SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

592.1 

CA 15-01558 

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND CURRAN, JJ.

 

CARMEN J. FINOCCHI, JR., AND KIM 

ELAINE FINOCCHI, 

PLAINTIFFS-RESPONDENTS-APPELLANTS, 

 

V MEMORANDUM AND ORDER

LIVE NATION INC., AND CPI TOURING 

(GENESIS-USA), LLC, 

DEFENDANTS-APPELLANTS-RESPONDENTS.

 

GOLDBERG SEGALLA LLP, BUFFALO (MEGHAN M. BROWN OF COUNSEL), FOR

DEFENDANTS-APPELLANTS-RESPONDENTS. 

PAUL WILLIAM BELTZ, P.C., BUFFALO (WILLIAM QUINLAN OF COUNSEL), FOR

PLAINTIFFS-RESPONDENTS-APPELLANTS. 

 

Appeal and cross appeal from an order of the Supreme Court, Erie

County (Timothy J. Drury, J.), entered March 30, 2015. The order,

inter alia, denied in part the motion of defendants for summary

judgment dismissing the complaint, granted that part of the cross

motion of plaintiffs to amend their bill of particulars and granted in

part that portion of plaintiffs’ cross motion seeking sanctions

pursuant to CPLR 3126. 

It is hereby ORDERED that the order so appealed from is 

unanimously modified on the law by denying plaintiffs’ cross motion

insofar as it sought leave to amend the bill of particulars and

granting that part of defendants’ motion with respect to the Labor Law

§ 241 (6) claim in its entirety and dismissing that claim, and as

modified the order is affirmed without costs. 

Memorandum: Plaintiffs commenced this Labor Law and common-law

negligence action seeking damages for injuries allegedly sustained by

Carmen J. Finocchi, Jr. (plaintiff) when he attempted to load a socalled “Cadillac box” onto a truck following a September 2007 concert

by the band Genesis at HSBC Arena, which is owned by nonparty Western

New York Arena, LLC (hereafter, Arena). The box apparently contained

materials from the concert stage, which was being dismantled after the

concert. According to plaintiff, he had been instructed to hoist the

box onto the truck by hand, despite the fact that the box had been

taken off the truck with a forklift before the concert. When

plaintiff attempted to lift the box onto the truck, the weight of the

box shifted and it fell onto plaintiff, injuring him. Defendants

moved for summary judgment dismissing the complaint, and plaintiffs
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CA 15-01558 

cross-moved, inter alia, for leave to amend their bill of particulars

to add 12 NYCRR 23-2.1 (b) in support of the Labor Law § 241 (6)

claim. Plaintiffs also sought discovery sanctions pursuant to CPLR

3126 based on defendants’ failure to produce in a timely fashion the

contract between defendant CPI Touring (Genesis-USA), LLC (hereafter,

CPI), a subsidiary of defendant Live Nation Inc. (Live Nation) formed

specifically to promote the 2007 Genesis Tour, and Gentour, Inc.

(Gentour), the band’s corporate entity for the tour. Supreme Court

granted that part of defendants’ motion for summary judgment

dismissing the Labor Law § 241 (6) claim based on the inapplicability

of the Industrial Code regulations on which plaintiffs relied in their

bill of particulars, but the court granted that part of plaintiffs’

cross motion for leave to amend their bill of particulars to assert an

additional Industrial Code violation, and thus the Labor Law § 241 (6)

claim was not dismissed in its entirety. The court also granted

plaintiffs’ cross motion insofar as it sought discovery sanctions

pursuant to CPLR 3126 by precluding defendants from using the contract

between CPI and Gentour in furtherance of their motion for summary

judgment dismissing the complaint. Defendants appeal, and plaintiffs

cross-appeal.

Initially, although we agree with defendants that plaintiffs are

not entitled to equitable or judicial estoppel with respect to

defendants’ failure to produce the contract between CPI and Gentour in

a timely fashion, we reject defendants’ contention that we should

overturn the sanction imposed by the court for that failure pursuant

to CPLR 3126. We likewise reject plaintiffs’ contention on their

cross appeal that we should impose more severe sanctions. A sanction

for disclosure noncompliance “will remain undisturbed unless there has

been a clear abuse of discretion” (Merrill Lynch, Pierce, Fenner &

Smith, Inc. v Global Strat Inc., 22 NY3d 877, 880), and we perceive no

such abuse of discretion here.

We also reject defendants’ contention that the court erred in

denying that part of their motion for summary judgment seeking

dismissal of plaintiffs’ common-law negligence/Labor Law § 200 and

Labor Law § 240 (1) claims. With respect to the common-law

negligence/Labor Law § 200 claim, where, as here, the accident

involves only the manner in which the work was performed, CPI could be

liable if it exercised supervision or control over the injuryproducing work (see generally Ross v Curtis-Palmer Hydro-Elec. Co., 81

NY2d 494, 505). To the extent that defendants rely on the contract

between Gentour and CPI, defendants were, as noted above, properly

precluded from using that contract in furtherance of their instant

motion. In any event, the contract between the Arena and CPI, the

contract between the Arena and plaintiff’s union (with which CPI was

contractually obligated to comply), and section 1.7 of the contract

between CPI and Gentour, read together, provided CPI with the

authority and obligation to supervise and control the injury-producing

work, and there are questions of fact on this record whether CPI

actually exercised such supervision and control. 

With respect to the Labor Law § 240 (1) claim, defendants’

contention that plaintiffs abandoned that claim based on their
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CA 15-01558 

responses in their bill of particulars is improperly raised for the

first time on appeal (see Ciesinski v Town of Aurora, 202 AD2d 984,

985). We also reject defendants’ contention that CPI is not an entity

that may be liable under section 240 (1). Because CPI was a licensee

of the Arena and had the authority to supervise and control the

injury-producing work, it may be liable under that statute (see

Grilikhes v International Tile & Stone Show Expos, 90 AD3d 480, 483;

Fisher v Coghlan, 8 AD3d 974, 975-976, lv dismissed 3 NY3d 702). 

Contrary to defendants’ further contentions, we conclude that there

are issues of fact whether the work being performed by plaintiff at

the time he was injured was ancillary to the demolition of the stage,

a structure (see Seemueller v County of Erie, 202 AD2d 1052, 1052; see

generally Scally v Regional Indus. Partnership, 9 AD3d 865, 867), and

whether plaintiff’s injuries are within the ambit of section 240 (1)

because they are “the direct consequence of a failure to provide

adequate protection against a risk arising from a physically

significant elevation differential” (Runner v New York Stock Exch.,

Inc., 13 NY3d 599, 603). 

We agree with defendants, however, that the court erred in

granting that part of plaintiffs’ cross motion that sought permission

to amend their bill of particulars to assert 12 NYCRR 23-2.1 (b) in

support of their Labor Law § 241 (6) claim. We therefore modify the

order by denying that part of plaintiffs’ cross motion and granting

that part of defendants’ motion for summary judgment dismissing the

Labor Law § 241 (6) claim in its entirety. Although that regulation,

which deals with the disposal of debris, is sufficiently specific to

support a section 241 (6) claim (see DiPalma v State of New York, 90

AD3d 1659, 1661), it is inapplicable to the facts of this case. We

note that plaintiffs have abandoned that portion of their cross appeal

contesting the dismissal of the section 241 (6) claim by failing to

address that part of the order in their brief on appeal.

Entered: July 1, 2016 Frances E. Cafarell

Clerk of the Court