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Prosky v Peter Scalera Constr. Serv., LLC 2013 NY Slip Op 30705(U) April 8, 2013 Sup Ct, New York County Docket Number: 116044/2008 Judge: Saliann Scarpulla Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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ANNED ON41912013

SUPREME COURT OF THE STATE

OF NEW YORK - NEW YORK COUNTY
Jtistice

Index Number : 116044/2008 PROSKY, STEVE
VS

INDEX NO. MOTION DATE
MOTION SEQ. NO.
MOTION GAL. NO.

PETER SCALERA CONSTRUCTION
Sequence Number : 003
?

SUMMARY JUDGMENT

The following papers, numbered 1 to

were read on this motion tolfor

Notice of Motion/ Order to Show Cause - Affidavits - Exhibits
Answering Affidavits ?eplying Affidavits

...

- Exhibits

I

PAPERS NUMBERED

Cross-Motion:

a Yes

0 No

Upon the foregoing papers, it is ordered that this motion

Check one: I_; FINAL DISPOSITION $ NON-FINAL DISPOSITION ! Check if appropriate: DO NOT POST REFERENCE

0 SUBMIT ORDER/JUI)G.

0 SETTLE ORDER /JUDG.

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STEVE PROSKY,
Plaintiff, -againstIndex No. 1 16044/2008

PETER S C L E R A CONSTRUCTION SERVICES, LLC, FINISHING TOUCHES, ANTHONY LoSCHIAVO, individually and d/b/a FINISHING TOUCHES and 455 HOSPITALITY, LLC, individually and d/b/a DOUBLETREE HOTEL TARRYTOWN, EAST COAST PRESERVATION and AVORE WALL COVERING SOLUTIONS,
NEW YQRK COUN?Y CLERK'S OFFICE

DOUBLETREE HOTEL TARRYTOWN,
Third-party Plaintiff, -against-

TP Index No. 590940/2009

EAST COAST PRESERVATION,
Third-party Defendant.
____1--___--"___1--_----"---------------------~-"-----------"-----"---

X

HON. SALIANN SCARPULLA, J.:
Motion sequence numbers 003,004, and 005 are consolidated herein for purposes of disposition. In sequence number 003, defendant Avore Wall Covering Solutions (C'Avore'')
moves for an order, pursuant to CPLR 32 12, granting summary judgment in its favor, and

dismissing the second amended verified complaint and all cross claims asserted against it.
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In sequence number 004, defendants Finishing Touches and Anthony LoSchiavo ("LoSchiavo"), individually and d/b/a Finishing Touches ("Finishing Touches"), move for summary judgment in their favor and dismissal of all claims asserted against them. In sequence number 005, defendant Peter Scalera Construction Services, LLC ("`Scalera Construction") moves for summary judgment in its favor and dismissal of all claims asserted against it. Third-party defendant East Coast Preservation ("East Coast") crossmoves for summary judgment in its favor and dismissal of all claims asserted against it. In this action, plaintiff Steve Prosky ("Prosky"), a self-employed wallpaper installer, alleges that, on September 27,2008, at 9 a.m., he sustained personal injury when he stepped off an empty five-gallon compound bucket onto painters' debris or other material on the floor at a construction project site. The project consisted, in relevant part, of the renovation of the Doubletree Hotel ballroom, located at 455 South Broadway in Tarrytown, New York. Prosky alleges that he stood on the bucket for approximately 45 seconds while showing the painters an area on the wall that needed to be patched, and that, when his feet touched an unidentified object on the floor, they slid out from underneath him, causing him to fall and sustain personal injury.
The accident occurred on a Saturday, when Prosky was not scheduled to work.

Prosky testified that, when the accident occurred, he was with his then girlfriend,

nonparty Nelsy C. Perez ("Perez").

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Defendantkhird-party plaintiff 455 Hospitality, LLC, individually and d/b/a Doubletree Hotel Tarrytown ("455 Hospitality"), the hotel lessee and operator and project owner, hired East Coast as the contractor for the project, pursuant to a letter agreement dated April 5,2008. East Coast hired Scalera Construction as the project construction manager to coordinate the scheduling of the construction trades on the project, pursuant to

a written letter agreement dated April 5,2008. 455 Hospitality hired Finishing Touches,
an interior finishes and painting subcontractor, pursuant to a written agreement. LoSchiavo is president and sole shareholder of Finishing Touches. Finishing Touches subcontracted the wallpaper portion of the job to Avore, a wallpaper consultant and designer subcontractor, pursuant to a one-page invoice dated September 16,2008. Avore hired Prosky to hang wallpaper in the ballroom, pursuant to an oral agreement. In the second amended complaint, Prosky asserts two causes of action for common-law negligence, violations of Labor Law $8 200,240 (l), and 24 1 (6), and negligent hiring. In their respective answers, defendants deny all allegations of wrongdoing, and

assert indemnification and contribution cross claims.
In the third-party complaint, 455 Hospitality asserts four causes of action for contractual and common-law indemnification and contribution. In the third-party answer, East Coast denies all allegations of wrongdoing, and asserts counterclaims and cross claims for contribution and indemnification.

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Procedural 0b ieetions Defendants and East Coast now move for summary judgment and dismissal of all claims asserted against them, on a variety of grounds.

In opposition, Prosky contends, as a threshold issue, that each of the defendants'
motions is procedurally defective, on the grounds that they have each failed to annex all the pleadings, executed deposition transcripts, and properly certified reports and documents. The court finds that Prosky's procedural objections to each of the motions are without merit. Prosky has mischaracterized, misinterpreted, and misrepresented defendants' exhibits and contentions, and has failed to cite a single example in support of his contentions. To the extent that any of the documents cited by the inovants may deviate from the procedural requirements of a motion for summary relief, such deviation is de minirnus. Moreover, and contrary to Prosky's conclusory contention, defendants have fully addressed Prosky's allegations in the bill of particulars regarding the existence
of a dangerous and hazardous condition.

Labor Law 5 240 (1) Claims Section 240 (1) of the Labor Law imposes absolute liability upon owners and general contractors who breach their non-delegable duty to provide or erect safety devices necessary for the proper protection of a worker who sustains personal injury proximately caused by the breach. Bland v. Manocherian, 66 N.Y.2d 452,459 (1985). The statute is

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directed at "elevation-related hazards," which are defined as, `(those related to the effects of gravity where protective devices are called for 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." Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509,

5 14 (1991). Therefore, the special hazards encompassed by Labor Law 6 240 (1) are
limited to such gravity-related risks as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured. See Ross v. Curtis-Palmer Hydro-Elec., 8 1 N.Y.2d 494,500-50 1 (1 993). None of these circumstances exist here. Prosky testified at deposition that, as he stepped off the bucket, he stepped onto something on the ground that rolled, causing him to fall. Prosky does not allege that the bucket moved, or caused him to fall. Therefore,

Prosky was not injured by an elevation-related risk. A worker injured while stepping
down onto debris, or other hazard, may not invoke the protections afforded by Labor Law

5 240 (1).

Nieves v. Five Boro A.C. & Refrig. Corp., 93 N.Y.2d 914, 915-916 (1999);

Sluchinski v. Corporate Prop. Invs., 258 A.D.2d 306,304 (Ist Dept 1999). Accordingly, the branches of the motions far summary judgment on the Labor Law

5 240 (1) claims in favor of movants are granted without opposition by Prosky, and these
claims are dismissed.

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Labor Law 6 241 (6) Claims

Movants contend that summary judgment must be granted in their favor and the Labor Law

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