'S NOTICE OF MOTION TO CON OLIOATE A TION #1 (SILVA v HEHE E TERPRISES, et ano, INDEX# 34141/2016) and ACTION #2 (SILVA, et al., v. WAVERLY HOMES ct ano. bearin INDEX# 511295/2018 Plaintiff subm i s the instant unoppo d motion to on o Iidate an action be fo r the undersigned and an action filed wi thin th pa l y ar in King both actions have identical que lions o[ law unty bas d on th argument that cc rding to Plaintiff the two (2) actions and fac t. st m from an id ntical et of facts and inv Iv an a cid n which oc urred on June 28, 20 16 during the course of PlaintifT ernp lo m nt. Plaint iff furth r argu that there i no prejudice to Defendants to consolidate the action and would rather tr am lin disco narrowing the i sues. Furth r, Plaintiff argue that con olidation inconsistent verdict or j udgments. ry and a ist and ill· ob iat the likelihood of hich c ul d r ult in "pr tra ted app llate litigation." Defendant ha fa il ed to file an pp ition t th Pl inti ff motion eeking consolidation d spit proof of erv ice of same. here common que ion of la, r fact xi l c n lidati n i v arranted uni the opposing part demon strates prejud ice f ub antial right . [ ivil Practice Law and Rules American Home Mtge. ervicing. Inc. v. harro ks· 92 A 3d 620 622· Westminster Bank, 124 D 626. 628 (2d Dept 1986 ]. hiacchia v. 602; ationa/ d termination to conso li date actions rests within th sound di cretion of th trial court. [American Home Mtge. ervicing. Inc. v. Sharrocks, 92 AD3d at 622]. ln a situation wh r aft r a con olidation the role of an individual as a plaintiff and defendant could be the urc of confu ion at a jury tria l of the con olidated action, consolidation is inappropriate. [Padilla v. r vhound Lines, 29 AD2d 495,497 (1st Dept 1968); M & K Computer Corp. v. MB lndu trie ·, .Inc. , 271 AD2d 660 (2d Dept 2000)]. Further, where these is insufficient identity of factual or lega l issu in an action, th n conso lidation is not warranted. [J T. Mauro Co. v. Genesee Val roup Health Assn, 184 AD2d 998 (4th Dept 1992); Dunkin Donuts v. Reves Corp., 166 AD2d 908 (4th Dept 1998)] . The Defendant has failed to demon trate that De£ ndant wi ll not suffer prejudice based on the de lay in filing the second action. Specilical ly Action # I was commenced in 2016, discovery has been completed and a Note oflssue has been fil ed. Action #2 was commenced earlier this 10 [* 10] 10 of 12 INDEX NO. 034141/2016 FILED: ROCKLAND COUNTY CLERK 12/12/2018 07:20 AM NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 12/11/2018 year in 2018 in a different county and the statu of di c very and motion practice is unclear to the und r ign d. Th ourt in its di cretion ha d t rmin d that a consolidation of the foregoing act ion for th purpo e of trial would re ult in a prejudice to Deft ndants based upon the fact that trial i immin nt in Action# ! and Action #2 remain in pr -note status and it is unclear what di cov ry ha been exchanged . Therefore, D fe ndant ' motion for consolidation of Action # 1 and Action #2 is denied. Accordingly it is hereby ORDERED that Plaintiff's Notice of Motion fo r ummary Judgment (Motion# 1) is grant d in part and den ied in part consistent with the u11 Decision; and it is further ORDERED that Plaintiff is granted summary judgm nt as to liabi lity on the claim pur uant t Labor LaH § 240( 1); and it is furth er ORDERED that Plaintiff is granted um mar judgment as to liabili ty on th claim pur uant t Labor Law 241(6) based upon th i I ti n f Industrial Code 12 YCRR 23- 1.21 b) 4 iv)· and it is further ORDERED that Plaintiff is d nied summ ry judgment as to liability on the claim pur uant t Labor Law§ 24 1(6) based upon the vi lation of Industrial Codes 12 NYCRR 23- 1.21 (b )( 4)(i i) and 12 NYCRR 23-1. 21(b)(3 )( iv); and it is rurther ORDERED that Defendant's Not ice or M tion to Conso lidate Action# 1 and Action #2 (Motion #2) is denied in its entirety; and it is further ORDERED that the parties are to appear for a prev iou ly scheduled pre-trial conference Y JANUARY 23, 2018 at 9:30 a.m. in TAP. Oat d: v York , 20 18 TO: GTNART GALLARDO GO ZALEZ WINOGRAD, LLP Attorney for Plaintiff (v ia e-ftl ) 11 [* 11] 11 of 12 FILED: ROCKLAND COUNTY CLERK 12/12/2018 07:20 AM NYSCEF DOC. NO. 35 LAW Ol·FICE OF CRAI Attorney for D fondant ( ia e-fi I ) RECEIVED NYSCEF: 12/11/2018 P. CURCJO 12 [* 12] INDEX NO. 034141/2016 12 of 12

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