Motion-Secondary: Kevin Mcgonigal v. Nyy Steak Manhattan, Llc, Plaza Construction Corp., Baring Industries, Inc.

On September 12, 2013 a Motion-Secondary was filed involving a dispute between Kevin Mcgonigal, and Baring Industries, Inc., Nyy Steak Manhattan, Llc, Plaza Construction Corp., for Tort in the District Court of New York County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
_______ _____---------- --------- ------X
KEVIN McGONIGAL,
Index No. 158327/13
Plaintiff,
COMBINED
-against- AFFIRMATION
IN OPPOSITION TO
NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION PLAINTIFF'S CROSS-
CORP. and BARING INDUSTRIES, INC., MOTION FOR SUMMARY
JUDGMENT AND IN
Defendants. FURTHER SUPPORT
------ -------------------------------- X OF THE MOTION FOR
PLAZA CONSTRUCTION CORP., SUMMARYJUDGMENT
BY DEFENDANTS NYY
Third-Party Plaintiff, STEAK MANHATTAN,
LLC AND PLAZA
-against- CONSTRUCTION CORP.

BARING INDUSTRIES, INC., Hon. Margaret A. Chan, J.S.C.
Motion Sequence No. 005

Third-Party Defendant. Motion Sequence No. 007
__________________________ ---------------------------- -------X
BARING INDUSTRIES, INC., Third-Party
Index No. 595146/14
Second Third-Party Plaintiff,

-against-

DAY & NITE REFRIGERATION CORP. and KIMCO
REFRIGERATION CORP.,

Second Third-Party Defendants.
-------------------------- ------- ----------------------X Second Third-Party
NYY STEAK MANHATTAN, LLC and PLAZA CONSTRUCTION Index No. 595130/15
LLC f/k/a PLAZA CONSTRUCTION CORP.,

Third Third-Party Plaintiffs,

-against-

B&G ELECTRICAL CONTRACTORS, ESS & VEE ACOUSTICAL

CONTRACTORS, INC. and BARING INDUSTRIES, INC.,

Third Third-Party Defendants. Third Third-Party
------------------------------------------ --------------------------X Index No. 595638/15

Alisa Dultz, an attorney duly admitted to practice law before the Courts of the State of

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New York, affirms the truth of the following upon information and belief and with knowledge of

the penalties for perjury:

1. I am Of Counsel to the law firm of Fabiani Cohen & Hall, LLP, attorneys for

defendants/third third-party plaintiffs NYY Steak Manhattan, LLC ("NYY Steak") and Plaza

Construction LLC f/k/a Plaza Construction Corp. ("Plaza").

2. I submit this affirmation and the exhibits annexed hereto (1) in opposition to the

plaintiff's cross-motion for summary judgment against NYY Steak and Plaza on his claims under

Labor Law §§ 240(1) and 241(6) and (2) in further support of NYY Steak's and Plaza's motion

for summary judgment insofar as it seeks dismissal of the plaintiff's Labor Law § 200 and

common-law negligence claims.

Preliminary Statement

3. The plaintiff's motion for summary judgment against NYY Steak and Plaza on his

Labor Law §§ 240(1) and 241(6) claims should be denied, because it is untimely. Pursuant to

this court's order all motions for summary judgment were to be made within 60 days of the filing

of the plaintiff's note of issue. The plaintiff filed his note of issue on May 21, 2019. The

plaintiff served his motion on September 16, 2019, which is 118 days oast the date he filed his

note of issue. NYY Steak and Plaza did not move against the plaintiff's Labor Law §§ 240(1)

and 241(6) claims.

4. The plaintiff makes no attempt to offer good cause or excuse for his delay. He

does not even address the issue of his extreme delay in serving his motion. Thus, as a matter of

law he has failed to satisfy his prima facie burden because he has failed to show that the motion

is timely. This deficiency in proof cannot be cured on reply. See, e.g., Henry v. Peguero, 72

A.D.3d 600, 602 (1st Dept. 2010) ("[d]eficiency of proof in moving papers cannot be cured by

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submitting evidentiary material in reply"); M_ig_dol v. City of New York, 291 A.D.2d 201, 201

(1st Dept. 2002) (same). The plaintiff cannot raise good cause for the first time in reply.

(1S'
Cabibel v. XYZ Assocs., L.P., 36 A.D.3d 498 Dept. 2007).

"cross-motion"
5. Furthermore, while the plaintiff denominates his papers as a it is

not a cross-motion with respect to NYY Steak and Plaza who did not move to dismiss the

plaintiff's Labor Law §§ 240(1) and 241(6) claims. NYY Steak and Plaza moved for summaiy

judgment for an order, inter alia, dismissing the plaintiff's Labor Law § 200 and common-law

negligence claims. NYY Steak's and Plaza's motion is indisputably not the mirror image of the

plaintiff's cross-motion for suminary judgment. Accordingly, the Court should deny the

plaintiff's cross-motion for summary judgment because itis procedurally defective.

6. Even if the Court considers the cross-motion on its merits, itshould be denied.

The plaintiff's cross-motion for summary judgment on his Labor Law § 240(1) claim should be

denied because he fell a mere eighteen inches, and an eighteen inch difference in elevation is not

240(1)."
an "extraordinary elevation risk[] envisioned by Labor Law § Rodriguez v. Margaret

Tietz Center for Nursing Care, Inc., 84 N.Y.2d 841, 843 (1994), and therefore does not fall

within the purview of Labor Law § 240(1). The alleged accident occurred due to the ordinary

and usual dangers at a construction site.

7. The plaintiff's cross-motion for summary judgment on his Labor Law § 241(6)

also lacks any merit because the Industrial Code rules the plaintiff alleges as a predicate for the

claim are either inapplicable to the facts of this case or were not violated. Even if the Court were

to grant the plaintiff summary judgment on his Labor Law § 241(6) claim, still preserved for trial

is an apportionment against the plaintiff on the issue of his comparative fault.

8. Furthermore, NYY Steak's and Plaza's motion for summary judgment on the

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plaintiff's Labor Law § 200 and common-law negligence claims should be granted. In

opposition to NYY Steak's and Plaza's proof that they did not create any of the alleged

conditions that the plaintiff claims caused his accident and that they did not have actual or

constructive notice of them, the plaintiff raises only speculation and surmise, not evidence.

9. Accordingly, NYY Steak's and Plaza's motion for summary judgment dismissing

the plaintiff's Labor Law § 200 and common-law negligence claims should be granted and the

plaintiff's cross-motion for summary judgment on his Labor Law §§ 240(1) and 241(6) claims

denied.

ARGUMENT

L THE PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT
SHOULD BE DENIED BECAUSE IT IS UNTIMELY

10. The plaintiff filed his cross-motion for summary judgment on his Labor Law §§

240(1) and 241(6) claims against NYY Steak, Plaza, and defendant Baring Industries, Inc. on

September 16, 2019. He filed his Note of Issue on May 21, 2019. See Plaintiff's Note of Issue,

"A."
annexed hereto as Exhibit His cross-motion is untimely because the Status Conference

Order dated December 16, 2015 requires that motions for summary judgment be made no more

than 60 days after the filing date of the note of issue. See Status Conference Order ¶ 10, annexed

"B."
hereto as Exhibit The plaintiff served his cross-motion on September 16, 2019, 118 days

after the filing of the note of issue. Therefore, this Court should not entertain the plaintiff's

motion.

11. Rule 3212(a) of New York's Civil Practice Law & Rules provides that absent a

court order or rule to the contrary, motions for summary judgment are required to be made no

later than 120 days after the filing of the note of issue, "except with leave of court on good cause

shown."
CPLR 3212(a). In this case, pursuant to the Status Conference Order dated December

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16, 2015, motions for summary judgment are required to be made no later than 60 days of the

filing of the note of issue. The plaintiff violated Rule 3212(a) and the Court's Order, by serving

his cross-motion for summary judgment against NYY Steak and Plaza on September 16, 2019,

well past the 60 day deadline for filing motions for summary judgment.

12. Further, the plaintiff makes no attempt to establish good cause for moving at this

cause"
late juncture for s y judgment against NYY Steak and Plaza. "Good under CPLR

3212 "requires a of good cause for the in the motion - a
showing delay making satisfactory

explanation for the 3mtimeliness - rather than nonprejudicial
simply permitting meritorious,

tardy."
filings, however Brill v. City of New York , 2 N.Y.3d 648, 652 (2004). As stated by the

cause.'"
Court of Appeals in Brill, "[n]o excuse at all, or a perfunctory excuse, cannot be 'good

Id.

13. Since the plaintiff has not submitted reason for his in his cross-
any delay filing

motion against NYY Steak and Plaza, under B_rill,as a matter of law, he has failed to establish

cause"
"good for the delay. See B_rill,2 N.Y.3d at 652. The plaintiff cannot use his reply papers

(1"
to establish good cause. Cabibel v. XYZ Assocs.. LP., 36 A.D.3d 498 Dept. 2007); see, e.g.,

Miedol v. City of New York, 291 A.D.2d 201, 201 (1st Dept. 2002) (trial court properly rejected

evidentiary material in reply that sought to cure a deficiency of proof in the moving papers);

Esdaille v. Whitehall Realty Co., 50 A.D.3d 251, 252 (1st Dept. 2008) (trial court properly

movants'
declined to consider the efforts to cure their failure to establish their prima facie

burden in a reply affirmation).

cause"
14. Not only has the plaintiff failed to establish "good for his untimely motion,

but his summary judgment motion should also be denied because the causes of action on which

identical"
he seeks summary judgment are not "nearly to the causes of action that NYY Steak

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and Plaza seek to dismiss in their motion for summary judgment. The courts have recognized

that absent good cause, an ontimely cross-motion for summary judgment may be considered

identical"
where the relief sought by the timely motion for summary judgment is "nearly to the

relief sought by the untimely cross-motion. See Filannino v. Triborough Bridge and Tunnel

(1st
Auth., 34 A.D.3d 280, 281 Dept. 2006), appeal dismissed, 9 N.Y.3d 862 (2007). The

rationale behind this rule is that the court in the course of deciding a motion may search the

record and award summary judgment to a nonmoving party. See id. However, the court's power

boundless."
"to search the record and afford a nonmoving party sn-y relief is not . . .

Dunham v. Hilco Constr. Co., 89 N.Y.2d 425, 429 (1996). "[A] court may search the record and

grant summary judgment in favor of a nonmoving party only with respect to a cause of action or

court."
issue that is the subject of the motions before the Dunham, 89 N.Y.2d at 429-430. Thus,

the court may not dismiss a claim that was not placed before the court on the moving party's

timely motion for summary judgment. See Filannino, 34 A.D.3d at 281.

15. Here, NYY Steak's and Plaza's motion for summary judgment (motion sequence

no. 7) seeks dismissal of the plaintiff's Labor Law § 200 and common-law negligence claims

while the plaintiff's cross-motion seeks summary judgment with respect to the plaintiff's Labor

Law §§ 240(1) and 241(6) claims. The New York courts have consistently refused to consider

untimely cross-motions against an earlier moving party based on violations of a Labor Law

section that was not the subject of the earlier moving party's timely motion for summary

(13t
judgment. See, e.g., M_aggio v. 24 West 57 APF. LLC, 134 A.D.3d 621 Dept. 2015) (where

defendants timely moved for summary judgmeñt dismissing the plaintiff's Labor Law § 200 and

common-law negligence claims, trialcourt properly declined to refuse to consider the plaintiff's

untimely cross-motion which sought summary judgment on his Labor Law § 240(1) claim);

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(1" (defendants'
Guallpa v. Leon D. DeMatteis Constr. Corp., 121 A.D.3d 416, 419 Dept. 2014)

untimely cross-motion as to plaintiff's § 200 and common-law negligence claims "does not raise

issues sufficiently related to the §§ 24(1) and 241(6) claims raised by plaintiff's timely motion

and therefore consideration on the merits is not warranted"); Filannino v. Triborough Bridge and

(1"
Tunnel Auth., 34 A.D.3d 280 Dept. 2006) (plaintiff's untimely cross motion addressed to

identical" defendants'
Labor Law § 240 was not "nearly to the motion for summary judgment

addressed to causes of action under Labor Law §§ 200 and 241(6)); see also Atiencia v.

(1"
MMBCO II, LLC, 75 A.D.3d 424 Dept. 2010) (lower court erred in dismissing plaintiff's

plaintiffs'
Labor Law § 241(6) claim as that claim was not placed before the court on the motion

for summary judgment).

16. Accordingly, the court should deny the plaintiff's cross-motion for summary

judgment because NYY Steak and Plaza did not move for summary judgment with respect to the

plaintiff's Labor Law §§ 240(1) and 241(6) and therefore did not place them before the court on

their timely motion for summary judgment.

IL IF THE COURT CONSIDERS THE PLAINTIFF'S UNTIMELY CROSS-

MOTION HIS MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW
§ 240(1) CLAIM SHOULD BE DENIED BECAUSE HE WAS NOT EXPOSED
TO AN ELEVATION HAZARD

17. If the Court considers the merits of the plaintiff's cross-motion his cross-motion

for summary judgment on his Labor Law § 240(1) claim should be denied because Labor Law §

240(1) was not violated. The plaintiff fellno more than 18 inches. See Usher EBT, P.92:15-16,

Defs.'
at Aff., Ex. M. An eighteen inch difference in elevation is not an elevation hazard that

required any of the safety devices enumerated in the statute.

18. In order for Labor Law § 240(1) to apply, the plaintiff's alleged accident "must be

caused by an elevation-created risk, 'the type of extraordinary peril section 240(1) was designed

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prevent' site."
to and not a 'usual and ordinary danger[] at a construction Nicometi v. Vineyards

of Fredonia, LLC, 25 N.Y.3d 90, 98-99 fn.3 (2015) (citations omitted). The plaintiff's alleged

fallinto the elevator pit is not covered by Labor Law § 240(1) because itresulted from "the usual

and ordinary dangers at a construction site . .. [and] no true elevation-related risk was involved

here."
Nieves v. Five Boro A.C. Refrie. Coro., 93 N.Y.2d 914, 916 (1999).

19. In determining whether the worker suffered an elevation-related injury such that

Labor Law § 240(1) applies, "the single decisive question is whether plaintiff's injuries were the

direct consequence of a failure to provide adequate protection against a risk arising from a

differential."
physically significant elevation Runner v. New York Stock Exchange, Inc., 13

N.Y.3d 599, 603 (2009) (emphasis added). "It is in recognition of the exceptionally dangerous

conditions posed by elevation differentials at work sites that section 240(1) prescribes safety

hazards."
precautions for workers laboring under unique gravity-related Misseritti v. Mark IV

Constr. Co., Inc., 86 N.Y.2d 487, 491 (1995).

20. In his cross-motion, the plaintiff makes numerous allegations as to the depth of

the elevator pit, none of which are correct and allof which are unsupported by any citation to the

deposition testimony. In his memorandum of law he claims, without citing to any deposition

undisputed"
testimony, that "it is that the elevator pit was approximately 2 feet deep. See Plt.'s

Mem. at 14. Contradicting his own unfounded assertion, and again without citing to any

deposition testimony, in his affirmation he claims that he depth of the elevator pit was 18-24

inches. See Plt 's Aff. ¶ 7. In fact. as admitted by the plaintiff, the proof shows that the death of

the elevator pit was at most 18 inches. See Plt.'s Aff. ¶ 18; see Usher EBT, at P.92:15-16, at

Defs.'
Aff., Ex. M. (Mr. Vespe on behalf of D&N testified that the depth of the pit was

Defs.'
approximately 12 inches. See Vespe EBT, at P. 48:9-14, at Aff., Ex. O.)

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21. An 18 inch height differential is not within the purview of Labor Law § 240(1).

In Lombardo v. Park Tower Management Ltd., 76 A.D.3d 497 (1st Dept. 2010), the plaintiff fell

from a broken step that was 18 inches above the floor. The First Department found that this

elevation differential, which is the same as the height differential in this case, "was not of

sufficient height to trigger the protection of § 240(1), nor was plaintiff exposed to the type of

designed."
extraordinary risk for which the statute was Lombardo, 76 A.D.3d at 498.

(1"
22. Also, in Romeo v. Property Owner (USA) LLC, 61 A.D.3d 491 Dept. 2010),

2' 2' sub-
the plaintiff's right foot fell through a x opening in the floor and struck the concrete

floor that was only 18 inches below. The First Department affirmed the lower court's order

dismissing the plaintiff's Labor Law § 240(1) claim, explaining as follows: "[P]laintiff's injury

while walking on the permañeñt floor did not involve an elevation-related hazard of the type

contemplated by the statute, and did not necessitate the provision of the type of safety devices set

statute."
forth in the Romeo, 61 A.D.3d at 491. The identical facts exist in this case. The

elevation differential was a mere 18 inches and the plaintiff's alleged accident did not involve an

elevation-related hazard of the type contemplated by Labor Law § 240(1). Therefore, his motion

for summary judgment on his Labor Law § 240(1) claim should be denied.

23. Similarly, in Torkel v. NYU Hospitals Center, 63 A.D.3d 587 (1st Dept. 2009),

the plaintiff's accident occurred while rolling a container from the work siteto his truck. A three

quarter inch thick sheet of plywood had been laid down as a makeshift ramp to bridge the gap in

height between the edge of the work site, at curb level, and the street, which was lower than

usual because the surface layer of asphalt had been removed during repairing. The plywood was

not braced or supported from beneath. The height differential between the bridged levels was

between 12 and 18 inches. The accident occurred when the plaintiff was maneuvering the

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container down the plywood ramp and the ramp collapsed, causing the container to spill concrete

debris onto the plaintiff's leg.

24. Reversing the decision of the lower court which granted the plaintiff's motion for

summary judgment on his Labor Law § 240(1) claim, the First Department held that a height

differential of 12 to 18 inches did not expose the plaintiff to an elevation-related hazard as

contemplated by Labor Law § 240(1). Torkel, 63 A.D.3d at 590; see, e.g.,Rocovich v.

Consolidated Edison Co., 78 N.Y.2d 509 (1992) (Labor Law § 240(1) inapplicable where worker

(1st
fell into 12 inch trough); Sawczyszyn v. New York Univ., 158 A.D.3d 510 Dept. 2018)

(vertical distance from surface of the truck bed to the surface of the duck of 8 to 12 inches did

not constitute a physically significant elevation differential covered by Labor Law § 240(1));

(1S
Jackson v. Hunter Roberts Constr. Grouo. LLC, 161 A.D.3d 666 Dept. 2018) (height

differential of 6 to 10 inches did not constitute a physically significant elevation differential

covered by labor Law § 240(1)); Canoabianca v. Skanska USA Building, Inc., 99 A.D.3d 139,

146 (1st Dept. 2012) (plaintiff's fallfrom a pallet that was no more than 12 inches high could not

establish a Labor Law violation since the plaintiff "was not exposed to an elevation-
§ 240(1)

related risk requiring protective safety equipment"); DeStefano v. Amtad N.Y., 269 A.D.2d 229

(1't
Dept. 2009) (ramp rising 12 inches from ground to building entrance did not present an

(1''
elevation-related hazard); De Mayo v. 1000 N. of N.Y. Co., 246 A.D.2d 506 Dept. 1998)

(13-inch-high step from ground to shanty entrance not an elevation-related hazard).

25. In this regard, the plaintiff's reliance on the Fourth Department's decision in

(4""
Norton v. Bell & Sons, 237 A.D.2d 928 Dept.1997), see Plt.'s Mem. at 19, is clearly

(1st
unavailing as the decision is not controlling authority. See People v. Shakur, 215 A.D.2d 184

Dept. 1995) (trial courts within the First Department must follow decisions by the Court of

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Appeals and the First Department, and must follow the determination of the appellate division in

another department only absent such decisions); Mountain View Coach Lines, Inc. v. Storms,

102 A.D.2d 663 (2d Dept. 1984) (Appellate Divisions are free to reach results different from the

decisions of sister departments). In Norton, the plaintiff was standing on an 18-inch-high

overturned drywall bucket and injured when he was knocked off the bucket. The Fourth

Department's decision that Labor Law § 240(1) applied is contrary to the law in the First

Department, see, e.g.,Sawczyszyn, 158 A.D.3d 510, and is not controlling authority.

26. These cases establish that the 18 inch height differential did not expose the

plaintiff to an extraordinary elevation risk envisioned by Labor Law § 240(1). Rodriguez v.

Margaret Tietz Center for Nursing Care, Inc., 84 N.Y.2d 841 (1994). Since the elevator pit did

not present an elevation hazard to which Labor Law § 240(1) applies, the safety devices listed in

Labor Law § 240(1) were not required. Accordingly, the plaintiff's Labor Law § 240(1) claim

should be dismissed.

27. In his Memorandum of Law, the plaintiff cites to numerous cases that have no

bearing on this issue as they involved falls by a plaintiff who was working at an elevated height

that was substantially greater than 18 inches. For example, in Zimmer v. Chemune County

Performing Arts, 65 N.Y.2d 513 (1985), relied upon by the plaintiff at page 15 of his

Memorandum of Law, the plaintiff scaled a 31 foot vertical column. He pulled himself over a

horizontal beam that the crane operator was raising when he fell. See Zimmer, 65 N.Y.2d 513.

(13t
Similarly, in McGurk v. Turner Construction Company, 127 A.D.2d 526 Dept. 1987), relied

upon the plaintiff at page 15 of his memorandum, the plaintiff was a steel beam
by traversing

when he slipped and fell over 26 feet. See McGurk, 127 A.D.2d at 527. The litany of cases the

plaintiff cites on pages 15 through 17 of his memorandum all suffer from the same flaw, i.e.,

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they involve elevation differentials significantly greater than 18 inches. See e.g., Heath v. Soloff

(4th
Construction Inc., 107 A.D.2d 507 Dept. 1985) (plaintiff fell from a steel beam that was

approximately 17 feet above the ground) (see Plt.'s Mem. at 15); Peddle v. Turner Constr. Co.,

(1st
92 A.D.2d 530 Dept. 1983) (plaintiff fell from a beam approximately 16 feet above the

(18t
ground) (see Plt.'s Mem. at 15); John v. Baharestani, 281 A.D.2d 114 Dept. 2001) (plaintiff

fell 30 feet from a makeshift scaffold placed on top of a metal beam to the ground three stories

below) (see Plt.'s Mem. at 16).

28. The cases the plaintiff relies upon at page 18 of his memorandum from other

appellate divisions are inapplicable for the same reason. See Grigoropoulos v. Moshonoulos, 44

A.D.3d 1003 (2d Dept. 2007) (plaintiff fell from a makeshift plywood platform to the basement

below); Taylor v. V.A.W. of America, 276 A.D.2d 621 (2d Dept. 2000) (plaintiff fell 25 to 30

fee_tthrough a roof).

29. The few cases the plaintiff cites concerning falls into openings in the floor are

also factually dissimilar because they too involved depths greater than that in this case. In Carpio

(13'
v. Tishman Construction Coro. of New York, 240 A.D.2d 234 Dept. 1997), relied upon by

the plaintiff at page 16 of his memorandum, the plaintiff's leg fell three feet below the surface to

his groin area. See Carpio, 240 A.D.2d 234. In O'Connor v. Lincoln Metrocenter Partners. L.P.,

(15'
266 A.D.2d 60 Dept. 1999), relied upon by the plaintiff at page 17 of his memorandum, the

plaintiff fell chest-deep into a floor opening, and in Gomez v. 2355 Eight Avenue, LLC, 45

(1''
A.D.3d 493 Dept. 2007), relied upon by the plaintiff at page 17 of his memorandum, the

plaintiff fell to his shoulder.

30. The cases the plaintiff cites at page 19 of his brief are also distinguishable,

because the plaintiffs in these cases fell from defective elevation devices, such as staircases or

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scaffolds. The plaintiff in this case, however, was simply walking in the basement when he

stepped into an elevator pit that was 18 inches high. Thus, unlike the situation in the cases cited

by the plaintiff, there was no elevation-related risk. "Labor Law § 240(1) applies when there is

an inherent risk in the task being performed 'because of the relative elevation at which the task

secured."
must be performed or at which materials or loads must be positioned or Vasquez v.

(13t
Urbahan Assocs. Inc., 79 A.D.3d 493, 496 Dept. 2010) (citing Rocovich v. Consolidated

Edison Co., 78 N.Y.2d 509, 514 (1991)). That is simply not the case here.

31. For example, in Meena v. Tishman Construction_Coro. of Manhattan, 306 A.D.2d

(15t
163 Dept. 2003) (see Plt.'s Mem. at 19), the plaintiff fell from a temporary two-step staircase

that collapsed. The First Department concluded that because the "temporary stairway was being

level,"
used to facilitate the plaintiff's access to a different elevation it was "indisputably an

240(1)."
elevation device within the meaning of Labor Law § Meena, 306 A.D.3d at 164. Based

on this reasoning it concluded that the shortness of the distance of the plaintiff's fall was

irrelevant. See id.

32. Unlike the plaintiff in Megna, the plaintiff in this case was not on a staircase that

Case Info

Judge

Margaret Pui Yee Chan Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

October 14, 2019

Case Filing Date

September 12, 2013

County

Parties

AURILIA, PATRICK Attorney for the Defendant
AURILIA, PATRICK Attorney for the Defendants
BARING INDUSTRIES, INC. Defendant
DIAMOND, ANDREW R Attorney for the Plaintiff
DULTZ, ALISA Attorney for the Defendants
HALL, THOMAS JAMES Attorney for the Defendant
Kevin Mcgonigal Plaintiff
LAMBOLEY, WILLIAM CONZELMAN Attorney for the Defendants
NYY STEAK MANHATTAN, LLC Defendant
PIROG, JONATHAN P Attorney for the Defendants
PLAZA CONSTRUCTION CORP. Defendant
PODELL, REED MICHAEL Attorney for the Defendant
POLLAK, KEVIN B Attorney for the Defendant
sacks and sacks, llp Non Party
SINGER, SCOTT NEIL Attorneys for Plaintiffs
SINGER, SCOTT NEIL Attorney for the Plaintiff
SNYDER, ALLISON ANN Attorney for the Defendant
NIKOLAOS DIAMANTIS Attorneys for Defendants
DAVID LORENSON Attorney
EILEEN FULLERTON Attorney
Peter Connors Attorney
JASON ANTIN Attorney
ALLEN LIGHT Attorney
RALPH DIAMOND Attorney
JAMES O'CONNOR Attorney
CAROL MOROKOFF Attorneys for Defendants
ANDREW ROSS Attorney
SUSAN SCARIA Attorneys for Defendants
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KENNETH KUTNER Attorneys for Defendants
KYLE ZRENDA Attorney
JAMES CONNORS Attorneys for Defendants
ROBERT PALISENO Attorney
WILLIAM GOODBODY Attorney
ANTIGONE TZAKIS Attorneys for Defendants
DAVID LORETTO Attorney
ROBERT JUN Attorney
DAVID AGAY Attorney
VICTORIA RONEMUS Attorneys for Defendants
EDWARD GUARDARO Attorneys for Defendants
David LoRe Attorney

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Motion-Secondary: Kevin Mcgonigal v. Nyy Steak Manhattan, Llc, Plaza Construction Corp., Baring Industries, Inc.

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