Milikofsky v. Falcon Constr. Mgmt., LLC
| Decision Date | 08 May 2017 |
| Docket Number | Index No.: 150250/2013 |
| Court | New York Supreme Court |
| Parties | JUDITH MILIKOFSKY and MARK MILIKOFSKY, Plaintiffs, v. FALCON CONSTRUCTION MANAGEMENT, LLC, METROPOLITAN REALTY ASSOCIATES, LLC and ANGELO GORDON & CO., L.P., Defendants. FALCON CONSTRUCTION MANAGEMENT, LLC, Third-Party Plaintiff, v. FINDLAY INSTALLATION SERVICES, LLC and FLOORING TECHNOLOGIES, INC., Third-Party Defendants. FALCON CONSTRUCTION MANAGEMENT, LLC, Fourth-Party Plaintiff, v. METRO INDUSTRIAL WRECKING & ENVIRONMENTAL CONTRACTORS, INC., Fourth-Party Defendant. FALCON CONSTRUCTION MANAGEMENT, LLC, Fifth-Party Plaintiff, v. A.S.A.P. PLUMBING LLC, Fifth-Party Defendant. |
MEMORANDUM DECISION
In this personal injury action, third-party defendant, Findlay Installation Services, LLC ("Findlay"), moves pursuant to CPLR § 3212 for summary judgment dismissing the complaint of the primary plaintiffs, Judith Milikofsky ("Milikofsky") and Mark Milikofsky's (collectively "Plaintiffs") ("Complaint"), the third-party complaint ("Third-Party Complaint") of primary defendant/third-party plaintiff, Falcon Construction Management, LLC ("Falcon"), and all claims, third-party claims, cross-claims and counter claims against Findlay.
According to the Complaint, Milikofsky was employed at Nassau Radiologic ("NRad") where she performed clerical tasks. NRad experienced two flooding incidents while Milikofsky was employed there. The precise dates of the first and second floods are uncertain, but according to Milikofsky, the second flooding incident occurred approximately two to three months before her accident and flooded the entire office. Milikofsky alleges that Falcon negligently performed repairs and installation of molding adjacent to the carpeting throughout NRad.
Plaintiff claims that on November 9, 2011, while walking to the machine room at NRad, her foot became caught on the molding at the bottom of the wall, causing her to trip and become injured. Consequently, Milikofsky filed the Complaint alleging, inter alia, that defendants, including Falcon (first cause of action) was negligent in the installation of the molding.
As relevant herein, Falcon thereafter filed the Third-Party Complaint for indemnification and/or contribution alleging that Findlay's negligence caused Milikofsky's injury.
Findlay's instant motion for summary dismissal of all claims asserted against it ensued.
In support of summary judgment, Findlay argues that the depositions of Milikofsky, Michael Rodriguez ("Rodriguez"), a project manager at Falcon at the time of Milikofsky's injury, and Scott Findlay ("Scott Findlay"), owner of Findlay, fail to demonstrate that: first, Findlay created the defective condition that caused Milikofsky's injury; second, the molding in question was gapped, broken or separated prior to Milikofsky's fall; third, the molding in question was part of Findlay's scope of work; and fourth, Findlay installed the defective molding or had knowledge that the molding was a tripping hazard. Further, the parties' depositions do not establish that Findlay had a duty to repair the defect, and that Findlay had actual or constructive notice of the alleged defective molding.
Next, Plaintiffs fail to state a triable issue of fact because Milikofsky speculates as to what caused her injury. Plaintiffs' and Falcon's claims that Findlay's negligent workmanship caused the molding to separate from the wall is speculative, since Milikofsky never observed that the molding was defective prior to her accident. Further, Milikofsky conceded that she may have caused the molding to come apart from the wall. Moreover, Milikofsky admits that she did not know what caused the molding to become detached from the wall.
Further, as Falcon's claim that Findlay negligently installed the molding is likewise speculative, Falcon's common-law indemnification fails. Moreover, the common-law indemnification fails since Falcon's negligence contributed to Milikofsky's injury. Falcon inspected the carpet and molding for quality, but never raised an issue as to its condition.
Finally, the defective condition that caused Milikofsky's injury is de minimis. The "gap or raised projection in the baseboard molding" that caused plaintiff "to stub her foot and trip," was not a "trap or nuisance," in that it was "not difficult to pass over safely" (Stein Aff., at ¶78).
First, Plaintiffs argue that there is sufficient evidence that the defective molding was the cause of Milikofsky's accident and issues of fact exist as to whether Findlay caused the molding to become defective (Platz Aff., at ¶¶112, 116), which must be resolved by a jury. Further, nothing presented by Findlay impacts on the prime defendants' potential liability as the owners and construction manager and demolition company that caused the flood.
Next, Findlay failed to show that it lacked actual notice of the alleged defective condition, or that the condition existed for a sufficient length of time to permit it, in the exercise of reasonable care, to remedy the defect. (¶¶118-119). Findlay's absolute duty to inspect its work renders the issue of actual and constructive notice irrelevant. In any event, Findlay had a duty to inspect its work and actual knowledge may be inferred from the fact that Findlay was present and thus should have seen the condition, irregardless of the length of time the condition existed. And, as to constructive notice, Findlay knew there had been a flood and did work to remediate the damage (¶¶127-133) and the photographs of the area indicate that Findley had both actual and constructive notice of the condition of the molding. Moreover, given the nature of the occurrence, i.e., that Findley caused or created the condition, there is no need for plaintiff to prove notice in order to recover. And, Falcon cannot escape liability if its subcontractor Findley caused or created the. dangerous condition of improperly affixed molding. Nor must Milikofsky exclude every other cause of her accident to prevail on her negligence claim.
Further, Findlay's conclusory denial of responsibility, identification of gaps in Milikofsky's proof, and reliance on inadmissible hearsay are insufficient to support its motion (¶¶134-136, 140). And, Milikofsky and Rodriguez's deposition testimony, and the "evasive, contrived denials by [Scott] Findlay at [his] deposition raise questions of fact as to whether her accident was caused by the defective nature of the condition in question" (¶142).
And, the protruding molding in narrow section of the entrance is not de minimis.
Finally, Findlay's contention that it cannot be liable because it is an independent contractor and had no duty to plaintiff is misplaced because plaintiff did not sue Findlay, and thus, the only issue is whether Findlay was negligent for breaching its duty to Falcon which hired it. If Findlay was negligent in its performance of its duties to Falcon and the owners, and Falcon and the owners are held liable to plaintiff for such negligence, then Findley would be liable to Defendants directly and not to plaintiffs. Nevertheless, Findlay, could be found directly liable to plaintiff under the circumstances here where Findlay created the hazardous condition.
Falcon also argues that questions of fact exist as to how Milikofsky's accident occurred and which party is culpable for creating the subject conditions. Findlay installed carpet and molding at NRad a month prior to Milikofsky's accident, and admits that it installed the black molding shown in a photograph depicting the accident location. Further, Scott Findlay does not have sufficient knowledge of the work Findlay performed at NRad, since he was not on-site or supervising the work during the construction. Scott Findlay's testimony included "selective memory concerning the work," and therefore a jury should be allowed to evaluate his credibility(p.4). And, Findlay's notice of the defective condition would not be required if it caused the condition.
Moreover, Findlay's refusal to produce documents testified about at Scott Findlay's deposition alone warrants denial of the motion. And, there "may be eyewitnesses identified by Scott Findlay who are still employed and may have actually installed the molding" (Liferiedge Aff., at p.3).
Findlay argues that Plaintiff's fails to demonstrate the existence of a question of triable fact. Milikofsky's explanation of the proximate cause of her accident is speculative. Milikofsky never observed or was aware of the alleged "gaps" in the molding where her accident occurred. Milikofsky also did not know whether the "[m]olding as seen in the photographs became damaged or 'gapped' before, or as a result of her accident" (Reply, at ¶3).
Moreover, assuming Milikofsky's accident was caused by the protruding molding, Plaintiff failed to establish how and when the defective condition was caused. Plaintiffs' exhibits depicting the accident location fail to show the cause the alleged damaged molding. Additionally, since Findlay's work involved carpet replacement, the only molding it would have installed would have been molding adjacent to the carpet, which in photographs is black, not grey, made from different material than that of the molding that caused Plaintiff to fall, and appears new. Further, the "[a]rguments proffered by Findlay do not hinge on the credibility of Scott Findlay," and therefore credibility of his deposition testimony is not at issue (¶18).
Finally, Scott Findlay's did not affirmatively testify that Findlay had additional documents concerning the work it performed in 2011, or that certain employees witnessed thework performed by Findlay (¶20).
CPLR § 3212: Summary Judgment
"The proponent of a summary judgment motion must make a prima facie showing...
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