Singh v. 1221 Ave. Holdings, LLC

• Decision Date: 23 April 2015
• Docket Number: 14917, 106146/09.
• Citation: 8 N.Y.S.3d 129,127 A.D.3d 607,2015 N.Y. Slip Op. 03409
• Parties: Surinder SINGH, et al., Plaintiffs–Appellants, v. 1221 AVENUE HOLDINGS, LLC, et al., Defendants–Respondents, Raised Computer Floors, Inc., Defendant–Appellant. L&K Partners, Inc., et al., Third–Party Plaintiffs–Respondents, v. Campbell and Dawes, Ltd., Third–Party Defendant–Respondent, Raised Computer Floors, Inc., Third–Party Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

127 A.D.3d 607

8 N.Y.S.3d 129

2015 N.Y. Slip Op. 03409

Surinder SINGH, et al., Plaintiffs–Appellants

v.1221 AVENUE HOLDINGS, LLC, et al., Defendants–Respondents

Raised Computer Floors, Inc., Defendant–Appellant.

L&K Partners, Inc., et al., Third–Party Plaintiffs–Respondents

v.Campbell and Dawes, Ltd., Third–Party Defendant–Respondent

Raised Computer Floors, Inc., Third–Party Defendant–Appellant.

14917, 106146/09.

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

April 23, 2015.

The Feld Law Firm, P.C., New York (John G. Korman of counsel), for Surinder Singh and Rano Singh, appellants.

Gambeski & Frum, Elmsford (Malcolm Stewart of counsel), for Raised Computer Floors, Inc., appellant.

Boeggeman, George & Corde, P.C., White Plains (Karen A. Jockimo of counsel), for 1221 Avenue Holdings, LLC and L&K Partners, Inc., respondents.

Gallo Vitucci & Klar, LLP, New York (Kimberly A. Ricciardi of counsel), for Morgan Stanley & Co., Incorporated, respondent.

Fabiani Cohen & Hall, LLP, New York (Antonino Lugara of counsel), for Campbell and Dawes, Ltd., respondent.

SWEENY, J.P., ANDRIAS, MANZANET–DANIELS, CLARK, JJ.

Opinion

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered on or about February 10, 2014, which, insofar as appealed from as limited by the briefs, granted the motions of defendants 1221 Avenue Holdings, LLC, Morgan Stanley & Co., Inc. and L&K Partners, Inc. for summary judgment dismissing the Labor Law § 200 and common-law negligence claims as against them, granted all defendants' motions for summary judgment dismissing the Labor Law § 241(6) claim predicated upon Industrial Code (12 NYCRR) § 23–1.7(e)(1) and (2), and denied the motion of defendant Raised Computer Floors, Inc. (RCF) for summary judgment dismissing the Labor Law § 200 and common-law negligence claims as against it, unanimously modified, on the law, to the extent of reinstating plaintiff's Labor Law § 241(6) claim based upon 12 NYCRR 23–1.7(e) (1), and dismissing the Labor Law § 200 and common-law negligence claims as against RCF, and otherwise affirmed, without costs.

Plaintiff's Labor Law § 241(6) claim predicated upon an alleged violation of 12 NYCRR 23–1.7(e)(2) was properly dismissed since the screw over which plaintiff tripped was an integral part of the raised tile floor system and other work performed on the renovation project (see Zieris v. City of New York, 93 A.D.3d 479, 940 N.Y.S.2d 72 [1st Dept.2012] ). Although the court properly found that plaintiff raised a triable issue as to whether his accident occurred in a “passageway” or an open area, it erred in dismissing the section 23–1.7(e)(1) claim on the ground that the screw constituted an integral part of the work being performed. Dismissal on such ground is warranted only to claims under section 23–1.7(e)(2) (see e.g. Thomas v. Goldman Sachs Headquarters, LLC, 109 A.D.3d 421, 970 N.Y.S.2d 224 [1st Dept.2013] ).

The motion court properly dismissed plaintiff's Labor Law § 200 and common-law negligence claims as against Morgan Stanley, 1221 Avenue Holdings, and L&K Partners. Contrary to plaintiff's contention, the screw, which protruded about one inch above the floor tile, was not the result of an inherently dangerous condition at the work site, but rather, was due to the means and methods of the contracted work (see Dalanna v. City of New York, 308 A.D.2d 400, 764 N.Y.S.2d 429 [1st Dept.2003] ). Thus, the determination to be made is whether defendants exercised supervision and control over plaintiff's work (see Alonzo v. Safe Harbors of the Hudson Hous. Dev. Fund Co., Inc., 104 A.D.3d 446, 449, 961 N.Y.S.2d 91 [1st Dept.2013] ), and here, there was a lack of evidence that these defendants exercised such supervision and control. Plaintiffs' argument that defendants had the authority to stop the work and...