| Cambry v Lincoln Gardens |
| 2008 NY Slip Op 04047 [50 AD3d 1081] |
| April 29, 2008 |
| Appellate Division, Second Department |
| Nathaniel Cambry, Respondent, v Lincoln Gardens,Appellant, and A.L. Eastmond & Sons, Inc., et al., Respondents. |
—[*1] Friedman, Khafif & Sanchez, LLP, Brooklyn, N.Y. (Emil J. Sanchez of counsel), forplaintiff-respondent. Edward Garfinkel, New York, N.Y. (Fiedelman & McGaw and Ross P. Masler of counsel),for defendants-respondents.
In an action to recover damages for personal injuries, the defendant Lincoln Gardens appeals(1), as limited by its brief, from so much of an order of the Supreme Court, Kings County(Schack, J.), dated November 17, 2006, as denied those branches of its motion which were forsummary judgment dismissing the common-law negligence and Labor Law § 240 (1)causes of action insofar as asserted against it, and for summary judgment on its common-lawindemnity cross claim, (2), as limited by its brief, from so much of an order of the same courtdated January 19, 2007, as granted those branches of the plaintiff's cross motion which were forsummary judgment on the issue of liability against it on the Labor Law § 240 (1) cause ofaction, and to strike its answer, (3), as limited by its brief, from so much of an order of the samecourt dated May 18, 2007, as, upon granting that branch of its motion which was for reargumentof that branch of the plaintiff's cross motion which was to strike its answer, adhered to theoriginal determination and reinstated the Labor Law § 200 cause of action insofar asasserted against it, and (4) an order of the same court dated May 18, 2007, which, inter alia,denied its motion to stay or adjourn the trial of the action.
Ordered that the appeal from so much of the order dated January 19, 2007, as granted that[*2]branch of the plaintiff's cross motion which was to strike theanswer of Lincoln Gardens is dismissed, as that portion of the order was superseded by the firstorder dated May 18, 2007, made upon reargument; and it is further,
Ordered that the appeal from the second order dated May 18, 2007, which, inter alia, deniedthe motion of the defendant Lincoln Gardens to a stay or adjourn the trial, is dismissed asabandoned; and it is further,
Ordered that the order dated November 17, 2006 is modified, on the law, by deleting theprovision thereof denying that branch of the motion of the defendant Lincoln Gardens which wasfor summary judgment dismissing the Labor Law § 240 (1) cause of action insofar asasserted against it, and substituting therefor a provision granting that branch of the motion; as somodified, the order dated November 17, 2006 is affirmed insofar as appealed from; and it isfurther,
Ordered that the order dated January 19, 2007 is reversed insofar as reviewed, on the law,and that branch of the plaintiff's cross motion which was for summary judgment on the issue ofliability against the defendant Lincoln Gardens on the Labor Law § 240 (1) cause of actionis denied; and it is further,
Ordered that the first order dated May 18, 2007 is modified, on the law, the facts, and in theexercise of discretion, by deleting the provision thereof which, upon reargument, adhered to theoriginal determination granting that branch of the plaintiff's cross motion which was to strike theanswer of the defendant Lincoln Gardens and substituting therefor a provision, upon reargument,vacating so much of the order dated January 19, 2007, as granted that branch of the plaintiff'scross motion which was to strike the answer of the defendant Lincoln Gardens, and denying thatbranch of the cross motion; as so modified, the first order dated May 18, 2007 is affirmed insofaras appealed from; and it is further,
Ordered that one bill of costs is granted to the defendant Lincoln Gardens payable by therespondents appearing separately and filing separate briefs.
The Supreme Court improvidently exercised its discretion in striking the answer of thedefendant Lincoln Gardens for failure to comply with discovery. A court in its discretion maystrike the pleading of a party who "refuses to obey an order for disclosure or wilfully fails todisclose information which the court finds ought to have been disclosed" (CPLR 3126).However, such a sanction is inappropriate absent a clear showing that the failure to comply withdiscovery demands is willful or contumacious (see CPLR 3126 [3]; Kuzmin v Visiting Nurse Serv. of N.Y.,22 AD3d 643 [2005]; Espinal v City of New York, 264 AD2d 806 [1999]).Belated but substantial compliance with a discovery order undermines the position that the delaywas a product of willful or contumacious conduct (see Pascarelli v City of New York, 16 AD3d 472 [2005];Carella v Reilly & Assoc., 297 AD2d 326 [2002]). Here, the circumstances surrounding adeposition on December 13, 2006 militate against a finding that Lincoln Gardens' failure toproduce a witness was willful or contumacious (cf. Rampersad v New York City Dept. of Educ., 30 AD3d 218[2006]).
The Supreme Court further erred in denying summary judgment to Lincoln Gardensdismissing the Labor Law § 240 (1) cause of action, and in granting summary judgment onthe issue of liability to the plaintiff and against it on that cause of action. "Not every worker whofalls at a construction site, and not every object that falls on a worker, gives rise to theextraordinary [*3]protections of Labor Law § 240 (1)"(Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]). The accident must havebeen caused by the "special hazards that arise when the work site either is itself elevated or ispositioned below the level where materials or loads are hoisted or secured" (Orner v PortAuth. of N.Y. & N.J., 293 AD2d 517 [2002]; see Narducci v Manhasset Bay Assoc.,96 NY2d at 267; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]).
Here, the plaintiff allegedly was injured when a large piece of metal fell from a dolly onto hisfoot. The risk of such an accident is not an elevation-related risk simply because there is a slightdifference in elevation between the top of the dolly and the floor. "An object falling from aminuscule height is not the type of elevation-related injury that [Labor Law § 240 (1)] wasintended to protect against" (Perron vHendrickson/Scalamandre/Posillico [TV], 22 AD3d 731, 732 [2005] [internal quotationmarks omitted]; see Schreiner v Cremosa Cheese Corp., 202 AD2d 657 [1994];Jacome v State of New York, 266 AD2d 345 [1999]; Phillips v City of New York,228 AD2d 570 [1996]). Moreover, the object must be in the process of being hoisted orsecured when it falls due to inadequate safety devices (see Narducci v Manhasset Bay Assoc.,96 NY2d 259, 268 [2001]). Contrary to the plaintiff's contention, his deposition establishedthat the piece of metal was not in the process of being hoisted or secured when it fell. SinceLincoln Gardens established its prima facie entitlement to judgment as a matter of law dismissingthe Labor Law § 240 (1) cause of action, and the plaintiff failed to raise a triable issue offact in opposition to that branch of its motion, Lincoln Gardens was entitled to summaryjudgment dismissing that cause of action.
However, Lincoln Gardens failed to establish its prima facie entitlement to judgment as amatter of law dismissing the common-law negligence and Labor Law § 200 causes ofaction insofar as asserted against it (see Winegrad v New York Univ. Med. Ctr., 64NY2d 851, 853 [1985]). Accordingly, summary judgment on its common-law indemnity crossclaim was properly denied as well (seeGreat Am. Ins. Co. v Canandaigua Natl. Bank & Trust Co., 23 AD3d 1025, 1028[2005]).
As Lincoln Gardens failed to make any argument in its brief that the second order dated May18, 2007 was erroneous, the appeal from that order must be dismissed as abandoned (see Ellner v Schwed, 48 AD3d739 [2008]; DiCarlo v City of New York, 286 AD2d 363 [2001]; TransamericaCommercial Fin. Corp. v Matthews of Scotia, 178 AD2d 691, 692 n 1 [1991]). Spolzino,J.P., Lifson, Florio and Dickerson, JJ., concur.