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To Move or Not to Move (for SJ after a premature NOI) - That is the question (NY)

January 13, 2016

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In <em><a href="" rel="">Maggio v. 24 West 57 APF, LCC</a></em>, the First Department recently explained how a plaintiff’s premature note of issue, combined with an ambiguously worded ruling from the trial court, may add up to successive (and substantively identical) summary judgment motions from defendants seeking to dismiss Labor Law § 200 and common law negligence claims.
Plaintiff, Joseph Maggio, brought an action against 24 West 57 APF, LLC and ATNY after he fell from allegedly unsafe scaffolding at 24 West. In preparation for an upcoming exhibition by artist Ana Tsarev, ATNY leased space from 24 West to serve as the gallery. ATNY hired a general contractor, who in turn hired the plaintiff’s employer as a subcontractor. The proposed renovations were truly top to bottom, and so the general contractor also subcontracted with Atlantic Hoist and Scaffolding, LCC (Atlantic) to construct the scaffolding required to access the 30 feet tall ceiling in this gallery-to-be. The plaintiff alleged that while descending the scaffolding, an uneven rise and accumulated sheetrock dust on the stairs caused him fall down the stairs and down the side of scaffolding, and ultimately land on a pile of debris 12-16 feet below.
In New York County Supreme Court, the plaintiff filed a note of issue before the defendants' depositions. The court’s Part Rules required summary judgment motions to be filed within 30 days after the filing of a Note of Issue. To comply with the court’s Rules, 24 West and ATNY moved for summary judgment. The court struck the Note of Issue, but also denied the summary judgment motion from 24 West and ATNY. In addition to finding an outstanding question of fact, the court stated, “summary judgment is also premature, as discovery is still outstanding . . . . it is clear to this Court that until such time as all discovery is complete, including all party deposition [sic], the dispositive motions must be denied.”
Depositions were conducted, and the plaintiff filed another Note of Issue. Within 30 days of the second Note of Issue, 24 West and ATNY again moved for summary judgment dismissing the plaintiff’s Labor Law § 200 and common law negligence claims. The court denied their second motion for summary judgment, stating it did “not grant movants leave to interpose new dispositive motions upon completion of discovery.”
On appeal, 24 West and ATNY argued that the plaintiff’s premature Note of Issue forced their hand, requiring them to move for summary judgment before depositions were complete. They also argued that the court’s order denying their first summary judgment motion implicitly granted them leave to renew upon completion of discovery. The First Department agreed with 24 West and ATNY. Although the Court explained that successive motions for summary judgment generally require leave from the court unless justified by newfound evidence, the Court found that leave to renew had been implicitly given.
The First Department noted that neither 24 West nor ATNY could argue that their second motions were based on new evidence. The first summary judgment motion was supported by affidavits from managers at each company, and the second summary judgment motion was supported by transcripts from the depositions of the same managers. Although the presentation of evidence had changed, the affidavits and deposition testimony essentially averred the same thing: 24 West and ATNY did not control or direct the work.
The First Department based its decision on two factors. First, in its order denying 24 West and ATNY’s first motion for summary judgment, the trial court stated, “until such time as all discovery is complete, including all deposition[s], the dispositive motions must be denied.” According to the First Department, this statement implied that the court would entertain dispositive motions upon the completion of discovery. Secondly, the Court said that this result was consistent with the fact that the court’s Part Rules required 24 West and ATNY to make their first summary judgment within 30 days of the filing of a Note of Issue. By filing their first motion for summary judgment when they did, 24 West and ATNY were simply attempting to comply with the court’s 30 day deadline, triggered by the plaintiff’s premature Note of Issue  Thanks to Evan King for his contribution.  Please email <a href="">Brian Gibbons</a> with any questions.

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