Gomez v. State
| Decision Date | 15 May 2013 |
| Parties | Antonio GOMEZ, respondent-appellant, v. STATE of New York, appellant-respondent. |
| Court | New York Supreme Court — Appellate Division |
965 N.Y.S.2d 542
Antonio GOMEZ, respondent-appellant,
v.
STATE of New York, appellant-respondent.
Supreme Court, Appellate Division, Second Department, New York.
May 15, 2013.
Edward Garfinkel, Brooklyn, N.Y. (McGaw, Alventosa & Zajac [Dawn C. DeSimone ], of counsel), for appellant-respondent.
Rappaport, Glass, Levine & Zullo, LLP, New York, N.Y. (James L. Forde of counsel), for respondent-appellant.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, and SHERI S. ROMAN, JJ.
In a claim to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Court of Claims (DeBow, J.), dated September 29, 2011, as, upon renewal and reargument, granted that branch of the claimant's motion which was for leave to amend the second amended claim to add a cause of action alleging a violation of Labor Law § 241(6) based on an alleged violation of 12 NYCRR 23–8.2(b)(2)(iii) and adhered to the original determination in an order dated September 18, 2009, denying its cross motion, in effect, for summary judgment dismissing the second amended claim, and the claimant cross-appeals, as limited by his brief, from so much of the same order as denied those branches of his motion which were to compel the defendant to produce two additional witnesses for depositions and for leave to renew those branches of his prior motion which were for leave to amend the second amended claim to add a cause of action alleging violations of Labor Law § 241(6) based on alleged violations of 12 NYCRR 23–8.1(i), 23–8.2(a), and 23–8.5.
ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof denying that branch of the claimant's motion which was to compel the deposition of the defendant's employee Alfred Wong, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
The claimant, a laborer employed by nonparty DeFoe Corporation (hereinafter DeFoe), allegedly was injured at a construction site when a crane operator retracted one of the crane's four stabilizing legs, called "outriggers," on the claimant's left hand, crushing it. At the time of the accident, DeFoe was performing emergency repairs on the Gowanus Expressway pursuant to a contract with the defendant. The claimant's construction crew had just finished loading rebars into a truck and were preparing to move the crane to another location. At his deposition, the claimant testified that the last thing he recalled was detaching one of the outrigger's round metal plates or pads from the leg of the outrigger.
In support of its cross motion, in effect, for leave to renew and reargue its prior
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