Zhigue v. Lexington Landmark Props., LLC

• Decision Date: 20 May 2020
• Docket Number: Index No. 823/13,2017–01812
• Citation: 124 N.Y.S.3d 391,183 A.D.3d 854
• Parties: David ZHIGUE, respondent-appellant, et al., plaintiffs, v. LEXINGTON LANDMARK PROPERTIES, LLC, et al., appellants-Respondents (and a third-Party action).
• Court: New York Supreme Court — Appellate Division

183 A.D.3d 854

124 N.Y.S.3d 391

David ZHIGUE, respondent-appellant, et al., plaintiffs,

v. LEXINGTON LANDMARK PROPERTIES, LLC, et al., appellants-Respondents(and a third-Party action).

2017–01812

Index No. 823/13

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

Argued - November 22, 2019

May 20, 2020

Ahmuty, Demers & McManus, Albertson, N.Y. (Nicholas M. Cardascia, Glenn A. Kaminska, and Samuel P. Quatromoni of counsel), for appellant-respondent Lexington Landmark Properties, LLC.

McMahon, Martine & Gallagher, LLP, Brooklyn, N.Y. (Patrick W. Brophy of counsel), for appellant-respondent Reidy Contracting Group.

Baxter Smith & Shapiro, P.C., Hicksville, N.Y. (Sim R. Shapiro of counsel), for appellant-respondent Dover Street Market New York, LLC.

Morgan Levine & Dolan, P.C., New York, N.Y. (Amit Sondhi of counsel), for respondent-appellant.

Gorayeb & Associates, P.C., New York, N.Y. (Mark H. Edwards of counsel), for plaintiffs Manuel Japa and Segundo Japa.

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, BETSY BARROS, JJ.

DECISION & ORDER

In a consolidated action to recover damages for personal injuries, the defendants, Lexington Landmark Properties, LLC, Reidy Contracting Group, and Dover Street Market New York, LLC, separately appeal, and the plaintiff David Zhigue cross-appeals, from an order of the Supreme Court, Kings County (Richard Velasquez, J.), dated January 20, 2017. The order, insofar as appealed from by the defendant Lexington Landmark Properties, LLC, granted that branch of the motion of the plaintiff David Zhigue which was for summary judgment on the issue of liability on his cause of action to recover damages for negligence insofar as asserted against it. The order, insofar as appealed from by the defendant Reidy Contracting Group, in effect, searched the record and awarded summary judgment to the plaintiff David Zhigue on the issue of liability on his cause of action to recover damages for negligence insofar as asserted against it. The order, insofar as appealed from by the defendant Dover Street Market New York, LLC, in effect, searched the record and awarded summary judgment to the plaintiff David Zhigue on the issue of liability on his cause of action to recover damages for negligence insofar as asserted against it, and denied that branch of its cross motion which was for summary judgment dismissing his amended complaint insofar as asserted against it. The order, insofar as cross-appealed from by the plaintiff David Zhigue, denied those branches of his motion which were for summary judgment on the issue of liability on his causes of action to recover damages for violations of Labor Law §§ 240(1) and 241(6).

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof granting that branch of the motion of the plaintiff David Zhigue which was for summary judgment on the issue of liability on his cause of action to recover damages for negligence insofar as asserted against the defendant Lexington Landmark Properties, LLC, and substituting therefor a provision denying that branch of the motion, and (2) by deleting the provisions thereof which, in effect, searched the record and awarded summary judgment to the plaintiff David Zhigue on the issue of liability on his causes of action to recover damages for negligence insofar as asserted against the defendants Reidy Contracting Group and Dover Street Market New York, LLC; as so modified, the order is affirmed insofar as reviewed, with one bill of costs payable by the plaintiff David Zhigue to the defendants.

The plaintiff David Zhigue (hereinafter the plaintiff), a laborer employed by the third-party defendant Vanquish Contracting Corp. (hereinafter Vanquish), commenced this action to recover damages for personal injuries he allegedly sustained while performing subcontract work at a building owned by the defendant Lexington Landmark Properties, LLC (hereinafter Lexington), and leased to the defendant Dover Street Market New York, LLC (hereinafter Dover). Dover retained the defendant Reidy Contracting Group (hereinafter Reidy) to provide demolition work on the building, and Reidy subcontracted the work to Vanquish. The plaintiff allegedly sustained injuries when a portion of a decorative plaster ceiling above the area where the plaintiff was working fell, causing a scaffold under which the plaintiff was standing to collapse, crushing him. Insofar as relevant here, Lexington, Dover, and Reidy separately joined issue and denied the material allegations of the plaintiff's amended complaint.

Before discovery was complete, the plaintiff moved for summary judgment on the issue of liability on his cause of action to recover damages for negligence insofar as asserted against Lexington, and on his causes of action to recover damages for violations of Labor Law §§ 240(1) and 241(6) asserted against all three defendants. The defendants separately opposed the plaintiff's motion, and Dover cross-moved for summary judgment dismissing the complaint insofar as asserted against it. In an order dated January 20, 2017, the Supreme Court granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability on his cause of action to recover damages for negligence insofar as asserted against Lexington, and denied those branches of his motion which were for summary judgment on the issue of liability on his causes of action to recover damages for violations of Labor Law §§ 240(1) and 241(6) asserted against all three defendants. The court also, in effect, searched the record and awarded summary judgment to ...