The following papers numbered 1 to 12 read on this motion by plaintiff Mark Flynn (plaintiff) for an order restoring this matter to the trial calendar pursuant to CPLR 3216, for an extension of plaintiff’s time to file the note of issue nunc pro tunc, and for partial summary judgment, pursuant to CPLR 3212 (c), on the issue of liability on his causes of action brought under Labor Law §§240 (1) and 241 (6), with costs and disbursements.Papers NumberedNotice of Motion-Affidavits-Exhibits 1-4Answering Affidavits-Exhibits 5-10Reply Affidavits 11-12
*1 Upon the foregoing papers it is ordered that the motion is determined as follows:This is an action to recover damages for personal injuries that plaintiff allegedly sustained on October 1, 2008, due to alleged violations of Labor Law §§200, 240 (1), 241 (6), and common-law negligence. Plaintiff has alleged that while he was working at premises located at 858 Fulton Street, in Kings County, he fell from a scaffold, to the ground below. Defendant Greene Development Group LLC (Greene), was allegedly the owner of the subject premises. Plaintiff has alleged that defendants Capital One Bank (USA), N.A., Capital One Financial Corporation and Capital One, N.A., while doing business as Capital One Bank (collectively referred to as Capital One Bank), was a tenant at the subject premises that hired JT Magen & Co., Inc. (JT Magen), pursuant to a written agreement, to act as the general contractor for the work being performed at the time of the subject accident. JT Magen allegedly hired third-party defendant A-VAL Architectural Metal Corp. (A-VAL), to perform certain work at the premises and plaintiff was an employee of A-VAL.As is relevant upon the instant motion, the procedural history of this action is as follows: Plaintiff commenced this action in or around January 2009, against Greene and JT Magen. In or around July 2009, JT Magen subsequently commenced a third-party action against A-VAL. In or around November 2009, plaintiff commenced a separate action against Capital One Bank. Pursuant to a court order dated June 7, 2010, and filed on June 17, 2010, the two main actions, along with the third-party action, were consolidated. In an order dated March 19, 2012, and filed on March 26, 2012, plaintiff’s note of issue was vacated and instant case was marked off-calendar due to outstanding disclosure.Plaintiff has now moved, pursuant to CPLR 3216, to restore this action to the trial calendar. Defendants have not opposed this branch of plaintiff’s motion. The Note of Issue in this matter was stricken due to significant outstanding disclosure on March 19, 2012. Since no 90-day notice pursuant to CPLR 3216 was served, and since the additional disclosure has taken place, plaintiff is entitled to the relief sought on this branch of his motion (see Gorski v. St. John’s Episcopal Hosp., 36 AD3d 757 [2d Dept 2007]; Klevanskaya v. Khanimova, 21 AD3d 350 [2d Dept 2005]).
