Opinion
No. 504497/2015 Motion Seq. No. 7 8 9 10
08-23-2023
HANS FAHNING, Plaintiff, v. THE CITY OF NEW YORK, H&L CONTRACTING, LLC, and THE SEAGATE ASSOCIATION, Defendants. HANS FAHNING, Plaintiff, v. H&L CONTRACTING, LLC, Defendant.
Unpublished Opinion
DECISION/ORDER
HON. GINA ABADI, J.S.C.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion.
| Papers | NYSCEF Numbered |
| Notice of Motion/Cross Motion/Order to Show Cause and | 97-121,123-148, |
| Affidavits (Affirmations) Annexed................................... ..... | 149-169, 170-194 |
| Opposing Affidavits (Affirmations)................................... | 186-200, 205, 206, 207 |
| 208,209-210,211-214 | |
| 215-216,217,218-221 | |
| 222-225, 226-229, 230, 244 | |
| Reply Affidavits (Affirmations)....................................... | 231-240, 241, 242, 243 |
| Other...................................................................... ......................... |
Upon the foregoing cited papers and after oral argument, the Decision/Order on these motions is as follows:
In Seq. No. 7, plaintiff Hans Fahning ("plaintiff') moves for partial summary judgment on the issue of liability on his Labor Law §§ 240 (1) and 241 (6) claims as against defendants
City of New York (the "City"), Sea Gate Association ("SGA"), and H&L Contracting, LLC ("H&L" and, collectively, with the City and SGA, "defendants").
In Seq. No. 8, the City moves for summary judgment dismissing plaintiff's claims I under Labor Law §§ 240 (1) and 241 (6), as well as his Labor Law § 200/common-law negligence claims (together with codefendants' cross claims), as against it. Plaintiff does not object to the dismissal of his Labor Law § 200/common-law negligence claims as against the City.
See Plaintiffs Affirmation in Opposition, dated July 28, 2023 (NYSCEF Doc. No. 218), ¶ 3.
In Seq. No. 9, SGA moves for summary judgment dismissing plaintiffs claims under Labor Law §§ 240 (1) and 241 (6), as well as his Labor Law § 200/common-law negligence claims (together with codefendants' cross claims), as against it; or, in the alternative, for
I summary judgment on its cross claim for common-law indemnification as against H&L. Plaintiff likewise does not object to the dismissal of his Labor Law § 200/common-law negligence claims as against SGA.
See Plaintiffs Affirmation in Opposition to Sea Gate's Motion, dated August 4, 2023 (NYSCEF Doc. No. 222), ¶ 3.
In Seq. No. 10, H&L moves for summary judgment dismissing plaintiffs claims under Labor Law §§ 240 (1) and 241 (6), as well as his Labor Law § 200/common-law negligence claims (together with codefendants' cross claims), as against it.
The background is excerpted from the Statements (or Counterstatements, as the case may be) of Material Facts filed by plaintiff and each defendant (NYSCEF Doc. Nos. 121, 148, 151, 194, 197, 208, 210, 214, 216, 221, 229, and 230). Plaintiffs contention (in ¶¶ 28-39 of his affirmation in opposition to SGA's motion at NYSCEF Doc. No. 222) that SGA's SOF should not be considered because it was partially copied from its counsel's supporting affirmation is without merit. A statement of material facts is no longer mandatory under 22 NYCRR § 202.8-g (a), and, even if it were, SGA substantially complied with this requirement by way of its counsel's affirmation (see Robinson v Synergy Alternative Cap., LLC, 2023 NY Slip Op 32440[U], *2 [Sup Ct, NY County 2023, Billings, J.]).
In 2014, the Coney Island "T-Groin" (or terminal-groin) project included the Sea Gate area at West 37th Street (the "project") (Plaintiffs SOF, ¶ 1). Nonparty U.S. Army Corps of Engineers, New York ("Corps") owned and initiated the project, based on its monitoring of the results of its prior (or the 1993) project in the same area. After consulting with the Cityj, the Corps determined that four T-groins needed to be constructed in the private portion of the beach owned by SGA. To that end, Corps retained H&L as the general contractor, which, in turn, subcontracted some of its work to plaintiffs employer, nonparty Village Dock, Inc. ("VDI") (NYSCEF Doc. Nos. 115-116). Plaintiffs SOF, ¶¶ 13, 23-25.
Groin (also spelled "groyne") is defined as the "[f]ramework or low broad wall run out from a shore to check lateral drifting of the beach and to deter erosion by wave and tidal action" (WILEY'S DICTIONARY OF CIVIL ENGINEERING &CONSTRUCTION [L.F. Webster ed.], 1997, at 275).
In December 2014, the work on the project began to the west of West 37th Street. There was a fence located at West 37th Street serving as a demarcation line between the publicly (or the City-) owned land and the privately (or the SGA-) owned land. Specifically, the land to the east of West 37th Street was owned by the City, whereas the land to the west of West 37th Street was owned by SGA. The staging area for the initial work in December 2014 was on the City-owned land that was located approximately 100 feet east of West 37th Street. The accident, however, occurred on the west side of West 37th Street. Plaintiffs SOF, ¶¶ 3, 5, 20; City's SOF, ¶¶ 35-41.
On December 19,2014, plaintiff, a union-affiliated dock builder with VDI, was injured, while working on the SGA-owned part of the beach, when he was struck by a 3000-4000 pound (or two-ton) steel plate, as it was in the process of being lowered and positioned for the piledriving into the beach sand. As a general matter, the pile-driving of a steel plate into the beach sand consisted of two phases. In the first phase, an excavator (equipped with a Movax hammer) would lower a steel plate and (once the plate was properly lowered and positioned) would pile-drive it approximately four feet deep into the beach sand. In the second phase, a crane (equipped with a vibratory hammer that was more powerful than the Movax) would pilei
I drive the steel plate an additional twenty feet deep into the beach sand. Both phases of piledriving a single steel plate would be completed in thirty minutes. The accident happened in the first phase of the pile-driving. As the excavator was lowering the steel plate toward thes beach sand, the plate was caught on (or was snagged by) the pre-installed H-beam which protruded approximately ten inches above the beach sand. As the excavator operator attempted to dislodge the plate off (and from) the H-beam, the plate "kicked out" and struck plaintiff, injuring (for the most part) his left leg.
See Plaintiffs SOF, ¶ 37; SGA's SOF, ¶¶ 12, 22; H&L's SOF, ¶¶ 10, 17; Jason Bertelle's (H&L's) February 12, 2021 EBT tr at page 18, line 17 to page 19, line 10; page 28, lines 17-25; page 30, lines 7-8 (NYSCEF Doc. No. 138); Verified Bill of Particulars as to H&L, dated January 13, 2016, ¶¶ 20-21 (NYSCEF Doc. No. 105).
Immediately before the accident, plaintiff had been preparing for the second phase of the pile-driving. At the time, he had been holding a tag line attached to the crave-mounted vibratory hammer to ensure its stability. In contrast, however, no tag line had been attached to the excavator-mounted Movax, as it was lowering and positioning the plate in the first phase of pile-driving.
See Jason Bertelle's (H&L's) February 12, 2021 EBT tr at page 19, lines 6-10 ("Q. [U]sing the tag[] ine on the excavator would be more difficult than using a tag[]line on a crane; is that what you're telling me? A. In this particular operation on the Movax, yes.").
H&L's foreman who was "running the whole job," Jason Bertelle ("Bertelle"), had instructed plaintiff what to do on site and had assigned him the specific task of holding tag lines on the day of the accident. At the time of the accident, Bertelle was standing within ten feet of the steel plate at issue, signaling to the excavator operator. Bertelle could not recall at his pretrial deposition whether he had signaled to the excavator operator to raise the plate after it had been caught on the H-beam. Bertelle further conceded at his pretrial deposition that if he had been looking west toward plaintiff, he would have instructed plaintiff to move out of the way and would have signaled to the excavator operator to that effect. SGA's SOF, ¶¶ 12-13, 18, 22, 27.
Plaintiff testified that he had been properly positioned on the day/time of the accident, whereas Bertelle testified that plaintiff had been in the wrong place at the wrong time, I inasmuch as he (plaintiff) was non-essential to the excavator-performed /zrst-phase of piledriving. Nonetheless, Bertelle conceded at his pretrial deposition that it was his responsibility to ensure, before the steel plates were lowered, that all non-essential workers had stood clear. Bertelle further admitted at his pretrial deposition that there were methods to secure the steel plates as they were being lowered to prevent a "kick-out," but that such methods were too time-consuming to implement. Bertelle confirmed at his pretrial deposition that there were no barricades or other barriers placed in the areas where the plates were being lowered and positioned. The operation of the excavator and the placement/positioning of steel plates were under control of Bertelle and other H&L employees. SGA's SOF, ¶¶ 13, 23-24.
On April 15, 2015, plaintiff commenced this action asserting claims under Labor Law i §§ 240(1), 241 (6), and 200, as well as in common-law negligence. Each defendant separately joined issue. After discovery was completed and a note of issue was filed on December 7, I 2022, the instant motions (all timely served) ensued. Additional facts will be stated when relevant to the discussion below. The well-established summary-judgment standard of review is omitted in this decision and order in the interest of brevity.
Discussion
Plaintiff's Labor Law §§ 240 (1) and 241 (6) Claims
As noted, plaintiff moves for partial summary judgment on the issue of liability as against all defendants, whereas each defendant moves for summary judgment dismissing such claim. "Labor Law § 240 (1) imposes upon owners, contractors, and their agents a nondelegable duty to provide workers proper protection from elevation-related hazards" (Zoto v 259 W. 10th, LLC, 189 A.D.3d 1523, 1524 [2d Dept 2020] [emphasis added]). In addition, "Labor Law § 241 (6) requires owners and contractors to provide reasonable and adequate protection and safety for workers and "to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor" (Ramones v 425 County Rd., LLC, 217 A.D.3d 977, 980 [2d Dept 2023] [emphasis added]). As used in Labor Law §§ 240 (1) and 241 (6), the term "owner" is not limited to the titleholder of the property where the accident occurred and "encompasses a person who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for [its] benefit" (Scaparo v Village of Ilion, 13 N.Y.3d 864, 866 [2009] [internal quotation marks omitted]). "A noncontracting owner, one who does not hire contractors or agents to accomplish the work, will be liable under the Labor Law only where there exists some nexus between the owner and the worker" (Paul v Village of Quogue, 178 A.D.3d 942, 943-944 [2d Dept 2019] [internal I I quotation marks omitted]). "[T]he critical factor in determining whether a party is an 'owner' is whether it possessed the right to insist that proper safety practices were followed" (Billman v CLF Mgt., 19 A.D.3d 346, 347-348 [2d Dept 2005] [internal quotation marks omitted]), "and it is the right to control the work that is significant, not the actual exercise or nonexercise of control" (Sarigul v New York Tel. Co., 4 A.D.3d 168, 170 [1st Dept 2004] [internal quotation marks omitted], Iv denied 3 N.Y.3d 606 [2004]).
Defendant City
Here, the City has demonstrated its prima facie entitlement to judgment as a matter of law dismissing plaintiffs Labor Law §§ 240 (1) and 241 (6) claims as against it by establishing that it was an abutting property owner with no property interest in the area of the beach on which plaintiff was injured, and that it neither contracted for nor controlled the construction work on SGA's portion of the beach (see Alvarez v Hudson Vai. Realty Corp., 107 A.D.3d 748, 748 [2d Dept 2013]). Further, the City has demonstrated, prima facie, that the Corps (rather than the City) was in charge of the project, that the City performed no work at the project, and that the City's role in the project was largely confined to its regulatory responsibilities (/see Coelho v City of NY, 176 A.D.3d 1162, 1163 [2d Dept 2019]; Duarte v City of NY, 34 A.D.3d 522, 523 [2d Dept 2006]).
In opposition to the City's prima facie showing, plaintiff has failed to raise a triable issue of fact. Plaintiffs contention that the City "was a fee owner" of the staging area \i.e., the area where the equipment was located) is unavailing because SGA (rather than the City) owned the portion of the beach on which the construction activities were ongoing and where plaintiffs accident happened. "Although a defendant can be deemed an owner for purposes of the [Labor Law] statute[s] without holding title to the property," the City was not an owner I under the circumstances, "since there is no evidence that it contracted to have the work performed or had the authority to control the work site" (Addonisio v City of NY, 112 A.D.3d 554, 555 [1st Dept 2013]). The City's alleged involvement in "monitoring] the progress and ensur[ing] that the project stayed on schedule" cannot subject it to absolute liability under Labor Law §§ 240 (1) and 241 (6) for an injury resulting from the allegedly improper lowering (by a contractor it did not hire) of a steel plate on the adjacent, privately owned property (see Albanese v City of NY, 5 N.Y.3d 217, 221 [2005]).
Compare Romero v J & S Simcha, Inc., 39 A.D.3d 838, 839 (2d Dept 2007) ("The City admitted in its affirmation in support of its motion that it owned the property where the plaintiff was injured and submitted proof that it had issued a permit for the work. Under the facts of this case, the City's ownership of the property makes it liable for violations of Labor Law § 241 [6] which occur on its property regardless of whether it retained or controlled the contractor.") (emphasis added).
Accordingly, the branch of the City's motion for summary judgment dismissing I plaintiffs Labor Law §§ 240 (1) and 241 (6) claims as against it is granted-, conversely, the branch of plaintiffs motion for partial summary judgment on the issue of liability on his Labor Law §§ 240 (1) and 241 (6) claims as against the City is denied.
Defendant SGA
SGA has demonstrated its prima facie entitlement to judgment as a matter of law I dismissing plaintiffs Labor Law §§ 240 (1) and 241 (6) claims as against it by establishing that although it was a fee owner of the portion of the beach where construction activities were ongoing and the accident happened, it "neither contracted for nor supervised the work that brought about the injury, and had no authority to exercise any control over the specific work area that gave rise to [his] injuries" (Thompson v M&M Forwarding of Buffalo, NY, Inc., 174 A.D.3d 1433, 1434 [4th Dept 2019] [internal quotation marks omitted]). In that regard, the record establishes that: (1) SGA was neither a party to nor involved with the negotiation of the construction contract between Corps and H&L for the project; (2) SGA did not control any of the work performed by any entity; and (3) SGA otherwise had no control over the project, the contracts that governed the work for the project, the actual work performed by any entity (including plaintiff and his employer), and had no authority to control any aspect of the work at the project (see Ritter v Fort Schuyler Mgt. Corp., 169 A.D.3d 1419, 1420-1421 [4th Dept 2019]). 1
In opposition to SGA's prima facie showing, plaintiff has failed to raise a triable issue of fact. Plaintiffs contention that "[t]he law in this State is that the fee owner of land upon which construction occurs is liable for any violation of Labor Law [§§] 240 (1) and 241 (6)"is only partially incorrect. "[O]wnership of the premises where the accident occurred -standing alone - is not enough to impose liability under Labor Law [§ 240 (1) or] § 241 (6) where the property owner did not contract for the work resulting in the plaintiffs injuries; that i is, ownership is a necessary condition, but not a sufficient one. Rather, [the Court of Appeals has] insisted on some nexus between the owner and the worker, whether by a lease agreement i or grant of an easement, or other property interest" (Morton v State, 15 N.Y.3d 50, 56 [2010] [internal quotation marks omitted; emphasis added]; see also Guryev v Tomchinsky, 20 N.Y.3d 194, 201 [2012]; Abbatiello v Lancaster Studio Assoc., 3 N.Y.3d 46, 51 [2004]). Likewise unavailing is plaintiffs reliance on SGA's grant of a non-exclusive license for a temporary I access and use in, on, over and across its beachfront to the City, the State of New York, the Corps (and their respective representatives, agents, and contractors) for all work associated with the project. Unlike a lease, easement, or other property interest (as was noted in Morton v State), *'[a] license ... is a revocable privilege given to one, without interest in the lands of another, to do one or more acts of a temporary nature upon such lands" (Union Sq. Park Community Coalition, Inc. v NYC Dept, of Parks &Recreation, 22NY3d 648, 656 [2014] [internal quotation marks omitted]). Equally important, SGA did not contract with the Corps or H&L to have the steel plates installed. Indeed, SGA had no choice but to temporarily allow the Corps (as well as its contractors and subcontractors, including H&L and VDI) to enter its portion of the beach for the performance of the project. Significantly, SGA did not grant Corps an easement or other property interest in its part of the beach (see Scaparo, 13 N.Y.3d at 866).
See Plaintiffs Affirmation in Opposition to Sea Gate's Motion, dated August 4, 2023 (NYSCEF Doc. No. 222), ¶¶ 14-17 (discussing Coleman v City of NY, 91 N.Y.2d 821 [1997]; and Gordon v Eastern Ry. Supp., Inc., 82 N.Y.2d 555 [1993]). The Coleman and Gordon holdings were subsequently clarified and restated in Guryev v Tomchinsky, 20 N.Y.3d 194 (2012); Morton v State, 15 N.Y.3d 50 (2010); and Abbatiello v Lancaster Studio Assoc., 3 N.Y.3d 46 (2004), as discussed in the text above.
See Agreement for Temporary Access and Use of Private Property, dated as of December 11, 2013, by and between SGA and the State of New York (NYSCEF Doc. No. 145), ¶ 1 (quoted and discussed in Plaintiffs Opposition to Sea Gate's Motion, ¶¶ 7 and 36).
Accordingly, the branch of SGA's motion for summary j udgment dismissing plaintiffs Labor Law §§ 240 (1) and 241 (6) claims as against it is granted-, conversely, the branch of plaintiff s motion for partial summary' judgment on the issue of liability on his Labor Law §§ 240 (1) and 241 (6) claims as against SGA is denied. The alternative branch of SGA's motion which is for summary judgment on its cross claim for common-law indemnification as against H&L is denied as academic because SGA is not liable to plaintiff (see Locke v URS Architecture &Engg.-NY, P.C., 202 A.D.3d 505, 507 [1st Dept 2022]; Hernandez v Asoli, 171 A.D.3d 893, 896 [2d Dept 2019]).
Defendant H&L
Plaintiff has demonstrated his prima facie entitlement to partial summary judgment on the issue of liability on his Labor Law § 240 (1) claim as against H&L by submitting evidence showing that it failed to use tag lines or other safety devices to secure a 3000-to-4000-pound (or two-ton) steel plate, as it was being lowered and positioned, thereby allowing it to hit against (or become snagged by) the H-beam and then to kick out and strike plaintiff causing his injuries (see MacGregor v MRMD NY Corp., 194 A.D.3d 550. 551 [1st Dept 2021]; see also Hayek v Metro. Transp. Auth., 195 A.D.3d 568 [1st Dept 2021]; Flores v Metro. Transp. Auth., 164 A.D.3d 418, 419 [1st Dept 2018]; Naughton v City of NY, 94 A.D.3d 1, 8 [1st Dept 2012]; Jock v Landmark Healthcare Facilities, LLC, 62 A.D.3d 1070,1071 [3d Dept 2009]; Ray v City of NY, 62 A.D.3d 591, 591-592 [1st Dept 2009]; Baker v Barron's Educ. Serv. Corp., 248 A.D.2d 655, 655-656 [2d Dept 1998]).
In opposition to plaintiff s prima facie showing on his Labor Law § 240 (1) claim, H&L has failed to raise a triable issue of fact. H&L's initial contention that the protections of Labor Law § 240 (1) were not implicated because plaintiff was not working on a "structure" overlooks the broad definition of the term "structure" as "any production or piece of work artificially built up or composed of parts joined together in some definite manner" (Lewis-Moors v Contel of NY, Inc., 78 N.Y.2d 942, 943 [1991] [internal quotation marks omitted]). Here, the installation of steel plates was performed as part of the construction of the structures known as "T-groins" (see Lombardi v Stout, 80 N.Y.2d 290, 295 [1992]; Sinzieri v Expositions, Inc., 270 A.D.2d 332, 333 [2d Dept 2000]); Saquicaray v Consol. Edison Co. of NY, Inc., 2017 NY Slip Op 32277[U], *9 [Sup Ct, NY County 2017], adhered to on reargument 2018 NY Slip Op 31479[U] [Sup Ct, NY County 2018], affd 171 A.D.3d 416 [1st Dept 2019]).
H&L's next contention that plaintiffs injuries were not the direct consequence of the application of the force of gravity to an object or person, fares no better. The metal plate was approximately three feet above the ground when it struck plaintiff. This elevation differential cannot be viewed as de minimis, considering the weight of the steel plate and the amount of force it generated over the course of its relatively short descent (see Runner v New York Stock Exch., Inc., 13 N.Y.3d 599, 605 [2009]; Makkieh v Judlau Contr. Inc., 162 A.D.3d 468, 468-469 [1st Dept 2018]; Treile v Brooklyn Tillary, LLC, 120 A.D.3d 1335, 1338 [2d Dept 2014]).
See Plaintiffs May 22,2017 EBT tr at page 35, lines 14-23 (describing the accident) (NYSCEF Doc. No. 133).
H&L's further contention that plaintiffs accident was not the direct consequence of any failure to provide him with adequate safety protection is belied by the record. It is undisputed that the Movax-equipped excavator which was lowering the steel plate lacked a tag line which could have been used to stabilize the movement of the plate to prevent the accidept. It is likewise undisputed that the work area in which the metal plate was being lowered lacked protective barriers to keep off the unnecessary personnel (see Linares v City of NY, 209 A.D.3d 468, 469 [1st Dept 2022]; Russo v Van Dale Props., LLC, 200 A.D.3d 1470, 1472 [3d Dept 2021]; Landi v SDS William St., LLC, 146 A.D.3d 33, 37 [1st Dept 2016]; McLean v Tishman Const. Corp., 144 A.D.3d 534, 535 [1st Dept 2016]).
Contrary to H&L's final contention, the record does not support its argument that plaintiff was the sole proximate cause of the accident. A proximate cause of his accident was the failure to properly lower and position the steel plate which, lacking a tag line, struck him (see Fraser v City of NY, 158 A.D.3d 428 [1st Dept 2018]). It is immaterial for purposes of Labor Law § 240 (1) liability whether, at the time of the accident, plaintiff was in the "right" place (according to his pretrial testimony) or in the "wrong" place (according to his foreman's pretrial testimony). "A worker's injury in an area of the work site where the worker was not supposed to be amounts to comparative negligence, which is not a defense to a Labor Law § 240 (1) claim" (Plaku v 1622 Van Buren LLC, 198 A.D.3d 431, 432 [1st Dept 2021]; see also Hewitt v NY 70th St. LLC, 187 A.D.3d 574, 575 [1st Dept 2020] [same; collecting authorities]).
Accordingly, the branch of plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240 (1) claim as against H&L is granted', conversely, the branch of H&L's motion for summary judgment dismissing plaintiff's Labor Law § 240 (1) claim as against it is denied.
Inasmuch as "[t]he plaintiffs damages are the same under any of the theories of liability i" and he can only recover once" (Auriemma v Biltmore Theatre, LLC, 82 A.D.3d 1, 12 [1st Dept 2011]), the remaining branch of plaintiffs motion which is for partial summary judgment on the issue of liability on his Labor Law § 241 (6) claim as against H&L is denied as academic, likewise, the branch of H&L's motion for summary judgment dismissing plaintiffs Labor Law § 241 (6) claim as against it is denied as academic (see Mena v 5 Beekman Prop. Owner LLC, 212 A.D.3d 466, 467 [1st Dept 2023]; Pimentel v DE Freight LLC, 205 A.D.3d 591, 593 [1st Dept 2022]; Miller v Rerob, LLC, 197 A.D.3d 979, 981 [4th Dept 2021]).
Turning to the remaining branch of H&L's motion which is for summary judgment dismissing plaintiffs Labor Law § 200/common-law negligence claims as against it, the Court finds that H&L has failed to establish prima facie that it did not control the means and methods of the injury-producing work so as to impose liability on it (see Rizzuto v L.A. Wenger Contr. Co., 91 N.Y.2d 343. 352-353 [1998]; Seem v Premier Camp Co., LLC, 200 A.D.3d 921, 926 [2d Dept 2021]; Hammer v ACC Constr. Corp., 193 A.D.3d 455, 456 [1st Dept 2021]). Accordingly, the remaining branch of H&L's motion which is for summary judgment dismissing plaintiff s Labor Law § 200/common-law negligence claims as against it is denied.
Conclusion
Accordingly, it is
ORDERED that in Seq. No. 7, plaintiffs motion for partial summary judgment on the issue of liability under Labor Law §§ 240 (1) and 241 (6) as against defendants is granted to the extent that plaintiff is granted partial summary judgment on the issue of liability on his Labor Law § 240 (1) claim as against H&L\ and the remainder of his motion is denied; and it is further
ORDERED that in Seq. No. 8, the City's motion for summary judgment dismissing plaintiffs claims and cross claims as against it is granted, and the complaint and all cross claims against the City are dismissed without costs and disbursements; and it is further
ORDERED that in Seq. No. 9, SGA's motion for summary judgment dismissing I plaintiffs claims and cross claims as against it is granted, and the complaint and all cross claims against SGA are dismissed without costs and disbursements; and it is further
ORDERED that in Seq. No. 10, H&L's motion for summary judgment dismissing plaintiffs claims and codefendants' cross claims as against it is denied-, and it is further
ORDERED that, in light of the dismissal of the action as against the City and SGA, the action is severed and continued as against H&L, and the caption is amended to read in its entirety as follows:
HANS FAHNING, Plaintiff, -against
H&L CONTRACTING, LLC, Defendant.
and it is further
ORDERED that, in light of dismissal of the action against the City and SGA, it is respectfully referred for transfer to the Non-City Trial Readiness Part; and it is further
ORDERED that any relief not expressly granted herein is denied; and it is further
ORDERED that the Corporation Counsel is directed to electronically serve a copy of this Decision and Order with notice of entry on the other parties' respective counsel and to electronically file an affidavit of said service with the Kings County Clerk.
The foregoing constitutes the Decision and Order of this Court.