Castillo v. 281 Broadway Assocs., 12984/09.
| Decision Date | 09 August 2017 |
| Docket Number | No. 12984/09.,12984/09. |
| Citation | 65 N.Y.S.3d 490 (Table) |
| Parties | Yester CASTILLO and Gloria Castillo, Plaintiffs, v. 281 BROADWAY ASSOCIATES, 281 Broadway Holdings LLC, Chambers Company LLC, the John Buck Company, Seasons Industrial Contracting, Site Safety LLC and Pavarini McGovern LLC, Defendants. 281 Broadway Holdings, LLC and John Buck Company, Third–Party Plaintiffs, v. Hunter Atlantic, Inc., Third–Party Defendant. |
| Court | New York Supreme Court |
Gorayeb & Associates, P.C., New York, Attorneys for Plaintiffs.
David Persky, Esq., The Law Offices of Leon R. Kowalski, Brooklyn, Attorneys for Defendant Seasons Industrial Contracting Corp. i/s/h/a Seasons Industrial Contracting.
Litchfield Cavo LLP, New York, Attorneys for Defendants 281 Broadway Associates and 281 Broadway Holdings LLC and John Buck Company.
Cartafalsa, Slattery, Turpin & Lenoff, New York, Attorney for Defendant Site Safety LLC.
Barry McTiernan & Moore, New York, Attorneys for Defendant Pavarini McGovern LLC.
Recitation in accordance with CPLR 2219(a) of the papers considered on the motion of the defendant Site Safety, LLC (hereinafter Site Safety) filed on December 5, 2016, under motion sequence number twelve, for an order (1) pursuant to CPLR 3212 granting summary judgment to Site Safety and to dismiss the plaintiff's complaint asserting causes of actions for violations of the New York Labor Law section 200, 241(6) and 240(1)1 and all cross claims.2
Recitation in accordance with CPLR 2219(a) of the papers considered on the motion of the defendant 281 Broadway Holding, LLC i/s/h/a 281 Broadway Association and The John Buck Company (hereinafter the 281 Broadway defendants) filed on December 13, 2016, under motion sequence number thirteen, for an order (1) pursuant to CPLR 3212 granting it summary judgment dismissing the plaintiffs complaint asserting causes of actions for violations of the New York Labor Law section 200, 241(6) and 240(1) and to dismiss the main complaint and all cross claims.3
Notice of motion
-Affirmation in support
-Exhibits A–L
Affirmation in opposition
Exhibit 1–9
Recitation in accordance with CPLR 2219(a) of the papers considered on the motion of the defendant Pavarini McGovern, LLC (hereinafter Pavarini) filed on December 19, 2016, under motion sequence number fourteen, for an order (1) pursuant to CPLR 3212 granting summary judgment to Pavarini dismissing the plaintiffs causes of actions for violations of the New York Labor Law section 200, 241(6) and 240(1) and dismissing the complaint and (2) granting the cross claims for contractual indemnification, legal fees and costs from the defendant 281 Broadway Holdings.
Recitation in accordance with CPLR 2219(a) of the papers considered on the cross motion of the defendant Seasons Industrial Contracting Corp. i/s/h/a Seasons Industrial Contracting (hereinafter Seasons) filed on January 6, 2017, under motion sequence number fifteen, for an order (1) pursuant to CPLR 3212 granting summary judgment to Seasons dismissing the plaintiffs cause of actions for violations of the New York Labor Law section 200, 241(6) and 240(1) and all cross claims.
On May 28, 2009, Yester Castillo (hereinafter the injured plaintiff) and Gloria Castillo, his wife, commenced the instant action for damages for personal injuries and derivative claims4 by filing a summons and complaint with the Kings County Clerk's Office (the main action). On August 31, 2009, the plaintiffs filed a supplemental summons and amended verified complaint. By answer dated October 21, 2009, the 281 Broadway defendants joined issue by answer with cross claims. By answer dated November 2, 2009, the Seasons defendants joined issue by answer with cross claims. On July 19, 2010, a separate action was commenced against Pavarini. By order dated January 3, 2011, the two actions were consolidated. By answer dated November 2, 2009, Pavarini defendants joined issue by answer with cross claims.5 A note of issue was filed on October 11, 2016.
The amended complaint, bill of particulars and deposition transcripts of the injured plaintiff allege the following salient and undisputed facts. On January 13, 2009, the date of the accident, the injured plaintiff was employed by third-party defendant Hunter Atlantic, Inc. as a laborer to work at a property located at 57 Reade Street a/k/a 279 Broadway, New York, New York (hereinafter the premises). At that time, 281 Broadway Association owned the premises.6 281 Broadway Association hired John Buck Company to be the project developer; Site Safety to be the safety manager; and Pavarini as a consultant for the foundation aspect of the project.
The amended verified complaint and deposition transcript of the injured plaintiff alleged that on the date of the accident he was instructed to work an area that was being excavated. He was standing approximately ten feet from an excavator that was being operated by a co-worker when the excavator moved a container which contained a spring. The spring flew up and hit the plaintiff causing him to sustain personal injuries. The container and spring were part of an elevator that had been left at the property after the demolition of the building.
The injured plaintiff has alleged that the defendants violated Labor Law §§ 200 and 241(6) 22 NYCRR §§ 23–3.3(c) and 23–4.2(k).7
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists ( Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986] ). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts ( Giuffrida v. Citibank, 100 N.Y.2d 72 [2003] ).
A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers ( Ayotte v. Gervasio, 81 N.Y.2d 1062 [1993] ). If a prima facie showing has been made the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact ( Alvarez, 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ).
A party opposing a motion for summary judgment is obligated "to lay bare his proofs" to sufficiently demonstrate, with admissible evidence, that a triable issue of fact will exist ( Friends of Animals, Inc. v. Associated Fur Manufacturers, Inc., 46 N.Y.2d 1065 [1979] ). A genuine issue of fact may not be demonstrated by using mere conclusions, expressions of hope or unsubstantiated allegations or assertions ( Amatulli v. Delhi Constr. Corp., 77 N.Y.2d 525 [1991] ).
( People ex rel. Spitzer v. Grasso, 50 A.D.3d 535, 544, 858 N.Y.S.2d 23 [1st Dept 2008] ; citing Marine Midland Bank v. Dino & Artie's Automatic Transmission Co., 168 A.D.2d 610, 563 N.Y.S.2d 449 [2nd Dept 1990] ).
Timeliness of Seasons' cross motion for summary judgement
Seasons has cross moved pursuant to CPLR 3212 for an order granting summary judgement in its favor on the issue of liability and dismissing all causes of action asserted against it. Pursuant to the Uniform Civil Term Rules of the Supreme Court, Kings County, the defendants were required to make their motions for summary judgment no later than sixty days after the filing of the note of issue, unless they obtained leave of the court on good cause shown (Kings County Supreme Court Uniform Civil Term Rules, Part C, Rule 6; CPLR 3212[a] ; Goldin v. New York and Presbyterian Hosp., 112 A.D.3d 578, 579, 975 N.Y.S.2d 892 [2nd Dept 2013] ; Dallal v. Kantrowitz, Goldhamer & Graifman, P.C., 48 A.D.3d 508, 849 N.Y.S.2d 912 [2nd Dept 2008]citing 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, 652 [2004] ; Pierre v. Feldman, 41 A.D.3d 454, 455, 836 N.Y.S.2d 702 [2nd Dept 2007] ; Breiding v. Giladi, 15 A.D.3d 435, 789 N.Y.S.2d 449 [2nd Dept 2005] ).
A motion is "made" when the notice of motion is served ( Steisel v. Golden Reef Diner, 67 A.D.3d 670, 670, 888 N.Y.S.2d 150 [2nd Dept 2009]citing Rivera v. Glen Oaks Village Owners, Inc., 29 A.D.3d 560, 561, 817 N.Y.S.2d 293 [2nd Dept 2006] ). It is undisputed that the note of issue was filed on October 11, 2016 and that the motion was made on January 5, 2017, twenty four days late. Season did not seek leave to make a late summary judgment motion or demonstrate good cause for the delay (see CPLR 3212[a] ; Brill, 2 N.Y.3d 648, 781 N.Y.S.2d 261, 814 N.E.2d 431 ). Therefore, the motion is untimely.
At oral argument, Seasons contended that its motion, although untimely, may be properly considered because it is based on nearly identical grounds as the timely motions of its co-defendants. An untimely motion or cross motion for summary judgment may be considered by the court where a timely motion for summary judgment is made on nearly identical grounds ( Das v. Sun Wah Restaurant, 99 A.D.3d 752, 754, 952 N.Y.S.2d 232 [2nd Dept 2012] ).
Seasons' motion is based on its specific factual claim that it did not exercise supervisory control over the work. Since their argument rests on the separate factual...
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