Brown v. The City of New York
| Decision Date | 03 January 2023 |
| Docket Number | Index No. 150757/2019,MOTION SEQ. No. 004 |
| Citation | 2023 NY Slip Op 30004 (U) |
| Parties | CLARENCE BROWN and BETTY BROWN, Plaintiffs, v. THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF BUILDINGS, THE NEW YORK CITY DEPARTMENT OF DESIGN AND CONSTRUCTION, THE NEW YORK CITY DEPARTMENT OF EDUCATION, THE NEW YORK CITY HOUSING AUTHORITY, and DURANTE RENTALS, LLC, Defendant. DURANTE RENTALS, LLC Plaintiff, v. INNOVAX-PILLAR, INC. Defendant. |
| Court | New York Supreme Court |
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 004) 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86 87, 88, 89, 90, 91,92, 93, 94, 95, 96, 97, 98, 99, 100, 101 102, 103, 104, 105, 108, 112, 121, 122, 123, 124, 125, 126 136, 138, 139, 140, 148, 149, 150, 151, 152, 153, 154, 155, 159, 203, 209, 210, 211, 212, 213, 214, 217, 218, 219, 220, 221 were read on this motion to/for _SUMMARY JUDGMENT_
I. INTRODUCTION
This is an action to recover damages for personal injuries arising from a construction site accident, alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). The defendants The City of New York, The New York City Department of Buildings (DOB), The New York City Department of Design and Construction (DDC), The New York City Department of Education (DOE), and The New York City Housing Authority (NYCHA) (collectively the City defendants) move pursuant to CPLR 3212 for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. The plaintiffs oppose the motion, and cross-move pursuant to (1) CPLR 3212(a) for leave to serve and file a late cross motion for summary judgment, (2) CPLR 3042(b) and 3043(c) for leave to serve an amended bill of particulars, and (3) CPLR 3212 for partial summary judgment on the issue of liability on their Labor Law § 241(6) claims against The City of New York, the DOE, and NYCHA. The City defendants' motion is granted. The plaintiffs' cross motion is granted only to the extent that they may make a late cross motion for summary judgment and serve an amended bill of particulars as to the City defendants, and the request for summary judgment thereupon is denied on the merits.
II. BACKGROUND
On July 28, 2010, nonparty 61 Owner, LLC, the owner of real property located at 227 West 61st Street, New York, New York (the premises), entered into an agreement to lease the premises to nonparty City of New York School Construction Authority (SCA) for the purpose of erecting the West End Secondary School thereon. On July 20, 2016, the SCA assigned the lease to the DOE. On January 1, 2017, the SCA retained the defendant Innovax-Pillar, Inc. (Innovax), as the general contractor to renovate the premises. In 2018, the plaintiff Clarence Brown (Brown), was employed by Innovax to work on the construction and renovation project at the premises. On or about April 4, 2018, the defendant third-party plaintiff, Durante Rentals, LLC (Durante), contracted with Innovax to lease, to Innovax, a Genie Z-30 articulating boom lift, a wheeled piece of equipment that must be driven to transport it from one location to another. Pursuant to their rental agreement, Durante delivered the lift to the premises by dropping it off just outside the premises on a public roadway. On May 2, 2018, after Innovax finished using the lift for work on the premises, Innovax's superintendent and Brown's supervisor, Christopher Powell, instructed Brown and his co-worker, Giovanni Tarantino, to return the lift to the public roadway just outside the premises for pick-up by Durante. In the course of returning the lift to the drop-off and pick-up location, Tarantino drove and operated the lift, while Brown served as flagger, a task for which he stood on the ground, watched for pedestrians and other vehicles, and directed Tarantino in returning the lift to the drop-off location. While Tarantino was driving the lift, the basket of the lift in front of the driver's window was situated in its lowest position, thus partially obstructing Tarantino's view, when the basket struck Brown and injured him.
On January 24, 2019, the plaintiff commenced this action. Between March 19, 2019 and May 30, 2019, all of the defendants served their answers. On January 31,2022, the plaintiff filed the note of issue and certificate of readiness. On April 1, 2022, the City defendants timely filed the instant motion. On June 17, 2022, the plaintiffs opposed the motion. On June 23, 2022, the plaintiffs served and filed an unauthorized amended bill of particulars, improperly designated as a supplemental bill of particulars, as to the City of New York, the DOE, and NYCHA. Shortly thereafter, on June 27, 2022, the plaintiffs filed their cross motion papers.
III. DISCUSSION
In both their complaint and initial bill of particulars as to the City defendants, the plaintiffs alleged that the City defendants were negligent in their ownership, operation, supervision, inspection, maintenance, management, and control of the premises. They also alleged that the City defendants violated Labor Law §§ 200, 240(1), and 241(6), the latter based upon violation of several provisions of Rule 23 of the Industrial Code of the State of New York (12 NYCRR), and the rules of the Occupational Safety and Health Administration (OSHA). In particular, the plaintiffs alleged that the City defendants violated 12 NYCRR 23-1.4(b)(2), (12), (17), and (26) (definitions of certain terms), 12 NYCRR 23-1.5(a), (b), (c) (general responsibility of employers), and 12 NYCRR 23-9.6(a)(4) (), (c)(1), (2), and (3) (driving or moving of aerial basket truck), and (e)(8) (aerial basket operation).
In support of their motion, the City defendants submitted the pleadings and the deposition transcripts of the plaintiffs, Tarantino, and Powell, as well as those of Devenand Singh, the Durante driver who delivered the lift to Innovax, Brian Lochan, the Durante driver who picked up the lift on the day of the incident, Gregory Koelbel, the Project Officer for the SCA, and Syed Tanvir, the Inspector for the SCA. The City defendants also submitted the lease between 61 Owner, LLC, and the SCA, the assignment of the lease from SCA to the DOE, the construction and renovation agreement between the SCA and Innovax, and the rental agreement between Durante and Innovax. In opposition, the plaintiffs submitted the expert affidavit and curriculum vitae of the managing director and principal consultant of Occupational Safety &Environmental Assoc., Inc., John P. Conoglio, along with the CPLR 3101(d) statement referable to Conoglio, and a March 26, 2021 supplemental bill of particulars as to the City defendants.
It is well settled that the movant on a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985] [citations omitted]). The motion must be supported by evidence in admissible form (see Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]), as well as the pleadings and other proof such as affidavits, depositions, and written admissions (see CPLR 3212). The facts must be viewed in the light most favorable to the non-moving party (see Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012]). In other words, "[i]n determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility" (Garcia v J.C. Duggan, Inc., 180 A.D.2d 579, 580 [1st Dept 1992]). Once the movant meets his or her burden, it is incumbent upon the non-moving party to establish the existence of material issues of fact (see Vega v Restani Constr. Corp., 18 N.Y.3d at 503). A movant's failure to make a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see id.; Medina v Fischer Mills Condo Assn., 181 A.D.3d 448, 449 [1st Dept 2020]).
"The drastic remedy of summary judgment, which deprives a party of his [or her] day in court, should not be granted where there is any doubt as to the existence of triable issues or the issue is even 'arguable'" (De Paris v Women's Natl. Republican Club, Inc., 148 A.D.3d 401,403404 [1st Dept 2017]; see Bronx-Lebanon Hosp. Ctr. v Mount Eden Ctr., 161 A.D.2d 480, 480 [1st Dept 1990]). Thus, a moving defendant does not meet his or her burden of affirmatively establishing entitlement to judgment as a matter of law merely by pointing to gaps in the plaintiffs case. He or she must affirmatively demonstrate the merit of his or her defense (see Koulermos vA.O. Smith Water Prods., 137 A.D.3d 575, 576 [1st Dept 2016]; Katz v United Synagogue of Conservative Judaism, 135 A.D.3d 458, 462 [1st Dept 2016]).
Labor Law §§ 200, 240(1) and 241(6) apply only to owners general contractors, and their statutory agents (see Labor Law §§ 200, 240[1], 241[6]; Medina vR.M. Resources, 107 A.D.3d 859, 860 [2d Dept 2013]; Hartshorne v Pengat Tech. Inspections, Inc., 112 A.D.3d 888, 889 [2d Dept 2013]). The City defendants have established, prima facie, that, at the time of Brown's accident, the City of New York was neither an owner, nor a general contractor, nor a statutory agent of an owner or contractor for the premises. In fact, the City was not involved at all in the project. Rather, the City defendants showed that 61 Owner, LLC, was the owner, that Innovax...
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