Preview
FILED: NEW YORK COUNTY CLERK 09/17/2019 06:11 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 440 RECEIVED NYSCEF: 09/17/2019
Exhibit B
FILED: NEW YORK COUNTY CLERK 09/17/2019 06:11 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 440 RECEIVED NYSCEF: 09/17/2019
INDEX NO. 158327/2013
(FI-LED : NEW YORK COUNTY CLERK 07/22/2019 10 : 47 Pld
NYSCEF DOC. NO. -y/6 RECE1\/ED N YSCE F : 07/ 23/ 2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
KEVIN McGONIGAL,
Plaintiff, Index No. 158327/13
-against-
NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION Hon. Margaret A. Chan, J.S.C.
CORP. and BARING INDUSTRIES, INC.,
Defendants.
PLAZA CONSTRUCTION CORP.,
Third-Party
Third-Party Plaintiff, Index No. 595146/14
-against-
BARING INDUSTRIES, INC.,
Third-Party Defendant.
..---------------..-------..----.......... ------- X
BARING INDUSTRIES, INC.,
Second Third-Party Plaintiff,
-against- Second Third-Party
Index No. 595130/15
DAY & NITE REFRIGERATION CORP. and KIMCO
REFRIGERATION CORP.,
Second Third-Party Defendants.
.- - ...---.....--...---....----.....---.----....------.-----,-- -- - X
NYY STEAK MANHATTAN, LLC and PLAZA CONSTRUCTION
LLC f/k/a PLAZA CONSTRUCTION CORP.,
Third Third-Party Plaintiffs, Third Third-Party
-against- Index No, 595638/15
B&G ELECTRICAL CONTRACTORS, ESS & VEE ACOUSTICAL
CONTRACTORS, INC. and BARING INDUSTRIES, INC.,
Third Third-Party Defendants. ·
------..---------------..-.,---.....------......----....------,,----,-------- -------X
MEMORANDUM OF LAW IN SUPPORT
OF MOTION FOR SUMMARY .TUDGMENT
FABIANI COHEN & HALL, LLP
Attorneys for Defendants/Third Third-Party Plaintiffs
NYY STEAK MANHATTAN, LLC and PLAZA CONSTRUCTION LLC
f/k/a PLAZA CONSTRUCTION CORP,
CONSULTING, LLC
46
570 Lexington Avenue, Floor
New York, New York 10022
Phone: (212) 644-4420
Fax: (212) 207-8182
[1736446/1] 1
1 of 31
FILED: NEW YORK COUNTY CLERK 09/17/2019 06:11 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 440 RECEIVED NYSCEF: 09/17/2019
NEW YORK INDEX NO. 158327/2013
[FILED: COUNTY CLERK 07 /22 /žÒ19 10 : 47 PMJ
NYSCEF DUC. NO. 3 /6 RECE1VED NYSCEF: O'//23/2019
Defendants/third third-party plaintiffs NYY Steak Manhattan, LLC ("NYY Steak") and
Plaza Construction LLC f/k/a Plaza Construction Corp. ("Plaza") by their attorneys, Fabiani
Cohen & Hall, LLP, submit this Memorandum of Law in support of their motion for summary
judgment (1) dismissing the plaintiff's Labor Law § 200 and common-law negligence claims as a
matter of law; (2) on their third third-party claims against Baring Industries, Inc. ("Baring"),
B&G Electrical Contractors ("B&G"), and Ess & Vee Acoustical Contractors, Inc. ("Ess &
Vee") for coñtractual indemnity, or, in the alternative for a coñditional order of contractual
iñdemñity; (3) on their third-party claims against B&G and Ess & Vee for common-law
indemnity; (4) dismissing B&G's, Baring's, Ess & Vee's and DAY & NITE REFRIGERATION
CORP.'s and KIMCO REFRIGERATION CORP.'s (collectively, "D&N") cross-claims
counterclaims against NYY Steak and Plaza; and (5) on their third third-party claim against
Baring for breach of contract for failure to procure insurance. This motion is timely since the 60
day period within which to move fell on July 20, 2019. Therefore, pursuant to General
Construction Law § 25-(a)(1) this motion is timely.
Preliminary Statement
This action arises out of an alleged accident that occurred on September 6, 2013, at a
51"
construction project located at 7 West Street, New York, New York, known as the NYY
Steakhouse project. Plaza was the construction manager for the project. Plaza hired Baring to
install kitchen and refrigeration systems. Baring subcontracted part of its work to D&N. The
plaintiff, a steamfitter, was eroployed by D&N. Plaza also sub-contracted with B&G to perform
the electrical work, which iñcluded the installation and maintenance of the temporary lighting at
the 2LL level. Additionally Plaza sub-contracted with Ess & Veetodo sheetrocking and other
work at the 2LL level.
[1735526/1] 1
2 of 31
FILED: NEW YORK COUNTY CLERK 09/17/2019 06:11 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 440 RECEIVED NYSCEF: 09/17/2019
NEW INDEX NO. 158327/2013
(FILED: YORK COUNTY CLERK 07 /22 /2019 10 : 47 PM
---
N2SCEF DOC. NO. 376 RECEJ.VBO ÑfSCEF: O'7723[2019
The plaintiff alleges that his accident occurred on the 2LL level when, after passing down
a hallway where the sheetrock was leaning against the wall, making it narrower, and due to
alleged inadequate lighting he tripped on a piece of debris, and fell into an unguarded elevator
pit. The evidence conulesively establishes that Plaza did not create orhave actual or constructive
notice of the alleged premises conditions that the plaintiff claims caused his accident, i.e., the
uncovered elevator pit, the alleged inadequate lighting and the alleged piece of debris on the
ground. Rather the evidence establishes that Ess & Vee and B&G were responsible for these
premises conditions. Therefore, the plaintiff's Labor Law § 200 and com-mon-law negligence
claims should be dismissed.
The happeniñg of the alleged accident also triggered Baring's, B&G's, and Ess &Vee's
indemnity obligations under their respective contracts with Plaza. Each subcontract contains the
same indemnity provision, which contains several indemnity triggers that apply, pursuant to
which Baring, B&G and Ess & Vee owe NYY Steak and Plaza contractual indemnity.
The evidence that B&G and Ess and Vee were the sole parties responsible for the
happening of the accident, and that Plaza was n_ot negligent as a matter of law also establishes
that NYY Steak's and Play.a's claims for common-law indemnity against B&G and Ess and Vee
should be granted. NYY Steak and Plaza are also entitled to an order granting them summsy
judgment and dismissing Baring's, B&G's, Ess and Vee's and D&N's cross-claims and
counterclaims for breach of contract, common-law indemnity and contribution. NYY Steak and
Plaza do not owe Baring, B&G, Ess and Vee or D&N any contractual obligations. Furthermore,
since the evideñce proves that NYY Steak and Plaza were not negligent as a matter of law, there
is no basis for the negligence-based claims against them. Finally, NYY Steak and Plaza are
entitled to summary judgment on their claim against Baring for breach of its agreement to
[1735526/1] 2
3 of 31
FILED: NEW YORK COUNTY CLERK 09/17/2019 06:11 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 440 RECEIVED NYSCEF: 09/17/2019
INDEX NO. 158327/2013
(FILED : NEW YORK COUNTY CLERK 07 /22 /2019 10 : 47 PM)
NYSUEF Due. No. 3 /6 kECE1VBD N2sCEF: 0 l/ 23/ 2019
procure insurance in view of the evidence that Baring failed to provide the insurãñce required
pursuant to its subcontract.
ARGUMENT
I
THE PLAINTIFF'S LABOR LAW § 200 AND
COMMON-LAW NEGLIGENCE CLAIMS AGAINST NYY
STEAK AND PLAZA SHOULD BE DISMISSED BECAUSE THEY DID NOT
CREATE OR HAVE NOTICE OF THE ALLEGED DANGEROUS CONDITIONS
The plaintiff alleges three conditions that caused his accident: (1) an open elevator pit; (2)
inadequate lighting; and (3) a stray piece of wood/debris. As demonstrated below, since neither
NYY Steak nor Plaza created these alleged dangerous conditions nor had notice of them, the
plaintiff's Labor Law § 200 and common-law negligence claims against them should be
dismissed.
defendants'
A. Summ±ry Judgment standards warrant granting the motion
The party moving for summary judgment must make a prima facie showing of
entitlement to judgment in his or her favor as a matter of law, tendering sufficient evidence to
demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hosp., 68 N.Y.2d
320 (1986). Once that showing has been made, the burden shifts to the opposing party, who is
required to produce evidentiary proof in admissible form sufficient to establish the existence of
material issues of fact which require a trial of the action. See Wiñegrad v. New York Univ. Med.
CA, 64 N.Y.2d 851 (1985) Mere conclusory statements, expressions of hope or unsubstantiated
allegations are insufficient to defeat the motion. Zuckerman v. City of New York, 49 N.Y.2d
557, 562 (1980). The court's role on summary judgment is issue finding, rather than issue
determination. Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395 (1957). These
[1735526/1] 3
4 of 31
FILED: NEW YORK COUNTY CLERK 09/17/2019 06:11 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 440 RECEIVED NYSCEF: 09/17/2019
FILED : NEW YÓRK COUNTY CLERK /22 INDEX NO. 158327/2013
07 /2019 10 : 47 PM|
NySCEF UDC. NO. 376 RECE1VED NiSCEF: 07/23/2019
standards dictate that the defendants/third-party plaintiffs are entitled to summary judgment as
set forth herein as no triable issue of fact exists on any relevant issue.
B. The plaintiff's Labor law § 200 and
commen-law negligence claims are without merit
Labor Law § 200 is a codification of the common-law duty imposed upon owners and
general contractors to maintain a safe workplace. See Comes v. New York State Elec. & Gas
Corp., 82 N.Y.2d 876, 877 (1993). To impose liability on the defendant based on the existence
of a dangerous condition, the plaintiff must show that the defendant either created a dangeious
cüüditicñ, Or had actual or constructive notice of it. See, e.g., Rodriguez v. New York City
(1"
Transit Auth.. 118 A.D.3d 618 Dep't 2014) (defendant entitled to summary judgment where
defendant did not create or have notice of the allegedly defective condition that caused the
(1"
plaintiff's accident); Rivera v. Merrill Lynch/WFC/Inc., 84 A.D.3d 524 Dep't 2011)
(defendants entitled to summary judgment where they did not create or have actual or
constructive notice of the allegedly defective condition that caused the plaintiff's accident);
(1"
Kelly v. Berberich, 36 A.D.2d 475 Dep't 2007); .S_egretti v. Shorenstein Co. East L2, 256
(1"
A.D.2d 234 Dep't 1998) (defendant made a prima facie showing of entitlement to judgment
as a matter of law by showing that it neither created the condition nor had actual or constructive
notice of it).
The mere existence of a condition at the time of an accident, without evidence as to the
length of time it was present, is insufficient to impute notice to a defendant. Anderson v. Klein's
Foods, Inc., 139 A.D.2d 904, aff'd 73 N.Y.2d 835 (1988). To establish constructive notice, the
plaintiff must demonstrate that the alleged defect was visible and apparent, and that it existed for
a sufficient length of time prior to the accident to permit the defendant to discover and remedy
it. Gordon v. American Museum of Natural History, 67 N.Y.2d 836 (1986). As well, a general
[1735526/1] 4
5 of 31
FILED: NEW YORK COUNTY CLERK 09/17/2019 06:11 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 440 RECEIVED NYSCEF: 09/17/2019
INDEX NO. 158327/2013
[F ILED : NEW YORK C'OUNTY CLERK 07 /22 /2 019 10 : 4 7 PMl
N2SCEF DOC. No. 3 6 RichivkD NisCEb: 0//23/2019
awareness that a condition may be present is legally insufficient to constitute notice of the
particular condition that caused the injury. Id. at 838.
C. NYY Steak did not create and did not have notice of the alleged conditions
It is undisputed that NYY Steak was not present at the construction site and that it had
had no direct involvement in the NYY Steakhouse project. NYY Steak retained Plaza to perform
all work relating to the NYY Steakhouse project. As a matter of law it did not create the alleged
dangerous conditicñs at the site and it did not have actual or constructive notice of them.
Therefore, the plaintiff's Labor Law § 200 and common-law negligence claims against NYY
Steak should be dismissed.
D. Plaza did not create and did not have notice of the alleged condition_s
The alleged conditions which the plaintiff claims caused his accident were created by
B&G, the electrical subecñtractor and Ess & Vee, the sheetrocking subcontractor. The evidence
proves that Plaza did not have actual or constructive notice of them. Therefore, the plaintiff's
Labor Law § 200 and w -law negligence claims against Plaza should be dismissed.
1. Plaza did not create the open elevator pit, nor did it have notice of it
The evidence establishes that B&G removed the protective cover over the clevâtor pit
and failed to return it. The evidence also establishes that Plaza did not have actual or
constructive notice of the alleged condition.
The evidence demonstrates that at the time of and shortly before the alleged accident,
B&G stored its materia's in the elevator pit, and that B&G was performing work in the elevator
pit at the 2LL level. Mr. Chin, B&G's subforman who was working at the NYY Steakhouse
project, examined the photographs marked as A-1 and B-1, which were taken after the accident.
Mr. Chin testified that there were three cables or spools of BX coils in the elevator pit, which
[1735526/1] 5
6 of 31
FILED: NEW YORK COUNTY CLERK 09/17/2019 06:11 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 440 RECEIVED NYSCEF: 09/17/2019
INDEX NO. 158327/2013
[F ILED : NEW YORK COUNTY CLERK 07 /22 /2 019 10 : 4 7 PÑ|
NESCEF DOU. NO. 376 REUE1VED NibCEPTUDYI72019
belonged to B&G. He also testified that B&G's employee placed the items inside the elevator
Defs.'
pit. See Chin EBT, at P.47:16-P.48:5; P.49:13-22; P. 76:15-18; P.77:17-21, at Aff., Ex. P.
Mr. Usher, Julian Gomez and Jimmy Vespe each testified that on the day of the accident, they
saw B&G's materials in the elevator pit. See Usher at P.123:20-25; P.124:1-7;. P.143:13-
EBT,
18; Vespe EBT, at P. 36:23-P.37:8; Gomez EBT, at P.73:13-20; P. 74:6-14.
The evidence also shows that B&G was performing fire alarm work at the 2LL level on
the day of and immediately before the plaintiff's alleged accident. Mr. Chin testified that in
September 2013, B&G performed fire alarm work on the 2LL level. See Chin EBT, at P. 28:4-8.
He also testified that B&G performed work in the pit. See Chin EBT, at P.54:5-10, Mr. Usher
similarly testified that B&G did work in the elevator pit. See Usher EBT, at P. 94:24-25.
Plaza's daily logs prove that B&G was working on the 2LL level the day before the
accident and on the day of the accident. George Usher, Plaza's superintendent, states in his
affidavit that the daily logs show that on September 5, 2013 (the day before the alleged accident)
and that on September 6, 2013 (the day of the alleged accident) that B&G was doing "fire alarm
work" Defs.'
on the 2LL level. See Usher Aff. ¶¶ 12,13, at Aff., Ex. AA. Notably, Mr. Chin
testified that to do the fire alarm work, B&G used BX cable, which is the cable that BX stored in
the pit. See id. P.28:4-8; P.30:12-19.
This evidêñce establishes that on the day of the alleged accident and on the day before
the alleged accident, B&G was not only performing work at the 2LL level, but was using
materials to perform that work that it stored in the elevator pit. Plainly in order to access the
material that it needed to perform its work, B&G had to remove the plywood cover that was
placed over it to prevent anyone from falling into the pit. The fact that the plaintiff's alleged
accident occurred at 8:00 a.m. on September 6, 2013 shows that the accident
approximately
[1735526/1] 6
7 of 31
FILED: NEW YORK COUNTY CLERK 09/17/2019 06:11 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 440 RECEIVED NYSCEF: 09/17/2019
INDEX NO. 158327/2013
F ILED : NEW YORK CO__UNTY CLERK 07 22 /2 019 10 : 47 PM1
MSL'EF DOC. NO. 376
Preview
FILED: NEW YORK COUNTY CLERK 09/17/2019 06:11 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 440 RECEIVED NYSCEF: 09/17/2019 Exhibit B FILED: NEW YORK COUNTY CLERK 09/17/2019 06:11 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 440 RECEIVED NYSCEF: 09/17/2019 INDEX NO. 158327/2013 (FI-LED : NEW YORK COUNTY CLERK 07/22/2019 10 : 47 Pld NYSCEF DOC. NO. -y/6 RECE1\/ED N YSCE F : 07/ 23/ 2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK KEVIN McGONIGAL, Plaintiff, Index No. 158327/13 -against- NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION Hon. Margaret A. Chan, J.S.C. CORP. and BARING INDUSTRIES, INC., Defendants. PLAZA CONSTRUCTION CORP., Third-Party Third-Party Plaintiff, Index No. 595146/14 -against- BARING INDUSTRIES, INC., Third-Party Defendant. ..---------------..-------..----.......... ------- X BARING INDUSTRIES, INC., Second Third-Party Plaintiff, -against- Second Third-Party Index No. 595130/15 DAY & NITE REFRIGERATION CORP. and KIMCO REFRIGERATION CORP., Second Third-Party Defendants. .- - ...---.....--...---....----.....---.----....------.-----,-- -- - X NYY STEAK MANHATTAN, LLC and PLAZA CONSTRUCTION LLC f/k/a PLAZA CONSTRUCTION CORP., Third Third-Party Plaintiffs, Third Third-Party -against- Index No, 595638/15 B&G ELECTRICAL CONTRACTORS, ESS & VEE ACOUSTICAL CONTRACTORS, INC. and BARING INDUSTRIES, INC., Third Third-Party Defendants. · ------..---------------..-.,---.....------......----....------,,----,-------- -------X MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY .TUDGMENT FABIANI COHEN & HALL, LLP Attorneys for Defendants/Third Third-Party Plaintiffs NYY STEAK MANHATTAN, LLC and PLAZA CONSTRUCTION LLC f/k/a PLAZA CONSTRUCTION CORP, CONSULTING, LLC 46 570 Lexington Avenue, Floor New York, New York 10022 Phone: (212) 644-4420 Fax: (212) 207-8182 [1736446/1] 1 1 of 31 FILED: NEW YORK COUNTY CLERK 09/17/2019 06:11 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 440 RECEIVED NYSCEF: 09/17/2019 NEW YORK INDEX NO. 158327/2013 [FILED: COUNTY CLERK 07 /22 /žÒ19 10 : 47 PMJ NYSCEF DUC. NO. 3 /6 RECE1VED NYSCEF: O'//23/2019 Defendants/third third-party plaintiffs NYY Steak Manhattan, LLC ("NYY Steak") and Plaza Construction LLC f/k/a Plaza Construction Corp. ("Plaza") by their attorneys, Fabiani Cohen & Hall, LLP, submit this Memorandum of Law in support of their motion for summary judgment (1) dismissing the plaintiff's Labor Law § 200 and common-law negligence claims as a matter of law; (2) on their third third-party claims against Baring Industries, Inc. ("Baring"), B&G Electrical Contractors ("B&G"), and Ess & Vee Acoustical Contractors, Inc. ("Ess & Vee") for coñtractual indemnity, or, in the alternative for a coñditional order of contractual iñdemñity; (3) on their third-party claims against B&G and Ess & Vee for common-law indemnity; (4) dismissing B&G's, Baring's, Ess & Vee's and DAY & NITE REFRIGERATION CORP.'s and KIMCO REFRIGERATION CORP.'s (collectively, "D&N") cross-claims counterclaims against NYY Steak and Plaza; and (5) on their third third-party claim against Baring for breach of contract for failure to procure insurance. This motion is timely since the 60 day period within which to move fell on July 20, 2019. Therefore, pursuant to General Construction Law § 25-(a)(1) this motion is timely. Preliminary Statement This action arises out of an alleged accident that occurred on September 6, 2013, at a 51" construction project located at 7 West Street, New York, New York, known as the NYY Steakhouse project. Plaza was the construction manager for the project. Plaza hired Baring to install kitchen and refrigeration systems. Baring subcontracted part of its work to D&N. The plaintiff, a steamfitter, was eroployed by D&N. Plaza also sub-contracted with B&G to perform the electrical work, which iñcluded the installation and maintenance of the temporary lighting at the 2LL level. Additionally Plaza sub-contracted with Ess & Veetodo sheetrocking and other work at the 2LL level. [1735526/1] 1 2 of 31 FILED: NEW YORK COUNTY CLERK 09/17/2019 06:11 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 440 RECEIVED NYSCEF: 09/17/2019 NEW INDEX NO. 158327/2013 (FILED: YORK COUNTY CLERK 07 /22 /2019 10 : 47 PM --- N2SCEF DOC. NO. 376 RECEJ.VBO ÑfSCEF: O'7723[2019 The plaintiff alleges that his accident occurred on the 2LL level when, after passing down a hallway where the sheetrock was leaning against the wall, making it narrower, and due to alleged inadequate lighting he tripped on a piece of debris, and fell into an unguarded elevator pit. The evidence conulesively establishes that Plaza did not create orhave actual or constructive notice of the alleged premises conditions that the plaintiff claims caused his accident, i.e., the uncovered elevator pit, the alleged inadequate lighting and the alleged piece of debris on the ground. Rather the evidence establishes that Ess & Vee and B&G were responsible for these premises conditions. Therefore, the plaintiff's Labor Law § 200 and com-mon-law negligence claims should be dismissed. The happeniñg of the alleged accident also triggered Baring's, B&G's, and Ess &Vee's indemnity obligations under their respective contracts with Plaza. Each subcontract contains the same indemnity provision, which contains several indemnity triggers that apply, pursuant to which Baring, B&G and Ess & Vee owe NYY Steak and Plaza contractual indemnity. The evidence that B&G and Ess and Vee were the sole parties responsible for the happening of the accident, and that Plaza was n_ot negligent as a matter of law also establishes that NYY Steak's and Play.a's claims for common-law indemnity against B&G and Ess and Vee should be granted. NYY Steak and Plaza are also entitled to an order granting them summsy judgment and dismissing Baring's, B&G's, Ess and Vee's and D&N's cross-claims and counterclaims for breach of contract, common-law indemnity and contribution. NYY Steak and Plaza do not owe Baring, B&G, Ess and Vee or D&N any contractual obligations. Furthermore, since the evideñce proves that NYY Steak and Plaza were not negligent as a matter of law, there is no basis for the negligence-based claims against them. Finally, NYY Steak and Plaza are entitled to summary judgment on their claim against Baring for breach of its agreement to [1735526/1] 2 3 of 31 FILED: NEW YORK COUNTY CLERK 09/17/2019 06:11 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 440 RECEIVED NYSCEF: 09/17/2019 INDEX NO. 158327/2013 (FILED : NEW YORK COUNTY CLERK 07 /22 /2019 10 : 47 PM) NYSUEF Due. No. 3 /6 kECE1VBD N2sCEF: 0 l/ 23/ 2019 procure insurance in view of the evidence that Baring failed to provide the insurãñce required pursuant to its subcontract. ARGUMENT I THE PLAINTIFF'S LABOR LAW § 200 AND COMMON-LAW NEGLIGENCE CLAIMS AGAINST NYY STEAK AND PLAZA SHOULD BE DISMISSED BECAUSE THEY DID NOT CREATE OR HAVE NOTICE OF THE ALLEGED DANGEROUS CONDITIONS The plaintiff alleges three conditions that caused his accident: (1) an open elevator pit; (2) inadequate lighting; and (3) a stray piece of wood/debris. As demonstrated below, since neither NYY Steak nor Plaza created these alleged dangerous conditions nor had notice of them, the plaintiff's Labor Law § 200 and common-law negligence claims against them should be dismissed. defendants' A. Summ±ry Judgment standards warrant granting the motion The party moving for summary judgment must make a prima facie showing of entitlement to judgment in his or her favor as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hosp., 68 N.Y.2d 320 (1986). Once that showing has been made, the burden shifts to the opposing party, who is required to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. See Wiñegrad v. New York Univ. Med. CA, 64 N.Y.2d 851 (1985) Mere conclusory statements, expressions of hope or unsubstantiated allegations are insufficient to defeat the motion. Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). The court's role on summary judgment is issue finding, rather than issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395 (1957). These [1735526/1] 3 4 of 31 FILED: NEW YORK COUNTY CLERK 09/17/2019 06:11 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 440 RECEIVED NYSCEF: 09/17/2019 FILED : NEW YÓRK COUNTY CLERK /22 INDEX NO. 158327/2013 07 /2019 10 : 47 PM| NySCEF UDC. NO. 376 RECE1VED NiSCEF: 07/23/2019 standards dictate that the defendants/third-party plaintiffs are entitled to summary judgment as set forth herein as no triable issue of fact exists on any relevant issue. B. The plaintiff's Labor law § 200 and commen-law negligence claims are without merit Labor Law § 200 is a codification of the common-law duty imposed upon owners and general contractors to maintain a safe workplace. See Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877 (1993). To impose liability on the defendant based on the existence of a dangerous condition, the plaintiff must show that the defendant either created a dangeious cüüditicñ, Or had actual or constructive notice of it. See, e.g., Rodriguez v. New York City (1" Transit Auth.. 118 A.D.3d 618 Dep't 2014) (defendant entitled to summary judgment where defendant did not create or have notice of the allegedly defective condition that caused the (1" plaintiff's accident); Rivera v. Merrill Lynch/WFC/Inc., 84 A.D.3d 524 Dep't 2011) (defendants entitled to summary judgment where they did not create or have actual or constructive notice of the allegedly defective condition that caused the plaintiff's accident); (1" Kelly v. Berberich, 36 A.D.2d 475 Dep't 2007); .S_egretti v. Shorenstein Co. East L2, 256 (1" A.D.2d 234 Dep't 1998) (defendant made a prima facie showing of entitlement to judgment as a matter of law by showing that it neither created the condition nor had actual or constructive notice of it). The mere existence of a condition at the time of an accident, without evidence as to the length of time it was present, is insufficient to impute notice to a defendant. Anderson v. Klein's Foods, Inc., 139 A.D.2d 904, aff'd 73 N.Y.2d 835 (1988). To establish constructive notice, the plaintiff must demonstrate that the alleged defect was visible and apparent, and that it existed for a sufficient length of time prior to the accident to permit the defendant to discover and remedy it. Gordon v. American Museum of Natural History, 67 N.Y.2d 836 (1986). As well, a general [1735526/1] 4 5 of 31 FILED: NEW YORK COUNTY CLERK 09/17/2019 06:11 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 440 RECEIVED NYSCEF: 09/17/2019 INDEX NO. 158327/2013 [F ILED : NEW YORK C'OUNTY CLERK 07 /22 /2 019 10 : 4 7 PMl N2SCEF DOC. No. 3 6 RichivkD NisCEb: 0//23/2019 awareness that a condition may be present is legally insufficient to constitute notice of the particular condition that caused the injury. Id. at 838. C. NYY Steak did not create and did not have notice of the alleged conditions It is undisputed that NYY Steak was not present at the construction site and that it had had no direct involvement in the NYY Steakhouse project. NYY Steak retained Plaza to perform all work relating to the NYY Steakhouse project. As a matter of law it did not create the alleged dangerous conditicñs at the site and it did not have actual or constructive notice of them. Therefore, the plaintiff's Labor Law § 200 and common-law negligence claims against NYY Steak should be dismissed. D. Plaza did not create and did not have notice of the alleged condition_s The alleged conditions which the plaintiff claims caused his accident were created by B&G, the electrical subecñtractor and Ess & Vee, the sheetrocking subcontractor. The evidence proves that Plaza did not have actual or constructive notice of them. Therefore, the plaintiff's Labor Law § 200 and w -law negligence claims against Plaza should be dismissed. 1. Plaza did not create the open elevator pit, nor did it have notice of it The evidence establishes that B&G removed the protective cover over the clevâtor pit and failed to return it. The evidence also establishes that Plaza did not have actual or constructive notice of the alleged condition. The evidence demonstrates that at the time of and shortly before the alleged accident, B&G stored its materia's in the elevator pit, and that B&G was performing work in the elevator pit at the 2LL level. Mr. Chin, B&G's subforman who was working at the NYY Steakhouse project, examined the photographs marked as A-1 and B-1, which were taken after the accident. Mr. Chin testified that there were three cables or spools of BX coils in the elevator pit, which [1735526/1] 5 6 of 31 FILED: NEW YORK COUNTY CLERK 09/17/2019 06:11 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 440 RECEIVED NYSCEF: 09/17/2019 INDEX NO. 158327/2013 [F ILED : NEW YORK COUNTY CLERK 07 /22 /2 019 10 : 4 7 PÑ| NESCEF DOU. NO. 376 REUE1VED NibCEPTUDYI72019 belonged to B&G. He also testified that B&G's employee placed the items inside the elevator Defs.' pit. See Chin EBT, at P.47:16-P.48:5; P.49:13-22; P. 76:15-18; P.77:17-21, at Aff., Ex. P. Mr. Usher, Julian Gomez and Jimmy Vespe each testified that on the day of the accident, they saw B&G's materials in the elevator pit. See Usher at P.123:20-25; P.124:1-7;. P.143:13- EBT, 18; Vespe EBT, at P. 36:23-P.37:8; Gomez EBT, at P.73:13-20; P. 74:6-14. The evidence also shows that B&G was performing fire alarm work at the 2LL level on the day of and immediately before the plaintiff's alleged accident. Mr. Chin testified that in September 2013, B&G performed fire alarm work on the 2LL level. See Chin EBT, at P. 28:4-8. He also testified that B&G performed work in the pit. See Chin EBT, at P.54:5-10, Mr. Usher similarly testified that B&G did work in the elevator pit. See Usher EBT, at P. 94:24-25. Plaza's daily logs prove that B&G was working on the 2LL level the day before the accident and on the day of the accident. George Usher, Plaza's superintendent, states in his affidavit that the daily logs show that on September 5, 2013 (the day before the alleged accident) and that on September 6, 2013 (the day of the alleged accident) that B&G was doing "fire alarm work" Defs.' on the 2LL level. See Usher Aff. ¶¶ 12,13, at Aff., Ex. AA. Notably, Mr. Chin testified that to do the fire alarm work, B&G used BX cable, which is the cable that BX stored in the pit. See id. P.28:4-8; P.30:12-19. This evidêñce establishes that on the day of the alleged accident and on the day before the alleged accident, B&G was not only performing work at the 2LL level, but was using materials to perform that work that it stored in the elevator pit. Plainly in order to access the material that it needed to perform its work, B&G had to remove the plywood cover that was placed over it to prevent anyone from falling into the pit. The fact that the plaintiff's alleged accident occurred at 8:00 a.m. on September 6, 2013 shows that the accident approximately [1735526/1] 6 7 of 31 FILED: NEW YORK COUNTY CLERK 09/17/2019 06:11 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 440 RECEIVED NYSCEF: 09/17/2019 INDEX NO. 158327/2013 F ILED : NEW YORK CO__UNTY CLERK 07 22 /2 019 10 : 47 PM1 MSL'EF DOC. NO. 376