November 17, 2003.
Motions sequence numbers 013, 014 and 015 are consolidated herein for disposition
This action is for personal injuries sustained by plaintiff, when a chandelier suspended approximately 30 feet from the ceiling crashed down upon her. This court by order dated September 15, 2003, granted summary judgment dismissing certain claims and cross-claims against some of the defendants including Union Theological Seminary ("Seminary"), the owner of the lecture hall where the accident occurred, Focus Lighting, Inc. ("Focus"), the designer of the chandelier, Litemakers, Inc. ("Litemakers"), the manufacturer of the chandelier, and Venezia Bishop Partners, P.C., Jeff Venezia and Thomas Bishop (hereinafter collectively referred to as "Venezia Bishop"), the architect of the Project. Summaryj udgment was also granted to third-party defendant I.P. Group, Consulting Engineers ("IP Group"), a consulting engineer retained by Venezia Bishop, with respect to the mechanical systems and electrical distribution for the Project. Summary judgment, however, was denied to defendants, Scorcia Diana Associates ("Scorcia"), the general contractor, Bohemia Electric Corp. ("Bohemia"), the electrical subcontractor which installed the chandelier and Miro Vojar, the principal of Bohemia.
Motion number 013 is plaintiffs motion for an order granting leave to renew and reargue that portion of the court's prior order, which granted defendant Litemakers, Inc. ("Litemakers"), summary judgment dismissing this action as against it. The defendant Scorcia Diana Associates, Inc. ("Scorcia") cross moves for an order granting leave to renew and reargue and upon renewal and reargument granting it summary judgment and denying summary judgment to defendants Seminary, Focus, Litemakers and Venezia Bishop.
Motion number 014 is a motion by Scorcia for the identical relief sought in its above cross-motion. This motion was brought as the result of a procedural objection raised by one of the defendants, who argued a cross-motion cannot seek affirmative relief from a nonmoving party.
Motion number 015 is plaintiffs amended notice of motion seeking leave to renew and reargue as against all the defendants which were granted summary judgment and not limited to Litemakers.
Without addressing any of the alleged procedural deficiencies in the motions, the motions for leave to reargue is allegedly based upon this court overlooking existing facts. While this court believes that the motion papers argue the very question previously decided, this court, nevertheless, grants reargument and, upon reargument, adheres to the prior order.
(1) The Owner: Seminary
Seminary acted solely as a passive owner and did not direct, control or supervise the work of Scorcia or its subcontractors. The fact that the accident occurred approximately 4 ½ years after the hanging of the fixture is not evidence of owner's negligence, especially, where as here, plaintiffs own expert in his report states this accident was the result of Bohemia hanging the chandelier with a die-cast zinc coupling, which over time failed, instead of a steel pipe, which would have prevented this accident.
(2) The General Contractor: Scorcia
Scorcia's argument that this court is incorrect in finding that it was the general contractor of the Project, which included the installation of the subject chandelier, is not supported by the evidence. In any event, Scorcia subcontracted with Bohemia to hang the chandelier and under its contract with Seminary was responsible for supervising and directing the work of its subcontractors. Additionally, for at least one of three days, it was present and supervised Bohemia's work in hanging the chandelier.
(3) The Lighting Designer and Manufacturer: Focus and Litemakers
Focus and Litemakers did provide proper drawings and specifications for hanging the chandelier. The fact that the drawings and specifications did not indicate the material the pipe should be made of is immaterial as it has been established that industry practice is to use steel when no material is specified. These defendants were not contracted to furnish the supporting hardware for hanging the chandelier and there is no duty to provide the hardware merely because the general contractor contracted with an electrical subcontractor allegedly unfamiliar with industry standards. Neither Scorcia nor Bohemia ever consulted with the above defendants concerning the hanging of the chandelier.
The argument that the weight of the chandelier was underestimated by 20 pounds, even if true, is irrelevant. Plaintiffs expert conceded that the chandelier would not have fallen if a steel pipe had been used in the installation. Bohemia only requested the chandelier's weight in order to have the proper equipment available necessary to raise the chandelier to the ceiling and its deviation by using a zinc coupling, instead of a steel pipe, was not based upon its lack of knowledge of the actual weight of the chandelier.
(4) The Architect: VeneziaBishop
There is no evidence that Venezia Bishop supervised or controlled any operation by Scorcia or its subcontractors. As reflect in the agreement between Seminary and Scorcia, the general contractor was solely responsible for and had control over construction, methods, techniques, sequences and procedures, and for coordinating all portions of the Work under the Contract.
Even if Venezia Bishop was obligated under section 2.4.11 of its agreement with Seminary to exercise due care in approval of shop drawings, there is no evidence that Scorcia submitted the shop drawings, concerning the chandelier, to the architects for approval.
With respect to plaintiff and Scorcia seek leave to renew, such is based upon the report of plaintiffs expert Steven Kane, a professional safety engineer, dated June 17, 2003. This report was prepared while the original motion was subjudice. A review of this report does not differ significantly in substance from the affidavit Mr. Kane, submitted on the original motion, dated May 16, 2003. There is no justification for failing to present this report on the original motions, this action having been commenced in the year 2000, approximately three years prior to the motions for summary judgment. In any event, after reviewing this report, the court grants renewal and upon renewal adheres to the prior order.
This decision constitutes the order of the court.