STRATIS v. 345 PARK AVE (2026)

Order, Supreme Court, New York County (Verna L. Saunders, J.), entered on or about April 29, 2025, which, to the extent appealed from as limited by the briefs, denied plaintiffs' motion for leave to renew their motion for summary judgment on the issue of liability on their Labor Law § 241(6) cause of action predicated on Industrial Code (12 NYCRR) §§ 23–1.7(e)(2) and 23–2.1(a)(1) and their common-law negligence and Labor Law § 200 causes of action, and conditionally granted summary judgment in favor of defendant Structure Tone, LLC on its contractual indemnification claim against third-party defendant National Acoustics, LLC, unanimously affirmed, without costs.

Plaintiff Eugene Stratis was allegedly injured when he tripped on a bag of sprinkler materials while performing drywall work in the northwest corner of the 25th floor of a building in Manhattan.  In the court's prior order, dated March 18, 2024, the court did not expressly or effectively authorize plaintiff to file a successive motion for summary judgment because the court found issues of fact on the record before it (cf.  Maggio v 24 W. 57 APF, LLC, 134 AD3d 621, 625–626 [1st Dept 2015] ).

The motion court providently exercised its discretion in denying plaintiffs' motion for leave to renew their motion for summary judgment.  Plaintiffs failed to demonstrate their diligence in attempting to obtain outstanding deposition testimony or provide a reasonable justification for not obtaining it before they moved for summary judgment (see Perretta v New York City Tr. Auth., 230 AD3d 428, 431–433 [1st Dept 2024] ).  Nor would the deposition testimony that the court determined was outstanding change the result as it creates issues of fact about whether the materials were necessary for the sprinkler installation on the southern side of the 25th floor.

There are issues of fact as to whether the accident was caused by a dangerous condition, the means and methods of defendant Par Fire Protection/Par Plumbing Co., Inc.'s work, or some combination of the two.  There was evidence to support both theories depending on when the materials were delivered (see Prevost v One City Block LLC, 155 AD3d 531, 533–534 [1st Dept 2017];  Serrano v Consolidated Edison Co. of N.Y. Inc., 146 AD3d 405, 405–406 [1st Dept 2017], lv dismissed 29 NY3d 1118 [2017] ).

The court also properly granted Structure Tone a conditional award of contractual indemnification from plaintiff's employer, National.  Under the broadly worded indemnification provision, plaintiff's accident arose out of the work given that he was working and directed to work in the northwest corner of the 25th floor, and his foreman told him to avoid the bags of materials (see Weidtman v Tremont Renaissance Hous. Dev. Fund Co., Inc., 224 AD3d 488, 491 [1st Dept 2024] ).  National's argument concerning the accuracy of the indemnification language is unpreserved because National failed to raise the argument before the trial court.  Because “it is not a purely legal argument apparent on the face of the record but depends on facts not brought to [defendants'] attention on the motion” (Straughter v Thor Shore Parkway Devs., LLC, 199 AD3d 434, 435 [1st Dept 2021] ) we decline to review it.  Moreover, National waived this argument as “[f]acts appearing in the movant's papers which the opposing party does not controvert, may be deemed to be admitted” (Kuehne & Nagel v Baiden, 36 NY2d 539, 543 [1975] ).