Opinion
Index No. 36011/2017E
02-27-2023
Paulo Gomis, Plaintiff(s), v. Summmit Glory LLC AND STRUCTURE TONE LLC, Defendant(s). SUMMIT GLORY LLC AND STRUCTURE TONE LLC, Third-Party Plaintiff(s), v. U.S. SECURITY ASSOCIATES, INC., Third-Party Defendant(s).
Greenbarg Law P.C. Plaintiff Paulo Gomis Clausen Miller P.C. Defendant Summit Glory LLC Barry McTiernan & Moore LLC Defendant Structured Tone LLC Shafer Partners, LLP Defendant U.S. Security Associates, Inc. Catalano, Gallardo & Petropoulos, LLP, Commodore Construction Corp.
Unpublished Opinion
Greenbarg Law P.C. Plaintiff Paulo Gomis
Clausen Miller P.C. Defendant Summit Glory LLC
Barry McTiernan & Moore LLC Defendant Structured Tone LLC
Shafer Partners, LLP Defendant U.S. Security Associates, Inc.
Catalano, Gallardo & Petropoulos, LLP, Commodore Construction Corp.
HON. MARISSA SOTO, J.S.C.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
Papers: NYSCEF Doc. #s/
Notice of Motion, Affirmations/ Affidavits in Support and Exhibits thereto: 113 - 208
Opposition/Cross Motion Filings: 209 - 250
Reply: 251 - 283
Oral Arguments/Other: *1
Paulo Gomis (hereinafter the "Plaintiff") on June 2, 2017 was employed by third-party Defendant U.S. Security Associates (hereinafter "US Security") and assigned to work at the building known as 28 Liberty Street, owned by Defendant Summit Glory LLC (hereinafter "Summit Glory") (hereinafter the "Subject Premises"), pursuant to the contract between those two entities. Defendant Structure Tone LLC (hereinafter "Structure Tone") was the general contractor for a project involving, in part, the demolition of various floors in the Subject Premises, including the 15th floor.
On June 2, 2017, while employed by U.S. Security as a Fire Watch Relief Guard, while leaving the 15th floor, Plaintiff alleges that he stepped on a plank covering a hole in the floor. Plaintiff further alleges that the plank broke while he was walking over it and he fell into the hole up to his chest, stopping his fall to the floor below by using his elbows. Plaintiff alleges he suffered injuries from this incident and commenced this action on December 14, 2017. Plaintiff alleged the following causes of action: (i) common law negligence and Labor Law 200, (ii) Labor Law §240(1), and (iii) Labor Law §241(6).
A third-party summons and complaint was filed on April 9, 2019 by Structure Tone and Summit Glory against U.S. Security. The third-party complaint alleged the following causes of action: (i) indemnification claim, (ii) breach of contract for failing to obtain proper insurance, and (iii) attorneys' fees to Summit Glory. A second third-party complaint was filed on July 18, 2022, by Structure Tone against Commodore Construction Corp. The second third-party complaint alleges (i) contractual indemnification, (ii) common law negligence, and (iii) attorneys' fees, and (iv) breach of contract for failing to secure insurance.
SUMMARY JUDGMENT STANDARD
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists. Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts. Giuffrida v. Citibank Corp., 100 N.Y.2d 72 (2003). The failure to oppose a motion for summary judgment alone does not justify the granting of summary judgment. Instead, the court must still assess whether the moving party has fulfilled its burden of demonstrating that there is no genuine issue of material fact and its entitlement to judgment as a matter of law. Winegrad, et al., v. New York University Medical Center, 64 N.Y.2d 851 (1985); Liberty Taxi Mgt., Inc. v. Gincherman, 32 A.D.3d 276 (1st Dep't 2006). "In other words, even in the face of a nonmovant's silence or a poorly drafted response, summary judgment may not be granted unless the movant has met their burden of establishing entitlement to judgment as a matter of law." Rivera v. State of New York, 34 N.Y.3d 383, 401-402 (2019). The function of the court on a motion for summary judgment is issue finding rather than issue determination, and the court must evaluate whether the alleged factual issues presented are genuine or unsubstantive. Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 394 (1957).
STRUCTURE TONE'S MOTION FOR SUMMARY JUDGMENT (MOTION SEQUENCE 4)
Structure Tone seeks summary judgment in its favor and dismissing those claims asserted by Plaintiff under Sections 200, 240 and 241 (6) of the Labor Law. Structure argues that at no time did Plaintiff belong to the class of employees intended to be protected by the Labor Law and, accordingly, his claims asserted under the Labor Law should be dismissed. Structure's motion does not seek dismissal of Plaintiff's common law negligence claim.
Structure's motion and arguments are mirrored in the arguments and relief requested by Summit Glory and U.S. Security as well. See Motion Sequence 6 and 7. Structure's motion is opposed by the Plaintiff. Plaintiff argues that Structure's motion must be denied as Plaintiff was a "covered person" under the Labor Law. Plaintiff claims there is no question that the Plaintiff was both "working in, and lawfully frequenting" the premises where his accident occurred, and that his actions were "in furtherance" of the ongoing construction, an enumerated activity under the Labor Law.
Plaintiff Was Not a Covered Person Under Labor Law
Structure Tone argues that the Plaintiff was not a protected or covered person under Labor law §240, §241(6) and §200 because Plaintiff (i) was acting as security guard and (ii) was not performing covered work. Structure Tone argues that the First Department has held that a security guard's duty, without more, was not covered by Labor Law. Long v. Battery Park City Auth., 743 N.Y.S.2d 496, 497 (1st Dept 2002) (held on duty security guard injured by a construction gate falling on him/her while patrolling the premises of the client of his employer was not performing any of the construction related activities falling within the Labor Law's protective ambit); Blandon v. Advance Contr. Co., 264 A.D.2d 550 (1st Dept 1999) (statutory protection does not extend to employees performing routine maintenance tasks at a building that happens to be undergoing construction or renovation, or duties as a night watchman or security guard); Martinez v. City of New York, 93 N.Y.2d 322 (1999) (pre-demolition inspection work in contemplation of future demolition not covered under 240(1)); Valinoti v. Sandvik Seamco, Inc., 246 A.D.2d 344 (1st Dept 1998) (The presence of extensive construction work does not provide a plaintiff with ability to claim Labor Law violations if the plaintiff was not hired to work on the buildings' construction or renovation); Momodou v. 626 Sutter Ave. Assoc., LLC, 106 A.D.3d 648, 966 N.Y.S.2d 390 (1st Dept 2013) (Security guard not protected person even though assigned to construction site).
The First Department's "covered person" jurisprudence is based not only on the specific job duties being performed at the time of the accident but also on what the plaintiff was retained to do - namely whether the retention was construction related. Id. The First Department has found that when both the type of work and the work retained for did not entail construction related activity that it was not covered. Blandon v. Advance Contr. Co., 264 A.D.2d 550, 552 (1st Dept 1999) (internal citations omitted). "The statutory protection does not extend, for example, to employees performing routine maintenance tasks at a building that happens to be undergoing construction or renovation, or duties as a night watchman or security guard."
Plaintiff opposes Direct Defendants' motions for summary judgment and relies on Longo v. Metro-North Commuter R.R., 275 A.D.2d 238, 239 (1st Dept 2000). However, the Court finds Longo distinguishable because the job duties of the plaintiff in Longo are not comparable to the undisputed duties of within Plaintiff. Further, the distinction between the types of work performed was discussed Longo, with the court contrasting the work before it from that more akin to the undisputed work of Plaintiff herein. Id. In Longo, "plaintiff's assignment was to protect the Yonkers workers from any dangers arising from moving trains or contact with the third rail, and to prevent any debris, tools or other objects from "fouling" the tracks." Id. Here, Plaintiff (i) was not present when construction was ongoing, (ii) was not performing a task to protect the workers or (iii) was not responsible for maintaining the environment to enable the construction workers from performing their work. Therefore, Plaintiff's monitoring was not in furtherance of construction but was instead in furtherance of the general and fire safety of the building. Longo's work was focused on the construction workers and the prevention of work stoppages, which is different than the situation presented here. Id. Plaintiff himself testified that his duties included looking out for fire or smoke, inspecting and identifying any fire hazards, ensuring the fire extinguishers were in proper place, and creating a report every 30 minutes. Nothing in the Plaintiff's description was the specific protection of the construction workers from fire hazards or the preparation or preservation of the work environment. Further, Plaintiff's duties would remain the same with only slight changes whether regardless of the construction.
Plaintiff further cites O'Connor v. Lincoln Metrocenter Partners, L.P., 266 A.D.2d 60 (1st Dept 1999). However, O'Connor is distinguishable from the case at bar in that the type of activity in question was clearly construction related. Id. at 61. Plaintiff also points to dicta in Angamarca v. Silverstein Properties, Inc., 16 A.D.3d 242 (1st Dept. 2005), however, the holding in Angamarca is similarly inapposite. The plaintiff in Angamarca was engaged in the removal of asbestos not at all akin to the duties enumerated by Plaintiff herein. Id.
Lastly, Plaintiff argues that the First Department in Campisi v. Epos Contr. Corp., 299 A.D.2d 4 (1st Dept 2003), supports its coverage. However, this again is misplaced as the court in Campisi relied on the analysis discussed above with an emphasis on a different prong, namely whether the plaintiff had been retained for construction related activity. Id. at 8. Here, it is undisputed that U.S. Security was not retained in connection with the construction and therefore, the extension of coverage to Campisi was not contradictory to Plaintiff's lack of coverage. Here, the contract was for a period irrespective of the construction and none of the enumerated activities contemplated were in furtherance of construction rather than the general safety of the building. NYSCEF Doc. No. 213 pgs. 30-31.
Based on the above and the lack of any facts in dispute, the Court finds that Plaintiff was not a covered person at the time of the accident. Accordingly, Structure Tone's motion for summary judgment denying labor law claims is granted, Summit Glory's motion seeking the same relief is hereby rendered moot, and Plaintiff's labor law claims dismissed.
SUMMIT GLORY'S SUMMARY JUDGMENT MOTION (MOTION SEQUENCE 6)
Summit Glory moves for an Order a) pursuant to CPLR 3212 and 3211, granting Summit Glory summary judgment and dismissing Plaintiff's complaint in its entirety as well as any cross-claims b) granting Defendant, Third-Party Plaintiff, Summit Glory summary judgment pursuant to CPLR § 3212 for contractual and common law indemnity causes of action alleged against the Defendant Structure Tone LLC and third-party Defendant, U.S. Security Associates, Inc; c) granting Summit Glory summary judgment as against the Third-Party Defendant, U.S. Security for breach of contract for failure to obtain the correct insurance policy and for such other and further relief as to the Court may seem just and proper. The labor law claims were addressed as to all moving parties above.
Summit Glory Does Not Meet Its Prima Facie Burden for Summary Judgment on Negligence
Summit Glory argues that Summit Glory could not have constructive notice because the Plaintiff could not see a problem with the floor with his naked eye immediately before falling. Summit Glory argues that Plaintiff's inability to identify the danger in the course of his duties makes a finding of constructive notice by Summit Glory impossible. This argument ignores the following: (i) Summit Glory had a building manager, Mr. Quinlan, who was responsible for the overall safety of the Subject Premises, and testified he could stop work at any point if he believed that there was a safety concern, (ii) Plaintiff's exposure and familiarity with the construction was severely limited by his role as a night security guard and is therefore not comparable to that of a building manager, (iii) Plaintiff's responsibility was limited to fire hazards and he, as someone lawfully on the subject premises, had a right to assume that the floor was safe for him, in contrast to the building manager whose job it was to assure the floor was safe for those lawfully on the Subject Premises, (iv) Mr. Quinlan has a degree in mechanical engineering, and (v) Mr. Quinlan participated in daily meetings with all general contractors, including Structure Tone working in the Subject Premises. NYSCEF Doc. No. 144.
Further, Summit Glory argues that "... plaintiff cannot demonstrate that the condition existed for any discernible period of time." This ignores that it is not Plaintiff's burden at this time to do so and a reasonable juror could find that such knowledge could have been obtained by Summit Glory based on Mr. Quinlan's deposition testimony of daily meetings with Structure Tone. NYSCEF Doc. No. 144. In addition, Mr. Quinlan, testified that prior to June 2, 2017, he was aware of the rectangular open space on the 15th floor where Plaintiff's incident eventually occurred. Id. pgs. 51-53. A jury could find that based on the Subject Premises' property manager's daily meetings and his awareness of the duct removal that he had constructive notice of a potentially dangerous condition and an obligation to protect against it.
Similarly, Summit Glory's proximate cause argument that because the Plaintiff was supposed to know where all the exits were but tried to use an exit under demolition thereby making him the sole proximate cause is conclusory and is not a matter of law appropriate to decide on summary judgment. Accordingly, summary judgment on common law negligence is denied.
Structure Tone and Summit Glory's Contract Requires Structure Tone to Indemnify Summit Glory for Claims
Summit Glory, while acknowledging its current indemnification by Structure Tone, also moves for summary judgment on the issue of indemnification to address whether excess coverage is similarly required under the circumstances. Summit Glory relies on the same arguments set forth in its summary judgment motion against U.S. Security and the clear terms of the indemnification clause set forth in the contract between Summit Glory and Structure Tone. The contractual indemnification clause states in relevant part as follows:
[Structure Tone] shall defend... shall indemnify, and hold harmless the Owner... from and against any and all claims, damages, losses... arising out of or resulting from performance of the Work to the extent attributable to claims for personal injury... but only to the extent caused by the conduct, acts or omissions of,... the General Contractor or anyone directly or indirectly employed by it or anyone for whose acts it may be liable regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder.NYSCEF Doc. No. 214 pg. 32.
As set forth in more detail below, neither the nature of the labor law claims nor the possible lack of negligence on Structure Tone's part serve as a preclusion from the clearly worded indemnification provided in the contract between Structure Tone and Summit Glory for any claims arising from Structure Tone's work or omissions. The controversy of this case clearly arises from the work or omissions performed by Structure Tone directly or indirectly by a subcontractor under Structure Tone's control.
Structure Tone argues in its opposition that there was no contract between Structure Tone and Summit Glory that required Structure Tone to defend or indemnify Summit Glory based on plaintiff's injuries. NYSCEF Doc. No. 209 pg. 3 ¶8. This is belied by the language of the contract referenced above. The Court does not perceive any ambiguity in the language of the contract and therefore, its analysis will not go beyond it. Here, the labor law and negligence claims all arise from the work performed or not performed by Structure Tone or its subcontractors on the 15th floor where the hole was located. There is nothing on this record alleging to the contrary and therefore, Summit Glory's motion is granted.
US Security and Summit Glory's Contract Provides Broad Indemnification
The indemnification of Summit Glory undertaken by U.S. Security is set forth in its contract, dated May 25, 2016, and included as an exhibit at NYSCEF Doc. No. 148 ¶13 (the U.S. Security Contract"). The U.S. Security Contract states in relevant part as follows:
To the fullest extent permitted by law, Contractor shall defend (reasonably acceptable to Owner and/or CBRE), indemnify, pay, save and hold harmless the Owner Indemnified Parties from and against any liabilities, damages, costs, expenses, suits, losses, claims, actions, fines and penalties (including, without limitation, court costs, reasonable attorneys' fees and any other reasonable costs of litigation) (hereinafter collectively, the "Claims") of third parties that any of the Owner Indemnified Parties may suffer, sustain or incur to the extent arising out of or in connection with... Contractor's work or presence on the Property, including but not limited to any negligent acts, errors or omissions, intentional misconduct or fraud of Contractor, its employees, subcontractors or agents or others, whether active or passive, actual or alleged, whether in the provision of the Work, failure to provide any or all of the Work or otherwise;... claims by any Contractor employee including, without limitation, for bodily injury or wrongful discharge... The foregoing indemnification shall apply irrespective of whether Claims are asserted by a party, by its employees, agents or subcontractors, or by unrelated third parties. Nothing contained herein shall relieve Contractor of any responsibility for Claims regardless of whether Contractor is required to provide insurance covering such Claims or whether the matter giving rise to the Claims is the responsibility of Contractor's agents, employees or subcontractors.
The U.S. Security Contract explicitly states its intent to indemnify Summit Glory to the fullest extent permitted by law regardless of fault. U.S. Security's opposition based in General Obligations Law § 5-322.1 is only applicable to the common law negligence claims but it does not preclude coverage for the labor law claims under controlling First Department law. General Obligations Law § 5-322.1 declares void agreements purporting to indemnify against liability for injuries "contributed to, caused by or resulting from" their own negligence, "whether such negligence be in whole or in part". Brown v. Two Exchange Plaza Partners, 146 A.D.2d 129, 137-138 (1st Dept 1989). The First Department has held that the question for purposes of GOL § 5-322.1 is whether the indemnitee-Summit Glory was negligent, and that the bar of the statute applies only if the indemnitee was in some degree negligent irrespective of negligence, or the lack of it, by the indemnitor. Id. Further, the First Department has held that liability under Labor Law §240(1) is not the legal equivalent of a finding of negligence. Id. Liability under Labor Law § 240(1) is absolute, meaning that it is imposed without regard to whether due care was exercised or not and, thus, should not give rise to an inference of negligence. Id. The burden is on U.S. Security to come forward with proof that Summit Glory was, if not actually negligent, then at least at fault for the Labor Law violation, and "in the absence of such proof, the limitation on the force of the parties' indemnification agreement which results from application of General Obligations Law § 5-322.1 is inapplicable." Id. citing (Walsh v Morse Diesel, 143 A.D.2d 653, 655 (2d Dept 1988)). Further, Labor Law § 200 applies to an owner or managing agent who exercises control or supervision over the work performed at the accident site. De La Rosa v. Philip Morris Mgmt. Corp., 303 A.D.2d 190, 192 (1st Dept 2003) (internal citations omitted).
The First Department has stated that a "general duty to supervise the work and ensure compliance with safety regulations is insufficient to constitute the requisite supervision and control under Labor Law § 200". Id. Accordingly, the labor law claims cannot form the basis for a denial of indemnification obligations under General Obligations Law § 5-322.1.
Summit Glory's summary judgment motion in connection with the negligence claims argues that under the undisputed facts of the case, there is no factual basis upon which to find Summit Glory directly negligent. Summit Glory argues that a party is entitled to contractual indemnification if the intention to indemnify is clearly demonstrated from the language of the contract. Drzewinski v. Atlantic Scaffold & Ladder Co., 70 N.Y.2d 774, 777, 515 N.E.2d 902 (1987). The party that seeks indemnity need only establish that it was free from actual negligence and was liable by virtue of vicarious liability. De La Rosa v. Phillip Morris Mgt. Corp., 303 A.D.2d 190, 193 (1st Dept 2003).
Based on the above, Summit Glory's motion for summary judgment on U.S. Security's indemnification is granted on U.S. Security's obligation to indemnify Summit Glory in connection with the labor law claims.
Summit Glory's motion for summary judgment on U.S. Security's indemnification obligation for the common law negligence claims is denied. On this record a reasonable juror could find Summit Glory's building manager's oversight, supervision and/or control over the work being performed by Structure Tone to raise a question of fact. Accordingly, Summit Glory's motion for summary judgment on the question of U.S. Security's indemnification obligation in connection with the common law negligence is denied.
Summit Glory's Summary Judgment Motion for Breach of Contract is Denied
The Court finds that there is a question of fact as to whether the contract was to be interpreted as an aggregate coverage between primary and excess requirement or one to be satisfied exclusively by primary coverage. The language contained is sufficiently broad to allow either interpretation. Therefore, summary judgment on U.S. Security's breach is denied.
PLAINTIFF'S MOTION TO AMEND THE COMPLAINT AND SUMMARY JUDGMENT MOTION (Motion Sequence 7)
Plaintiff moves for an order (i) pursuant to CPLR § 3025(b), granting plaintiff leave to amend his Complaint and Bill of Particulars to include additional allegations of negligence under the Espinal v Melville Snow Contrs., 98 N.Y.2d 136 (2002) exceptions; (ii) deeming the proposed Amended Complaint and Amended Bill of Particulars served on the Defendants through service of these Motion papers herein upon the Defendants, and through e-filing; (iii) pursuant to CPLR § 3212, granting Plaintiff summary judgment on liability under Labor Law § 240(1); (iv) pursuant to CPLR § 3212, granting Plaintiff summary judgment on liability under Labor Law § 241(6); (v) pursuant to CPLR § 3212, granting Plaintiff summary judgment on liability; and (vi) pursuant to CPLR §3211(b), striking Defendants' Summit Glory and Structure Tone First and Fifth affirmative defenses and defendant U.S. Security's Alleging Plaintiff's culpable conduct, an open and obvious condition, and waiver/release (See NYSCEF Doc. No. 2 and 15).
Structure Tone opposes Plaintiff's motion arguing that the amendment is prejudicial and that the summary judgment motion is time barred. Alternatively, Structure Tone argues that Plaintiff is not entitled to summary judgment on its labor law claims because the Plaintiff is not a covered person under Labor Law.
US Security also opposed Plaintiff's motion to amend, summary judgment, and striking Structure Tone's and Summit Glory's affirmative defense of open and obvious. U.S. Security voluntarily withdrew its waiver and release defense.
Summit Glory opposes Plaintiff's summary judgment motion as late filed and, alternatively, argues the Labor Law and common law liability should be denied on the law. Summit Glory also argues that its affirmative defense of open and obvious should not be stricken.
The Court will first address the threshold issue of whether Plaintiff's summary judgment motion is timely. The Note of Issue was filed in this case on February 24, 2022, and this Part's rules impose a 60 day period after notes of issue for summary judgment motions to be filed. Therefore, April 25, 2022 was the deadline for summary judgment motions and Plaintiff's was filed on April 29, 2022. Plaintiff argues that its motion is timely and offers no justification for its late filing. Despite Plaintiff's assertions to the contrary, its summary judgment motion is untimely and no good cause for such late filing was offered. Brill v. City of New York, 2 N.Y.3d 648, 652 (2004) ("No excuse at all, or a perfunctory excuse, cannot be 'good cause.'"). Accordingly, the summary judgment portion of the motion is untimely, and no good cause was offered for such untimeliness. Plaintiff argues in the alternative that even though late it is in the discretion of the Court to consider its summary judgment motion because the relief it requests is nearly identical to the relief requested in a timely summary judgment motion. Sheng Hai Tong v. K & K 7619, Inc., 144 A.D.3d 887, 890 (2d Dept 2016) (untimely motion or cross motion for summary judgment may be considered by the court where a timely motion for summary judgment was made on nearly identical grounds).
Based on the above, the Court finds that Plaintiff's motion for summary judgment will be considered on the claims raised in the timely filed motions. Sheng Hai Tong v. K & K 7619, 144 A.D.3d at 890. Plaintiff's motion for summary judgment on the labor law claims is denied for the reasons set forth in the discussion of Motion sequence 4 above. Plaintiff's motion for summary judgment on common law liability is denied as there are questions of fact as to notice discussed more fully above.
Motions To Amend Must Clearly Show The Changes Or Additions To Be Made
Plaintiff's motion pursuant to CPLR §3025(b), granting plaintiff leave to amend his Complaint and Bill of Particulars to include additional allegations of negligence under the Espinal v Melville Snow Contrs., 98 N.Y.2d 136 (2002) exceptions seeks to amend the complaint and the bill of particulars to reflect additional theories of liability not previously argued. CPLR §3025(b) states in relevant part as follows:
A party may amend... at any time by leave of court... Leave shall be freely given... Any motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading.CPLR §3025(b). It is well established that leave to amend a pleading, pursuant to CPLR §3025(b) is freely given "absent prejudice or surprise resulting directly from the delay." Anoun v. City of NY, 85 A.D.3d 694, 694 (1st Dept 2011) (citations omitted). A bill of particulars is merely an amplification of the pleadings. Cicero v. Walter, 2021 NY Misc. LEXIS 2115, *2 (Sup. Ct. BX Cty April 30, 2021) citing State v Horsemen's Benevolent & Protective Ass'n, 34 A.D.2d 769, (1st Dept 1970).
Here, Plaintiff has failed to comply with its obligations under the statute of "clearly showing the changes or addition to be made to the pleading". CPLR §3025(b). In its motion, Plaintiff states that it has added the Espinal exception but does not explicitly list the changes. The Plaintiff has submitted the amended Summons and Complaint and Bill of Particulars with no visible indicia of the changes made. NYSCEF Doc. Nos. 176, 177. The lack of such a clear showing leaves the non-moving parties no choice but to conduct a line-by-line comparison between the original and the allegedly amended pleadings. Such expenditure of time and effort shifts the burden from the Plaintiff to the non-movants to locate and object to any proposed changes rather than where it should be on movant to justify its changes. Further, the lack of clearly identified changes places an undue burden on courts. Accordingly, Plaintiff's motion to amend is denied without prejudice.
Motion to Dismiss Affirmative Defenses
As stated earlier, Plaintiff moved to dismiss two affirmative defenses. U.S. Security voluntarily withdrew its waiver and release defense, leaving only Defendants' Summit Glory and Structure Tone's affirmative of an open and obvious condition.
The standard of review on a motion to dismiss an affirmative defense pursuant to CPLR §3211(b) is whether there is any legal or factual basis for the assertion of the defense. The truth of the allegations must be assumed, and if under any view of the facts a defense is stated, the motion to dismiss must be denied. In re Liquidation of Ideal Mut. Ins. Co., 140 A.D.2d 62, 67 (1st Dept 1988). Plaintiff does not present any evidence in favor of the relief requested other than a conclusory statement that nothing on the record supports it. NYSCEF Doc. No. 174 ¶61. The invocation of the record in toto with no specific citation does not meaningfully put any extrinsic evidence before the Court to alter the standard on a motion to dismiss to "whether the proponent of the pleading has a cause of action, not whether he has stated one." Biondi v. Beekman Hill House Apt., Corp., 257 A.D.2d 76, 81 (1st Dept 1999) (citing Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275 (1977)). Further, in the present case it has not been shown that a material fact claimed in the assertion of the affirmative defense is not a fact at all and it has not been shown that there is no significant dispute regarding the affirmative defense of open and obvious and therefore, dismissal should not eventuate. Guggenheimer v. Ginzburg, 43 N.Y.2d at 275. Accordingly, Plaintiff's motion to strike the defense of open and obvious is denied.
The Court has considered the parties various related arguments and finds them unavailing.
Accordingly, it is hereby
Mot. Seq. 4
ORDERED that Structure Tone's motion for summary judgment denying labor law claims is granted; and it is further
ORDERED that Plaintiff's claims under Sections 200, 240 and 241 (6) of the Labor Law are dismissed as against all parties; and it is further
ORDERED that Summit Glory's motion for summary judgment denying Plaintiff's labor law claims is hereby rendered moot; and it is further
Mot Seq. 6
ORDERED that Summit Glory's motion for summary judgment on common law negligence against the Plaintiff is denied; and it is further
ORDERED that Summit Glory's motion for summary judgment against Structure Tone for indemnification is granted; and it is further
ORDERED that Summit Glory is granted summary judgment on its indemnification claims against U.S. Security in connection with the labor law causes of action; and it is further
ORDERED that Summit Glory is denied summary judgment on its indemnification claims against U.S. Security in connection with the common law negligence causes of action; and it is further
ORDERED that Summit Glory's motion for summary judgment against U.S. Security's breach of contract is denied; and it is further
Mot Seq. 7
ORDERED that Plaintiff's motion for summary judgment on common law liability is denied; and it is further
ORDERED that Plaintiff's motion to amend its complaint and bill of particulars is denied without prejudice; and it is further
ORDERED that Plaintiff's motion to strike Defendants' Summit Glory and Structure Tone's affirmative defense of open and obvious condition is denied; and it is further
ORDERED that Defendant U.S. Security's affirmative defense of waiver and release is withdrawn; and it is further
ORDERED that a copy of this Decision and Order with Notice of Entry be served by the prevailing party upon all parties to the present action within thirty (30) days of the date of entry.
This constitutes the decision and order of the Court.