| Carrasco v Weissman |
| 2014 NY Slip Op 05763 [120 AD3d 534] |
| August 13, 2014 |
| Appellate Division, Second Department |
[*1]
| Cesar Carrasco, Respondent, v Neil J.Weissman, Esq., et al., Defendants, and 102 Partners, LLC, et al.,Appellants. |
Baxter Smith & Shapiro, P.C., White Plains, N.Y. (Sim R. Shapiro of counsel),for appellants 102 Partners, LLC, Bellerose Builders, Inc., and Jackson DevelopmentGroup, Ltd.
Faust Goetz Schenker & Blee, New York, N.Y. (Robert P. Meyerson ofcounsel), for appellant NCJ Development, Inc.
Hofmann & Schweitzer, New York, N.Y. (Dario Anthony Chinigo and TimothySchweitzer of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants 102 Partners,LLC, Bellerose Builders, Inc., and Jackson Development Group, Ltd., appeal, as limitedby their brief, from so much of an order of the Supreme Court, Kings County (Schmidt,J.), dated April 30, 2013, as (a), in effect, granted that branch of the plaintiff's crossmotion which was for summary judgment on the issue of liability on the cause of actionalleging a violation of Labor Law § 241 (6) insofar as asserted againstthem, (b) granted that branch of the plaintiff's cross motion which was for leave to renewthat branch of his prior cross motion which was for summary judgment on the issue ofliability on the cause of action alleging a violation of Labor Law § 240 (1)insofar as asserted against them, and, upon renewal, vacated the determination in a priororder of the same court dated May 22, 2012, conditionally granting that branch of theplaintiff's prior cross motion, and thereupon unconditionally granted that branch of theplaintiff's prior cross motion, and (c) denied their motion for leave to serve and file a latemotion for summary judgment dismissing the complaint insofar as asserted against themand thereupon award them summary judgment dismissing the complaint insofar asasserted against them, and the defendant NCJ Development, Inc., separately appeals, aslimited by its brief, from so much of the same order dated April 30, 2013, as (a), ineffect, granted that branch of the plaintiff's cross motion which was for summaryjudgment on the issue of liability on the cause of action alleging a violation of LaborLaw § 241 (6) insofar as asserted against it, (b) granted that branch of theplaintiff's cross motion which was for leave to renew that branch of his prior crossmotion which was for summary judgment on the issue of liability on the cause of actionalleging a violation of Labor Law § 240 (1) insofar as asserted against itand, upon renewal, vacated the determination in the order dated May 22, 2012,conditionally granting that branch of the plaintiff's prior cross motion, and thereuponunconditionally granted that branch of the plaintiff's prior cross motion, and (c) denied itsseparate motion for leave to renew its prior motion for summary judgment dismissing theamended complaint and all cross claims insofar as asserted [*2]against it, which had been denied in the order dated May22, 2012.
Ordered that the order dated April 30, 2013, is modified, on the law, (1) by deletingthe provision thereof, in effect, granting that branch of the plaintiff's cross motion whichwas for summary judgment on the cause of action alleging a violation of Labor Law§ 241 (6) insofar as asserted against the appellants, and substituting therefora provision denying that branch of the plaintiff's cross motion, and (2) by deleting theprovision thereof granting that branch of the plaintiff's cross motion which was for leaveto renew his prior cross motion, and substituting therefor a provision denying that branchof the plaintiff's cross motion which was for leave to renew; as so modified, the order isaffirmed insofar as appealed from, without costs or disbursements.
The Supreme Court erred in, in effect, granting that branch of the plaintiff's crossmotion which was for summary judgment on the cause of action alleging a violation ofLabor Law § 241 (6) against the defendants 102 Partners, LLC, BelleroseBuilders, Inc., and Jackson Development Group, Ltd., and the defendant NCJDevelopment, Inc. (hereinafter collectively the appellants), since the plaintiff failed toestablish his prima facie entitlement to judgment as a matter of law on that cause ofaction. Further, the Supreme Court erred in granting that branch of the plaintiff's crossmotion which was for leave to renew his prior cross motion for unconditional summaryjudgment on the issue of liability on the cause of action alleging a violation of LaborLaw § 240 (1) against the appellants, which had been conditionally grantedin an order dated May 22, 2012. That branch of the plaintiff's cross motion which was forleave to renew was not based on new facts or a change in the law that would change theprior determination (see CPLR 2221 [e] [2]; Frenchman v Lynch, 97 AD3d 632, 633 [2012]; Elbaz v New York City Hous.Auth., 90 AD3d 986, 987 [2011]). We note that, in a related appeal, this Court,among other things, awarded summary judgment to the defendant NCJ Development,Inc. (hereinafter NCJ), dismissing the cause of action alleging a violation of Labor Law§ 240 (1) insofar as asserted against it and, upon searching the record,awarded summary judgment dismissing that cause of action insofar as asserted againstthe defendants 102 Partners, LLC, Bellerose Builders, Inc., and Jackson DevelopmentGroup, Ltd. (see Carrasco v Weissman, 120 AD3d 531 [2d Dept 2014] [decided herewith]). Accordingly, NCJ's contention that theSupreme Court should have granted it leave to renew that branch of its motion whichwas for summary judgment dismissing the Labor Law § 240 (1) cause ofaction insofar as asserted against it has been rendered academic.
The Supreme Court properly denied the motion of the defendants 102 Partners, LLC,Bellerose Builders, Inc., and Jackson Development Group, Ltd., which was for leave toserve and file a late motion for summary judgment and thereupon award them summaryjudgment dismissing the complaint insofar as asserted against them. Those defendantsfailed to establish good cause for not timely serving the motion as required by CPLR3212 (a) (see Brill v City ofNew York, 2 NY3d 648 [2004]; Demacopoulos v City of New York, 73 AD3d 842 [2010]).Accordingly, those defendants were not entitled to consideration of their request forsummary judgment dismissing the complaint insofar as asserted against them, althoughwe note that, by virtue of our determination in the related appeal, they have already beenawarded summary judgment dismissing the Labor Law § 240 (1) cause ofaction insofar as asserted against them.
There is no merit to NCJ's contentions that the Supreme Court should have granted itleave to renew those branches of its prior motion which were for summary judgmentdismissing the causes of action alleging a violation of Labor Law§§ 241 (6) and 200, and common-law negligence insofar as assertedagainst it. As to the cause of action alleging a violation of Labor Law § 241(6), NCJ cites to a purported change in the law, to wit, this Court's decision and order inMendez v Jackson Dev. Group,Ltd. (99 AD3d 677 [2012]), an action commenced by the plaintiff's coworker,who was injured in the same accident as the plaintiff. In that decision and order, thisCourt concluded that the regulation cited by the coworker, Johnny Mendez, in support ofhis Labor Law § 241 (6) cause of action was inapplicable because theregulation—12 NYCRR 23-1.7 (e) (2)—was "designed to protect againsttripping hazards and sharp projections on floors and platforms," and Mendez did nottestify that he tripped on a tripping hazard (Mendez v Jackson Dev. Group, Ltd.,99 AD3d at 679 [internal quotation marks omitted]). In the present case, however, theplaintiff testified at his deposition that the accident occurred when he tripped on a brick.Thus, this [*3]Court's decision in Mendez did notconstitute a change in the law that would have changed the Supreme Court's priordetermination in connection with the Labor Law § 241 (6) cause of action.Further, NCJ did not identify any new facts or change in the law pertaining to thosebranches of its prior motion which were for summary judgment dismissing the causes ofaction alleging a violation of Labor Law § 200 and common-law negligenceand the cross claims asserted against it. Skelos, J.P., Chambers, Hall and Miller, JJ.,concur.