Disarli v. TEFAF N.Y., LLC
| Decision Date | 05 January 2022 |
| Docket Number | Index 503910/18 |
| Citation | 2022 NY Slip Op 30029 (U) |
| Parties | THOMAS DISARLI, Plaintiff, v. TEFAF NEW YORK, LLC, SEVENTH REGIMENT ARMORY CONSERVANCY, INC., STABILO USA, STABILO INTERNATIONAL, BV, SELECT CONTRACTING, INC., Defendants. SEVENTH REGIMENT ARMORY CONSERVANCY, INC., Third-Party Plaintiff, v. ARMORY FAIRS LLC, Third-Party Defendant. |
| Court | New York Supreme Court |
HON WAVNY TOUSSAINT JUSTICE
The following e-filed papers read herein: NYSEF Doc Nos.:
Notice of Motion/Order to Show Cause/
Petition/Cross Motion and
Affidavits (Affirmations) Annexed ____164-165.177-178.194, 196, 217-218
Opposing Affidavits (Affirmations) ____235. 238, 241.244
Affidavits/ Affirmations in Reply _____248. 253. 255.
Other Papers: _____ Upon the foregoing papers, defendant/third-party plaintiff Seventh Regiment Armory Conservancy, Inc. (SR Armory), moves for an order (1) pursuant to CPLR 3212, granting it summary judgment dismissing the complaint and all cross claims against it, or (2) alternatively, pursuant to CPLR 3212, granting it summary judgment in its favor on its cross claims against defendant Select Contracting, Inc. (motion sequence number 11). Defendant Stabilo USA LLC s/h/a Stabilo USA (Stabilo) moves for an order (1) pursuant to CPLR 3211 and 3212, granting it summary judgment dismissing the complaint and all cross claims against it, or (2) alternatively, pursuant to CPLR 3212, granting it summary judgment in its favor on its cross claims against defendant Select Contracting, Inc. (motion sequence number 12). Defendant TEFAF New York, LLC and third-party defendant Armory Fairs LLC (collectively referred to as TEFAF), [1] move for an order, pursuant to CPLR 3212 granting summary judgment dismissing the complaint, cross claims and the third-party action as asserted against them (motion sequence number 13). Defendant Select Contracting, Inc. (Select), moves for an order, pursuant to CPLR 3212, granting it partial summary judgment dismissing plaintiffs complaint to the extent that it is premised on the Labor Law (motion sequence number 14).
Plaintiff Thomas DiSarli alleges that he was injured as the result of an accident that occurred on October 26, 2016, when he tripped and fell over Masonite panels placed over the floor near the exit of the Seventh Regiment Armory (Armory). The accident occurred while plaintiff was working as a security guard at an art sale that was held at the Armory. The State of New York, a non-party, owns the Armory and SR Armory holds a 99-year lease on the premises. TEFAF is the entity that held the art sale, pursuant to a lease or license with SR Armory. TEFAF hired defendant Stabilo to set up and break down the event, including the building and removal of the booths used by the art sellers. Stabilo subcontracted all of the physical work relating to the set-up, building and removal to Select. Plaintiff was employed by non-party T&H Security, which was hired by TEFAF to provide security for the art sale.
According to plaintiffs deposition testimony, at around 5:00 p.m. on October 26, 2016 when the art sale was over, T&H Security posted plaintiff near the freight exit onto Lexington Avenue in order to monitor the artwork as it was taken out of the Armory. While standing in this exit area, plaintiff observed workers who were wearing Select t-shirts place Masonite panels over the floor near the exit.[2] At around 8:00 p.m., one of plaintiffs supervisors directed plaintiff to take a rolling bag or suitcase filled with the radios used by T&H Security's guards out to a car belonging to another T&H Security employee. While plaintiff was walking towards the exit pulling the rolling bag, he tripped over one of the Masonite panels.
It is undisputed that the Masonite panels were, at most, one quarter to one half inch thick. Plaintiff, however, testified that the lighting in the area was poor, that the panel on which he tripped was raised or bent and was not lying flat. In addition, plaintiff testified that the area by the door was busy with a lot of people walking in and out, that he was walking approximately two feet behind another person, and that he was distracted by a forklift that was coming in the door as he was walking out. Plaintiff thereafter commenced this action, alleging causes of action premised on common-law negligence and violations of Labor Law §§ 200, 240 (1) and 241 (6).
Initially plaintiff asserts that the motions by TEFAF and SR Armory should be denied because they have failed to provide the statement of material facts and word count certification required by Uniform Rules for Trial Courts (22 NYCRR) §§ 202.8-b and 202.8-g. Under the facts of this case, this court finds, contrary to the holding of the court in Amos Financial LLC v Crapanzano (73 Misc.3d 448, 453 [Sup Ct, Rockland County 2021]), that the failure to provide statements of material facts and word count certifications may be excused under CPLR 2001 (). In this regard, the court notes that various Departments of the Appellate Division have held that failures to comply with or delays in complying with similar court rules and or provisions of the CPLR are not necessarily fatal to consideration of the motions at issue under CPLR 2001. These circumstances include but are not limited to the failure to provide a counter-statement of facts as required by rule 19-a of the Rules of Practice for the Commercial Division of the Supreme Court (Uniform Rules for Trial Cts [22 NYCRR] § 205.70) (see Matter of Crouse Health Sys., Inc. v City of Syracuse, 126 A.D.3d 1336, 1338 [4th Dept 2015]; Abreu v Barkin & Assoc. Realty, Inc., 69 A.D.3d 420, 421 [1st Dept 2010]); the separate brief and statement of facts requirements of Uniform Rules for Trial Courts (22 NYCRR) § 202.8 (c) (see Lagattuta-Spataro v Sciarrino, 191 A.D.3d 1355, 1356 [4th Dept 2021]); the requirement of a separate affirmation of good faith for discovery motions contained in Uniform Rules for Trial Courts (22 NYCRR) § 202.7 (c) (see Encalada v Riverside Retail, LLC, 175 A.D.3d 467, 468-469 [2d Dept 2019]; the requirement that the pleadings be attached to a summary judgment motion (see Montalvo v Episcopal Health Servs., Inc., 172 A.D.3d 1357 1359 [2d Dept 2019]); and the requirement of CPLR 2309 (c) that an affidavit notarized out of state be accompanied by a certificate of conformity (see Williams v Light, 196 A.D.3d 668, 669-670 [2d Dept 2021]).
Here, the motions were made very shortly after the rules requiring the statement of material facts and word count certifications became effective. TEFAF, in moving, provided a clear, numbered factual statement in its original attorney's affirmation, and, in any event, has provided a statement of material facts and word count certifications with its reply papers (see Cushman & Wakefield, Inc. v Kadmaon Corp., LLC, 175 A.D.3d 1141, 1142 [1st Dept 2019]). Although SR Armory did not address the issue in its reply, the court notes that SR Armory adopted Stabilo's papers and Stabilo's papers included a statement of material facts and word count certifications. Ultimately, given that plaintiff, in opposition, was able to provide his own counter statement of material facts and address the merits of the motions by SR Armory and TEFAF, the court fails to see how plaintiff was prejudiced by Stabilo and TEFAF's failures. As such, the court will consider the motions by SR Armory and TEFAF on' the merits (see Priority 1 Security, 2021WL 4523600, *7).
Defendants, through the deposition testimony of plaintiff and the defense witnesses, have demonstrated, prima facie, that plaintiffs work as a security guard was unrelated to the construction work that Stabile and Select were hired to perform and plaintiff has failed to demonstrate an issue of fact in this respect. Accordingly, defendants are entitled to dismissal of plaintiffs causes of action premised on Labor Law §§ 200, 240 (1) and 241 (6) (see Kuffour v Whitestone Constr. Corp., 94 A.D.3d 706, 707 [2d Dept 2012]; Spaulding v S.H.S. Bay Ridge, 305 A.D.2d 400, 400-401 [2d Dept 2003]; see also Bosconi v Thomas R. Stachecki Gen. Contr., LLC, 186 A.D.3d 1600, 1601 [2d Dept 2020]).
This court, however, rejects Stabilo's assertion that it is entitled to summary judgment dismissing the complaint against it, because it did not owe plaintiff a duty of care, based on the fact that its only relationship with the art show was its contractual relationship with TEFAF (see Espinal v Melville Snow Contrs., 98 N.Y.2d 136, 140-142 [2002]; see also Bernal v ACS Sys. Assoc, Inc., 197 A.D.3d 603, 604-605 [2d Dept 2021]). Stabilo's liability here is governed by a line of cases involving the non-delegable duty general contractors owe to pedestrians in certain circumstances where they have actual or constructive notice of dangerous conditions caused by acts or omissions of their subcontractors (see Schwartz v Merola Bros. Constr. Corp., 290 NY 145, 151-152 [1943]; see also Anastasio v Berry Complex, LLC, 82 A.D.3d 808, 809 [2d Dept 2011]; Manicone v City of New York, 75 A.D.3d 535, 537 [2d Dept 2010]).
Although these cases address this non-delegable duty in the context of sidewalk accidents, the same non-delegable duty undoubtedly applies with respect to the duty to provide pedestrians with a reasonably safe means of ingress or egress (see Blatt v L'Pogee, Inc., 112 A.D.3d 869, 869-870 [2d Dept 2013]; Edwards v BP/CG Ctr. i, 102...
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