FILED: NEW YORK COUNTY CLERK 02/02/ :20 PM INDEX NO /2016 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 02/02/2017

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x DOMINICK JONES, -against- Plaintiff, 1616 AMSTERDAM RESIDENCES, LLC and MICHAEL DEFINIS ALL PRO CONTRACTING INC. d/b/a M. Definis All Pro Contracting Inc., AFFIRMATION IN SUPPORT OF CROSS- MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO PLAINTIFF S MOTION TO STRIKE DEFENDANT S ANSWER Index No.: /2016 Defendants x Paul F. LaGattuta III, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the truth of the following, upon information and belief, under the penalties of perjury: 1. I am a member of the law firm of Fixler & LaGattuta, LLP, attorneys for defendants, MICHAEL DEFINIS ALL PRO CONTRACTING INC. d/b/a M. Definis All Pro Contracting Inc (hereafter referred to collectively as All Pro Contracting ) and am familiar with the facts and circumstances thus far held herein from review of the file maintained at the aforementioned law firm. 2. This affirmation is being made in support of defendant s motion seeking an order granting summary judgment to All Pro Contracting pursuant to CPLR 3212 dismissing plaintiff s complaint and all cross-claims against defendant on the grounds that there are no triable issues of fact and that defendants are entitled to summary judgment, as a matter of law. Additionally, this affirmation is also being made in oppositions to plaintiff s motion to strike defendant s Answer and together with such other and further relief as to this Court may seem just and proper. 3. It will be established that plaintiff s First Cause of Action (common law negligence) must be dismissed because All Pro Contracting did not owe a duty to plaintiff nor 1 of 11

2 was it obligated to maintain or repair the subject ramp and all claims of negligence against this defendant are speculative at best. 4. Furthermore, the Second Cause of Action (Labor Law 200, 204(1) and 241(6)) must be dismissed because (1) defendant was not engaged in any form of construction, renovation or repairs of a structure at the time of the accident, (2) defendant did not direct, control or supervise plaintiff s work, (3) defendant was neither an owner or general contractor and (4) plaintiff volunteered to assist defendant when it was moving the marble tile from the sidewalk into the subject building where its office was located at the time of the accident. STATEMENT OF FACTS 5. It is alleged by plaintiff that on December 16, 2015 at approximately 12:25 p.m. he was injured when he was struck by a cart that was loaded with marble floor tiling and other materials at the premises located at 1616 Amsterdam Avenue, New York, New York. See Summons & Verified Complaint 1 annexed as Exhibit A. 6. Plaintiff further states that he was injured while working on a defective ramp [he] fell down. See Workers' Compensation Form C-3 dated January 14, 2016 annexed as Exhibit B. 7. In support of plaintiff s underlying motion, Dominick Jones submitted an affidavit dated January 17, See Affidavit of Plaintiff annexed hereto as Exhibit C. In his affidavit, plaintiff describes in detail the events leading up to the accident, the mechanism of accident and the cause of the accident. In particular, plaintiff states the following: 6. I utilized the ramp which connected the basement area of the building with the street level during the approximate four month period I worked at the location prior to the accident, in connection with my renovation/construction activities, to enter and exit the building and to take construction garbage out of the building to 1 The Verified Answer of 1616 Amsterdam Residences, LLC and the Verified Answer of Michael DeFinis All Pro Contracting d/b/a M. Definis All Pro Contracting Inc. are annexed hereto collectively as part of Exhibit A. 2 of 11

3 the street/sidewalk area. 7. On December 16, 2015, at approximately 12:145 p.m., I returned to the work site from a lunch break. I was entering the work location through the service entrance located at W. 140 th Street. 11. I joined Mike at the front of the cart loaded with boxes of marble tile. The cart was to be moved down the ramp with both of us to guide the cart down the slope of the ramp by standing in front of the cart (the front was the portion of the cart which was the first side to descend the ramp). We were both stationed at the front and holding the front bar of the car in an attempt to control the heavy cart as it was being rolled down the long ramp. See Exhibit C. 8. Plaintiff further articulates that the cart became stuck in an area of broken, rutted and uneven surface of the ramp and that he slipped because of the surface of the ramp was smooth. See Exhibit C. 9. Plaintiff s affidavit is devoid of any reference to All Pro Contracting employing plaintiff or that it directed, controlled or supervised the means and methods of this particular activity. 10. The affidavit of plaintiff s expert engineer concludes that it is his opinion that the broken, uneven and rutted surface at the top of the ramp was an unsafe condition, which caused the cart to jolt as it descended the ramp and caused it to descend in such a manner as to roll over on top of the plaintiff down a slippery ramp. See affidavit of Herbert Heller, Jr., P.E. annexed Exhibit D. 11. The affidavit of plaintiff s expert architect concludes that the slope of the ramp is steeper than it is supposed to be and it violates the New York City Building Code (b). Furthermore, the expert architect also states that he observed tripping areas and broken surface area. See Affidavit of William Q. Brothers III annexed as Exhibit E. 12. The annexed affidavit of Michael DeFinis (hereafter referred to as DeFinis Affidavit ) establishes that All Pro Contracting operated its business out of an office located within the subject building and that it was not engaged in any form of construction, demolition, 3 of 11

4 renovation or repair work within the subject building on the date of accident. Furthermore, the affidavit further establishes All Pro Contracting did not have any duty or obligation to repair the subject ramp. Lastly, the affidavit establishes that plaintiff was an unpaid volunteer who interjected himself into the activities of All Pro Contracting. See DeFinis Affidavit. follows: PLAINTIFF S FIRST CAUSE OF ACTION - COMMON LAW NEGLIGENCE - MUST BE DISMISSED AS A MATTER OF LAW 13. It is alleged in the First Cause of Action that All Pro Contracting was negligent as in failing to provide plaintiff with a safe place to work; in failing to have efficient and sufficient personnel; in failing to properly supervise the work; in failing to properly coordinate the work; in having a cart that was defective; in having a ramp that was defective; in having a ramp that was not in a safe condition; in failing to provide plaintiff and Mike with proper equipment; in failing to warn of any danger; in failing to use hoists, supports or other proper devices to move marble tiling and other materials; in overloading the cart; in having a broken and unsafe ramp; in failing to have a safe way to transport materials; in failing to have a proper means of ingress and egress when moving a cart with marble and other materials; in having the cart come down from a height past the bottom the ramp; in failing to have safety devices on the ramp and cart; in violating applicable laws, rules and regulations; and defendants were otherwise reckless, careless and negligent. See Verified Complaint Annexed hereto as Exhibit A. 14. The Verified Bill of Particulars as to All Pro Contracting alleges that it was negligent as follows: negligent to provide plaintiff with a safe place to work; in failing to have efficient and sufficient personnel; in failing to properly supervise the work; in failing to properly coordinate the work; in having a cart that was defective; in having a ramp that was defective; in having a ramp that was not in a safe condition; in failing to provide plaintiff and Mike with proper equipment; in failing to warn of any danger; in failing to use hoists, supports or other proper devices to move marble tiling and other materials; in overloading the cart; in having a broken and unsafe ramp; in filing to have a safe way to transport materials; in failing to have a proper means of ingress and egress when moving a cart with marble and other materials; in having a cart come down from a height past the bottom of the ramp; in filing to have safety devices on the ramp and cart; in violating applicable laws, rules and regulations. 4 of 11

5 See Exhibit F. 15. The speculative and conclusory allegations about the overloaded flatbed cart cannot form a basis of liability based on the fact that plaintiff s own affidavit establishes that he was injured when the cart became stuck on a broken section of ramp, that he slipped because of the slope of the ramp and the alleged building code violation. Plaintiff s affidavit and his Workers' Compensation Form C-3 both state that he was injured when he lost control of the subject flatbed cart on the ramp and he blames the condition of the ramp for his injuries. 16. Indeed, it is well established that a tenant in a commercial building does not have a common law duty to a plaintiff to maintain or control the common areas of that building outside of the leased space. Shire v. Ferninando, 161 AD2d 573 (2 nd Dept. 1990); Rosato v. Foodtown 208 AD2d 705 (2 nd Dept. 1994); Ballestas v. City of New York, 114 AD2d 764 (2 nd Dept. 1985); Soto v. Michaels New York Inc., 282 AD2d 300 (1st Dept. 2001); McGill v. Caldors, Inc., 135 AD2d 1041 (3rd Dept. 1987) 17. In Soto, the First Department held that the record established that the landlord had the duty to maintain the stairwell in the service entrance and that all of the building tenants had access to that entrance for deliveries and other services. The tenant had no duty to maintain the stairwell and it was determined that it could not be held liable for plaintiff s injuries resulting from his fall on the stairs. See Soto, supra. 18. In Rothstein v. 400 East 54th Street Co., 51 A.D.3d 431 (1 st Dept. 2008), the First Department affirmed the dismissal of the complaint against a tenant in an action where plaintiff fell on slipper stairs in a common area. The Appellate Division held that the location of the accident was a common area and the tenant bore no contractual responsibility for maintaining the stairs which were not for its exclusive benefit. Id. 19. In Vivas v. VNO Bruckner Plaza LLC, 113 A.D.3d 401 (1 st Dept. 2014) plaintiff fell on a private sidewalk that was not part of the premises demised under the store lease and was 5 of 11

6 part of the common facilities. The Appellate Division reversed the lower court and held that the tenant had not duty to maintain the area that was part of the common element and the tenant was not under any contractual, statutory or common-law duty to maintain the area. Id. 20. Plaintiff, Dominick Jones, states in his affidavit that he routinely used the service area and subject ramp during the four (4) month period of time that he was working at the location. He would traverse the area as part of his job and to leave to go on his lunch break. 21. The affidavit of plaintiff and the DeFinis Affidavit each establish that the subject location of the accident was a common area of the building and that All Pro Contracting did not have a contractual responsibility for maintaining the subject ramp that was used by many different residents of the building. 22. Based on the foregoing, the admissible evidence it has been established that All Pro Contracting did not cause and create the defective condition in the ramp nor was it any obligation to repair the subject ramp. Accordingly, it did not owe plaintiff a duty and the First Cause of Action must be dismissed. THE SECOND CAUSE OF ACTION BASED ON LABOR LAW 200, 241(6) AND 240(1) ARE INAPPLICABLE AND MUST BE DISMISSED AS A MATTER OF LAW 23. The admissible evidence establishes that plaintiff, Dominick Jones, was not an employee covered by Labor Law because he was providing casual, uncompensated assistance to All Pro Contracting. See Stringer v. Musacchia, 898 N.E.2d 545 (2008). 24. In Mordkofsky v. V.C.V. Development Corp., 561 N.Y.S.2d 892 (1990) the Court of Appeals clearly and succinctly stated: Our holdings reflect the clear legislative history of sections 200, 240 and 241 of the Labor Law, which demonstrates that the Legislature's principal objective and purpose underlying these enactments was to provide for the health and safety of employees. Section 200 codifies the common-law duty of an employer to provide employees with a safe place to work. Allen v. Cloutier Constr. Corp., 376 N.E.2d 1276, supra; Yearke v. Zarcone, 57 A.D.2d 457 lv. denied 43 N.Y.2d 643). Sections 6 of 11

7 240 and 241 seek to protect [ ] workers by placing ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor (1969 NY Legis Ann, at 407), instead of on workers, who are scarcely in a position to protect themselves from accident. Zimmer v. Chemung County Performing Arts, 65 N.Y.2d, at 520, 493 N.Y.S.2d 102, 482 N.E.2d 898, quoting Koenig v. Patrick Constr. Co., 298 N.Y. 313, 318, 83 N.E.2d 133, supra [emphasis supplied] ). Recovery under the Labor Law similarly has been barred in actions where the plaintiff was a volunteer. See, Chabot v. Baer, 82 A.D.2d 928 affd. 55 N.Y.2d 844; see also, Attanasio v. Attanasio, 126 A.D.2d 812; Alver v. Duarte, 80 A.D.2d 182). See Mordkofsky, supra. 25. Plaintiff was not employed by All Pro Contracting nor was he an actual worker at the time of the accident engaged in any form of construction, renovation, repair or demolition at the location of the accident. 26. Where a plaintiff is engaged in his normal occupation [... a task not a part of any construction project or any renovation or alteration to a building, he is not protected by the Labor Law. Foster v. David J. Joseph Company, 216 A.D.2d 944 (4th Dep't 1995). This simple rule is directly applicable to the suit at hand. 27. Here, plaintiff was passing a volunteer who offered to help an unrelated tenant in the building move its property into its storage area, nothing more nothing less. As such, Labor Law 240 (1) would not apply. Neither Labor Law 240 (1) and 241 (6) apply because the type of work the plaintiff was performing at the time of the accident was not a covered activity. Where the activity engaged in at the time of the injury is not incidental or significantly connected to a covered activity, the Labor Law does not apply. 28. In another First Department case, Acosta v. Banco Popular, 308 A.D. 2d 48 (1 st Dept. 2003) the court explained what activities trigger both Labor Law 240 and Labor Law 241 (6). As the bank correctly points out, to be entitled to the protection of Labor Law 240(1), plaintiff had to be engaged in a protected activity, i.e., the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure. Similarly, Labor Law 41(6) 7 of 11

8 only affords protection to the class of workers engaged in constructing or demolishing buildings...in areas in which construction, excavation or demolition work is being performed. 29. In Bayo v. 626 Sutter Ave. Associates, LLC, 106 A.D.3d 648 (1 st Dept. 2013) the Appellate Division dismissed the common-law negligence and Labor Law claims because the injury was not caused by the methods of the work but by a defective condition on the premises. At the time of the accident plaintiff was working as a night watchman as opposed to construction laborer. 30. Accordingly, [i]t is well-settled that, to recover under Labor Law 200, 240 and 241(6) as a member of the special class for whose protection these provisions were adopted, a plaintiff must establish two criteria: (1) that he was permitted or suffered to perform work on a structure and, (2) that he was hired by the owner, the general contractor, or an agent of the owner or general contractor. Brown v. Christopher St. Owners Corp., 211 A.D.2d 441 (1 st Dept. 1995), aff'd on other grounds, 87 N.Y.2d 938 (1996); Oraa v. McKennel, 261 A.D.2d 461 (2 nd Dept. 1999) (dismissing Labor Law 200, 240, and 241(6) claims because the plaintiff was a volunteer); Plung v. Cohen, 250 A.D.2d 430, 431 (1 st Dept. 1998) (affirming dismissal of the Labor Law 241(6) claim because the plaintiff was not hired by the owner, contractor or their agent); Cheung v. G & M Hardware & Electric, Inc., 249 A.D.2d 28, 29 (1st Dept. 1998) (affirming dismissal of the plaintiffs Labor Law 200, 240 and 241(6) claims because the plaintiff gratuitously volunteered his services); Harrison v. City of New York, 248 A.D.2d 592 (2 nd Dept. 1998) (affirming the dismissal of the Labor Law 200, 240 and 241(6) claims because the injured plaintiffs firm had not been hired by any contractor, owner or agent to perform work on the site but instead, was merely acting as a volunteer ); Lamberson v. Paul K.Y. Chen, R.A., 141 A.D.2d 422 (1 st Dep't 1988) (granting partial summary judgment dismissing Labor Law 200, 240 and 241(6) claims because measuring a roof for a free *25 estimate was insufficient, as a matter of law, to create the required employeremployee 8 of 11

9 relationship). 31. In light of the fact that Dominick Jones volunteered his services to assist All Pro Contracting when it was moving its property (an activity that had nothing to do with the renovation of the restaurant), he cannot be classified as a worker engaged in any form of work on a structure at the time of the accident nor was he actually hired to perform the subject work, all of plaintiff s claims in the Second Cause of Action must be dismissed. THE MOTION TO STRIKE IS WITHOUT MERIT BECAUSE PLAINTIFF HAS CONTINUALLY FAILED TO PROVIDE DISCOVERY IN A TIMELY MANNER 32. Contrary to plaintiff s contentions, the Examination Before Trial of plaintiff has been repeatedly adjourned because plaintiff has failed to provide discovery in a timely manner and most recently notified defendants that he underwent surgery on December 16, 2016, which was less than one month before the scheduled Examination Before Trial on January 11, The Preliminary Conference Order dated June 9, 2016 directed plaintiff to provide various discovery responses and authorizations July 9, See Exhibit G. The Examination Before Trial of plaintiff was scheduled for September 27, 2016, but it had to be adjourned because plaintiff failed to provide the outstanding discovery as directed by this Court. 34. At the Compliance Conference on November 3, 2016, the Examination Before Trial plaintiff was scheduled for January 11, See Exhibit G. This Examination Before Trial had to be rescheduled because defendants were informed in late December 2016 that plaintiff had undergone knee surgery on December 16, 2016 and various medical records and authorizations were outstanding. 35. In fact, on August 31, 2016 plaintiff provided authorization for his pharmacy records and employment records for his prior employer. Additionally, plaintiff also provided photographs and witness information on this date. On September 1, 2016 plaintiff provided additional authorizations for medical records. On September 16, 2016 plaintiff s counsel sent a 9 of 11

10 ranting letter disputing defendant s position that the Examination Before Trial could not proceed because of plaintiff s belated discovery responses. 36. The series of letters annexed hereto as Exhibit H clearly establish that plaintiff has been consistently violating the discovery scheduled established by the Preliminary Conference and Compliance Conference Orders, but now cries afoul and claims to be a victim of the defendants delay tactics. This argument is not being made in good-faith and it should question the actions of plaintiff. 37. It is well settled that dismissal is warranted only where a clear showing has been made that non-compliance with a discovery order was willful, contumacious, or due to bad faith. See, Rosario v. New York City Housing Authority, 272 A.D.2d 105 (1 st Dep t 2000) citing, Stone v. Speiser, 267 A.D.2d 157 (1 st Dep t 1999); Corner Realty 30/7 v. Bernstein Mgmt. Corp., 249 A.D.2d 191 (1 st Dep t 1998). It is clear that defendant, All Pro Contracting, has not acted in bad faith as plaintiff s counsel was advised that All Pro Contracting would proceed with depositions upon receipt of the entirety of plaintiff s medical records. 38. Plaintiff has failed to show that defendant is guilty of a deliberately evasive, misleading and uncooperative course of conduct or a determined strategy of delay that would be deserving of the most vehement condemnation. See, Vancott v. Great Atlantic & Pacific Tea Company, Inc., 271 A.D.2d 438 (2 nd Dep t 2000) citing, Forman v. Jamesway Corp., 175 A.D.2d 514 (3d Dep t 1991), plaintiff s motion must be denied. 39. In light of the fact that plaintiff underwent knee surgery one (1) month before the subject Examination Before Trial and defendants had yet to receive all of the authorizations for medical records and corresponding medical records, an adjournment of this Examination Before Trial was warranted. CONCLUSION 40. In light of the fact that summary judgment should be granted as a matter of law 10 of 11

11 dismissing all claims against All Pro Contracting, the portions of the motion seeking to strike defendant s answer should be denied as moot. WHEREFORE, it is respectfully requested that defendant s motion be granted in its entirety, that plaintiff's motion be denied in its entirety and for such other and further and different relief as this Court deems just and proper. Dated: New York, New York February 2, 2017 Paul F. LaGattuta III 11 of 11