Rizvani v. N.Y.C. Hous. Auth.
| Decision Date | 30 April 2020 |
| Docket Number | Index No. 503171/2016 |
| Citation | 2020 NY Slip Op 31386 (U) |
| Parties | FATOS RIZVANI, Plaintiff, v. NEW YORK CITY HOUSING AUTHORITY, and MHM ENGINEERING, P.C. d/b/a JCT ENGINEERING AND CONSTRUCTION, Defendants, NEW YORK CITY HOUSING AUTHORITY, Third Party Plaintiff, v. AAA WINDOWS AND DOORS CORP., Third Party Defendants |
| Court | New York Supreme Court |
At an IAS Term, Part 81 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse at 360 Adams Street, Brooklyn, New York, on the 30th day of April, 2020.
PRESENT: HON. CARL J. LANDICINO, Justice.
DECISION AND ORDER
Motion Seq. # 10, 11 & 12
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
| Papers Numbered |
| Notice of Motion/Cross-Motion and |
| Affidavits (Affirmations) Annexed |
| 1/2, 3/4, 5/6 |
| Opposing Affidavits (Affirmations) |
| 7, 8, 9, 10 |
| Reply Affidavits (Affirmations) |
| 11, 12, 13 |
Upon the foregoing papers, and after argument, the Court finds as follows:
The instant proceeding relates to an accident that the Plaintiff, Fatos Rizvani (hereinafter referred to as the "Plaintiff") allegedly suffered on June 4, 2015 while employed by the Third Party Defendant, AAA Windows, Inc. (hereinafter referred to as "AAA"). On the day at issue, the Plaintiff was purportedly instructed to conduct pointing work on the brick façade of a building that was owned and managed by the Defendant, New York City Housing Authority (hereinafter referred to as "NYCHA"). In his complaint, the Plaintiff alleges causes of action for common law negligence and violations of Labor Law 200, 240(1) and 241(6).1
The Plaintiff moves (motion sequence #10) for an order pursuant to CPLR 3212 for summary judgment on the issue of liability as it relates to the Plaintiff's Labor Law 240(1) and 241(6) claims. The Plaintiff contends that NYCHA is liable as a matter of law for the Plaintiff's Labor Law 240(1) and 241(6) claims given that it owned the Premises at issue on the date of the accident. Specifically, the Plaintiff contends that his injuries were caused by the ladder that he was using slipping out from under him. The Plaintiff contends that the ladder at issue was not held or otherwise tied securely, or equipped with the proper "feet," in order to prevent the ladder from slipping under the Plaintiff's weight. The Plaintiff also moves, pursuant to CPLR 3216, for an order striking the Third Party Defendant AAA's answer. The Plaintiff contends that AAA has failed to comply with discovery demands and is in violation of multiple discovery related Court orders.2
Defendant NYCHA opposes the motion and argues that it should be denied. Specifically, NYCHA contends that the Plaintiff's motion should be denied as it relates to the Labor Law 240(1) claim, as there are questions of fact as to whether the ladder was defective or inadequately secured. As to the Plaintiff's Labor Law 241(6) claim, NYCHA contends that the Plaintiff does not know the reason why the ladder slipped out, and therefore, cannot establish that the ladder slid because of a violation of the Industrial Code.
NYCHA also moves (motion sequence #11) for an order, pursuant to CPLR 3212, for summary judgment as to the Plaintiff's common-law negligence and Labor Law 200 claims. NYCHA contends that the Plaintiff's purported injuries were the result of the means and methods of the work conducted by the Plaintiff, at the direction of his employer AAA. NYCHA further contends that they cannot be held liable as a matter of law given that NYCHA did not supervise the Plaintiff or control the means and methods of his work. NYCHA also seeks an order pursuant to CPLR 3212 for summary judgment in relation to its own claim for contractualindemnification against AAA. NYCHA contends that its contract with AAA contained an indemnification clause that should be enforced as a matter of law.
Both the Plaintiff and AAA oppose NYCHA's motion. AAA contends that NYCHA's motion should be denied as there are issues of fact as to NYCHA's supervision and control over the worksite. Specifically, AAA contends that NYCHA did not provide sufficient evidence to show that the ladder being used at the Premises on the day in question was not owned by NYCHA. AAA further contends that if the Court does not grant NYCHA's application for summary judgment as it relates to the Plaintiff's negligence and Labor 200 claims, the Court cannot grant NYCHA's application for contractual indemnification, since it would be premature.
AAA also moves (motion sequence #12) for an order, pursuant to CPLR 3212, for summary judgment as to NYCHA's third party claims for common law contribution and indemnification. AAA otherwise contends that it is not liable to NYCHA for contractual indemnification because AAA was the Plaintiff's employer and such a claim is barred by the New York State Workers' Compensation Law, section 11. Further, AAA contends that the Plaintiff did not sustain a grave injury as defined by the Workers' Compensation Law and as a result, NYCHA's third party claim against AAA should be dismissed. NYCHA opposes the motion by AAA. NYCHA contends that the argument asserted by AAA is misplaced as indemnification is available, notwithstanding the Workers' Compensation Law bar, when two parties have provided for it as a part of an agreement.
As an initial matter, the Court denies that aspect of the Plaintiff's motion which seeks to strike AAA's answer for failing to comply with Plaintiff's various discovery requests (CPLR 3126). The moving party on a motion seeking to resolve a discovery dispute has the burden of demonstrating that they have satisfied the requirements of 22 NYCRR §202.7(c). Said rule provides as follows:
The affirmation of the good faith effort to resolve the issues raised by the motion shall indicate the time, place and nature of the consultation and the issues discussed and any resolutions, or shall indicate good cause why no such conferral with counsel for opposing parties was held.
The purpose of the rule requiring an affirmation of good faith is to ensure that the parties seek to resolve disputes prior to the Court's involvement, so as to narrow the focus of the dispute and potentially eliminate the Court's involvement. In the instant proceeding, the Plaintiff has failed to provide any information regarding any prior communication between the parties and what steps were taken to resolve the discovery dispute at issue. This is insufficient and the lack of a good faith showing on the part of the Plaintiff. As a result, the instant motion is procedurally defective and is therefore accordingly denied. See Quiroz v. Beitia, 68 A.d.3d 957, 960, 893 N.Y.S.2d 70, 74 [2nd Dept 2009]; Hegler v. Loews Roosevelt Field Cinemas, Inc., 280 A.D.2d 645, 646, 720 N.Y.S.2d 844 [2nd Dept 2001]; Barnes v. NYNEX, Inc., 274 A.D.2d 368, 711 N.Y.S.2d 893 [2nd Dept 2000].
"Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it 'should only be imposed when there is no doubt as to the absence of triable issues of material fact.'" Kolivas v. Kirchoff, 14 A.D.3d 493 [2nd Dept 2005], citing Andre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131, 320 N.E.2d 853 [1974]. The proponent for the summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate absence of material issues of fact See Sheppard-Mobley v. King, 10 A.D. 3d 70, 74 [2nd Dept 2004], citing Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986]; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985].
Once a moving party has made a prima facie showing of its entitlement to summary judgment, "the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Garnham & Han Real Estate Brokers v. Oppenheimer, 148 A.D.2d 493 [2nd Dept 1989]. Failure to make such a showing requires denial of the motion, regardless of the opposing papers. See Demshick v. Cmty. Hous. Mgmt. Corp., 34 A.D.3d 518, 520, 824 N.Y.S.2d 166, 168 [2nd Dept 2006]; see Menzel v. Plotnick, 202 A.D.2d 558, 558-559, 610 N.Y.S.2d 50 [2nd Dept 1994].
Labor Law §240 (1) is designed to protect employees on construction sites from elevation-related risks. This section provides in pertinent part that:
All contractors and owners and their agents... who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.
"Labor Law §240(1) provides exceptional protection for workers against the special hazards that arise when the work site is either elevated or positioned below the level where materials are being hoisted." Walker v. City of New York, 72 A.D.3d 936, 937, 899 N.Y.S.2d 322, 323 [2nd Dept 2010]. In order to prevail on a Labor Law §240(1) cause of action, "[a} plaintiff must establish that the statute was violated and the violation was a proximate cause of his [or her] injuries" Delahaye v. Saint Anns School, 40 A.D.3d 679, 682 [2d Dept 2007]; see Berg v. Albany Ladder Co., Inc., 10 N.Y.3d 902, 904 [2008]; Robinson v. East Med. Ctr., L.P., 6 N.Y.3d 550 [2006]. "Liability may, therefore, be imposed under the statute only where the 'plaintiff's injuries were the direct consequences of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.'" Nicometi v. Vineyards of Fredonia, LL...
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