Diamond v TF Cornerstone, Inc.

[*1] Diamond v TF Cornerstone, Inc. 2020 NY Slip Op 50884(U) Decided on August 3, 2020 Supreme Court, New York County Marin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 3, 2020
Supreme Court, New York County

Sean Diamond, Plaintiff,

against

TF Cornerstone, Inc., Carnegie Hall Tower II, LLC, ABM Industries, Inc., d/b/a ABM Janitorial Services Northeast, Inc., Klear Electrical Corp., and Unity Building Security, Inc., Defendants.



152626/2016
Alan C. Marin, J.

The following efiled documents have been considered by the Court: numbers 1, 73 through 75, and 125 through 137.

Sean Diamond, an elevator mechanic for Otis Elevator, tripped and fell on November 15, 2015 while walking down an interior staircase in the Carnegie Hall Tower at 152 West 57th Street. The initial summons and complaint in this action, filed March 28, 2016, was brought against only the building's owner, TF Cornerstone Inc. A subsequent case against the other defendants (index no. 157011/2018) was consolidated herein by Order dated October 24, 2018.

This is motion no. 006 to add causes of action under Labor Law § 241 (6), as well as those based upon the 2014 Building Code of the City of New York and the 2010 Property Maintenance Code of the State. Amendments to pleadings under subdivision (b) of CPLR 3025 are generally to be freely given, unless there is prejudice or surprise. The movant does not have to establish that the new allegations have merit, but only that "the proffered amendment is not palpably insufficient or clearly devoid of merit" (Fairpoint Cos., LLC v Vella, 134 AD3d 645, 1st Dept, quoting MBIA Ins. Corp. v. Greystone & Co., Inc., 74 AD3d 499, 500, 1st Dept).

Labor Law §241.6 requires a specific predicate rule of the Commissioner of Labor. Plaintiff's amended complaint relies upon 12 NYCRR §23-1.7(e), "Tripping and other hazards," paragraph (1) of which is entitled "Passageways" and reads as follows: "All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered."

Parties in opposition to such a motion are generally in a position to respond thereto; which has been the subject of a not insubstantial number of reported cases. Thus for example, it has been held, as has been presented here, that where a staircase is the sole means of access to the work site, and is not accessible to the general public, such is a "passageway" for the purposes of paragraph (1). Wowk v. Broadway 280 Park Fee, LLC, 94 AD3d 669, 1st Dept.

However, that part of Mr. Diamond's motion that would add causes of action based upon violations of the 2014 Building Code of the City of New York or the 2010 Property Maintenance Code of the State are denied: the generality of the cited provisions implicates surprise/prejudice.[FN1]

NOW therefore, in view of the foregoing,

IT IS ORDERED, that plaintiff's motion no. 006 is granted in part and denied in part:

i) Plaintiff may amend his pleadings to add a cause of action under Labor Law §241.6 with 12 NYCRR §23-1.7(e)(1) as the predicate rule;

ii) Plaintiff shall not amend its pleadings to add causes of action based upon either the 2010 Property Maintenance Code of the State of New York or the 2014 Building Code of the City of New York.

Dated: August 3, 2020

Alan C. Marin

J.S.C. Footnotes

Footnote 1: The Court has reviewed the affidavit of plaintiff's expert forensic engineer, which discussed the City and State codes (document 134).