Morales v. 88th Ave. Owner, LLC

Summary

The Appellate Division, Second Department modified an order granting the plaintiff summary judgment on Labor Law § 240(1) and Labor Law § 241(6) claims predicated on 12 NYCRR 23-1.8(a). The court held that the alleged injury from a spark did not involve an elevation-related risk covered by Labor Law § 240(1), and that the plaintiff was not shown to be personally engaged in an operation within the scope of 12 NYCRR 23-1.8(a). The court also upheld dismissal of the second third-party complaint under CPLR 1010, but directed that the dismissal be without prejudice rather than with prejudice.

Holdings

1. The plaintiff was not entitled to summary judgment under Labor Law § 240(1), and 88th Avenue Owner, LLC and NY Developers & Managers, Inc. were entitled to summary judgment dismissing that cause of action because the sparks were not shown to be objects requiring securing and the injury did not arise from an elevation-related risk contemplated by the statute.
2. The plaintiff was not entitled to summary judgment on the portion of the Labor Law § 241(6) claim predicated on 12 NYCRR 23-1.8(a), and the defendants were entitled to summary judgment dismissing that portion of the claim because the plaintiff did not establish that he was personally engaged in an operation covered by the regulation.
3. The Supreme Court properly exercised its discretion to dismiss the second third-party complaint because the defendants knowingly and deliberately delayed commencing it, but CPLR 1010 did not authorize dismissal with prejudice; the dismissal had to be without prejudice.

Questions Presented

1. Whether the plaintiff was entitled to summary judgment on liability under Labor Law § 240(1) based on an eye injury caused by a spark from ironwork performed on an upper floor.
2. Whether the plaintiff was entitled to summary judgment on the Labor Law § 241(6) claim predicated on 12 NYCRR 23-1.8(a).
3. Whether the second third-party complaint was properly dismissed under CPLR 1010 and, if so, whether the dismissal could be with prejudice.

Disposition

reversed_and_remanded