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Dereveneaux v. Hyundai Motor America

Supreme Court of New York, Second Department

December 20, 2017

Keith Dereveneaux, appellant,
v.
Hyundai Motor America, et al., respondents (and a third-party action). Index No. 700356/10

          Submitted - September 22, 2017

         D54137 M/hu

          Scott Baron & Associates, P.C., Yonkers, NY, for appellant.

          Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, NY (Daniel Y. Sohnen of counsel), for respondents Hyundai Motor America, Trade Show Fabrications, Inc., and Innocean Worldwide Americas, LLC.

          Martyn, Toher & Martyn, Mineola, NY (Frank P. Toher of counsel), for respondent Trade Show Specialists Corp.

          WILLIAM F. MASTRO, J.P. SANDRA L. SGROI JEFFREY A. COHEN JOSEPH J. MALTESE, JJ.

          DECISION & ORDER

         In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Nahman, J.), entered September 18, 2015, which granted the motion of the defendant Trade Show Specialists Corp. for summary judgment dismissing the amended complaint insofar as asserted against it and those branches of the separate motion of the defendants Hyundai Motor America, Trade Show Fabrications, Inc., and Innocean Worldwide Americas, LLC, which were for summary judgment dismissing the amended complaint insofar as asserted against them.

         ORDERED that the appeal from so much of the order as granted that branch of the motion of the defendants Hyundai Motor America, Trade Show Fabrications, Inc., and Innocean Worldwide Americas, LLC, which was for summary judgment dismissing the amended complaint insofar as asserted against the defendant Hyundai Motor America is dismissed; and it is further, ORDERED that the order is affirmed insofar as reviewed; and it is further, ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.

         The appeal from so much of the order as granted that branch of the motion of the defendants Hyundai Motor America (hereinafter Hyundai), Trade Show Fabrications, Inc. (hereinafter TSF), and Innocean Worldwide Americas, LLC (hereinafter Innocean), which was for summary judgment dismissing the amended complaint insofar as asserted against Hyundai must be dismissed, as the plaintiff did not oppose the grant of such relief and is therefore not aggrieved by that portion of the order (see CPLR 5511; Kun Sik Kim v State St. Hospitality, LLC, 94 A.D.3d 708, 709).

         The defendant Trade Show Specialists Corp. (hereinafter TSS) made a prima facie showing of entitlement to summary judgment dismissing the amended complaint insofar as asserted against it by establishing that the plaintiff was its special employee and, thus, was barred from seeking to recover damages for personal injuries against it by the Workers' Compensation Law (see Thompson v Grunman Aerospace Corp., 78 N.Y.2d 553; Wilson v A.H. Harris & Sons, Inc., 131 A.D.3d 1050, 1051; Grilikhes v International Tile & Stone Show Expos, 90 A.D.3d 480). Since the plaintiff failed to raise a triable issue of fact in opposition, the Supreme Court properly granted TSS's motion for summary judgment dismissing the amended complaint insofar as asserted against it.

         TSF and Innocean made a prima facie showing of entitlement to summary judgment dismissing the Labor Law § 200 cause of action insofar as asserted against them by establishing that they did not have authority or control over the work site or the work being performed when the plaintiff allegedly was injured (see Russin v Louis N. Picciano & Son, 54 N.Y.2d 311, 317; Doto v Astoria Energy II, LLC, 129 A.D.3d 660, 663; Simon v Granite Bldg. 2 LLC, 114 A.D.3d 749, 754). In opposition, the plaintiffs conclusory allegations with no evidentiary support failed to raise a triable issue of fact (see S.J. Capelin Assoc. v Globe Mfg. Corp., 34 N.Y.2d 338, 342).

         Finally, TSF and Innocean made a prima facie showing of entitlement to summary judgment dismissing the Labor Law § 241(6) cause of action insofar as asserted against them by establishing that the Industrial Code provisions relied upon by the plaintiffwere inapplicable to the facts of the case (see Keener v Cinalta Constr. Corp., 146 A.D.3d 867, 868; Kowalik v Lipshultz, 81 A.D.3d 782, 784; Cooper v State of New York, 72 A.D.3d 633, 635; Cabrera v Sea Cliff Water Co., 6 A.D.3d 315, 316; Salinas v Barney Skanska Constr. Co., 2 A.D.3d 619, 621). In opposition, the plaintiff failed to raise a triable issue of fact.

         Accordingly, TSF and Innocean were properly awarded summary judgment dismissing the amended complaint ...


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