Peranzo v. WFP Tower D Co., Index No. 154704/2016

• Decision Date: 19 October 2018
• Docket Number: Index No. 595128/2017,Index No. 154704/2016,Index No. 595094/2017
• Citation: 2018 NY Slip Op 32767 (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 Plaintiff v. COMMODORE CONSTRUCTION CORP., Second Third Party Defendant
• Court: New York Supreme Court

2018 NY Slip Op 32767(U)

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 Plaintiff
v.
COMMODORE CONSTRUCTION CORP., Second Third Party Defendant

Index No. 154704/2016
Index No. 595094/2017
Index No. 595128/2017

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46

RECEIVED: October 29, 2018
October 19, 2018

NYSCEF DOC. NO. 180

DECISION AND ORDER

LUCY BILLINGS, J.S.C.:

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Plaintiff sues to recover damages for injuries sustained September 1, 2015, when he fell at a construction worksite. The scaffolding contractor, defendant-third party plaintiff Titanium Scaffold Services, Inc., subcontracted the scaffold erection to third party defendant Pier Head Associates, Ltd. Plaintiff moves to join Pier Head Associates Ltd. as a defendant and to amend his complaint by alleging his original claims against the new defendant. C.P.L.R. §§ 1002(b), 3025(b).

The proposed second amended complaint offered to support the joinder and amendment alleges that Pier Head Associates and the other defendants were negligent in breaching a duty to provide a safe place to work, which caused plaintiff's injury when he tripped and fell "due to a bracing pipe which was part of a large pipe scaffold at the . . . premises by reason of the negligence of the Defendants." Aff. of Scott Occhiogrosso Ex. 7 ¶ 91. Plaintiff also claims that defendants, including Pier Head Associates, violated New York Labor Law §§ 200 and 241(6). To support the violation of Labor Law § 241(6), plaintiff specifies that defendants violated 12 N.Y.C.R.R. §§ 23-1.5, 23-1.7, 23-1.16, 23-1.21, none of which applies to the scaffold here. The second amended complaint does not specifically allege that defendants created a dangerous condition.

As a subcontractor providing services to Titanium Scaffold Services, Pier Head Associates is liable to plaintiff for its negligence or other culpable conduct in performing the subcontract, when its breach of a contractual duty caused

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plaintiff's injury, only under one of the following sets of circumstances. (1) Pier Head Associates displaced Titanium Scaffold Services' duty to maintain its work area, equipment, and materials in a safe condition. (2) Plaintiff detrimentally relied on Pier Head Associates' performance of the subcontract. (3) Pier Head Associates launched the "instrument of harm" that caused plaintiff's injuries. Stiver v. Good & Fair Carting & Moving, Inc., 9 N.Y.3d 253, 257 (2007); Church v. Callanan Indus., 99 N.Y.2d 104, 111 (2002); Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140 (2002); Stimmel v. Osherow, 133 A.D.3d 483, 485 (1st Dep't 2015).

Pier Head Associates' liability to plaintiff lacks support from the start, as its subcontract with Titanium Scaffold Services did not obligate Pier Head Associates to maintain site safety or even...