Post on 03-Oct-2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
MARKNORTHUP,
Plaintiff,
-against-
200 MADISON ASSOCIATES, L.P. andGEORGE COMFORT & SONS, INC.,
Defendants.
COUNSELORS:
-X
-X
AMENDED
NOTICE OF MOTION
Index No.: 152883/16
PLEASE TAKE NOTICE, that upon the annexed affirmation of THOMAS G.
CASCIONE, duly affirmed on December 8, 2016, upon the affidavit of plaintiff MARK
NORTHUP and upon all of the pleadings and prior proceedings had herein, the undersigned will
move this Court before Motion Submissions Part, Room 130, at the Courthouse located at New
York County Supreme Court, 60 Centre Street, New York, NY 10007-1474, on the 9^ day of
January, 2017 at 9:30 o'clock in the forenoon of that day, or as soon thereafter as counsel can be
heard, for an Order pursuant to CPLR §3212 granting summary judgment on the issue of liability
under Labor Law § 240(1) as to defendants, 200 MADISON ASSOCIATES, L.P. and GEORGE
COMFORT & SONS, INC., together with such other and further relief as this Court deems just
and proper.
NO PRIOR APPLICATION HAS BEEN MADE FOR THIS RELIEF TO ANY COURT
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PLEASETAKE FURTHER NOTICE, that answering papers, if any, are to be served
upon the undersigned notless than seven (7) days prior tothereturn date herein.
Dated: New York, New YorkDecember 8,2016
Thomas G. Cascione, Esq.CASCIONE, PURCIGLIOTn & GALLUZZI, P.O.Attorneys for PlaintiffMARKNORTHUP
20 Vesey Street, Suite 1100New York, New York 10007(212)964-9640 File#: 3979
TO:
EUSTACE, MARQUEZ, EPSTEIN, PREZIOSO & YAPCHANYKAttention: Richard J. Freire, Esq.Attorneys for Defendants200 MADISON ASSOCIATES, L.P. andGEORGE COMFORT & SONS, INC.,55 Water Street, 29th FloorNew York, New York 10041(212)612-4200
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SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK
MARKNORTHUP, piaintifil AFFIRMATION INPlaintiff,
SUPPORT-against-
200MADISON ASSOCIATES, L.P. andGEORGE COMFORT & SONS,INC.,
Defendants.
Index No.: 152883/16
-X
Thomas G. Cascione, an attorney duly admitted to practice law before the Courts of the
State ofNew York, affirms the truth ofthe following under the penalties or peijury:
1. I am a member of the firm of CASCIONE. PURCIGLIOTTI &OALLUZZI. P.O.,
attorneys for the above^tioned plaintiff MARK NORTHUP. As such, Iam fiiUy femillar
with the foots and circumstances ofthis matter and all prior pleadings and proceedings, based
upon areview ofdie case file maintained by this office.
2. This affirmation is submitted in support of plaintifFs motion for an Order pursuant to
CPLR §3212 granting summary judgment on the issue of liability under Labor Law §240(1)
as to defendants, 200 MADISON ASSOCIATES, L.P. and GEORGE COMFORT &SONS,
INC.
BACKGROUND
3. This is an action based upon an incident that occurred on May 3,2014, at the premises,
located at 200 Madison Avenue, New York, New York 10016. At the time of the
occurrence, the plaintiff was working at the aforesaid premises as a building operating
engineer and was participating in an ongoing construction project while being in the course
of his employment for Comfort Maintenance Corp. The building was owned by defendant
200 MADISON ASSOCIATES, L.P., an entity supposedly created by defendant GEORGE
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COMFORT & SONS, INC. which manages thepremises (status of defendants as owner and
manager respectively is admitted in their answer annexed hereto). Comfort Maintenance
Corp. is an independent corporation, created by defendant GEORGE COMFORT & SONS,
INC forthepurpose of maintaining theaforementioned building.
4. One of the building's ground floor tenants was undergoing a major construction
renovation, which included connecting that space to the building's air conditioning system
vdiereas previously the space had its own cooling system. During that process it was
necessary to shut themmn valves thatcontrolled theflow ofwater intoandoutof thecooling
tower. It wasthenplaintifTs job to goto the loading dock areaandusetheavailable ladder to
climb up and turn the valves back on.
5. There was an A-firame ladder already placed on the loading dock. Since none of the
plaintifrs assistants were present to hold the ladder, the plaintiff left it leaning against the
wall and climbed around 8 rungs up to the top to get access to the valve. The valve was
sticking closed and the plaintiffused a piece of pipe for leverage to break lose the frozen
valve. Suddenly the valve spun free.
6. Theplaintiff, whowasstanding at the top level of the ladder, losthis balance and fell to
the floor, landing on his left foot. As a result of the occurrence, the plaintiff sustained a
severe calcaneus fractureand eventually requireda subtalarfusion.He remainsdisabled.
7. This actionwas commenced by filingofa Summons and VerifiedComplaint on April 5,
2016. (EXHIBIT **A''). Defendants appeared by their joint Answer, dated December 1,
2016. (EXHIBIT ••B").
8. Plaintiffs story is laid out in his affidavit. (EXHIBIT **€"). The plaintiff states that on
May 3, 2014, while participating in an ongoing construction project, in the course of his
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employment for Comfort Maintenance Corp., he was caused to fall from a ladder to the
ground, sustaining serious injuries to his left foot He explains that he was injured through
nofruit of hisownbecause hewassupplied a shalcy improper ladder to perform histask.
THERE ARE NO ISSUES OF FACT DUE TO
VIDEO PROOF OF THE ACCIDENT
9. Annexed hereto as EXHIBIT '̂ D" are a group of still shots taken from the video of
defendants* surveillance camerawhichrecords the loading dockv4iere plaintiffwas injured.
There can be no question that plaintiffclimbed the ladder, attempted his task and lost his
footing. As he describes, he tried to jump free of the ladderas he fell to minimize his injury.
The better means of using that inadequate ladder is even demonstrated on the tape after a
coworker arrives following the accident, opens up the ladder and after it proves shaky (it
visibly sways on the tape), has a second coworker steady it so that he can complete the
plaintifTs task. The following is depicted: (Dl) Plaintiffarrives and approaches the ladder;
(D2) Plaintiffclimbs the ladder; (D3) PlaintifTis workmgflush against the wall-onlyhis legs
are visible (D4) Only 20 seconds later in rapid sequence Plaintiff, still holdingthe pipe, falls
off and away from the ladder, hits the ground on his left foot and then lies injured on the
floor; (D5) Help has arrived and one co-workerhas opened the A-Frame and tries to use the
ladder to finish plaintiffs task while another attends to plaintiff (D6) Ten seconds later the
secondco-workerhas left plaintifrs side to steady the shaky ladder (D7) Less than a minute
later the co-worker has climbed down offthe ladder with the help ofthe second co-worker.
Any Questions?
10. Normally plaintiffs wait for completion ofdiscovery before making this motion in ladder
cases but in the present case there is absolutely no issue as to what occurred since the video is
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clear. The video is in defendants' control as are any co-workers who might have fiirdier
information. Your affirmant also duplicated our copy of the video and provided it to
defendants' insurer several months ago sothere can benoquestion of what we are claimmg.
If isany hint ofa defense tothis claim itshould be brought forth now by the defendants
rather than merely hoped for inthe months it will take togetdiscovery completed.
THE LABOR LAW MANDATES SUMMARY JUDGMENT
11. Under CPLR §3212, a motion for Summary Judgment should be granted only when,
upon all p^ers and proof submitted, the moving party demonstrates that no matoal or
triable issues of fact exist, and findings are justified as a matter of law. White v. Snerrv
SudpIv and Warehouse Inc.. 225 A.D.2d 130 (S'** Dept 1996); Suffolk County Department of
Social Services on behalf of Michael V.. 83 N.Y.2d 178 (1994); Gibbons v. Hantman. 58
A.D.2d 108 (2"'' Dept. 1977), affM, 43 N.Y.2d 941 (1978).
12. Under CPLR §3212(a), anyparty may move for summary judgment after issue has been
joined. Completion of discovery is not a requisite before the court can grant a summary
judgment motion. Chemical Bank v. PIC Motors Corp.. 58 N.Y.2d 1023, 1026 (1983);
Narvaev v. SoIoil 6 A.D.3d 510 (2d Dep't 2004); Herba v. Chichester, 301 A.D.2d 822(3d
Dep't2003).
13. Depositions have not been held,however based on the simple facts and the evidence set
forth by the plaintififherein it can be safely concluded that discovery would not result in any
disclosure defeating plaintiffs entitlement to summary judgment Kimvaearov v. Nixon Taxi
Corp. 45 A.D. 3d 736, 846N,Y.S. 2d 309, see also Johnson v Phillips 261 AD2d 269, 690
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N.Y,S2d54.
14. Suimnary judgment is designed to e3<pedite all civil cases by eliminating from tiie Trial
Calendar Mdiich can beproperly resolved asa matter of law. Wh^ there isno genuine
issue of material fret to be resolved at trial, a case should be sununaiily decided. Andre v.
Pomerov. 35 N.Y.2d361,320 N.E.2d853,362 N.Y.S.2d 131 (1974).
15. To demonstrate entitlement to summary judgment, a party must make a prima facie
showing thatno material issues of fact exist Lorenzo v. Plitt Theatres. Inc.. 267A.D.2d 54,
699 N.Y.S.2d 388, 389 (1"^ Dept 1999), citing Wineerad v. New York Universitv Medical
Center. 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316 (1985). In deciding a summary judgment
motion the evidence must be takenin a lightmost favorable to the partyopposing the motion.
Dubbs V. Stribling & Associates. 96 N.Y.2d 337,728 N.Y.S.2d 413 (2001).
16. Labor Law§240(1) provides protection to workers at construction sites who are exposed
to elevation-related hazards. Blake v. Neighborhood Housing Services of New York Citv.
Inc..l N.Y.3d 280,287-290 (2003) "Inorder to impose liability under thestatute, a plaintiff
must demonstrate that the statute was violated and that the violation was a contributing
cause of his or her injuries. Moreover, 'the duty imposed by Labor Law § 240(1) is
nondelegable and an owner or contractor who breaches that duty may be held liable in
damages regardless of whether it has actually exercised supervision or control over the
work.' (Ross v. Curtis-Palmer Hvdro-Electric Co.. 81 N.Y.2d 494, 500 [1993]; citation
omitted)." Jones v. Powell Play^ Hnnsing Development Fund Comnanv. Inc.. 12 Misc.3d
1182(A), 824 N.Y.S.2d 763 (Table), 2006 WL 1933259 (N.Y.Sup.), 2006 N.Y. Slip. Op.
51369(U)(Sup. Ct, Kings Cty., 2006) The statute is to be liberally construed to accomplish
its protective goals. (Id., citing Martinez v. Citv ofNew York. 93 N.Y.2d 322,326 [1999]).
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The core objective of the scaffold law in requiring protective devices for those working at
heights is to allow them to complete their work safely and prevent them fiom felling.
Partridge v. Waterloo Cent School Dist. 12 A.D.3d 1054,784 N.Y.S.2d 767 (4 Dept. 2004).
17. Specifically,Labor Law 240(1) provides:
"Allcontractors andowners andtheir agents, except owners ofoneandtwo-femily dwellingswho contract for but do not direct or control the work, in the erection, demolition, repairing,altering, painting, cleaning or pointing of a building or structure shall furnish or erect, orcause to befurnished or erected for theperformance of such labor, scaffolding, hoists, stays,ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices vdiich shallbesoconstructed, placed and operated asto give proper protection toa person soemployed.*'
18. "It is wellsettled that Labor Law240(1) wasenacted 'to prevent those type of accidents
in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to
shield the injured woricer from harm directly flowing from the application of the force of
gravity toan object orperson."* Rodriguez v. Citv ofNew York, 13 hfisc.3d 1220(A), 2006
WL 2882585 (Table)(N.Y.Sup.), 2006 N.Y. Slip. Op. 51918(U) (N.Y. Sup. Q., Kings Cty.,
2006) (citing Ross v.Curris-Palmer Hvdro-Elec. Co.. 81 N.Y.2d 494,501 [1993]).
19. PlaintifPs case isa classic iqiplication of Labor Law 240(1). Even less compelling facts
have already been addressed by the Appellate Division 1®* Department and resolved in fevor
of an injured worker plaintiff. In the Orellano case cited below Uiere was not even the
allegation ofa ladder defect toexplain the happening yet the court readily applied Labor Law
240(1). The facts of that case as seen below are othenmse so highly similar as to beyond
cavil grant this plaintiff his relief.
"Plaintiff Guillermo Orellano, a construction worker, was injured when he fell fi:om anA>fi:ame ladder while installing a light fixture as part of a renovation project at 29 East 37thStreet There were no apparent defects in the ladder, nor was the floor on which the ladderrested defective. There were no protective devices on the ladder that would have preventedplaintiffs fell. Orellano, who was alone when the accident occurred, gave severalexplanations as to what caused him to fiill. The ladder may have shifted as Orellano reachedto affixa bolt that was the furthest firom wherehe was standing on the ladder,or his foot may
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have slipped ftom theladder's rung, orhemay have simply lost hisbalance."Plaintiffit moved for partial summary judgment onliability under Section 240(1) ofNew
York's Labor Law, which themotion court denied on the grounds thatOrellano's renditionsof how the accident occurred, as well as the possibility that his own negligence could befound by a jury to have been the sole proximate cause of his injury, rendered summaryjudgment inappropriate."
'̂ Regardless of the precise reason for his fall or whether Orellano acted negligently, orwhether defendants were in complete compliance with the Industrial Code, Orellano isentitled to summary judgment ontheLabor Law Section 240(1) claim."Orellano v. 29 East 37th Street Realty Corp. 292 A.D.2d 289,740 N.Y.S.2d 16,(lDept,2002).
20. As the Court should note, the fects of the Orellano case are directly onpoint Normally
we would wait to complete discovery of the defendants before moving for summary
judgment However, due to video proof ofthe accident, there are no issues of fact Also,
there is no question that the plaintiff isin tiie class ofindividuals, who are protected by Labor
Law Section 240 and, therefore, heisentitled tosummary judgment onthe issue ofliability.
WHEREFORE, plaintiff MARK NORTHUP respectfully requests that the within
motion be granted inits entirety, together with such other and tiirth^ reliefas to this Court
deems just and proper.
Dated: New York, New YorkDecember 8,2016
Thomas G. Cascione, Esq.
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IFILED: NEW YORK COONTY CLERK 04/05/2016 03:34 PMINDEX NO. 152883/2016
RECEIVED NYSCEF: 04/05/2016NYSCEF DOC. NO. 1
SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK
Index No.:
Date Purchased:
•X SUMMONS
Plaintiffdesignates NEW YORKCountyas the placeoftrial.
The basis ofvenue is:SITE OF OCCURRENCE ANDBUSINESS ADDRESS OFDEFENDANTS
Defendant's Address:
-X 200 Madison AvenueNew York, New York 10016
MARKNORTHUP,
Plaintiff,
-against-
200 MADISON ASSOCIATES, L.P. andGEORGE COMFORT & SONS, INC.,
Defendants.
To the above named Defendants:
You are hereby summoned to answer the complaint in this action, and to serve acopy of your answer, or, if the complaint is not served with this summons, to serve a notice ofappearance on the PlaintifPs attorneys widiin twenty days after the service of this summons,exclusive of the day of service, where service is made by delivery upon you personally withinthe state, or, within 30 days after completion of service where service is made in any othermanner. In case of your failure to appear or answer, judgment will be taken against you bydefault for the relief demanded in the complaint.
Dated: New York, New YorkApril 5,2016 CASCIONE, PURCIGLIOTTI & GALLUZZI, PC
Thomas G. Cascione, Esq.CASCIONE, PURCIGLIOTTI & GALLUZZI, P.C.Attomeys for PlaintiffMARKNORTHUP20 Vesey Street, Suite 1100New York, New York 10007(212)964-9640Our File No.: 3979
To: 200 MADISON ASSOCIATES, L.P.200 Madison Avenue
New York, New York 10016
GEORGE COMFORT & SONS, INC.200 Madison Avenue
New York, New York 10016
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SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEWYORK Index No.:
-X
MARKNORTHUP.
Plaintiff, VERIFIED COMPLAINT
-against-
200 MADISON ASSOCIATES, L.P. andGEORGE COMFORT & SONS, INC.,
Defendants.
Plaintiff MARK NORTHUP, by his attorneys, CASCIONE, PURCIGLIOTTI &
GALLUZZI, P.C., complaining of the Defendants, respectfully alleges, upon information and
belief, as follows:
AS AND FOR A FIRST CAUSE OF ACTIONON RFHAI.F OF PI.AINTIFF MARK NORTHUP
1. That the cause of action alleged herein arose in the County of New York, in the
State ofNew York.
2. That on May 3, 2014, and at all times herein mentioned. Defendant, 200
MADISON ASSOCIATES, L.P., wasandstill is a domestic Limited Partnership duly organized
and existing underandby virtue ofthe laws ofthe Stateof NewYork.
3. That on May 3, 2014, and at all times herein mentioned. Defendant, GEORGE
COMFORT& SONS, INC., was and still is a domestic corporationduly organized and existing
under and by virtue ofthe laws ofthe State ofNew York.
4. Thaton May 3,2014, and at all times hereinmentioned. Defendant 200
MADISON ASSOCIATES, L.P., was and still is a foreign partnership duly licensed to do
business in the State ofNew York.
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5. That on May 3,2014, and atalltimes herein mentioned. Defendant GEORGE
COMFORT & SONS, INC. was and still is a foreign corporation duly licensed to dobusiness in
the State ofNew York.
6. ThatonMay 3,2014, andatall times hereinafter mentioned. Defendant 200
MADISON ASSOCIATES, L.P. maintained a principal place of business located at 200
Madison Avenue, New York, New York 10016.
7. That on May 3, 2014, and at all times herein mentioned. Defendant 200
MADISON ASSOCIATES, L.P. owned the premises located at 200 Madison Avenue, New
York, New York 10016.
8. Thaton May3,2014, andat all times herein mentioned. Defendant 200
MADISON ASSOCIATES, L.P. its agents, servants and employees operated the aforesaid
premises and surrounding areas.
9. That on May 3, 2014, and at all times herein mentioned. Defendant 200
MADISON ASSOCIATES, L.P. its agents, servants and employees managed the aforesaid
premises and surrounding areas.
10. That on May 3, 2014, and at all times herein mentioned. Defendant 200
MADISON ASSOCIATES, L.P. its agents, servants and employees controlled the aforesaid
premises and surrounding areas.
11. That on May 3, 2014, and at all times herein mentioned, Defendant 200
MADISON ASSOCIATES, L.P. its agents, servants and employees maintained the aforesaid
premises and surrounding areas.
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12. That on May 3, 2014, and at all times heiein mentioned. Defendant 200
MADISON ASSOCIATES, L.P. its agents, servants and employees supervised the aforesaid
premisesand surroundingareas.
13. That on May 3, 2014, and at all times herein mentioned. Defendant 200
MADISON ASSOCIATES, L.P. its agents, servants and employees performed inspections and
repairs to theaforesaid premises andsurrounding areas.
14. That onMay 3,2014,and atall times hereinafter mentioned. Defendant
GEORGE COMFORT & SONS, INC. maintained a principal place of business located at 200
Madison Avenue, New York, New York 10016.
15. TTiat on May 3, 2014, and at all times herein mentioned. Defendant GEORGE
COMFORT & SONS, INC. owned the premises located at 200 Madison Avenue, New York,
New York 10016.
16. That onMay 3,2014,andatall times herein mentioned. Defendant GEORGE
COMFORT & SONS, INC., its agents, servants and employees operated the aforesaid premises
and surrounding areas.
17. ThatonMay3,2014, andat all times herein mentioned. Defendant GEORGE
COMFORT & SONS, INC. its agents, servants and employees managed the aforesaid premises
and surrounding areas.
18. That on May 3, 2014, and at all times herein mentioned. Defendant GEORGE
COMFORT & SONS, INC. its agents, servants and employees controlled the aforesaid premises
and surrounding areas.
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19. That on May 3, 2014, and at all times herein mentioned. Defendant GEORGE
COMFORT & SONS, INC. its agents, servants and employees maintained the aforesaid
premises and surrounding areas.
20. That on May 3, 2014, and at all times herein mentioned. Defendant GEORGE
COMFORT & SONS, INC. itsagents, servants and employees supervised theaforesaid premises
and surrounding areas.
21. That on May 3, 2014, and at all times herein mentioned. Defendant GEORGE
COMFORT & SONS, INC. its agents, servants and employees performed inspections and
repairs to the aforesaidpremisesand surroundingareas.
22. That on May 3, 2014, and at all times herein mentioned, within the premises of
200 Madison Avenue, New York, New York 10016, there were certain repairs being performed
in an elevated area on the loading dock level.
23. That on May 3, 2014, and at all times herein mentioned, COMFORT
MAINTENACECORP., was hired and/or retained pursuant to a written contract or agreement to
perform certain tasks andservices related to the repairs within theaforementioned premises. L.P.
24. That on May 3,2014, and at all timeshereinmentioned, PlaintifTMARK
NORTHUP was an employee of COMFORT MAINTENACE CORP. engaged in repairs to the
aforementioned premises.
25. That on May 3,2014, and at all times herein mentioned. Plaintiff MARK
NORTHUP was lawfully within the above-mentioned premises while in the course of his
employment.
26. That the Defendants, their agents, servants and/or employees had the duty to
provide the Plaintiffwith a safe place to work.
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27. That the Defendants, their agents, servants and/or employees had the non-
delegable duty to seethatthewodc sitewas kept reasonably safe and of dangers and hazards
to those workers lawfully thereat.
28. That on May 3, 2014, and at all times herein mentioned, while Plaintiff MARK
NORTHUP was lawMly and carefully performing his work duties upon said premises, in the
course of his employment, hewascaused to fall from an elevation to the ground by reason ofthe
negligence of the Defendants, its agents, servants and/or employees in theownership, operation,
direction, supervision, possession, control, construction, rehabilitation and/or alteration of said
premises and Plaintiff sustained the injuries hereinafter alleged.
29. That the Defendants, their agents, servants and/or employees were negligent,
reckless andcareless in the ownership, operation, maintenance, control, possession, siq)ervision,
direction, construction, inspections, management, renovation, rehabilitation and/or alteration of
the said premises in that they failed to provide the Plaintiff with a safe place to work; and the
Defendants were otherwisenegligent,recklessand careless.
30. That the Defendants, their agents, servants and/or employees had actual and/or
constructive notice of the dangerous anddefective conditions existing upon the work site.
31. That the incident, and the injuries resulting therefrom, were caused by reason of
thenegligence of theDefendants, theiragents, servants and/or employees without anyfault, want
or care of culpable conduct on the part ofthe Plaintiffcontributingthereto.
32. That by reason of the foregoing. Plaintiff has been rendered sick, sore, lame,
maimed and disabled, and so remains. That he has been unable to attend to his usual vocation
and activities and that he has been obliged to expend and will in the future expend sums of
money for medical aid and attention, and that by reason of the foregoing Plaintiff has been
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damaged in an amount which exceeds the jurisdictional limitations of all courts that would
otherwise have jurisdiction over this action.
AS AND FOR A SECOND CAUSE OF ACTIONON BEHALF OF PLAINTIFF MARK NORTHUP
33. Plaintiff MARK NORTHUP repeats, reiterates and realleges each and every
allegation contained in paragraphs "1" throu^ "32"together with die same force and effect as
though folly set forth herein.
34. That on May 3, 2014, and at all times herein mentioned, there existed, in full
force and effect, within the State of New York, Section 200 of the Labor Law of the State of
New York.
35. That by reason of the conduct of the Defendants as aforesaid, the Defendants
violated Section 200 ofthe Labor Law ofthe State ofNew York.
36. That the violations of the afore-cited section of the Labor Law of The State of
New York were the proximate cause of the PlaintifTs injuries without Plaintiff MARK
NORTHUP in any way contributing thereto.
37. Thatby reason of the foregoing. Plaintiffhas beendamaged in an amount which
exceeds thejurisdictional limitations ofall lowercourts whichwould otherwise havejurisdiction
over this action, togetherwith the interest,costs and disbursements ofthis action.
AS AND FOR A THIRD CAUSE OF ACTION
ON BEHALF OF PLAINTIFF MARK NORTHUP
(LABOR LAW SECTION 2401
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38. Plaintiff MARK NORTHUP repeats, reiterates and realleges each and every
allegation contained in paragraphs "1" through "37"together with the same force and effect as
though fully set forth at length herein.
39. That on May 3, 2014, and at all times herein mentioned, there existed, in full
force and effect, within the State of New York, Section 240 of the Labor Law of the State of
New York.
40. That by reason of the conduct of the Defendants as aforesaid, the Defendants
violated Section 240 ofthe Labor Law ofthe State ofNew York.
41. That the violations of the afore-cited section of the Labor Law of The State of
New York were the proximate cause of the plaintifPs injuries which were caused by gravity
related hazards.
42. That the violations of the afore-cited section of the Labor Law of The State of
New York were the proximate cause of the plaintiffs injuries without Plaintiff MARK
NORTHUP in any way contributing thereto.
43. That by reason of the foregoing. Plaintiff has been damaged in an amount which
exceeds the jurisdictional limitations ofall lower courts which would otherwise have jurisdiction
over this action, together with theinterest, costs and disbursements ofthis action.
AS AND FOR A FOURTH CAUSE OF ACTIONON BEHALF OF PLAINTIFF MARK NORTHUP
LABOR LAW SECTION 241(€\
44. Plaintiff MARK NORTHUP repeats, reiterates and realleges each and every
allegation contained in paragraphs "1" through "43",together with the same force and effect as
though fiilly set forth at length herein.
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45. That at all times hereinafter mentioned, defendants, their agents, servants and
employees violated Labor Law §241(6) in that they violated applicable sections ofthe Industrial
Code.
46. That at all times hereinafter mentioned, defendants, their agents, servants and
employees, violated Rule 23 ofthe Industrial Code ofthe State ofNew York Sections 23-1.7,
23-1.7(a), 23-1.8(c)(l), 23-5.1,23-5.1(i) and 23-6.1.
47. That the violation ofthe afore-cited sections ofthe Industrial Code ofThe State of
New York was the proximate cause ofthe Plaintiff MARK NORTHUP s injuries without this
plaintiff inanyway contributing thereto.
48. That by reason ofthe foregoing, Plaintiff has been damaged in an amount which
exceeds the jurisdictional limitations of all lower courts which would otherwise have jurisdiction
over this action, together with the interest, costs and disbursements ofthis action.
WHEREFORE, PlaintiffMARK NORTHUP demands judgment against the Defendants
in the First, Second, Third and Fourth causes of action, in an amount which exceeds the
jurisdictional limits of all courts that would otherwise have jurisdiction over this action, together
with the costs and disbursements ofthis action.
Dated: New York, New YorkApril 5,2016
Thomas G. Cascione, Esq.CASCIONB, PURCIGLIOm & GALLUZZI, P.C.Attorneys forPlaintiffMARK NORTHUP20 Vesey Street, Suite 1100New York, New York 10007(212)964-9640; tcascione@cpglawyers.comOur File No.: 3979
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ATTORNEY'S VERIFICATION
THOMAS G. CASIONE, an attorney duly admitted to practice before the Courts of theState ofNew York, afBrmsthe following to be true under the penaltiesofpeijury:
I am an attomey at CASCIONE, PURCIGLIOTTI & GALLUZZI, P.O., attorneys ofrecord for Plaintiff^ MARK NORTHUP. I have read the annexed SUMMONS ANDCOMPLAINT and know the contents thereof, and the same are true to my knowledge, exceptthose matters thereinwhich are stated to be alleged upon information and belief,and as to thosematters I believe them to be true. My belief, as to those matters therein not stated uponknowledge, is baseduponfacts, records, andotherpertinent information contained in myfiles.
The reason this verification is made by me and not Plaintiff is that Plaintiff does notreside in the countywherethe attorneys for the plaintiffmaintain their offices.
Dated: New York, New YorkApril 5,2016
THOMAS G. CASIONE
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SUPREME COURT OF THE STATE OFNEW YORKCOUNTY OF NEW YORK _=MARKNORTHUP,
Plaintiff,
-against-
Index No.
200 MADISON ASSOCIATES, L.P. and GEORGE COMFORT &SONS, INC.
Defendant.
SUMMONS AND VERIFIED COMPLAINT
200 MADISON ASSOCIATES, L.P.200 Madison Avenue
New York, New York 10016
GEORGE COMFORT & SONS, INC.200 Madison Avenue
New York, New York 10016
'Via Secretary ofState
-Via Secretaiy ofState
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NYSCEF - New York County Supreme Court
Confirmation Notice
This is an automated response for Supreme Court / Court of Claims cases. The NYSCEF site hasreceived your electronically filed document(s) for:
MARK NORTHUP - v. - 200 MADISON ASSOCIATES, L.P. et al
152883/2016
Assigned Judge: None Recorded
Documents Received on 04/05/201e 03:34 pm
Doc # Document Type1 SUMMONS + COMPLAINT
Does not contain an SSN or CPI as defined in 202.5(e) or 206.5(e)
Filing User
Motion #
Name: KELLY L MURTHA
Phone#: 212-964-9640
Fax#:
E-mail Address:
Work Address:
kmurtha@cpglawyers.com
20 Vesey Street, Suite 1100New York, NY 10007
E-maii Notifications
An e-mail notification regarding this filing has been sent to the following address(es) on
04/05/2016 03:34 PM:
MURTHA, KELLY L - kmurtha@cpglawyers.com
NOTE: If submitting a working copy of this filing to the court, you must includeas a notification page firmly affixed thereto a copy of this Confirmation Notice.
Hon. Milton A. Tingling, New York County Cierk and Clerk of the Supreme Court
Phone: 646-386-5956 Website: http://www.nycourts.gov/courts/1jd/supctmanh/county_clerk_operations.shtml
NYSCEF Resource Center - EFile@nycourts.govPhone:(646)386-3033 Fax: (212)401-9146 Website: www.nycourts.gov/efile
Page 1 of 1
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
X Index No.: 152883/2016
MARK NORTHUP, (EOF)
Plaintiff,
V. VERIFIED ANSWER TO
COMPLAINT
200 MADISON ASSOCIATES, L.P. AND GEORGE
COMFORT & SONS, INC.,
Defendants.X
Defendants, George Comfort & Sons, Inc. and 200 Madison
Owner, LLC s/h/a 200 Madison Associates, L.P., by their
attorneys, EUSTACE, MARQUEZ, EPSTEIN, PREZIOSO & YAPCHANYK,
answer the Complaint of the Plaintiff by stating as follows:
1. Deny, upon information and belief, the allegations of
paragraphs 4, 5, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 21, 28,
29, 30, 31, 32, 35, 36, 37, 40, 41, 42, 43, 45, 46, 47 and 48.
2. Deny, upon information and belief, the allegations of
paragraph 2, except to admit that defendant, 200 MADISON OWNER, LLC
is a foreign limited liability company.
3. Deny having knowledge or information sufficient to form a
belief as to the truth of the allegations of paragraphs 22 and 23.
4. Deny having knowledge or information sufficient to form a
belief as to the truth of the allegations of paragraphs 26 and 27 and
respectfully refers all questions of law to this Honorable Court.
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5. Respond to paragraph 33, 38 and 44 of the Complaint by
repeating, reiterating, and realleging all responses given to the
paragraphs referred to therein with the same force and effect as if
herein set forth at length.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE THESE
ANSWERING DEFENDANTS ALLEGE AS FOLLOWS:
6. The injuries alleged to have been suffered by the Plaintiff
were caused, in whole or part, by the conduct of Plaintiff.
Plaintiff's claims therefore are barred or diminished in the
proportion that such culpable conduct of Plaintiff bears to the total
culpable conduct causing the damages.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE THESE
ANSWERING DEFENDANTS ALLEGE AS FOLLOWS:
7. Pursuant to CPLR Article 16, the liability of these
Defendants to the Plaintiff for non-economic loss shall not exceed
the equitable share of these Defendants determined in accordance with
the relative culpability of each person/party causing or contributing
to the total liability for non-economic loss.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE THESE
ANSWERING DEFENDANTS ALLEGE AS FOLLOWS:
8. Upon information and belief the causes of action alleged in
the Complaint of the Plaintiff fail to properly state, specify or
allege a cause of action on which relief can be granted as a matter
of law.
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AS AND FOR A FOURTH AFFIRMATIVE DEFENSE THESE
ANSWERING DEFENDANTS ALLEGE AS FOLLOWS:
9. That recovery, if any, on the Complaint of the Plaintiff
shall be reduced by the amounts paid or reimbursed by collateral
sources in accordance with CPLR 4545(c).
WHEREFORE, these Defendants demand judgment dismissing the
Complaint, together with costs and disbursements, and in the
event any judgment or settlement is recovered herein against
these Defendants, then these Defendants further demand that such
judgment be reduced by the amount which is proportionate to the
degree of culpability of any plaintiff, and these Defendants
further demand judgment against each other party on the
respective crossclaims and/or counterclaims.
DATED: December 1, 2016
New York, New York
Yours, etc.
EUSTACE, MARQUEZ, EPSTEIN,
PREZIOSO & YAPCHANYK
Attorneys for DefendanbsGEORGE COMFORT & SONS, INC. AND
200 MADISON OWNER, LLC S/H/A 200MADISON ASSOCIATES, L.P.
Office and Post Office Address
55 Water Street, 29th Floor
New York, New York 10041
(212) il2-4>a0
Richard J. Freire
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To:
Cascione, Purcigliotti & Galluzzi, P.CAttorneys for PlaintiffMark Northup20 Vesey Street, Suite 1100New York, New York 10007
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SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK
-X Index No: 152883/2016MARKNORTHUP,
Plaintiff, PLAINTIFF'S AFFIDAVIT
-against-
200 MADISONASSOCIATES, L.P. andGEORGE COMFORT & SONS, INC.,
Defendants.
STATE OF NEW YORK }ss:
COUNTY OFNEW YORK }
MARK NORTHUP being duly sworn deposes and says:
1. 1am the plaintiff captioned above and as such I am fully familiar with the facts of this
case and 1make this affidavit upon personal knowledge and upon information and belief.
Those matters stated upon information and belief are based upon the research and
investigations performed by my attorneys and asto those things 1believe them tobetrue.
2. My accident occurred on the aftemoon ofMay 3, 2014.1 was employed on that date by
Comfort Maintenance Corp. which was an independent corporation created by defendant
GEORGE COMFORT & SONS, INC for the purpose of maintaining its headquarters
building at200 Madison Avenue, New York, New York 10016. The building was owned
by defendant 200 MADISON ASSOCIATES, L.P. which was another entity created by
defendant GEORGE COMFORT & SONS, INC. for the purpose of independently
owning the property.
3. At the time ofmy accident one ofthe building's ground floor tenants was undergoing a
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major construction renovation. As partof thatproject it was decided to connect that space
to the building's air conditioning system whereas previously the space had its own
cooling tower and system. During that process it was necessary to shut the main valves
that controlled the flow of water into and out of the cooling tower. It was then my job to
go to the loading dock area and use the available ladder to climb up and turn the valves
back on.
4. The ladder was already present on the loading dock. It was an A-ffame ladder but I had
no co-worker present to steady it so I left it leaning against the wall and I climbed around
8 rungs up to the top to getaccess to the valve. Thevalve was sticking closed and I tried
to use a piece of pipe for leverage however I still hadto leanmyweight onto it. Suddenly
the vedve spun free and my momentum caused me to lose balance and fall. I tried to get
mybody away from the ladder so it didn't come down on top of me. I landed on my left
foot and badlyinjured it suchthat I eventually neededa left foot subtalar fusion..
5. I was able to obtain the building's video which shows my accident and then shows other
workers trying to complete my task. It shows how shaky the ladder was once it was
opened up and that a second worker was needed to steady the ladder once the man had
climbed up it. I was not provided an assistant to hold die ladder. There was no other
equipmentprovided to me and no safety equipment that I failed to use.
6. I was not employed by either defendant and my paycheck was written by Comfort
Maintenance Corp. The task that I was performing that day was part of an ongoing
construction project on the premises and not routine maintenanceor cleaning.
7. My attorney informs me that my accident was a situation covered by Section 240 of the
New York Labor Law and that therefore I am entitled to summary judgment on the issue
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Dated:
of liability. I ask the court to grant me summary judgment.
WHEREFORE, I respectfully ask that the Court make and enter an order granting me
summary judgment and further ask for suchother reliefas the courtmay deem fitting and
proper.
New York
nA./ , 2016
Sworn to before me on the day of 2016
RK NORTHjUP
Notary Public
THOMAS GERARD CASCIONENotary Public. State ofNew York
No. 02CA4982777Qualified InWestchester County
Commission Expires June 10,2QZ^
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9. Loading Dock
ii»saS?,''.«S£'. iif^ • •• ' D
2014-05-03 13:42:50
12/7/2016 5
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2014-05-03 13:43:06
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|9. Loading Dock
2014-05-03 13:43:17
12/7/2016 5:39 PM
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9. Loadtng Dock
D4
2014-05-03 13:43:38
2014-05-03 13:43:38
9. Loading Oocti
2014-05-03 13:44:00
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iMG_3157.JPG (JPEG Image, 2400 x 1800 pixels) - Scaled (26%) https://emajlmg.ipage.com/roundcube/?_task==mail&_action=get&_mbo.
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9. Loiidiny Ootk
• * D6
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12/7/2016 5:47 PM
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9. Loading Oodc
D7
ft
2014-05-03 13:58:35
12/7/2016 5:43 PM
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------------------------------------------------------------------------x
MARK NORTHUP,
Plaintiff,
v.
200 MADISON ASSOCIATES, L.P. AND GEORGE
COMFORT & SONS, INC.,
Defendants.
--------------------------------------------------------------------------x
Index No.: 152883/2016
AFFIRMATION IN
OPPOSITION
Christopher M. Yapchanyk, an attorney duly admitted to practice law in the Courts of the
State of New York, affirms the following under the penalties of perjury pursuant to C.P.L.R. §
2106:
1. I am a member of the law firm EUSTACE, MARQUEZ, EPSTEIN, PREZIOSO
& YAPCHANYK, attorneys for the Defendants 200 MADISON ASSOCIATES, L.P. AND
GEORGE COMFORT & SONS, INC. (hereinafter collectively referred to as “George Comfort”)
and as such, I am fully familiar with the facts and circumstances herein.
2. This motion is submitted in opposition to Plaintiff’s motion made pursuant to
C.P.L.R. §3212 for summary judgment on the issue of liability against George Comfort in
accordance with New York State Labor Law § 240.
3. Plaintiff’s motion for a determination on liability, made after George Comfort
Answered the Complaint and before even the first preliminary conference held in this Court is
the textbook definition of premature. It may very well be that Plaintiff is entitled to a judgment
on liability as the facts develop in this case, but Plaintiff cannot file suit, receive an Answer, state
what he said happened and then win on motion.
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4. This case arises from an alleged fall from a ladder that occurred on May 3, 2014
at 200 Madison Avenue, New York, New York 10016. As admitted in the Verified Answer,
George Comfort does own and manage building. At this point, these are the only known facts as
they were admitted by George Comfort in its Answer.
5. Plaintiff’s motion is supported by an affidavit from Plaintiff describing what he
claims he was directed to do: shut water valves in the building to stop the flow of water to a
portion of the building where construction was ongoing. (Exhibit C to Plaintiff’s moving papers).
Plaintiff arrived that the location of his work and climbed a folded A-frame ladder that was
leaning against a wall. (Exhibit C of Plaintiff’s moving papers). At some point while turning the
valve, Plaintiff lost his balance and fell from the ladder. (Exhibit C of Plaintiff’s moving papers).
6. Additionally, Plaintiff purports to support his motion by enclosing still
photographs, or rather screen grabs, from a video recording of the accident at the loading dock
where Plaintiff’s incident occurred. (Exhibit D to Plaintiff’s moving papers). Plaintiff’s counsel
then asks “Any questions?” (Cascione Aff. in Supp. ¶ 9).
7. Plaintiff has not met his prima facie burden for summary judgment. He relies on
his own self-serving version of the facts, which in and of themselves create questions of fact, and
still shots taken of an unsubstantiated video.
8. First, Plaintiff’s affidavit fails to set forth a prima facie case for summary
judgment under Labor Law § 240. His affidavit claims that Plaintiff worked for Comfort
Maintenance, a spin-off company of George Comfort to maintain the building. The affidavit also
claims that a tenant in the building was renovating space. However, Plaintiff’s affidavit does not
state that he was working directly for the tenant or contractors of the tenant in the scope of that
construction project. Plaintiff’s affidavit fails to state where this valve is relative to the
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construction site. Plaintiff has submitted no evidence demonstrating the work he was performing
directly related to the ongoing construction (indeed, Plaintiff does not submit any evidence that
there was any ongoing construction) as supposed to routine tasks often performed by employees
of Comfort Maintenance for tenants of the building throughout a regular work week. As such
Plaintiff’s affidavit fails to establish he was covered worker under Labor Law § 240. Parente v.
277 Park Ave, LLC, 63 A.D.3d 613 (1st Dep’t 2009).
9. Secondly, Plaintiff’s own affidavit creates issues of fact as to whether Plaintiff
himself was the sole proximate cause of the accident. Plaintiff admits that he climbed a folded A-
frame ladder that was leaning against a wall, 8-rungs in the air in an attempt to reach the valve.
(Exhibit C). Plaintiff incredibly does not even offer a reason why he used the ladder in this
fashion; he simply states his doing so as a routine fact. However, the fact that Plaintiff used a
folded A-Frame ladder leaning against the wall could be evidence of Plaintiff being the sole
proximate cause of his accident, eliminating a determination of liability in his favor under Labor
Law § 240 at this point so early in the case’s life. See Noor v. City of New York, 130 A.D.3d
536 (1st Dep’t 2015); Naleap v. South Hill Business Campus, LLC, 123 A.D.3d 1190 (3d Dep’t
2014). Importantly, Plaintiff’s affidavit fails to say why he did not open the A-Frame ladder.
Given the law described in both Noor and Naleap and the fact there has been absolutely no
discovery in this case, Plaintiff cannot obtain a determination of liability under Labor Law § 240.
10. Plaintiff also attests that no assistant was with him and that opening the ladder
would have been useless since the video shows the ladder shakes. (Exhibit C). This is a complete
red herring to try and avoid the fact that Plaintiff used an A-frame ladder in the closed position.
His affidavit never claims he was directed to use the ladder in such a way or that no other proper
equipment was available. Plaintiff has not established prima facie the failure to provide proper
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equipment under Labor Law § 240. Nalepa v. South Hill Business Campus, LLC, 123 A.D.3d at
1197 (Dismissing Plaintiff’s Labor Law § 240 claim and finding Plaintiff was sole proximate
cause of his accident holding that there was no evidence the defendant directed plaintiff to use a
folded A-frame ladder leaning against a wall nor was the ladder left in that position for use by
plaintiff or other workers). Therefore, on its face, Plaintiff’s affidavit fails to set forth a prima
facie case entitling him to summary judgment under Labor Law § 240.
11. Finally, the surveillance video stills from Plaintiff should be disregarded.
Plaintiff claims that the video that purports to show this accident was obtained by Plaintiff from
George Comfort. (Exhibit C of Plaintiff’s moving papers). However, the video is in no way
authenticated by George Comfort, the apparent owner/operator of the surveillance camera, as a
depiction of the occurrence on May 3, 2014. See e.g. McHugh v. Marfoglia 65 A.D.3d 828 (4th
Dep’t 2009). The chain of custody of the video is not described by Plaintiff. Finally and most
importantly, the video is not even show to this Court in its entirety. Only selected stills from this
video are printed and attached to the motion, with no explanation other than a narration by
counsel [Cascione Aff. in Supp. ¶ 9] who cannot, as a matter of law, testify as to the facts in this
case. Bendik v. Dybowski, 227 A.D.2d 228 (1st Dep’t 1996) (Holding that attorney’s
affirmations not based on personal knowledge of facts have no probative value). Therefore the
evidence submitted to this Court from this purported video is both unauthenticated and
selectively produced without context or explanation from a fact witness.
12. Plaintiff’s counsel correctly concedes that information about the construction, the
ladder, the direction of Plaintiff and the video are in the Defendants’ control. (Cascione Aff. in
Supp. ¶ 10). That is the exact point of Article 31 of the C.P.L.R - to permit an exhaustive review
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of the facts of the case before a decision on liability (or damages) can be rendered, especially as
a matter of law.
13. So to answer to Plaintiff’s counsel’s point – yes, there are plenty of questions that
have to be resolved. Discovery has not even begun, let alone concluded. This motion is made
immediately after issue was joined and before the first preliminary conference; indeed Plaintiff
has to serve his Bill of Particulars.
14. Plaintiff may very well be entitled to summary judgment on Labor Law § 240 –
eventually. But a determination on the liability issue should only be made after the close of
discovery. Plaintiff’s motion for summary judgment on the issue of liability should be denied as
premature.
WHEREFORE, it is respectfully requested that the Court issue an Order pursuant to
C.P.L.R. §3212, denying Plaintiff’s motion in its entirety along with such other and further relief
as this Court deems just and proper.
DATED: New York, New York
January 31, 2017
_________________________________
Christopher M. Yapchanyk, Esq.
EUSTACE, MARQUEZ, EPSTEIN,
PREZIOSO & YAPCHANYK
55 Water Street, 29th Floor
New York, New York 10041-2899
(212) 612-4230
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TO:
Cascione, Purcigliotti & Galluzzi, P.C.
Attorneys for Plaintiff
Mark Northup
20 Vesey Street, Suite 1100
New York, New York 10007
(212) 964-9640
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Index No.: 152883/2016 (ECF)
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
MARK NORTHUP,
Plaintiff,
against
200 MADISON ASSOCIATES, L.P. AND GEORGE COMFORT & SONS,
INC.,
Defendants.
AFFIRMATION IN OPPOSITION
__________________________________________________________________________
EUSTACE, MARQUEZ, EPSTEIN, PREZIOSO & YAPCHANYK
Attorneys for Defendants
George Comfort & Sons, Inc. Office and Post Office Address
55 Water Street, 29th Floor
New York, New York 10041
(212) 612-4200
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-X
MARKNORTHUP,Plaintiff, REPLY AFFIRMATION
-against- Index No.: 152883/16
200 MADISON ASSOCIATES, L.P. andGEORGE COMFORT & SONS, INC.,
Defendants.X
THOMAS G. CASCIONE, an attorney duly admitted to practice law before the Courts of
the State ofNew York, affirms the truth of the following under the penalties ofpeijury:
1. I am a member of the firm of CASCIONE, PURCIGLIOTTI & GALLUZZI, P.C.,
attorneys for the above-captioned plaintiff, MARK NORTHUP. As such, I am fixlly
familiar with the facts and circumstances of this matter based upon a review of the case
file maintained by this office.
2. This affirmationis submitted in further support of plaintiff's motion for partial summary
judgment on this issue of liability. It is respectfully submitted that defendant's
opposition, which consists merely of an attorneys' affirmation, is insufficientas a matter
of law to raise an issue of fact that could preclude a finding of summary judgment on
liability as this time.
SUMMARY JUDGMENT CAN BE GRANTED AT ANY TIME
3. Defendants' response states (paragraph 3) that "plaintiff's motion for a determination on
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liability, made...before even the first preliminary conference...is the textbook definition
of premature." It might as well read "before defense counsel can bill a fewdozen
hours on discovery proceedings". There is no such hard andfast rule andthis is a classic
case for the application of summary judgment. Anticipating this argument plaintiff has
citedthe relevant case law in paragraphs ll,12&13ofthe initial affirmation in support
of the motion.
4. This is a one man accident with no witnesses however defendants have a great amount
of nerve terming it an "alleged fall" since it was their ownvideo system which recorded
the entire incident. The occurrence is not in issue in any arguable way.
PLAINTIFF HAS MADE A PRIMA FACIE CASE
5. Defendants' motion opposition makes the following arguments:
"...Plaintiffsaffidavit does not state that he was working directlv for the tenant or
contractors of the tenant in the scone ofthat construction project." (Para 8)
There is of course no such requirement that a worker be working for any
particular entity in a construction projectand defendants cite no law statingsuch.
6. "PlaintifF has submitted no evidence demonstrating the work that he was performing
directlv related to the ongoing construction" (Para 8). Mr. Northup's affidavit stated the
following
"At the time ofmy accidentone of the building's groundfloor tenants was xmdergoing a
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major constniction renovation. As part of that project it was decided to connect that
space to the building'sair conditioning system whereas previously the spacehad its own
cooling tower and system. During that process it was necessary to shut the main
valves that controlled the flow of water into and out of the cooling tower. It was then
my job to go to the loading dock area and use the available ladder to climb up and
turn the valves back on.'' (emphasis added)
The courts have been very lenient in interpreting what constitutes construction or
renovation as opposed to maintenance. This work would clearly be a renovation or
alteration of the premises .Panek v. CoimtvofAlbanv. 99 NY2 452 (2003).
7. ^'Plaintiff admits that he climbed a folded A-frame ladder that was leaning against a wall" ...
"Plaintiff incrediblv does not even offer a reason whv he used the ladder in this
fashion:..."(Para 9) This characterization is incorrect since Mr. Northup states the following:
"The ladder was already present on the loading dock. It was an A-frame ladder but I had
no co-worker present to steady it so I left it leaning against the wall..." He goes on to
explain that the ladderwas unsteady and required someone to steady it (as was shown in the
video) and that no other equipment was provided to him.
8. The" ...observation that plaintiff himself had placed the ladder is of no import as plaintiffs
negligence is immaterial in a Labor Law § 240 (1) claim {see, e.g., Stolt v General Foods
Corp., 81 N.Y.2d 918. 920: Paperman v Turner Constr. Co., 203 AD2d 205: Robinson v
NAB Constr. Corp., suvra, at 87V Klein v. City ofNew York222 A.D.2d 351 (1 Dept. 1995).
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9. Defendants cite Noor v. CityofNew York 130A.D. 3d 536 (1 Dept2015), however that case
held that: "A worker's decision to use an A-frame ladder in the closed position is not a per se
reason to declare him the sole proximate cause of an accident {see Rico-Castro v Do & Co
NY. Catering. Inc.. 60 AD3d 749 r2d Dent 200911."
It went on to distinguish Naleapa v. South Hill Business Campus LLC 123 A.D. 3d 1190
(3 Dept. 2014) which was also cited by defendants, stating that: "Here, plaintiff gave a
specific reason whyhe usedthe ladder in the closed position." Plaintiffherein has explained
that it was a shakyladder and neededa secondset of hands,which he did not have.
THE SURVEILLANCE VIDEO IS ADMISSABLE AND UNDENIABLE
10. Defendants argue that "the surveillance video stills from Plaintiff should be disregarded".
They then go on to talk nonsense about chain of custody and authentication. Nobody in
defendants' camp is denying that it is their own video. Theymade it, they own it and wejust
happen to have a copyof it. If plaintiffs copy is in any way altered or inaccurate they needto
say so. Plaintiff recited that he has seen it and it shows his accident. The arguments about
chainof custody and authentication do not applywhenit is the parties own videorecording.
11. In making this motion plaintiff chose to create still shots for the court's convenience rather
than provide the full disc and expect the court to find a player and sit through the whole
video. We were confident that in this adversary proceeding the defendants' counsel would
raise any improper interpretation of events on our part and keep us honest. To be completely
fair and safe your affirmant provided a copy of our disc for defense coimsel (in addition to
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the earlierone that we provided to defendants' insurer). They have exactlythe same evidence
that we have and were free to cull out their own screen shots if there was any inaccuracy in
what plaintiff presented. There is not and they did not.
DEFENDANT'S OPPOSITION IS INADEQUATE AS IT CONTAINS NO SWORN
STATEMENT OF FACT OR EVIDENCE TO CONTROVERT THE MOTION
12. The very opposition papers cite to the fact that an attorney's affirmation without personal
knowledge has no probative value. Nevertheless that is their sole submission. They have
offered no proof in opposition. Instead they cite to Article 31 of the C.P.L.R. entitling them
'to permit an exhaustive reviewof the facts of the case before a decision on liability..." (Para
12). We must ask then "an exhaustive review of what?" Defendants have the ladder,
defendants control the accident site, defendants employ or control all of the witnesses and
defendants have the original video showing the whole event. The plaintiff has only his sworn
word and a copy of the video, both of which have already been provided to the defense.
Rather than stalling to engage in wasteful (if lucrative to outside counsel) discovery,
defendants were required to come forward with some glimmer of proof that could raise an
issue of fact, they chose not to and the plaintiff should prevail.
WHEREFORE, plaintiff respectfully requests that the within motion be granted in its
entirety, together with such other and further reliefas to this Court seems just and proper.
Dated: New York, New YorkJanuary 31, 2017
Thomas G. Cascione, Esq.
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ATTORNEY'S AFFIRMATION OF SERVICE BY MAIL
STATE OF NEW YORK:
ss.:
COUNTY OF NEW YORK:
KELLY L. MURTHA, an attorney duly admitted to practice law in the State of NewYork affirms the truth of the following under penalty ofpequry:
I am not a party to the action, am over the age ofeighteen (18) years and reside in Bronx,New York.On February 1,2017,1 servedthe withinREPLY AFFIRMATION by electronically filing onthe NYSCEF website and by depositinga true copy thereof in a post-paid wrapper, in an officialdepository imder the exclusive care and custodyof the U.S. Postal Servicewithin New YorkState, addressed to each of the following persons at the last known address set forth after eachname:
EUSTACE, MARQUEZ, EPSTEIN, PREZIOSO & YAPCHANYKAttention: Richard J. Freire, Esq.Attorneys for DefendantsGEORGE COMFORT & SONS, INC. and200 MADISON OWNER, LLCs/h/a 200 MADISON ASSOCIATES, L.P.55 Water Street, 29th FloorNew York, New York 10041(212) 612-4200
Dated: NEW YORK, NEW YORKFebruary 1,2017
Kelly L\9-—
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SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OFNEW YORK IndexNo. 152501/16
MARKNORTHUP,
Plaintiff,
-against-
200 MADISON ASSOCIATES, L.P. andGEORGE COMFORT & SONS, INC.,
Defendants.
REPLYAFFIRMATION
CASCIONE, PURCIGLIOTTI & GALLUZZI P.C.Attorneys for Plaintiff
20 Vesey Street, Suite 1100New York, New York 10007
(212) 964-9640
TO: EUSTACE, MARQUEZ, EPSTEIN, PREZIOSO & YAPCHANYKAttention: Richard J. Freire, Esq.Attorneys for DefendantsGEORGE COMFORT & SONS, INC. and200 MADISON OWNER, LLCs/h/a 200 MADISON ASSOCIATES, L.P.55 Water Street, 29th FloorNew York, New York 10041(212) 612-4200
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