Cardona v. 1717 44th St.
| Decision Date | 28 February 2022 |
| Docket Number | Index 511693/18 |
| Citation | 2022 NY Slip Op 30669 (U) |
| Parties | Juan Pablo Arango Cardona, Plaintiff, v. 1717 44th Street LLC, The 1717 44lh Street Condominium, Ninth Avenue Construction Group LLC and Alrosc Construction, Inc., Defendants. Ninth Avenue Construction Group LLC, Third-Party Plaintiff, v. PCC Cleaning Solutions, Inc., Third-Party Defendant. Alrose Construction, Inc., Second Third-Party Plaintiff, v. PCC Cleaning Solutions, Inc.. Second Third-Party Defendant. PCC Cleaning Solutions, Inc., Third Third-Party Plaintiff, v. SCL Services Corp., Third Third-Party Defendant. Alrose Construction, Inc., Fourth Third-Party Plaintiff, v. SCL Services Corp., Fourth Third-Party Defendant. |
| Court | New York Supreme Court |
Unpublished Opinion
The following e-filed papers read herein: NYSEF Doc Nos.:
Upon the foregoing papers, plaintiff Juan Pablo Arango Cardona ("plaintiff) moves (Motion Seq. 8) for an order, pursuant to CPLR § 3212, granting him partial summary judgment with respect to liability on his Labor Law § 240 (1) cause of action as against defendant 1717 44th Street LLC ("1717 44th St") and defendant/third-party plaintiff Ninth Avenue Construction Group LLC ("Ninth Ave"). Defendant/second third-party plaintiff/fourth third-party plaintiff Alrose Construction, Inc. ("Alrose") moves (Motion Seq. 9) for an order, pursuant to CPLR § 3212, granting it summary judgment dismissing plaintiffs complaint and all cross claims as against it. Third-party defendant/second third-party defendant/third third-party plaintiff PCC Cleaning Solutions, Inc. ("PCC") moves (Motion Seq. 10) for an order, pursuant to CPLR § 3212, granting it summary judgment dismissing the third-party and second third-party complaints and any and all cross claims against it. 1717 44, h St and Ninth Ave (collectively referred to as the "Owner Defendants") move (Motion Seq. 11 and 12) for an order: (I) pursuant to CPLR § 3212. granting them summary judgment dismissing the complaint and any cross claims and counterclaims; (2) pursuant to CPLR § 3212, granting summary judgment in their favor on their contractual indemnification and duty to defend claims against PCC; (3) pursuant to CPLR § 3126, striking the answer of PCC and granting them relief on all causes of action as against PCC; and (4) pursuant to CPLR § 3025, granting them leave to amend the answer to assert a cross claim for contractual indemnification as against third third-party defendant/fourth third-party defendant SCL Services Corp. ("SCL").[1] Finally, Ninth Ave cross-moves (Motion Seq. 13) for an order, pursuant to CPLR § 3212, granting it summary judgment dismissing the complaint and cross claims as against it on the ground that the action as against it is barred by the Workers Compensation Law.
In this action premised on common-law negligence and violations of Labor Law §§ 200, 240 (1) and 241 (6), plaintiff alleges that he suffered injuries on January 8, 2018 while removing tiles from a bathroom wall when the ladder he was climbing down moved, causing him to fall to the bathroom floor. The accident occurred in a three-story building under construction that was owned by defendant 1717 44th St.[2] 1717 44th St hired defendant Ninth Ave to act as the general contractor or construction manager for the project. Alrose was hired by Ninth Ave to perform exterior roofing and stucco work. In addition, Ninth Ave, pursuant to a written contract, hired PCC to provide laborers for construction cleanup work. PCC subcontracted the actual provision of laborers to third third-party defendant SCL. Plaintiff was employed by SCL.[3] According to plaintiffs deposition testimony, when he arrived at the building site on the date of the accident, Ninth Ave's construction manager took him to a basement bathroom and directed him to remove tile and a layer of sheetrock that was under the tile. The construction manager gave plaintiff a crowbar to remove the tile, and a Sawzall to cut and remove the sheetrock and informed plaintiff that he could use an A-frame ladder that was in the basement to perform his work. Edgar Ramos, a coworker, who was also provided by PCC and apparently employed by SCL, was tasked with placing the tile debris in garbage bags and taking the filled bags to a trash area in the basement.
After removing much of the tile on the back wall of the bathroom located above a bathtub, plaintiff, in order to reach the tile located near the ceiling of that wall, placed the ladder in the closed position in the bathtub with the lop of the ladder resting against the back wall and the feet against the inside of the bathtub. Plaintiff then climbed up the ladder until he was two to three feet above the bathroom floor and used a crowbar to remove the tile near the ceiling. When he finished removing the tile at issue, plaintiff started to climb down the ladder, and, as he was doing so. the ladder moved, causing him to fall to the floor.[4] One end of the crowbar, which he was holding in one of his hands at the time, struck plaintiff in his eye as he was falling.
In moving, Alrose submits that it is not a proper Labor Law defendant and that, since it had no connection with the work at issue at the time of the accident, it may not be held liable to plaintiff under a common-law negligence cause of action. Tn this regard, the deposition testimony in the record, including that of Alrose's president and Ninth Ave's construction manager Joseph Buchinger. Alrose's contract with Ninth Ave, and the other contracts in the record, taken together, demonstrate that Alrose was only hired by Ninth Ave as a subcontractor to perform roofing, waterproofing and stucco work, that it was Ninth Ave that hired PCC, which, in turn, hired SCL, and that Alrose had no general authority over the project and/or authority over the work of PCC or SCL. In addition, according to the testimony of its president, Alrose completed its work on the project nearly a year before the accident occurred and it was off of the jobsite by early 2017. Buchinger testified that the tile work at issue was the result of a subsequent design change apparently requested relating to the sale of the condominium units.
In view of this evidence, the fact that Alrose was listed as the general contractor for the project on the work permit is, in and of itself, insufficient to render it liable as a general contractor or agent of the owner or general contractor for purposes of plaintiffs interior work that was performed a year after Alrose's last involvement with the project (see Martinez v 408-410 Greenwich St., LLC, 83 A.D.3d 674, 675 [2d Dept 2011]; Kilmetis v Creative Pool & Spa, Inc., 74 A.D.3d 1289, 1291 [2d Dept 2010]; Huerta v Three Star Constr, Co., Inc., 56 A.D.3d 613, 613 [2d Dept 2008], lv denied 12 N.Y.3d 702 [2009]; see also Giovanniello v E.W. Howell, Co., LLC, 104 A.D.3d 812, 813-814 [2d Dept 2013]; Kelarakos v Massapequa Water Dist., 38 A.D.3d 717, 718 [2d Dept 2007]; cf. Utica Mut. Ins. Co. v Style Mgt. Assoc. Corp., 28 N.Y.3d 1018, 1020 [2016]; Kosovrasti v Epic (217) LLC, 96 A.D.3d 695, 696 [1st Dept 2012]).[5] Alrose has thus demonstrated its prima facie entitlement to dismissal of the Labor Law and common-law negligence causes of action as against it. This same evidence demonstrates that Alrose may not be held liable on any cross claims or counterclaims for contribution or common-law indemnification (see Debennedetto v Chelril, 190 A.D.3d 933, 939 [2d Dept 2021]; Cutler v Thomas, 171 A.D.3d 860, 861-862 [2d Dept 2019]; Kane v Peter M. Moore Constr. Co., Inc., 145 A.D.3d 864, 869 [2d Dept 2016J; see also McCarthy v Turner Constr., Inc., 17 N.Y.3d 369, 377-378 [2011 J) and that the Owner Defendants are not entitled to contractual indemnification under the terms of Ninth Ave's contract with Alrose since plaintiffs work at issue did not fall within the scope of Alrose's work under their contract (see Lomhardo v Tag Ct. Sq., LLC, 126 A.D.3d 949, 950-951 [2d Dept 2015]; see also Rizo v 165 Eileen Way, LLC, 169 A.D.3d 943, 946 [2d Dept 2019]; Smith v Hunter Roberts Constr. Corp., LLC, 127 A.D.3d 647, 648 [1st Dept 2015]).
Plaintiff, who has not submitted any opposition to Alrose's motion, has failed to demonstrate an issue of fact in this regard. While the Owner Defendants oppose the motion, they have likewise failed to submit any evidentiary proof warranting denial of Alrose's motion.
Initially Ninth Ave's cross motion, which was not made until April 16, 2021, is untimely under Kings County Supreme Court Uniform Civil Term Rules, Part C, Rule 6, because it was made more than 60 days after the filing of the note of issue on February 2, 2021 (see Goldin v New York A Presbyt. Hasp., 112 A.D.3d 578, 579 [2d Dept 2013]; CPLR § 3212 [a]). Ninth Ave offers no excuse for its delay in moving and asserts that its cross motion may nevertheless be considered in light of plaintiffs timely motion for summary judgment. Although a court's power to search the record under CPLR § 3212 (b) allows a court to consider otherwise untimely motions even where there is no demonstration of good cause for the delay, a court's discretion to exercise this power is limited to situations where the timely motion sought relief ...
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