| Alarcon v UCAN White Plains Hous. Dev. Fund Corp. |
| 2012 NY Slip Op 07413 [100 AD3d 431] |
| November 8, 2012 |
| Appellate Division, First Department |
| Dennis Alarcon, Respondent, v UCAN White PlainsHousing Development Fund Corp. et al., Defendants/Third-PartyPlaintiffs-Respondents-Appellants. Masonry Services, Inc., Third-PartyDefendant-Appellant-Respondent. |
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Morris Duffy Alonso & Faley, New York (Anna J. Ervolina of counsel), forrespondents-appellants. Gorayeb & Associates, P.C., New York (Mark H. Edwards of counsel), forrespondent.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered August 29,2011, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion forleave to amend his bill of particulars to allege a violation of Labor Law § 240 (2) andadditional violations of the New York Industrial Code, and upon amendment, granted plaintiff'smotion for summary judgment on the issue of his Labor Law §§ 240 (1), 240 (2) and241 (6) claims, and granted defendants/third-party plaintiffs White Plains Housing DevelopmentFund Corp. and White Plains Courtyard LLP summary judgment on their claims for contractualindemnity as against third-party defendant Masonry Services, Inc (MSI), unanimously affirmed,without costs.
Plaintiff was employed by third-party defendant MSI as a laborer/helper at a constructionproject at 2040-2060 White Plains Road, Bronx, New York. The property, owned by defendants,was being developed into a new seven-story affordable housing building. MSI was hired as amasonry subcontractor, one of over 15 subcontractors hired by defendants' general contractor.MSI had installed a scaffold structure in one of the empty elevator shafts, to which it attached aseries of steps to create a staircase. The staircase, which did not have any guardrails, was the onlymeans of traveling from floor to floor in the building.
On the day of the accident, plaintiff quarreled with his MSI supervisor, who told plaintiff thathe did not want to see him on that site anymore. Plaintiff stopped his work, and proceeded to thefourth floor to gather his street clothes and leave. Halfway between the third and fourth [*2]floor, a piece of fabric from plaintiff's pants became stuck on apiece of the scaffold pipe. This caused plaintiff to lose his balance and fall 3½ storiesdownward, landing on his feet, and losing consciousness.
Plaintiff's belated allegations that defendants violated Labor Law § 240 (2) and 12NYCRR 23-5.1 (j) and 23-5.3 (e) "entail[ ] no new factual allegations, raise[ ] no new theories ofliability, and has caused no prejudice" (Noetzell v Park Ave. Hall Hous. Dev. FundCorp., 271 AD2d 231, 233 [1st Dept 2000]; see also Cordeiro v TS Midtown Holdings, LLC, 87 AD3d 904,906 [1st Dept 2011]). Plaintiff's theory of the case, supported by the allegations in his bill ofparticulars and his deposition testimony, was always that he fell due to the scaffolding stairs' lackof guardrails. Thus, defendants cannot reasonably claim prejudice or surprise. Morever, in thecontext of this case, the fact that plaintiff was in the process of exiting the job site did not removehim from the protections of Labor Law § 240 (see e.g. Morales v Spring Scaffolding, Inc., 24 AD3d 42 [1st Dept2005])
Plaintiff's motion, served on the 120th day after he filed his note of issue, was timely(see CPLR 2211; see also Greenfield v Philles Records, 160 AD2d 458, 459 [1stDept 1990]).
Pursuant to the contract between defendants and MSI, MSI agreed to, inter alia, indemnifydefendants for all losses "arising out of, or in any manner relating to," MSI's work. The provisionwent on to state that "[i]n jurisdictions in which the indemnification provided for in this Articleis broader than that allowed by applicable law, this Article should be interpreted as providing thebroadest indemnification permitted and should be limited only to the extent necessary to complywith that law." Thus, contrary to MSI's argument, the clause does not violate General ObligationsLaw § 5-322.1 (see Hernandez vArgo Corp., 95 AD3d 782 [1st Dept 2012]; Dutton v Pankow Bldrs., 296 AD2d321 [1st Dept 2002], lv denied 99 NY2d 511 [2003]).
In any event, there is no evidence that defendants were actively negligent. Plaintiff testifiedthat he was only supervised by MSI, it was uncontested that MSI constructed the scaffold, therewas no evidence that defendants were on site, and plaintiff's common-law and Labor Law§ 200 claims against defendants were dismissed (see Smith v Broadway 110 Devs., LLC, 80 AD3d 490 [1st Dept2011]). MSI's argument that the motion was premature is unavailing. The mere hope thatevidence sufficient to defeat a motion for summary judgment may be uncovered during thediscovery process is insufficient to deny such a motion (see Flores v City of New York, 66 AD3d 599 [1st Dept 2009]; Duane Morris LLP v Astor HoldingsInc., 61 AD3d 418 [1st Dept 2009]). Notably, MSI did not offer any affidavits from itsemployees or principals contradicting any of the evidence submitted, despite the fact that theywould have knowledge of the operative facts. Concur—Mazzarelli, J.P., Friedman,Catterson, Renwick and Freedman, JJ.