Opinion
15803 Index No. 160723/16 595851/17 Case No. 2021–01631
04-26-2022
Karl MURPHY, Plaintiff–Respondent, v. SCHIMENTI CONSTRUCTION COMPANY, LLC, et al., Defendants–Respondents, Kohlberg Kravis Roberts & Co. L.P., Defendant. Schimenti Construction Company, LLC, et al., Third–Party Plaintiffs–Respondents, v. Dame Contracting Inc., Third–Party Defendant–Appellant. And a Second Third-Party Action
Russo & Gould, LLP, New York (Alan S. Russo of counsel), for appellant. Michael H. Zhu, PC., New York (Michael H. Zhu of counsel), for Karl Murphy, respondent. Law Offices of James J. Toomey, New York (Evy Kazansky of counsel), for Schimenti Construction Company, LLC, and KRE Broadway Owner, LLC, respondents.
Russo & Gould, LLP, New York (Alan S. Russo of counsel), for appellant.
Michael H. Zhu, PC., New York (Michael H. Zhu of counsel), for Karl Murphy, respondent.
Law Offices of James J. Toomey, New York (Evy Kazansky of counsel), for Schimenti Construction Company, LLC, and KRE Broadway Owner, LLC, respondents.
Renwick, J.P., Kapnick, Gesmer, Moulton, Shulman, JJ.
Order, Supreme Court, New York County (Francis A. Kahn, III, J.), entered on or about March 31, 2021, which denied third-party defendant's (Dame) motion for leave to file a late motion for summary judgment dismissing plaintiff's Labor Law §§ 240(1) and 241(6) claims and the third-party complaint, unanimously modified, on the law, to grant the motion as to the § 240(1) claim and as to the § 241(6) claim except to the extent predicated upon Industrial Code ( 12 NYCRR) § 23–1.7(e)(2), and otherwise affirmed, without costs.
Dame failed to show good cause for leave to make an untimely motion for summary judgment (see CPLR 3212[a] ). It contends that, in Krzyzanowski v. City of New York, 179 A.D.3d 479, 118 N.Y.S.3d 10 (1st Dept. 2020), this Court made new law by holding that, as a matter of law, the use of Masonite as floor protection which rendered it an integral part of the work was not actionable under Labor Law § 241(6), whether predicated on 12 NYCRR 23–1.7(e)(1) or (2). However, as the motion court observed, this is not new. It is true that in Krzyzanowski, we expressly declined to follow a 2015 case in which we had stated that the integral-part-of-the-work defense was applicable only to claims brought under 12 NYCRR 23–1.7(e)(2) (see Singh v. 1221 Ave. Holdings, LLC, 127 A.D.3d 607, 8 N.Y.S.3d 129 [1st Dept. 2015] ). However, in doing so, we stated that Singh directly conflicted with the 2006 holding of the Court of Appeals in ( O'Sullivan v. IDI Constr. Co., Inc., 7 N.Y.3d 805, 822 N.Y.S.2d 745, 855 N.E.2d 1159 [2006], affg 28 A.D.3d 225, 813 N.Y.S.2d 373 [1st Dept. 2006] ), and pointed out that more recently, in Conlon v. Carnegie Hall Socy., Inc., 159 A.D.3d 655, 70 N.Y.S.3d 833 (1st Dept. 2018), we had stated that the defense applied to 12 NYCRR 23–1.7(e)(1). We note that the Conlon decision was issued before the note of issue was filed in this action.
As plaintiff did not oppose Dame's motion to dismiss the Labor Law § 241(6) claim predicated on Industrial Code provisions other than 12 NYCRR 23–1.7(e)(1) and offered no opposition on appeal to Dame's argument for dismissal of the Labor Law § 240(1) claim, we deem these claims abandoned.