Kostulias v. City of New York
| Decision Date | 24 January 2022 |
| Docket Number | Index 154897/2015,595465/2016 |
| Citation | 2022 NY Slip Op 30202 (U) |
| Court | New York Supreme Court |
| Parties | JAMES KOSTULIAS, Plaintiff, v. CITY OF NEW YORK, N.Y.C. DEPARTMENT OF EDUCATION, VOLMAR CONSTRUCTION, INC., Defendant. CITY OF NEW YORK, N.Y.C. DEPARTMENT OF EDUCATION Plaintiff, v. ACRON MAINTENANCE, INC., EXCEL ELEVATOR & ESCALATOR CORP. Defendant. |
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 007) 185, 186, 187, 188, 189, 190, 191, 192, 193 194, 195, 196, 197, 198, 199, 200, 201, 202, 203, 204, 205 207, 209, 210, 211, 230, 237, 239, 240, 242, 246, 248, 250 251, 254, 255, 256, 257, 258, 259, 260, 261, 262, 263, 264, 265, 266, 267, 268, 283, 284, 285, 286, 287, 288, 289, 290, 291, 292, 293, 294, 295, 296, 297, 299, 304, 311, 313, 314, 315, 316, 317, 318, 319, 321, 340, 342, 345, 346, 347, 348, 349, 350, 351, 352, 353, 354, 355, 357, 359, 360, 361, 362, 363, 368, 373, 374, 375, 376, 377, 378, 381, 383 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER) .
The following e-filed documents, listed by NYSCEF document number (Motion 008) 212, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 224, 225, 226, 227, 228, 229, 231, 238, 241, 243, 244, 245, 247, 249, 252, 253, 269, 270, 271, 272, 273, 274, 275, 276, 277, 278, 279, 280, 281, 282, 298, 300, 305, 306, 307, 308, 309, 310, 312, 320, 322, 323, 324, 325, 326, 327, 328, 329, 330, 331, 332, 333, 334, 335, 341, 343, 356, 358, 364, 365, 366, 367, 369, 370, 371, 372, 382 were read on this motion to/for DISMISS.
Upon the foregoing documents, it is
ORDERED that the branch of Plaintiff James Kostulias' motion (Motion Seq. 007), pursuant to CPLR 3212, for summary judgment on his Labor Law Sections 240(1) and 241(6) claims against Defendants City of New York, N.Y.C. Department of Education (collectively, "City Defendants"), and Volmar Construction, Inc. ("Volmar") is denied; and it is further
ORDERED that the branch of Plaintiff s motion (Motion Seq. 007), pursuant to CPLR 3212, for summary judgment on his negligence claim against City Defendants, Volmar, and Defendant Excel Elevator Corp. ("Excel") is denied; and it is further
ORDERED that the branch of Plaintiff s motion (Motion Seq. 007), pursuant to CPLR 3216, for an order sanctioning Defendants for spoliation of evidence, is denied; and it is further
ORDERED that City Defendants and Volmar's cross-motion (Motion Seq. 007), pursuant to CPLR 3212, for dismissal of Plaintiff s complaint, is partially granted to the extent that Plaintiffs Labor Law Sections 240(1) and 241-a claims are severed and dismissed, and is otherwise denied; and it is further
ORDERED that Excel's motion (Motion Seq. 008), pursuant to CPLR 3212, seeking dismissal of Plaintiff s complaint and all crossclaims asserted against it by City Defendants and Volmar is denied in its entirety; and it is further
ORDERED that City Defendants and Volmar's cross-motion (Motion Seq. 008), pursuant to CPLR 3212, for summary judgment on their crossclaims asserted against Excel is denied in its entirety; and it is further
ORDERED that the Clerk of the Court shall enter judgment accordingly; and it is further
ORDERED that the remainder of the claims against the parties in this action are severed and shall continue; and it is further
ORDERED that counsel for City Defendants and Volmar shall serve a copy of this Order with Notice of Entry within 20 days of entry on all parties.
MEMORANDUM DECISIONIn this Labor Law action, the following motions are consolidated for disposition.
In Motion Seq. 007, Plaintiff James Kostulias moves for summary judgment pursuant to CPLR 3212 on his claims under Labor Law Sections 240(1) and 241(6) against Defendants City of New York, N.Y.C. Department of Education (collectively, "City Defendants"), and Volmar Construction, Inc. ("Volmar"). Plaintiff also moves for summary judgment on his negligence claims against City Defendants, Volmar and Defendant Excel Elevator Corp. ("Excel") as to liability. Plaintiff also seeks, pursuant to CPLR 3126, an order sanctioning Defendants for spoliation of evidence. Plaintiff seeks an order: (1) striking Defendants' Answers; or (2) precluding Defendants from introducing certain evidence at trial; or (3) striking Defendants' Affirmative Defenses, or (4) granting an adverse inference at trial.
Defendants all oppose Plaintiffs motion in its entirety, and City Defendants and Volmar cross-move for an order pursuant to CPLR 3212 dismissing Plaintiffs complaint in its entirety.
In Motion Seq. 008, Excel moves for an order pursuant to CPLR 3212 dismissing Plaintiffs complaint and all crossclaims asserted against it by City Defendants and Volmar.
City Defendants, Volmar and Plaintiff oppose Excel's motion in its entirety. City Defendants and Volmar also cross-move for an order pursuant to CPLR 3212 (1) granting City Defendants summary judgment on their crossclaims for contractual indemnification, reimbursement of attorneys' fees and common law indemnification against Excel; and (2) granting Volmar summary judgment on its cross-claim for common law indemnification against Excel.
This proceeding stems from an accident that occurred at a construction project[1] located at the P.S. 217 school in Brooklyn ("the subject premises") on or about March 23 2015. The subject premises are owned by City Defendants, who hired Volmar as a general contractor to perform construction work on the school (NYSCEF do No. 186, ](25). Volmar in turn hired non- party Acron Maintenance, Inc. (" Acron"), as a subcontractor to install air conditioning (AC) units in the school's auditorium (id. at ¶ 26).
Plaintiff James Kostulias is an AC Mechanic employed by Acron who was assigned to help with installing and upgrading approximately twelve AC units in the auditorium (NYSCEF doc No. 284 at ¶ 14).
Plaintiff first gave testimony related to the circumstances of his accident as a part of a separate Rule 50-H Hearing on July 9, 2015 (NYSCEF doc No. 286).
Plaintiff testified that at the time of his accident, he was walking around the auditorium stage so that he was able to move a ladder closer to the wall in order to reach an AC unit that had been installed on the left side of the stage (id. at 15). Plaintiff testified that while the stage itself was well lit, the back of the room was dark (id. at 16, 27-28). Plaintiff stated that he was told to open a door covered by a black curtain behind the stage to turn on more lights:
(id. at 26).
Plaintiff testified that although he could not tell at the time, the door he opened led to a handicap lift elevator shaft (id. at 33). Plaintiff fell five feet down into the steel frame of the lift and landed on the lift's platform where he was found by coworkers (id. at 35-36). There were no City Defendant employees present at the time (id. at 33).
Plaintiff initially appeared for deposition in this matter on December 12, 2017 (NYSEF doc No. 287), which was resumed on April 24, 2018 (NYSCEF doc No. 288) and completed on May 1, 2018 (NYSCEF doc No. 289).
Plaintiff testified that when Acron's crew arrived on March 23, 2015, his supervisor, Ron Amoroso, found the school's superintendent, who opened the door to the auditorium (NYSCEF doc No. 287 at 194-6). The lights in the auditorium were on, but parts of the stage area were dark (id.). Acron brought additional halogen light stands to use if needed, as well as head bands with flashlights that were stored in a toolbox (id. at 214).
Plaintiff testified that he was working with his colleague Francisco Hernandez to install "blower units" on the auditorium walls (id. at 204). Mr. Hernandez instructed Plaintiff to go around the back of the stage to open a locked door from the other side. The door was beneath a blower unit that was being installed so that Mr. Hernandez could place a portion of a ladder over the door threshold for better access to the wall (id. at 208-10).
Plaintiff walked up the side of the stage and then walked approximately 12 feet down the left back side of the stage when he saw a door (id. at 224). Plaintiff did not see any other doors on the side of the stage, so he believed this door led to the locked door Mr. Hernandez asked him to open (id. at 234). Plaintiff pulled a handle on the left edge of the door towards him and the door opened immediately (id. at 236-39). Plaintiff noticed a rectangular box above the handle with "up and down" markings but did not realize that the door was meant to lead to an elevation device (id. at 274).
Plaintiff stated that the door opened to a dark room that he was unable to see into, but he noticed what looked like a "solid door" to his right (id. at 245). Plaintiff stepped into the door area and reached with his left hand to find a light switch (id. at 251-54). Plaintiff stepped forward with his right foot and fell down, hitting plexiglass and landing on his back on a steel platform (id. at 258-59). Plaintiff was found by his supervisor, Mr. Amoroso, who helped him up and walked him out of the room through the door Plaintiff was supposed to open on the stage (id. at 298-99).
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