Hyatt v. Queens W. Dev. Corp.

• Decision Date: 30 June 2020
• Docket Number: 21216/2014E
• Citation: 67 Misc.3d 1239 (A),129 N.Y.S.3d 261 (Table)
• Parties: Dane HYATT, Plaintiff, v. QUEENS WEST DEVELOPMENT CORPORATION, The Port Authority of New York and New Jersey, New York State Urban Development Corporation d/b/a Empire State Development Corporation, Empire State Development Corporation, TF Cornerstone Inc., TF Cornerstone LIC LLC, 4615 East Coast LLC, East Coast 4 LLC and TF Cornerstone Sitework LLC, Defendants.
• Court: New York Supreme Court

67 Misc.3d 1239 (A)
129 N.Y.S.3d 261 (Table)

Dane HYATT, Plaintiff,
v.
QUEENS WEST DEVELOPMENT CORPORATION, The Port Authority of New York and New Jersey, New York State Urban Development Corporation d/b/a Empire State Development Corporation, Empire State Development Corporation, TF Cornerstone Inc., TF Cornerstone LIC LLC, 4615 East Coast LLC, East Coast 4 LLC and TF Cornerstone Sitework LLC, Defendants.

21216/2014E

Supreme Court, Bronx County, New York.

Decided on June 30, 2020

Plaintiffs are represented by Peter D Rigelhaupt, Esq., the Perecman Firm, PLLC, 250 West 57th Street, New York, NY 10107.

Defendants are represented by David C. Zegarelli, Esq., 711 Westchester Avenue, Suite 405, White Plains, NY 10607

Llinet M. Rosado, J.

BACKGROUND

Dane Hyatt, the plaintiff, was employed by Winco Corporation (Winco) as a concrete laborer in this case. The plaintiff's employer, non-party Winco, was the concrete foundation and superstructure subcontractor retained by the general contractor TF Cornerstone Inc., on this case. The plaintiff commenced the instant proceeding against the defendants based on a cause of action relating to an incident alleged to have occurred on May 29, 2012 at the seventh floor of a construction site located at 4545 Center Boulevard in Long Island City, New York.

On the date of the accident, the plaintiff was working on the seventh floor where he had been directed to work by Winco's supervisor. At the time of the accident, the plaintiff testified that he was working on the seventh floor and handling, dismantling, and/or disassembling scaffoldings with a co-worker named "Junior." The plaintiff testified that after the plaintiff dismantled a piece of metal beam from the scaffolding at issue, the plaintiff and the co-worker removed it from the passage area/way, however, the scaffolding at issue was not connected or tied in anywhere. While the plaintiff and the co-worker were dragging the other scaffoldings, the scaffolding at issue fell approximately 15 feet over and a piece of the scaffolding struck the plaintiff on his back. The plaintiff further testified that Winco and the defendants did not provide a safety device other than a hard hat and a harness. As a result of the accident, the plaintiff alleges that he sustained permanent bodily injuries. Based on the aforementioned facts, in his pleadings, the plaintiff claims that the defendants failed to provide appropriate safety devices to the plaintiff and violated Labor Law § 240(1) and § 241(6).

In this motion, pursuant to CPLR 3212, the plaintiff is seeking an order granting partial summary judgement against the defendants 4545 East Coast LLC f/k/a East Coast 2 LLC, the owner of the property (4545 East Coast), and TF Cornerstone QW 2 LLC (TF Cornerstone), the general contractor, on the issue of liability under the Labor Law § 240 (1). In response to the plaintiff's motion, the defendants filed a cross-motion for an order granting summary judgment in their favor and dismissing the plaintiff's Labor Law § 240 (1) and § 241 (6) claims.¹

In support of his motion, the plaintiff submits a copy of the pleadings, the deposition transcripts of the plaintiff, Mr. Simon Wynn, and Mr. Christopher Steinmann, the photograph marked at Mr. Steinmann's deposition, the agreement between owner and general contractor, and the accident reports. In support of their cross-motion, the defendants submit the affidavit of Mr. Shawn Z. Rothstein and the Curriculum Vitae of Mr. Rothstein. The plaintiff submits an attorney's affirmation in support and a memorandum of law in reply, and the defendants submit a memorandum in support of the defendants' cross-motion and a memorandum of law in reply.

DISCUSSION

Untimely Filed Cross-Motion

The plaintiff argues that the defendants' cross-motion filed on November 8, 2019 is untimely since the plaintiff filed his note of issue on May 2, 2019.

The defendants argue that the Labor Law § 241 (6) claim raises the "nearly identical" issue as the Labor Law § 240 (1), and the Labor Law § 241(6) claim is inexorably related to the core allegations that make up the basis for the plaintiff's Labor Law § 240(1) claim.

In general, under CPLR 3212 (a), a "motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown." CPLR 3212 (a) (McKinney, Westlaw current through L.2019, chapter 758 & L.2020, chapters 1 to 56, 58 to 106); Kershaw v. Hosp. for Special Surgery , 114 AD3d 75, 978 N.Y.S.2d 13 (1st Dept. 2013) ; Group IX, Inc. v. Next Printing & Design Inc. , 77 AD3d 530, 909 N.Y.S.2d 434 (1st Dept. 2010). The Court of Appeals concluded that " ‘good cause’ in CPLR 3212(a) requires a showing of good cause for the delay in making the motion—a satisfactory explanation for the untimeliness—rather than simply permitting meritorious, nonprejudicial filings." Brill v. City of New York , 2 NY3d 648, 814 N.E.2d 431, 781 N.Y.S.2d 261 (2004) ; Miceli v. State Farm Mut. Auto. Ins. Co. , 3 NY3d 725, 819 N.E.2d 995, 786 N.Y.S.2d 379 (2004) ; Fofana v. 41 West 34th Street, LLC , 71 AD3d 445, 897 N.Y.S.2d 46 (1st Dept. 2010) ; Perini Corp. v. City of New York , 16 AD3d 37, 789 N.Y.S.2d 29 (1st Dept. 2005).

In Gibbs , the Court of Appeals explained the underlying policy of CPLR 3212 (a) and aforementioned Brill case as follow:

The failure to comply with deadlines not only impairs the efficient functioning of the courts and the adjudication of claims, but it places jurists unnecessarily in the position of having to order enforcement remedies to respond to the delinquent conduct of members of the bar, often to the detriment of the litigants they represent. Chronic noncompliance with deadlines breeds disrespect for the dictates of the Civil Practice Law and Rules and a culture in which cases can linger for years without resolution. Furthermore, those lawyers who engage their best efforts to comply with practice rules are also effectively penalized because they must somehow explain to their clients why they cannot secure timely responses from recalcitrant adversaries, which leads to the erosion of their attorney-client relationships as well. Gibbs v. St. Barnabas Hosp. , 16 NY3d 74, 942 N.E.2d 277, 917 N.Y.S.2d 68 (2010) ; see Brill , 2 NY3d at 653.

However, an untimely motion or cross motion for summary judgment may be considered by the court where a timely motion for summary judgment was made on "nearly identical" grounds. Guallapa v. Leon D. DeMatteis Constr. Corp. , 121 AD3d 416, 997 N.Y.S.2d 1 (1st Dept. 2014) ; Leonardi v. Cruz , 73 AD3d 580, 904 N.Y.S.2d 4 (1st Dept. 2010) ; Filannino v. Triborough Bridge and Tunnel Auth. , 34 AD3d 280, 824 N.Y.S.2d 244 (1st Dept. 2006). In such circumstances, the issues raised by the untimely motion or cross motion are already properly before the court and thus, the same issue and/or the nearly identical nature of the grounds may provide the requisite good cause to review the untimely motion or cross motion on the merits. Jarama v. 902 Liberty Av. Hous. Dev. Fund Corp. , 161 AD3d 691, 78 N.Y.S.3d 73 (1st Dept. 2018) ; Homeland Ins. Co. of New York v. Nat'l Grange Mut. Ins. Co. , 84 AD3d 737, 922 N.Y.S.2d 522 (2nd Dept. 2011) ; Snolis v. Clare , 81 AD3d 923, 917 N.Y.S.2d 299 (1st Dept. 2011) ; Grande v. Peteroy , 39 AD3d 590, 833 N.Y.S.2d 615 (2nd Dept. 2007).

In this case, the plaintiff filed the note of issue on May 2, 2019, and the defendants filed the cross-motion on November 8, 2019, later than one hundred twenty (120) days after the plaintiff filed the note of issue. In addition, the defendants did not seek leave of this Court and failed to offer any good cause for the delay in making the cross-motion.

Instead, the defendants simply argue that the Labor Law § 240 (1) and § 241 (6) claims are nearly identical. The First Department held that the court may consider the merits of defendants' untimely cross-motion for summary judgment dismissing the plaintiff's Labor Law § 240 (1) claim, because it is based on the same issues raised in the plaintiff's motion. Jarama , 161 AD3d at 691-92 ; Palomo v. 175th St. Realty Corp. , 101 AD3d 579, 581 (1st Dept. 2012). However, the remainder of the cross-motion, seeking dismissal of the Labor Law § 241 (6) cannot be...