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VIOLETTE v. ARMONK ASSOCS.

April 22, 1994

JAMES VIOLETTE and LORETTA VIOLETTE, Plaintiffs,
v.
ARMONK ASSOCIATES, L.P., a New York Limited Partnership; ELMAR CONTRACTING CORPORATION, and CAMPBELL CHAIN CO., INC., Defendants. ELMAR CONTRACTING CORPORATION, Third-Party Plaintiff, v. MAJOR MACHINERY, INC., Third-Party Defendant.


SWEET


The opinion of the court was delivered by: ROBERT W. SWEET

Sweet, D.J.

 The plaintiffs, James Violette ("Violette") and Loretta Violette ("Mrs. Violette") (collectively, the "Violettes") have moved for an order, pursuant to Rule 15, Fed. R. Civ. P., granting them leave to amend their complaint to increase the ad damnum clause, and for an order excluding certain evidence from consideration in this matter. In addition, the Violettes appear to have moved for reargument of this Court's prior opinions relating to their claims pursuant to New York Labor Law § 240(1) ("Labor Law Section 240(1)").

 Defendants Armonk Assoc., CMC Realty & Developing, Inc., and Carol Management Corp. (collectively, "Armonk") have moved for an order, pursuant to Rule 56, Fed. R. Civ. P., granting them summary judgment and dismissing the Violettes' complaint and all cross claims and counterclaims against them. Defendant Elmar Contracting Corp. ("Elmar," and, together with Armonk, the "Defendants") has moved for an order, pursuant to Rule 56, Fed. R. Civ. P., granting them summary judgment and dismissing the complaint and all cross-claims and counterclaims against it.

 For the following reasons, the Plaintiffs' motion to amend is granted, their motion to reargue is denied, and their motion to exclude evidence is denied. The Defendants' motions for summary judgment are granted in part and denied in part.

 The Parties

 The parties, facts, and prior proceedings of this case have been thoroughly discussed in prior opinions of this Court, familiarity with which is assumed. See, e.g., Violette v. Armonk Assocs., L.P., 823 F. Supp. 224 (S.D.N.Y. 1993); Violette v. Armonk Assocs., L.P., 808 F. Supp. 1060 (S.D.N.Y. 1992). They will be described below only to the extent necessary to decide the present motions.

 James Violette was injured on November 10, 1988, when a chain (the "hoist chain") broke and a ripper fell upon him, causing serious injury. Violette's wife, Loretta, has brought suit for loss of consortium. Both plaintiffs are residents of the State of Connecticut.

 Defendant Armonk Associates, L.P. ("Armonk") is a New York partnership which was and is the owner of property known as the Dellwood Estates ("Dellwood Estates"), in the Town of New Castle, County of Westchester, New York. Defendant Carol Management Corp. ("Carol") is a New York corporation and a real estate developer which initiated the construction of condominiums at Dellwood Estates. Defendant CMC Realty and Development, Inc. ("CMC") is also a New York corporation and successor to Carol.

 Defendant Campbell, a North Carolina corporation and a division of defendant Cooper, is alleged to be the manufacturer of the defective hoist chain.

 Defendant and third-party plaintiff Elmar Contracting Corp. ("Elmar") is a New York corporation and the general contractor for construction on Dellwood Estates.

 Major Machinery ("Major") is a Connecticut corporation that directly employed James Violette and that leased a bulldozer and a ripper to Elmar.

 Facts

 Carol intended to build condominiums at Dellwood Estates, and entered into a contract on August 10, 1988 with Elmar as general contractor to provide site preparation. On November 10, 1988 Elmar rented a bulldozer and ripper from Major in connection with the proposed excavation. The bulldozer and ripper were brought to the property by Major, and Violette, an employee of Major, undertook to attach the ripper, which weighed 10,600 pounds, to the bulldozer. In order to lift the ripper into position for attachment, Violette requested assistance from Elmar, which provided a track loader.

 The bucket of the track loader was attached by a chain manufactured by defendant Campbell to the ripper. The track loader hoisted the ripper off the ground and into position for attachment to the bulldozer by aligning and seating the pin attachments. Violette was under the ripper after it was hoisted in order to accomplish the attachment. The chain broke, and the ripper fell on Violette, who suffered injuries.

 Prior Proceedings

 The Plaintiffs commenced this action in July 1990. Defendant Elmar filed a third-party complaint against Major in August 1990. The Plaintiffs moved for summary judgment against Armonk, Elmar, CMC, and Carol, and Armonk, CMC, and Carol cross-moved against Elmar for indemnity. By an opinion dated December 10, 1992, this Court denied the Violettes' motion for summary judgment and granted the cross-motion of Armonk, CMC, and Carol. On June 7, 1993, the Court granted the Violettes' motion to reargue the December 10 opinion, and, upon reargument, again denied their motion for summary judgment and denied their motion for an interlocutory appeal pursuant to 28 U.S.C. 1292. Argument was heard on the present motions on February 23, 1994, and the motions were considered fully submitted as of that date.

 Discussion

 The Summary Judgment Motions

 A motion for summary judgment may be granted only when there is no genuine issue of material fact remaining for trial and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Silver v. City Univ., 947 F.2d 1021, 1022 (2d Cir. 1991). The moving party bears the burden of proving that no genuine issue of material fact exists. Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988); Pittston Warehouse Corp. v. American Motorists Ins. Co., 715 F. Supp. 1221, 1224 (S.D.N.Y. 1989), aff'd, 954 F.2d 62 (2d Cir. 1992).

 The Second Circuit has repeatedly noted that "as a general rule, all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion, and all doubts as to the existence of a genuine issue for trial should be resolved against the moving party." Brady, 863 F.2d at 210; see also Cartier v. Lussier, 955 F.2d 841, 845 (2d Cir. 1992); Burtnieks v. City of New York, 716 F.2d 982, 983-84 (2d Cir. 1983); Swan Brewery Co. v. United States Trust Co., 832 F. Supp. 714, 717 (S.D.N.Y. 1993).

 However, the remedy of summary judgment is viewed "as an integral part of the Federal rules as a whole, which are designed "'to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (citations omitted). Once the moving party has met its burden of coming forward with evidence to show that no material fact exists for trial, the nonmoving party must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

 New York Labor Law § 240(1)

 This Court has twice held that New York Labor Law § 240(1) does not apply to this case. See Violette v. Armonk Assocs., L.P., 823 F. Supp. 224 (S.D.N.Y. 1993); Violette v. Armonk Assocs., L.P., 808 F. Supp. 1060 (S.D.N.Y. 1992). With more persistence than inspiration, the ...


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