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Miller v. Carp Const. Corp.

Supreme Court of New York, New York County

September 16, 2013

Kevin MILLER and Deborah Miller, Plaintiff,
v.
CARP CONSTRUCTION CORP., Defendant. No. 104439/08.

Editorial Note:

This decision has been referenced in a table in the New York Supplement.

Roy A. Kuriloff, Esq., Gorayeb & Associates, PC, for Plaintiffs.

Lisa J. Black, Esq., Jennifer Lewkowski, Esq., Traub Lieberman Straus & Shrewsberry LLP.

JEFFREY K. OING, J.

Defendant, Carp Construction Corp. (" Carp" ), moves, pursuant to CPLR 3212, for an order: (1) dismissing plaintiff's, Kevin Miller, claims predicated on Labor Law ยงยง 240[1], 241[6], 200, and common-law negligence; and (2) dismissing plaintiff's, Deborah Miller, derivative loss of consortium claim.

Plaintiff, Kevin Miller, cross-moves for an order granting him partial summary judgment on his claims, supra, and for an order granting him leave to serve an amended bill of particulars in the form annexed to the cross-motion as Exhibit 5.

Background

Defendant Carp is a general contractor that works mainly in the areas of water mains, sewers, and sidewalk and street renovations. In February 2006, Carp entered into a contract with the New York City Department of Design and Construction (" NYCDDC" ) for the installation of water mains for new construction through Kings and Richmond Counties (the " project" ). Carp subcontracted the entire project to Clemente Brothers Contracting Corp. (" Clemente Brothers" ). Joseph Walsh was an engineer with Carp, and the only Carp employee involved with this project.

Plaintiff, Kevin Miller, was employed by the Clemente Brothers as a laborer. On the date of plaintiff's accident, June 19, 2006, plaintiff was working at the Brooklyn intersection of Bleecker and St. Nicholas Avenue. He received daily direction on the tasks he had to perform from Jeff Clemente, a principal of the Clemente Brothers. On the date of plaintiff's accident, Jeff Clemente directed plaintiff to flag traffic. Plaintiff flagged traffic for approximately two hours, and then Jeff Clemente directed plaintiff to help install pipe into a trench. This work was not the first time plaintiff had helped install a pipe.

According to plaintiff's EBT testimony, his injury occurred while new pipe was being put into a trench. Plaintiff's work involved assisting in the cutting of the pipe to get it ready to put in the trench. In order to cut the pipe, it had to be placed on wooden skids. The pipe was moved to the side of the trench with an excavator. Plaintiff testified that most of the time the pipe would be lifted by an excavator or a payloader onto the skids, but on the date of his injury the pipe was lifted manually because both the excavator and the payloader were in use. Jeff Clemente directed plaintiff and his co-worker, Chris Banghart (" Chris" ), to move the pipe onto the skids. The pipe plaintiff was working with had already been cut down to approximately nine feet, but needed to be cut down further. Plaintiff testified that sometimes the workers could almost roll the pipe onto the skid which sat three inches above street level. Plaintiff claims that Jeff Clemente directed the workers to get the skid under the pipe. When plaintiff and Chris tried to move the pipe, " Chris slipped, and [plaintiff] had the pipe and the weight of the pipe was all on [plaintiff] and [his] back snapped twice" (Miller EBT Tr. at p. 59).

Discussion

Timeliness of Cross-motion

As an initial matter, I find plaintiff's cross-motion timely because the motion and cross-motion seek relief with respect to the same claims ( Filannino v. Triborough Bridge and ...


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