Hamilton v. 211 Schermerhorn Dev.

1

2023 NY Slip Op 32581(U)

ANTON HAMILTON, Plaintiff, v. 211 SCHERMERHORN DEVELOPMENT, LLC, and OESTREICHER CONSTRUCTION CORPORATION, Defendants.

211 SCHERMERHORN DEVELOPMENT, LLC, AND OESTREICHER CONSTRUCTION CORPORATION, Third-Party Plaintiffs, v. LOGOZZO BROS. CONSTRUCTION CORP., Third-Party Defendant.

211 SCHERMERHORN DEVELOPMENT, LLC, OESTREICHER CONSTRUCTION CORPORATION, Second Third-Party Plaintiffs, v. M & M CONTROL WIRING & ELECTRICAL, INC., Second Third-Party Defendant.

Index No. 515927/2018

Supreme Court, Kings County

July 14, 2023

Unpublished Opinion

At an IAS Term, Part 70 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 14^th day of July, 2023.

PRESENT: HON. WAVNY TOUSSAINT, Justice.

DECISION AND ORDER

Wavny Toussaint, Judge

The following e-filed papers read herein:

NYSCEF Doc. Nos.:

Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations)

153-193

Opposing Affidavits (Affirmations)

198-230

Reply Affidavits (Affirmations)

232-235

Upon the foregoing papers, second third-party defendant M&M Control Wiring & Electrical, Inc. ("M&M") moves for an order, pursuant to CPLR 3212, granting it summary judgment on the issue of liability dismissing all claims and cross claims against it (Motion Seq. 8). Third-party defendant Logozzo Bros. Construction Corp. ("Logozzo") moves for an order, pursuant to CPLR 3211 and/or 3212, granting summary judgment on its cross claims against M&M and dismissing any and all claims third-party claims, and cross claims asserted against it (Motion Seq. 9).

Background

On May 14, 2018, plaintiff allegedly suffered injuries when he tripped/slipped and fell while working in the subbasement of a building under construction, located at 211 Schermerhorn Street, Brooklyn, New York. Defendant/third-party plaintiff/second third-party plaintiff 211 Schermerhorn Development, LLC ("211 Schermerhorn") was the owner of the subject building; defendant/third-party plaintiff/second third-party plaintiff Oestreicher Construction Corporation ("Oestreicher") was the general contractor; third-party defendant Logozzo was a concrete superstructure subcontractor and plaintiffs employer; and second third-party defendant M&M was an electrical subcontractor.

Plaintiff was hired as a construction helper, whose duties and responsibilities included cleaning up around the construction site and taking things from floor to floor.^[1] On the day of the accident, plaintiff was assigned a partner to clean the subbasement and to take down the number five jacks so they could be brought to an upper floor.^[2] Plaintiffs supervisor told the plaintiff and about seven other workers to follow him down a ladder to the subbasement.^[3] Upon reaching the subbasement, plaintiff described it as a large, pitch-black area with no lighting, with concrete columns, no walls or windows, and accessible by a wooden stair ladder.^[4] The only light came from his supervisor's small flashlight.^[5] After removing a number five jack, plaintiff and the other workers were instructed to put the jack to the side so they could haul it up on the ladder.^[6] Plaintiff and his partner attempted to place it onto a piece of plywood that was next to the base of the ladder. When the plaintiff placed his right foot onto what he thought was the plywood,^[7] he slipped and fell backwards, landing on his left leg, which hit a rock. He also hit his face on a boulder/rock and his whole left side of the body hit the ground.^[8] Thereafter, the supervisor and his co-workers helped the plaintiff get up to the top of the ladder,^[9] where the plaintiff was subsequently taken to the hospital by a friend.^[10]

Procedural History

On August 6, 2018, plaintiff commenced this action against defendants 211 Schermerhorn and Oestreicher asserting violations of Labor law §§ 200, 240,241 and Rule 23 of the Industrial Code of the State of New York. On January 14, 2019, Oestreicher filed a third-party action against Logozzo asserting claims for contractual indemnification breach of contract for failure to procure insurance, contribution, and common law indemnification. On January 16, 2019, issue was joined when 211 Schermerhorn filed an answer to the complaint. On March 5, 2019, 211 Schermerhorn filed a third-party action against Logozzo asserting the same claims as Oestreicher against Logozzo. Thereafter, issue was joined when Logozzo filed an answer to Oestreicher's third-party complaint on March 21, 2019 and 211 Schermerhorn's third-party complaint on March 25, 2019. On September 11, 2020, defendants 211 Schermerhorn and Oestreicher commenced a second third-party action against M&M asserting the same third-party claims. On December 29, 2020, issue was joined when M&M filed an answer to the second third-party complaint and asserted counterclaims of contractual indemnification, contribution, and common law indemnification against 211 Schermerhorn, Oestreicher and Logozzo. On March 9, 2021, Logozzo filed an answer to M&M's counterclaims and asserted crossclaims for common law contribution and indemnification against M&M. On November 1, 2022, the plaintiff filed his note of issue.

Timeliness of Logozzo's Motion and 211 Schermerhorn and Oestreicher's Opposition

M&M's motion was filed on December 29, 2022 and Logozzo's motion was not filed until January 3, 2023, which is untimely under Kings County Supreme Court Uniform Civil Term Rules, Part C, Rule 6, as it was made more than 60 days after the filing of a note of issue (Goldin v New York & Presbyt. Hosp., 112 A.D.3d 578, 579 [2d Dept 2013]; CPLR 3212 [a]). Moreover, there has been no explanation provided for its delay. However, "[a]n untimely motion or cross motion for summary judgment may be considered by the court where a timely motion was made on nearly identical grounds" (Sikorjak v City of New York, 168 A.D.3d 778, 780 [2d Dep't 2019]). The Court notes that Logozzo raised nearly identical issues as M&M's timely motion, including that it was not the proximate cause of the accident, did not have actual or constructive notice of a dangerous condition, and that plaintiffs Labor Law §§ 240, 241 and 200 causes of action should be dismissed, therefore, the Court accepts Logozzo's motion (Id.).

According to the Court's order dated February 9, 2023, opposition was due on or before March 15, 2023. While M&M and Logozzo are both correct that 211 Schermerhorn and Oestreicher's opposition was untimely filed on March 23, 2023, courts have the discretion in considering a defendant's untimely opposition papers (Shillings v City of New York, 173 A.D.3d 799, 800 [2d Dep't 2019]). Moreover, there is no prejudice to the other parties, as they all had an opportunity to respond (Bakare v Kakouras, 110 A.D.3d 838, 839 [2d Dep't 2013]). Accordingly, the opposition papers are permitted.

M&M's Motion for Summary Judgment

M&M contends that plaintiffs Labor Law claims and all third-party claims should be dismissed because it did not owe a duty of care to the plaintiff, did not supervise, or control the performance of the work that allegedly brought about plaintiffs injury, and the accident did not trigger any contract indemnification. Moreover, M&M contends that it had no authority to compel the owner, the general contractor, or the plaintiff to take any safety precautions, as M&M lacked a necessary degree of control, and even if it did have I a legal duty, plaintiffs employer, Logozzo's act in sending plaintiff to work in the dark subbasement constituted an intervening or superseding cause absolving M&M of any liability. M&M asserts that it did not create a dangerous condition, had no legal duty to stand guard over the temporary lights in the subbasement once it installed them, did not turn off or disconnect the temporary lights in the subbasement prior to the accident, and that it is not M&M's responsibility if the temporary lights may have been damaged before the accident or turned off by others. Additionally, M&M contends that there is no privity of contract between it and Logozzo, and therefore any claims asserted by Logozzo against M&M should be dismissed.

In support of its motion, M&M submits, inter alia, a copy of Avishai Matuszewicz's ("Avi" or "Matuszewicz") affidavit of merit; and a copy of an email dated May 14, 2018 from Oestreicher supervisor Richard Hosey. The Matuszewicz affidavit states that he is a principal of M&M and has personal knowledge of the jobsite at the subject premises. It goes on to state that M&M's scope of work included installing temporary lights on all floors, including the subbasement. The temporary lighting installed in the subbasement consisted of strings of bulbs, wherein each bulb was protected by a cage. The Matuszewicz affidavit provides that "[o]n several occasions prior to the date of accident, the temporary lighting in the subbasement was damaged by workers for another subcontractor while they were removing temporary support beams," and "M&M was called upon by general contractor Oestreicher to repair the temporary lighting." The May 14, 2018 email was sent after the accident by "Rich Hosey" of Oestreicher and addressed to Avishai Matuszewicz requesting to drop off of extra bulbs and cages at the subject premises to replace the missing and broken ones.

Plaintiffs Opposition to M&M's Motion

In response, plaintiff opposes and argues that M&M failed to meet its prima facie burden by failing to establish that it did not owe plaintiff a duty of care. Plaintiff further argues that M&M was the proximate cause of his injuries was an agent of the owner/general contractor and that the order by plaintiffs employer to work in the dark subbasement did not break...