Paguay v. Cup of Tea, LLC, 2016–10510

CourtNew York Supreme Court Appellate Division
Citation86 N.Y.S.3d 584,165 A.D.3d 964
Docket NumberIndex No. 696/14,2016–10510
Parties Edisson PAGUAY, respondent-appellant, v. CUP OF TEA, LLC, respondent, Atweek, Inc., doing business as Yankels Demolition, appellant-Respondent (and a third-Party action).
Decision Date17 October 2018

165 A.D.3d 964
86 N.Y.S.3d 584

Edisson PAGUAY, respondent-appellant,
v.
CUP OF TEA, LLC, respondent,

Atweek, Inc., doing business as Yankels Demolition, appellant-Respondent (and a third-Party action).

2016–10510
Index No. 696/14

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

Submitted - May 11, 2018
October 17, 2018


86 N.Y.S.3d 585

Law Office of Steven G. Fauth, LLC, New York, N.Y. (Scott S. Levinson of counsel), for appellant-respondent.

Pontisakos & Brandman, P.C., Garden City, N.Y. (Elizabeth Mark Meyerson of counsel), for respondent-appellant.

Lawrence N. Rogak, LLC, Oceanside, N.Y. (Renee A. Breitner of counsel), for respondent.

WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Atweek, Inc., doing business as Yankels Demolition, appeals, and the plaintiff cross-appeals, from an order of the Supreme Court, Kings County (David B. Vaughan, J.), dated August 22, 2016. The order, insofar as appealed from, denied the motion of the defendant Atweek, Inc., doing business as Yankels Demolition, for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. The order, insofar as cross-appealed from, denied the plaintiff's motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1).

ORDERED that the order is reversed insofar as appealed from, on the law, and the motion of the defendant Atweek, Inc., doing business as Yankels Demolition, for summary judgment dismissing the complaint and all cross claims insofar as asserted against it is granted; and it is further,

ORDERED that the order is affirmed insofar as cross-appealed from; and it is further;

ORDERED that one bill of costs is awarded to the defendant Atweek, Inc., doing business as Yankels Demolition, payable by the plaintiff and the defendant Cup of Tea, LLC, and one bill of costs is awarded to the defendant Cup of Tea, LLC, payable by the plaintiff.

The plaintiff allegedly was injured when, while renovating the third floor of a three-story apartment building, he fell through the roof of the building to the floor below. The plaintiff commenced this action against the general contractor at the renovation site, the defendant Atweek, Inc., doing business as Yankels Demolition (hereinafter Atweek), as well as the owner of the apartment building, the defendant Cup of Tea, LLC (hereinafter Cup of Tea), asserting causes of action to recover damages for common-law negligence and violations

86 N.Y.S.3d 586

of Labor Law §§ 200, 240(1), and 241(6). Cup of Tea asserted cross claims against Atweek for indemnification and contribution.

In January 2015, the Workers' Compensation Board (hereinafter the Board) awarded the plaintiff compensation for the injuries he sustained as a result of the subject accident and directed that payment be made by Atweek or its insurance carrier. The plaintiff testified at a deposition that he has since received the workers' compensation benefits. Thereafter, the plaintiff moved for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1). Atweek moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it based on the exclusivity provisions of the Workers' Compensation Law (see Workers' Compensation Law §§ 11, 29[6] ). The Supreme Court, inter alia, denied the plaintiff's motion for summary...

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2 practice notes
  • Kleinknecht v. Brogan, 2015–12276
    • United States
    • New York Supreme Court Appellate Division
    • October 17, 2018
    ...the Supreme Court properly denied the petition and, in effect, dismissed the proceeding to annul the ZBA's determination (see 86 N.Y.S.3d 584 Matter of Sacher v. Village of Old Brookville, 124 A.D.3d 902, 904, 3 N.Y.S.3d 69 ; Matter of Rivero v. Voelker, 38 A.D.3d 784, 785–786, 832 N.Y.S.2d......
  • Perez v. ZZZ Carpentry, Inc., Index No. 510843/2019
    • United States
    • United States State Supreme Court (New York)
    • May 13, 2022
    ...of a type of safety device enumerated under Labor Law § 240(1) was a proximate cause of his injuries (cf, Paguay v Cup of Tea, LLC, 165 A.D.3d 964, 966 [2d Dept 2018]). In opposition, ZZZ fails to raise a triable issue of fact in order to defeat Perez's motion. Contrary to ZZZ's arguments, ......
2 cases
  • Kleinknecht v. Brogan, 2015–12276
    • United States
    • New York Supreme Court Appellate Division
    • October 17, 2018
    ...the Supreme Court properly denied the petition and, in effect, dismissed the proceeding to annul the ZBA's determination (see 86 N.Y.S.3d 584 Matter of Sacher v. Village of Old Brookville, 124 A.D.3d 902, 904, 3 N.Y.S.3d 69 ; Matter of Rivero v. Voelker, 38 A.D.3d 784, 785–786, 832 N.Y.S.2d......
  • Perez v. ZZZ Carpentry, Inc., Index No. 510843/2019
    • United States
    • United States State Supreme Court (New York)
    • May 13, 2022
    ...of a type of safety device enumerated under Labor Law § 240(1) was a proximate cause of his injuries (cf, Paguay v Cup of Tea, LLC, 165 A.D.3d 964, 966 [2d Dept 2018]). In opposition, ZZZ fails to raise a triable issue of fact in order to defeat Perez's motion. Contrary to ZZZ's arguments, ......

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