Hammock v 213-227 W. 28th St. LLC

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Hammock v 213-227 W. 28th St. LLC 2021 NY Slip Op 33057(U) November 15, 2021 Supreme Court, Bronx County Docket Number: Index No. 31940/2019E Judge: Theresa M. Ciccotto 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] BRONX COUNTY CLERK 11/17/2021 09:30 AM NYSCEF DOC. NO. 53 INDEX NO. 31940/2019E ·······-········-"-···-··---"-····-····-·--··""·-···········-··············--··•,e••·-··· RECEIVED NYSCEF: 11/17/2021 At IAS Part 22 of the Supreme Court of the State of New Yark, held in and for Bronx County, on the 15th day of November, :2021. · PRESENT: HON. THERESA M. CICCOTTO Justice ofthe SupretneCourl -- .-------------. -------------------- .. -------------------- . -----· x· TE~NCE HAMMOCK, · Index N().:31940/2019E· Plaintiff, .DECISION/ORDER -against,. 213-227 WEST 28TH STREET LLC and HAP CONSTRUCTION LLC, Motion Seq, #1 Defendants. -------------· - . ------------------------------------------------- ·- X 213-227 WEST 28TH STREET LLC and HAP Third-Party Index No.: 43262/2020E CONSTRUCTIONLLC; Third-Party Plaintiffs, -against- IBK CONSTRUCTION GROUP LLC and NEW YORK CONCRETE CORP., Third-Party Defendants . .------------ ..--------. --- .---- . --------- .- . ----------------- .--------·. X RECITATION, AS REQUIRED BY CPLR§ 2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION. . NUMBERED PAPERS NOTICE ()F MOTION AND AFFIDAVITS ANNEXED, .......................... .. ANSWERINO .AFFIDAVITS.,..,. ..... :...... ,. ;.,, ............. 1.... :·.•:.•·.··,····"·'· .............. .-•••• .REPLY :AFFIDAVITS, ............ ·.~.·:· .... ,....... '.' .... ;'..... ,........ i• "·., ... ,. ~··· ...·.... ,·, ..... :·, .. . ·OTHER .................. ,., ...., ..... M.EMO oF LA w....... 1....... ,,; ............ ,.,.• ; ••,._.: .. ,, .. ,.: .. ..... 1.-3 ..... .. ...... 4-6.-..... .. .. ........ 8.......... ...........7 ........ ; Pfo.intif'fmoves for an Order putsuantto CPLR ~3212, granting partialsurnmary judg1mmt on the issu1;i. ofliabilify pertaining to his Labor.Law §240( 1) claim. l 1 of 4 [*FILED: 2] BRONX COUNTY CLERK 11/17/2021 09:30 AM NYSCEF DOC. NO. 53 INDEX NO. 31940/2019E RECEIVED NYSCEF: 11/17/2021 Defendanfs/Third:..PartyPlaintiffs, 213-227 West 2gih Street LLC (hei.'e111after "WEST 28") and HAP ConstructiQn LLG (hereinafter ''HAP"), and Third-Party Defendant New York Concrete Corp., all oppose. Background:. This matter arises out of an inciderttoccuriing on March 5, 2019~ wherein Plaintiff allegedly fiustai11ed injuries at a col;l~ti"tlctiqn :;;ite when he fell while descertding·a caisson and drill tig at the premises located at 215 West 28th Street, New YCJ:r\<.1 New York. WEST 28 is the owner of.said pr:en1ises, ·and HAP was a general contractor that wa.s hired. to· perform certain constr..uction at the premises. HAP hired fhj_rd;_Party Defe,ndijnt New York Concrete Corp. as a subcontractor to perform pre-Joundatiohal work on the premises. Plaintiff was employed by New York Concrete Corp. The subject incident occurred while· he Was performing a specific task in the. course of his employment. PlaintiffaUeges tha(he.was notprovid.ed with WlY safety <;levice. prior to removing drill pfo,s from a caisson that Was approximately 10 ½ feet above the ground. Positions of the Parties: Plaintiffargues that heis entitled to su.ri1inatyi1,14gment.because·t11e lincoritroverted evidence .establishes that Defendants failed to.provide him with gravjty-related·safety devices in violation of Labor Law §240(1). Piairitiff further argues that said :failure was the proxfrnate cause ofnaintiff': s .injuries·. Additionally~ he. argues tha(Labor Law §240(1) places a noil-delegable'duty on owners and contractors,. such as Defendants in the. instant action, to provide .~aid gravity~related safety device.s to workers who are exposed to an elevation-related risk~ Plaintifffurtherargues that because Labor does not .perrnit aworker;·s contdbutory negUgen~e to· be as.setted as:.~ d-efen.sej he has Law §240(1). . . established .a primafacie entitlement to summary judgment on the issue of liabiliiy basecl on .sam~: 2 2 of 4 ------L [*_[.FILED: 3] BRONX COUNTY CLERK 11/17/2021 09:30 AM ---·---------~-----···-····=·-··=--··-·-···--·--------······=--··=·-·-·-·-·--··--·-···------···=· ·=······=·--··=·-·--···--------·-------···=·=-··--·· NYSCEF DOC. NO. 53 INDEX NO. 31940/2019E ·----RECEIVED NYSCEF: 11/17/2021 .,,.,,,··-------·--····--·- -····-·························-- Defendants argue that Plaintiff's mcition is premature, and warrants denial because discovery has not yet been completed. At present, a preliminary conference has npt yet been held, no depositions have been conducted and a Note of Issue has not yet been filed. Defendants argue that without more discovery, they are unable to .sufficiently investigate the underlying facts of the incident. Defendants further argue that there are trfable issues of fact as to the proximate cause of Plaintiff's injuries, since fellow employee Jason Garland avers in an annexed affidavit, that he witnessed Plaintiff unexpectedly jump offofthecaisscin. Defendants arguethatbyjumping offsaid caisson, Plaintiff acted in an unsafe manner. As such.his was the proximate cause ofhi:s:own injury, In his Reply, Plaintiff argues that Defendants have frustrated his attempts to obtain depositions. Plaintiff further argues that Defendants fail to defeat the instant motion as premature pursuantto CPLR §3212(f),. Conclusions of Law: CPLR §3212(f) provides: "Facts unavailable to opposingparty. Shmild it appearfromaffidavits submitted in opposition to the motion that facts essential to justify opposition may exist but. cannot then be stated,. the court may deny. the motion or may order <'I continuance to permit affidavits to be obtained or disclosw;e to be had and may make such other order as may be just." The First Department has routinelydeniedmotions for summary judgment without prejudice, and with leave to renew when the motionis premature in light of outstanding discovery (Bradley v. Ibex Constr. LLC, 22A.D.3d 380, 380~381 [1st Dept. 200$); Rodriguez v. Architron EnvironmentfJI Services, Inc., 166 A. D .3 d 505, 506 [1st Dept. 2018); Marabyan v. 5 I1 West 179 Realty Corp. , l.65 A.DJ d 581, 5 81-5 82 [1st Dept, 2018]). In Btadley, the Ffrst Department found that " [t]he motions, 3 3 of 4 INDEX NO. [* 4] _ _JFILED: __ BRONX COUNTY CLERK 11/17/2021 09:30- - ·-AM - - - _I - - - - - - - - - - - - ------- - - -------------------- ---------NYSCEF DOC. NO. 53 31940/2019E RECEIVED NYSCEF: 11/17/2021 [ for summary judgment] which were made before a preliminary Conference had beenheld and before defendants had any opportU11ity to obtain disclosure, were properly denied as premature under the circumstances prestmted;' (Bradley v, Ibex Constr. LLC, 22 AD.3d atJS0-3 8J, citing, McG/ynnv. Palace Co., 262A.D.2d 116, 116.,.117 [1st Dept. 1999]). In the instant action, despite the fact that the case is just over two years.- old, a preliminary conference has notyet been held and depositions have not yetbeen conducted. As Plaintiff notes in his Reply, this delay is likely.due to the backlog from the COVID~l9pandemic (Reply, p.2, 'i!4). While the Court acknowledges Plaintiff'-s frustration, the Court finds his motion for summary judgmentto be premature atthis time (see id.; Rodriguez v. Architron Environmental Services, Inc., 166 A.D3d at 506; Marabyan v. 511 West 179 Realty Corp;, 165 A.D.3dat58l-582). Therefore, in accordance with the foregoing, it is hereby: ORDERED, that Plaintiff's motior1 for swnmc:try judgment is denied without prejudice, Thisconstitiites the decision and order of the Court. ENTERED: DATED: November 15, 2021 Hon. Theresa M. Ciccotto JSC 4 4 of 4

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