| Francescon v Gucci Am., Inc. |
| 2010 NY Slip Op 02061 [71 AD3d 528] |
| March 18, 2010 |
| Appellate Division, First Department |
| John Francescon, Respondent-Appellant, v GucciAmerica, Inc., Also Known as Gucci Shops, Inc., et al., Respondents. (And a Third-PartyAction.) Gucci America, Inc., Also Known as Gucci Shops, Inc., et al., Second Third-PartyPlaintiffs-Respondents, v Flooring Solutions, Inc., Second Third-PartyDefendant-Appellant-Respondent. Flooring Solutions, Inc., Fourth-PartyPlaintiff-Appellant-Respondent, v Consolidated Carpet Trade Workroom, Inc., et al.,Fourth-Party Defendants-Respondents. |
—[*1] Fortunato & Fortunato, P.C., Brooklyn (Annamarie Fortunato of counsel), forrespondent-appellant. Law Office of James J. Toomey, New York (Eric P. Tosca of counsel), for Gucci America,Inc. and Structure Tone, Inc., respondents. Connors & Connors, P.C., Staten Island (Robert J. Pfuhler of counsel), for ConsolidatedCarpet respondents.
[*2]Order, Supreme Court, New York County (Michael D.Stallman, J.), entered January 22, 2009, which, to the extent appealed from as limited by thebriefs, granted defendants' motion for summary judgment dismissing plaintiff's Labor Law§ 200 and common-law negligence claims, and for summary judgment on their remainingclaims for contractual indemnification against second third-party defendant Flooring Solutions;denied without prejudice Flooring Solutions' motion for summary dismissal of plaintiff's LaborLaw § 241 (6) claims, and denied as premature summary judgment on its claim forcommon-law indemnification against the fourth-party Consolidated Carpet defendants; andgranted plaintiff's motion to supplement or amend his bill of particulars post-note of issue and tocompel defendants' acceptance of a belated expert disclosure, unanimously modified, on the law,those portions of defendants' motion for summary dismissal of plaintiff's statutory andcommon-law negligence causes of action, as well as summary judgment on their contractualindemnification claim against Flooring Solutions, denied, and otherwise affirmed, without costs.
Plaintiff, an employee of a stone and marble subcontractor, was injured at a store underconstruction when he allegedly stepped on a piece of loose carpeting described as debris that layover the border between a floor and the subfloor 15 inches below. The record discloses triablefactual issues as to whether defendants had constructive notice of the presence of the loosecarpeting. The court properly granted plaintiff's motion, brought after he filed the note of issue,to supplement his bill of particulars with allegations of the violation of two additional IndustrialCode provisions and to compel the acceptance of his new expert disclosure. Although theaccident occurred 8½ years before plaintiff moved to amend, Flooring Solutions has notshown it would be prejudiced by the amendment (see Sahdala v New York City Health &Hosps. Corp., 251 AD2d 70 [1998]). The additional alleged violations of the Code are basedon facts in the record, and the court appropriately vacated the note of issue and granted FlooringSolutions additional discovery in connection therewith. Contrary to Flooring Solutions'contention, the belated expert disclosure does not assert a new theory of causation. Plaintiff'sdeposition testimony was unclear as to whether he had stepped on an extended portion of thesubfloor carpet or on a piece of carpet draped over the step-off area. However, it is not entirelyhis fault that defendants failed to clarify this issue at the deposition. In any event, there isevidence in the record that reasonably supports the expert's piece-of-carpet theory.
Since issues of fact remain whether any negligence on Consolidated Carpet's partproximately caused plaintiff's injuries, summary judgment in Flooring Solutions' favor on itsclaim for common-law indemnification against Consolidated Carpet was properly held not yetripe for adjudication (see Murphy vWFP 245 Park Co., L.P., 8 AD3d 161 [2004]). But since liability under Labor Law§ 241 (6), predicated on the newly-specified Industrial Code provisions, has yet to bedetermined, summary judgment in defendants' favor on their contractual [*3]indemnification claims against Flooring Solutions was alsopremature (see Bellefleur v NewarkBeth Israel Med. Ctr., 66 AD3d 807, 808-809 [2009]). Concur—Andrias, J.P.,Catterson, Renwick, DeGrasse and Manzanet-Daniels, JJ. [Prior Case History: 2009 NYSlip Op 30123(U).]