        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

592.1
CA 15-01558
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND CURRAN, JJ.


CARMEN J. FINOCCHI, JR., AND KIM
ELAINE FINOCCHI,
PLAINTIFFS-RESPONDENTS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

LIVE NATION INC., AND CPI TOURING
(GENESIS-USA), LLC,
DEFENDANTS-APPELLANTS-RESPONDENTS.


GOLDBERG SEGALLA LLP, BUFFALO (MEGHAN M. BROWN OF COUNSEL), FOR
DEFENDANTS-APPELLANTS-RESPONDENTS.

PAUL WILLIAM BELTZ, P.C., BUFFALO (WILLIAM QUINLAN OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS-APPELLANTS.


     Appeal and cross appeal from an order of the Supreme Court, Erie
County (Timothy J. Drury, J.), entered March 30, 2015. The order,
inter alia, denied in part the motion of defendants for summary
judgment dismissing the complaint, granted that part of the cross
motion of plaintiffs to amend their bill of particulars and granted in
part that portion of plaintiffs’ cross motion seeking sanctions
pursuant to CPLR 3126.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying plaintiffs’ cross motion
insofar as it sought leave to amend the bill of particulars and
granting that part of defendants’ motion with respect to the Labor Law
§ 241 (6) claim in its entirety and dismissing that claim, and as
modified the order is affirmed without costs.

     Memorandum: Plaintiffs commenced this Labor Law and common-law
negligence action seeking damages for injuries allegedly sustained by
Carmen J. Finocchi, Jr. (plaintiff) when he attempted to load a so-
called “Cadillac box” onto a truck following a September 2007 concert
by the band Genesis at HSBC Arena, which is owned by nonparty Western
New York Arena, LLC (hereafter, Arena). The box apparently contained
materials from the concert stage, which was being dismantled after the
concert. According to plaintiff, he had been instructed to hoist the
box onto the truck by hand, despite the fact that the box had been
taken off the truck with a forklift before the concert. When
plaintiff attempted to lift the box onto the truck, the weight of the
box shifted and it fell onto plaintiff, injuring him. Defendants
moved for summary judgment dismissing the complaint, and plaintiffs
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                                                         CA 15-01558

cross-moved, inter alia, for leave to amend their bill of particulars
to add 12 NYCRR 23-2.1 (b) in support of the Labor Law § 241 (6)
claim. Plaintiffs also sought discovery sanctions pursuant to CPLR
3126 based on defendants’ failure to produce in a timely fashion the
contract between defendant CPI Touring (Genesis-USA), LLC (hereafter,
CPI), a subsidiary of defendant Live Nation Inc. (Live Nation) formed
specifically to promote the 2007 Genesis Tour, and Gentour, Inc.
(Gentour), the band’s corporate entity for the tour. Supreme Court
granted that part of defendants’ motion for summary judgment
dismissing the Labor Law § 241 (6) claim based on the inapplicability
of the Industrial Code regulations on which plaintiffs relied in their
bill of particulars, but the court granted that part of plaintiffs’
cross motion for leave to amend their bill of particulars to assert an
additional Industrial Code violation, and thus the Labor Law § 241 (6)
claim was not dismissed in its entirety. The court also granted
plaintiffs’ cross motion insofar as it sought discovery sanctions
pursuant to CPLR 3126 by precluding defendants from using the contract
between CPI and Gentour in furtherance of their motion for summary
judgment dismissing the complaint. Defendants appeal, and plaintiffs
cross-appeal.

     Initially, although we agree with defendants that plaintiffs are
not entitled to equitable or judicial estoppel with respect to
defendants’ failure to produce the contract between CPI and Gentour in
a timely fashion, we reject defendants’ contention that we should
overturn the sanction imposed by the court for that failure pursuant
to CPLR 3126. We likewise reject plaintiffs’ contention on their
cross appeal that we should impose more severe sanctions. A sanction
for disclosure noncompliance “will remain undisturbed unless there has
been a clear abuse of discretion” (Merrill Lynch, Pierce, Fenner &
Smith, Inc. v Global Strat Inc., 22 NY3d 877, 880), and we perceive no
such abuse of discretion here.

     We also reject defendants’ contention that the court erred in
denying that part of their motion for summary judgment seeking
dismissal of plaintiffs’ common-law negligence/Labor Law § 200 and
Labor Law § 240 (1) claims. With respect to the common-law
negligence/Labor Law § 200 claim, where, as here, the accident
involves only the manner in which the work was performed, CPI could be
liable if it exercised supervision or control over the injury-
producing work (see generally Ross v Curtis-Palmer Hydro-Elec. Co., 81
NY2d 494, 505). To the extent that defendants rely on the contract
between Gentour and CPI, defendants were, as noted above, properly
precluded from using that contract in furtherance of their instant
motion. In any event, the contract between the Arena and CPI, the
contract between the Arena and plaintiff’s union (with which CPI was
contractually obligated to comply), and section 1.7 of the contract
between CPI and Gentour, read together, provided CPI with the
authority and obligation to supervise and control the injury-producing
work, and there are questions of fact on this record whether CPI
actually exercised such supervision and control.

     With respect to the Labor Law § 240 (1) claim, defendants’
contention that plaintiffs abandoned that claim based on their
                                 -3-                           592.1
                                                         CA 15-01558

responses in their bill of particulars is improperly raised for the
first time on appeal (see Ciesinski v Town of Aurora, 202 AD2d 984,
985). We also reject defendants’ contention that CPI is not an entity
that may be liable under section 240 (1). Because CPI was a licensee
of the Arena and had the authority to supervise and control the
injury-producing work, it may be liable under that statute (see
Grilikhes v International Tile & Stone Show Expos, 90 AD3d 480, 483;
Fisher v Coghlan, 8 AD3d 974, 975-976, lv dismissed 3 NY3d 702).
Contrary to defendants’ further contentions, we conclude that there
are issues of fact whether the work being performed by plaintiff at
the time he was injured was ancillary to the demolition of the stage,
a structure (see Seemueller v County of Erie, 202 AD2d 1052, 1052; see
generally Scally v Regional Indus. Partnership, 9 AD3d 865, 867), and
whether plaintiff’s injuries are within the ambit of section 240 (1)
because they are “the direct consequence of a failure to provide
adequate protection against a risk arising from a physically
significant elevation differential” (Runner v New York Stock Exch.,
Inc., 13 NY3d 599, 603).

     We agree with defendants, however, that the court erred in
granting that part of plaintiffs’ cross motion that sought permission
to amend their bill of particulars to assert 12 NYCRR 23-2.1 (b) in
support of their Labor Law § 241 (6) claim. We therefore modify the
order by denying that part of plaintiffs’ cross motion and granting
that part of defendants’ motion for summary judgment dismissing the
Labor Law § 241 (6) claim in its entirety. Although that regulation,
which deals with the disposal of debris, is sufficiently specific to
support a section 241 (6) claim (see DiPalma v State of New York, 90
AD3d 1659, 1661), it is inapplicable to the facts of this case. We
note that plaintiffs have abandoned that portion of their cross appeal
contesting the dismissal of the section 241 (6) claim by failing to
address that part of the order in their brief on appeal.




Entered:   July 1, 2016                         Frances E. Cafarell
                                                Clerk of the Court
