Wittenberg v. Long Island Power Auth.

207 N.Y.S.3d 145

225 A.D.3d 730

William WITTENBERG, plaintiff-appellant-respondent,

v.LONG ISLAND POWER AUTHORITY, et al., defendants third party-plaintiffs-respondents-appellants;

Haugland Energy Group, LLC, third-party defendant-respondent.

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

Argued—October 6, 2023

March 13, 2024

Sullivan Papain Block McGrath Coffinas & Cannavo P.C., Garden City, NY (Stephen C. Glasser and Christopher J. Delli-Carpini of counsel), for plaintiff—appellant-respondent.

Hannum Feretic Prendergast & Merlino, LLC, New York, NY (Adam S. Oustatcher and Sean M. Prendergast of counsel), for defendants third-party plaintiffs-respondents-appellants.

Fabiani Cohen & Hall, LLP, New York, NY (Kevin B. Pollak, Allison A. Snyder, and Diane Toner of counsel), for third-party defendant-respondent.

VALERIE BRATHWAITE NELSON, J.P., CHERYL E. CHAMBERS, BARRY E. WARHIT, JANICE A. TAYLOR, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, and the defendants third-party plaintiffs cross-appeal, from (1) an order of the Supreme Court, Nassau County (Thomas Feinman, J.), entered January 9, 2020, and (2) a judgment of the same court entered January 10, 2020. The order, insofar as appealed from, granted that branch of the third-party defendant’s motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6), and granted that branch of the defendants third-party plaintiffs’ cross-motion which was for summary judgment dismissing the complaint. The order, insofar as cross-appealed from, granted that branch of the third-party defendant’s motion which was for summary judgment dismissing the cause of action in the third-party complaint for contractual indemnification, and, in effect, denied that branch of the defendants third-party plaintiffs’ cross-motion which was for summary judgment on the cause of action in the third-party complaint for contractual indemnification. The judgment, insofar as appealed from, upon the order, is in favor of the defendants third-party plaintiffs and against the plaintiff dismissing the complaint. The judgment, insofar as cross-appealed from by the defendants third-party plaintiffs, upon the order, is in favor of the third-party defendant and against the defendants third-party plaintiffs dismissing the cause of action in the third-party complaint for contractual indemnification.

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

ORDERED that the judgment is reversed insofar as appealed and cross-appealed from, on the law, those branches of the third-party defendant’s motion which were for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6) and the cause of action in the third-party complaint for contractual indemnification are denied, that branch of the defendants third-party plaintiffs’ cross-motion which was for summary judgment dismissing the complaint is denied, the complaint and the cause of action in the third-party complaint for contractual indemnification are reinstated, and the order entered January 9, 2020, is modified accordingly; and it is further,

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

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

The plaintiff, who was employed as a journeyman lineman by the third-party defendant, Haugland Energy Group, LLC (hereinafter Haugland), allegedly was injured in an explosion while working on electrical lines from the aerial bucket of a truck. At the time of the accident, the plaintiff allegedly was working on the electrical lines pursuant to a contract between Haugland and the defendants third-party plaintiffs, Long Island Power Authority, Public Service Enterprise Group, Inc., and PSEG Long Island, LLC (hereinafter collectively the defendants), The plaintiff thereafter commenced this action against the defendants alleging, inter alia, common-law negligence and violations of Labor Law §§ 200 and 241(6). The defendants in turn commenced a third-party action against Haugland seeking, among other things, contractual indemnification.

Pursuant to an order entered February 8, 2019, motions for summary judgment were to be made within 90 days of the filing of the note of issue. On May 6, 2019, the plaintiff filed a note of issue. On August 5, 2019, Haugland moved for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6) and the third-party complaint. On September 20, 2019, the defendants cross-moved for summary judgment dismissing the complaint and on the cause of action in the third-party complaint for contractual indemnification. In an order entered January 9, 2020, the Supreme Court granted Haugland’s motion and that branch of the defendants’ cross-motion which was for summary judgment dismissing the complaint. The court, in effect, denied that branch of the defendants’ cross-motion which was for summary judgment on the cause of action in the third-party complaint for contractual indemnification. A judgment was subsequently entered in favor of the defendants and against the plaintiff dismissing the complaint, and in favor of Haugland and against the defendants dismissing the third-party complaint. The plaintiff appeals, and the defendants cross-appeal.

[1, 2] "Pursuant to CPLR 3212(a), courts have ‘considerable discretion to fix a deadline for filing summary judgment motions,’ so long as the deadline is not ‘earlier than 30 days after filing the note of issue or (unless set by the court) later than 120 days after the filing of the note of issue, except with leave of court on good cause shown’ " (Kuyenova v. R & M Supermarket, 215 A.D.3d 940, 941, 187 N.Y.S.3d 321, quoting Brill v. City of New York, 2 N.Y.3d 648, 651, 781 N.Y.S.2d 261, 814 N.E.2d 431). Absent a "satisfactory explanation for the untimeliness," constituting good cause for the delay, an untimely summary judgment motion must be denied without consideration of the merits (Brill v. City of New York, 2 N.Y.3d at 652, 781 N.Y.S.2d 261, 814 N.E.2d 431; see Kuyenova v. R & M Supermarket, 215 A.D.3d at 941, 187 N.Y.S.3d 321; Navarro v. Damac Realty, LLC, 202 A.D.3d 1100, 1101, 159 N.Y.S.3d 887). 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, 91 N.Y.S.3d 186; see Sheng Hai Tong v. K & K 7619, Inc., 144 A.D.3d 887, 890, 41 N.Y.S.3d 266).

[3, 4] Here, the defendants’ cross-motion was made more than one month after the expiration of the deadline imposed by the Supreme Court, and the defendants offered no explanation for the delay. Further, those branches of the defendants’ cross-motion which were for summary judgment dismissing the causes of action alleging common-law negligence and a violation of Labor Law § 200 did not raise nearly identical issues as Haugland’s timely motion, as Haugland’s motion did not seek summary judgment with regard to those causes of action (see Sheng Hai Tong v. K & K 7619, Inc., 144 A.D.3d at 890, 41 N.Y.S.3d 266; Vitale v. Astoria Energy II, LLC, 138 A.D.3d 981, 983, 30 N.Y.S.3d 213). Therefore, the court should have denied those branches of the defendants’ cross-motion which were for summary judgment dismissing the causes of action alleging common-law negligence and a violation of Labor Law § 200 as untimely (see Dojce v. 1302 Realty Co., LLC, 199 A.D.3d 647, 650, 157 N.Y.S.3d 478; Sheng Hai Tong v. K & K 7619, Inc., 144 A.D.3d at 890, 41 N.Y.S.3d 266). However, the court properly considered that branch of the cross-motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6), because Haugland’s timely motion raised nearly identical issues (see Sheng Hai Tong v. K & K 7619, Inc., 144 A.D.3d at 890, 41 N.Y.S.3d...