Zuniga-Sandino v. 611 W. 46, LLC

Citation2020 NY Slip Op 32565 (U)
Decision Date05 August 2020
Docket NumberIndex No. 157176/2015
PartiesCARLOS ZUNIGA-SANDINO, Plaintiff v. 611 WEST 46, LLC, and AUTOHAUS NYC, LLC, Defendants 611 WEST 46, LLC, Third Party Plaintiff v. AUTOHAUS NYC, LLC, and ALBCO, INC., Third Party Defendants
CourtUnited States State Supreme Court (New York)

2020 NY Slip Op 32565(U)

CARLOS ZUNIGA-SANDINO, Plaintiff
v.
611 WEST 46, LLC, and AUTOHAUS NYC, LLC, Defendants

611 WEST 46, LLC, Third Party Plaintiff
v.
AUTOHAUS NYC, LLC, and ALBCO, INC., Third Party Defendants

Index No. 157176/2015

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

RECEIVED: August 7, 2020
August 5, 2020


NYSCEF DOC. NO. 122

DECISION AND ORDER

LUCY BILLINGS, J.S.C.:

I. BACKGROUND

Plaintiff, an employee of third party defendant Albco, Inc., sues to recover damages for personal injuries sustained April 23, 2015, when he fell through an opening in the floor while performing demolition on premises owned by defendant-third party plaintiff 611 West 46, LLC, and leased by defendant Autohaus NYC,

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LLC, at 609-611 West 46th Street, New York County. Plaintiff moves for summary judgment on defendants' liability under New York Labor Law §§ 240(1) and 241(6). C.P.L.R. § 3212(b) and (e). For the reasons explained below, the court grants plaintiff's motion in part.

II. PLAINTIFF'S MOTION IS NOT PREMATURE.

C.P.L.R. § 3212(f) permits the court to deny summary judgment when "facts essential to justify opposition may exist but cannot then be stated." Jackson v. Hunter Roberts Constr. Group, LLC, 161 A.D.3d 666, 667 (1st Dep't 2018); Figueroa v. City of New York, 126 A.D.3d 438, 439 (1st Dep't 2015). See Baghban v. City of New York, 140 A.D.3d 586, 586 (1st Dep't 2016). To withstand summary judgment on this ground, defendants must demonstrate that facts necessary to oppose plaintiff's motion for summary judgment are exclusively within his knowledge and control, and further disclosure may lead to relevant evidence that will defeat the motion. C.P.L.R. § 3212(f); Jackson v. Hunter Roberts Constr. Group, LLC, 161 A.D.3d at 667; Stern v. Starwood Hotels & Resorts Worldwide, Inc., 149 A.D.3d 496, 491 (1st Dep't 2017); Solano v. Skanska USA Civ. Northeast Inc., 148 A.D.3d 619, 620 (1st Dep't 2017).

Defendants point out that Albco, plaintiff's employer, and

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Marvin Zuniga, plaintiff's brother and an eyewitness, have not been deposed, but fail to show that the witnesses are exclusively in plaintiff's control. Even if plaintiff's brother might be considered within plaintiff's control, defendants further fail to specify what information either of these witnesses' depositions would reveal. Erkan v. McDonald's Corp., 146 A.D.3d 466, 467 (1st Dep't 2017); Debevoise & Plimpton LLP v. Candlewood Timber Group LLC, 102 A.D.3d 571, (1st Dep't 2013); Global Mins. & Metals Corp. v. Holme, 35 A.D.3d 93, 103 (1st Dep't 2006). See Jackson v. Hunter Roberts Constr. Group, LLC, 161 A.D.3d at 667; Hoffman v. Wyckoff Hgts. Med. Ctr., 129 A.D.3d 526, 526 (1st Dep't 2015).

611 West 46 contends that a witness from Albco would reveal why plaintiff did not report his injury until two weeks afterward, but relies on a report presented by Autohaus that is unauthenticated and for which no witness lays a foundation for admissibility as a business record or other exception to the rule against hearsay. C.P.L.R. § 4518(a); People v. Bell, 153 A.D.3d 401, 412 (1st Dep't 2017); Wells Fargo Bank, N.A. v. Jones, 139 A.D.3d 520, 521 (1st Dep't 2016); Matter of Ramel Anthony S., 124 A.D.3d 445, 445 (1st Dep't 2015); Taylor v. One Bryant Park, LLC, 94 A.D.3d 415, 415 (1st Dep't 2012). See Viviane Etienne Med.

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Care, P.C. v. Country-Wide Ins. Co., 25 N.Y.3d 498, 508 (2015); People v. Rodriguez, 153 A.D.3d 235, 244 (1st Dep't 2017); Barkley v. Plaza Realty Invs. Inc., 149 A.D.3d 74, 79 (1st Dep't 2017); Weicht v. City of New York, 148 A.D.3d 551, 552 (1st Dep't 2017). In reply, plaintiff also presents an email dated February 6, 2020, from Albco's attorney indicating that Albco is out of business and that the attorney could not locate an Albco witness.

III. AUTOHAUS'S LIABILITY UNDER LABOR LAW §§ 240(1) AND 241(6)

As a tenant, Autohaus is liable under Labor Law §§ 240(1) and 241(6) if it hired Albco. Reyes v. Bruckner Plaza Shopping Ctr. LLC, 173 A.D.3d 570, 571 (1st Dep't 2019); Nava-Juarez v. Mosholu Fieldston Realty, LLC, 167 A.D.3d 511, 513 (1st Dep't 2018); Gordon v. City of New York, 164 A.D.3d 1110, 1111 (1st Dep't 2018); Karwowski v. 1407 Broadway Real Estate, LLC, 160 A.D.3d 82, 85 (1st Dep't 2018). While Gary...

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