Ardizzone v Summit Glory LLC 2025 NY Slip Op 30523(U) February 13, 2025 Supreme Court, New York County 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. 661 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 02/09/2024 Plaintiff, MOTION SEQ. NO. 011 -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 011) 367, 368, 369, 370, 371, 372, 373, 374, 375, 376, 377, 378, 379, 380, 381, 382, 383, 384, 385, 386, 387, 388, 389, 390, 391, 392, 393, 394, 536, 545, 551, 560, 577, 590, 591, 633, 634, 642 were read on this motion to/for JUDGMENT - SUMMARY .
This action arises out injuries allegedly sustained by plaintiff, Angelo Ardizzone, at a
construction site. Plaintiff Marybeth Ardizzone has asserted derivative claims. Defendant
Kaback Enterprises, Inc. (“Kaback”), now moves for summary judgment dismissing all claims
and crossclaims against it. Plaintiff opposes the only portion of the motion seeking dismissal of
its Labor Law § 200 and common law negligence claims. Defendant Americon Construction Inc.
(“Americon”) opposes the portion of the motion that seeks dismissal of its contractual
indemnification claims. For the reasons set forth below, the motion is granted in part. 157243/2017 Motion No. 011 Page 1 of 5
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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, Kaback, was hired by Americon, to perform HVAC work for the construction
project located at 28 Liberty Street New York, NY. Kaback was hired to install duct work at the
site and some work on convection units near windows using galvanized sheet metal.
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
157243/2017 Motion No. 011 Page 2 of 5
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absence of any material issue of fact and the right to entitlement to judgment as a matter of law.
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.
Labor Law § 200 and Common Law Negligence
It is well-settled law that an owner or general contractor will not be found liable under
common law or Labor Law § 200 where it has no notice of any dangerous condition which may
have caused the plaintiff’s injuries, nor the ability to control the activity which caused the
dangerous condition. See Russin v Picciano & Son, 54 NY2d 311[1981]; see also Rizzuto v
Wenger Contr. Co., 91 NY2d 343, 352 [1998]; Singleton v Citnalta Constr. Corp., 291 AD2d 393,
394 [2002]. The First Department has held that liability pursuant to Labor Law § 200 only attaches
where the owner or contractor had the "authority to control the activity bringing about the injury
to enable it to avoid or correct an unsafe condition"(Cappabianca v Skanska USA Bldg. Inc., 99
AD3d 139, 146 [1st Dept 2012] internal citations omitted).
Discussion
Preliminarily, the Court finds that Kaback has established prima facie entitlement to
dismissal of plaintiffs’ claims pursuant to Labor Law §§ 240 (1), 241(6). Plaintiffs do not
oppose dismissal of these claims as against Kaback.
In support of the portion of the motion seeking dismissal of Labor Law § 200 and
common law negligence, Kaback cites to various parties’ depositions testimony as well as an
affidavit from James Kavanaugh, its Controller. Mr. Kavanaugh swore in his affidavit that
157243/2017 Motion No. 011 Page 3 of 5
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Kaback did not have any employees present at the project on the date of plaintiff’s accident. In
support of the contention that Kaback did not have any employees on the premises between May
18, 2016 and June 9, 2016, the date of plaintiff’s accident, Mr. Kavanaugh relies on Jobs Cost
Detail Report, NYSCEF Doc. 383. However, Kaback produced another employee for a
deposition, Craig Cox Pennington, the project manager, who did not recall whether or not there
were any employees on site on the date of plaintiff’s accident.
Kaback’s contentions that it did not engage in cutting any metal as it did subcontract that
work to “tin knockers”, is insufficient to establish its entitlement to dismissal of claims asserted
against it. At the very least, there is a question of fact as to the contractual indemnification
claims asserted by Americon as Kaback repeatedly urges that any debris was caused by its
subcontractor. Moreover, although there is testimony that Americon had laborers on-site to
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Ardizzone v Summit Glory LLC 2025 NY Slip Op 30523(U) February 13, 2025 Supreme Court, New York County 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. 661 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 02/09/2024 Plaintiff, MOTION SEQ. NO. 011 -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 011) 367, 368, 369, 370, 371, 372, 373, 374, 375, 376, 377, 378, 379, 380, 381, 382, 383, 384, 385, 386, 387, 388, 389, 390, 391, 392, 393, 394, 536, 545, 551, 560, 577, 590, 591, 633, 634, 642 were read on this motion to/for JUDGMENT - SUMMARY .
This action arises out injuries allegedly sustained by plaintiff, Angelo Ardizzone, at a
construction site. Plaintiff Marybeth Ardizzone has asserted derivative claims. Defendant
Kaback Enterprises, Inc. (“Kaback”), now moves for summary judgment dismissing all claims
and crossclaims against it. Plaintiff opposes the only portion of the motion seeking dismissal of
its Labor Law § 200 and common law negligence claims. Defendant Americon Construction Inc.
(“Americon”) opposes the portion of the motion that seeks dismissal of its contractual
indemnification claims. For the reasons set forth below, the motion is granted in part. 157243/2017 Motion No. 011 Page 1 of 5
1 of 5 [* 1] INDEX NO. 157243/2017 NYSCEF DOC. NO. 661 RECEIVED NYSCEF: 02/13/2025
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, Kaback, was hired by Americon, to perform HVAC work for the construction
project located at 28 Liberty Street New York, NY. Kaback was hired to install duct work at the
site and some work on convection units near windows using galvanized sheet metal.
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
157243/2017 Motion No. 011 Page 2 of 5
2 of 5 [* 2] INDEX NO. 157243/2017 NYSCEF DOC. NO. 661 RECEIVED NYSCEF: 02/13/2025
absence of any material issue of fact and the right to entitlement to judgment as a matter of law.
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.
Labor Law § 200 and Common Law Negligence
It is well-settled law that an owner or general contractor will not be found liable under
common law or Labor Law § 200 where it has no notice of any dangerous condition which may
have caused the plaintiff’s injuries, nor the ability to control the activity which caused the
dangerous condition. See Russin v Picciano & Son, 54 NY2d 311[1981]; see also Rizzuto v
Wenger Contr. Co., 91 NY2d 343, 352 [1998]; Singleton v Citnalta Constr. Corp., 291 AD2d 393,
394 [2002]. The First Department has held that liability pursuant to Labor Law § 200 only attaches
where the owner or contractor had the "authority to control the activity bringing about the injury
to enable it to avoid or correct an unsafe condition"(Cappabianca v Skanska USA Bldg. Inc., 99
AD3d 139, 146 [1st Dept 2012] internal citations omitted).
Discussion
Preliminarily, the Court finds that Kaback has established prima facie entitlement to
dismissal of plaintiffs’ claims pursuant to Labor Law §§ 240 (1), 241(6). Plaintiffs do not
oppose dismissal of these claims as against Kaback.
In support of the portion of the motion seeking dismissal of Labor Law § 200 and
common law negligence, Kaback cites to various parties’ depositions testimony as well as an
affidavit from James Kavanaugh, its Controller. Mr. Kavanaugh swore in his affidavit that
157243/2017 Motion No. 011 Page 3 of 5
3 of 5 [* 3] INDEX NO. 157243/2017 NYSCEF DOC. NO. 661 RECEIVED NYSCEF: 02/13/2025
Kaback did not have any employees present at the project on the date of plaintiff’s accident. In
support of the contention that Kaback did not have any employees on the premises between May
18, 2016 and June 9, 2016, the date of plaintiff’s accident, Mr. Kavanaugh relies on Jobs Cost
Detail Report, NYSCEF Doc. 383. However, Kaback produced another employee for a
deposition, Craig Cox Pennington, the project manager, who did not recall whether or not there
were any employees on site on the date of plaintiff’s accident.
Kaback’s contentions that it did not engage in cutting any metal as it did subcontract that
work to “tin knockers”, is insufficient to establish its entitlement to dismissal of claims asserted
against it. At the very least, there is a question of fact as to the contractual indemnification
claims asserted by Americon as Kaback repeatedly urges that any debris was caused by its
subcontractor. Moreover, although there is testimony that Americon had laborers on-site to
clean, the language of the contract between Kaback and Americon provides that Kaback was
responsible for cleaning its own debris. Thus, the Court finds that there are multiple issues of
fact precluding dismissal of Americon’s indemnification claims as well as plaintiff’s common
law negligence and Labor Law § 200 claims.
Kaback has failed to establish that it was not on-site during plaintiff’s accident, its main
argument in support of dismissing plaintiff’s claims, thus it has not been established that Kaback
did not cause or create the condition that caused plaintiff’s accident. According, it is hereby
ADJUDGED that the portion of Kaback’s motion that seeks to dismiss plaintiffs’
common law negligence claims and Labor Law § 200 claims is denied; and it is further
ORDERED that the portion of Kaback’s motion that seeks dismissal of plaintiffs’ claims
pursuant to Labor Law §§ 240 (1), 241(6) is granted without opposition; and it is further
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ORDERED that the portion of Kaback’s motion that seeks dismissal of Americon’s
breach of contract cross-claim is granted without opposition;
ADJUDGED that the portion of Kaback’s motion that seeks dismissal of all cross-claims
for contractual and common law indemnification is denied.
2/13/2025 DATE LYLE E. FRANK, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
□ □ GRANTED DENIED X GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
157243/2017 Motion No. 011 Page 5 of 5
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