Schwarz v Avarga Contr. Corp. 2025 NY Slip Op 31981(U) June 4, 2025 Supreme Court, New York County Docket Number: Index No. 157470/2020 Judge: Paul A. Goetz 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: NEW YORK COUNTY CLERK 06/04/2025 12:42 PM INDEX NO. 157470/2020 NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 06/04/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. PAUL A. GOETZ PART 47 Justice ---------------------------------------------------------------------------------X INDEX NO. 157470/2020 RUDY SCHWARZ, 09/16/2024, Plaintiff, MOTION DATE 09/16/2024
-v- MOTION SEQ. NO. 004 005
AVARGA CONTRACTING CORP., MERINGOFF PROPERTIES INC.,WEST 57TH ACQUISITION, LLC,521- DECISION + ORDER ON 533 WEST 57TH STREET ASSOCIATES LLC,521-533 LLC, MOTION Defendants. ---------------------------------------------------------------------------------X
MERINGOFF PROPERTIES INC., 521-533 WEST 57TH Third-Party STREET ASSOCIATES LLC Index No. 595837/2021
Plaintiffs,
-against-
ATILA CONTRACTING INC.
Defendant. --------------------------------------------------------------------------------X
AVARGA CONTRACTING CORP. Second Third-Party Index No. 595002/2022 Plaintiff,
Defendant. --------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 004) 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 171, 173, 175, 177, 179, 181, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 213, 215, 216, 217, 218, 219, 222, 223 were read on this motion to/for JUDGMENT - SUMMARY .
The following e-filed documents, listed by NYSCEF document number (Motion 005) 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 172, 174, 176, 178, 180, 182, 198, 199, 200, 201, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 214, 220, 221, 224
157470/2020 SCHWARZ, RUDY vs. AVARGA CONTRACTING CORP. Page 1 of 4 Motion No. 004 005
1 of 4 [* 1] FILED: NEW YORK COUNTY CLERK 06/04/2025 12:42 PM INDEX NO. 157470/2020 NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 06/04/2025
were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER .
Upon the foregoing documents, it is
ORDERED that the part of defendants/third-party plaintiffs 521-533 West 57th Street
Associates LLC (West 57th) and Meringoff Properties Inc.’s (Meringoff) (the property owners)1
motion for summary judgment (MS #4) dismissing plaintiff’s claims as against them is:
(i) Denied with respect to plaintiff’s common law negligence and Labor Law § 200 causes of action, as plaintiff has made a prima facie showing that he was injured due to a dangerous condition on the premises by testifying that the metal mesh grate “all of a sudden [] gave in” when he stepped on it (NYSCEF Doc No 193, p. 86) and that West 57th and Meringoff had notice of same (NYSCEF Doc No 196, pp. 47-50 [Meringoff building superintendent Joel Perez testifying that he told plaintiff’s foreman not to “step on those [grates] because they’ll give”]; Jackson v Hunter Roberts Constr., L.L.C., 205 AD3d 542, 543 [1st Dept 2022] [“Where an existing defect or dangerous condition caused the injury, liability attaches if the owner or general contractor created the condition or had actual or constructive notice of it”] [internal quotation marks omitted]), and West 57th and Meringoff failed to demonstrate the absence of any material fact as to these issues;
(ii) Denied with respect to plaintiff’s Labor Law § 240(1) cause of action, as Perez’s testimony, at a minimum, raises an issue of fact as to whether the collapse of the grate was foreseeable (id.; Jones v 414 Equities LLC, 57 AD3d 65, 79-80 [1st Dept 2008] [“the collapse of a permanent structure can[] give rise to section 240 (1) liability . . . where the collapse of the floor was foreseeable . . . [and] exposed [plaintiff] to an elevation-related risk”]);
(iii) Granted with respect to plaintiff’s Labor Law § 241(6) cause of action, as “Plaintiff does not contest” this part of the motion (NYSCEF Doc No 181);
1 The parties refer to West 57th as the actual owner of the property and Meringoff as its managing agent (NYSCEF Doc Nos 129 ¶ 4, 181 ¶ 18). However, in the contract for the subject construction project, Meringoff is referred to as “[t]he Owner’s Representative for the Project,” the “client” for the purpose of construction bids, the “owner,” and West 57th’s “agent” (NYSCEF Doc No 149). In any case, the parties do not raise the issue of whether Meringoff should be considered an owner for the purposes of the Labor Laws, which extend to “owners and their agents” (Labor Law §§ 240(1), 241(6) [emphasis added]; Gonzalez v Glenwood Mason Supply Co., Inc., 41 AD3d 338, 339 [1st Dept 2007] [“Labor Law § 200 . . . also applies to agents of the owner”]). 157470/2020 SCHWARZ, RUDY vs. AVARGA CONTRACTING CORP. Page 2 of 4 Motion No. 004 005
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And it is further
ORDERED that the part of West 57th and Meringoff’s motion for summary judgment
(MS #4) dismissing all the crossclaims against them is denied, as they have not identified any
such crossclaims (NYSCEF Doc Nos 45 [Avarga answer does not include crossclaims], 32
[action discontinued as against remaining defendants]); and it is further
ORDERED that the part of West 57th and Meringoff’s motion for summary judgment
(MS #4) on its contractual liability claim as against defendant/second-third party plaintiff Avarga
Contracting Corp. (Avarga, the general contractor) is denied, as questions of fact remain as to
West 57th and Meringoff’s liability for plaintiff’s injuries (Radeljic v Certified of N.Y., Inc., 161
AD3d 588, 590 [1st Dept 2018] [“In light of the issues of fact that exist as to the extent of
defendant’s liability for causing plaintiff’s injuries, summary judgment on defendant’s
contractual indemnification claim against [plaintiff’s employer] would be premature”]), and
whether they should both be deemed the “Owner” in the contract; and it is further
ORDERED that the part of Avarga’s (the general contractor’s) motion for summary
judgment (MS #5) dismissing plaintiff’s Labor Law §§ 200, 240(1) and 241(6) claims is:
(i) Denied with respect to plaintiff’s Labor Law § 200 causes of action because in support of its motion, Avarga merely asserts that Joseph Danatzko, a professional engineer who performed a site inspection and analysis, “opined that Defendant Avarga did not violate Labor Law § 200 because submitted evidence demonstrated that Atila (plaintiff’s employer), and not Avarga, directed, controlled, and/or supervised the means and methods of the plaintiff’s work” (NYSCEF Doc Nos 151, 153), however Danatzko has no personal knowledge of the matter and, in any case, this is irrelevant, as plaintiff was injured due to a defective condition on the premises, rather than the means and methods of his work (Jackson, 205 AD3d at 543 [where an injury is caused by the manner and means of the work, a “contractor is liable if it actually exercised supervisory control over the injury-producing work”; where an injury is caused by a dangerous condition, “liability attaches if the [] contractor created the condition or had [] notice of it”]);
157470/2020 SCHWARZ, RUDY vs. AVARGA CONTRACTING CORP.
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Schwarz v Avarga Contr. Corp. 2025 NY Slip Op 31981(U) June 4, 2025 Supreme Court, New York County Docket Number: Index No. 157470/2020 Judge: Paul A. Goetz 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: NEW YORK COUNTY CLERK 06/04/2025 12:42 PM INDEX NO. 157470/2020 NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 06/04/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. PAUL A. GOETZ PART 47 Justice ---------------------------------------------------------------------------------X INDEX NO. 157470/2020 RUDY SCHWARZ, 09/16/2024, Plaintiff, MOTION DATE 09/16/2024
-v- MOTION SEQ. NO. 004 005
AVARGA CONTRACTING CORP., MERINGOFF PROPERTIES INC.,WEST 57TH ACQUISITION, LLC,521- DECISION + ORDER ON 533 WEST 57TH STREET ASSOCIATES LLC,521-533 LLC, MOTION Defendants. ---------------------------------------------------------------------------------X
MERINGOFF PROPERTIES INC., 521-533 WEST 57TH Third-Party STREET ASSOCIATES LLC Index No. 595837/2021
Plaintiffs,
-against-
ATILA CONTRACTING INC.
Defendant. --------------------------------------------------------------------------------X
AVARGA CONTRACTING CORP. Second Third-Party Index No. 595002/2022 Plaintiff,
Defendant. --------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 004) 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 171, 173, 175, 177, 179, 181, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 213, 215, 216, 217, 218, 219, 222, 223 were read on this motion to/for JUDGMENT - SUMMARY .
The following e-filed documents, listed by NYSCEF document number (Motion 005) 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 172, 174, 176, 178, 180, 182, 198, 199, 200, 201, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 214, 220, 221, 224
157470/2020 SCHWARZ, RUDY vs. AVARGA CONTRACTING CORP. Page 1 of 4 Motion No. 004 005
1 of 4 [* 1] FILED: NEW YORK COUNTY CLERK 06/04/2025 12:42 PM INDEX NO. 157470/2020 NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 06/04/2025
were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER .
Upon the foregoing documents, it is
ORDERED that the part of defendants/third-party plaintiffs 521-533 West 57th Street
Associates LLC (West 57th) and Meringoff Properties Inc.’s (Meringoff) (the property owners)1
motion for summary judgment (MS #4) dismissing plaintiff’s claims as against them is:
(i) Denied with respect to plaintiff’s common law negligence and Labor Law § 200 causes of action, as plaintiff has made a prima facie showing that he was injured due to a dangerous condition on the premises by testifying that the metal mesh grate “all of a sudden [] gave in” when he stepped on it (NYSCEF Doc No 193, p. 86) and that West 57th and Meringoff had notice of same (NYSCEF Doc No 196, pp. 47-50 [Meringoff building superintendent Joel Perez testifying that he told plaintiff’s foreman not to “step on those [grates] because they’ll give”]; Jackson v Hunter Roberts Constr., L.L.C., 205 AD3d 542, 543 [1st Dept 2022] [“Where an existing defect or dangerous condition caused the injury, liability attaches if the owner or general contractor created the condition or had actual or constructive notice of it”] [internal quotation marks omitted]), and West 57th and Meringoff failed to demonstrate the absence of any material fact as to these issues;
(ii) Denied with respect to plaintiff’s Labor Law § 240(1) cause of action, as Perez’s testimony, at a minimum, raises an issue of fact as to whether the collapse of the grate was foreseeable (id.; Jones v 414 Equities LLC, 57 AD3d 65, 79-80 [1st Dept 2008] [“the collapse of a permanent structure can[] give rise to section 240 (1) liability . . . where the collapse of the floor was foreseeable . . . [and] exposed [plaintiff] to an elevation-related risk”]);
(iii) Granted with respect to plaintiff’s Labor Law § 241(6) cause of action, as “Plaintiff does not contest” this part of the motion (NYSCEF Doc No 181);
1 The parties refer to West 57th as the actual owner of the property and Meringoff as its managing agent (NYSCEF Doc Nos 129 ¶ 4, 181 ¶ 18). However, in the contract for the subject construction project, Meringoff is referred to as “[t]he Owner’s Representative for the Project,” the “client” for the purpose of construction bids, the “owner,” and West 57th’s “agent” (NYSCEF Doc No 149). In any case, the parties do not raise the issue of whether Meringoff should be considered an owner for the purposes of the Labor Laws, which extend to “owners and their agents” (Labor Law §§ 240(1), 241(6) [emphasis added]; Gonzalez v Glenwood Mason Supply Co., Inc., 41 AD3d 338, 339 [1st Dept 2007] [“Labor Law § 200 . . . also applies to agents of the owner”]). 157470/2020 SCHWARZ, RUDY vs. AVARGA CONTRACTING CORP. Page 2 of 4 Motion No. 004 005
2 of 4 [* 2] FILED: NEW YORK COUNTY CLERK 06/04/2025 12:42 PM INDEX NO. 157470/2020 NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 06/04/2025
And it is further
ORDERED that the part of West 57th and Meringoff’s motion for summary judgment
(MS #4) dismissing all the crossclaims against them is denied, as they have not identified any
such crossclaims (NYSCEF Doc Nos 45 [Avarga answer does not include crossclaims], 32
[action discontinued as against remaining defendants]); and it is further
ORDERED that the part of West 57th and Meringoff’s motion for summary judgment
(MS #4) on its contractual liability claim as against defendant/second-third party plaintiff Avarga
Contracting Corp. (Avarga, the general contractor) is denied, as questions of fact remain as to
West 57th and Meringoff’s liability for plaintiff’s injuries (Radeljic v Certified of N.Y., Inc., 161
AD3d 588, 590 [1st Dept 2018] [“In light of the issues of fact that exist as to the extent of
defendant’s liability for causing plaintiff’s injuries, summary judgment on defendant’s
contractual indemnification claim against [plaintiff’s employer] would be premature”]), and
whether they should both be deemed the “Owner” in the contract; and it is further
ORDERED that the part of Avarga’s (the general contractor’s) motion for summary
judgment (MS #5) dismissing plaintiff’s Labor Law §§ 200, 240(1) and 241(6) claims is:
(i) Denied with respect to plaintiff’s Labor Law § 200 causes of action because in support of its motion, Avarga merely asserts that Joseph Danatzko, a professional engineer who performed a site inspection and analysis, “opined that Defendant Avarga did not violate Labor Law § 200 because submitted evidence demonstrated that Atila (plaintiff’s employer), and not Avarga, directed, controlled, and/or supervised the means and methods of the plaintiff’s work” (NYSCEF Doc Nos 151, 153), however Danatzko has no personal knowledge of the matter and, in any case, this is irrelevant, as plaintiff was injured due to a defective condition on the premises, rather than the means and methods of his work (Jackson, 205 AD3d at 543 [where an injury is caused by the manner and means of the work, a “contractor is liable if it actually exercised supervisory control over the injury-producing work”; where an injury is caused by a dangerous condition, “liability attaches if the [] contractor created the condition or had [] notice of it”]);
157470/2020 SCHWARZ, RUDY vs. AVARGA CONTRACTING CORP. Page 3 of 4 Motion No. 004 005
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(ii) Denied with respect to plaintiff’s Labor Law § 240(1) cause of action because, similarly, Avarga merely asserts that Danatzko “opined that Avarga did not violate Labor Law §§ 240(1)” because the “plywood atop the metal mesh [] was contemplated as a ‘temporary elevated working platform’ [] sufficient under the law” (NYSCEF Doc No 151, 153), but does not identify any evidence suggesting the plywood was being used as a working platform, nor does it explain why the plywood provided plaintiff with “proper protection” against the elevation-related risk as required by Labor Law § 240(1);
(iii) Granted with respect to plaintiff’s Labor Law § 241(6) cause of action, as “Plaintiff does not contest” this part of the motion (NYSCEF Doc No 182);
ORDERED that the part of Avarga’s motion for summary judgment (MS #5) “dismissing
any and all cross-claims relative []to” plaintiff’s Labor Law §§ 200, 240(1) and 241(6) claims
(NYSCEF Doc No 151) is denied, as it failed to identify any such crossclaims, let alone
demonstrate why any such crossclaims against it should be dismissed.
6/4/2025 DATE PAUL A. GOETZ, 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
157470/2020 SCHWARZ, RUDY vs. AVARGA CONTRACTING CORP. Page 4 of 4 Motion No. 004 005
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