D'Anna v. Inc. Village of Hempstead
| Decision Date | 28 March 2012 |
| Docket Number | Index No. 025366/09,Motion Sequence. 10, 11, 12, 13, 14, 15 |
| Citation | 2012 NY Slip Op 30830 |
| Court | New York Supreme Court |
| Parties | SALVATORE D'ANNA, Plaintiff, v. THE INCORPORATED VILLAGE OF HEMPSTEAD, THE TOWN OF HEMPSTEAD, THE COUNTY OF NASSAU, JACKSON PRIME REALTY, LLC, MILLENNIUM TOYOTA, RED ROCK INDUSTRIES, INC., J.S. HEMPSTEAD REALTY, LLC, GALLI ENGINEERING. P.C., MILLENNIUM SUPER STORE, LTD., NEW YORK AUTOMOTIVE GIANT, LLC, VIGILANT CESSPOOL & SEWER SERVICE, INC., DOBLER CHEVROLET, INC., GLEN BROCK, JOHN STALUPPI and JOHN F. CAPOBIANCO, Defendants. J.S. HEMPSTEAD REALTY, LLC, Third-Party Plaintiff, v. MAZO PLUMBING & HEATING CORP., Third-Party Defendant. |
SHORT FORM ORDER
Present: HON. RANDY SUE MARBER
JUSTICE
Upon the foregoing papers, the motion (Mot. Seq. 10) by the Defendant, Vigilant Cesspool & Sewer Service, Inc. (hereafter Vigilant) and the Defendant, Glen Brock (hereafter Brock), individually, seeking an order pursuant to CPLR § 3212 granting the Defendants, Vigilant and Brock summary judgment dismissing all claims and cross-claims against them; the motion (Mot. Seq. 11) by the Third-Party Defendant, Mazo Plumbing & Heating Corp. (hereafter Mazo) seeking an order pursuant to CPLR § 603 and CPLR § 1010 severing the third-party action from the main action, or pursuant to 22 NYCRR § 206.12 (d) striking the Plaintiff's Note of Issue and Certificate of Readiness; the motion (Mot. Seq. 12)by the Defendant/Third-Party Plaintiff, JS Hempstead Realty LLC (hereafter JS) seeking an order pursuant to CPLR § 3212 granting the Defendant, JS, summary judgment dismissing the Plaintiff's complaint and all cross-claims, or in the alternative, granting the Defendant, JS, summary judgment on its cross-claims for indemnification against the Defendants, Red Rock Industries and Vigilant; the motion (Mot. Seq. 13) by the Defendant, Red Rock Industries, Inc. (hereafter Red Rock) seeking an order pursuant to CPLR § 3212 granting the Defendant, Red Rock, summary judgment dismissing the complaint and any cross-claims against it and denying the Defendant, Vigilant summary judgment; the motion (Mot. Seq. 14) by the Defendant, Mazo Plumbing & Heating Corp. (Mazo) seeking an order pursuant to CPLR § 3212 granting summary judgment to the Defendant, Mazo, dismissing the Plaintiff s complaint and all cross-claims against it; and the motion (Mot. Seq. 15) by the Defendants, MILLENNIUM TOYOTA, MILLENNIUM SUPER STORE, LTD. and NEW YORK AUTOMOTIVE GIANT, LLC. (hereafter the MILLENNIUM Defendants) seeking an order pursuant to CPLR § 3212 granting the Millennium Defendants summary judgment dismissing the complaint and all cross-claims against them, or in the alternative, granting the Millennium Defendants summary judgment on its cross-claims for indemnification against the Defendants JS, Red Rock and Vigilant are determined as hereinafter set forth.
This is an action for personal injuries allegedly sustained by the Plaintiff on December 5, 2008. The Plaintiff alleges he slipped and fell on the west side of North Franklin Street, Hempstead, New York approximately 50 feet south of the southwest cornerof Smith Street and N. Franklin Street. The area is adjacent to 286 N. Franklin Street, Hempstead, New York, which is also known as 257 N. Franklin Street, Hempstead, New York and referred to hereinafter as the "subject premises." The Plaintiff is a retired union iron worker now employed by a union to protest at "non-union construction sites." Since October, 2008, the Plaintiff was in charge of bringing a large inflatable rat to the subject construction site. He had set up the inflatable rat at the same location and place on the sidewalk at the subject construction site prior to the alleged accident.
%%%Vigilant Cesspool & Sewer Service, Inc. and Glen Brock
The prime plumbing contractor at the project was Mazo Plumbing & Heating Corp. (Mazo) who retained the services of the Defendant, Vigilant, for the specific purpose of disconnecting and cutting off the water main supply to the building that was to be demolished and a new building constructed. Glen Brock was the owner of Vigilant. Vigilant priced the job on September 7,2007. The water main was located underneath the sidewalk in what is called a "curb box". Vigilant's job was to open the sidewalk at the cub box, which was a 4x4 foot square opening around the circular curb box and dig down approximately 4 feet to the water line and disconnect the services. This was done in one day on October 5, 2007. After completing the disconnect, Vigilant backfilled the hole, tamped down the dirt and applied 3 inches of cold patch black-asphalt type of material so that it was even with the surrounding sidewalk. According to the contract with Mazo, Vigilant was not hired or required to apply any type of permanent patch, i.e., concrete. Vigilant contends that whenthe new building was constructed the plan was to reconnect the water service. Therefore, "the general contractor" had to be able to access the curb box again, and as such, did not want a permanent patch of concrete. Vigilant further asserts that no one from Mazo or the "General Contractor," Red Rock, or anyone else made any complaints from the date the work was performed (October 5, 2007) up to and including the date of the Plaintiff's accident (December 5, 2008), one year and two months prior to the date of the accident.
Mazo Plumbing & Heating Corp.
Mazo was the "prime plumbing contractor" for the project. After Mazo was brought into this action as a third-party defendant, the Plaintiff amended the complaint to add Mazo as a direct defendant. In support of its motion for summary judgment, Mazo argues that Vigilant had complete control over the work to be done at the site. Mazo asserts it had no supervision or control over the subject work, and should be considered a "general contractor." Mazo argues that a general contractor is not liable for the independent contractor's negligent acts. See Kleeman v. Rheingold, 81 N.Y.2d 270 (1993); Flagship International Corp. v. Dennelisse Corp., 38 A.D.3d 307 (1st Dept. 2007). Moreover, Mazo asserts it did not create the alleged condition. Nor did it have actual or constructive notice of the alleged condition.
JS Hempstead Realty. LLC
The Defendant, JS Hempstead (JS), was the owner of the premises adjacent tothe sidewalk. JS claims to have been an absentee owner, a real estate holding company with no employees. JS argues it did not create the alleged condition that caused the incident. JS asserts that the "independent contractors" were not retained by JS but rather retained by the Defendant, Millennium Toyota. Further, JS alleges the work at the premises was done exclusively for the benefit of Millennium Toyota. JS argues that it neither created the condition complained of nor had notice of the condition, or negligently failed to rectify the condition.
Red Rock Industries. Inc.
The Defendant, Red Rock Industries, Inc. (Red Rock) was the "concrete excavation contractor." Red Rock erected the orange safety fence that it alleged was inspected twice per day by Red Rock employees. Dominic DelMonaco, the principal of Red Rock, testified that he walked by the asphalt patch each day and never saw any type of depression until December 6, 2008, the date of the Plaintiff's accident. Mr. DelMonaco asserts he had his workers inspect the safety fencing twice daily to make sure the fence was tight and secure. Since it was next to a bus stop, he wanted to make it was secure at all times. Mr. DelMonaco testified that prior to December 6,2008, no one ever told him that a portion of the asphalt patch collapsed and needed to be refilled nor did he observe that the patch collapsed.
The Millennium Defendants
In or about 2007, the Millennium Defendants decided to relocate their Toyotadealership from 220 N. Franklin Street, Hempstead, New York to 257 N. Franklin Street, Hempstead, New York. Atlantic Automotive Group, Inc. is the owner of the Defendants, Millennium Toyota, Millennium Super Store Ltd., and New York Automotive Giant, LLC (Millennium Defendants). John Pickett, an employee of Atlantic, appeared at a deposition on behalf of the Millennium Defendants. JS purchased 257 N. Franklin Street, Hempstead, New York on May 14, 2007. Millennium states that on June 25, 2008, non-party 257 N. Franklin Development LLC as "contractor" entered into a written construction contract with Red Rock as "subcontractor" for the project designated as "new Facility for Millennium Toyota." The Defendant, Millennium Super Store Ltd. as tenant and JS as landlord entered into a written lease agreement for the subject premises on October 1, 2008. According to paragraph 36 of the Rider to the...
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