

Coretto v Extell W. 57th St., LLC (2016 NY Slip Op 02299)





Coretto v Extell W. 57th St., LLC


2016 NY Slip Op 02299


Decided on March 29, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on March 29, 2016

Friedman, J.P., Andrias, Saxe, Richter, JJ.


640 101009/11

[*1]Carlo Coretto, et al., Plaintiffs-Appellants,
vExtell West 57th Street, LLC, et al., Defendants-Respondents, Extell Development Company, et al., Defendants.


Dunn, Brown & Varcadipane, LLC, New York (Jeffrey W. Varcadipane of counsel), for appellants.
Cozen O'Connor, New York (Edward Hayum of counsel), for Extell West 57th Street, LLC and Bovis Lend Leasing LMB, Inc., respondents.
Litchfield Cavo LLP, New York (Kelly A. McGee of counsel), for
Five Star Electric Corp., respondent.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered October 20, 2014, which, to the extent appealed from as limited by the briefs, denied plaintiffs' motion to vacate an order granting, on default, defendant Five Star Electric Corp.'s cross motion for summary judgment dismissing the Labor Law §§ 200 and 241(6) claims as against it, and to renew defendants Extell West 57th Street, LLC and Bovis Lend Lease LMB, Inc.'s cross motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims as against them, unanimously modified, on the law, to grant the part of plaintiffs' motion seeking to vacate the order granting summary judgment to Five Star, and otherwise affirmed, without costs.
Plaintiffs proffered a reasonable excuse for their default and demonstrated a meritorious cause of action in support of their motion to vacate the order granting electrical subcontractor Five Star summary judgment dismissing the Labor Law §§ 200 and 241(6) claims as against it (see Goldman v Cotter, 10 AD3d 289, 291 [1st Dept 2004]). The record supports plaintiffs' claim that they never received Five Star's motion papers and were unaware that the motion had been made. As to the merits, the testimonial evidence showing that Five Star owned the PVC pipes that caused plaintiff's fall, along with the testimony of construction manager Bovis's site safety manager and Five Star's general foreman concerning Five Star's storage of pipes, raises an issue of fact as to whether Five Star had the authority to supervise and control the injury-producing work so as to render it liable as a statutory agent under Labor Law § 200 and § 241(6) (see Russin v Louis N. Picciano & Son, 54 NY2d 311, 318 [1981]; Tighe v Hennegan Constr. Co., Inc., 48 AD3d 201 [1st Dept 2008] [§ 200]; Nascimento v Bridgehampton Constr. Corp., 86 AD3d 189, 192-193 [1st Dept 2011] [§ 241(6)]).
In support of their motion to renew Extell West 57th and Bovis's motion, plaintiffs failed [*2]to offer a reasonable excuse for their failure to submit on the original motion the affidavit that they now seek to introduce (see Chelsea Piers Mgt. v Forest Elec. Corp., 281 AD2d 252 [1st Dept 2001]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 29, 2016
CLERK


