Mata v. Plaza Constr. LLC

2024 NY Slip Op 33055(U)

• Court: New York Supreme Court, New York County
• Decided: August 30, 2024
• Docket: Index No. 158863/2019
• Status: Unpublished

Opinion

Mata v Plaza Constr. LLC 2024 NY Slip Op 33055(U) August 30, 2024 Supreme Court, New York County Docket Number: Index No. 158863/2019 Judge: Debra A. James 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. 158863/2019 NYSCEF DOC. NO. 278 RECEIVED NYSCEF: 08/30/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DEBRA A. JAMES PART 59 Justice ---------------------------------------------------------------------------------X INDEX NO. 158863/2019 MARIEN P. MATA, MOTION DATE 08/12/2022 Plaintiff, 001 003 004 -v- MOTION SEQ. NO. 005

PLAZA CONSTRUCTION LLC, 54M 33W 37 LLC, JOHN DOE BUSINESS ENTITY, and JOHN DOE, DECISION + ORDER ON MOTION Defendants. ---------------------------------------------------------------------------------X 54M 33W 37 LLC, Third-Party Third-Party Plaintiff, Index No. 595670/2020 (TP Action discontinued per -against- Stipulation dated September 16, 2020 (NYSCEF Document Number PLAZA CONSTRUCTION LLC, 022)

Third-Party Defendant. --------------------------------------------------------------------------------X

PLAZA CONSTRUCTION LLC, Second Third-Party Index No. 595003/2021 Second Third-Party Plaintiff,

-against-

MASPETH WELDING, INC., LEED MECHANICAL CORP., J.P. PHILLIPS, INC., and P.E. STONE, INC.,

Second Third-Party Defendants. --------------------------------------------------------------------------------X

MASPETH WELDING, INC., Third Third-Party Index No. 595291/2021 Third Third-Party Plaintiff,

ANVIL IRONWORKS, INC.

Third Third-Party Defendant. --------------------------------------------------------------------------------X

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The following e-filed documents, listed by NYSCEF document number (Motion 001) 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 20, 95 were read on this motion to/for DISCOVERY .

The following e-filed documents, listed by NYSCEF document number (Motion 003) 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 143, 144, 197, 198, 199, 235 were read on this motion to/for DISCOVERY .

The following e-filed documents, listed by NYSCEF document number (Motion 004) 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 196, 200, 202, 203, 204, 223, 224, 225, 226, 227, 228, 230, 231 were read on this motion to/for JUDGMENT - SUMMARY .

The following e-filed documents, listed by NYSCEF document number (Motion 005) 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 229, 232, 233, 234, 274 were read on this motion to/for JUDGMENT - SUMMARY .

ORDER

Upon the foregoing documents, it is

ORDERED that the motion of the defendant 54M 33 W 37 LLC to

compel plaintiff to respond to discovery demands (motion sequence

number 001) is dismissed as moot, as per the affirmation dated

July 27, 2020, of plaintiff’s counsel stating that the demanded

discovery has been produced (NYSCEF Document No. 019, which moving

defendant has not denied); and it is further

ORDERED that the motion of the second third-party defendant

P.E. Stone Inc. to compel the second third party plaintiff Plaza

Construction LLC to respond to discovery responses (motion

sequence number 003) is withdrawn, as per the letter dated April

20,2022 of movant’s counsel (NYSCEF Document No. 144); and it is

further

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ORDERED that the cross motion of plaintiff to strike the

answer or to preclude the testimony of defendants Plaza

Construction LLC and 543 W 37 LLC and of second third party

defendants Maspeth Welding Corp, Leed Mechanical Corp, JR Phillips

Inc and P.E. Stone Inc. for their failure to respond to discovery

demands is dismissed as withdrawn as against defendants Plaza

Construction LLC and 543 W 37 LLC, and second third party

defendants, JR Phillips Inc and P.E. Stone Inc., and Leed

Mechanical Corp., and denied as to second third party defendant

Maspeth Welding Corp.; and it is further

ORDERED that the motions for summary judgment of second third-

party defendants J.P. Phillips, Inc. (motion sequence number 004),

and P.E. Stone, Inc. (motion sequence number 005) are granted, and

the second third-party complaint as against them is dismissed; and

it is further

ORDERED that the cross-claims of the second third-party

defendants Maspeth Welding Inc., Leed Mechanical Corp., against

second third-party defendants J.P. Phillips, Inc. and P.E. Stone,

Inc., and of J.P. Phillips, Inc. and P.E. Stone, Inc., against

either other, are dismissed; and it is further

ORDERED that the second third party claims and cross-claims

against second third-party defendants Maspeth Welding, Inc. and

Leed Mechanical Corp. are severed and, with the balance of the

action, shall continue; and it is further

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ORDERED that the Clerk of the Court shall enter judgment in

favor of second third-party defendants J.P. Phillips, Inc., and

P.E. Stone, Inc. dismissing the claims and cross-claims against

them in this action, together with costs and disbursements to be

taxed by the Clerk upon submission of an appropriate bill of costs;

and it is further

ORDERED that the caption shall be amended to reflect the

dismissals and that all future papers filed with the court bear

the amended caption; and it is further

ORDERED that counsel are directed to post on NYSCEF a proposed

discovery status conference order or competing proposed discovery

status conference orders at least two days before October 10, 2024

on which date counsel are directed to appear via Microsoft Teams

unless such appearance be waived by the court; and it is further

ORDERD that counsel shall post neither demands for discovery

nor discovery produced (unless supplemental or amended bills of

particulars) on NYSCEF, unless as attachments to meritorious

motions for summary judgment or other relief, but shall exchange

such documents or other evidence among counsel only, as posting

same unnecessarily and improperly clutters the docket.

DECISION

The plaintiff Marien P. Mata (“Mata”) commenced this action

to recover damages for injuries, he, as a construction worker,

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suffered when he tripped on plywood while working on the rooftop

level of a construction project.

In his complaint, Mata alleges that defendant Plaza

Construction LLC (“Plaza”) was the general contractor for the

project, which general contractor engaged third third-party

defendant Anvil Ironworks, Inc., the subcontractor that employed

Mata. Mata alleges that his injuries arose out of Plaza’s

negligence, specifically a dangerous condition comprised of an

improperly and/or insufficiently fastened plywood.

In its second third-party complaint against the second third-

party defendants Maspeth Welding, Inc., Leed Mechanical Corp.,

J.P. Phillips, Inc. (“JPP”), and P.E. Stone, Inc. (“Stone”) (the

“2TP Complaint”), Plaza alleges that Mata’s injuries were caused

by the negligence of such second third-party defendants and seeks

inter alia, indemnification and contribution from such 2TP

defendants.

JPP and Stone (collectively, the “Movants”) each move for

summary judgment dismissing the 2TP claims asserted against them,

as well as the cross-claims asserted by the other 2TP defendants

against them.

In response to JPP’s motion for summary judgment, plaintiff

cross moves for an order compelling production of discovery within

thirty (30) days or striking Plaza’s and JPP’s answers as well as

the answers of 2TP defendants J.P. Phillips, Inc., Maspeth Welding

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Inc., Leed Mechanical Corp., or, alternatively, precluding the

testimony at trial of each such defendant 2TP defendant for each

such party’s failure to provide responses to outstanding discovery

demands pursuant to CPLR §§ 3124 and 3126(2) and (3).

This court finds that Movants on their summary judgment

motions have come forward with requisite evidence to establish

their respective entitlements to summary judgment.

Movant JPP submits the photograph of the accident location

produced in discovery by Mata. Since plaintiff produced such

evidence, as argued by JPP, such photograph is admissible pursuant

to CPLR 4540-a. Movant JPP submits the affidavit of its owner and

principal, who states that all work that JPP was to perform

occurred in the interior of the building, as set forth in its

subcontract with Plaza. Such affiant states, in addition, that he

worked on the site at least once per week and, therefore, has

personal knowledge that JP “never performed and was never hired to

perform ay work in the vicinity of the [exterior] rooftop level.

(See NYSCEF Document Number 160, para. 6). He also states that

“[n]one of [JPP’s] tools, equipment, machinery, or materials were

stored, delivered, or otherwise place on the rooftop level. (Id,

para 9). Such affiant also attests that Plaza’s Daily Logs

indicate that “[JPP] performed no work on the roof that day.” (Id,

para. 17).

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Movant Stone submits that affidavit of its Project Manager,

who attests that on the day of Mata’s accident, Stone was working

on the installation of the rooftop generator and wiring on the

rooftop level in the exterior area, however that such work “never

involved the use, installation or removal of any plywood”. Stone’s

Project also states that his review of Plaza’s Daily Logs for that

week confirms that Stone’s work consisted of installation of lights

and outlets on the second floor, the relocation of thermal switches

in the ADA 1904 fire alarm, as well as the installation of the

fans back wiring on the second floor.” (See NYSCEF Document No.

220, paras. 5 and 7).

Based on the foregoing, Movants have established, by a fair

preponderance of credible evidence that neither are responsible

for installation/fastening of the plywood that resulted the Mata’s

injury. Likewise, a review of their respective subcontracts with

Plaza establish that the Movants were retained to perform work

that did not involve the installation of plywood. (NYSCEF Documents

Nos. 161 and 213).

Plaintiff neither submits any affidavit in opposition to

either Movant’s application for summary relief or proffers any

other evidence that raises any issue of fact with respect to either

motion. With respect to JPP’s motion, plaintiff cross moves to

enforce discovery demands. The court notes that upon the filing

of Movants’ motions for summary judgment, discovery was

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statutorily stayed pursuant to CPLR 3214. Moreover, as plaintiff

has withdrawn his cross motion to the extent that it seeks relief

against defendants Plaza Construction LLC and 543 W 37 LLC, and

second third party defendants, JR Phillips Inc and P.E. Stone Inc.,

and Leed Mechanical Corp. (see NYSCEF Documents Numbers 196, 200,

202, 223, 228, 230, 231), such cross motion must be dismissed as

to same. In any event, such cross motion has been rendered moot

to the extent that relief is sought against 2TP defendants JPP and

Stone, whose motions for summary dismissal must be granted.

Plaintiff may seek whatever discovery production against second

third party defendant Maspeth Welding, Inc. by way of a status

discovery conference order.

Nor does Plaza raise any triable issues of fact with respect

to the Movants’ motions. It offers no affidavit or any

contradicting evidence. In addition, Plaza’s contention that the

motion is premature because discovery has not been completed fails

because it does not identify any specific evidence that may be

potentially uncovered in discovery, which it claims it lacks. See

Steinberg v Schnapp, 73 AD3d 171, 177 (1st Dept 2010) (citation

omitted):

’A grant of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence’.

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See also Antonyshyn v Tishman Const. Corp., 153 AD3d 1308, 1310

(2d Dept 2017):

A party contending that a summary judgment motion is premature must demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant.

Plaza has not shown that essential evidence is exclusively

within the control of the Movant subtractors, particularly given

that it was the general contractor on the project. Nor does it

articulate a basis for its contention that testimony or records

of additional JPP and Stone onsite personnel are needed.

Lastly, the Movants each establish that they procured an

insurance policy in accordance with the terms of their respective

agreements with Plaza. (See NYSCEF Documents Numbers 164 and 221).

The denial of coverage by the insurer is not a breach of the

Movant’s respective agreement to procure adequate insurance. See

Perez v Morse Diesel Intern., Inc., 10 AD3d 497 (1st Dept 2004).

8/30/2024 DATE DEBRA A. JAMES, 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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