| Creese v Long Is. Light. Co. |
| 2012 NY Slip Op 06058 [98 AD3d 708] |
| August 29, 2012 |
| Appellate Division, Second Department |
| Lincoln Creese et al., Appellants-Respondents, v LongIsland Lighting Company, Defendant, Keyspan Generation, LLC, Defendant/Third-PartyPlaintiff-Respondent-Appellant, Marketspan Generation, LLC, et al., Respondents-Appellants,and Flag Atlantic USA Limited, Defendant/Third-Party Defendant-Respondent-Appellant. FlagTelecom Network USA Limited et al., Third-PartyDefendants-Respondents-Appellants. |
—[*1] Cullen and Dykman LLP, Brooklyn, N.Y. (Joseph C. Fegan and Margaret Mazlin ofcounsel), for defendant/third-party plaintiff-respondent-appellant,defendants-respondents-appellants, defendant/third-party defendant-respondent-appellant, andthird-party defendants-respondents-appellants.
In a consolidated action to recover damages for personal injuries, etc., the plaintiffs appeal,as limited by their brief, from (1) so much of an order of the Supreme Court, Kings County(Schmidt, J.), dated June 10, 2010, as denied that branch of their motion which was for summaryjudgment on the issue of liability on the cause of action alleging violations of Labor Law §241 (6) insofar as asserted against the defendant/third-party plaintiff and the defendants KeyspanEnergy Management, LLC, and Keyspan Energy Management, Inc., and (2) so much of an orderof the same court dated August 23, 2010, as, in effect, denied that branch of their motion whichwas for summary judgment on the issue of liability on the cause of action alleging violations ofLabor Law § 240 (1) insofar as asserted against the defendant/third-party plaintiff and thedefendants Keyspan Energy Management, LLC, and Keyspan Energy Management, Inc., andgranted that branch of the motion of the defendant/third-party plaintiff, the defendantsMarketspan Generation, LLC, Keyspan Corporation, Keyspan Energy Management, LLC,Keyspan Energy Management, Inc., the defendant/third-party defendant, and the third-partydefendants which was for summary judgment dismissing the cause of action alleging violationsof Labor Law § 240 (1) insofar as asserted against the defendant/third-party plaintiff andthe defendants Keyspan Energy Management, LLC, and Keyspan Energy Management, Inc., andthe defendant/third-party plaintiff, the defendants Marketspan Generation, LLC, KeyspanCorporation, Keyspan Energy Management, LLC, Keyspan Energy Management, Inc., thedefendant/third-party defendant, and the third-party defendants cross-appeal, [*2]as limited by their brief, from so much of the order dated June 10,2010, as granted that branch of the plaintiffs' motion which was, in effect, for leave to amend thebill of particulars and denied that branch of their motion which was for summary judgmentdismissing the causes of action alleging violations of Labor Law §§ 200 and 241 (6)insofar as asserted against the defendant/third-party plaintiff and the defendants MarketspanGeneration, LLC, Keyspan Energy Management, LLC, and Keyspan Energy Management, Inc.
Ordered that the order dated June 10, 2010, is affirmed insofar as appealed andcross-appealed from, without costs or disbursements; and it is further,
Ordered that the order dated August 23, 2010, is affirmed insofar as appealed from, withoutcosts or disbursements.
The plaintiff Lincoln Creese (hereinafter the injured plaintiff), who was employed as acarpenter by general contractor Roy Kay, Inc., at the time of the subject accident, allegedly wasinjured in the course of his employment as he exited a building, which was under construction, inorder to retrieve work materials outside. The defendant/third-party plaintiff, Keyspan Generation,LLC (hereinafter Keyspan Generation), owned the land on which the building was beingconstructed, and the defendant Keyspan Energy Management, LLC (hereinafter, together with thedefendant Keyspan Energy Management, Inc., the KEM defendants), was the project'sconstruction manager. According to the injured plaintiff's affidavit, the doorway of the buildingthrough which he exited was three to four feet higher than the ground below, and a wooden plankhad been placed between the doorway and the ground as a ramped means of ingress and egress.The injured plaintiff averred that he fell off the plank as he attempted to walk from the buildingto the ground. The injured plaintiff, and his wife suing derivatively, commenced this action torecover damages for personal injuries.
The Supreme Court properly granted that branch of the motion of Keyspan Generation, theKEM defendants, the defendants Marketspan Generation, LLC, and Keyspan Corporation, thedefendant/third-party defendant, and the third-party defendants (hereinafter collectively theKeyspan group) which was for summary judgment dismissing the cause of action allegingviolations of Labor Law § 240 (1) insofar as asserted against Keyspan Generation and theKEM defendants, and properly, in effect, denied that branch of the plaintiffs' motion which wasfor summary judgment on the issue of liability on that cause of action insofar as asserted againstKeyspan Generation and the KEM defendants. The Keyspan group established, prima facie, thatthe plank from which the injured plaintiff allegedly fell was being used as a passageway forlaborers to enter and exit the building under construction, and was not being used in theperformance of the injured plaintiff's work, i.e., it was not being utilized as a ladder, scaffold,hoist, or other safety device for the benefit of the injured plaintiff in his work, and, thus, that theaccident does not come within the purview of Labor Law § 240 (1) (see Donohue v CJAM Assoc., LLC, 22AD3d 710 [2005]; see also Salcedov Swiss Ranch Estates, Ltd., 79 AD3d 843 [2010]; Grabowski v Consolidated Edison Co. of N.Y., Inc., 72 AD3d 888[2010]). In opposition thereto, the plaintiffs failed to raise a triable issue of fact (see Alvarezv Prospect Hosp., 68 NY2d 320, 324 [1986]).
The Supreme Court properly denied that branch of the plaintiffs' motion which was forsummary judgment on the issue of liability on the cause of action alleging violations of LaborLaw § 241 (6) insofar as asserted against Keyspan Generation and the KEM defendants,and properly denied that branch of the Keyspan group's motion which was for summary judgmentdismissing that cause of action insofar as asserted against Keyspan Generation, the KEMdefendants, and the defendant Marketspan Generation, LLC (hereinafter Marketspan). "[T]oestablish liability under Labor Law § 241 (6), a plaintiff must demonstrate that thedefendant's violation of a specific rule or regulation was a proximate cause of the accident" (Seaman v Bellmore Fire Dist., 59AD3d 515, 516 [2009]). Here, triable issues of fact remain as to whether the elevated plankon which the injured plaintiff was walking at the time of the accident was in a slippery conditionand, if so, whether this condition was a proximate cause of the accident (see 12 NYCRR23-1.7 [d]), whether the plank was of insufficient width or was insufficiently supported andbraced, and, if so, whether such insufficiency was a proximate cause of the accident (see12 NYCRR 23-1.22 [b]), and whether the [*3]injured plaintiffwas provided a safe means of access to the work site and if any failure to do so was a proximatecause of the accident (see 12 NYCRR 23-1.7 [f]).
The Supreme Court properly denied that branch of the Keyspan group's motion which wasfor summary judgment dismissing the cause of action alleging violations of Labor Law §200 insofar as asserted against Keyspan Generation, the KEM defendants, and Marketspan. Inresponse to the Keyspan group's showing of entitlement to judgment as a matter of lawdismissing that cause of action with respect to the KEM defendants, the construction managers,the plaintiffs demonstrated the existence of triable issues of fact as to whether the KEMdefendants had supervisory control and authority over the work site, and whether the KEMdefendants had actual or constructive notice of the hazardous condition (see Rizzuto v L.A.Wenger Contr. Co., 91 NY2d 343, 352-353 [1998]; Eversfield v Brush Hollow Realty, LLC, 91 AD3d 814, 816 [2012];Rodriguez v JMB Architecture,LLC, 82 AD3d 949, 950-951 [2011]; Ford v HRH Constr. Corp., 41 AD3d 639 [2007]). Moreover, withrespect to the landowner Keyspan Generation (see Ortega v Puccia, 57 AD3d 54 [2008]), and Marketspan,Keyspan Generation's predecessor, the members of the Keyspan group failed to meet their initialburden on their motion, as the evidence upon which they relied was insufficient to demonstrate,prima facie, their entitlement to judgment as a matter of law with respect to Keyspan Generationor Marketspan. Therefore, we need not address the sufficiency of the plaintiffs' opposition paperswith regard thereto (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853[1985]).
With respect to the parties' contentions concerning that branch of the Keyspan group's motionwhich was for summary judgment dismissing the cause of action alleging common-lawnegligence insofar as asserted against Keyspan Generation, the KEM defendants, andMarketspan, these arguments are not properly before this Court, as that branch of that motionwas not addressed by the Supreme Court and, thus, remains pending and undecided (see Katzv Katz, 68 AD2d 536, 542-543 [1979]).
Leave to supplement or amend a bill of particulars is to be freely given in the absence ofprejudice or surprise, unless the proposed amendment is sought on the eve of trial, or where theamendment is patently insufficient or devoid of merit (see Alvarado v Beth Israel Med. Ctr., 78 AD3d 873, 874 [2010]; Ito v 324 E. 9th St. Corp., 49 AD3d816, 817 [2008]; Delahaye v SaintAnns School, 40 AD3d 679, 685 [2007]). Under the circumstances presented here, theSupreme Court did not improvidently exercise its discretion in granting that branch of theplaintiffs' motion which was, in effect, for leave to amend the bill of particulars to allege aviolation of 12 NYCRR 23-1.7 (f) with respect to the cause of action alleging violations of LaborLaw § 241 (6).
The parties' remaining contentions either are without merit or need not be reached in light ofour determination. Dillon, J.P., Florio, Chambers and Roman, JJ., concur.