Buitrago v. 600 Broadway Partners LLC

2025 NY Slip Op 31256(U)
CourtNew York Supreme Court, New York County
DecidedApril 10, 2025
DocketIndex No. 158678/2020
StatusUnpublished

This text of 2025 NY Slip Op 31256(U) (Buitrago v. 600 Broadway Partners LLC) is published on Counsel Stack Legal Research, covering New York Supreme Court, New York County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Buitrago v. 600 Broadway Partners LLC, 2025 NY Slip Op 31256(U) (N.Y. Super. Ct. 2025).

Opinion

Buitrago v 600 Broadway Partners LLC 2025 NY Slip Op 31256(U) April 10, 2025 Supreme Court, New York County Docket Number: Index No. 158678/2020 Judge: Verna L. Saunders 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. INDEX NO. 158678/2020 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 04/10/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. VERNAL. SAUNDERS, JSC PART 36 Justice ---------------------------------------------------------------------------------X INDEX NO. 158678/2020 HENDERSON BUITRAGO and LUISA GOMEZ, MOTION SEQ. NO. _ _ _OO_l_ __ Plaintiffs,

- V- DECISION+ ORDER ON 600 BROADWAY PARTNERS LLC and MOTION MJM ASSOCIATES CONSTRUCTION LLC, Defendants. ------------------------------------------------------------------------------ ---X

MJM ASSOC IA TES CONSTRUCTION LLC, Third-Party Plaintiff, Third-Party Index No. 595053/2021 -against-

KJE CONSTRUCTION SERVICES INC., Third-Party Defendant. --------------------------------------------------------------------------------X

The fo11owing e-filed documents, listed by NYSCEF document number (Motion 001) 39, 40, 41, 42, 43, 44, 45, 46, 47,48,49,50,51,52,53,54,55, 56,65,66,67,68,69, 70, 71, 72, 73, 74, 75, 76 were read on this motion to/for SUMMARY JUDGMENT

This is an action to recover damages for personal injuries allegedly sustained by a construction worker on October 11, 2019, when, while working at a construction site located at 600 Broadway Avenue, New York, New York (the, "premises"), he fell from a temporary platform that shifted after being struck by an object.

Defendant/third-party plaintiff 600 Broadway Partners LLC ("Broadway") and MJM Associates Construction LLC ("MJM") (together, "defendants") now move, pursuant to CPLR 3212, for summary judgment dismissing the common law negligence and Labor Law§§ 200 and 241(6) claims against them and for summary judgment in favor of MJM on its third-party contractual indemnification and breach of contract for the failure to procure insurance claims against third-party defendant KJE Construction Services Inc. ("KJE"). 1

On the day of the accident, Broadway owned the premises. Broadway hired MJM as the general contractor for a project at the premises that entailed, inter alia, the demolition of the interior of the premises (the, "project"). MJM hired KJE to perform the interior demolition work. Plaintiff Henderson Buitrago ("plaintiff') was employed by KJE. 2

1 Labor Law§ 240(1) is pleaded, but not addressed on this motion. 2 Co-plaintiff Louisa Gomez's claims are not addressed in this motion. 158678/2020 BUITRAGO, HENDERSON vs. 600 BROADWAY PARTNERS LLC Page 1 of9 Motion No. 001

[* 1] 1 of 9 INDEX NO. 158678/2020 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 04/10/2025

Plaintiff testified that on the day of the accident, he was working at the premises. He was unaware of who employed him, though later he learned it was KJE (NYSCEF Doc. No. 45 at 46, plaintiff's ebt). His supervisors were "Armando" (id. at 38) and "Narcio" (id. at 46) (Narcio was later identified as "Marcio" by KJE's owner). 3 Marcio was a KJE employee (id. at 46). Plaintiff was paid by KJE (id. at 46). He was unfamiliar with Broadway and/or MJM.

Plaintiffs work included demolition, including removal of "the floors, the walls, the ceilings" (id. at 49). On the day of the accident, plaintiff and a coworker were assigned to "the third floor" of the premises (id. at 57). They were tasked by Marcio to "take down walls" (id. at 58) and remove "the rafters" (id. at 59). The rafters were "several layers of metal sheet" that "were a part of the roof' (id. at 61).

On the day of the accident, Marcio directed plaintiff to climb a 12-foot-tall ladder to reach an "OSHA plank" (the, "plank") (id. at 62) that was placed across joists that were approximately 12 feet above the floor (id. at 63). The joists were 16 inches apart (id. at 73). The plank was not secured to the joists (id. at 74). To remove the rafters, plaintiff would climb the ladder, stand on the plank and remove screws connecting the metal sheets of the rafters to the roof (id. at 64). Plaintiff would then "hit the rafters with a big hammer" to loosen it (id. at 69). Once loosened, he would then lower it to the floor below with the assistance of his coworker at the base of the ladder (id. at 69).

Prior to the accident, plaintiff and his coworker successfully removed eleven ( 11) rafters. While removing the twelfth (12 th ) rafter, he "hit [the rafter] once or twice, and immediately, the rafter fell and hit the OSHA plank, making it slide to the right" (id. at 72). This made plaintiff "lose [his] balance" causing him to "f[a]ll between the joist[s]" down to the floor below (id.at 72). The plank then fell and hit plaintiffs legs (id. at 72). Plaintiffs coworker, "Carlos." witnessed the accident (NYSCEF Doc. No. 46 at 15,plaintiff's second ebt).

Milton Sonne berg testified that on the day of the accident, he was employed by non-party ACHS Management Corp. ("ACHS"), a real estate management company. ACHS manages the premises. He confirmed that Broadway was the owner of the premises (NYSCEF Doc. No. 47 at 9-10, Sonne berg ebt). He confirmed that Broadway hired MJM as the "general contractor that was performing work" at the premises (id. at 12). He did not know who hired subcontractors. He was unfamiliar with KJE (id. at 36). He was unaware of the contents of any contracts between Broadway and MJM, or MJM and any subcontractors (id. at 19-20).

Jorman Rocha testified that on the day of the accident, he was an estimator for MJM. His duties included "collecting bids ... bid leveling [and] scope of work leveling" (NYSCEF Doc. No. 48 at 7, Rocha ebt). He conducted the estimate for the project. He was not involved in preparing the contract for the project (id. at 14). Rocha also testified that he was not involved in the project itself, though at the beginning of the project, he would visit the premises to view the progress. If he saw an unsafe condition, he had the authority to stop work (id. at 79), but he could not direct any worker on how to perform their work (id. at 80). Rocha testified that MJM was hired as a construction manager. He acknowledged that MJM was also the general

3 For clarity, herein, the court will refer to "Narcio" as "Marcio." 158678/2020 BUITRAGO, HENDERSON vs. 600 BROADWAY PARTNERS LLC Page 2 of9 Motion No. 001

2 of 9 [* 2] INDEX NO. 158678/2020 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 04/10/2025

contractor for the project (id. at 17). MJM's work on the project included the interior demolition of the first three floors of the premises, as well as the cellar and subcellar (id. at 13). MJM hired KJE to perform the demolition. At the time of the accident, KJE was the only subcontractor on site (id. at 24). Rocha learned of the accident shortly after it happened, when he received a telephone call informing him that there was "an incident on site and 9-1-1 was called" (id. at 21 ). He did not fill out an accident report, though he was aware that there was an accident report. Rocha was shown a two-page document which he identified as the accident report. He did not know if it was the entire report, or just a part of it (id. at 42). After he learned of the accident, he went to the premises and spoke with KJE's foreman. He learned that a worker was "carrying a piece of timber that fell on his foot" (id. at 25). He did not know if the foreman witnessed the accident. He later testified that the foreman told him that a worker had fallen, but he did not know where he fell or from how high (id. at 38).

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2025 NY Slip Op 31256(U), Counsel Stack Legal Research, https://law.counselstack.com/opinion/buitrago-v-600-broadway-partners-llc-nysupctnewyork-2025.