Preview
FILED: KINGS COUNTY CLERK 05/25/2023 02:58 PM INDEX NO. 527680/2019
NYSCEF DOC. NO. 230 RECEIVED NYSCEF: 05/25/2023
EXHIBIT 1
FILED: KINGS COUNTY CLERK 05/25/2023 02:58 PM INDEX NO. 527680/2019
NYSCEF DOC. NO. 230 RECEIVED NYSCEF: 05/25/2023
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1 SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS - CIVIL TERM - PART 9
2 ---------------------------------------------X
JOSE GOMEZ,
3
PLAINTIFF INDEX NO.
4 527680/2019
-AGAINST-
5
6 91-93 FRANKLIN LLC, Y.N.H. CONSTRUCTION INC.
AND ALPINE READY MIX INC.,
7
8 DEFENDANTS.
---------------------------------------------X
9
360 ADAMS STREET
10 BROOKLYN, NEW YORK 11201
11 MARCH 9, 2023
12
13 B E F O R E:
14 THE HONORABLE DEBRA SILBER, JUSTICE
15
A P P E A R A N C E S:
16
17 MORGAN LEVINE DOLAN, PC
18 EAST 41ST STREET, 6TH FLOOR
18 NEW YORK, NEW YORK 10017
BY: GLENN P. DOLAN, ESQ.
19 ATTORNEY FOR PLAINTIFF JOSE GOMEZ
20
BRAND GLICK BRAND
21 90 MERRICK AVENUE, SUITE 203
EAST MEADOW, NEW YORK 11554
22 BY: SEAN COSTIGAN, ESQ.
ATTORNEY FOR DEFENDANT ALPINE READY MIX
23
24
25 GIULIA GIBONI
SENIOR COURT REPORTER
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1 A P P E A R A N C E S , C O N T I N U E D
2
FUCHS ROSENZWEIG PLLC
3 11 BROADWAY
NEW YORK, NEW YORK 10004
4 BY: SHANNON E. FILLMORE, ESQ.
ATTORNEY FOR THIRD-PARTY DEPENDANT CAPITAL CONCRETE
5
6 RYAN & CONLON LLP
2 WALL STREET, SUITE 710
7 NEW YORK, NEW YORK 10005
BY: JOSHUA PINKHASOV, ESQ.
8 ATTORNEY FOR DEFENDANT 91-93 FRANKLIN LLC
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25 GIULIA GIBONI
SENIOR COURT REPORTER
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PROCEEDINGS
1 THE COURT: So, come up on 14 through 16, Gomez.
2 In the matter of Jose Gomez against 91-93 Franklin
3 LLC et al., Index Number 527680 of 2019.
4 Please state your appearances for the record.
5 MR. DOLAN: Glenn Dolan with the Office of Morgan
6 Levine Dolan, for the Plaintiff.
7 MS. FILLMORE: Shannon Fillmore for Capital
8 Concrete, Fuchs Rosenzweig. We're third party.
9 MR. COSTIGAN: For Defendant Alpine Ready Mix,
10 Brand Glick & Brand by Sean Costigan. Good morning, Your
11 Honor.
12 MR. PINKHASOV: Josh Pinkhasov from Ryan & Conlon.
13 We're representing 91-93 Franklin.
14 THE COURT: My notes indicate that arguments
15 started on January 6, and then it was adjourned to today.
16 I'm not sure why.
17 MR. DOLAN: I recall, Your Honor, if you'd like me
18 to --
19 THE COURT: What?
20 MR. DOLAN: Just for clarification, one of the
21 parties was not notified, so we do not have any substantive
22 argument on that date.
23 THE COURT: Oh, right, right, right. Thank you
24 for that. So, we're here on motion sequence number 7, 9
25 and 10. 7 was timely, 9 and 10 are cross and additional
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1 motions on the same matters. So, they're all timely as far
2 as I am concerned.
3 So, 7 is to dismiss the complaint against Alpine,
4 and 9 is a cross motion by Plaintiff against Alpine. And
5 then 10 is the Plaintiff's motion against everybody else,
6 which, I really don't know why you had to break it up into
7 two motions, but whatever.
8 All right. So, let's do them in order. Who
9 represents Alpine?
10 MR. COSTIGAN: I do, Your Honor. Sean Costigan
11 from Brand Glick & Brand.
12 THE COURT: Okay. So, number 7. So, why should
13 Alpine be dismissed?
14 MR. COSTIGAN: Sure. Your Honor, this is a motion
15 for summary judgment to dismiss Plaintiff's Labor Law 200;
16 240, Subsection 1; and 241, Subsection 6, against my
17 client, who is a sub-contractor, who merely delivered
18 concrete to the construction site. The date of loss was
19 9/18 of 2019.
20 Would Your Honor like me to give a brief
21 recitation of the facts, pertinent facts?
22 THE COURT: Not really.
23 MR. COSTIGAN: Okay.
24 THE COURT: So, hold on a second. The only causes
25 of action in the complaint for Alpine are 240, Sub 1; and
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1 241, Subsection 6?
2 MR. COSTIGAN: 200; 240, Subsection 1; 241,
3 Subsection 6; and common law negligence. So, it's to
4 dismiss all claims.
5 THE COURT: Oh, all right. And Alpine is --
6 MR. COSTIGAN: It's -- they delivered concrete to
7 the construction site.
8 THE COURT: Okay. So, I have to ask Plaintiff.
9 How is a deliverer of goods a proper labor law Defendant?
10 MR. DOLAN: Sure, Your Honor. They were an agent
11 of the owner and the general contractor, and they not only
12 delivered, but distributed concrete.
13 THE COURT: What does that mean? It wasn't a
14 cement mixer, right? It was --
15 MR. DOLAN: It was. A cement mixer came to site,
16 dropped wet cement from the chute, and it dropped
17 approximately four feet into a puddle, and then the wet
18 cement splattered, splashed into my client's eye, which --
19 THE COURT: I knew that you couldn't manage to get
20 two sentences without mentioning your client's injury, but
21 that's not what I asked you. How is a cement mixer a
22 proper labor law?
23 MR. DOLAN: Sure. Two-fold: One, they were
24 engaged as a general contractor. Two, they were delegated
25 supervision and control of injury-producing work.
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1 THE COURT: No, they weren't.
2 MR. DOLAN: Yes, they were, Your Honor. The
3 cement mix operator had one job, and that was to control
4 the chute. He exclusively controlled the chute. He
5 decided the level of the chute, the position of the chute,
6 how far the concrete would fall from the chute. That was
7 the driver and only the driver of the cement truck's
8 decision.
9 THE COURT: So you're saying the driver of the
10 cement truck was a slob and got the cement in places in
11 which it wasn't supposed to --
12 MR. DOLAN: I'm saying it should have been lower
13 to the ground rather than dropped four feet off the ground
14 and allowed to splash into a puddle.
15 THE COURT: Okay. So, there was no break in time;
16 the cement splashed out of the puddle and then it went into
17 your client's eye? It wasn't that it was left in
18 the puddle and then the puddle splashed your client later?
19 MR. DOLAN: No break in time.
20 THE COURT: Okay. So, if the cement mixer is an
21 agent of the owner and you sue the owner, why is the agent
22 also on the hook?
23 MR. DOLAN: Because under the labor law, the agent
24 is vicariously, is liable.
25 THE COURT: No. The owner is liable for hiring a
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1 sloppy agent.
2 MR. DOLAN: The owner and their agents are liable
3 under the labor law.
4 THE COURT: An agent is when you have a
5 construction manager that does your work for you because
6 you're not there every day. Not a cement mixer. I've
7 never heard of a cement mixer being called an agent.
8 MR. DOLAN: Well, let me take another stab at it.
9 The entity that supervises and controls the injury
10 producing work is a labor law Defendant and is liable under
11 the labor law. That's what we have here.
12 THE COURT: It wasn't injury-producing work --
13 MR. DOLAN: The injury-producing work was dropping
14 the cement.
15 THE COURT: Enough. I've heard enough. You got
16 the owner of the case, right?
17 MR. DOLAN: Yes.
18 THE COURT: You got the GC in the case?
19 MR. DOLAN: Yes, Your Honor.
20 THE COURT: Okay. You're not going to have Alpine
21 in the case. All right. If they want to bring Alpine in
22 as a third-party Defendant for being a slob, that's up to
23 them. There's no direct duty between the cement mixer and
24 your client, who wasn't even a laborer. They're not a
25 proper labor law Defendant. If the property owner or GC
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1 want to third party Alpine in, that's up to them.
2 MR. DOLAN: They did, Your Honor, and brought it
3 to a --
4 THE COURT: Okay. So, it has to be restored back
5 to a cross-claim -- I mean, third-party claim. Is there
6 already -- sorry. Restored back to third party. Not a
7 problem. Then it has nothing to do with your client. It's
8 between them.
9 All right. So, next we have the Plaintiff's
10 motion solely with regard to Alpine, which is denied.
11 MR. COSTIGAN: I'm sorry, Your Honor, if I could
12 just get clarification -- can my motion be towards this
13 third-party complaint that they're now saying was commenced
14 against my client?
15 THE COURT: You mean it's not now and you want me
16 to wave a magic wand and add more things in your motion?
17 MR. COSTIGAN: No, I'm just trying to get clarity,
18 because when I make the motion, I'm moving to get dismissed
19 from the case.
20 THE COURT: No. You're not -- you're moving to
21 have the Plaintiff's complaint dismissed against you?
22 MR. COSTIGAN: Correct.
23 THE COURT: You can only get what you asked for.
24 MR. COSTIGAN: But I'm just seeking clarification
25 as to what was just said about --
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1 THE COURT: He said that your client was a
2 third-party Defendant, and he's still a third-party
3 Defendant. Because when he -- when the third party -- I
4 don't know if this is true; I'm taking it on his word. He
5 said your client was initially a third-party Defendant, and
6 then he brought him in as a direct Defendant.
7 MR. COSTIGAN: I don't believe there was a
8 third-party action against Alpine.
9 THE COURT: Okay. You know what? I can't believe
10 anything that anybody said, so I'll look. Hold on. Third
11 parties.
12 There's only one third-party action filed on
13 January 10 of 2022, and it's document 49, and it is not
14 against Alpine.
15 MR. COSTIGAN: Exactly. So my point is, the case
16 is completely dismissed against to Alpine.
17 MR. DOLAN: Except that there is a cross-claim,
18 which should convert to a third-party claim.
19 THE COURT: Well, that's accurate, but that's not
20 what you said.
21 MR. DOLAN: I apologize, Your Honor. YNH was the
22 party that brought it to my attention. My recollection
23 was, it was brought to my attention as a third-party claim.
24 If they advised it and --
25 THE COURT: Okay. All right. All right.
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1 So, you're out of this, so don't say anything.
2 Do you have a third party -- do you have a cross
3 claim against Alpine in your answer?
4 MS. FILLMORE: Not at this time.
5 THE COURT: Do you?
6 MR. PINKHASOV: Not at this time.
7 THE COURT: Now back to the Plaintiff. So, you're
8 making this up?
9 MR. DOLAN: Your client does not have a cross
10 claim against Alpine?
11 MR. PINKHASOV: I don't know off the top of my
12 head, unfortunately.
13 THE COURT: Okay, so you're -- okay. I know
14 you're going to have to find this hard to believe, but the
15 only answer in the file is Alpine.
16 MR. COSTIGAN: Which has cross claims against the
17 other Defendants?
18 THE COURT: Yes, but they're dismissed because
19 they're dismissed as a Defendant, that nobody else answered
20 the complaint.
21 MR. COSTIGAN: So as far as I'm concerned, I'm
22 completely out of the case?
23 THE COURT: There's no Defendant if they never
24 answered. I don't understand. Let me go back to the
25 chronological document.
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1 Okay. So, loss started December of 2019. Answer
2 filed by Alpine Ready Mix. Notice of appearance as counsel
3 for Plaintiff -- okay, that's silly.
4 How is it possible that the case is on the trial
5 calendar and nobody's answered the complaint?
6 MR. COSTIGAN: Other than Alpine.
7 THE COURT: Well, obviously. All right. So,
8 Alpine was dismissed entirely because there are no cross
9 claims against Alpine, unless somebody forgot to E-file
10 their answer.
11 So, do you want me to second call this while you
12 figure out whether or not anybody else answered?
13 MS. FILLMORE: We did.
14 MR. DOLAN: We answered Exhibit B in Plaintiff's
15 motion.
16 THE COURT: Oh, so you got answers, but they
17 weren't E-filed?
18 MS. FILLMORE: They're in NYSCEF.
19 THE COURT: What number?
20 MS. FILLMORE: It's 97.
21 THE COURT: That's the answer to the third-party
22 complaint?
23 MS. FILLMORE: The third-party complaint, yes.
24 MR. COSTIGAN: And that action was severed, Your
25 Honor.
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1 MS. FILLMORE: Yes.
2 THE COURT: Okay. 91-93 Franklin, LLC. Who
3 represents them?
4 MR. PINKHASOV: I do.
5 THE COURT: Do you have an answer in the file?
6 MR. PINKHASOV: I -- unfortunately, I'm not fully
7 aware. I'm only covering.
8 THE COURT: Okay, so it's not in the file. Who
9 represents YNH Construction.
10 MR. PINKHASOV: It's also us.
11 THE COURT: What? You didn't answer on their
12 behalf either?
13 MR. DOLAN: Your Honor, they did interpose an
14 answer. It's attached.
15 MR. COSTIGAN: There's no affidavit of service
16 attached to that answer to Plaintiff's motion. The
17 affidavit of service as to the answer that Plaintiff's
18 counsel is referring to, there's no affidavit of service,
19 and it wasn't E-filed.
20 THE COURT: Okay. Very helpful, considering
21 you're out of the case.
22 MR. COSTIGAN: I make sure that I stay out of the
23 case, Your Honor.
24 MS. FILLMORE: So, we have cross-claims against
25 him, but we --
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1 THE COURT: There was an order of severing the
2 order of party action?
3 MR. COSTIGAN: Correct.
4 MS. FILLMORE: Yes.
5 THE COURT: Okay, so that was done.
6 MS. FILLMORE: Yes.
7 THE COURT: So, I'm going to try this again.
8 You're on the trial calendar against a party that never
9 answered?
10 MR. DOLAN: They possibly did not e-file the
11 answer. I don't have a computer in front of me, Your
12 Honor. However, they most certainly interposed an answer.
13 It was attached as an exhibit to Plaintiff's motion and
14 cross motion.
15 THE COURT: All right. So, Plaintiff's motion,
16 Exhibit B, answers with domains -- Alpine Ready Mix. Look
17 at that.
18 MR. DOLAN: YNH's answer is not included in
19 Exhibit B.
20 MS. FILLMORE: It's Number 52 on NYSCEF.
21 THE COURT: Yeah, but it's not in his motion.
22 MS. FILLMORE: Oh, okay. No.
23 THE COURT: I mean, your motion is against the
24 other two Defendants, but you don't have any answers in the
25 motion -- which isn't required, because it's E-filed, but
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1 you refer to each document that's in the E-file system, but
2 it's not there.
3 So, now you're telling me to look for what
4 document number? I'm sorry. Can you repeat that?
5 MS. FILLMORE: Well, the answer exists within
6 another motion, but it's Number 52 in the exhibit.
7 THE COURT: Okay. This is the answer from the
8 other Defendants. It's Exhibit C from another motion. So,
9 it appears as the answer, in 2020, and there's no cross
10 motions -- oh, hold on. They have a cross claim against
11 Alpine Ready Mix.
12 MR. COSTIGAN: Your Honor, that answer, which is
13 not E-filed, but as an exhibit, has no affidavit of
14 service. Was this answer ever served? We don't know.
15 MR. DOLAN: Plaintiff acknowledges receipt of the
16 answer.
17 MR. COSTIGAN: I don't acknowledge receipt.
18 THE COURT: Okay. I guess I have to reserve
19 decision and figure that out. Nobody has ever raised this
20 issue before.
21 So, the complaint is dismissed against Alpine, but
22 whether or not the cross-claim of the owner and the GC is
23 turned into a third-party action will depend on whether it
24 was ever asserted, and Alpine claims it wasn't; and I need
25 a couple more cups of coffee before I can decide that.
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1 MR. DOLAN: Your Honor, I'm sorry. May I have one
2 moment to address the negligence claim against Alpine?
3 THE COURT: No.
4 MR. DOLAN: Your Honor ruled, and I strongly
5 disagree, but respectfully disagree, that they're not a
6 properly involved Defendant, but we cannot address their
7 status as being a Defendant under the negligence claim,
8 where the argument is that they managed and controlled the
9 injury-producing work.
10 THE COURT: You're missing the point. So, the
11 reason I'm dismissing them is because they don't have a
12 duty to your client, because you're client wasn't a worker
13 at the work site. He wasn't a laborer. And so, you can't
14 sue them.
15 MR. DOLAN: But he was a laborer at the work site.
16 THE COURT: He was a photographer.
17 MR. DOLAN: He was a photographer that also did
18 manual labor. That's the testimony.
19 THE COURT: I understand that, but there was no
20 duty that ran from a cement mixer to your client. You sue
21 the property owner and the GC, and if they want to go after
22 the sloppy cement mixer, that's for them to do.
23 MR. DOLAN: Your Honor, if the sloppy cement mixer
24 directly poured concrete into my client's --
25 THE COURT: He poured it onto your client's head?
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1 MR. DOLAN: He poured it into a puddle that
2 splashed into my client's eye. They control the
3 injury-producing work. That's negligence.
4 MR. COSTIGAN: That's wrong, Your Honor.
5 THE COURT: Okay. I'm not changing my mind
6 because I'm reserving decision on the severing.
7 MR. DOLAN: Understood. Can I be heard on the 240
8 claims against the owner and general contractor?
9 THE COURT: Even if they didn't answer the
10 complaint?
11 MR. DOLAN: Well, they clearly did answer the
12 complaint, and we accepted their answer. We acknowledged
13 receipt of their answer on the record.
14 THE COURT: Sure.
15 MR. DOLAN: It's pretty straightforward, Your
16 Honor. As I said, we have a wet concrete that was brought
17 several feet from the chute of a concrete truck, into a
18 puddle, splashing into my client's eye.
19 Two facts are undisputed: One, that Alpine's
20 position, they control the chute. We've already addressed
21 that. Two, that the Plaintiff was not provided goggles at
22 this job site. That is uncontested.
23 Therefore, under Labor Law 241(6) and Industrial
24 Code 23-1.8(a), requiring approved eye-protection equipment
25 suitable for a hazard involved to all persons engaged in
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1 any operation which may endanger the eyes, was vital.
2 THE COURT: Your client wanted to wear eye
3 protection as a photographer?
4 MR. DOLAN: My client was, at that moment,
5 photographing the work. The work that was being done was
6 pouring wet concrete into a puddle of wet concrete.
7 THE COURT: I understand, but how could he take
8 pictures with eye protection?
9 MR. DOLAN: Because the eye protection is clear,
10 and you can look -- just as I can take photographs with my
11 camera with my glasses on, a photographer at a job site --
12 THE COURT: So, he was a W2 employee for the
13 contractor? Who did he work for?
14 MR. DOLAN: He worked for a subcontractor at the
15 job site.
16 THE COURT: Which subcontractor?
17 MR. DOLAN: He worked for Capital Concrete.
18 THE COURT: The third-party Defendant.
19 MR. DOLAN: Yes, Your Honor.
20 THE COURT: And he was a full-time W2 employee as
21 a photographer?
22 MR. DOLAN: He's a full-time W2 employee. One of
23 his jobs was to take photographs, essentially taking
24 progress photos and putting them into a computer system
25 online. In addition, he was a manual laborer on the job
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1 site and participated in manual labor throughout the job.
2 THE COURT: How long did he have this job?
3 MR. DOLAN: I don't recall, Your Honor. I don't
4 want to misstate the facts, but at least --
5 THE COURT: Had he ever worn goggles?
6 MR. DOLAN: He had worn goggles. On this job
7 site, he was not provided with goggles, and that is
8 uncontested.
9 THE COURT: So, the goggles he was provided in the
10 past were provided by Capital Concrete.
11 MR. DOLAN: In the past, he said that generally,
12 the general contractor provided the goggles, but who
13 provided the goggles in the past is not relevant. It's
14 undisputed at this job site, no one provided the goggles,
15 and the general contractor and the owner were responsible
16 for ensuring the goggles were provided.
17 THE COURT: Okay. So, 240, Sub 1, they're not
18 claiming that that applies?
19 MR. DOLAN: It's a falling object, Your Honor.
20 THE COURT: Well, I thought it went up.
21 MR. DOLAN: The concrete fell, and then it
22 splattered and went up into the Plaintiff's eye; you are
23 correct.
24 THE COURT: Okay. So, it's not a falling person,
25 and it's not a falling object.
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1 MR. DOLAN: Well, I would argue that it is a
2 falling object, Your Honor.
3 THE COURT: Cement coming out of cement truck is a
4 falling object for purposes of 240, Sub 1?
5 MR. DOLAN: When it falls approximately four
6 feet --
7 THE COURT: Oh, no, no --
8 MR. DOLAN: And 241(6).
9 THE COURT: All right. And 241(6) is about safety
10 protection?
11 MR. DOLAN: Yes. Specifically, Industrial Code
12 Section 23-1.8(a).
13 THE COURT: Which says?
14 MR. DOLAN: Which says, approved eye protection
15 suitable for involved shall be provided for all persons
16 employed in these various activities, and then, or while
17 engaged in any operation which may endanger the eyes.
18 There's a case, Willis vs. Plaza Construction,
19 151, 83, 568, in the 1st Department, year 2017, in which
20 there were injuries to a worker's eyes when a hose burst
21 and splashed wet concrete into his face.
22 In that case, the Defendant's motion to dismiss
23 due to Labor Law 241(6) was denied, and the Appellate Court
24 found that the motion court correctly sustained the 241(6)
25 claim.
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1 THE COURT: Okay. Sounds good. I'll read it.
2 All right. Decision is reserved on Plaintiff's motion.
3 MR. DOLAN: Thank you, Your Honor.
4 THE COURT: And on the other ones, too.
5 MR. COSTIGAN: Wait, so Alpine is out of the case,
6 but the third-party claim is the only thing in contention?
7 THE COURT: Yes. I'm sorry for the confusion.
8 MR. COSTIGAN: Thank you.
9 THE COURT: So, Alpine's motion, which is sequence
10 7, is granted. The complaint is dismissed as against
11 Alpine.
12 Whether or not the cross claim of the maybe,
13 possibly not answering Defendant owner and GC, should be
14 converted to a third-party action, but you're claiming that
15 they didn't answer. So, they never served you with a cross
16 claim, right?
17 MR. COSTIGAN: That's correct, Your Honor. There
18 has been no answer E-filed from the GC or the owner. The
19 answer annexed to Plaintiff's motion as an exhibit does not
20 contain an affidavit of service showing that the answer was
21 served upon my client.
22 (PROCEEDINGS CONTINUED ON NEXT PAGE TO INCLUDE
23 CERTIFICATION)
24
25
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1 THE COURT: Okay. So, that's what I'm reserving
2 my decision on. You know, it's amazing, after 26 years on
3 the bench, every motion has new issues. All right. Thank
4 you.
5 MR. COSTIGAN: Thank you.
6 MR. DOLAN: Thank you, Your Honor.
7 * * * * * * * * * * * * * *
8 It is hereby certified that the foregoing is a true and accurate
9 transcript of the proceedings.
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FILED: KINGS COUNTY CLERK 05/25/2023 02:58 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 230 RECEIVED NYSCEF: 05/25/2023 EXHIBIT 1 FILED: KINGS COUNTY CLERK 05/25/2023 02:58 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 230 RECEIVED NYSCEF: 05/25/2023 1 1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS - CIVIL TERM - PART 9 2 ---------------------------------------------X JOSE GOMEZ, 3 PLAINTIFF INDEX NO. 4 527680/2019 -AGAINST- 5 6 91-93 FRANKLIN LLC, Y.N.H. CONSTRUCTION INC. AND ALPINE READY MIX INC., 7 8 DEFENDANTS. ---------------------------------------------X 9 360 ADAMS STREET 10 BROOKLYN, NEW YORK 11201 11 MARCH 9, 2023 12 13 B E F O R E: 14 THE HONORABLE DEBRA SILBER, JUSTICE 15 A P P E A R A N C E S: 16 17 MORGAN LEVINE DOLAN, PC 18 EAST 41ST STREET, 6TH FLOOR 18 NEW YORK, NEW YORK 10017 BY: GLENN P. DOLAN, ESQ. 19 ATTORNEY FOR PLAINTIFF JOSE GOMEZ 20 BRAND GLICK BRAND 21 90 MERRICK AVENUE, SUITE 203 EAST MEADOW, NEW YORK 11554 22 BY: SEAN COSTIGAN, ESQ. ATTORNEY FOR DEFENDANT ALPINE READY MIX 23 24 25 GIULIA GIBONI SENIOR COURT REPORTER gg FILED: KINGS COUNTY CLERK 05/25/2023 02:58 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 230 RECEIVED NYSCEF: 05/25/2023 2 1 A P P E A R A N C E S , C O N T I N U E D 2 FUCHS ROSENZWEIG PLLC 3 11 BROADWAY NEW YORK, NEW YORK 10004 4 BY: SHANNON E. FILLMORE, ESQ. ATTORNEY FOR THIRD-PARTY DEPENDANT CAPITAL CONCRETE 5 6 RYAN & CONLON LLP 2 WALL STREET, SUITE 710 7 NEW YORK, NEW YORK 10005 BY: JOSHUA PINKHASOV, ESQ. 8 ATTORNEY FOR DEFENDANT 91-93 FRANKLIN LLC 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 GIULIA GIBONI SENIOR COURT REPORTER gg FILED: KINGS COUNTY CLERK 05/25/2023 02:58 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 230 RECEIVED NYSCEF: 05/25/2023 3 PROCEEDINGS 1 THE COURT: So, come up on 14 through 16, Gomez. 2 In the matter of Jose Gomez against 91-93 Franklin 3 LLC et al., Index Number 527680 of 2019. 4 Please state your appearances for the record. 5 MR. DOLAN: Glenn Dolan with the Office of Morgan 6 Levine Dolan, for the Plaintiff. 7 MS. FILLMORE: Shannon Fillmore for Capital 8 Concrete, Fuchs Rosenzweig. We're third party. 9 MR. COSTIGAN: For Defendant Alpine Ready Mix, 10 Brand Glick & Brand by Sean Costigan. Good morning, Your 11 Honor. 12 MR. PINKHASOV: Josh Pinkhasov from Ryan & Conlon. 13 We're representing 91-93 Franklin. 14 THE COURT: My notes indicate that arguments 15 started on January 6, and then it was adjourned to today. 16 I'm not sure why. 17 MR. DOLAN: I recall, Your Honor, if you'd like me 18 to -- 19 THE COURT: What? 20 MR. DOLAN: Just for clarification, one of the 21 parties was not notified, so we do not have any substantive 22 argument on that date. 23 THE COURT: Oh, right, right, right. Thank you 24 for that. So, we're here on motion sequence number 7, 9 25 and 10. 7 was timely, 9 and 10 are cross and additional FILED: KINGS COUNTY CLERK 05/25/2023 02:58 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 230 RECEIVED NYSCEF: 05/25/2023 4 1 motions on the same matters. So, they're all timely as far 2 as I am concerned. 3 So, 7 is to dismiss the complaint against Alpine, 4 and 9 is a cross motion by Plaintiff against Alpine. And 5 then 10 is the Plaintiff's motion against everybody else, 6 which, I really don't know why you had to break it up into 7 two motions, but whatever. 8 All right. So, let's do them in order. Who 9 represents Alpine? 10 MR. COSTIGAN: I do, Your Honor. Sean Costigan 11 from Brand Glick & Brand. 12 THE COURT: Okay. So, number 7. So, why should 13 Alpine be dismissed? 14 MR. COSTIGAN: Sure. Your Honor, this is a motion 15 for summary judgment to dismiss Plaintiff's Labor Law 200; 16 240, Subsection 1; and 241, Subsection 6, against my 17 client, who is a sub-contractor, who merely delivered 18 concrete to the construction site. The date of loss was 19 9/18 of 2019. 20 Would Your Honor like me to give a brief 21 recitation of the facts, pertinent facts? 22 THE COURT: Not really. 23 MR. COSTIGAN: Okay. 24 THE COURT: So, hold on a second. The only causes 25 of action in the complaint for Alpine are 240, Sub 1; and gg FILED: KINGS COUNTY CLERK 05/25/2023 02:58 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 230 RECEIVED NYSCEF: 05/25/2023 5 1 241, Subsection 6? 2 MR. COSTIGAN: 200; 240, Subsection 1; 241, 3 Subsection 6; and common law negligence. So, it's to 4 dismiss all claims. 5 THE COURT: Oh, all right. And Alpine is -- 6 MR. COSTIGAN: It's -- they delivered concrete to 7 the construction site. 8 THE COURT: Okay. So, I have to ask Plaintiff. 9 How is a deliverer of goods a proper labor law Defendant? 10 MR. DOLAN: Sure, Your Honor. They were an agent 11 of the owner and the general contractor, and they not only 12 delivered, but distributed concrete. 13 THE COURT: What does that mean? It wasn't a 14 cement mixer, right? It was -- 15 MR. DOLAN: It was. A cement mixer came to site, 16 dropped wet cement from the chute, and it dropped 17 approximately four feet into a puddle, and then the wet 18 cement splattered, splashed into my client's eye, which -- 19 THE COURT: I knew that you couldn't manage to get 20 two sentences without mentioning your client's injury, but 21 that's not what I asked you. How is a cement mixer a 22 proper labor law? 23 MR. DOLAN: Sure. Two-fold: One, they were 24 engaged as a general contractor. Two, they were delegated 25 supervision and control of injury-producing work. gg FILED: KINGS COUNTY CLERK 05/25/2023 02:58 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 230 RECEIVED NYSCEF: 05/25/2023 6 1 THE COURT: No, they weren't. 2 MR. DOLAN: Yes, they were, Your Honor. The 3 cement mix operator had one job, and that was to control 4 the chute. He exclusively controlled the chute. He 5 decided the level of the chute, the position of the chute, 6 how far the concrete would fall from the chute. That was 7 the driver and only the driver of the cement truck's 8 decision. 9 THE COURT: So you're saying the driver of the 10 cement truck was a slob and got the cement in places in 11 which it wasn't supposed to -- 12 MR. DOLAN: I'm saying it should have been lower 13 to the ground rather than dropped four feet off the ground 14 and allowed to splash into a puddle. 15 THE COURT: Okay. So, there was no break in time; 16 the cement splashed out of the puddle and then it went into 17 your client's eye? It wasn't that it was left in 18 the puddle and then the puddle splashed your client later? 19 MR. DOLAN: No break in time. 20 THE COURT: Okay. So, if the cement mixer is an 21 agent of the owner and you sue the owner, why is the agent 22 also on the hook? 23 MR. DOLAN: Because under the labor law, the agent 24 is vicariously, is liable. 25 THE COURT: No. The owner is liable for hiring a gg FILED: KINGS COUNTY CLERK 05/25/2023 02:58 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 230 RECEIVED NYSCEF: 05/25/2023 7 1 sloppy agent. 2 MR. DOLAN: The owner and their agents are liable 3 under the labor law. 4 THE COURT: An agent is when you have a 5 construction manager that does your work for you because 6 you're not there every day. Not a cement mixer. I've 7 never heard of a cement mixer being called an agent. 8 MR. DOLAN: Well, let me take another stab at it. 9 The entity that supervises and controls the injury 10 producing work is a labor law Defendant and is liable under 11 the labor law. That's what we have here. 12 THE COURT: It wasn't injury-producing work -- 13 MR. DOLAN: The injury-producing work was dropping 14 the cement. 15 THE COURT: Enough. I've heard enough. You got 16 the owner of the case, right? 17 MR. DOLAN: Yes. 18 THE COURT: You got the GC in the case? 19 MR. DOLAN: Yes, Your Honor. 20 THE COURT: Okay. You're not going to have Alpine 21 in the case. All right. If they want to bring Alpine in 22 as a third-party Defendant for being a slob, that's up to 23 them. There's no direct duty between the cement mixer and 24 your client, who wasn't even a laborer. They're not a 25 proper labor law Defendant. If the property owner or GC gg FILED: KINGS COUNTY CLERK 05/25/2023 02:58 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 230 RECEIVED NYSCEF: 05/25/2023 8 1 want to third party Alpine in, that's up to them. 2 MR. DOLAN: They did, Your Honor, and brought it 3 to a -- 4 THE COURT: Okay. So, it has to be restored back 5 to a cross-claim -- I mean, third-party claim. Is there 6 already -- sorry. Restored back to third party. Not a 7 problem. Then it has nothing to do with your client. It's 8 between them. 9 All right. So, next we have the Plaintiff's 10 motion solely with regard to Alpine, which is denied. 11 MR. COSTIGAN: I'm sorry, Your Honor, if I could 12 just get clarification -- can my motion be towards this 13 third-party complaint that they're now saying was commenced 14 against my client? 15 THE COURT: You mean it's not now and you want me 16 to wave a magic wand and add more things in your motion? 17 MR. COSTIGAN: No, I'm just trying to get clarity, 18 because when I make the motion, I'm moving to get dismissed 19 from the case. 20 THE COURT: No. You're not -- you're moving to 21 have the Plaintiff's complaint dismissed against you? 22 MR. COSTIGAN: Correct. 23 THE COURT: You can only get what you asked for. 24 MR. COSTIGAN: But I'm just seeking clarification 25 as to what was just said about -- gg FILED: KINGS COUNTY CLERK 05/25/2023 02:58 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 230 RECEIVED NYSCEF: 05/25/2023 9 1 THE COURT: He said that your client was a 2 third-party Defendant, and he's still a third-party 3 Defendant. Because when he -- when the third party -- I 4 don't know if this is true; I'm taking it on his word. He 5 said your client was initially a third-party Defendant, and 6 then he brought him in as a direct Defendant. 7 MR. COSTIGAN: I don't believe there was a 8 third-party action against Alpine. 9 THE COURT: Okay. You know what? I can't believe 10 anything that anybody said, so I'll look. Hold on. Third 11 parties. 12 There's only one third-party action filed on 13 January 10 of 2022, and it's document 49, and it is not 14 against Alpine. 15 MR. COSTIGAN: Exactly. So my point is, the case 16 is completely dismissed against to Alpine. 17 MR. DOLAN: Except that there is a cross-claim, 18 which should convert to a third-party claim. 19 THE COURT: Well, that's accurate, but that's not 20 what you said. 21 MR. DOLAN: I apologize, Your Honor. YNH was the 22 party that brought it to my attention. My recollection 23 was, it was brought to my attention as a third-party claim. 24 If they advised it and -- 25 THE COURT: Okay. All right. All right. gg FILED: KINGS COUNTY CLERK 05/25/2023 02:58 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 230 RECEIVED NYSCEF: 05/25/2023 10 1 So, you're out of this, so don't say anything. 2 Do you have a third party -- do you have a cross 3 claim against Alpine in your answer? 4 MS. FILLMORE: Not at this time. 5 THE COURT: Do you? 6 MR. PINKHASOV: Not at this time. 7 THE COURT: Now back to the Plaintiff. So, you're 8 making this up? 9 MR. DOLAN: Your client does not have a cross 10 claim against Alpine? 11 MR. PINKHASOV: I don't know off the top of my 12 head, unfortunately. 13 THE COURT: Okay, so you're -- okay. I know 14 you're going to have to find this hard to believe, but the 15 only answer in the file is Alpine. 16 MR. COSTIGAN: Which has cross claims against the 17 other Defendants? 18 THE COURT: Yes, but they're dismissed because 19 they're dismissed as a Defendant, that nobody else answered 20 the complaint. 21 MR. COSTIGAN: So as far as I'm concerned, I'm 22 completely out of the case? 23 THE COURT: There's no Defendant if they never 24 answered. I don't understand. Let me go back to the 25 chronological document. gg FILED: KINGS COUNTY CLERK 05/25/2023 02:58 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 230 RECEIVED NYSCEF: 05/25/2023 11 1 Okay. So, loss started December of 2019. Answer 2 filed by Alpine Ready Mix. Notice of appearance as counsel 3 for Plaintiff -- okay, that's silly. 4 How is it possible that the case is on the trial 5 calendar and nobody's answered the complaint? 6 MR. COSTIGAN: Other than Alpine. 7 THE COURT: Well, obviously. All right. So, 8 Alpine was dismissed entirely because there are no cross 9 claims against Alpine, unless somebody forgot to E-file 10 their answer. 11 So, do you want me to second call this while you 12 figure out whether or not anybody else answered? 13 MS. FILLMORE: We did. 14 MR. DOLAN: We answered Exhibit B in Plaintiff's 15 motion. 16 THE COURT: Oh, so you got answers, but they 17 weren't E-filed? 18 MS. FILLMORE: They're in NYSCEF. 19 THE COURT: What number? 20 MS. FILLMORE: It's 97. 21 THE COURT: That's the answer to the third-party 22 complaint? 23 MS. FILLMORE: The third-party complaint, yes. 24 MR. COSTIGAN: And that action was severed, Your 25 Honor. gg FILED: KINGS COUNTY CLERK 05/25/2023 02:58 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 230 RECEIVED NYSCEF: 05/25/2023 12 1 MS. FILLMORE: Yes. 2 THE COURT: Okay. 91-93 Franklin, LLC. Who 3 represents them? 4 MR. PINKHASOV: I do. 5 THE COURT: Do you have an answer in the file? 6 MR. PINKHASOV: I -- unfortunately, I'm not fully 7 aware. I'm only covering. 8 THE COURT: Okay, so it's not in the file. Who 9 represents YNH Construction. 10 MR. PINKHASOV: It's also us. 11 THE COURT: What? You didn't answer on their 12 behalf either? 13 MR. DOLAN: Your Honor, they did interpose an 14 answer. It's attached. 15 MR. COSTIGAN: There's no affidavit of service 16 attached to that answer to Plaintiff's motion. The 17 affidavit of service as to the answer that Plaintiff's 18 counsel is referring to, there's no affidavit of service, 19 and it wasn't E-filed. 20 THE COURT: Okay. Very helpful, considering 21 you're out of the case. 22 MR. COSTIGAN: I make sure that I stay out of the 23 case, Your Honor. 24 MS. FILLMORE: So, we have cross-claims against 25 him, but we -- gg FILED: KINGS COUNTY CLERK 05/25/2023 02:58 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 230 RECEIVED NYSCEF: 05/25/2023 13 1 THE COURT: There was an order of severing the 2 order of party action? 3 MR. COSTIGAN: Correct. 4 MS. FILLMORE: Yes. 5 THE COURT: Okay, so that was done. 6 MS. FILLMORE: Yes. 7 THE COURT: So, I'm going to try this again. 8 You're on the trial calendar against a party that never 9 answered? 10 MR. DOLAN: They possibly did not e-file the 11 answer. I don't have a computer in front of me, Your 12 Honor. However, they most certainly interposed an answer. 13 It was attached as an exhibit to Plaintiff's motion and 14 cross motion. 15 THE COURT: All right. So, Plaintiff's motion, 16 Exhibit B, answers with domains -- Alpine Ready Mix. Look 17 at that. 18 MR. DOLAN: YNH's answer is not included in 19 Exhibit B. 20 MS. FILLMORE: It's Number 52 on NYSCEF. 21 THE COURT: Yeah, but it's not in his motion. 22 MS. FILLMORE: Oh, okay. No. 23 THE COURT: I mean, your motion is against the 24 other two Defendants, but you don't have any answers in the 25 motion -- which isn't required, because it's E-filed, but gg FILED: KINGS COUNTY CLERK 05/25/2023 02:58 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 230 RECEIVED NYSCEF: 05/25/2023 14 1 you refer to each document that's in the E-file system, but 2 it's not there. 3 So, now you're telling me to look for what 4 document number? I'm sorry. Can you repeat that? 5 MS. FILLMORE: Well, the answer exists within 6 another motion, but it's Number 52 in the exhibit. 7 THE COURT: Okay. This is the answer from the 8 other Defendants. It's Exhibit C from another motion. So, 9 it appears as the answer, in 2020, and there's no cross 10 motions -- oh, hold on. They have a cross claim against 11 Alpine Ready Mix. 12 MR. COSTIGAN: Your Honor, that answer, which is 13 not E-filed, but as an exhibit, has no affidavit of 14 service. Was this answer ever served? We don't know. 15 MR. DOLAN: Plaintiff acknowledges receipt of the 16 answer. 17 MR. COSTIGAN: I don't acknowledge receipt. 18 THE COURT: Okay. I guess I have to reserve 19 decision and figure that out. Nobody has ever raised this 20 issue before. 21 So, the complaint is dismissed against Alpine, but 22 whether or not the cross-claim of the owner and the GC is 23 turned into a third-party action will depend on whether it 24 was ever asserted, and Alpine claims it wasn't; and I need 25 a couple more cups of coffee before I can decide that. gg FILED: KINGS COUNTY CLERK 05/25/2023 02:58 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 230 RECEIVED NYSCEF: 05/25/2023 15 1 MR. DOLAN: Your Honor, I'm sorry. May I have one 2 moment to address the negligence claim against Alpine? 3 THE COURT: No. 4 MR. DOLAN: Your Honor ruled, and I strongly 5 disagree, but respectfully disagree, that they're not a 6 properly involved Defendant, but we cannot address their 7 status as being a Defendant under the negligence claim, 8 where the argument is that they managed and controlled the 9 injury-producing work. 10 THE COURT: You're missing the point. So, the 11 reason I'm dismissing them is because they don't have a 12 duty to your client, because you're client wasn't a worker 13 at the work site. He wasn't a laborer. And so, you can't 14 sue them. 15 MR. DOLAN: But he was a laborer at the work site. 16 THE COURT: He was a photographer. 17 MR. DOLAN: He was a photographer that also did 18 manual labor. That's the testimony. 19 THE COURT: I understand that, but there was no 20 duty that ran from a cement mixer to your client. You sue 21 the property owner and the GC, and if they want to go after 22 the sloppy cement mixer, that's for them to do. 23 MR. DOLAN: Your Honor, if the sloppy cement mixer 24 directly poured concrete into my client's -- 25 THE COURT: He poured it onto your client's head? gg FILED: KINGS COUNTY CLERK 05/25/2023 02:58 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 230 RECEIVED NYSCEF: 05/25/2023 16 1 MR. DOLAN: He poured it into a puddle that 2 splashed into my client's eye. They control the 3 injury-producing work. That's negligence. 4 MR. COSTIGAN: That's wrong, Your Honor. 5 THE COURT: Okay. I'm not changing my mind 6 because I'm reserving decision on the severing. 7 MR. DOLAN: Understood. Can I be heard on the 240 8 claims against the owner and general contractor? 9 THE COURT: Even if they didn't answer the 10 complaint? 11 MR. DOLAN: Well, they clearly did answer the 12 complaint, and we accepted their answer. We acknowledged 13 receipt of their answer on the record. 14 THE COURT: Sure. 15 MR. DOLAN: It's pretty straightforward, Your 16 Honor. As I said, we have a wet concrete that was brought 17 several feet from the chute of a concrete truck, into a 18 puddle, splashing into my client's eye. 19 Two facts are undisputed: One, that Alpine's 20 position, they control the chute. We've already addressed 21 that. Two, that the Plaintiff was not provided goggles at 22 this job site. That is uncontested. 23 Therefore, under Labor Law 241(6) and Industrial 24 Code 23-1.8(a), requiring approved eye-protection equipment 25 suitable for a hazard involved to all persons engaged in gg FILED: KINGS COUNTY CLERK 05/25/2023 02:58 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 230 RECEIVED NYSCEF: 05/25/2023 17 1 any operation which may endanger the eyes, was vital. 2 THE COURT: Your client wanted to wear eye 3 protection as a photographer? 4 MR. DOLAN: My client was, at that moment, 5 photographing the work. The work that was being done was 6 pouring wet concrete into a puddle of wet concrete. 7 THE COURT: I understand, but how could he take 8 pictures with eye protection? 9 MR. DOLAN: Because the eye protection is clear, 10 and you can look -- just as I can take photographs with my 11 camera with my glasses on, a photographer at a job site -- 12 THE COURT: So, he was a W2 employee for the 13 contractor? Who did he work for? 14 MR. DOLAN: He worked for a subcontractor at the 15 job site. 16 THE COURT: Which subcontractor? 17 MR. DOLAN: He worked for Capital Concrete. 18 THE COURT: The third-party Defendant. 19 MR. DOLAN: Yes, Your Honor. 20 THE COURT: And he was a full-time W2 employee as 21 a photographer? 22 MR. DOLAN: He's a full-time W2 employee. One of 23 his jobs was to take photographs, essentially taking 24 progress photos and putting them into a computer system 25 online. In addition, he was a manual laborer on the job gg FILED: KINGS COUNTY CLERK 05/25/2023 02:58 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 230 RECEIVED NYSCEF: 05/25/2023 18 1 site and participated in manual labor throughout the job. 2 THE COURT: How long did he have this job? 3 MR. DOLAN: I don't recall, Your Honor. I don't 4 want to misstate the facts, but at least -- 5 THE COURT: Had he ever worn goggles? 6 MR. DOLAN: He had worn goggles. On this job 7 site, he was not provided with goggles, and that is 8 uncontested. 9 THE COURT: So, the goggles he was provided in the 10 past were provided by Capital Concrete. 11 MR. DOLAN: In the past, he said that generally, 12 the general contractor provided the goggles, but who 13 provided the goggles in the past is not relevant. It's 14 undisputed at this job site, no one provided the goggles, 15 and the general contractor and the owner were responsible 16 for ensuring the goggles were provided. 17 THE COURT: Okay. So, 240, Sub 1, they're not 18 claiming that that applies? 19 MR. DOLAN: It's a falling object, Your Honor. 20 THE COURT: Well, I thought it went up. 21 MR. DOLAN: The concrete fell, and then it 22 splattered and went up into the Plaintiff's eye; you are 23 correct. 24 THE COURT: Okay. So, it's not a falling person, 25 and it's not a falling object. gg FILED: KINGS COUNTY CLERK 05/25/2023 02:58 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 230 RECEIVED NYSCEF: 05/25/2023 19 1 MR. DOLAN: Well, I would argue that it is a 2 falling object, Your Honor. 3 THE COURT: Cement coming out of cement truck is a 4 falling object for purposes of 240, Sub 1? 5 MR. DOLAN: When it falls approximately four 6 feet -- 7 THE COURT: Oh, no, no -- 8 MR. DOLAN: And 241(6). 9 THE COURT: All right. And 241(6) is about safety 10 protection? 11 MR. DOLAN: Yes. Specifically, Industrial Code 12 Section 23-1.8(a). 13 THE COURT: Which says? 14 MR. DOLAN: Which says, approved eye protection 15 suitable for involved shall be provided for all persons 16 employed in these various activities, and then, or while 17 engaged in any operation which may endanger the eyes. 18 There's a case, Willis vs. Plaza Construction, 19 151, 83, 568, in the 1st Department, year 2017, in which 20 there were injuries to a worker's eyes when a hose burst 21 and splashed wet concrete into his face. 22 In that case, the Defendant's motion to dismiss 23 due to Labor Law 241(6) was denied, and the Appellate Court 24 found that the motion court correctly sustained the 241(6) 25 claim. gg FILED: KINGS COUNTY CLERK 05/25/2023 02:58 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 230 RECEIVED NYSCEF: 05/25/2023 20 1 THE COURT: Okay. Sounds good. I'll read it. 2 All right. Decision is reserved on Plaintiff's motion. 3 MR. DOLAN: Thank you, Your Honor. 4 THE COURT: And on the other ones, too. 5 MR. COSTIGAN: Wait, so Alpine is out of the case, 6 but the third-party claim is the only thing in contention? 7 THE COURT: Yes. I'm sorry for the confusion. 8 MR. COSTIGAN: Thank you. 9 THE COURT: So, Alpine's motion, which is sequence 10 7, is granted. The complaint is dismissed as against 11 Alpine. 12 Whether or not the cross claim of the maybe, 13 possibly not answering Defendant owner and GC, should be 14 converted to a third-party action, but you're claiming that 15 they didn't answer. So, they never served you with a cross 16 claim, right? 17 MR. COSTIGAN: That's correct, Your Honor. There 18 has been no answer E-filed from the GC or the owner. The 19 answer annexed to Plaintiff's motion as an exhibit does not 20 contain an affidavit of service showing that the answer was 21 served upon my client. 22 (PROCEEDINGS CONTINUED ON NEXT PAGE TO INCLUDE 23 CERTIFICATION) 24 25 gg FILED: KINGS COUNTY CLERK 05/25/2023 02:58 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 230 RECEIVED NYSCEF: 05/25/2023 21 1 THE COURT: Okay. So, that's what I'm reserving 2 my decision on. You know, it's amazing, after 26 years on 3 the bench, every motion has new issues. All right. Thank 4 you. 5 MR. COSTIGAN: Thank you. 6 MR. DOLAN: Thank you, Your Honor. 7 * * * * * * * * * * * * * * 8 It is hereby certified that the foregoing is a true and accurate 9 transcript of the proceedings. 10 11 _________________ 13 GIULIA GIBONI SENIOR COURT REPORTER 14 15 16 17 18 19 20 21 22 23 24 25 gg