Simon v 321 W. 78th St. Corp.

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Simon v 321 W. 78th St. Corp. 2022 NY Slip Op 33335(U) September 30, 2022 Supreme Court, Kings County Docket Number: Index No. 505659/18 Judge: Richard Velasquez 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: KINGS COUNTY CLERK 10/03/2022 02:48 PM NYSCEF DOC. NO. 105 INDEX NO. 505659/2018 RECEIVED NYSCEF: 10/03/2022 At an IAS lAS Term, Term, Part Part 66 66 of of the the Supreme Supreme At Court of of the the State State of of New York, held held in Court New York, and for for the the County County of of Kings, Kings, at the the and Courthouse, 360 Adams Adams Street, Courthouse, at 360 Street, day of of Brooklyn, New York, on the the 30thth day Brooklyn, New York, September, 2022. 2022. September, PRESENT: PRE SENT: HaN. RICHARD RICHARD VELASQUEZ, VELASQUEZ, HON. Justice. Justice. -------------------------------------------------------~----------)( -------------------------------------------------------·----------X STEFANSIMON, STEFAN SIMON, DECISIONANDORDER DECISION AND ORDER Plaintiff, Plaintiff, Index No. 505659/18 Index No. 505659/18 -against-against- 321 WEST 78TH CORP., ANITA 78TH STREET STREETCORP., ANITA I. 1. SEN, SEN, PACS ARCHITECTURE ARCHITECTUREand WILLIAMHARRINGTON, PACS and WiLLIAM HARRINGTON, Mot. Seq. Seq. Nos. 2-4 Mot. Nos. 2-4 Defendants. Defendants. ------------------------------------------------------------------)( ------------------------------------------------------------------X 321 WEST 78TH CORP., 78TH STREET STREETCORP., Third-Party Plaintiff, Plaintiff, Third-Party -against-againstTD RENOVATIONS, RENOVATIONS,INC., INC., TD Third-Party Defendant. Defendant. Third-Party ______________________________________________________ ------)(1 ------------------------------------------------------------------XI The following following e-filed e-filed papers read herein: herein: The papers read NYSCEF Doc Nos.: NYSCEF Doc Nos.: Notice of Motion/Cross Motion/Cross Motion, Motion, Affirmations, Affirmations, and and Notice of Exhibits Exhibits Annexed Annexed _ _ _ _ _ _ _ _ _ _ _ _ __ Affirmations in Opposition. Opposition _ _ _ _ _ _ _ _ _ __ Affirmations Reply Affirmations. Affirmations _ _ _ _ _ _ _ _ _ _ _ _ __ Reply 42-60;63-78;85-97 63-78; 85-97 42-60; 79;80;99 79;80;99 81; 100 81; consolidated action to recover damages for personal personal injuries, the following In this consolidated been consolidated consolidated for disposition: disposition: motion and cross motions have been In motion sequence sequence (Seq.) number number (No.) 2, defendant defendant PC+K PC+K Architecture Architecture PLLC, Architecture (incorrectly (incorrectly sued herein herein as PACS Architecture) Architecture) doing business business as PACS Architecture 1 1 William William Harrington Harrington was was dismissed dismissed from from the the third-party third-party action action (but (but not not from from the the underlying underlying action) by stipulation, dated September 28,2018. action) stipulation, dated September 28, 2018 .. [* 1] 1 of 14 FILED: KINGS COUNTY CLERK 10/03/2022 02:48 PM NYSCEF DOC. NO. 105 INDEX NO. 505659/2018 RECEIVED NYSCEF: 10/03/2022 ("P ACS "), moves moves for summary summary judgment dismissing all claims claims and and cross cross claims claims as against against ("PACS"), judgment dismissing it; Street Corp. Corp. (the (the defendant/third-party plaintiff 321 West In Seq. NO.3, No. 3, defendant/third-party plaintiff West 78thth Street "coop"), defendant defendant Anita Anita I. Sen Sen ("Sen"), ("Sen"), and and defendant ("Harrington" "coop"), defendant William William Harrington Harrington ("Harrington" collectively, with with the coop and and Sen, Sen, the the "coop "coop defendants"), defendants"), jointly cross-move for: and, collectively, the coop jointly cross-move summary judgment dismissing all claims claims and and cross cross claims claims as against against each each of of them; and judgment dismissing them; and (1) summary conditional summary summary judgment common-law indemnification indemnification as against against each each of of (2) conditional judgment for common-law PACS third-party defendant defendant TD TD Renovations, ("TD"); and and P ACS and third-party Renovations, Inc. ("TD"); Stefan Simon Simon ("plaintiff') ("plaintiff') cross-moves cross-moves for partial In Seq. NO.4, No. 4, plaintiff plaintiff Stefan partial summary summary judgment the issue of liability liability as against against the under Labor 240 (1) and, judgment on the issue of the coop coop under Labor Law Law §S 240 and, in addition, under under Labor Labor Law Law § S 241 ((6) extent predicated predicated on the alleged violation of addition, 6) to the the extent the alleged violation of Industrial Code§ Code S 23-1.21 23-1.21 (b) (3) (iv).2 Industrial (iv). 2 Background Background Plaintiff was was employed employed as a carpenter carpenter by third-party defendant TD, TD, a general general Plaintiff third-party defendant contractor, whose whose owners owners assigned assigned and and supervised supervised his work work on (among (among other other days) day contractor, days) the the day of the the incident. of incident. Defendants Sen Sen and and Harrington "Sen-Harrington") had Defendants Harrington (collectively, (collectively, "Sen-Harrington") had retained TD to renovate renovate their apartment (the (the "renovation "renovation project") residential retained their apartment project") in the the residential building owned owned by by defendant defendant coop. coop. building addition to TD, TD, Sen-Harrington Sen-Harrington had In addition had retained retained defendant P PACS, registered architects, architects, to provide them, in connection connection of two two registered provide them, defendant ACS, a partnership partnership of 2 2 See Supplemental Supplemental Bill Bill of of Particulars, Particulars, dated dated January January 22, 2021,, 2021, ~ 4 (NYSCEF (NYSCEF Doc Doc No. 97). See No. 97). 2 [* 2] 2 of 14 FILED: KINGS COUNTY CLERK 10/03/2022 02:48 PM NYSCEF DOC. NO. 105 INDEX NO. 505659/2018 RECEIVED NYSCEF: 10/03/2022 renovation project, with certain architectural design services, as more fully set with the renovation forth in the margin. 33 On the day of the incident, plaintiff plaintiff was inside Sen-Harrington's apartment standing Sen-Harrington's apartment next-to-the-top step of the four-step A-frame ladder (supplied (supplied by TD) installing installing on the next-to-the-top \Vhile working working on the a drop ceiling. As he was shifting his body weight from right to left while of its four legs broke. To avoid a fall from the ladder, he grabbed grabbed onto a sharp ladder, one of or above his height) with his left hand. The metal frame cut into his left metal frame at ((or wrist/elbow, but without without wrist/elbow, leaving at least two pieces of metal inside his left wrist/elbow, otherwise preventing preventing his fall. As plaintiff plaintiff was falling from the ladder, he landed on the floor on his left side. He underwent underwent surgery on his injured wrist/elbow, wrist/elbow, with some (but, according to him, allegedly insufficient) pain relief. allegedly insufficient) receiving workers' workers' He was still receiving benefits at the time of his pretrial deposition approximately approximately 15 compensation benefits 15 months after the incident. According to plaintiffs plaintiffs undisputed undisputed pretrial testimony, testimony, all three of the A-frame According ladders provided provided by TD at the worksite (including the ladder at issue) "were "were very old; straightening them up, these wiggly and the[ir] legs were twisted, then we [workers] were straightening legs" (Plaintiff's (Plaintiffs EBT tr at page 31, lines 18-20). According According to plaintiffs plaintiffs likewise PACS' architectural architectural design design services services for for the the renovation renovation project project consisted consisted of of the the following: following: PACS' (I) schematic schematic design; design; (2) (2) design design development/regulatory development/regulatory submission; (3) construction documents; submission; (3) construction documents; and ((4) construction administration, administration, with the the last last category category being being further further broken broken down down into: into: and 4) construction with attendance at job meetings as necessary necessary for for the the duration duration of of the the renovation renovation project, project, (a) attendance job meetings processing of of all shop shop drawings drawings and and submittals submittals required required by by the the construction construction documents documents to to (b) processing ensure conformance conformance with with them, them, and and (c) (c) upon upon Sen-Harrington's Sen-Harrington's request, review review and and approval approval of of request, ensure monthly payment payment requisitions requisitions (see (see NYSCEF NYSCEF Doc Doc No. No. 57, Statement Statement oflnterest ofInterest and and Understanding, Understanding, monthly dated February February 17, 17,2017). dated 2017). 3 3 3 [* 3] 3 of 14 _ .. - FILED: KINGS COUNTY CLERK 10/03/2022 02:48 PM NYSCEF DOC. NO. 105 INDEX NO. 505659/2018 RECEIVED NYSCEF: 10/03/2022 undisputed pretrial testimony; he he had had no choice, choice, ifhe ifhe wanted wanted to continue continue working working for TD, TD, undisputed pretrial testimony, but to use use its ladders, ladders, despite despite their their obvious obvious instability instability (id. at page page 33, lines lines 14-17). 14-17). but Post-incident, plaintiff plaintiff commenced commenced two two actions actions (later (later consolidated consolidated into into a single single Post-incident, action44) ) against against the the coop coop defendants defendants and and PACS, PACS, asserting asserting claims claims sounding sounding in violation violation of of action Labor Law Law §§ SS 240 240 (1), (1), 241 (6), (6), and and 200, 200, as well well as common-law common-law negligence. negligence. The The coop coop Labor defendants and and P PACS each joined issue, asserting asserting (with (with certain certain exceptions exceptions as to defendants ACS each· joined issue, Harrington) cross cross claims claims as against against one one another. another.5 5 The The coop coop subsequently subsequently impleaded impleaded TD. TD. Harrington) Third-party defendant defendant TD TD failed failed to appear appear or otherwise otherwise respond respond in the the third-party third-party action, action, Third-party but no default default judgment has been been taken taken against against it. but judgment has After discovery discovery was was substantially substantially completed completed but but before before a note note of of issue issue was was filed, filed, the the After instant instant motion motion and and cross cross motions motions were were served. served. Thereafter, Thereafter, the the Court Court heard heard oral oral argument argument reserved decision. decision. Additional Additional facts facts are are noted noted when when relevant relevant to the the discussion discussion below. below. and reserved For the the sake sake of of clarity, clarity, discussion discussion is divided divided between between the the uncontested uncontested and and contested contested legal legal For issues. issues. Discussion Discussion I Uncontested Legal Uncontested Legal Issues Issues Uncontested Uncontested Legal Issue #I: # I: Sen and Harrington's Harrington's Potential Potential Liability Liabi lity to Plaintiff Plaintiff Sen and and Harrington's Harrington's joint status as the the proprietary proprietary lessees lessees of of their their one-family one-family Sen joint status residence is undisputed. undisputed. Likewise Likewise undisputed undisputed is Sen Sen and and Harrington's Harrington's respective respective pretrial pretrial residence 44 Consolidation Order, dated May 14, 14,2020 (Velasquez, J.). See Consolidation 2020 (Velasquez, 55 More particularly, particularly, the coop has asserted cross claims as against Sen and PACS, PACS, by answer, dated May 25, 2018; Sen has asserted asserted cross claims claims as against the coop and PACS PACS by answer, dated 13, 2018; and PACS PACS has asserted a cross claim as against against the coop and Sen by answer, dated July 13, against Harrington Harrington by notice of of cross claim, dated May May 29, 2020. The coop June 20, 2018, and as against claims as against Harrington, Harrington, nor, in turn, has he asserted any cross claims claims has asserted no cross claims codefendants. as against the coop and codefendants. 4 [* 4] 4 of 14 INDEX NO. 505659/2018 FILED: KINGS COUNTY CLERK 10/03/2022 02:48 PM NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 10/03/2022 neither of of them directed or controlled controlled TD's TD's (or plaintiff's) plaintiff's) work. Thus, Sen testimony that neither Harrington are each entitled to the homeowner's homeowner's exemption exemption from liability liability under Labor Labor and Harrington SS 240 ((1) AD3d 792, 792,793-794 Dept 2022]). 2022]).66 Law §§ 1) and 241 ((6) 6) (see Bates Bates v Porter, 203 AD3d 793-794 [2d Dept undisputed that Sen-Harrington's Sen-Harrington's "general "general supervisory supervisory authority authority at It is further undisputed of overseeing overseeing the progress progress of of the work and inspecting inspecting the work work a work site for the purpose purpose of product is insufficient insufficient to impose liability under common-law under Labor Law §S 200 or for common-law negligence" (Flores v Crescent Crescent Beach AD3d _' Beach Club, LLC, __AD3d _ , 2022 NY Slip Op 04901 negligence" quotation marks omitted]). Similarly Similarly undisputed [2d Dept 2022] [internal quotation undisputed is Sen and Harrington's respective respective pretrial testimony testimony that neither neither of of them possessed authority to possessed the authority Harrington's of plaintiff's plaintiff's work. 77 supervise or control the means and methods of support of of his own cross-motion cross-motion for partial summary summary judgment Plaintiff, in support judgment on opposition to the coop defendants' defendants' cross motion, does liability as against the coop, and in opposition not object to the dismissal of of his claims as against Sen and Harrington. Harrington.88 Accordingly, Accordingly, not Harrington is warranted. warranted. dismissal of plaintiff's plaintiff's claims as against Sen and Harrington S 240 (1) provides, provides, in relevant relevant part, that "[a]ll "[a] 11contractors contractors and owners owners and their agents, except owners owners of of one one and and two-family two-family dwellings dwellings who who contract contract for but do not not direct direct or or control control the the except for but work," etc. In identical language, Labor Labor Law § S 241 (6) provides, relevant part, that "[a]ll "[a]l1 work," provides, in relevant owners and their their agents, except except owners owners of of one one and and two-family two-family dwellings dwellings who who contractors and owners contract for but do not not direct direct or or control control the the work," work," etc. (emphasis (emphasis added in each instance). for but contract 66 Labor Labor Law§ Law Compare Ortega Ortega v Puccia, 54,62 defendant has the authority authority to Compare Puccia, 57 AD3d 54, ·62 (2d Dept 2008) ("A defendant purposes of of Labor Labor Law§ Law S 200 [and under commonsupervise or control the work for purposes under the theory theory of of commonwhen that that defendant defendant bears the responsibility manner in which the work law negligence] when bears the responsibility for for the manner which the work is performed.") (emphasis added). performed.") (emphasis 77 88 See Affirmation in Support of of Plaintiff's Opposition See NYSCEF NYSCEF Doc No. 86, Affirmation Plaintiffs Cross Motion and in Opposition Defendant 321 321 West 78thth [Street Corp.]'s ("[P]laintiff to Defendant Corp.J's Cross Motion, dated January 22, 2021, ~ ,i 2 ("[P]laintiff cross-motion insofar insofar as as it seeks dismiss plaintiff's claims against against 321 West 78thth seeks to dismiss plaintiff's claims 321 West opposes that cross-motion [Street Corp.} Corp.] that that are are predicated [1] and and Labor 241 [6].") [Street predicated upon upon Labor Labor Law Law 9 § 240 240 [JJ Labor Law Law §9 241 capitalization omitted; omitted; emphasis emphasis added). (unnecessary capitalization 5 [* 5] 5 of 14 FILED: KINGS COUNTY CLERK 10/03/2022 02:48 PM NYSCEF DOC. NO. 105 INDEX NO. 505659/2018 RECEIVED NYSCEF: 10/03/2022 Uncontested Legal Issue #2: The Coop's Uncontested Coop's Potential Potential Liability Liability to Plaintiff Plaintiff Under Labor Law Law§& 200 and Common-Law Common-Law Negligence Negligence In addition, plaintiff does does not not object object to the the dismissal dismissal of of his Labor Labor Law Law §9 200 200 and and addition, plaintiff common-law negligence negligence claims claims as against common-law against the the coop, coop, focusing focusing instead instead on the the latter's latter's potential liability liability to him him under under Labor Labor Law Law §99§ 240 240 (1) and and 241 (6).9 (6). 9 Thus, Thus, dismissal dismissal of of potential plaintiffs claims, claims, insofar insofar as grounded plaintiff's grounded on Labor Labor Law Law§9 200 200 and and in common-law common-law negligence, negligence, against the the coop coop is also also warranted. warranted. as against Uncontested Legal Issue #3: PACS' Uncontested PACS' Potential Potential Liability to Plaintiff Plaintiff Further, plaintiff has has interposed Further, plaintiff interposed no opposition opposition to the the branch branch ofPACS' of PACS' motion motion which which is for summary summary judgment judgment dismissing dismissing his claims claims as against against it. Insofar Insofar as plaintiff plaintiff'ss claims claims against PACS PACS rest rest on on Labor Labor Law 99 240 Law§§ 240 (1) (1) and and 241 (6), they they are are subject subject to dismissal dismissal as against matter of of law reason of the express "architects a matter law by reason of the express statutory statutory exemption exemption from from liability liability for "architects ... who who do not not direct direct or control control the ... the work work for for activities activities other other than than planning planning and and design" design" (Labor Law§§ Law 99 240 240 [1] and and 241 [9]; see Gonzalez v Pon Corp., 34 AD3d (Labor see Gonzalez Pon Lin Lin Realty Realty Corp., AD3d 638, 638, Dept 2006]).10 640 [2d Dept 2006]). 10 In addition, addition, plaintiffs plaintiff's Labor Labor Law Law §9 200 200 and and common-law common-law negligence claims claims as against negligence against PACS PACS are subject subject to dismissal dismissal because because PACS PACS has has demonstrated, prima prima facie and without demonstrated, facie and without opposition opposition from from plaintiff, plaintiff, that that it was was not not responsible responsible It is worth repeating repeating that in ~ of the aforementioned ,i 2 of aforementioned Affirmation Affirmation in Support Support of of Plaintiffs Plaintiffs Cross Motion and in Opposition Opposition to Defendant Defendant 321 321 West 78thth [Street Corp.]'s Corp.]' s Cross Motion, dated plaintiff specifically specifically limited his claims as against January 22, 2021, plaintiff against the coop to those predicated predicated on Labor Law §9240 240 (1) and Labor Labor Law §9 241 (6), to the exclusion exclusion of of Labor Labor Law Law §9 200 and common-law negligence. negligence. common-law 9 9 Labor Law 9 240 (1) provides, in relevant part, that "[n]o "{njo liability In this regard, Labor Law § liability pursuant pursuant to this subdivision subdivision for for the failure failure to provide provide protection protection to a person person so employed employed shall shall be imposed imposed on ... architects architects ... ... who do not direct or control ... control the work work for for activities activities other other than planning planning and and exception shall not diminish or extinguish any liability of of professional professional engineers engineers or design. This exception landscape architects architects arising under the common law or any other provision architects or landscape provision of of law" foregoing provision (emphasis added). The foregoing provision is reiterated, in substantially substantially the same terms, in Labor Law §9 241 241 (9). 10 10 6 [* 6] 6 of 14 FILED: KINGS COUNTY CLERK 10/03/2022 02:48 PM NYSCEF DOC. NO. 105 INDEX NO. 505659/2018 RECEIVED NYSCEF: 10/03/2022 803 Krupinski, 36 AD3d 802, ofplaintiffs 802,803 plaintiffs work (see Zolotar v Krupinski, methods of for the means and methods AD3d 608,610 LLC, 28 AD3d [2d Dept 2007]; Hatfield 608,610 [2d Dept 2006]). Hatfield v Bridgedale, LLC, Indemnification Common-Law Indemnification for Common-Law Liability for Uncontested Legal Potential Liability TD's Potential #4: TD's Issue #4: Legal Issue Uncontested third-party claims for common-law Workers' Compensation Law 11 prohibits common-law prohibits third-party Law §9 11 Workers' Compensation indemnification against an employer employer unless the employee employee has sustained contribution or indemnification amplified by his pretrial a "grave injury."11 particulars, as amplified of particulars, Plaintiffs latest bill of injury." 11 Plaintiffs testimony, establishes, establishes, beyond peradventure, that he did not sustain a grave injury from the beyond peradventure, 12 It is further undisputed workers' compensation receiving workers' compensation accident.12 plaintiff was still receiving undisputed that plaintiff approximately deposition approximately pretrial deposition benefits from TD's of his pretrial insurance carrier at the time of TD's insurance 15 months after his accident. 15 defendants are not entitled to Accordingly, Accordingly, the coop defendants conditional summary summary judgment common-law indemnification indemnification as against TD (see judgment for common-law the 11 "only one Law §S 11 II A "grave "grave injury" injury" under Workers' Compensation Compensation Law 11 means means "only one or or more more of of the under Workers' loss foot, or hand leg, arm, an of following: death, permanent and total loss of use or amputation of arm, leg, hand foot, loss amputation or use of loss total and following: death, permanent blindness, permanent blindness, and permanent total and quadriplegia, total or quadriplegia, of paraplegia or toes, paraplegia multiple toes, of multiple loss of fingers, loss multiple fingers, of multiple disfigurement, facial disfigurement, total and permanent deafness, loss loss of of nose, nose, loss loss of of ear, ear, permanent and severe severe facial permanent and permanent deafness, total and physical force by an external caused by loss of of an index index finger or an acquired acquired injury injury to the external physical force brain caused the brain finger or loss disability." resulting total disability." permanent total resulting in permanent following: consisted of particulars, consisted bill of Plaintiff's alleged alleged injuries, injuries, as pleaded latest bill of particulars, of the the following: his latest pleaded in his Plaintiffs Soft Tissue 2017; [2] Soft December 13, 2017; "[1] Foreign requiring Removal Tissue Removal on December Forearm requiring Left Forearm Body in Left Foreign Body "[I] Two [4] Hand; Left Body Foreign Swelling at the Lateral to the Left Distal Ulna Shaft; Foreign Body in Left Hand; Two [3] Shaft; Ulna Distal Left the Lateral to the Swelling Distal Left the of Aspect Medial Punctate Metallic Metallic Densities the Soft Soft Tissues Tissues along along the the Medial Aspect of the Left Distal with the Densities with Punctate Left Extremity; [6] Left Upper Extremity; Forearm Consistent with Cellulitis of of Upper Bodies; [5] Cellulitis Foreign Bodies; Radiopaque Foreign with Radiopaque Forearm Consistent and Motor and Median Motor Left Median Erythema; [8] Left Arm Surrounding Erythema; with Surrounding Forearm with Left Forearm to Left Abrasion to Pain; [7] Abrasion Arm Pain; the Numbness [9] Extremity; Left Ulnar Sensorimotor Axonal Neuropathy in the Left Upper Extremity; Numbness to the 4thth Upper Left the Neuropathy Axonal Left Ulnar Sensorimotor Bill of Left Extremity" and 5thth Digit of Left Left Hand; [10] Shooting Pain Extremity" (Verified (Verified Bill of Upper Left throughout Upper Pain throughout 0] Shooting Hand; [1 Digit of type (boldface 72) No. 72) (boldface type Doc. No. Particulars (NYSCEF Doc. 2020, ,i~ 10 (NYSCEF January 6, 2020, dated January Harrington, dated Particulars as to Harrington, omitted). omitted). 12 7 [* 7] 7 of 14 FILED: KINGS COUNTY CLERK 10/03/2022 02:48 PM NYSCEF DOC. NO. 105 INDEX NO. 505659/2018 RECEIVED NYSCEF: 10/03/2022 Barrow Pineda v 79 Barrow Dept 2020]; Pineda McIntosh v Roni! 181 AD3d 580, 581 581 [2d Dept Ronit Realty, LLC, 181 636-637 [2dDept AD2d 634, St. 634,636-637 [2dDept 2002]). St. Owners Corp., 297 AD2d II. II. Contested Legal Issues Legal Issues Contested Labor Law§ Under Labor Plaintiff Under Liability to Plaintiff Contested Legal Issue #1: # 1: Coop's Coop's Potential Liability Law & 240 (I) (l) Contested cross-move for summary As noted, the coop and plaintiff summary plaintiff (as against the coop) each cross-move judgment Labor Law §9 240 (I) (1) claim. "Labor "Labor Law §9 240 (1) imposes imposes upon owners judgment on his Labor workers from risks protect workers necessary to protect ... a nondelegable provide safety devices necessary nondelegable duty to provide ... AD3d 655, 657 LLC, 200 AD3d 178 Court St., LLC, inherent in elevated elevated work sites" sites" ((Guaman Guaman v 178 plaintiff must Law§9 240 (1) cause of "[T]o prevail of action, a plaintiff prevail on a Labor Law [2d Dept 2021]). "[T]o establish that the statute was violated violated and that the violation proximate cause of his violat~on was a proximate AD3d 828, 829 [2d Dept 2007]). injuries" (Rudnik (Rudnik v Brogor Realty Corp., 45 AD3d Brogor Realty or her injuries" prima facie, that established, prima testimony, has established, Here, plaintiff, relying on his pretrial testimony, plaintiff, relying proximate cause of violation was a proximate Labor Law §9 240 (1) was violated of his violated and that the violation injuries (see Ennis v Noble Constr. Group, LLC, 207 AD3d 703, 704 [2d Dept 2022]; Robinson v 2021]; Robinson Soczek v 8629 Bay Parkway, LLC, 193 193 AD3d 1093, 1094 [2d Dept Dept 2021]; Dept 2012]; Melchor v Goldman Sachs Headquarters, LLC, 95 AD3d 1096, 1097 [2d Dept Headquarters, LLC, AD2d at 636). In opposition, Singh, 90 AD3d 866, 869-870 869-870 [2d Dept 2011]; Pineda, 297 AD2d opposition, non-hearsay admissible, non-hearsay of admissible, the coop has failed to raise a triable of fact, by way of triable issue of whether plaintiff result of of a fall from a ladder plaintiff either was not injured as a result evidence, as to whether incident (see Salinas v and/or that his own actions were the sole proximate of the incident proximate cause of Kitchen & Bath 64 Jefferson Apts., LLC, 1223 [2d Dept 2019]; Gomez v Kitchen LLC, 170 AD3d 1216, 1223 JeffersonApts., Alvarez v Vingsan Ltd. by Linda Burkhardt, Inc., 170 AD3d 967, 969 [2d Dept 2019]; Alvarez plaintiff's branch of Accordingly, the branch Partnership, 150 AD3d 1177, 1179 [2d Dept 2017]). Accordingly, of plaintiff's 8 [* 8] 8 of 14 FILED: KINGS COUNTY CLERK 10/03/2022 02:48 PM NYSCEF DOC. NO. 105 INDEX NO. 505659/2018 RECEIVED NYSCEF: 10/03/2022 cross motion which is for partial summary judgment judgment on the issue of of liability on his Labor conversely,, the branch of the coop Law §S 240 ((l)1) claim as against the coop is granted; conversely defendants' motion which is for summary judgment judgment dismissing defendants' cross motion dismissing that claim as against the coop is denied. Contested Potential Liability Liability to Plaintiff Plaintiff Under Under Labor Labor Law Law§9 241 (6) Contested Legal Issue #2: Coop's Coop's Potential Furthermore, Furthermore, the coop and plaintiff plaintiff (as against the coop) each cross-move cross-move for predicated on the summary judgment judgment on his Labor Law §S 241 241 (6) claim, insofar as it is predicated Industrial Code§ Law§S 241 (6) •'imposes alleged violation violation of of Industrial Code S 23-1.21 (b) (3) (iv). Labor Law "imposes nondelegable duty upon owners ... ... to provide reasonable adequate protection reasonable and adequate protection and a nondelegable safety to construction workers" (Comes v New York State Elec. & Gas Corp., 82 NY2d NY2d, construction workers" plaintiff must 876, 878 [1993]). "To establish liability under Labor Law §S 241 (6), a plaintiff proximately caused by a violation demonstrate that his or her injuries were proximately violation of of an Industrial Code provision provision mandating mandating compliance compliance with concrete specifications" specifications" (Rivas-Pichardo (Rivas-Pichardo v 292 Fifth F(fth Ave. Holdings, LLC, 198 AD3d 826, 829 [2d Dept 2021] [internal quotation marks omitted]). It is true, as the coop contends (in ,r ,-r 44 of its counsel's counsel's opening opening affirmation), affirmation), that plaintiff asserting 241 ((6) of a specific 6) claim must allege a violation violation of specific and a plaintiff asserting a Labor Law §S 241 concrete provision provision of the Industrial Industrial Code. It is also true, however, however, that "the failure to provision allegedly violated violated in support support of of a Labor Labor Law §S 241 ((6) 6) identify the specific Code provision ... of particulars particulars is not necessarily complaint or in the bill ... necessarily cause of action either in the complaint of New York, 54 AD3d 308, 310. 310 [2d Dept Dept 2008]). "A plaintiff plaintiff fatal" ((Galarraga Galarraga v City of allegation of of an Industrial Industrial Code violation violation in support support of of a Labor Labor Law §S 241 ((6) may make an allegation 6) opposition to a motion motion for summary summary judgment allegation claim for the first time in opposition judgment if the allegation 9 [* 9] 9 of 14 FILED: KINGS COUNTY CLERK 10/03/2022 02:48 PM NYSCEF DOC. NO. 105 INDEX NO. 505659/2018 RECEIVED NYSCEF: 10/03/2022 theories of allegations, raises no new theories of liability, and causes no involves no new factual allegations, 81 AD3d 782, 783 [2d Dept 2011] Lipschutz, 81 prejudice to the defendants" defendants" (Kowalik (Kowalik v Lipschutz, of citation of belated citation plaintiff's belated alterations omitted]). Here, plaintiff's quotation marks and alterations [internal quotation defendants' cross Industrial Code §S 23-1.21 (b) (3) (iv), in his opposition to the coop defendants' support of of his own cross motion, involves no new factual allegations allegations or new motion and in support theories of prejudice to the coop. The coop was put on of liability; nor has it caused unfair prejudice testimony) that his pretrial testimony) of plaintiff's particulars and his pretrial plaintiff's bill of particulars sufficient notice (by way of Przyborowski v ladder (see Przyborowski 241 (6) claim related related to the flawed or defective defective ladder Labor Law §S 241 Powell Cove Assoc., Klimowicz v Powell A&M Cook, LLC, 120 AD3d 654 [2d Dept Dept 2014]; Klimowicz 651,654 AD3d 651, A&M Cook, Moreover, Industrial LLC, 111 111 AD3d 605,607 605,607 [2d Dept 2013]; Kowalik, 81 AD3d at 784). Moreover, Industrial Kowalik, 81 Code S 23-1.21 (b) (3) (iv), which prohibits of a ladder "[i]f "[i]fitit has any flaw or defect prohibits the use of Code§ of material that may cause cause ladder failure," sets forth a specific (rather than a general) general) safety Law§S 241 (6) claim (see Melchor, standard, and, as such, is sufficient sufficient to support a Labor Law AD2d 108, 109 [1st Dept 90 AD3d at 870; De Oliveira v Little John's Moving, Inc., 289 AD2d Little John's 2001]). prima facie, Here, plaintiff established, prima testimony, has established, plaintiff again relying on his pretrial testimony, incident suffered working at the time of that: (1) the A-frame of the incident A-frame ladder on which he was working from a flaw or defect of of material that caused its failure within the meaning meaning of of Industrial charged with the nonowner charged building owner Code Code§S 23-1.21 (b) (3) (iv); and (2) the coop (as the building protection to construction statutory duty to provide construction reasonable and adequate protection provide reasonable delegable statutory provision (see Ennis, 207 AD3d at violated this Industrial Industrial Code provision premises) violated workers on its premises) LLC, 192 AD3d 859, Bedford Ave., LLC, 705; AD3d at 871; see also Cruz v 1142 Bedford 705; Melchior, 90 AD3d 863 [2d Dept 2021]). [* 10] 10 of 14 10 INDEX NO. 505659/2018 FILED: KINGS COUNTY CLERK 10/03/2022 02:48 PM NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 10/03/2022 the coop failed to raise raise a triable fact. Contrary the In opposition, opposition, the coop has has failed triable issue issue of of fact. Contrary to the his prima prima facie facie case coop's plaintiff was was not not required part of coop's contention, contention, plaintiff required to demonstrate demonstrate as part of his case Rodriguez v City New York, York, 31 NY3d NY3d 312, 312, 323 fault (see Rodriguez his freedom freedom from from comparative comparative fault City of of New Ortega v R.C. R.C. Diocese of Brooklyn, 940, 942 942 [2d Dept 2019]).13 Diocese of Brooklyn, 178 AD3d AD3d 940, Dept 20 I 9]). 13 [2018]; Ortega Accordingly, the branch of plaintiffs cross motion which which is for partial partial summary judgment, Accordingly, the branch ofplaintiffs cross motion summary judgment, as against the coop, the issue issue of liability on his Labor Labor Law Law §~ 241 (6) claim, insofar as it against the coop, on the of liability claim, insofar is predicated predicated on Industrial Industrial Code§ 23-1.21 (b) (3) (iv), granted; conversely, the branch branch Code ~ 23-1.21 (iv), is granted; conversely, the of the coop coop defendants' defendants' cross cross motion summary judgment dismissing that claim of motion which which is for summary judgment dismissing that claim as against the coop against the coop is denied. denied. Contested Legal Issue #3: PACS' Contested PACS' Potential Liability Liability to the Coop Defendants Defendants Lastly, for summary summary judgment dismissing all claims claims and cross claims claims Lastly, PACS PACS moves moves for judgment dismissing and cross as against against it, whereas the coop more precisely, precisely, the crosswhereas the coop defendants defendants (or, more the coop coop and and Sen Senl414) ) crossmove for conditional conditional summary summary judgment common-law indemnification against it. move judgment for for common-law indemnification as against As noted, not objected objected to the dismissal of of his claims as against against PACS. noted, plaintiff plaintiff has has not the dismissal his claims PACS. This This leaves the cross cross claims claims of of the coop and and Sen Sen as against against leaves for consideration consideration the the viability viability of of the the coop PACS. PACS. PACS has met its prima of establishing establishing entitlement entitlement to summary summary PACS has met prima facie facie burden burden of judgment demonstrating that and methods of judgment by by demonstrating that it was was not not responsible responsible for for the means means and methods of plaintiffs work. In opposition, opposition, the and Sen Sen have have failed plaintiffs work. the coop coop and failed to raise raise a triable triable issue issue of of fact. The pretrial pretrial testimony testimony of of Aleksander Shkreli, R.A. ("Shkreli"), one one of partners in Aleksander Shkreli, R.A. ("Shkreli"), of the the two two partners The 13 13The defendants' reliance reliance on Cardenas Cardenas v 111-127 Cabrini Cabrini Apts. Corp. (145 AD3d 955 The coop defendants' [2d Dept 2016]) 2016]) is unavailing, unavailing, as Cardenas Cardenas had been issued approximately approximately two years before the [2d of Appeals Appeals handed down its landmark decision to the contrary contrary in Rodriguez of New Rodriguez v City of Court of 31 NY3d 312 (2018). York, 31 14 14As As Harrington has asserted no cross claims as against against PACS PACS or any other other codefendant. codefendant. noted, Harrington 11 11 [* 11] 11 of 14 FILED: KINGS COUNTY CLERK 10/03/2022 02:48 PM NYSCEF DOC. NO. 105 INDEX NO. 505659/2018 RECEIVED NYSCEF: 10/03/2022 demonstrated that PACS, by attending Sen-Harrington PACS, demonstrated attending weekly status meetings meetings with Sen-Harrington plaintiff and TD, did not go beyond beyond the function of an architect; that PACS did not direct plaintiff or other workers as to how to perform their work; and that PACS did not supply any materials or equipment equipment to the renovation Accordingly, the branch branch of PACS' PACS' renovation projectY project. 15 Accordingly, summary judgment motion for summary judgment dismissing dismissing all cross claims as against against it is granted; branch of conversely, the branch of the coop defendants' defendants' cross motion for conditional conditional summary summary judgment common-law indemnification judgment for common-law indemnification as against PACS is denied, as more fully set forth in the decretal paragraphs paragraphs below below (see Zol6tar, Zolotar, 36 AD3d at 803; Boyd Boyd v Lepera Lepera & WardP.C., Ward P.C., 275 AD2d 562, 564 [3d Dept 2000]). The Court has considered parties' remaining remaining contentions contentions and found them considered the parties' unavailing. Conclusion Conclusion Accordingly, Accordingly, it is ORDERED that in Seq. No.2, ORDERED No. 2, PACS' PACS' motion for summary summary judgment judgment dismissing dismissing all claims and cross claims as against it is granted; plaintiffs plaintiffs complaint complaint and all cross claims dismissed as against against P PACS are dismissed ACS without costs and disbursements; disbursements; and the action is severed accordingly; and it is further ORDERED that in Seq. No.3, ORDERED No. 3, the initial 'branch branch of the coop defendants' defendants' cross summary judgment motion for summary judgment dismissing dismissing all claims and cross claims as against each of them is granted granted to the extent extent that plaintiffs plaintiffs claims as against Sen and Harrington Harrington are 15 15 See See Shkreli EBT EBT tr at page 18, 18, lines 9-20; page 22, line 6 to page 23, line 25; page 27, line 19 to page 28, line 3; page 28, lines 13-18; page 30, lines 13-19; page 43, lines 14-18; page 47, 15 4 7, line 15 to page 48, line 3. 12 [* 12] 12 of 14 INDEX NO. 505659/2018 FILED: KINGS COUNTY CLERK 10/03/2022 02:48 PM NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 10/03/2022 dismissed without without costs and disbursements; disbursements; the action is severed severed accordingly; accordingly; and the branch of denied; and it is further balance of the initial branch of their cross motion is denied; ORDERED No. 3, the remaining remaining branch of of the coop defendants' ORDERED that in Seq. No.3, defendants' cross conditional summary judgment judgment for common-law indemnification as motion which is for conditional common-law indemnification PACS and TD Renovations Renovations is denied; against each of ofPACS denied; and it is further ORDERED No. 4, plaintiffs plaintiff's cross motion for partial summary ORDERED that in Seq. No.4, judgment ~~ 240 (1) and judgment on the issue of liability as against the coop under Labor Labor Law §§ 241 ((6) 6) is granted; granted; and it is further 241 ORDERED ORDERED that to reflect reflect the dismissal dismissal of of all claims and cross claims as against PACS, the dismissal dismissal of of plaintiffs Harrington, and the retention plaintiff's claims as against Sen and Harrington, retention of the coop's coop's cross claims as against Sen, the caption is amended amended to read in its entirety as follows: ------------------------------------------------------------------)( ------------------------------------------------------------------X SIMON, STEFAN SIMON, Plaintiff, Plaintiff, Index No. No. 505659/18 505659/18 Index -against-against321 WEST WEST 78TH STREET CORP., CORP., 78TH STREET Defendant. Defendant. ------------------------------------------------------------------)( ------------------------------------------------------------------X TH 321 WEST WEST 78TH 78 STREET STREET CORP., CORP., Cross Claim Claim Plaintiff, Cross Plaintiff, -against-againstANITA 1. SEN, I. SEN, Cross Claim Claim Defendant. Cross Defendant. ------------------------------------------------------------------)( ------------------------------------------------------------------X 321 WEST WEST 78rn 78TH STREET STREET CORP., CORP., Third-Party Plaintiff, Third-Patty Plaintiff, -against-againstTD RENOVATIONS, RENOVATIONS, INC., INC., TD Third-Party Defendant. Defendant. Third-Party ---------------------------------------------------------------~--)(·--X --------------------------------------------------------------- ; and it is further 13 [* 13] 13 of 14 INDEX NO. 505659/2018 FILED: KINGS COUNTY CLERK 10/03/2022 02:48 PM NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 10/03/2022 ORDERED plaintiffs counsel is directed to electronically ORDERED that plaintiff's electronically serve a copy of this decision, order, and judgment judgment with notice of entry on defendants' respective counsel, as defendants' respective third-party defendant well as on third-party defendant TD Renovations, Renovations, Inc., and to electronically electronically file an affidavit of service thereof thereof with the Kings County Clerk; and it is further ORDERED reminded of their scheduled ORDERED that the remaining remaining parties are reminded scheduled in-person appearance in JCP-1 l 0:00 a.m. JCP-l on December December 6, 2022 at 10:00 judgment of the Court. The foregoing foregoing constitutes constitutes the decision, order, and judgment FORTHWITH: ENTER FORTHWITH: Hon.Richard JSC Hon. Richard Velasquez, JSC SEP SEP 3 300 2022 14 [* 14] 14 of 14

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