Kauffman v. Turner Constr. Co.

195 A.D.3d 1003

150 N.Y.S.3d 321

Craig KAUFFMAN, appellant,

v.TURNER CONSTRUCTION COMPANY, respondent.

2018–09036, 2018–11345

Index No. 703539/13

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

Argued—May 3, 2021

June 30, 2021

Dell & Dean, PLLC (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn and Lauren E. Bryant ], of counsel), for appellant.

Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, N.Y. (Patrick J. Lawless and I. Elie Herman of counsel), for respondent.

HECTOR D. LASALLE, P.J., SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Robert J. McDonald, J.), dated June 11, 2018, and (2) a clerk's judgment of the same court dated August 22, 2018. The order granted the defendant's motion for summary judgment dismissing the complaint. The clerk's judgment, upon the order, is in favor of the defendant and against the plaintiff dismissing the complaint.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the clerk's judgment is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the defendant.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the clerk's judgment (see CPLR 5501[a][1] ).

In 2012, the plaintiff was employed as a labor shop steward with nonparty Pirraglia Contracting, Inc., and was working at the construction site of a new police academy in College Point. Part of the plaintiff's responsibilities included operating a masonry table saw and a chopping gun. The plaintiff commenced this action to recover damages for personal injuries, alleging, among other things, that, due to the negligence of the defendant, which he claimed was one of the entities responsible for supervising the construction site, he suffered hearing loss while operating that equipment without proper protection. The plaintiff alleged violations of Labor Law §§ 200 and 241(6) as well as common-law negligence.

After issue was joined, the defendant moved for summary judgment dismissing the complaint. The plaintiff opposed the motion upon the ground that it was premature, and cross-moved for leave to amend the bill of particulars to include allegations that the defendant was vicariously liable as a partner in the joint venture that was the general contractor at the construction site where the plaintiff allegedly was injured. The Supreme Court denied the motion as premature, and denied the cross motion on the ground that the plaintiff failed to explain his delay in seeking to amend the bill of particulars.

A note of issue was filed in April 2015 prior to the completion of discovery. However, we take judicial notice (see Matter of Mondschein v. Mondschein, 175 A.D.3d 688, 690, 109 N.Y.S.3d 81 ) of an order of the court dated February 15, 2018, which vacated the note of issue due to outstanding discovery. On February 28, 2018, the plaintiff served an amended bill of particulars alleging that the defendant was vicariously liable as a partner in the joint venture.

Thereafter, the defendant moved for summary judgment dismissing the complaint, alleging, among other things, that it was not a proper party to the action because the joint venture was a separate and distinct entity. The plaintiff opposed the motion, arguing that the defendant was vicariously liable as a partner to the joint venture. In an order dated June 11, 2018, the Supreme Court granted the defendant's motion upon the ground that the defendant was not a proper party to the action. The court did not reach the defendant's further contentions. Thereafter, a clerk's judgment was entered in favor of the defendant and against the plaintiff dismissing the complaint. The plaintiff appeals.

Initially, once the Supreme Court issued its February 15, 2018 order which vacated the note of issue, the action was restored to the pre-note-of-issue discovery stage (see Ryskin v. Corniel, 181 A.D.3d 742, 743, 120 N.Y.S.3d 420 ). Accordingly, pursuant to CPLR 3042 the plaintiff was entitled to amend the bill of particulars as of course without seeking leave of the court (see CPLR 3042[b] ; Leach v. N. Shore Univ. Hosp. at Forest Hills, 13 A.D.3d 415, 416, 787 N.Y.S.2d 65 ).

The amended bill of particulars alleged that the defendant was vicariously liable as a partner in the joint venture that was the general contractor at the jobsite where the plaintiff was allegedly injured. Therefore, contrary to the Supreme Court's determination, the defendant was not entitled to summary judgment based upon the plaintiff's failure to sufficiently plead its liability (see Cunningham v. Mary Agnes Manor Mgt., L.L.C., 188 A.D.3d 1560, 1561–1562, 136 N.Y.S.3d 584 ; cf. McGrath v. United Hosp., 167 A.D.2d 518, 519, 562 N.Y.S.2d 193 ).

Although the Supreme Court did not reach the remaining branches of the defendant's motion for summary judgment dismissing the complaint, we reach those issues as an alternative ground for affirmance (see Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 544–546, 470 N.Y.S.2d 564, 458 N.E.2d 1241 ; Astoria Landing, Inc. v. New York City Council, 186 A.D.3d 1593, 1595, 129 N.Y.S.3d 844 ).

" Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed" ( Lopez v. New York City Dept. of Envtl. Protection, 123 A.D.3d 982, 983, 999 N.Y.S.2d 848 ; see Simmons v. City of New York, 165 A.D.3d 725, 728–729, 85 N.Y.S.3d 462 ). "As a predicate to a section 241(6) cause of action, a plaintiff must allege a violation of a concrete specification promulgated by the Commissioner of the Department of Labor in the Industrial Code" ( Simmons v. City of New York, 165 A.D.3d at 729, 85 N.Y.S.3d 462 ; see Misicki v. Caradonna, 12 N.Y.3d 511, 515, 882 N.Y.S.2d 375, 909 N.E.2d 1213 ; Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 505, 601 N.Y.S.2d 49, 618 N.E.2d 82 ).

Here, the defendant established its prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 241(6) cause of action by its submissions which demonstrated that the cited regulations which formed the basis of the plaintiff's cause of action either were inapplicable under the circumstances or lacked the specificity required to qualify for predicate liability under that statute (see generally Simmons v. City of New York, 165 A.D.3d at 729, 85 N.Y.S.3d 462 ). In opposition, the plaintiff failed to raise a triable issue of fact as to this cause of action.

"As has been often noted, Labor Law § 200 is a codification of the common-law duty of property owners and general contractors to provide workers with a safe place to work" ( Chowdhury v. Rodriguez, 57 A.D.3d 121, 127–128, 867 N.Y.S.2d 123 ). "Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in...