Ardizzone v. Summit Glory LLC

2025 NY Slip Op 30524(U)

• Court: New York Supreme Court, New York County
• Decided: February 13, 2025
• Docket: Index No. 157243/2017
• Status: Unpublished

Opinion

Ardizzone v Summit Glory LLC 2025 NY Slip Op 30524(U) February 13, 2025 Supreme Court, New York Court Docket Number: Index No. 157243/2017 Judge: Lyle E. Frank Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 157243/2017 NYSCEF DOC. NO. 660 RECEIVED NYSCEF: 02/13/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LYLE E. FRANK PART 11M Justice ---------------------------------------------------------------------------------X INDEX NO. 157243/2017 ANGELO ARDIZZONE, MARYBETH ARDIZZONE, MOTION DATE 02/12/2024 Plaintiff, MOTION SEQ. NO. 010 -v- SUMMIT GLORY LLC,FOSUN INTERNATIONAL LIMITED, AMERICON CONSTRUCTION INC.,TITAN INDUSTRIAL SERVICES CORP., EASTERN DESIGN TILE & MARBLE, DECISION + ORDER ON INC.,KABACK ENTERPRISES, INC.,MASPETH WELDING, MOTION INC.,RIVCO CONSTRUCTION, LLC,

Defendant. ---------------------------------------------------------------------------------X

AMERICON CONSTRUCTION INC. Third-Party Index No. 595850/2021 Plaintiff,

-against-

ISLAND ARCHITECTURAL WOODWORK, INC.

Defendant. --------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 010) 395, 396, 397, 398, 399, 400, 401, 402, 403, 404, 405, 406, 407, 408, 409, 410, 411, 412, 413, 414, 415, 416, 537, 542, 543, 549, 550, 559, 576 were read on this motion to/for JUDGMENT - SUMMARY .

This action arises out of injuries allegedly sustained by plaintiff Angelo Ardizzone at a

construction site. Plaintiff Marybeth Ardizzone has asserted derivative claims. Defendant

Eastern Design Tile & Marble, Inc. (“Eastern Design”), now moves for summary judgment

dismissing all claims and crossclaims against it. There is no opposition to this motion. For the

reasons set forth below, the motion is granted.

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Background

This action arises from plaintiff’s accident that occurred on June 9, 2016. At the time of

the accident, defendant, Summit Glory LLC (“Summit”), owned 28 Liberty Street, New York,

New York, the location of the subject accident. Summit retained non-party, CBRE, Inc., to be its

exclusive property manager. Defendant, Fosun International Limited, owned Summit. Non-party

tenant, Jones Lang Lasalle Americas, Inc., entered into a contract with defendant/third-party

plaintiff, Americon Construction Inc. (“Americon”), the general contractor, to provide

construction services in the tenant’s leased space.

Defendant, Eastern Design, was hired by Americon, to perform tile and marble

installation work for the construction project located at 28 Liberty Street New York, NY.

Plaintiff was employed by non-party Allran Electric of NY LLC, a subcontractor hired by

Americon to perform electrical work. At the time of the accident plaintiff completed installing a

light fixture when he was coming down the ladder, his right foot slipped on debris, and his knee

gave out. Plaintiff testified that the debris pile he stepped on consisted of sawdust, metal debris

from ductwork, some steamfitter pieces of pipe and some pieces of M.C. cable. Plaintiff testified

that there was no debris on the floor when he ascended the ladder. Further, plaintiff testified he

does not know how the debris he slipped on got on the floor or how long the debris was on the

floor prior to his slipping on it.

Summary Judgment Standard

It is a well-established principle that the "function of summary judgment is issue finding,

not issue determination." Assaf v Ropog Cab Corp., 153 AD2d 520, 544 [1st Dept 1989]. As such,

the proponent of a motion for summary judgment must tender sufficient evidence to show the

absence of any material issue of fact and the right to entitlement to judgment as a matter of law.

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Alvarez v Prospect Hospital, 68 NY2d 320, 501 [1986]; Winegrad v New York University Medical

Center, 64 NY 2d 851 [1985]. Courts have also recognized that summary judgment is a drastic

remedy that deprives a litigant of his or her day in court. Therefore, the party opposing a motion

for summary judgment is entitled to all favorable inferences that can be drawn from the evidence

submitted.

Discussion

Defendant Eastern Design has established its prima facie entitlement to judgment as a

matter of law. Eastern Design as established that it neither caused or created the condition that

caused plaintiff’s accident, nor did it control the means and methods of plaintiff’s work.

Moreover, Eastern Design has established that the debris that caused plaintiff’s accident was not

the type of materials used by Eastern Design, nor did the accident occur at a location where it

was performing its work. Thus, Eastern Design has established that plaintiff’s Labor Law §§

200, 240(1), and § 241(6) claims are not applicable as against it.

Additionally, as to the cross-claims for indemnification asserted against it, Eastern

Design, has established that plaintiff’s accident did not arise out of its work, therefore a claims

against it for contractual indemnification cannot survive. Accordingly, it is hereby

ORDERED that defendant Eastern Design Tile & Marble, Inc.’s motion for summary

judgment is granted and all claims and cross-claims are dismissed as against it; and it is further

ORDERED that the caption be amended to reflect the dismissal and that all future papers

filed with the court bear the amended caption; and it is further

ORDERED that counsel for the moving party shall serve a copy of this order with notice

of entry upon the Clerk of the Court and the Clerk of the General Clerk’s Office, who are directed

to mark the court’s records to reflect the change in the caption herein; and it is further

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ORDERED that such service upon the Clerk of the Court and the Clerk of the General

Clerk’s Office shall be made in accordance with the procedures set forth in the Protocol on

Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the “E-

Filing” page on the court’s website).

2/13/2025 DATE LYLE E. FRANK, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

□ □ X GRANTED DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

157243/2017 Motion No. 010 Page 4 of 4

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