CORONA v. HHSC 13TH STREET DEVELOPMENT CORPORATION (2021)

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered August 14, 2020, which, to the extent appealed from as limited by the briefs, granted defendants HHSC 13th Street Development Corporation, 13th Street Associates L.P., H.E.L.P. USA, Inc., also known as HELP USA, Genesis at 13th, Inc., and Genesis Apartments' motion for summary judgment dismissing the complaint as against them, and, in effect, upon a search of the record, dismissed the third-party complaint, unanimously modified, on the law, to deny defendants' motion as to the Labor Law § 200 and common-law negligence claims as premature, with leave to renew upon the completion of discovery, and to reinstate the third-party complaint, and otherwise affirmed, without costs.

Plaintiff Roberto Torres Corona (plaintiff) alleges that he was injured when he fell on the sidewalk abutting defendants' property during his employment in the deconstruction and disassembly of a sidewalk bridge and his right eye became impaled on a tree guard.

Defendants' motion is premature with respect to the Labor Law § 200 and common-law negligence claims, since “it appear[s] ․ that facts essential to justify opposition may exist but cannot ․ be stated” (CPLR 3212[f]) because they lie within defendants' exclusive knowledge (see Voluto Ventures, LLC v. Jenkens & Gilchrist Parker Chapin LLP, 44 A.D.3d 557, 557, 843 N.Y.S.2d 630 [1st Dept. 2007];  Lyons v. New York City Economic Dev. Corp., 182 A.D.3d 499, 120 N.Y.S.3d 764 [1st Dept. 2020]).  During discovery, defendants served a response to plaintiffs' notice to admit in which they admitted to installing, designing, and constructing the subject tree guard.¹  However, in support of their motion for summary judgment – which they filed before being deposed and before discovery had concluded – defendants submitted an affidavit by their former director of operations, in which he averred, in sum and substance, that they never had anything to do with the tree guard and never received any complaints about it.

The Labor Law § 241(6) claim was correctly dismissed insofar as predicated on Industrial Code (12 NYCRR) § 23–1.7(e)(2) because the tree guard bore no relation to “the work being performed” (12 NYCRR 23–1.7[e][2];  see Mendoza v. Highpoint Assoc., IX, LLC, 83 A.D.3d 1, 12, 919 N.Y.S.2d 129 [1st Dept. 2011];  compare Kaufman v. Capital One Bank (USA) N.A., 188 A.D.3d 461, 462, 131 N.Y.S.3d 887 [1st Dept. 2020] [where court found there were issues of fact as to whether a door saddle caused the plaintiff's accident when one of the wheels of the dumpster the plaintiff was moving became caught on the saddle, causing the dumpster to begin tipping over]).  The claim was also correctly dismissed insofar as predicated on 12 NYCRR 23–5.1(h) because the putative absence of a “designated person” was not a proximate cause of the accident (see Ortega v. Trinity Hudson Holding LLC, 176 A.D.3d 625, 626, 112 N.Y.S.3d 33 [1st Dept. 2019]).

The Labor Law § 240(1) claim was correctly dismissed because plaintiff's fall, which he testified happened when he was walking on the sidewalk and stepped onto two stacked, wet two-by-fours that slipped out from under him, was not the result of an elevation-related risk against which he was not properly protected (see Armental v. 401 Park Ave. S. Assoc., LLC, 182 A.D.3d 405, 406, 121 N.Y.S.3d 259 [1st Dept. 2020];  see generally Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267, 727 N.Y.S.2d 37, 750 N.E.2d 1085 [2001]).

The Decision and Order of this Court entered herein on June 17, 2021 is hereby recalled and vacated (see M–2495 decided simultaneously herewith).

FOOTNOTES

1.   We take judicial notice of the response, since it was e-filed via NYSCEF in Supreme Court (see Ninth Space LLC v. Goldman, 189 A.D.3d 686, 134 N.Y.S.3d 718 [1st Dept. 2020];  Perez v. New York City Hous. Auth., 47 A.D.3d 505, 850 N.Y.S.2d 75 [1st Dept. 2008]).