Aguaisa v 33 E. 22nd St. Acquisition, LLC 2025 NY Slip Op 30174(U) January 16, 2025 Supreme Court, New York County Docket Number: Index No. 150695/2022 Judge: Mary V. Rosado Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [FILED: NEW YORK COUNTY CLERK 01/17/2025 10:41 AM] INDEX NO. 150695/2022 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 01/17/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY
PRESENT: HON. MARY V. ROSADO PART 33M Justice ---------------------------------------------------------------------------------X INDEX NO. 150695/2022 CARLOS AGUAISA, MOTION DATE 06/27/2024 Plaintiff, MOTION SEQ. NO. 003 - V-
33 EAST 22ND STREET ACQUISITION, LLC ,33 EAST 22ND STREET TENANTS CORP., BU LADO GENERAL DECISION + ORDER ON CONTRACTORS CORP ., EAST 22ND ST. ACQUISITION HOLDINGS LLC,KINGS GROUP NY CORP., MOTION
Defendant. -------------------------------------------------------------------------------X
BULADO GENERAL CONTRACTORS CORP. Third-Party Index No. 595289/2022 Plaintiff,
-against-
PRO SOLUTION CONSTRUCTION CORP .
Defendant. --------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 003) 94, 95, 96 , 97, 98, 99, 100,101,102,103, 104,105, 106,107,108, 109, 110, 11 1, 112, 113,114, 115, 116, 118, 119, 120, 121 , 122, 123, 124, 125, 126 were read on this motion to/for JUDGMENT - SUMMARY
Upon the foregoing documents, and after a final submission date of September 17, 2024,
Plaintiff Carlos Aguaisa' s ("Plaintiff") motion for summary judgment on his Labor Law § 241 (6)
claim and dismissing the affirmative defense of comparative negligence is granted in part and
denied in part.
L Background
This is an action for personal injuries sustained by Plaintiff Carlos Aguaisa ("Plaintiff") on
July 16, 2020 while working for Third-Party Defendant Pro Solution Construction Corp ("Pro
150695/2022 AGUAISA, CARLOS vs. 33 EAST 22ND STREET ACQUISITION, LLC ET AL Page 1 of 4 Motion No. 003
[* 1] 1 of 4 [FILED: NEW YORK COUNTY CLERK 01/17/2025 10:41 AM] INDEX NO. 150695/2022 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 01/17/2025
Solution") at a building located at 33 East 22nd Street, New York, New York (the "Premises").
While working at the Premises, Plaintiff took orders from the owner of Pro Solution, Emilio Paz
(NYSCEF Doc. 74 at 44). Plaintiff was injured while using a saw provided by Pro Solution.
Plaintiff seeks summary judgment on his Labor Law § 241 (6) claim and seeks dismissal of
Defendants' affirmative defense alleging comparative negligence. Plaintiff alleges he is entitled to
summary judgment on his Labor Law§ 241(6) claim predicated on a violation of 12 NYCRR 23-
l.12(c)(l).1
II. Discussion
"Summary judgment is a drastic remedy, to be granted only where the moving party has
tendered sufficient evidence to demonstrate the absence of any material issues of fact." (Vega v
Restani Const. Corp., 18 NY3d 499, 503 [2012]). The moving party's "burden is a heavy one and
on a motion for summary judgment, facts must be viewed in the light most favorable to the non-
moving party." (Jacobsen v New York City Health and Hasps. Corp., 22 NY3d 824, 833 [2014]).
Once this showing is made, the burden shifts to the party opposing the motion to produce
evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact
which require a trial (See e.g., Zuckerman v City ofNew York, 49 NY2d 557, 562 [1980]).
As held by the Court of Appeals, Labor Law § 241 (6) imposes a non-delegable duty upon
an owner and general contractor to "respond in damages" if a worker engaged in construction is
injured due to inadequate safety and protection, even if the worker sustains an injury because of
another party's negligence (Rizzuto v L.A. Wenger Contracting Co., 91 NY2d 343, 350 [1998]). A
general contractor is not absolved of liability for lack of notice of a dangerous condition or for lack
1 This section of the industrial code, which governs power driven saws, requires all saws to have "a movable self- adjusting guard below the base plate which will completely cover the saw blade to the depth of the teeth when such saw blade is removed from the cut."
150695/2022 AGUAISA, CARLOS vs. 33 EAST 22ND STREET ACQUISITION, LLC ET AL Page 2 of 4 Motion No. 003
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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]).
Here, it is undisputed that Bulado was the general contractor and 33 East 22nd Street Tenants
Corp. owned the property, making them proper Labor Law§ 241(6) defendants. Moreover, it is
undisputed that Plaintiff was engaged in construction when he was injured due to an inadequate
blade guard on a circle saw, which constitutes a violation of 12 NYC RR 23-1.12(c)( 1) (Alameda-
Cabrera v Noble Elec. Contracting Co., Inc., 117 AD3d 484 [1st Dept 2014]). In opposition,
Defendants have failed to raise a material issue of fact. Simply because Plaintiff is the only witness
to provide testimony on his accident is no bar to summary judgment (Dyszkiewicz v City of New
York, 194 AD3d 444 [1st Dept 2021]; Erkan v McDonald's Corp., 146 AD3d 466 [1st Dept 2017]).
This is especially the case where Defendants have failed to produce any evidence which would
call Plaintiffs credibility into question (Milligan v Tutor Perini Corp., 191 AD3d 437 [1st Dept
2021]; Ortiz v Burke Ave. Realty, Inc., 126 AD3d 577 [1st Dept 2015]).
Although Defendants argue they should be afforded the opportunity to subpoena the testimony
of Mr. Paz, they waited until after Plaintiff filed his motion for summary judgment to issue that
subpoena and have failed to seek his deposition despite multiple conferences with this Court.
Defendants have been on notice of Mr. Paz's existence for many months and cannot now subpoena
him to delay summary judgment. Defendants only offer speculative arguments that Mr. Paz's
testimony would raise an issue of fact (see, e.g. Erkan v McDonald's Corp., 146 AD3d 466 [1st
Dept 201 7]). Therefore, summary judgment on Plaintiffs Labor Law § 241 ( 6) claim is granted as
to Defendants Bulado and 33 East 22nd Street Tenants Corp.
The motion is denied as to Kings Group since it was dismissed from this case in motion
sequence 002. Moreover, Plaintiff has not met his prima facie burden in showing that Defendants
150695/2022 AGUAISA, CARLOS vs. 33 EAST 22ND STREET ACQUISITION, LLC ET AL Page 3 of 4 Motion No. 003
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33 East 22nd Street Acquisition LLC and East 22nd St. Acquisition Holdings LLC are proper
Labor Law defendants. Likewise, the Court finds that Plaintiff has not met his prima facie burden
in dismissing Defendants' affirmative defense of comparative negligence (McLean v Wical Realty
Corp., 182 AD2d 554 [1st Dept 1992]).
Accordingly, it is hereby,
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Aguaisa v 33 E. 22nd St. Acquisition, LLC 2025 NY Slip Op 30174(U) January 16, 2025 Supreme Court, New York County Docket Number: Index No. 150695/2022 Judge: Mary V. Rosado Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [FILED: NEW YORK COUNTY CLERK 01/17/2025 10:41 AM] INDEX NO. 150695/2022 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 01/17/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY
PRESENT: HON. MARY V. ROSADO PART 33M Justice ---------------------------------------------------------------------------------X INDEX NO. 150695/2022 CARLOS AGUAISA, MOTION DATE 06/27/2024 Plaintiff, MOTION SEQ. NO. 003 - V-
33 EAST 22ND STREET ACQUISITION, LLC ,33 EAST 22ND STREET TENANTS CORP., BU LADO GENERAL DECISION + ORDER ON CONTRACTORS CORP ., EAST 22ND ST. ACQUISITION HOLDINGS LLC,KINGS GROUP NY CORP., MOTION
Defendant. -------------------------------------------------------------------------------X
BULADO GENERAL CONTRACTORS CORP. Third-Party Index No. 595289/2022 Plaintiff,
-against-
PRO SOLUTION CONSTRUCTION CORP .
Defendant. --------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 003) 94, 95, 96 , 97, 98, 99, 100,101,102,103, 104,105, 106,107,108, 109, 110, 11 1, 112, 113,114, 115, 116, 118, 119, 120, 121 , 122, 123, 124, 125, 126 were read on this motion to/for JUDGMENT - SUMMARY
Upon the foregoing documents, and after a final submission date of September 17, 2024,
Plaintiff Carlos Aguaisa' s ("Plaintiff") motion for summary judgment on his Labor Law § 241 (6)
claim and dismissing the affirmative defense of comparative negligence is granted in part and
denied in part.
L Background
This is an action for personal injuries sustained by Plaintiff Carlos Aguaisa ("Plaintiff") on
July 16, 2020 while working for Third-Party Defendant Pro Solution Construction Corp ("Pro
150695/2022 AGUAISA, CARLOS vs. 33 EAST 22ND STREET ACQUISITION, LLC ET AL Page 1 of 4 Motion No. 003
[* 1] 1 of 4 [FILED: NEW YORK COUNTY CLERK 01/17/2025 10:41 AM] INDEX NO. 150695/2022 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 01/17/2025
Solution") at a building located at 33 East 22nd Street, New York, New York (the "Premises").
While working at the Premises, Plaintiff took orders from the owner of Pro Solution, Emilio Paz
(NYSCEF Doc. 74 at 44). Plaintiff was injured while using a saw provided by Pro Solution.
Plaintiff seeks summary judgment on his Labor Law § 241 (6) claim and seeks dismissal of
Defendants' affirmative defense alleging comparative negligence. Plaintiff alleges he is entitled to
summary judgment on his Labor Law§ 241(6) claim predicated on a violation of 12 NYCRR 23-
l.12(c)(l).1
II. Discussion
"Summary judgment is a drastic remedy, to be granted only where the moving party has
tendered sufficient evidence to demonstrate the absence of any material issues of fact." (Vega v
Restani Const. Corp., 18 NY3d 499, 503 [2012]). The moving party's "burden is a heavy one and
on a motion for summary judgment, facts must be viewed in the light most favorable to the non-
moving party." (Jacobsen v New York City Health and Hasps. Corp., 22 NY3d 824, 833 [2014]).
Once this showing is made, the burden shifts to the party opposing the motion to produce
evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact
which require a trial (See e.g., Zuckerman v City ofNew York, 49 NY2d 557, 562 [1980]).
As held by the Court of Appeals, Labor Law § 241 (6) imposes a non-delegable duty upon
an owner and general contractor to "respond in damages" if a worker engaged in construction is
injured due to inadequate safety and protection, even if the worker sustains an injury because of
another party's negligence (Rizzuto v L.A. Wenger Contracting Co., 91 NY2d 343, 350 [1998]). A
general contractor is not absolved of liability for lack of notice of a dangerous condition or for lack
1 This section of the industrial code, which governs power driven saws, requires all saws to have "a movable self- adjusting guard below the base plate which will completely cover the saw blade to the depth of the teeth when such saw blade is removed from the cut."
150695/2022 AGUAISA, CARLOS vs. 33 EAST 22ND STREET ACQUISITION, LLC ET AL Page 2 of 4 Motion No. 003
2 of 4 [* 2] [FILED: NEW YORK COUNTY CLERK 01/17/2025 10:41 AM] INDEX NO. 150695/2022 NYSCEF DOC. 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]).
Here, it is undisputed that Bulado was the general contractor and 33 East 22nd Street Tenants
Corp. owned the property, making them proper Labor Law§ 241(6) defendants. Moreover, it is
undisputed that Plaintiff was engaged in construction when he was injured due to an inadequate
blade guard on a circle saw, which constitutes a violation of 12 NYC RR 23-1.12(c)( 1) (Alameda-
Cabrera v Noble Elec. Contracting Co., Inc., 117 AD3d 484 [1st Dept 2014]). In opposition,
Defendants have failed to raise a material issue of fact. Simply because Plaintiff is the only witness
to provide testimony on his accident is no bar to summary judgment (Dyszkiewicz v City of New
York, 194 AD3d 444 [1st Dept 2021]; Erkan v McDonald's Corp., 146 AD3d 466 [1st Dept 2017]).
This is especially the case where Defendants have failed to produce any evidence which would
call Plaintiffs credibility into question (Milligan v Tutor Perini Corp., 191 AD3d 437 [1st Dept
2021]; Ortiz v Burke Ave. Realty, Inc., 126 AD3d 577 [1st Dept 2015]).
Although Defendants argue they should be afforded the opportunity to subpoena the testimony
of Mr. Paz, they waited until after Plaintiff filed his motion for summary judgment to issue that
subpoena and have failed to seek his deposition despite multiple conferences with this Court.
Defendants have been on notice of Mr. Paz's existence for many months and cannot now subpoena
him to delay summary judgment. Defendants only offer speculative arguments that Mr. Paz's
testimony would raise an issue of fact (see, e.g. Erkan v McDonald's Corp., 146 AD3d 466 [1st
Dept 201 7]). Therefore, summary judgment on Plaintiffs Labor Law § 241 ( 6) claim is granted as
to Defendants Bulado and 33 East 22nd Street Tenants Corp.
The motion is denied as to Kings Group since it was dismissed from this case in motion
sequence 002. Moreover, Plaintiff has not met his prima facie burden in showing that Defendants
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3 of 4 [* 3] [FILED: NEW YORK COUNTY CLERK 01/17/2025 10:41 AM] INDEX NO. 150695/2022 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 01/17/2025
33 East 22nd Street Acquisition LLC and East 22nd St. Acquisition Holdings LLC are proper
Labor Law defendants. Likewise, the Court finds that Plaintiff has not met his prima facie burden
in dismissing Defendants' affirmative defense of comparative negligence (McLean v Wical Realty
Corp., 182 AD2d 554 [1st Dept 1992]).
Accordingly, it is hereby,
ORDERED that Plaintiffs motion for summary judgment is granted in part and denied in part;
and it is further
ORDERED that Plaintiffs motion for summary judgment on the issue ofliability on his Labor
Law§ 241(6) claim is granted against Defendants 33 East 22nd Street Tenants Corp. and Bulado
General Contractors Corp.; and it is further
ORDERED that Plaintiffs motion for summary judgment on the issue of liability on his Labor
Law§ 241(6) claim against Defendants Kings Group NY Corp., 33 East 22nd Street Acquisition
LLC and East 22nd St. Acquisition Holdings LLC is denied; and it is further
ORDERED that Plaintiffs motion for summary judgment seeking dismissal of Defendants'
affirmative defense alleging comparative negligence is denied; and it is further
ORDERED that within ten days of entry, counsel for Plaintiff shall serve a copy of this
Decision and Order, with notice of entry, on all parties via NYSCEF.
This constitutes the Decision and Order of the Court.
1/16/2025 DATE H N. MARY V. ROSADO, J.S.C.
~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE : INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
150695/2022 AGUAISA, CARLOS vs. 33 EAST 22ND STREET ACQUISITION, LLC ET AL Page 4 of 4 Motion No. 003
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