White v. Vill. of Port Chester

• Decision Date: 21 February 2012
• Parties: Garry M. WHITE, et al., appellants, v. VILLAGE OF PORT CHESTER, respondents, et al., defendants(and a third-party action).
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01456
92 A.D.3d 872
940 N.Y.S.2d 94

Garry M. WHITE, et al., appellants,
v.
VILLAGE OF PORT CHESTER, respondents, et al., defendants(and a third-party action).

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

Feb. 21, 2012.

92 A.D.3d 873]

[940 N.Y.S.2d 96

Separate motions by the defendants Etre Associates, Ltd., ELQ Industries, and B.M.B. Leasing Corporation, and the defendants Village of Port Chester, Port Chester IDA, G & S Investors, G & S Port Chester, LLC, G & S Investors/Jersey City, L.P., G & S Investors/Jersey City II, L.P., G & S Investors/Willow Park, L.P., Willow Park Enterprises, Inc., HR Construction and Renovations, Inc., and Farmingdale Maintenance Services, Inc., for leave to reargue an appeal from an order of the Supreme Court, Westchester County, entered January 28, 2010, which was determined by a decision and order of this Court dated May 10, 2011.Upon the papers filed in support of the motions and the papers filed in opposition thereto, it isORDERED that the motions are granted and, upon reargument, the decision and order of this Court dated May 10, 2011 ( White v. Village of Port Chester, 84 A.D.3d 946, 922 N.Y.S.2d 534) is recalled and vacated, and the following decision and order is substituted therefor:Rutberg & Associates, P.C. (Pollack, Pollack, Isaac & DeCicco, New York, N.Y. [Brian J. Isaac and Michael H. Zhu], of counsel), for appellants.

The McDonough Law Firm, LLP, New Rochelle, N.Y. (Jeffrey S. Peske of counsel), for respondents Village of Port Chester, Port Chester IDA, G & S Investors, G & S Port Chester, LLC, G & S Investors/Jersey City, L.P., G & S Investors/Jersey City II, L.P., G & S Investors/Willow Park, L.P., Willow Park Enterprises, Inc., HR Construction and Renovations, Inc., and Farmingdale Maintenance Services, Inc.

LeClair Ryan, New York, N.Y. (Timothy E. Shanley of counsel), for respondents Etre Associates, Ltd., ELQ Industries, and B.M.B. Leasing Corporation.Traub Lieberman Straus & Shrewsberry, LLP, Hawthorne, N.Y. (Jeffrey Briem of counsel), for respondent March Associates, Inc.WILLIAM F. MASTRO, A.P.J., ANITA R. FLORIO, ARIEL E. BELEN and CHERYL E. CHAMBERS, JJ.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Loehr, J.), entered January 28, 2010, as granted those branches of the motion of the defendants Village of Port Chester, Port Chester IDA, G & S Investors, G & S Port Chester, LLC, G & S Investors/Jersey City, L.P., G & S Investors/Jersey City II, L.P., G & S Investors/Willow Park, L.P., Willow Park Enterprises, Inc., HR Construction and Renovations, Inc., and Farmingdale Maintenance Services, Inc., which were for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action and so much of the Labor Law § 241(6) cause of action as was predicated upon an alleged violation of 12 NYCRR 23–1.7(e)(2) insofar as asserted against them, granted those branches of the separate motion of the defendant March Associates, Inc., which were for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action and so much of the Labor Law § 241(6) cause of action as was predicated upon an alleged violation of 12 NYCRR 23–1.7(e)(2) insofar as asserted against it, granted those branches of the separate motion of the defendants Etre Associates, Ltd., ELQ Industries, and B.M.B Leasing Corporation which were for summary judgment dismissing the

[940 N.Y.S.2d 97]

Labor Law § 200 and common-law negligence causes of action insofar as asserted against the defendant Etre Associates, Ltd., and so much of the Labor Law § 241(6) cause of action as was predicated upon an alleged violation of 12 NYCRR 23–1.7(e)(2) insofar as asserted against them, granted [92 A.D.3d 874] that branch of the separate motion of the defendant Orange County Ironworks, LLC, which was for summary judgment dismissing so much of the Labor Law § 241(6) cause of action as was predicated upon an alleged violation of 12 NYCRR 23–1.7(e)(2) insofar as asserted against it, and granted that branch of the separate motion of the defendant A.G. Construction Corporation which was for summary judgment dismissing so much of the Labor Law § 241(6) cause of action as was predicated upon an alleged violation of 12 NYCRR 23–1.7(e)(2) insofar as asserted against it.

ORDERED that the order is modified, on the law, (1) by deleting the provisions thereof granting those branches of the motion of the defendants Village of Port Chester, Port Chester IDA, G & S Investors, G & S Port Chester, LLC, G & S Investors/Jersey City, L.P., G & S Investors/Jersey City II, L.P., G & S Investors/Willow Park, L.P., Willow Park Enterprises, Inc., HR Construction and Renovations, Inc., and Farmingdale Maintenance Services, Inc., which were for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action and so much of the Labor Law § 241(6) cause of action as was predicated upon an alleged violation of...