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Simon v. Granite Building 2, LLC

Supreme Court of New York, Second Department

February 13, 2014

Charles Simon, etc., plaintiff-respondent,
v.
Granite Building 2, LLC, et al., respondents-appellants, FXR Construction, Inc., doing business as Dev Construction, et al., appellants-respondents, et al., defendants. Index No. 22101/08

Schoenfeld Moreland, P.C., New York, N.Y. (Matthew I. Toker of counsel), for appellant-respondent FXR Construction, Inc., doing business as Dev Construction.

Lewis, Brisbois, Bisgaard & Smith, LLP, New York, N.Y. (Georgia S. Alikakos of counsel), for appellant-respondent Canatal Industries, Inc.

Gallo Vitucci & Klar, New York, N.Y. (Kimberly A. Ricciardi of counsel), for appellant-respondent MCLO Structural Steel Corp.

Quirk and Bakalor, P.C. (Carol R. Finocchio, New York, N.Y., of counsel), for respondents-appellants Granite Building 2, LLC, and Lalezarian Properties, LLC.

Armienti, DeBellis, Guglielmo & Rhoden, LLP, New York, N.Y. (Karen S. Drotzer of counsel), for respondents-appellants Kulka Construction Corp. and Kulka Contracting, LLC.

Rosenberg & Gluck, LLP, Holtsville, N.Y. (Michael V. Buffa of counsel), for plaintiff-respondent.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries and wrongful death, (1) the defendant Canatal Industries, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Marber, J.), entered February 2, 2012, as granted that branch of the plaintiff's motion which was for leave to amend the bill of particulars to allege violations of 12 NYCRR 23-4.2 and OSHA standards against it, denied those branches of its cross motion which were for summary judgment dismissing the complaint insofar as asserted against it and dismissing the cross claims of the defendants Granite Building 2, LLC, and Lalezarian Properties, LLC, insofar as asserted against it, and granted that branch of the cross motion of the defendants Kulka Construction Corp. and Kulka Contracting, LLC, which was for leave to amend their answer to include cross claims against it for contractual indemnification and to recover damages for breach of contract for failure to procure insurance, (2) the defendant MCLO Structural Steel Corp. appeals, as limited by its brief, from so much of the same order as granted that branch of the plaintiff's motion which was for leave to amend the bill of particulars to allege violations of 12 NYCRR 23-4.2 and OSHA standards against it, denied those branches of its motion which were for summary judgment dismissing the complaint insofar as asserted against it and dismissing the cross claims of the defendants Granite Building 2, LLC, and Lalezarian Properties, LLC, for contractual indemnification and to recover damages for breach of contract for failure to procure insurance insofar as asserted against it, and granted that branch of the cross motion of the defendants Kulka Construction Corp. and Kulka Contracting, LLC, which was for leave to amend their answer to include cross claims against it for contractual indemnification and to recover damages for breach of contract for failure to procure insurance, and (3) the defendant FXR Construction, Inc., doing business as DEV Construction, appeals, as limited by its brief, from so much of the same order as granted that branch of the plaintiff's motion which was for leave to amend the bill of particulars to allege violations of 12 NYCRR 23-4.2 and OSHA standards against it, denied those branches of its cross motion which were for summary judgment dismissing the complaint insofar as asserted against it and dismissing the cross claims of the defendants Granite Building 2, LLC, and Lalezarian Properties, LLC, for contractual indemnification insofar as asserted against it, and granted that branch of the cross motion of the defendants Kulka Construction Corp. and Kulka Contracting, LLC, which was for leave to amend their answer to include a cross claim against it for contractual indemnification, and the defendants Granite Building 2, LLC, and Lalezarian Properties, LLC, and the defendants Kulka Construction Corp. and Kulka Contracting, LLC, separately cross-appeal, as limited by their respective briefs, from so much of the same order as granted that branch of the plaintiff's motion which was for leave to amend the bill of particulars to allege violations of 12 NYCRR 23-4.2 and OSHA standards against each of them and denied their separate cross motions for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against each of them.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof granting that branch of the plaintiff's motion which was for leave to amend the bill of particulars to allege violations of 12 NYCRR 23-4.2 and OSHA standards against the appellants-respondents and the respondents-appellants, and substituting therefor a provision denying that branch of the motion, (2) by deleting the provision thereof denying those branches of the motion of the defendant MCLO Structural Steel Corp., and the separate cross motions of the defendants Granite Building 2, LLC, and Lalezarian Properties, LLC, the defendants Kulka Construction Corp. and Kulka Contracting, LLC, the defendant Canatal Industries, Inc., and the defendant FXR Construction, Inc., doing business as DEV Construction, which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against each of them, and substituting therefor a provision granting those branches of the motion and cross motions, (3) by deleting the provision thereof denying those branches of the motion of the defendant MCLO Structural Steel Corp. and the separate cross motions of the defendants Canatal Industries, Inc., and FXR Construction, Inc., doing business as DEV Construction, which were for summary judgment dismissing the causes of action alleging violations of Labor Law § 200 insofar as asserted against each of them, and substituting therefor a provision granting those branches of the motion and cross motions, (4) by deleting the provision thereof denying those branches of the motion of the defendant MCLO Structural Steel Corp. and the cross motion of the defendant Canatal Industries, Inc., which were for summary judgment dismissing the causes of action alleging common-law negligence insofar as asserted against each of them, and substituting therefor a provision granting those branches of the motion and cross motions, (5) by deleting the provision thereof denying those branches of the motion of the defendant MCLO Structural Steel Corp. and the cross motion of the defendant Canatal Industries, Inc., which were for summary judgment dismissing the cross claims of the defendants Granite Building 2, LLC, and Lalezarian Properties, LLC, for contractual indemnification against each of them, and substituting therefor a provision granting those branches of the motion and cross motion, (6) by deleting the provision thereof granting that branch of the cross motion of the defendants Kulka Construction Corp. and Kulka Contracting, LLC, which was for leave to amend their answer to include cross claims for contractual indemnification against the defendants Canatal Industries, Inc., and MCLO Structural Steel Corp., and substituting therefor a provision denying that branch of the cross motion, and (7) by deleting the provision thereof denying that branch of the cross motion of defendant Canatal Industries, Inc., which was for summary judgment dismissing the cross claim of the defendants Granite Building 2, LLC, and Lalezarian Properties, LLC, for contribution insofar as asserted against it, and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff and his wife (hereinafter the decedent), were hired to hang wallpaper in a newly constructed office building that was nearly complete, which was owned by the defendant Granite Building 2, LLC (hereinafter Granite). On the morning of the subject accident, February 13, 2008, the day after they were instructed to begin work in the building, the decedent drove her vehicle, with the plaintiff as a passenger, to the job site. When the plaintiff and the decedent were unable to enter the building through the front entrance, the decedent drove the vehicle through an opening in a fence onto the upper deck of a parking garage that was still under construction adjacent to the building. When the vehicle was about halfway between the opening gate in the fence and the leading edge of the parking deck, the decedent informed the plaintiff that she could not stop. The vehicle slowly slid on ice until it reached the edge of the incomplete parking deck, broke through the steel cable guardrail system that was intended to protect individual workers, and fell approximately 32 feet to the lower level of the garage. The plaintiff was injured when he jumped out of the vehicle before it fell, and the decedent fell with the vehicle and died at the scene.

The plaintiff subsequently commenced this action against, among others, Granite, the defendant Lalezarian Properties, LLC (hereinafter Lalezarian), the property manager, Kulka Construction Corp. and Kulka Contracting, LLC (hereinafter together the Kulka defendants), the construction manager, Canatal Industries, Inc. (hereinafter Canatal), the structural steel subcontractor, MCLO Structural Steel Corp. (hereinafter MCLO), the installer of the structural steel, and FXR Construction, Inc., doing business as DEV Construction (hereinafter FXR), the concrete subcontractor (hereinafter collectively the appellants), to recover damages, alleging violations of Labor Law §§ 200, 240(1), and 241(6), as well as common-law negligence.

In an order entered February 2, 2012, the Supreme Court, inter alia, granted that branch of the plaintiff's motion which was for leave to amend the bill of particulars to allege violations of 12 NYCRR 23-4.2 and OSHA standards against the appellants, denied the appellants' motion and cross motions for summary judgment, and granted the motion of the Kulka defendants for leave to amend their answer to assert cross claims against Canatal, MCLO, and FXR.

Initially, the contentions of Granite, Lalezarian, and the Kulka defendants that the summary judgment motion and cross motions of MCLO, Canatal, and FXR were untimely made are academic in light of the fact that the Supreme Court vacated the note of issue filed by the plaintiff and no party to this action has appealed from that determination.

The Supreme Court should have granted those branches of the appellants' motion and cross motions which were for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) causes of action insofar as asserted against each of them, and should have denied that branch of the plaintiff's motion which was for leave to amend the bill of particulars to allege violations of 12 NYCRR 23-4.2 and OSHA standards against the appellants. The appellants made a prima facie showing of entitlement to judgment as a matter of law on the Labor Law §§ 240(1) and 241(6) causes of action. At the time of the accident, the plaintiff and his decedent were not engaged in an enumerated activity protected under Labor Law § 240(1) (see Jock v Fien, 80 N.Y.2d 965, 967-968). Further, the plaintiff cannot establish a violation of Labor Law § 241(6), since the plaintiff and his decedent were not working in a construction area at the time of the accident, and the accident did not occur in connection with construction, demolition, or excavation work being performed by them (see Nagel v D & R Realty Corp., 99 N.Y.2d 98, 103; Gleason v Gottlieb, 35 A.D.3d 355; Peterkin v City of New York, 5 A.D.3d 652). In opposition to the appellants' motion and cross motions, the plaintiff failed to raise a triable issue of fact. Wallpapering in and of itself is not an enumerated activity under the Labor Law, and the plaintiff failed to allege sufficient facts to establish that the work that he and the decedent would have performed was part of the larger construction project (see Labor Law § 240[1]; Schroeder v Kalenak Painting & Paperhanging, Inc., 7 N.Y.3d 797). Further, while we are not to "isolate the moment of injury" (Prats v Port Auth. of N.Y. & N.J., 100 N.Y.2d 878, 882) in determining whether a plaintiff is engaged in an activity protected under Labor Law ยงยง 240(1) and 241(6), we conclude, under the circumstances presented, that the accident occurred before the plaintiff and his decedent had begun any work that conceivably could have been covered under these ...


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