CONNOR v. AMA CONSULTING ENGINEERS PC (2023)

Order, Supreme Court, New York County (Gerald Lebovits, J.), entered on or about August 3, 2021, which, to the extent appealed from as limited by the briefs, granted the separate motions of defendants Andrew James Interiors, Inc., AMA Development Infrastructure, LLC, MLB Advanced Media, L.P., and Jamestown Premier Chelsea Market, LP. for summary judgment dismissing the complaint, and denied plaintiff's cross motion seeking summary judgment with respect to liability on his Labor Law § 240(1) cause of action, and leave to amend his bill of particulars to allege Industrial Code (12 NYCRR) § 23–1.7(e)(2) and § 23–2.1(a)(1) as ancillary statutes as predicates for his Labor Law § 241(6) cause of action, and as amended, summary judgment on that cause of action, unanimously affirmed, without costs.

Plaintiff's cross motion was untimely under the parties’ so-ordered stipulation agreeing that all dispositive motions would be filed by June 9, 2020.  The later stipulation agreeing to a single return date for all motions did not supersede the prior agreement, nor was there any conflict between the two stipulations (see Koch v. Sheresky, Aronson & Mayefsky LLP, 161 A.D.3d 647, 647–648, 78 N.Y.S.3d 20 [1st Dept. 2018], lv dismissed 32 N.Y.3d 928, 84 N.Y.S.3d 73, 108 N.E.3d 1019 [2018]).  Nonetheless, Supreme Court properly considered the branch of plaintiff's cross motion seeking summary judgment with respect to liability on his Labor Law § 240(1) claim, as it sought relief “nearly identical” to that sought by defendants’ motions (Filannino v. Triborough Bridge & Tunnel Auth., 34 A.D.3d 280, 281, 824 N.Y.S.2d 244 [1st Dept. 2006], appeal dismissed 9 N.Y.3d 862, 840 N.Y.S.2d 765, 872 N.E.2d 878 [2007]).

The branch of plaintiff's motion for summary judgment on his Labor Law § 241(6) claim, however, was not a true cross motion, as it rested on newly pleaded Industrial Code provisions (see Kershaw v. Hospital for Special Surgery, 114 A.D.3d 75, 87, 978 N.Y.S.2d 13 [1st Dept. 2013]) and thus did not raise arguments “nearly identical” to those defendants raised in their motions (see Crawford v. 14 E. 11th St., LLC, 191 A.D.3d 461, 461, 138 N.Y.S.3d 310 [1st Dept. 2021], quoting Rubino v. 330 Madison Co., LLC, 150 A.D.3d 603, 56 N.Y.S.3d 55 [1st Dept. 2017]).  Supreme Court also did not improvidently exercise its discretion in denying the branch of plaintiff's motion seeking to amend his bill of particulars to allege additional Industrial Code violations.  Plaintiff failed to amend within the time frame set by a prior order and offered no justification for failing to do so until several years later.  Moreover, plaintiff sought amendment only in the face of defendants’ post-note of issue dispositive motions (see Reilly v. Newireen Assoc., 303 A.D.2d 214, 218, 756 N.Y.S.2d 192 [1st Dept. 2003], lv denied 100 N.Y.2d 508, 764 N.Y.S.2d 235, 795 N.E.2d 1244 [2003]).

As to the merits of the Labor Law § 240(1) cause of action, Supreme Court properly dismissed that cause of action.  Where a falling object has had a relatively short descent before hitting plaintiff, as is the case here, courts will take into consideration whether the size and weight of the object can generate a significant amount of force as it falls (see Kuylen v. KPP 107th St., LLC, 203 A.D.3d 465, 465, 160 N.Y.S.3d 866 [1st Dept. 2022];  Padilla v. Touro Coll. Univ. Sys., 204 A.D.3d 415, 416, 166 N.Y.S.3d 152 [1st Dept. 2022]).  Here, unlike the stacks of sheetrock of significant weight in Kuylen and Padilla, the two-foot-wide and eight-foot-high piece of sheetrock, only a portion of which tipped over no more than three feet onto plaintiff, was an ordinary construction hazard and not an extraordinary danger contemplated by Labor Law § 240(1).