Ndoci v. Trinity Northeast Brooklyn L.P.

2024 NY Slip Op 34481(U)

• Court: New York Supreme Court, Kings County
• Decided: December 23, 2024
• Docket: Index No. 502048/2021
• Status: Unpublished

Opinion

Ndoci v Trinity Northeast Brooklyn L.P. 2024 NY Slip Op 34481(U) December 23, 2024 Supreme Court, Kings County Docket Number: Index No. 502048/2021 Judge: Joy F. Campanelli 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. FILED: KINGS COUNTY CLERK 12/24/2024 10:36 AM INDEX NO. 502048/2021 NYSCEF DOC. NO. 142 RECEIVED NYSCEF: 12/24/2024

SUPREME COURT OF THE STATE OF NEW At the I.A.S. Trial Term, Part 6 of the YORK COUNTY OF KINGS: IAS PART 6 Supreme Court of the State of New York, held -------------------------------------------------------------X in and for the county of Kings, at the KASTRIOT NDOCI and ALBANA NDOCI, Courthouse, located at 360 Adams Street, Borough of Brooklyn, City and State of New Plaintiff, York, on the 23 day of December 2024

-against-

TRINITY NORTHEAST BROOKLYN LIMITED PARTNERSHIP, HP VAN DYKE III HOUSING DEVELOPMENT FUNCT COMPANY, INC., Index No.: 502048/2021 MEGA CONTRACTING GROUP LLC., TRINITY DECISION AND ORDER FINANCIAL INC., TRINITY NORTHEAST BROOKLYN GP LLC, and NEW YORK CITY Hon. Joy F. Campanelli, J.S.C. HOUSING AUTHORITY,

Defendants. -------------------------------------------------------------X TRINITY NORTHEAST BROOKLYN LIMITED PARTNERSHIP, HP VAN DYKE III HOUSING DEVELOPMENT FUNCT COMPANY, INC., MEGA CONTRACTING GROUP LLC., TRINITY FINANCIAL INC., TRINITY NORTHEAST BROOKLYN GP LLC, and NEW YORK CITY HOUSING AUTHORITY,

Third-Party Plaintiffs, -against-

B&V CONTRACTING ENTERPRISES, INC.,

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

The following e-filed papers read herein: NYSCEF Nos.:

Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed 89-102, 120-139 Opposing Affidavits (Affirmations) 108-119 Affidavits/ Affirmations in Reply 140 Other Papers:

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Plaintiff moves by Notice of Motion seq. no. 3, seeking summary judgment on their

Labor Law § 241(6) claim, predicated on Defendants’ alleged violation of Industrial Code §§ 23-

1.7(e)(1), 23-1.7(e)(2), and 23-2.1(a).

Pursuant to C.P.L.R. § 3212, to succeed on a motion for summary judgment, the

movant’s burden is to establish, by proof in admissible form, prima facie entitlement to judgment

as a matter of law and the absence of any material issues of fact. William J. Jenack Est.

Appraisers & Auctioneers, Inc. v. Rabizadeh, 22 N.Y.3d 470, 475, 5 N.E.3d 976, 980 (2013).

Once this burden has been met, the opposing party is required to demonstrate the existence of a

triable issue of fact or an acceptable excuse for their failure to do so. Zuckerman v. City of New

York, 49 N.Y.2d 557, 560, 404 N.E.2d 718, 718 (1980). Pursuant to C.P.L.R. § 3212(b), the

Supreme Court has the authority to review the record and grant summary judgment to a

nonmoving party with respect to issues that were the subject of the movant’s summary judgment

motion. BSI, LLC v. Raimo, 195 A.D.3d 590, 594, 150 N.Y.S.3d 104, 108 (2021); Fair Chase

Holdings II, LLC v. Cnty. of Dutchess, 165 A.D.3d 1237, 1238, 87 N.Y.S.3d 602 (2018).

Establishing liability under Labor Law § 241(6), requires a plaintiff to demonstrate that the

defendant’s violation of a specific Industrial Code section was the proximate cause of the

accident. Seaman v. Bellmore Fire Dist., 59 A.D.3d 515, 516, 873 N.Y.S.2d 181 (2009).

Industrial Code §§ 23-1.7(e)(1), and 23-2.1(a) both require the site of an alleged accident

to be a passageway. A passageway within the meaning of the Industrial Code has been

interpreted as a walkway or pathway used to traverse between discrete areas. Steiger v.

LPCiminelli, Inc., 104 A.D.3d 1246, 961 N.Y.S.2d 634 (2013). In arguing that the site of the

accident is a passageway, Plaintiff offers photographs of the room where Plaintiff tripped but

they do not allege that this location is used to traverse between discrete areas on the worksite or

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that Plaintiff was using this space as a passageway at the time of the accident. As such, Plaintiff

has not made a prima facie showing of entitlement to judgment as a matter of law on a violation

of Industrial Code §§ 23-1.7(e)(1), or 23-2.1(a) because these subsections are inapplicable.

Industrial Code § 23-1.7(e)(2) provides that “the parts of floors, platforms and similar

areas where persons work or pass shall be kept free from accumulations of dirt and debris and

from scattered tools and materials and from sharp projections insofar as may be consistent with

the work being performed.” N.Y. Comp. Codes R. & Regs. tit. 12, § 23-1.7(e)(2). In support of

their summary judgment motion, Plaintiff produced admissible evidence that their injuries were

directly and proximately caused by tripping over Styrofoam used to support a window being

stored in their work site. However, as Defendants argued, this Styrofoam cannot be considered

“the accumulations of dirt and debris” or “scattered tools and materials” or “sharp projections” as

contemplated by § 23-1.7(e)(2). As such, Plaintiff cannot establish prima facie entitlement to

judgment as a matter of law for a violation of this Industrial Code subsection.

Although Defendants did not move for summary judgment, the Court is compelled to

grant summary judgment in their favor after a review of the record. Industrial Code §§ 23-

1.7(e)(1), 23-1.7(e)(2), and 23-2.1(a) are not applicable to the facts of this case as a matter of

law. With regards to §§ 23-1.7(e)(1) and 23-2.1(a), the site of the accident was not a passageway

within the meaning of the Industrial Code and the Court is unconvinced any triable issues of fact

exist as to the applicability of these subsections. Additionally, Industrial Code § 23-1.7(e)(2)

does not apply because the Styrofoam on which Plaintiff tripped does not fall into a category

covered by this subsection. After a review of the record, no triable issues of fact exist as to

whether § 23-1.7(e)(2) applies. Plaintiff’s Labor Law § 241(6) claim is dismissed their remaining

causes of action will continue in full force and effect.

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Accordingly, it is hereby

ORDERED that Plaintiff’s motion seq. no. 3, for summary judgment, based on violations

of Industrial Code §§ 23-1.7(e)(1), 23-1.7(e)(2) and 23-2.1(a), is DENIED and upon review of the

record plaintiff’s labor law 241(6) cause of action is dismissed. Plaintiff’s remaining causes of

action will continue in full force and effect.

This constitutes the decision and order of the Court.

____________________________ Hon. Joy F. Campanelli, J.S.C.

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