Dorador v. Trump Palace Condominium

126 A.D.3d 603, 6 N.Y.S.3d 236

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 24, 2015
• Docket: 101992/09 -590446/09 -590297/10 14604 14603 14602
• Status: Published

Opinion

Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered May 1, 2014, which, to the extent appealed from, granted plaintiffs motion for partial summary judgment on the issue of liability on his Labor Law § 240 (1) claim and denied defendant/second third-party plaintiffs (Trump) cross motion for summary judgment dismissing that claim, unanimously affirmed, without costs. Order, same court and Justice, entered April 30, 2014, which, to the extent appealed from as limited by the briefs, upon reargument, granted second third-party defendants’ motion to stay the second third-party action as against second third-party defendant R&J Company, LLC pending resolution of a proceeding in the bankruptcy court, and granted plaintiffs cross motion to sever the second third-party action from the main action, unanimously affirmed, without costs. Order, same court and Justice, entered April 30, 2014, which, to the extent appealed from as limited by the briefs, stayed Trump’s motion for summary judgment on its contractual indemnification claim against R&J, unanimously affirmed, without costs.

Upon a review of the factors set forth in Soto v J. Crew Inc. (21 NY3d 562, 568 [2013]), the motion court correctly found that plaintiff, at the time of his accident, was engaged in a “cleaning” activity under Labor Law § 240 (1). Plaintiffs application of masking tape to windows in preparation for stripping and relacquering of the brass on the facade of Trump’s building is not the type of task that is performed on a relatively frequent and recurring basis as part of ordinary maintenance (see Soto, 21 NY3d at 568). Further, plaintiffs work on a scaffold six to seven feet above the sidewalk involved a significant elevation risk (id.; see generally Auriemma v Biltmore Theatre, LLC, 82 AD3d 1, 9 [1st Dept 2011]).

The motion court properly stayed the second third-party ac tion and Trump’s motion against R&J, the nondebtor codefendant in the second third-party action. R&J, as the alleged indemnitee of its codefendant, is united in interest with its co-defendant, the discharged debtor. Accordingly, the bankruptcy court’s discharge injunction should extend to R&J (see generally In re Saint Vincent’s Catholic Med. Ctrs. of N.Y., 2014 WL 3545581, *7-9, 2014 US Dist LEXIS 97808, *17-25 [SD NY, July 16, 2014, Nos. 14-cv-3293 (PKC), 10-11963 (CGM)]).

The motion court providently exercised its discretion in severing the second third-party action from plaintiffs action to avoid prejudice to plaintiff by further delay of his trial-ready action (see CPLR 603).

Concur — Tom, J.P., Renwick, DeGrasse, Manzanet-Daniels and Clark, JJ.