Ardizzone v. Summit Glory LLC

2025 NY Slip Op 30522(U)

Opinion

Ardizzone v Summit Glory LLC 2025 NY Slip Op 30522(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. 662 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 02/19/2024 Plaintiff, MOTION SEQ. NO. 012 -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 012) 417, 418, 419, 420, 421, 422, 423, 424, 425, 426, 427, 428, 429, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440, 441, 442, 443, 444, 445, 446, 538, 544, 552, 561, 578 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

Maspeth Welding, Inc. (“Maspeth Welding”), now moves for summary judgment dismissing all

claims, crossclaims and counter claims against it. There is no opposition to this motion filed.

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, Maspeth Welding, was hired by Americon Construction Inc., the general

contractor, to install a steel beam in the conference room 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

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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.

Discussion

Defendant Maspeth Welding has established its prima facie entitlement to judgment as a

matter of law. Maspeth Welding has established that it neither caused nor created the condition

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

Moreover, Maspeth Welding has established that it was not on site on the date of plaintiff’s

accident therefore could not have created the condition that caused plaintiff’s accident. Thus,

Maspeth Welding 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, Maspeth

Welding, has established, and it is undisputed, 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 Maspeth Welding, 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

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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

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

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