Rubino v. 330 Madison Co., LLC, 150 A.D.3d 603 (N.Y. App. Div. 1st Dep't 2017). · Go Syfert
Rubino v. 330 Madison Co., LLC, 150 A.D.3d 603 (N.Y. App. Div. 1st Dep't 2017). Cases Citing This Book View Copy Cite
22 citation events (22 in the last 25 years) across 3 distinct courts.
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At page 604 Appellants, as owner and general contractor, may be held liable for violation of those provisions, even though they impose obligations on the employer, since they have a nondelegable duty to provide adequate safety protections12 citing cases1 citing court put it this way
  • Aguaisa v. 33 E. 22nd St. Acquisition, LLC, 2025 NY Slip Op 30174(U) (N.Y. Sup. Ct., New York Cty. 2025).
    NO. 128 RECEIVED NYSCEF: 01/17/2025 of an opportunity to cure the condition (Gallina v MTA Capital Construction Company, l 93 AD3d 414 [1st Dept 2021] citing Rubino v 330 Madison Co., LLC, 150 AD3d 603,604 [1st Dept 2017]).
  • De Paz v. LEMX Corp., 2025 NY Slip Op 30195(U) (N.Y. Sup. Ct., New York Cty. 2025).
    A general contractor is not absolved of liability for lack of notice of a dangerous condition or for lack of an opportunity to cure the dangerous condition (Gallina v MTA Capital Construction Company, 193 AD3d 414 [1st Dept 2021] citing Ru…
  • Macropoulos v. City of New York, 2024 NY Slip Op 50899(U) (N.Y. Sup. Ct., New York Cty. 2024). 2 cites
    (Appellants, as owner and general contractor, may be held liable for violation of those provisions, even though they impose obligations on the employer, since they have a nondelegable duty to provide adequate safety pro…)
  • Avant Capital 388 Broadway LLC v. 388 Broadway Owners LLC, 2024 NY Slip Op 30338(U) (N.Y. Sup. Ct. 2024).
    The branches of the cross-motions by Goldhagen, Ward and Leon against one another are denied as procedurally defective since neither application was against the party who made the original motion, namely Plaintiff (see CPLR §2215; Crawford…
  • Sutherland v. Tutor Perini Bldg. Corp., 2022 NY Slip Op 04228 (N.Y. App. Div. 1st Dep't 2022).
    He could not stop the work due to the rain or wait for the crane, because Phil Bernstock would not allow it, and directed him to continue working ( see Rubino v 330 Madison Co., LLC , 150 AD3d 603, 604 [1st Dept 2017]).
  • Henry v. Split Rock Rehab. & Health Care Ctr., LLC, 2022 NY Slip Op 03319 (N.Y. App. Div. 1st Dep't 2022).
    As for the proposed Labor Law § 241(6) claim, plaintiff identified a sufficiently specific Industrial Code provision which applies to owners, even though it imposes obligations on the employer ( Rubino v 330 Madison Co., LLC , 150 AD3d 603…
  • Peranzo v. WFP Tower D Co. L.P., 2022 NY Slip Op 00147 (N.Y. App. Div. 1st Dep't 2022).
    The motion court properly dismissed Titanium's contractual indemnification claims against Pier Head as there was no evidence that Pier Head was negligent in the performance of its contract with Titanium so as to trigger the indemnification…
  • Crawford v. 14 E. 11th St., LLC, 191 A.D.3d 461 (N.Y. App. Div. 1st Dep't 2021).
    The motion was not a true cross motion, since plaintiff did not move against Everett ( see Kershaw v Hospital for Special Surgery , 114 AD3d 75 , 87-88 [1st Dept 2013]), and did not raise issues "nearly identical" to those raised by plaint…
  • Haynes v. Boricua Vil. Hous. Dev. Fund Co., Inc., 2019 NY Slip Op 1838 (N.Y. App. Div. 1st Dep't 2019).
    As such, defendants have failed to raise an issue of fact as to whether they violated Industrial Code 12 NYCRR §§ 23-1.13(b)(3) and (4), and that such violation proximately caused plaintiff's injuries ( see Rubino v 330 Madison Co., LLC, 1…
  • Butler v. Marco Realty Assoc., LP, 2024 NY Slip Op 31230(U) (N.Y. Sup. Ct., New York Cty. 2024). 2 cites
    As such, QCC's motion is denied as untimely, without consideration of its merits (see Crawford v 14 E. 11th St., LLC, 191 AD3d 461 [1st Dept 2021] [denying a mislabeled cross motion as untimely without considering its merits as it did not…
Show 2 more citing cases
  • Butler v. Marco Realty Assoc., L.P., 2024 NY Slip Op 31230(U) (N.Y. Sup. Ct., New York Cty. 2024).
    As such, QCC's motion is denied as untimely, without consideration of its merits (see Crawford v 14 E. 11th St., LLC, 191 AD3d 461 [1st Dept 2021] [denying a mislabeled cross motion as untimely without considering its merits as it did not…
  • Gallina v. MTA Capital Constr. Co., 2021 NY Slip Op 02067 (N.Y. App. Div. 1st Dep't 2021). 2 cites
    Co. , 91 NY2d 343, 352 [1998]; see Rubino v 330 Madison Co., LLC , 150 AD3d 603, 604 [1st Dept 2017]).
Retrieving the full opinion text from the archive…
William Rubino Et Al., Respondents,
v.
330 Madison Company, LLC, Et Al., Appellants, and W5 Group LLC, Doing Business as Waldorf Demolition, Et Al., Respondents; 330 Madison Company, LLC, Et Al., Third-Party Plaintiffs-Appellants, v. Waldorf Demolition Et Al., Third-Party Defendants-Respondents, Et Al., Third-Party Defendant. (And Other Third-Party Actions.)
4111 110134/11 590378/12 590447/13.
Appellate Division of the Supreme Court of the State of New York.
May 25, 2017.
150 A.D.3d 603
Tom, Sweeny, Richter, Kapnick, Webber.
Cited by 21 opinions  |  Published

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered July 18, 2016, which, insofar as appealed from as limited by the briefs, granted plaintiffs’ motion for partial summary judgment on the Labor Law § 241 (6) claim as against defendants 330 Madison Company, LLC and Tishman Construction Corp. (collectively appellants), granted the motion of defendant Michael Mazzeo Electric Corp. (Mazzeo) for summary judgment dismissing appellants’ contractual and common-law indemnification and contribution claims against it, and granted the cross motion of defendant W5 Group LLC d/b/a Waldorf Demolition (Waldorf) for summary judgment dismissing appellants’ contractual indemnification claim against it, unanimously modified, on the law, to deny Waldorfs motion, and otherwise affirmed, without costs.

The court properly granted plaintiffs’ motion for partial summary judgment on the Labor Law § 241 (6) claim as against appellants. It is undisputed that violations of Industrial Code (12 NYCRR) § 23-1.13 (b) (3) and (4) proximately caused the[*604] injuries sustained by plaintiff when a metal part of his safety harness contacted a live electrical wire, known as a BX cable, which was hanging down from a drop ceiling of a building under renovation. Appellants, as owner and general contractor, may be held liable for violation of those provisions, even though they impose obligations on the employer, since they have a nondelegable duty to provide adequate safety protections (see Rivera v Ambassador Fuel & Oil Burner Corp., 45 AD3d 275 [1st Dept 2007]; Johnson v Ebidenergy, Inc., 60 AD3d 1419 [4th Dept 2009]). Appellants fail to point to any evidence that would support a finding that plaintiff was comparatively negligent, since he was acting pursuant to his foreman’s instructions and neither knew nor should have known that the cable was electrified, in the absence of any warnings, caution tape, or other such indications that workers should avoid the area (cf. Snowden v New York City Tr. Auth., 248 AD2d 235, 237 [1st Dept 1998]). Appellants’ assertion that they lacked notice of the presence of the exposed, electrified cable is ir-revelant, “[s]ince an owner or general contractor’s vicarious liability under section 241 (6) is not dependent on its personal capability to prevent or cure a dangerous condition” (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]).

The court properly dismissed appellants’ contractual and common-law indemnification and contribution claims against Mazzeo. Appellants’ theory that Mazzeo negligently installed the wiring in the area of the accident more than one year before the accident occurred is speculative, in light of other work performed by other subcontractors in the period following the completion of Mazzeo’s work (see Bernstein v City of New York, 69 NY2d 1020, 1021-1022 [1987]; see also Beckford v New York City Hous. Auth., 84 AD3d 441 [1st Dept 2011]; cf. Fiorentino v Atlas Park LLC, 95 AD3d 424, 427 [1st Dept 2012]).

The court should have denied as untimely Waldorf s cross motion for summary judgment dismissing appellants’ contractual indemnification claim against it without considering the merits, since the motion was filed after the applicable deadline and Waldorf failed to show good cause for the delay (see Brill v City of New York, 2 NY3d 648 [2004]). Waldorf s purported cross motion against appellants, nonmoving parties, was not a true cross motion (see Kershaw v Hospital for Special Surgery, 114 AD3d 75, 87-88 [1st Dept 2013]), and did not merely raise issues “nearly identical” to those raised by plaintiffs and Mazzeo in their timely motions (Maggio v 24 W. 57 APF, LLC, 134 AD3d 621, 628 [1st Dept 2015] [internal quotation marks omitted]).

Concur—Tom, J.P., Sweeny, Richter, Kapnick and Webber, JJ.