Peranzo v. WFP Tower D Co.
| Decision Date | 14 August 2020 |
| Docket Number | Index No. 154704/2016,Index No. 595128/2017,Index No. 595094/2017 |
| Citation | 2020 NY Slip Op 32704 (U) |
| Parties | AMEDEO PERANZO, Plaintiff v. WFP TOWER D CO. L.P., BROOKFIELD FINANCIAL PROPERTIES L.P., STRUCTURE TONE, INC., and TITANIUM SCAFFOLD SERVICES, LLC, Defendants TITANIUM SCAFFOLD SERVICES, LLC, Third Party Plaintiff v. PIER HEAD ASSOCIATES, LTD., and COMMODORE CONSTRUCTION CORP., Third Party Defendants STRUCTURE TONE, INC., Second Third Party Plaintiffs v. COMMODORE CONSTRUCTION CORP., Second Third Party Defendants |
| Court | New York Supreme Court |
DECISION AND ORDER
I. BACKGROUND
Plaintiff, an employee of third party defendant-second third party defendant Commodore Construction Corp., sues to recover damages for personal injuries sustained September 1, 2015, while working on a renovation project on premises at 250 Vesey Street, New York County, owned by defendants WFP Tower D Co. L.P. and Brookfield Financial Properties L.P.. Defendant-second third party plaintiff Structure Tone, Inc., the general contractor for the project, subcontracted with defendant-third party plaintiff Titanium Scaffold Services, LLC, to erect a scaffold on the work site. Titanium Scaffold subcontracted that work to third party defendant Pier Head Associates, Ltd.
Titanium Scaffold moves for summary judgment dismissing all claims and cross-claims against Titanium Scaffold and for summary judgment on Commodore Construction's liability for Titanium Scaffold's third party claims for contractual and implied indemnification and breach of a contract to procure insurance. C.P.L.R. § 3212(b) and (e). Commodore Construction cross-moves for summary judgment dismissing all claims and cross-claimsagainst Commodore Construction. C.P.L.R. § 3212(b). Pier Head cross-moves for summary judgment on Pier Head's counterclaims against Titanium Scaffold and cross-claims against Commodore Construction for contractual and implied indemnification, including defense expenses. C.P.L.R. § 3212(b) and (e).
WFP Tower D, Brookfield Financial Properties, and Structure Tone, the owner and general contractor (GC) defendants, separately move for summary judgment dismissing all claims and cross-claims against these defendants. C.P.L.R. § 3212(b). They also seek summary judgment on their claims for contractual defense and indemnification and breach of a contract to procure insurance against Titanium Scaffold and Commodore Construction. C.P.L.R. § 3212(b) and (e). Only Structure Tone, however, maintains a third party action against Commodore Construction. The owner and GC defendants seek the same relief against Pier Head, but it is not a co-defendant against which these defendants may cross-claim, and when they moved for summary judgment they maintained no third party action against Pier Head. Commodore Construction and Pier Head each separately cross-move for the same relief in opposition to the owner and GC defendants' motion as in opposition to Titanium Scaffold's motion. C.P.L.R. § 3212(b).
II. THE PERMISSIBILITY OF THE MOTIONS AND CROSS-MOTIONS
Successive motions for summary judgment are not permitted unless the moving party justifies the subsequent motion. Landis v. 383 Realty Corp., 175 A.D.3d 1207, 1207 (1st Dep't 2019); Ferolito v. Vultaggio, 99 A.D.3d 19, 29 (1st Dep't 2012); Jones v. 636 Holding Corp., 73 A.D.3d 409, 409 (1st Dep't 2010); Turner Constr. Co. v. H.E.L.P. Social Serv. Corp., 43 A.D.3d 731, 732 (1st Dep't 2007). Justification for a successive summary judgment motion includes previously unavailable evidence, Fleming & Assoc., CPA, PC v. Murray & Josephson, CPAs, LLC, 127 A.D.3d 428, 428 (1st Dep't 2015); Brown Harris Stevens Westhampton LLC v. Gerber, 107 A.D.3d 526, 527 (1st Dep't 2013); Whalen v. New York City Dept. of Envtl. Protection, 89 A.D.3d 416, 417 (1st Dep't 2011); Turner Constr. Co. v. H.E.L.P. Social Serv. Corp., 43 A.D.3d at 732; an intervening appellate decision affecting applicable law, Amill v. Lawrence Ruben Co., Inc., 117 A.D.3d 433, 433-34 (1st Dep't 2014); superseding pleadings, Healthcare I.O., LLC v. Tsai Chung Chao, 118 A.D.3d 98, 103 (1st Dep't 2014); or the court's permission. Maggio v. 24 W. 57 APF, LLC, 134 A.D.3d 621, 626 (1st Dep't 2015). See Bruckner Realty LLC v.Cruz, 139 A.D.3d 413, 414 (1st Dep't 2016), aff'd, 28 N.Y.3d 1138 (2016).
Pier Head fails to justify its current cross-motion to Titanium Scaffold's motion after previously moving for summary judgment dismissing all claims against Pier Head, which the court granted in an order dated March 20, 2020. Pier Head's cross-motion to the owner and GC defendants' motion is impermissible for the same reason. Commodore Construction served two identical cross-motions for summary judgment, the first against the motion by Titanium Scaffold, and the second against the motion by the owner and GC defendants, and provides no explanation for the second summary judgment motion.
Titanium Scaffold, on the other hand, previously cross-moved to Pier Head's motion for summary judgment and thus was limited to cross-moving for summary judgment on Titanium Scaffold's third party claims against Pier Head and summary judgment dismissing Pier Head's claims against Titanium Scaffold. Therefore the court considers Titanium Scaffold's motion to the extent that it seeks summary judgment on Titanium Scaffold's claims against other parties and summary judgment dismissing claims by parties other than Pier Head.
C.P.L.R. § 2215's provision that a "party may serve upon the moving party a notice of cross-motion demanding relief" refers to relief against the moving party and thus does not allow a cross-motion as a vehicle for relief against a non-moving party. Puello v. Georges Units, LLC, 146 A.D.3d 561, 561 (1st Dep't 2017); Hennessey-Diaz v. City of New York, 146 A.D.3d 419, 420 (1st Dep't 2017); Asiedu v. Lieberman, 142 A.D.3d 858, 858 (1st Dep't 2016); Genger v. Genger, 120 A.D.3d 1102, 1103 (1st Dep't 2014). Although C.P.L.R. § 2215(b) provides that the "relief need not be responsive to that demanded by the moving party" and thus may relate to distinct claims or defenses, a cross-motion still must demand relief against the moving party.
Pier Head's cross-motion to the owner and GC defendants' motion, which is an impermissible subsequent summary judgment motion, is also an impermissible cross-motion because Pier Head seeks summary judgment against Titanium Scaffold and Commodore Construction, neither of which is a moving party against which Pier Head cross-moves. C.P.L.R. § 2215. Therefore the court denies both Pier Head's cross-motions.
Commodore Construction's cross-motion to Titanium Scaffold's motion is permissible only to the extent that it seeks summaryjudgment dismissing Titanium Scaffold's third party claims against Commodore Construction, because Titanium Scaffold is the moving party. Similarly, Commodore Construction's cross-motion against the owner and GC defendants' motion is permissible only to the extent that it seeks summary judgment dismissing Structure Tone's third party claims against Commodore Construction, because Structure Tone is a moving party. Therefore the court considers Commodore Construction's cross-motions for these distinct purposes.
Since plaintiff filed a note of issue December 11, 2018, the deadline for summary judgment motions was April 10, 2019. C.P.L.R. § 3212(a). Both Titanium Scaffold and the owner and GC defendants timely served their summary judgment motions April 10, 2019. C.P.L.R. § 2211; Derouen v. Savoy Park Owner, L.L.C., 109 A.D.3d 706, 706 (1st Dep't 2013); Esdaille v. Whitehall Realty Co., 61 A.D.3d 435, 436 (1st Dep't 2009); Aqeel v. Tony Casale, Inc., 44 A.D.3d 572, 572 (1st Dep't 2007); Gazes v. Bennett, 38 A.D.3d 287, 288 (1st Dep't 2007). Commodore Construction's cross-motion against Titanium Scaffold, served June 26, 2019, and cross-motion against the owner and GC defendants, served June 27, 2019, were untimely. C.P.L.R. § 3212(a). The court may considerCommodore Construction's cross-motions, however, to the extent that they respond to and address claims "nearly identical" to the Titanium Scaffold's and the owner and GC defendants' timely motions for summary judgment. Jarama v. 902 Liberty Ave. Hous. Dev. Fund Corp., 161 A.D.3d 691, 692 (1st Dep't 2018); Alonzo v. Safe Harbors of the Hudson Hous. Dev. Fund Co., Inc., 104 A.D.3d 446, 449 (1st Dep't 2013).
Titanium Scaffold's motion seeks summary judgment on Commodore Construction's liability for Titanium Scaffold's third party claims. Commodore Construction's untimely cross-motion, which seeks summary judgment dismissing claims on which Titanium Scaffold seeks judgment against Commodore Construction, satisfies this requirement.
The owner and GC defendants' motion seeks summary judgment on Commodore Construction's liability for Structure Tone's third party claims. Commodore Construction's untimely cross-motion, which seeks summary judgment dismissing claims on which Structure Tone seeks judgment against Commodore Construction, likewise responds to and addresses claims nearly identical to the owner and GC defendants' motion.
III. PLAINTIFF'S CLAIMS
Plaintiff was injured when he tripped over the horizontal bracing holding up a scaffold and fell onto the floor. He attempted to step over the horizontal bar, which was approximately 14 inches above the floor on which he was walking, to traverse the floor rather than walk around the perimeter of the scaffolding. Since this injury is unrelated to height at which plaintiff or any materials or equipment was positioned, he fails to sustain his claim under New York Labor Law § 240(1). Nicometi v. Vineyards of Fredonia, LLC, 25 N.Y.3d 90, 99-100 (2015); Reyes v. Magnetic Constr.,...
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