Jarama v. 902 Liberty Ave. Hous. Dev. Fund Corp.

• Decision Date: 31 May 2018
• Docket Number: 6715,Index 403580/10
• Parties: Angel JARAMA, Plaintiff–Respondent, v. 902 LIBERTY AVENUE HOUSING DEVELOPMENT FUND CORP., et al., Defendants–Appellants, Bowery Residents' Committee, Inc., et al., Defendants.
• Court: New York Supreme Court — Appellate Division

161 A.D.3d 691
78 N.Y.S.3d 73

Angel JARAMA, Plaintiff–Respondent,
v.
902 LIBERTY AVENUE HOUSING DEVELOPMENT FUND CORP., et al., Defendants–Appellants,

Bowery Residents' Committee, Inc., et al., Defendants.

6715
Index 403580/10

Supreme Court, Appellate Division, First Department, New York.

ENTERED: MAY 31, 2018

Hannum Feretic Prendergast & Merlino, LLC, New York (Steven R. Dyki of counsel), for appellants.

Gorayeb & Associates, P.C., New York (John M. Shaw of counsel), for respondent.

Renwick, J.P., Manzanet–Daniels, Mazzarelli, Gesmer, Oing, JJ.

78 N.Y.S.3d 74

Order, Supreme Court, New York County (Robert D. Kalish, J.), entered January 6, 2017, which granted plaintiff's motion for partial summary judgment as to liability on his Labor Law § 240(1) claim, and denied defendants' cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff, Angel Jarama, was involved in an accident while performing external masonry work at a construction site. He was standing on a pipe scaffold when a large masonry stone fell onto the scaffold, damaging its "bicycle," which was holding up the wooden planks and causing the planks to collapse from under plaintiff's feet. Plaintiff fell 35 feet to the ground below and suffered numerous personal injuries.

This Court may consider the merits of defendants' untimely cross motion for summary judgment dismissing the complaint to the extent it sought dismissal of the Labor Law § 240(1)claim, because it is based on the same issues raised in plaintiff's motion ( Palomo v. 175th St. Realty Corp., 101 A.D.3d 579, 581, 957 N.Y.S.2d 49 [1st Dept. 2012] ). However, the remainder of the motion, seeking dismissal of Labor Law § 241(6), Labor Law § 200 and common law negligence claims cannot be considered because it does not address issues nearly identical to those raised in the timely motion and defendants did not demonstrate good cause for the delay (see Vitale v. Astoria Energy II, LLC, 138 A.D.3d 981, 984, 30 N.Y.S.3d 213 [2d Dept. 2016] ; Filannino v. Triborough...