ADDITIONAL CASES KF Land LLC, Third-Party Plaintiff v. Deca Development, II Inc., Third-Party Defendant The following papers having been read on this motion: Notice of Motion (Defendant/Third-Party Plaintiff) 1 Opposition (Third-Party Plaintiff) 2 Opposition (Plaintiff) 3 Reply 4 Notice of (Cross-) Motion (Third-Party Defendant) 5 Opposition (Defendant/Third-Party Plaintiff) 6 Reply 7 Notice of (Cross-) Motion (Plaintiff) 8 Notice of (Cross-) Motion (Plaintiff) 9 Opposition (Defendant/Third-Party Plaintiff) 10 The parties have presented four separate motions before the Court: first, Defendant/Third-Party Plaintiff has moved to strike the note of issue, pursuant to 22 NYCRR 202.21 (e); second, Third-Party Defendant has moved to dismiss the third-party complaint, pursuant to CPLR §3212; third, Plaintiff has moved for an extension of time to file a summary judgment motion, pursuant to CPLR §2004; and fourth, Plaintiff has moved for summary judgment on the issue of liability, pursuant to CPLR §3212. All of the motions have been opposed, and the Court has also received some reply. After review and consideration, all motions before the Court are hereby denied except for summary judgment by Third-Party Defendant, in accordance with the following. Both Motion Sequence 003 and 005 before the Court are premised on discovery still being incomplete and certain items still outstanding; that is, both the motion to strike the note of issue as well as the motion to extend time for summary judgment motions rely on this Court to once again provide the parties further reason to delay a resolution or adjudication on the merits in this matter due to the inability of the parties to timely complete discovery. Indeed, Defendant/Third-Party Plaintiff and Plaintiff, as movants, have not provided a valid explanation to this Court as to why a preliminary conference stipulation and order was entered into that set out a discovery schedule, but was, completely ignored, as reported by the parties at a compliance conference December 11, 2019. Moreover, none of the parties have provided a reasonable explanation as to why discovery failed to progress between December 11, 2019, through the certification date of February 24, 2020, or what took place up until the time the coronavirus pandemic closed the courthouse beginning March 17, 2020. The complacency of all parties to this case in choosing not to work together to complete discovery timely, or at all, cannot go unnoticed by this Court. Doing so would simply promote the parties continued lackadaisical approach to this litigation and continue to foster a total disregard for appropriate and reasonable use of this Court’s time. The parties find themselves in the situation they are in because of their own failed efforts to complete discovery and will not be afforded extensions of time or further delays. It should also be noted that none of the moving papers before the Court have indicated when the outstanding depositions of Defendant and Third-Party Defendant and the independent medical examination of Plaintiff will take place, putting forth a situation in which this matter will continue to linger indefinitely. Thus, both Motion Sequence 003 and Motion Sequence 005, seeking to strike the note of issue and to extend the time for summary judgment motions to be filed, are both hereby denied. The within action arises from events having taken place on October 23, 2014. Plaintiff, then a plumbing apprentice, was employed by non-party Plumbing and Beyond, installing vent piping in a ceiling. While performing this task, Plaintiff was using an extension ladder that was leaned against a wall. Plaintiff is unsure who provided the ladder. At a certain point, the ladder began to slide down the wall and Plaintiff held onto the ladder during this occurence. The ladder eventually came all the way down, hitting the floor, and Plaintiff hit the floor along with it. Plaintiff alleges that as a result of this incident, he has suffered injuries to his left shoulder, amongst other things. Defendant/Third-Party Plaintiff brought a third-party action against Third-Party Defendant, asserting causes of action sounding in negligence, contribution, and indemnification. Plaintiff herein has sought summary judgment on his third and fifth causes of action, filed under Labor Law §240(1) and §241(6) respectively, only. Third-Party Defendant has also sought summary judgment, seeking dismissal of the third-party complaint in its entirety. A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 (1986). This burden is a heavy one and on a motion for summary judgment, facts must be viewed in a light most favorable to the non-moving party. Jacobsen v. New York City Health & Hospitals Corporation, 22 NY3d 824, 988 NYS2d 86 (2014). Where a moving party has demonstrated its entitlement to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial. Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980). When a claim is asserted under Labor Law §241(6), such a plaintiff must allege that a specific and concrete provision of the Industrial Code was violated and that the violation proximately caused his injuries. Keener v. Cinalta Construction Corp., 146 AD3d 867, 45 NYS3d 179 (2nd Dept., 2017). To the extent that plaintiff has asserted a viable claim under this section, he need not show that defendant exercised supervision or control over his worksite in order to establish his right of recovery. Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 601 NYS2d 49(1993). Plaintiff’s bill of particulars alleges a violation by Defendant of 12 NYCRR §23-1.21(b)(3)(iv), (b)(4)(ii), and (b)(4)(iv), as well as 29 CFR §1926.1053(b)(7). Under the facts of the instant case, Plaintiff cannot satisfy its burden as to 29 CFR §1926.1053(b)(7), as Plaintiff clearly testified at his deposition that the ladder he was using had anti-friction feet at the bottom, but was uncertain as to the surface type of the floor where the ladder was set up on, 12 NYCRR §23-1.21 (b)(4)(ii) does not apply to the case at bar, as there is no indication that the subject ladder which was used by Plaintiff lacked firm footings whatsoever. As to the remaining violations alleged under the Industrial code, the record before the Court is insufficient to establish that a person was required to be stationed at the bottom of the ladder for the work Plaintiff was performing and also whether the subject ladder itself was defective, since the testimony provided by Plaintiff is indeterminant on these points. Therefore, Plaintiff has failed to establish his entitlement to judgment as a matter of law under Labor Law §241(6), and this portion of Plaintiff’s motion is hereby denied. To establish a prima facie case under the scaffold law, a plaintiff must demonstrate that the risk of injury from an elevation-related hazard was foreseeable and that an absent or defective protective device of the type enumerated in the statute was a proximate cause of the injuries alleged. Shipkoski v. Watch Case Factory Associates, 292 AD2d 587, 741 NYS2d 55 (2nd Dept., 2002); see also Labor Law §240(1). The work of the injured plaintiff must be related to an elevation-related hazard. Edwards v. C&D Unlimited, Inc., 289 AD2d 370, 735 NYS2d 141 (2nd Dept., 2001). The mere fact that a plaintiff fell from a ladder does not, in and of itself, establish that proper protection was not provided. Yao Zong Wu v. Zhen Jia Yang, 161 AD3d 813, 75 NYS3d 254 (2nd Dept., 2018). Where a plaintiff’s own actions are the sole proximate cause of the accident, there can be no liability under the scaffold law. Corchado v. 5030 Broadway Properties. LLC, 103 AD3d 768, 962 NYS2d 185 (2nd Dept., 2013). In order for a plaintiff to be considered the sole proximate cause of his injuries, it must be shown that an appropriate safety device was available, but that Plaintiff chose not to use the device or misused the device. Robinson v. East Medical Center, LP, 6 NY3d 550, 814 NYS2d 589 (2006). Plaintiff has failed to satisfy his burden on the asserted claim under the scaffold law. It is undisputed that he was standing on a ladder to perform the task he was assigned to on the date in question. However, Plaintiff’s testimony is vague as to whether or not he received safety instructions for the work he performed, if safety or protective equipment was made available to him, or if he was even using personal protective equipment of any kind before his fall with the ladder. Given the Jack of evidence as to whether or not an appropriate safety device or equipment was provided and the limited testimony provided by Plaintiff on the subject, it cannot be said as a matter of law that Plaintiff is entitled to judgment on his Labor Law §240(1) claim. Accordingly, the portion of Plaintiff’s motion seeking summary judgment on this claim is also hereby denied. Turning next to the summary judgment motion by Third-Party Defendant, to establish a claim for common law indemnification, a third-party plaintiff is required to prove not only that it was not negligence, but also that the proposed indemnitor was responsible for the negligence that contributed to the accident, or in the absence of any such negligence, had the authority to direct, supervise, and control the work giving rise to the injury.” Bellefleur v. Newark Beth Israel Medical Center, 66 AD3d 807, 888 NYS2d 81 (2nd Dept., 2009). A party’s right to contractual indemnification depends upon the specific language of the relevant contract.” Castillo v. Port Authority of New York & New Jersey, 159 AD3d 792, 72 NYS3d 582 (2018). The promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances.” Morris v. Home Depot USA, 152 AD3d 669, 59 NYS3d 92 (2nd Dept., 2017). It appears undisputed as part of the third-party complaint that the claims for indemnification and contribution asserted are not based upon any type of contractual agreement between the parties. Furthermore, there is no allegation, either in the third-party complaint or in the evidence submitted on the motion, that Third-Party Defendant was responsible for the negligence that contributed to the accident. Thus, with the only possibility that Third-Party Defendant can be held responsible for indemnification or contribution being that it had the authority to direct, supervise, and control the work being performed by Plaintiff, the Court is satisfied that Third-Party Defendant has established its entitlement to judgment as a matter of law. The affidavit from a partner for Third-Party Defendant, coupled with the proposal which memorialized the scope of the work to be performed by Third-Party Defendant for Defendant/Third-Party Plaintiff, makes clear that they were not the general contractor for the entire job taking place at Defendant/Third-Party Plaintiff’s property; rather, they were merely a subcontractor for Defendant/Third-Party Plaintiff and lacked the requisite authority for the plumbing work being performed by Plaintiff while he was employed by a non-party. With the burden now properly shifted to Defendant/Third-Party Plaintiff to demonstrate the existence of a triable issue of fact, this Court finds that no such issue exists. The affidavit from Defendant/Third-Party Plaintiffs principal, containing a simple bald and conclusory statement that Third-Party Defendant was the general contractor hired to oversee the entirety of the renovation project, is belied by the evidence submitted by Third-Party Defendant in support of the motion. Indeed, not only does Defendant/Third-Party Plaintiff lack any other writing between the parties, but the affidavit lacks any indicia to contradict the proposal, which is totally devoid of any indication that Third-Party Defendant was to act as a general contractor. Simply put, in the absence of any other evidence besides the self-serving affidavit submitted in opposition, summary judgment dismissing the third-party complaint is appropriate. Accordingly, Motion Sequence 004 is granted in full, over opposition, and the third-party complaint is hereby dismissed in its entirety forthwith. See Arrendal v. Trizechahn Corp., 98 AD3d 699, 950 NYS2d 185 (2nd Dept., 2012); see also Desena v. North Shore Hebrew Academy, 119 AD3d 631, 989 NYS2d 505 (2nd Dept., 2014). Third-Party Defendant shall file and serve a copy of the within order with notice of entry upon Plaintiff and Defendant/Third-Party Plaintiff within thirty (30) days from the date of this order. Thereafter, Plaintiff and Defendant shall appear as scheduled in the DCM Pretrial Part on October 20, 2020, at 9:30am. All remaining requests for relief not specifically addressed in the foregoing shall be deemed denied. Finally, in light of the foregoing, the caption is hereby amended to read as follows: “JASON ROODMAN, Plaintiff, against KF LAND, LLC.” This hereby constitutes the decision and order of this Court. Dated: October 8, 2020
