| Carrasco v Weissman |
| 2014 NY Slip Op 05762 [120 AD3d 531] |
| August 13, 2014 |
| Appellate Division, Second Department |
[*1]
| Cesar Carrasco, Respondent, v Neil Weissman,Esq., et al., Defendants, and 102 Partners, LLC, et al., Respondents, andNCJ Development, Inc., Appellant. |
Faust Goetz Schenker & Blee, New York, N.Y. (Robert P. Meyerson ofcounsel), for appellant.
Hofmann & Schweitzer, New York, N.Y. (Dario Anthony Chinigo and TimothySchweitzer of counsel), for plaintiff-respondent.
Baxter Smith & Shapiro, P.C., Hicksville, N.Y. (William C. Lawlor, Sim R.Shapiro, and Robert C. Baxter of counsel), for defendants-respondents.
In an action to recover damages for personal injuries, the defendant NCJDevelopment, Inc., appeals from an order of the Supreme Court, Kings County (Schmidt,J.), dated May 22, 2012, which denied its motion for summary judgment dismissing theamended complaint and all cross claims insofar as asserted against it, and conditionallygranted that branch of the plaintiff's cross motion which was for summary judgment onthe issue of liability on the cause of action alleging a violation of Labor Law§ 240 (1) insofar as asserted against it.
Ordered the order is modified, on the law, (1) by deleting the provision thereofdenying that branch of the appellant's motion which was for summary judgmentdismissing the cause of action alleging a violation of Labor Law § 240 (1)insofar as asserted against it, and substituting therefor a provision granting that branch ofthe appellant's motion, and (2) by deleting the provision thereof conditionally grantingthat branch of the plaintiff's cross motion which was for summary judgment on the issueof liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the appellant, and substituting therefor a provision denyingthat branch of the plaintiff's cross motion; as so modified, the order is affirmed, withoutcosts or disbursements, upon searching the record, the determination conditionallygranting that branch of the plaintiff's cross motion which was for summary judgment onthe issue of liability on the cause of action alleging a violation of Labor Law§ 240 (1) insofar as asserted against the defendants 102 Partners, LLC,Bellerose Builders, Inc., and Jackson Development Group, Ltd., is vacated, and summaryjudgment is awarded to the defendants 102 Partners, LLC, Bellerose Builders, Inc., andJackson Development Group, Ltd., dismissing the cause of action alleging a violation ofLabor Law § 240 (1) insofar as asserted against them.
The plaintiff allegedly was injured while he and a coworker were installing plateglass [*2]window panes in a building under construction.According to the plaintiff's deposition testimony, while he was standing on the ground,and while his coworker was standing on the second step of a ladder, they jointly lifted aglass window pane in order to install it in a storefront window frame. At that moment,the plaintiff tripped or stepped on a piece of brick and his body shifted slightly, causingthe pane to split in half. The pieces of glass struck both the plaintiff and his coworker,injuring them.
The plaintiff commenced this personal injury action against the defendant NCJDevelopment, Inc. (hereinafter NCJ), the alleged general contractor, and the defendants102 Partners, LLC, Bellerose Builders, Inc., and Jackson Development Group, Ltd., theowners of the subject property (hereinafter collectively the owners). NCJ moved forsummary judgment dismissing the amended complaint and all cross claims assertedagainst it, and the plaintiff cross-moved for summary judgment on the issue of liabilityagainst NCJ and the owners on his cause of action alleging a violation of Labor Law§ 240 (1).
In support of its motion, NCJ contended that the doctrine of collateral estoppelbarred the plaintiff from asserting causes of action against it, relying on an order of theSupreme Court granting its motion for summary judgment dismissing the complaintasserted against it by the plaintiff's coworker. The Supreme Court properly rejectedNCJ's contention.
The doctrine of collateral estoppel " 'precludes a party from relitigating in asubsequent action or proceeding an issue clearly raised in a prior action or proceedingand decided against that party . . . , whether or not the tribunals or causes ofaction are the same' " (Parker v Blauvelt Volunteer Fire Co., 93 NY2d343, 349 [1999], quoting Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984];M.V.B. Collision, Inc. vRovt, 101 AD3d 830, 831 [2012]). The doctrine applies only if, inter alia," 'the plaintiff had a full and fair opportunity to litigate the issue in the earlieraction' " (City of NewYork v Welsbach Elec. Corp., 9 NY3d 124, 128 [2007], quoting Parker vBlauvelt Volunteer Fire Co., 93 NY2d at 349). Although the action commenced bythe plaintiff and that commenced by his coworker were joined for trial, the plaintiff wasnot a party to his coworker's action and, thus, he did not have an opportunity to opposeNCJ's motion in that action. Accordingly, the plaintiff did not have a full and fairopportunity to litigate the issue of NCJ's liability in the coworker's action and, thus, thedoctrine of collateral estoppel is inapplicable.
The Supreme Court properly denied that branch of NCJ's motion which was forsummary judgment dismissing the cause of action alleging a violation of Labor Law§ 241 (6) insofar as asserted against it. In support of that branch of itsmotion, NCJ argued that it could not be held liable under that statute because it wasneither the general contractor nor the statutory agent of the owner. However, NCJ's ownsubmissions raised triable issues of fact as to whether it was the general contractor on theproject or had the ability to control the activity which brought about the injury (see Walls v Turner Constr. Co.,4 NY3d 861, 864 [2005]; Gonzalez v TJM Constr. Corp., 87 AD3d 610, 611 [2011];Aranda v Park E. Constr., 4AD3d 315, 316 [2004]).
The Supreme Court also properly denied that branch of NCJ's motion which was forsummary judgment dismissing the causes of action to recover damages for common-lawnegligence and a violation of Labor Law § 200 insofar as asserted againstit, since, in this action founded upon an alleged dangerous condition at the work site,NCJ failed to eliminate all triable issues of fact as to whether it had control over the worksite and whether it created or had actual or constructive notice of the alleged dangerouscondition (see Eversfield vBrush Hollow Realty, LLC, 91 AD3d 814, 816 [2012]; Dalvano v Racanelli Constr. Co.,Inc., 86 AD3d 550, 551 [2011]).
However, NCJ demonstrated its prima facie entitlement to judgment as a matter oflaw dismissing the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against it. In this regard, NCJ's evidence established the absence ofa causal nexus between the plaintiff's injury and a lack or failure of a device prescribedby section 240 (1) (see Wilinskiv 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 9 [2011]; Misseritti vMark IV Constr. Co., 86 NY2d 487, 490-491 [1995]; Mendez v Jackson Dev. Group,Ltd., 99 AD3d 677 [2012]; see generally Runner v New York Stock Exch., Inc., 13 NY3d599, 603-604 [2009]). The report of the plaintiff's expert failed to raise a triableissue of fact in opposition, since the expert's opinion was conclusory and unsubstantiated(see Rodriguez [*3]v D & S Bldrs., LLC, 98 AD3d 957, 958-959[2012]; Laskowski v 525 ParkAve. Condominium, 93 AD3d 822, 825 [2012]; Crawford v Jefferson HouseAssoc., LLC, 57 AD3d 822, 823 [2008]). The expert did not opine as to thenecessity of any particular safety device to perform the specific task the plaintiff wasperforming at the time of the accident, and, in fact, incorrectly stated that the plaintiffwas injured when he was required to lift a heavy object over his head while climbing aladder.
Therefore, the Supreme Court should have granted that branch of NCJ's motionwhich was for summary judgment dismissing the Labor Law § 240 (1)cause of action insofar as asserted against it. For the same reason, the plaintiff failed tomake a prima facie showing in support of that branch of his cross motion which was forsummary judgment on the issue of liability on this cause of action insofar as assertedagainst NCJ, and, therefore, the Supreme Court should have denied that branch of theplaintiff's cross motion. Further, under the circumstances presented here, we exercise ourauthority to search the record and both deny that branch of the plaintiff's cross motionwhich was for summary judgment on the issue of liability on the Labor Law§ 240 (1) cause of action insofar as asserted against the owners, and awardsummary judgment to the owners dismissing the cause of action alleging a violation ofLabor Law § 240 (1) insofar as asserted against them (see CPLR3212 [b]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106,110-111 [1984]; Parker v205-209 E. 57th St. Assoc., LLC, 100 AD3d 607, 608-609 [2012]; Lopez-Dones v 601 W. Assoc.,LLC, 98 AD3d 476, 479-480 [2012]).
NCJ's remaining contentions are without merit. Skelos, J.P., Chambers, Hall andMiller, JJ., concur.