Amigon v. Maxwin USA, Inc., 2008 NY Slip Op 32035(U) (N.Y. Sup. Ct. 7/14/2008), 0007858/2006

CourtUnited States State Supreme Court (New York)
Writing for the CourtPatricia Satterfield
Citation2008 NY Slip Op 32035
Decision Date14 July 2008
Docket NumberMotion Cal. No. 1,0007858/2006,Motion Seq. No. 3
PartiesJULIAN ADRIEN AMIGON, Plaintiff, v. MAXWIN USA, INC., MAXWIN BIOTECH, INC., MAXWIN BIOTECH-USA, INC., SHEA ECUADOR AUTO REPAIR, STADIUM STORAGE, LLC. and BEST FUTURE LAND, LLC., Defendants.

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2008 NY Slip Op 32035(U)
JULIAN ADRIEN AMIGON, Plaintiff,
v.
MAXWIN USA, INC., MAXWIN BIOTECH, INC., MAXWIN BIOTECH-USA, INC., SHEA ECUADOR AUTO REPAIR, STADIUM STORAGE, LLC. and BEST FUTURE LAND, LLC., Defendants.
0007858/2006
Motion Cal. No. 1
Motion Seq. No. 3
Supreme Court of the State of New York, Queens County.
July 14, 2008
Motion Date April 30, 2008

PATRICIA SATTERFIELD, Judge.


Upon the foregoing papers, it is ordered that the motion and cross-motion are resolved as follows:

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This is a Labor Law action to recover damages for injuries allegedly sustained by plaintiff Julian Adrien Amigon, when he fell from the roof of the premises located at 37-11 126th Street, Astoria, New York, on August 25, 2005, during the course of his employment as a laborer with nonparty Miguel and Sons. The location where the accident occurred is a group of buildings upon which plaintiff was hired to put a roof on the newly constructed stores, in which defendants allegedly had an interest. Plaintiff alleges violations of sections 200, 240 and 241 of the Labor Law. Defendant Best Future Land, LLC ("Best"), the owner of the land upon which the structures were built, moves for summary judgment dismissing the complaint as to it on the ground that it neither owns, operates or otherwise controls the premises located at 37-11 126th Street, Astoria, New York. Plaintiff cross-moves for partial summary judgment against Best, and setting this matter down for a trial on damages.

From the outset, it is noted that CPLR 3212(a) provides that motions and cross-motions for summary judgment shall be made no later than 120 days after the filing of the note of issue, except with leave of court on "good cause" shown. Under the standard announced in Brill v. City of New York, 2 N.Y.3d 648 (2004), leave to file a late motion for summary judgment under CPLR 3212(a) requires a showing of a satisfactory explanation for the delay in filing the motion. "Where, as here, no deadline is set by the court for the making of summary judgment motions, no such motion may be made more than 120 days after the filing of the note of issue except with leave of court on good cause shown." Tower Insurance Company of New York v Razy Associates, 37 A.D.3d 702 (2nd Dept. 2007)[citations omitted]); Paterno v. CYC, LLC, 46 A.D.3d 788 (2nd Dept. 2007). "Good cause" requires a satisfactory explanation for the untimeliness of the motion rather than permitting a late motion simply because it has merit and the adversary is not prejudiced. See, Brill v City of New York, supra; Miceli v State Farm Mut. Auto Ins. Co., 3 N.Y.3d 725, 726-727(2004); Soltes v 260 Waverly Owners, 42 A.D.3d 565 (2nd Dept. 2007).

Here, although the note of issue was filed on November 12, 2007, plaintiff's cross-motion for summary judgment was not filed until April 4, 2008. Inasmuch as plaintiff did not seek leave of court to make a late cross-motion for summary judgment or provide any showing of good cause for the delay in his cross-moving papers, denial of the cross-motion is generally mandated. See, Miceli v State Farm Mut. Auto. Ins. Co., 3 N.Y.3d 725 (2004); Brill v City of New York, 2 N.Y.3d 648 (2004); Soltes v 260 Waverly Owners, 42 A.D.3d 565 (2nd Dept. 2007). Nevertheless, although plaintiff's cross-motion for summary judgment is untimely, "[[ an untimely motion or cross motion for summary judgment may be considered by the court where, as here, a timely motion for summary judgment was made on nearly identical grounds (citations omitted). In such circumstances, the issues raised by the untimely motion or cross motion are already properly before the court and thus, the nearly identical nature of the grounds may provide the requisite good cause [see, CPLR 3212(a)] to review the untimely motion or cross motion on the merits." Grande v. Peteroy, 39 A.D.3d 590, 592 (2nd Dept. 2007); see, Ellman v. Village of Rhinebeck, 41 A.D.3d 635 (2nd Dept. 2007); Justice v. City of New York, 8 A.D.3d 237 (2nd Dept. 2004); Kaufman v. Kehler, 5 A.D.3d 564 (2nd Dept. 2004); Boehme v. A.P.P.L.E., 298 A.D.2d 540 (2nd Dept. 2002); compare, Bickelman v. Herrill Bowling Corp., 49 A.D.3d 578, 853 N.Y.S.2d 383 (2nd Dept. 2008) [holding that the Supreme Court should not have entertained Herrill's separate motion for summary judgment, which

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was untimely. Herrill failed to demonstrate good cause for its delay in making the motion []. Contrary to Herrill's contention, the issues raised on its motion were not nearly identical to the issues raised on Polito's motion []; Bressingham v. Jamaica Hosp. Medical Center, 17 A.D.3d 496 (2' Dept. 2005) [holding that the branch of the cross motion of defendant Jamaica Hospital Medical Center which was for summary judgment dismissing the complaint insofar as asserted against it, made more than 120 days after the filing of the note of issue, was untimely (see CPLR 3212 [a]) and should not have been entertained without a showing of good cause for the delay []. There was no such showing here. While the pending motion of the codefendant, Pyrosignal & Suppression, Inc., for similar relief would have been a sufficient basis to consider the untimely motion had the motion and cross motion been nearly identical].

Here, as Best's timely motion and plaintiff's untimely cross-motion are for summary judgment, which requires this Court to make a determination as to whether the record before it is devoid of triable issues of fact, the nearly identical issues present a sufficient basis to consider the untimely cross motion. "Notably, the court, in the course of deciding the timely motion, is, in any event, empowered to search the record and award summary judgment to a nonmoving party (see CPLR 3212[b])." Grande v. Peteroy, 39 A.D.3d 590, 592 (2"d Dept. 2007); see, Ellman v. Village of Rhinebeck, 41 A.D.3d 635 (2nd Dept. 2007). Accordingly, this Court will consider both the motion and cross motion for summary judgment.

With respect to the motion by Best for dismissal of plaintiff's claims under sections 200, 240 and 241 of the Labor Law,2 which was timely filed within the prescribed period, it is well established that summary judgment should be granted when there is no doubt as to the absence of triable issues. See, Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 231 (1978); Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974); Taft v. New York City Tr. Auth., 193 A.D.2d 503, 505 (1nd Dept. 1993). As such, the function of the court on the instant motion is issue finding and not issue determination. See,

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D.B.D. Nominee, Inc., v. 814 10th Ave. Corp., 109 A.D.2d 668, 669 (2d Dept. 1985). The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. See Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position. See, Zuckerman v. City of New York, supra.

"Labor Law § 200 is a codification of the common-law duty imposed upon an owner or general contractor to provide a safe workplace [see, Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 609 N.Y.S.2d 168, 631 N.E.2d 110 (1993)]. To be held liable under Labor Law § 200, the owner or general contractor must have the authority to control the activity which brings about the injury... (citations omitted)." Mas v. Kohen, 283 A.D.2d 616 (2001); see, Kwang Ho Kim v. D W Shin Realty Corp., 47 A.D.3d 616 (2' Dept. 2008); Ragone v. Spring Scaffolding, Inc., 46 A.D.3d 652 (2nd Dept. 2007); Ferrero v. Best Modular Homes, Inc., 33 A.D.3d 847, 850 (2nd Dept. 2006); Cun-En Lin v. Holy Family Monuments, 18 A.D.3d 800 (2nd Dept. 2005); Quintavalle v. Mitchell Backhoe Service, Inc., 306 A.D.2d 454 (2003). Further, liability attaches where the owner or contractor created the hazard, or had actual or constructive notice of the unsafe condition, and exercised sufficient control over the work being performed to correct or avoid the unsafe condition. See, Leon v J & M Peppe Realty Corp.,190 A.D.2d 400 (1' Dept. 1993). Where the dangerous condition is the result of the contractor's methods and the owner exercises no supervisory control over the construction, liability will not attach to the owner. See, Young Ju Kim v. Herbert Const. Co., Inc., 275 A.D.2d 709 (2nd Dept. 2000); Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877 (1993). Likewise, "where the alleged defect or dangerous condition arises from the subcontractor's methods and the owner or general contractor exercise no supervisory control over the operation, no liability attaches to the owner or general contractor under the common law or under Labor Law § 200 (citations omitted)." Ferrero v. Best Modular Homes, Inc., 33 A.D.3d 847, 850 (2nd Dept. 2006).

A cause of action under section 240(1) of the Labor Law, imposes a nondelegable duty which applies when an injury is the result of one of the elevation-related risks contemplated by that section [see, Rose v. A. Servidone, Inc., 268 A.D.2d 516 (2000)], which prescribes safety precautions to protect laborers from unique gravity-related hazards such as falling from an elevated height or being struck by a falling object where the work site is positioned below the level where materials or loads are being hoisted or secured. See, Narducci v Manhasset Bay Assocs., 96 N.Y.2d 259 (2001); Misseritti v Mark IV Constr. Co., Inc., 86 N.Y.2d 487 (1995); Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494 (1993); Rocovich v Consolidated Edison Co., 78 N.Y.2d 509 (1991); Cambry v. Lincoln Gardens, 50 A.D.3d 1081 (2nd Dept. 2008); Natale v. City of New York, 33 A.D.3d 772 (,nd Dept. 2006). Thus, "[t]he extraordinary protections of Labor Law § 240(1) extend only to a narrow class of special hazards, and do `not encompass any and all perils...

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