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Manhattan and Bronx Surface Transit Authority (MABSTOA)….cont

On August 19, 2009, JF commenced this action against the MTA defendants and FS, JCI’s subcontractor on the renovation project. Subsequently, the MTA defendants brought a third-party action against JCI, the general contractor, seeking contractual and common-law indemnification, contribution, and damages for failure to procure insurance. FS commenced a second third-party action against EEI and NEI, its electrical subcontractors (i.e., sub-subcontractors), also asserting claims for contractual and common-law indemnification, contribution, and breach of contract. The MTA defendants and JCI asserted cross claims against EEI for common-law indemnification, contribution, contractual indemnification and failure to procure insurance. The MTA defendants asserted cross claims for contractual indemnification and failure to procure insurance against FS. In its answer to the third-party complaint, JCI seeks common-law indemnification and contribution from FS. FS asserted a cross claim against JCI for common-law indemnification.

In an interim decision dated September 19, 2012, after a conference call with the parties, the court permitted JF to submit additional papers on the issue of defendants’ ownership of the area where the injury occurred. The MTA defendants subsequently moved to vacate the court’s September 19, 2012 decision, which was denied on January 18, 2013. Although the MTA defendants and JCI contend that JF’s amended motion should not be considered, the court has already ruled on this issue.

Pursuant to a stipulation of discontinuance dated October 9, 2012, all claims were discontinued against second third-party defendant NEI.

It is well settled that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Once the proponent has made a prima facie showing, the burden shifts to the opposing party to present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact. Mere conclusions, unsubstantiated allegations or expressions of hope are insufficient to defeat a motion for summary judgment.

JF’s Motion for Partial Summary Judgment.

In his original moving papers, JF argues that the South Ferry Site is owned and operated by [the MTA defendants], and that the MTA contracted with JCI to serve as the general contractor for the project.

In his amended moving papers, JF asserts that the City is strictly liable as fee owner of the site. JF submits a response to a notice to admit in which the City admitted that it owned the fan plant.

A notice to admit, pursuant to CPLR 3123 (a), is to be used only for disposing of uncontroverted questions of fact or those or that are easily provable, and not for the purpose of compelling admission of fundamental and material issues or ultimate facts that can only be resolved after a full trial Ownership is the proper subject of a notice to admit. While JCI argues that JF did not attach the notice to admit, the question is clear from the response, and JF submitted the notice to admit in reply. Accordingly, JF has shown that the City qualifies as an owner within the meaning of the injury statute.

Violation of Labor Law ยง 240 (1) and Proximate Cause

The court turns to the issue of the City’s liability. In a falling object case, the plaintiff must show that, at the time the object fell, it was being hoisted or secured, or required securing for the purposes of the undertaking. The plaintiff must also show that then object fell because of the absence or inadequacy of a safety device of the kind enumerated in the statute.

In the falling object context, the risk to be guarded against is the “unchecked, or insufficiently checked, descent” of the object.

JF has met his prima facie burden of establishing a violation of the statute, and that the violation was a proximate cause of his injury. JF’s co-worker testified that he saw the pipe that JF had rigged fall and hit him. JF’s safety expert, Tony Raimo, states that tying a rope without straps or a choker subjected the workers to the increased risk that the load would fall. Thus, JF has shown that the makeshift hoist proved inadequate to shield him from harm directly flowing from the application of the force of gravity to the pipe.

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