Maggio v. 24 W. 57 APF, LLC

• Decision Date: 29 December 2015
• Docket Number: 590715/10,590788/11.,106407/09,16203
• Citation: 2015 N.Y. Slip Op. 09604,24 N.Y.S.3d 1,134 A.D.3d 621
• Court: New York Supreme Court — Appellate Division
• Parties: Joseph MAGGIO, Plaintiff–Respondent–Appellant, v. 24 WEST 57 APF, LLC, et al., Defendants–Appellants–Respondents, Richter & Ratner Contracting Corp., et al., Defendants–Respondents. 24 West 57 APF, LLC, et al., Third–Party Plaintiffs, v. O'Kane Construction, Inc., Third–Party Defendant–Respondent, Atlantic Hoist & Scaffolding, LLC, Third–Party Defendant. [And A Second Third–Party Action].

134 A.D.3d 621

24 N.Y.S.3d 1

2015 N.Y. Slip Op. 09604

Joseph MAGGIO, Plaintiff–Respondent–Appellant,

v.24 WEST 57 APF, LLC, et al., Defendants–Appellants–Respondents,Richter & Ratner Contracting Corp., et al., Defendants–Respondents.

24 West 57 APF, LLC, et al., Third–Party Plaintiffs,

v.O'Kane Construction, Inc., Third–Party Defendant–Respondent,Atlantic Hoist & Scaffolding, LLC, Third–Party Defendant.

[And A Second Third–Party Action].

16203

106407/09

590715/10

590788/11.

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

Dec. 29, 2015.

Pillinger Miller Tarallo, LLP, Elmsford (Daniel O. Dietchweiler of counsel), for appellants-respondents.

Bisogno & Meyerson, Brooklyn (Elizabeth Mark Meyerson of counsel), for respondent-appellant.

The Law Offices of Christopher P. DiGiulio, P.C., New York (William Thymius of counsel), for Richter & Ratner Contracting Corp., respondent.

Lewis Brisbois Bisgaard & Smith LLP, New York (Sana Suhail of counsel), for Atlantic Heydt Corp. and Atlantic Hoist & Scaffolding, LLC, respondents.

Hardin Kundla McKeon Poletto & Polifroni, P.A., New York (Stephen A. Donahue of counsel), for O'Kane Construction, Inc., respondent.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered June 13, 2014, which, insofar as appealed from as limited by the briefs, denied the motion of defendants 24 West 57 APF, LLC (24 West) and Ana Tzarev New York, LLC (ATNY) for summary judgment dismissing plaintiff's claims for violation of Labor Law § 200 and for common-law negligence, denied 24 West and ATNY judgment on their cross claims and third-party claims for contractual and common-law indemnification against defendants Richter & Ratner Contracting Corp. (R & R) and Atlantic Hoist & Scaffolding, LLC, and third-party defendant O'Kane Construction, Inc., and denied as untimely plaintiff's cross motion for partial summary judgment on his Labor Law § 240(1) claim, unanimously modified, on the law, to grant summary judgment to ATNY to the extent it seeks conditional contractual indemnification against R & R, and otherwise affirmed, without costs.

Plaintiff, a drywall installer employed by O'Kane, was injured at premises owned by defendant 24 West and leased to ATNY. ATNY was converting the space into a gallery to display the work of the artist Ana Tsarev, and had hired R & R as the general contractor. R & R retained Atlantic to construct a scaffold on the premises for use in the renovation. Because the ceiling in the premises was 30 feet high, Atlantic's scope of work in its subcontract included building a staircase within the scaffold to reach the top. However, the standard sets of stairs that Atlantic had in its inventory, which were approximately nine feet long, did not precisely fit from the bottom of the scaffold to the top. To solve this problem, a smaller set of stairs was cut and “sistered” to the standard set of stairs that was closest to the ceiling. While the standard stairs were made of steel with perforations in them to prevent slippage, the area where the “sister” stairs were coupled to the standard set was covered with plywood. Thus, in that area certain stairs had no slip protection. Further, the addition of plywood to some of the stairs caused the rise of those steps to be higher than others.

Plaintiff testified that his accident occurred as he was descending from the top of the scaffold stairs. He claims that he navigated the first five steps, but when he came to the area where the “sistering” had been done and the stairs were covered with plywood, he “went flying” down the flight of stairs to the next landing, which he rolled off. He stated that he then fell to the floor approximately 12–16 feet below, striking against, and temporarily grabbing, the side of the scaffold to stop his fall, before landing on piles of sheetrock and other debris. Plaintiff attributed the fall to the steep pitch of the steps, the lack of anti-slip material on the plywood stair that he stepped on immediately before his fall, and the fact that slippery sheetrock powder and sawdust had collected on the staircase, which was “always there” because “they” did not do a very good job cleaning. Nobody witnessed the accident.

Plaintiff filed a note of issue and certificate of readiness for trial before depositions of 24 West, ATNY or Atlantic had been conducted. R & R moved to strike the note of issue. Nevertheless, within 30 days of plaintiff's filing the note of issue, 24 West and ATNY moved for summary judgment, seeking dismissal of plaintiff's causes of action alleging common-law negligence and violation of Labor Law § 200. They also sought summary judgment on their cross claims against R & R and Atlantic, and on their third-party claim against O'Kane, for common-law and contractual indemnification. Defendants made their motions to comply with the court's Part Rules, which required summary judgment motions to be filed within 30 days after the note of issue was filed. The Part Rules also provided that the timeliness of cross motions for summary judgment was determined by their filing date, not the filing of the motion-in-chief.

In support of their motion, 24 West and ATNY submitted substantially identical affidavits from 24 West's property manager, Carlos Telleria, and ATNY's International Manager, Simone DiLaura. Each witness explained the contractual relationships between the parties, and averred that 24 West and ATNY, respectively, did not control the means and methods of the work, did not provide any instructions for the work to be performed by plaintiff, and did not provide any equipment or materials to the contractors or subcontractors. In opposition to the motion, O'Kane argued that there was an issue of fact regarding who the owner of the premises was, since in its subcontract with R & R the owner was identified not as ATNY, but rather as “Ana Tzarev Management Limited.” In a reply affidavit, DiLaura averred that Ana Tzarev Management Limited was a shareholder of ATNY and had no interest in the subject premises. She asserted that the reference to Ana Tzarev Management Limited in the subcontract, which she believed was drafted by R & R, was a mistake.

The court granted R & R's motion to strike the note of issue, and ordered discovery to be completed within 60 days and plaintiff to file a new note of issue. The day after it struck the note of issue, the court issued an order denying 24 West's and ATNY's motion for summary judgment, finding that they had “not made out a prima facie showing of entitlement to summary judgment,” since the submissions did not establish who the owner of the premises was. The court further stated that “summary judgment is also premature, as discovery is still outstanding.... It is clear to this Court that until such time as all discovery is complete, including all party deposition [sic], the dispositive motions must be denied.” Additionally, the court stated that whether 24 West and ATNY had notice of the conditions that purportedly caused plaintiff's fall was disputed “and may be resolved by the completion of movant's depositions.”

The parties subsequently conducted the depositions of 24 West, by Telleria, and of ATNY, by DiLaura, as well as that of Atlantic. Plaintiff filed a new note of issue, and within 30 days of the filing, 24 West and ATNY again moved for summary judgment dismissing plaintiff's negligence and Labor Law § 200 claims and all cross claims and counterclaims against them, and for summary judgment on their claims against R & R, Atlantic and O'Kane for common-law and contractual indemnification. They relied on the deposition of DiLaura, who testified that, while she did not believe anyone associated with ATNY was overseeing or performing the work, she was not sure of that. Similarly, while she did not believe anyone from ATNY visited the premises during the renovation, she was not sure. DiLaura also testified that Ana Tzarev Management Limited is “just a name I've seen,” but she did not know what it did, what its business was, or whether any of its representatives visited the premises during its renovation. Moreover, contrary to her identification in her affidavit of R & R's construction management agreement and O'Kane's subcontract, she testified that she had never seen those documents. 24 West and ATNY relied on the deposition of Telleria to the extent he testified that 24 West was not a party to any of the contracts related to the buildout of the space. Finally, 24 West and ATNY cited deposition testimony from R & R's superintendent on the project, and from O'Kane's foreman, which they claimed suggested that 24 West and ATNY exercised no control over the work of R & R or its subcontractors.

Approximately 60 days after filing the note of issue, and one month after 24 West and ATNY moved again for summary judgment, plaintiff cross-moved for partial summary judgment on liability on his Labor Law § 240(1) claim against 24 West, ATNY, and R & R. Plaintiff's moving affidavit acknowledged that the motion was made after the court's 30–day deadline from the filing of the note of issue had passed, but requested leave of the court for consideration of the cross motion, asserting that the merits of the motion only became apparent to him upon receipt of 24 West's and ATNY's summary judgment motion, which centered on the same facts. In his reply affidavit, plaintiff further stated that his cross motion was based “in large part” on the deposition of Atlantic, which did not occur until December 30, 2013, days after the operative note of issue had been filed. Atlantic's witness, who was one of its foremen at the time of the accident but did not recall whether he worked on the job in question, testified that it was not appropriate for the nonslip nature of the staircase to have been compromised in the presence of falling sheetrock dust.

The court denied the motions. With regard to 24 West's and ATNY's motion, the court stated that “[t]his Court did not grant movants leave to...