Opinion
Index No. No. 152869/2017
07-30-2024
Jose Moises-Ortiz and RAQUEL ORTIZ, Plaintiffs, v. FDB Acquisition LLC, PAV-LAK CONTRACTING, INC., and SAAB MANAGEMENT, INC., Defendants.
Parker Waichman LLP, Port Washington, NY (Brett A. Zekowski and Fred R. Rosenthal of counsel), and Michael H. Zhu, Esq., Rego Park, NY, for plaintiff Jose Moises-Ortiz. MG+M The Law Firm, New York, NY (Ryan W. Sweeney and Christian H. Gannon of counsel), for defendants FDB Acquisition LLC and Pav-Lak Contracting, Inc. Perry, Van Etten, Rozanski & Kutner, LLP, Melville, NY (Kenneth J. Kutner of counsel) for third-party defendant/third-party plaintiff RNC Industries, LLC. Donovan Hatem LLP, New York, NY (Stephen F. Willig and Joshua S. Stern of counsel) for second/third/fourth third-party defendant, RA Consultants, LLC.
Unpublished Opinion
Parker Waichman LLP, Port Washington, NY (Brett A. Zekowski and Fred R. Rosenthal of counsel), and Michael H. Zhu, Esq., Rego Park, NY, for plaintiff Jose Moises-Ortiz.
MG+M The Law Firm, New York, NY (Ryan W. Sweeney and Christian H. Gannon of counsel), for defendants FDB Acquisition LLC and Pav-Lak Contracting, Inc.
Perry, Van Etten, Rozanski & Kutner, LLP, Melville, NY (Kenneth J. Kutner of counsel) for third-party defendant/third-party plaintiff RNC Industries, LLC.
Donovan Hatem LLP, New York, NY (Stephen F. Willig and Joshua S. Stern of counsel) for second/third/fourth third-party defendant, RA Consultants, LLC.
Gerald Lebovits, J.
This action arises from personal injuries sustained on a construction site in February 2017. Defendant FDB Acquisition LLC was the owner of a building located at 114 West 125th Street in Manhattan. (NYSCEF No. 1 at ¶ 13 [complaint].) FDB hired defendant Pav-Lak Contracting to serve as construction manager, to demolish a one-story building, and to build a two-story building. (NYSCEF No. 296 at 4 [memorandum in support].) Pav-Lak hired third-party defendant RNC Industries, LLC, to perform the foundation and underpinning work. Plaintiff Jose Moises-Ortiz worked for RNC. (NYSCEF No. 1 at ¶ 53.) Third-party defendant RA Consultants, LLC, supervised and controlled the premises. RA was responsible for ensuring site safety during the underpinning work. (NYSCEF 292 at 11-13 [third third-party complaint]; NYSCEF No. 293 at 10 [fourth third-party complaint].)
As plaintiff performed underpinning work on the adjacent building, a piece of that building's foundation detached, struck, and injured him. (NYSCEF No. 296 at 4.) Plaintiff alleges that his injuries prevent him from returning to work. (NYSCEF No. 1 at ¶ 62.)
Plaintiff raises claims under Labor Law §§ 240 (1) and 241 (6) against FDB and Pav-Lak. In their respective third-party complaints, FDB, Pav-Lak, and RNC raise claims for common-law indemnification and contribution against RA. (NYSCEF No. 292 at 11-16 [RNC's third-party complaint]; NYSCEF No. 293 at 13-18 [FDB and Pav-Lak's third-party complaint].) On July 13, 2022, and September 29, 2022, this court issued oral decisions on the record dismissing RNC's third third-party complaint and FDB and Pav-Lak's fourth third-party complaint respectively. (NYSCEF No. 360, 363 [orders on the record].) The Appellate Division, First Department, modified in part and reinstated FDB, Pav-Lak, and RNC's common-law indemnification and contribution claims. (See Moises-Ortiz v FDB Acquisition LLC, 221 A.D.3d 540, 540-541 [1st Dept 2023].)
Plaintiff Raquel Ortiz raised a claim for loss of companionship and consortium, but later stipulated to withdraw this cause of action. (See NYSCEF No. 85.)
In motion sequence 012, plaintiff moves for summary judgment on liability against FDB, Pav-Lak, and RNC on his Labor Law §§ 240 (1) and 241 (6) claims. (NYSCEF No. 393 at 1 [notice of motion].) The branch of plaintiff's motion for summary judgment on his Labor Law § 240 (1) and 12 NYCRR 23-1.7 (a)-based § 241 (6) claims is denied, and summary judgment dismissing these claims in favor of the nonmoving parties is granted. Plaintiff's request for summary judgment on his 12 NYCRR 23-4.1-based § 241 (6) claim is granted.
In motion sequence 013, RNC moves for summary judgment to dismiss plaintiff's claims for past and future lost wages. RNC argues that plaintiff is not entitled to lost or future wages, because he presented false documents during the hiring process. The motion is denied.
In motion sequence 014, RA moves to dismiss or sever the third and fourth third-party complaints against it for contribution and common law-indemnification. RA alternatively requests that this court vacate the note of issue and stay the main action to allow RA to conduct discovery. The motion is granted in part and denied in part.
DISCUSSION
I. Motion Sequence 012
Plaintiff moves for summary judgment on liability on his Labor Law §§ 240 (1) and 241 (6) claims. Summary judgment will be granted when the moving party "makes 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, and the opponent fails to rebut that showing." (Brandy B. v Eden Cent. Sch. Dist., 15 N.Y.3d 297, 302 [2010] [internal quotation marks omitted]).
Labor Law § 240 (1) provides that "[a]ll contractors and owners and their agents" engaged in the "erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed." Labor Law § 240 (1) "applies to both 'falling worker' and 'falling object' cases." (Narducci v Manhasset Bay Assoc., 96 N.Y.2d 259, 267-268 [2001].) It "applies whe[n] the falling of an object is related to 'a significant risk inherent in... the relative elevation... at which materials or loads must be positioned or secured.'" (Id., quoting Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 514 [1991] .) But it "does not automatically apply simply because an object fell and injured a worker; [a] plaintiff must show that the object fell... because of the absence or inadequacy of a safety device of the kind enumerated in the statute." (Fabrizi v 1095 Ave. of the Ams., L.L.C., 22 N.Y.3d 658, 663 [2014] [internal quotation marks omitted] [emphasis in original].)
The parties do not dispute that plaintiff was struck by a piece of concrete that detached from the foundation of the adjacent building at which plaintiff was performing underpinning work. They dispute whether this accident falls within the scope of § 240 (1).
1. To hold defendants liable under § 240 (1) "in a case involving the collapse of a permanent structure," plaintiff "must establish that the collapse was 'foreseeable,' not in a strict negligence sense, but in the sense of foreseeability of plaintiff's exposure to an elevation-related risk." (Ciaurella v Trustees of Columbia Univ. in City of New York, 228 A.D.3d 555, 557 [1st Dept 2024] [internal quotation marks omitted].) A permanent structure is generally "not an object that require[s] securing for the purposes of the undertaking." (Djuric v City of New York, 172 A.D.3d 456, 456 [1st Dept 2019]; cf. Mena v 485 Seventh Ave. Assoc. LLC, 199 A.D.3d 420, 421 [1st Dept 2021] [noting that the slab of ceiling that collapsed on plaintiff was adjacent to a partially demolished wall and that the ceiling itself was partially demolished].) But the collapse of a permanent structure can form the basis of a § 240 (1) claim if "was a foreseeable risk of the task [a worker] was performing." (Jones v 414 Equities LLC, 57 A.D.3d 65, 80 [1st Dept 2008].)
Plaintiff argues that the collapse of the concrete block was foreseeable. Plaintiff submits geotechnical engineer Dr. Mehdi Omidvar's expert affidavit. Omidvar opines that "[t]he visibly poor concrete conditions of the foundations involved in the underpinning work could have jeopardized the stability of the concrete foundation" and "the field conditions... clearly demonstrate the presence of poor concrete consolidation, numerous voids in the concrete suggesting aggregate segregation, among other defects." (NYSCEF No. 410 at ¶ 16 [affidavit].) Omidvar adds that "[c]loser inspection of the cold joints also reveals the likely lack of reinforcement and general degradation of the concrete foundation." (NYSCEF No. 410 at ¶ 30.)
Defendants contend in opposition that they did not control the excavation work. (NYSCEF No. 424 at 14 [FDB and Pav-Lak's memorandum in opposition]; NYSCEF No. 446 at ¶¶ 75-77 [RNC's memo in opposition].) But "the statutory duty imposed by this strict liability provision is nondelegable ": An "owner is liable for a violation of the section even though the job was performed by an independent contractor over which it exercised no supervision or control." (Sanatass v Consolidated Investing Co., Inc., 10 N.Y.3d 333, 339 [2008] [internal quotation marks omitted; emphasis in original].)
RNC also argues that the condition of the concrete "was effectively a latent defect," because the detachment of the concrete was due in part to its no longer being secured by rebar inside the concrete block. (NYSCEF No. 424 at 13-14.) And FDB and Pav-Lak introduce evidence that neither experienced Pav-Lak and RNC employees, nor a Department of Buildings inspector, had ever seen pieces of concrete detach during underpinning before this incident. (NYSCEF No. 446 at ¶¶ 70-72.) The court agrees with defendants that in these circumstances, a triable issue of fact exists about whether it was foreseeable that a piece of concrete might break off from the foundation and fall on a worker performing underpinning below.
2. Nonetheless, plaintiff's claim fails: Defendants' submissions establish as a matter of law that plaintiff cannot satisfy Labor Law's § 240 (1)'s protective-device requirement.
Plaintiff's expert, Omidvar, opines that the absence of adequate bracing and shoring could result in the destabilization of a building's foundation-and thus, implicitly, that proper bracing and shoring constitutes a safety device that would have prevented the concrete from falling on plaintiff. (See generally NYSCEF No. 410.) But "the type of protective devices enumerated by section 240(1) predominantly concern those used on elevated work sites either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured." (Misseritti v Mark IV Const. Co., Inc., 86 N.Y.2d 487, 491 [1995] [internal quotation marks omitted].) Therefore, "the 'braces' referred to in section 240(1)... mean those used to support elevated work sites[,] not braces designed to shore up or lend support to a completed structure." (Id. [emphasis added].) Indeed, defendants' expert, Martin Bruno, has opined that "there are no known safety devices as described in [§ 240 (1)] that the plaintiff could have used to help him in this particular scope of work...." (NYSCEF No. 425 at ¶ 15.) Nor does plaintiff identify any safety device, other than further bracing and shoring the building's foundation, that could have protected him from the falling concrete.
Given defendant's showing that the piece of concrete's breaking off and falling on plaintiff did not result from "the absence or inadequacy of a safety device of the kind enumerated in the statute"-and the absence of any contrary evidence-plaintiff's § 240 (1) claim must be dismissed. (Misseritti, 22 N.Y.3d at 663 [emphasis omitted].) Summary judgment dismissing this claim is therefore granted to defendants as nonmoving parties.
Plaintiff argues that he is entitled to summary judgment under Labor Law § 241 (6) for defendants' alleged violations of 12 NYCRR 23-1.7 (a) (1) and 12 NYCRR 23-4.1 (a). Labor Law § 241 (6) requires that "[a]ll areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places." Owners and contractors may be held liable under § 241 (6) if they fail to comply with Department of Labor regulations enacted "to carry into effect the provisions of this subdivision" (id.)-as long as the regulation at issue is a "specific, positive command" that "mandat[es] compliance with concrete specifications," as distinct from reiterating general common-law safety standards. (Rizzuto v L.A. Wenger Contr. Co., 91 N.Y.2d 343, 349 [1998] [internal quotation marks omitted].)
Plaintiff contends that defendants violated 12 NYCRR 23-1.7 (a) (1), which provides that "[e]very place where persons are required to work or pass that is normally exposed to falling material or objects shall be provided with suitable overhead protection." Plaintiff claims that there was no "overhead protection" in the area he was working-an area below the concrete foundation of the adjacent building. (NYSCEF No. 396 at 19-20.)
Defendants, on the other hand, argue that "[p]laintiff was not working in an area that was normally exposed to falling materials" and therefore that they did not violate § 23-1.7 (a). (NYSCEF No. 424 at 19 [RNC's memo of law]; NYSCEF No. 446 at 21 [FDB and Pav-Lak's memo of law].) Defendants argue that § 23-1.7 (a) applies when construction work is performed at various height differentials, but that plaintiff was working at the same level as the foundation and that installing planks or sheathing as protective measures would have hampered the underpinning work. (NYSCEF No. 424 at 20; NYSCEF No. 446 at 22.)
The court concludes that plaintiff has not provided evidence (whether in the form of an expert affidavit or otherwise) that the area in which plaintiff was working was "normally exposed to falling materials." (§ 23-1.7 [a]; accord Portillo v Roby Anne Dev., LLC, 32 A.D.3d 421, 422 [2d Dept 2006] [holding there was "no evidence to support the section's requirement that the area in which the plaintiff was injured was one where workers are normally exposed to falling objects"].)
Additionally, defendants' expert, Bruno, opines that "workers performing underpinning work are not normally exposed to falling materials or objects, as they are by definition working in an enclosed space underneath a building rather than in an open area which may be exposed to debris from work at a higher level." (NYSCEF No. 444 at ¶ 20 [affidavit].) Bruno further states that "[h]ere, the alleged accident occurred in the course of underpinning work, which involves the strengthening of an adjacent building's foundation" and not work occurring at various heights. (Id. at ¶18.)
This uncontroverted testimony is sufficient to establish as a matter of law that plaintiff was not working in an area normally exposed to falling objects. The court therefore grants summary judgment to defendants as the nonmoving parties with respect to the branch of plaintiff's Labor Law § 241 (6) claim based on 12 NYCRR 23-1.7 (a).
Plaintiff also contends that defendants violated 12 NYCRR 23-4.1 (a). That regulation provides that "whenever any excavation is to be performed in the vicinity of buildings, structures or utilities, the integrity, stability and structural adequacy of such buildings, structures or utilities shall be maintained at all times by the use of underpinning, sheet piling, bracing or other equivalent means to prevent damage to or failure of foundations, walls, supports or utility facilities and to prevent injury to any person." It further requires that those measures be inspected daily by an "experienced, designated person." (Id.)
Plaintiff contends that defendants did not maintain the structural integrity of the adjacent building. (NYSCEF No. 396 at 21.) Plaintiff claims that "defendants failed to provide underpinning, sheet piling, bracing or other equivalent means... to prevent injury to any person." (Id. at 22 [internal quotation marks omitted].) Plaintiff also claims that there were no daily inspections. (See NYSCEF No. 475 at 21 [reply memorandum].) Plaintiff points to the deposition testimony of Richard Perez-Pav-Lak's project manager. Perez represents that "[u]nderpinning is a task that you perform to support the structure adjacent to the worksite." (NYSCEF 404 at 33 [deposition transcript].) Plaintiff also refers to Omidvar's expert affidavit. Omidvar opines that if an experienced inspector had visited the site "between the commencement of the underpinning work and the day of the incident,... [the inspector] would have observed that the provisions and requirements for underpinning listed in the original means and methods design documents required implementation...." (NYSCEF No. 410 at ¶ 21 [affidavit].) Plaintiff has thus established its prima facie case.
RNC argues that § 23-4.1 does not apply, because plaintiff was performing the exact work required to stabilize the building. (NYSCEF No. 424 at 21; NYSCEF No. 446 at 22.) RNC further argues that the adjacent building was not a structure within the meaning of § 23-4.1 and that an issue of fact exists about whether the incident was foreseeable. (NYSCEF No. 424 at 22.)
This court concludes that eliminating plaintiff's ability to recover because he was performing § 23-4.1-centered work would read out the regulatory requirement that "whenever any excavation is to be performed in the vicinity of buildings," protective measures must be taken to ensure the stability of the foundation. (12 NYCRR § 23-4.1 [a]; Scarso v M.G. Gen. Constr. Corp., 16 A.D.3d 660, 661 [2d Dept 2005] [noting that § 23-4.1 "appears to primarily be aimed at protecting against collapses [of structures] associated with a loss of stability created by the excavation"] [internal quotation marks omitted] [emphasis added].)
The court also concludes that the protective measures enumerated in § 23-4.1 are geared to prevent "damages to or failure of foundations." Thus, the collapse of part of the concrete foundation is the sort of condition the statute was designed to prevent. Further, defendants have not provided authority for their position that there is a foreseeability requirement under § 241 (6).
RNC cites Rossi v Mount Vernon Hosp. (265 A.D.2d 542 [2d Dept 1999]) to support its contention that a foreseeability requirement applies here. But that case discusses foreseeability in conjunction with common-law-negligence and Labor Law § 200 claims, not a Labor Law § 241 (6) claim based on 12 NYCRR 23-4.1. (See id. at 543.)
Defendants have not raised a triable issue of fact. Plaintiff's motion for summary judgment on liability on his 12 NYCRR 23-4.1-based Labor Law § 241 (6) claim is granted.
II. Motion Sequence 013
In motion sequence 013, RNC moves for summary judgment to dismiss plaintiff's lost-and-future wages claim as violative of the federal Immigration Reform and Control Act of 1986. (See 8 USC 1324a ].) IRCA "requires that every employer, before hiring any person, verify that the person is not an unauthorized alien by examining specified documents that establish the person's identity and eligibility for employment in the United States and completing Form I-9, which evidences that examination." (Coque v Wildflower Estates Developers, Inc., 58 A.D.3d 44, 49 [2d Dept 2008], citing 8 USC § 1324a [b].) IRCA "does not penalize an alien for attaining employment without having proper work authorization, unless the alien engages in fraud, such as presenting false documentation to secure the employment." (Balbuena v IDR Realty LLC, 6 N.Y.3d 338, 354 [2006].)
RNC claims that it "(1) was supplied false citizenship and/or work authorization documents; (2) relied on such documents; and (3) met its own burdens under the IRCA to verify the plaintiff's employment status," and therefore that plaintiff is not entitled to lost or future wages. (NYSCEF No. 371 at 7-8.) Plaintiff argues that RNC did not fulfill its verification obligations under IRCA and that plaintiff's immigration status is irrelevant. (NYSCEF No. 473 at 4.) Plaintiff also contends that his submission of fraudulent documents would bar his recovery of lost wages only if the fraudulent documents induced RNC to hire him. (NYSCEF No. 473 at 7.) And he argues that RNC violated IRCA by obtaining the fraudulent documents on his behalf. (Id. at 14.)
RNC points to the affidavit of its former payroll administrator, Heather Leigh. Leigh represents that RNC hired plaintiff in 2010 and that during the hiring process, plaintiff completed an I-9 form and provided permanent-residence and social-security cards. (NYSCEF No 392 at 2-3.) Leigh represents that she reviewed the permanent-residence and social-security cards, believed they were genuine, and, accordingly, signed United States Citizenship and Immigration Services form I-9 certifying her belief that the documents were genuine and that plaintiff was authorized to work in the United States. (Id. at 3.) She represents that "[i]f Plaintiff had not produced a Permanent Resident Card, which the instructions for the I-9 Form identifies as acceptable evidence of his identity and employment authorization, as well as a Social Security card with number... or had [she] believed the documentation provided by Plaintiff to be fraudulent, [she] would not have signed the USCIS Form I-9 and Plaintiff would not have been hired by RNC." (Id.)
Plaintiff disputes Leigh's representations. Plaintiff claims that he started working for RNC in 2001, not 2010, at which time no one asked him for documentary proof of his immigration status. (NYSCEF No. 470 at ¶¶ 6, 8 [affidavit].) He represents that in 2010 he was told to obtain permanent-resident and social-security cards to keep his job. (Id. at ¶ 10.) Plaintiff claims that an RNC supervisor-known to plaintiff as the "Mexican" or "Oswaldo"-told him that RNC could obtain these documents for him. Plaintiff further claims he paid the supervisor to obtain the documents for him and did not know that the documents were falsified. (Id. at ¶¶ 11, 13). RNC argues that plaintiff's representation that the "Mexican" told plaintiff that "RNC would help him get the work documents" is hearsay and that the supervisor's statement cannot be imputed to RNC unless the supervisor made the statement under his authority to speak for RNC. (NYSCEF No. 477 at 3-4 [reply memorandum].)
The court concludes that plaintiff has raised a triable issue of fact about whether RNC hired him without meeting its verification obligations under IRCA. The asserted statement by an RNC supervisor described in plaintiff's affidavit is not hearsay. As set forth in plaintiff's affidavit, the statement, offered against RNC, was made by an RNC employee on an issue within the scope of the employer/employee relationship- i.e. what plaintiff would have to do to keep his job at RNC. (See CPLR 4549. )
RNC misplaces its reliance on the so-called "speaking agent" requirement for admissibility of employee statements as admissions by the employer. (See NYSCEF No. 477 at 4 [collecting cases].) The Legislature enacted CPLR 4549 in 2021 to eliminate this admissibility requirement. (See L 2021, ch 833, § 1.)
Additionally, even if plaintiff's statement were hearsay, he would still be permitted to offer it in conjunction with his own non-hearsay representations that RNC hired him in 2001 without asking for documentation-contrary to Leigh's account. (Cf. Briggs v 2244 Morris, L.P., 30 A.D.3d 216 [1st Dept 2006] ["Although hearsay may be used to oppose a summary judgment motion, such evidence is insufficient to warrant denial of summary judgment where, as here, it is the only evidence submitted in opposition."] [emphasis added].) Summary judgment dismissing plaintiff's claim for lost and future wages is therefore denied.
III. Motion Sequence 014
In motion sequence 014, RA moves under CPLR 603 and CPLR 1010 to dismiss or sever RNC's third-party complaint (the third third-party complaint) and FDB and Pav-Lak's third-party complaint (the fourth third-party complaint) against RA. It alternatively asks this court to vacate the note of issue and stay the proceedings to allow it to conduct discovery and then file a summary-judgment motion (NYSCEF No. 491 at 2 [notice of motion].) FDB, Pav-Lak, and RNC do not object to these alternative requests. Plaintiff supports the branch of RA's motion to sever the actions but opposes the branch "to remove this case from the trial calendar and reopen discovery." (NYSCEF No. 533 at 4.)
A motion to dismiss or sever under CPLR 603 and 1010 should be denied when "third-party actions present questions of law and fact in common with the main action," unless the third-party actions will "unduly delay the determination of the main action or prejudice the substantial rights" of any of the parties. (Marbilla, LLC v 143/145 Lexington LLC, 116 A.D.3d 544 [1st Dept 2014] [affirming denial of CPLR 603 and CPLR 1010 motion].)
RA argues that the third- and fourth- third-party actions should be dismissed or severed because (i) FDB, Pav-Lak, and RNC filed their third-party complaints about five years after the start of the main action, knowing about RA's involvement in the incident; (ii) discovery in the main action is finished; (iii) plaintiff and RNC already moved for summary judgment in the main action; and (iv) RA has conducted no discovery. (NYSCEF No. 506 at 6.) RA alternatively requests that the note of issue be vacated, because it was dismissed from the main action before the note of issue was filed, and it has not conducted discovery in the third-party actions. (Id. at 9.) RA argues that it needs discovery to obtain plaintiff's medical records and conduct an independent medical examination of plaintiff. (Id. at 6.) It claims it "is not in possession of prior pleadings, discovery demands and corresponding responses, document productions, deposition transcripts, exhibits or any other documents exchanged to date." (Id. at 7.)
Plaintiff contends that FDB, Pav-Lak, and RNC knew about RA "for a significant amount of time but failed to timely include them in the case," that these actions may be litigated without plaintiff, that keeping the actions together would further delay trial of the main action, and that plaintiff has completed discovery. (NYSCEF No. 533 at 3.) FDB, Pav-Lak, and RNC argue that they commenced their third-party actions years ago. They argue that because the Appellate Division reinstated some of their claims, dismissing or severing the third-party action would not allow them to present their defenses at trial and would remove a necessary party to the action. (NYSCEF No. 507 at 9 [FDC and Pav-Lak's memorandum in opposition]; NYSCEF No. 528 at 7, 11 [RNC's memorandum in opposition].) RNC adds that "it was RA's litigation strategy of submitting a pre-answer motion to dismiss each of the three third-party actions that forestalled RA's ability to conduct discovery prior to the filing of the note of issue." (NYSCEF No. 528 at 7.)
The court agrees with FDB, Pav-Lak, and RNC that the two third-party actions against RA are closely connected to the main action; and therefore that dismissing or severing those actions would risk prejudice to FDB, Pav-Lak, and RNC at trial on plaintiff's claims and any remaining third-party claims. At the same time, this court is mindful that plaintiff's claims have been pending since 2017, and that plaintiff filed a note of issue more than a year ago.
In these unusual circumstances, the court concludes that the proper course is (i) to deny severance; and (ii) to permit RA to obtain post-note discovery, rather than vacating the note of issue and further delaying trial. The court directs FDB, Pav-Lak, and RNC to provide RA with copies of discovery exchanged to date-including not only documents produced, but also deposition transcripts and reports of independent medical examinations of plaintiff. To the extent RA believes that discovery to be insufficient, RA may seek leave of court to obtain further discovery. The court notes, though, that any requests for further discovery-particularly further discovery from plaintiff-must be supported by substantial justification. Such requests may be submitted to the court by e-filing on NYSCEF and email to SFC-Part7-Clerk@nycourts.gov.
Accordingly, it is
ORDERED that the branch of plaintiff's motion for summary judgment on liability for his Labor Law § 240 (1) claim (mot seq 012) is denied, summary judgment dismissing this claim is granted in favor of the nonmoving parties, and this claim is dismissed; and it is further
ORDERED that the branch of plaintiff's motion for summary judgment on liability on the aspect of his Labor Law § 241 (6) claim based on 12 NYCRR 23-1.7 (a) (mot seq 012) is denied, summary judgment dismissing this aspect of the § 241 (6) claim is granted in favor of the nonmoving parties, and this aspect of the claim is dismissed; and it is further
ORDERED that the branch of plaintiff's motion for summary judgment on liability for the aspect of his Labor Law § 241 (6) claim based on NYCRR 23-4.1-based Labor Law § 241 (6) claim (mot seq 012) is granted; and it is further
ORDERED that RNC Industries, LLC's motion for summary judgment dismissing plaintiff's lost and future wages claim (mot seq 013) is denied; and it is further
ORDERED that the branch of RA's motion seeking to dismiss or sever the third-and fourth third party actions (mot seq 014) is denied; and it is further
ORDERED that the branch of RA's motion seeking to vacate the note of issue (mot seq 014) is denied; and it is further
ORDERED that RA may obtain post-note-of-issue discovery as set forth above; and it is further
ORDERED that the parties are directed to meet and confer with respect to RA's post-note discovery and to appear before this court for a telephonic status conference on August 23, 2024.