Calvo v Hylan Plaza 1339, LLC 2024 NY Slip Op 31578(U)
May 2, 2024
Supreme Court, Kings County Docket Number: Index No. 518045/20 Judge: Ingrid Joseph
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: KINGS COUNTY CLERK 05/03/2024 10:51 AM INDEX NO. 518045/2020 NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 05/03/2024
lAS Term,
At an IAS of the Supreme Part 83 of
Term, Part Supreme Court of Court State of
of the State New York, of New held in and York, held
County of
for the County Kings, at the Courthouse, of Kings, Courthouse, at 360 Adarps Street,
360 Ada.rps New York, Brooklyn, New
Street, Brooklyn, York, ~ay a y o
the ~ on the 2024. ;_ · of~,f ~ • 2024.
PRESENT: PRESENT:
HON. INGRID JOSEPH, HON. INGRID JOSEPH,
Justice. Justice.
--------------------------------------------------. -------------------X --------------------------------------------------_._-------------------)( AMILCAR ZACARIAS AMILCAR ZACARIAS CAL CALVO,VO,
Plaintiff, Plaintiff,
-against- -against- No.: 518045/20 Index No.: . Index 518045/20
HYLAN PLAZA 1339, HYLAN PLAZA LLC., and 1339, LLC., HUDSON MERIDIAN and HUDSON MERIDIAN
CONSTRUCTION GROUP, LLC, CONSTRUCTION GROUP, LLC,
Defendants. Defendants.
----------------------- ---- . ----------- . ----------------------------X -----------------------------------------------------------------------)( DECISION & ORDER DECISION ORDER
HUDSON MERIDIAN HUDSON GROUP LLC, CONSTRUCTION GROUP
MERIDIAN CONSTRUCTION LLC,
Third-Party Plaintiff, Third-Party Plaintiff,
-against- -against-
BUILDER SERVICES GROUP, BUILDER SERVICES d/b/a TRUTEAM INC. d/b/a
GROUP, INC. TRUTEAM COMMERCIAL SERVICES, A TOPBUILD COMMERCIAL SERVICES, TOPBUILD COMPANY, COMPANY,
Third-Party Defendant. Third-Party Defendant.
-------------------------------------------------------------~-- -------X -------------------------------------------------------------~---------)( following e-filed
The following read herein:
papers read
e-filed papers herein: NYSCEF Doc NYSCEF Nos.:
Doc Nos.:
Notice of Notice Show Cause/ Motion/Order to Show of Motion/Order Cause/ Petition/Cross Motion and Petition/Cross Motion and Affidavits Annexed _ _ _ _ _ _ __ (Affirmations) Annexed
Affidavits (Affirmations) 96-97, 104 79-81, 96-97, 79-81,
Opposing Affidavits (Affirmations ) _ _ _ _ _ Opposing Affidavits (Affirmations)_· __ ~ __ 112, 116, 117-118 112,116,117-118
Affidavits/ Affirmations Affidavits/ Reply _ _ _ _ _ _ __ Affirmations in Reply 120
foregoing papers,
Upon the foregoing Upon plaintiff Amilcar papers, plaintiff Calvo (plaintiff)
Zacarias Calvo
Amitcar Zacarias moves for an · (plaintiff) moves
order, pursuant order, pursuant to CPLR 3212, granting CPLR 3212, partial summary granting partial judgD1ent in his favor summary judgment respect to with respect
favor with
Labor Law
liability on his Labor liability 99 240 Law §§ and 241 (6) causes 240 (1) and action as against of action
causes of defendant Hylan against defendant Hylan
Plaza LLC (Hylan Plaza 1339, LLC Plaza) and defendant/third-party (Hylan Plaza) defendant/third-party plaintiff Hudson Meridian plaintiff Hudson Meridian
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Construction Construction Group, LLC (Hudson Group, LLC Meridian) (c6llectively (Hudson Meridian) (c6llectively referred referred to as defendants)
defendants) (motion.,
(motion
l •~
sequence number 2). Defendants sequence number Defendants .move move for an ordir,
ord~r, pursuapt
pursuapt to CPLR
CPLR 3212,
3212, granting
granting summary''
summary
:lI i~ judgment dismissing judgment dismissing the complaint complaint against
against them
them (tjlotion
(motion sequence
sequence number
number 3).
"
I
In this
this action premised upon action premised upon common-law common-law negligence violations of negligence and violations of Labor Labor Law ~~"
Law §§ J
- .. _- ----- _ ..._--_.
200, 200, 240 (1) and 241 (6), plaintiff plaintiff alleges that,a,I on July alleges that, July 8, 2020, 2020, he suffered
suffered injuries
injuries while'!
while·.
:I'I ~
preparing preparing to spray
spray foam
foam fireproofing material °:nto fireproofing material ~nto steel steel beams located in the ceiling beams located ceiling of of a
commercial building being commercial building being constructed constructed in Staten Island, New Staten Island, New York.
York. The
The premises
premises at issue
issue was
was, i
. . 'I'i
owned owned by Hylan Plaza, 11 which Hylan Plaza, which hired hired Hudson
Hudson Meridian construction manager/general Meridian as a construction manager/general contractor contractor for a project
project involving
involving the constructio~ construction of
of a strip mall.22 Hudson strip mall. Hudson Meridian, Meridian, in tum,
tum,
subcontracted subcontracted with third-party · defendant with third-party' Buil,der Services defendant Bui~der Services Group, Group, Inc.,
Inc., d/b/a
d/b/a Truteam
Truteam
Commercial Commercial Services,
Services, a Topbuild
Topbuild Company
Company (Truteam),
(Truteam), to perform
perform spray-on fireproofing work spray-on fireproofing work ;,iJ .
on, among
among other
other things,
things, the newly installed ste~l.
newly installed steb1. Plaintiff Plaintiff was employed
employed by Truteam
Truteam as a I
sprayer. sprayer.
I
According to plaintiffs According plaintiffs deposition deposition testiniony,
testimony, on the date
date of
of the accident,
accident, Dominic,
Dominic.
Colavito, Colavito, a Truteam
Truteam employee
employee and plaintiffs supervisor, and plaintiffs supervisor, dire.cted dire'cted him assemble a baker's him to assemble baker's . " !I
scaffold scaffold to stand
stand on while
while he sprayed
sprayed fireproofing
fireproofing material_
material, onto beams in the ceiling onto beams ceiling of of one of·
of
ii,I
the buildings
buildings being
being constructed.
constructed. Plaintiff asserted, that Plaintiff asserteq that he connected connected all the
the hooks
hooks holding
holding the
.I . :1
platform platform onto the frame,
frame, inspected locked the!~wheels, inspected it, locked the,(wheels, and then then used A-frame ladder used an A-frame ladder to"
to .
;j
climb climb onto platform, which onto the platform, which was was six to seven'
seven!' feet above ground. Once above the ground. Once he was on the · .
platform, plaintiff platform, plaintiff noticed noticed that
that the platform
platform moved.
moved. Plaintiff,
Plaintiff, as a result,
result, climbed
climbed back down the ,
back down
ladder ladder and told
told Colavito
Colavito that platform just that the platform just moved, moved, but
but Colavito
Colavito told
told plaintiff continue plaintiff to continue
. .~-
i:.
, . '
working, working, stating,
stating, "let's
"let's go, let's
let's do this
this fast" (plaintiffs
fast" (plaintiffs
~. ~.
deposition, at 80,. ... Ins 24-25). deposition, 24-25). After"
After''
Ii~
plaintiff plaintiff climbed back onto climbed back onto the
the scaffold's platform:aa second scaffold's platform second time, but before time, but had brought before he had brought any
1
'I
of of the spray
spray equipment
equipment up with
with him
him or started
started work,ing, the platform worl?ng, the platform and scaffold scaffold collapsed
collapsed under
under .
him, and plaintiff him, plaintiff fell with with the
the scaffold
scaffold to the floor. ·Plaintiff also asserted 'Plaintiff also asserted that Colavito had that Colavito
inspected inspected the scaffold
scaffold after plaintiff constructed after plaintiff constructed it, although although its unclear from its unclear from plaintiff plaintiffss testimony
testimony
whether Colavito whether Colavito did so before before plaintiff
plaintiff reached
reached
.
theII platform
platform on ,his first
first and/or
and/or second
second time.
'I , ,,II
It is well
well established that the established that the party party moving
moving for summary
summary judgment
judgment must make a prima must make prima ,
facie showing
showing ofof entitlement judgment as a matter entitlement to judgment matter of of l~w,
law, tendering evidence to 'i sufficient evidence
tendering sufficient
.•,
1
IHylan Hylan Plaza conceded that Plaza conceded that it owned owned the
the premises
premises at issue
issue in :its
jts answer.'
answer.
The deposition The 22 deposition testimony testimony ofof Hudson
Hudson Meridian's
Meridian's witness
witness and
and its contract
contract with
with Hylan
Hylan Plaza
Plaza demonstrate
demonstrate that
that
Hudson Meridian Hudson Meridian acted
acted as the
the general
general contractor
contractor for
fortheprojett.
the project.
2
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demonstrate demonstrate the absence
absence of
of any material
material issues
issues of
of fact (Ayotte
(Ayotte v. Gervasio, 81 NY2d v. Gervasio, NY2d 1062, 1063 [1993), [1993], citing Alvarez v.
citing Alvarez Hospital, 68 Prospect Hospital, v. Prospect N\2d 320, 68N'X"2d 324 [1986);
320,324 Zapata v.
[1986]; Zapata Buitriago, 107 v. Buitriago,
AD3d AD3d 977 [2d Dept
Dept 2013)).
2013)). Once
Once a prima
prima facie showing
showing has been
been made,
made, the burden
burden shifts
shifts to the
party opposing party opposing the motion.
motion to produce
produce evidentiary
evidenti~ proof, in admissible proof, sufficient to admissible form, sufficient establish establish the existence
existence of
of material
material issues
issues of
of fact which
which require
require a trial
trial of
of the action.
action. (Zuckerman
(Zuckerman v.
v.
City of New York, 49 NY2d of New NY2d 557 [1980)).
[1980)).
Turning Turning first to plaintiffs plaintiffs Labor
Labor Law S 240 (1) cause Law § cause of
of action,
action, Labor
Labor Law S 240 (1)
Law §
imposes imposes a nondelegable
nondelegable duty upon owners, duty upon owners, general general contractors,
contractors, and
and their
their agents
agents to provide
provide
scaffolding scaffolding which
which is "so
"so constructed, placed and constructed, placed and operated operated as to give proper protection"
give proper protection" to employees employees using
using it. To make
make a prima
prima facie showing
showing of
of liabili_ty under Labor liability under Labor Law S 240 (1), a Law §
plaintiff must plaintiff must establish
establish that
that the
the statute
statute was·
was' violated
violated and that
that the violation
violation was
was a proximate
proximate cause·
cause'
ofplaintiffs ofplaintiffs injuries
injuries (see Debennedetto Chetrit, 190 AD3d Debennedetto v Chetrit, AD3d 933, 936 [2d Dept Dept 2021);
2021]; Cruz
Cruz v
Roman Catholic Roman Church of
Catholic Church of St. Gerard 174 AD3d Magel/a,!~174
Gerard Magel/a, AD3d 782, 783 [2d Dept Dept 2019)).
2019)). The
burden burden then
then shifts
shifts to the defendant
defendant to raise
raise a triabl_e
triable issue
issue of
of fact (see Bermejo
Bermejo v New
New York City
City
Health & Hosps. Health Corp., 119 AD3d Hasps. Corp., AD3d 500, 502 [20,14), dismissed 24 NY3d [20,14], Iv dismissed NY3d 1096 [2015)).
[2015)). A
plaintiffs comparative plaintiffs comparative negligence defense to a cause negligence is not a defense cause of of action under Labor
action under Labor Law S 240 Law §
(1) (see Blake
Blake v Neighborhood
Neighborhood Hous.
Haus. Servs. of NY City, 1 NY3d of NY NY3d 280, 286 [2003); Rapalo v [2003]; Rapalo
MJRB Kings MJRB Kings Highway
Highway Realty, LLC, 163 AD3d Realty, LLC, AD3d 10?3, 1O?3, 1024 [2d Dept
Dept 2018)).
2018)). However,.1where
However"lwhere a
plaintiffss actions plaintiff actions are the sole proximate cause sole proximate cause of
of his or her injuries,
injuries, liability
liability under
under Labor
Labor Law S
Law §
240 (1) does
does not
not attach
attach (see Robinson
Robinson v East
East Med LP, 6 NY3d Med Ctr., LP, NY3d 550, 554 [2006); Rapalo, [2006]; Rapalo,
163 AD3d
AD3d at 1024).
Here, Here, there
there is no dispute
dispute that
that Hylan
Hylan Pla~a, the owner
owner of
of the premises,
premises, and Hudson
Hudson
Meridian, Meridian, the general
general contractor,
contractor, are entities
entities that
that may
may be held
held liable
liable under
under Labor Law S 240 (1)
Labor Law§
(see Gordan
Gordan v Eastern Supply, 82 NY2d Eastern Ry. Supply, NY2d 555, 559-560 559-560 [1993); Jara v Costco [1993]; Jara Costco Wholesale Wholesale
Corp., 178 AD3d
AD3d 687,690
687,690 [2d Dept
Dept 2019);
2019]; see also McCarthy
McCarthy v Turner Inc., 17 NY3d Turner Constr:, Inc., NY3d 369, 374 [2011); Turner Constr. Co., 114 AD3d Pipia v Turner
[2011]; Pipia AD3d 424, 424, 427 [1st Dept
Dept 2014),
2014], Iv dismissed
dismissed
24 NY3d
NY3d 1216 [2015)),
[2015)), that plaintiffs fireproofing that plaintiffs fireproofing work work is work
work that
that is covered under section covered under section
240 (1) (se~ Belding v Verizon (sec Belding NY, Inc., 14 NY3d Verizon NY, NY3d 751, 752-753 752-753 [2010); Artoglou v Gene [2010]; Artoglou
Scappy Corp., 57 AD3d Realty Corp.,
Scappy Realty AD3d 460, 460, 461 [2d Dept
Dept 2008)),
2008)),33 and that plaintiff, at the time that plaintiff, time of of the
This fireproofing 3 This 3 fireproofing work
work was
was also
also ancillary
ancillary to the larger
larger construction project involving construction project involving the erection erection of
of the buildings
the buildings
(see Depass v Mercer (see Depass LLC, 219 Mercer Sq., LLC, 219 AD3d AD3d 801,
801, 802 [2d Dept
Dept 2023]).
2023]).
3
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accident, accident, was working
working at an elevation
elevation for purposes
purposes of
of section
section 240 (l) (see Data 240 (1) Doto v Astoria Astoria Energy
Energy
LLC, 129 AD3d
II, LLC, AD3d 660, 662 [2d Dept 660,662 Dept 2015]; Auriemma v Biltmore 2015]; Auriemma Biltmore Theatre, LLC, 82 AD3d Theatre, LLC, AD3d 1,
1,99
[1st Dept
Dept 2011]; Bradley v Morgan 2011]; Bradley Morgan Stanley CO.,'Inc., 21 AD3d Stanley & Co.,'lnc., AD3d 866, 867-868 [2d Dept 867-868 [2d Dept 2005],
2005],
__ -,.--. ___ -;._.______ _a_brogated_ pn other a.brogate4 (!n grounds Wrighten other grounds Wrighten v ZHN Corp., 3~ ZHN Contr. Corp., ..1~J?~d .HUJJ~sLRept 3~_:~J?~d _H)J_<) __[ist_ Qept iQQQ]).
~QQQ]).
Additionally, Additionally, through
through his testimony
testimony that
that the scaffold
scaffold and scaffold platform collapsed scaffold platform collapsed and caused caused
him to fall to the ground, plaintiff has demonstrated, ground, plaintiff prima facie, that demonstrated, prima that the the statute
statute was violated
violated
and that
that this violation
violation was
was a proximate cause of
proximate cause plaintiffs injuries of plaintiffs injuries (see Bialucha Bialucha v City of New
of New
York, 222 AD3d
AD3d 511, 511-512
511-512 [1st Dept
Dept 2023]; Hernandez v 767 Fifth 2023]; Hernandez Fifth Partners, LLC, 199 AD3d Partners, LLC, AD3d
484, 485 [1st Dept 484,485 Dept 2021]; Debennedetto, 190 AD3d 2021]; Debennedetto, AD3d at 936; Cruz, Cruz, 174 AD3d
AD3d at 783; Caban
Caban v
Corp., 153 AD3d
Plaza Constr. Corp., Plaza AD3d 488, 488, 489-490
489-490 [2d Dept
Dept 2017]).
2017]).
Contrary Contrary to defendants'
defendants' contentions,
contentions, the accident accident reports
reports relating
relating to the subject
subject incident
incident
do not demonstrate
demonstrate the existence existence of
of a factual
factual issue.
issue. In the report prepared for Truteam report prepared Truteam and dated dated
July 31, 2020,
2020, Colavito
Colavito stated,
stated, as is relevant
relevant here,
here, that, "Employee
"Employee was
was installing
installing a broken
broken
scaffold scaffold in [the] F building building fire pump
pump room.
room. He was on the platform, platform, about
about 4 feet up to install install the
safety safety guard
guard rail and as he went went to install
install the seco'nd guard, guard, the scaffold
scaffold slid down
down on one side
causing causing him
him to fall."
fall." Colavito
Colavito also made
made a similar
similar statement
statement in an accident
accident report prepared by the report prepared
project's project's site safety
safety manager.
manager. Assuming
Assuming that
that Colavito's
Colavito's statements
statements in the reports reports are admissible
admissible
(see Mayorquin
Mayorquin v Carriage House Owner's Carriage House Corp., 202 AD3d Owner's Corp., AD3d 541, 541 [1st Dept 541,541 Dept 2022]; Buckley.
2022]; Buckley
v JA. Jones/GMO, 38 AD3d
JA. Jones/GMO, AD3d 461, 461, 462-463
462-463 [1st Dept
Dept 2007]),
2007]),44 they
they actually
actually support plaintiff's support plaintiffs
entitlement entitlement to summary judgment since, summary judgment since, even even though
though Colavito' description of Colavito's s description of the accident accident is not
exactly exactly the same
same as plaintiff
plaintiff's,
s, he states
states that
that the _scaffold
scaffold was broken and that was broken that it slid down down
causing plaintiff to falL causing plaintiff fall, On the other other hand,
hand, Hudson:Meridian's
Hudson:Meridian's accident accident report
report does
does not
not appear
appear to
have. have, any evidentiary evidentiary value, value, since
since Jorge
Jorge Garcia,
Garcia, Hudson
Hudson Meridian's Meridian's general general
superintendent/project superintendent/project manager, manager, testified
testified at his deposition deposition that
that he did not
not witness accident.s5 witness the accident.
In opposing
opposing the motion,
motion, defendants
defendants also argue
argue that,
that, since plaintiff was since plaintiff was the. sole person person to
assemble assemble the scaffold,
scaffold, he must
must have
have misassembled
misassembled the scaffold, scaffold, and, as such,
such, there
there are at least
least
4
4 Plaintiff relied upon Plaintiff relied upon Colavito's Colavito's statements
statements in his opposition papers and may opposition papers may be deemed deemed to have
have waived
waived any
objection respect to their objection with respect their admissibility.
admissibility.; ;
The court 55 The court notes
notes that,
that, in contrast
contrast to the
the statements
statements by Colavito,
Colavito, plaintiff not rely plaintiff did not rely on Garcia's Garcia's statement
statement in his
papers. In addition, papers. addition, while while defendants
defendants submitted
submitted a copy
copy of Hudson Meridian's of Hudson Meridian's accident accident report
report and
and mentioned
mentioned
Garcia's Garcia's statement contained in it in defendants'
statement contained defendants' initial initial statement
statement ofof material
material facts
facts submitted
submitted in support
support of
of their
their
motion, motion, they made no argument they made argument that that Garcia's
Garcia's statement
statement supported
supported their position until their position until their reply papers.
their reply papers. Thus, while Thus, while
the accident report may accident report may properly properly be considered before the court, considered before plaintiff cannot court, plaintiff cannot be deemed have waived deemed to have waived an objection objection to the admissibility admissibility of
of the
the statement.
statement. . ·
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factual factual issues
issues as to whether
whether his actions
actions were
were the sole proximate
proximate cause
cause ·of
of the accident.
accident. The
existence existence of
of factual
factual issues
issues .as whether a
as to whether a plaintiff plaintiff was the
the. sole proximate
proximate cause
cause of
of the accident
accident
may may be shown
shown where
where a defendant
defendant presents
presents evidence
evidence that
that a plaintiff
plaintiff may
may have
have created
created the
the very
very
···- ~ ..__ -·· .._.. ~opC:i.iti~J?.
.copditi91.1.tpat caused the scaffold )~a:1 caused scaffold to colJap~e collapse (s~e.
(s?e Elibox
Elibpx v
y Nehemiah.
Nehemiah, Spring Cr..JV $p,:.ing. Cr. 1V Mixed
Mi;r:e<( .
. .
Income Hous. Dev. Fund Income Fund Co., Inc., Inc:, 219 AD3d
AD3d 906, 907 [2d Dept
Dept 2023]
2023] [evidence
[evidence that
that plaintiff
plaintiff
· removed
removed nails
nails securing
securing the
the plank
plank on which
which he stood]; Berenson v Jericho stood]; Berenson Dist., 33 AD3d Jericho Water Dist., AD'3d . . , '
574, 576 [2d Dept
Dept 2006]
2006] [evidence
[evidence that
that plaintiff,
plaintiff, or workers
workers he supervised,
supervised, placed
placed ·an
an inadequate
inadequate
plank plank onto
onto scaffold];
scaffold]; Storms
Storms v Dominican Coil. Of Dominican Coll. Blauvelt, 308 AD2d Of Blauvelt, AD2d 575, 576 576 [2d Dept
Dept 2003]
2003]
[plaintiff [plaintiff stepped
stepped on plank
plank from
from which
which he had just removed had just removed a bracket]; Heffernan v Bais bracket]; Heffernan Bais Corp., Corp.,
294 AD2d
AD2d 401,
401, 403 [2d Dept
Dept 2002]
2002] [plaintiff
[plaintiff failed
failed to replace plywood cover replace plywood cover over over two-bytwo
-byfours
]). fours]).
This This court,
court, however,
however, rejects
rejects defendants'
defendants' sole proximate cause sole proximate cause argument argument on the
the facts
presented here. presented here. Plaintiff, Plaintiff, in his own
own testimony,
testimony, stated
stated that
that he had properly attached had properly attached the the hooks
hooks for
the platform
platform and
and defendants,
defendants, in opposition, opposition, have
have oniy
only offered
offered their
their counsel's
counsel's speculative
speculative
assertion assertion that plaintiff must that plaintiff must be at fault because he assembled fault because assembled the the scaffold
scaffold (see Campbell
Campbell v 111
Chelsea Chelsea Commerce, L.P., 80 AD3d Commerce, L.P., AD3d 721, 722 [2d Dept Dept 2011]).
2011]). The
The fact that
that plaintiff
plaintiff was
responsible responsible for the assembly of the assembly of the scaffold, scaffold, however,
however, does
does not,
not, in and
and of
of itself
itself create
create an issue
issue of
of
fact (see Debennedetto,
Debennedetto, 190 AD3d
AD3d at 936)
936) and other
other courts
courts in cases
cases involving
involving identical
identical or related
related
facts, have
have rejected
rejected similar
similar conclusory
conclusory sole
sole proximate
proximate cause
cause arguments
arguments (see Bialucha,
Bialucha, 222 AD3d
AD3d ·
at 511-512; Hernandez, 199 AD3d 511-512; Hernandez, AD3d at 485; Cruz, 174 AD3d AD3d at 783; Bermejo,
Bermejo, 119 AD3d
AD3d at 502).
Moreover, Moreover, in view
view of
of plaintiff's
plaintiffs uncontradicted uncontradicted testimony
testimony that
that his supervisor
supervisor inspected
inspected his work
work
and directed
directed plaintiff
plaintiff to continue
continue using
using the scaffold
scaffold despite
despite being
being told
told that
that it was unsteady,
unsteady, any
error error in the
the assembly
assembly of
of the
the scaffold
scaffold would,
would, at most,
most, demonstrate
demonstrate comparative
comparative fault,
fault, which
which is not
not
a defense
defense to a Labor Law S 240 Labor Law§ 240 (1) cause cauSe ofact1on
of action (see Vicki v City City of Niagara Falls,
of Niagara Falls, 215 AD3d AD3d
1285, 1288 [4th Dept
Dept 2023]; Finocchi v Live 2023]; Finocchi Live Nation Nation Inc., 204 AD3d
AD3d 1432, 1433-1434
1433-1434 [4th Dept
Dept
2022]; Garces
Garces v Windsor Plaza, LLC, Windsor Plaza, LLC, 189 AD3d AD3d 539, 539 [1st Dept
Dept 2020]; Lojano v Soiefer 2020]; Lojano Soiefer
Realty Corp.,
Bros. Realty Corp., 187 AD3d AD3d 1160, 1163 [2d Dept
Dept 2020];
2020]; DeRose Bloomingdale 's Inc., 120 DeRose v Bloomingdale's 120
AD3d AD3d 41, 46-47
46-47 [1st Dept
Dept 2014]; Pichardo. v Aurora 2014]; Pichardo. Aurora Contrs., Inc., Inc., 29 AD3d
AD3d 879, 880-881
880-881 [2d
Dept Dept 2006];
2006]; cf
cf Gamez
Gamez v New
New Line
Line Structures
Structures & Dev., LLC,
LLC, 218 AD3d
AD3d 446,448
446, 448 [2d Dept
Dept 2023]
2023]
[[contradictory
contradictory evidence
evidence as to whethir
whether plaintiff
plaintiff performing
performing work
work ·in a manner
manner directed
directed by
supervisors]). supervisors]).
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Accordingly, defendants Accordingly, have failed defendants have failed to demonstrate •
den:o.nstrate the existence existence of
of a factual ,I
factual issue, ,.
issue, and i;' •
plaintiff is thus plaintiff thus entitled partial summary entitled to partial judgm,ent iri.
summary judgm.ent in his favor favor on the issue of
the issue of liability
liability with
with '
respect respect to his Labor Law S 240 (1) cause Labor Law§ cause of of action.
action. ·
With With respect
respect~oto ,El(i,intifr:s •-
plaintiff's Llib()E.La,,:J ---··········-
Labor Law §. 241 ((6} ----·--------
6) calls~
cause of -----
action, und~~}hat
?f,action, under that section, . --
section, an '
---•···· -- -- -· . __,. 7· . t
owner, owner, general
general contractor
contractor or their
their agent
agent may
may be held
held vicariously
vicariously liable·
liable" for injuries
injuries to a plaintiff
plaintiff
where the plaintiff where plaintiff establishes that the accident establishes that was proximately accident Was proximately caused caused by a violation
violation of
of an
Industrial Code Industrial Code section
section stating
stating a specific
specific positive command that is applicable positive c~mmandthat applicable to the facts of of the
case (Rizzuto case (Rizzuto v L.A. Wenger Wenger Contr. Co., 91 NY2d,343, NY2d:343, 349-350
349-350 [1998]; Honeyman v Curiosity [1998]; Honeyman Curiosity I:: 1.:
Works, Inc.,
Inc.,· 154 AD3d
AD3d 820, 821 [2d Dept
Dept 2017]).
2017]). Plaintiff,
Plaintiff, . in order
order to meet
meet ·his summary
summary ;::
judgment burden judgment burden on a section section 241 (6) cause
cause of
of action, required to demonstrate:
action, is required demonstrate: (I)
(1) a concrete
concrete
Industrial Industrial Code
Code section applied under section applied under .the ,the circumstances;
circumstances; (2) the defendants defendants or a contractor contractor or \' ·
subcontractor subcontractor within
within the chain
chain of the project
of the project violated that section's violated that section's specific specific commands;
commands; (3) this
this I !
violation alone, violation alone, or considered with other considered with other undisputed factual evidence, undisputed factual evidence, constitutes constitutes negligence;
negligence; and
(4) the violation
violation caused
caused plaintiff's injuries (see Bdzdaric plaintiffs injuries Bdzdaric v Almah Almah Partners
Partners LLC,
LLC, --- NY3d
NY3d ---,
2024 NY Slip Op 00847, 2024 NY 00847, *3 [2024]; Rizzuto, 91 NY2d [2024]; Rizzuto, NY2d at 351).
Here, Here, in moving,
moving, plaintiff relies on Industrial plaintiff relies Industrial Code Code (12 NYCRR) SS 23-5.1 (c) (1) and NYCRR) §§
,.23-5.1 23-5. I (e) ((1).
1). While
While plaintiff
plaintiff first alleged
alleged that
that these sections were
these sections were violated violated in his instant motion instant motion
papers and opposition papers papers, contrary opposition papers, contrary to defendants' contention, plaintiffs defendants' ,contention, belated allegation plaintiff's belated allegation '
that sections that 23-5.1 ((c)
sections 23-5.1 c) (1) and 23-5.1 ((e)
and 23-5.1 e) (1) were
were violated
violated is not
not a bar
bar to their
their consideration
consideration
- ~
~
since since the claimed violations do not claimed violations not involve involve any new
new factual
factual allegations,
allegations, raise
raise any new
new theories of
theories of
liability, liability, or cause prejudice to defendants cause prejudice defendants {see Simmons Simmons vvCity
City of New York, 165 AD3d o/New AD3d 725, 729 [2d Dept
Dept 2018]; Klimowicz v Powell 2018]; Klimowicz
.
Pmvell Cove Assoc ... LLC, Cove Assoc., .
LLC, 111 AD3d 605,
111 AD3d
.
605, 607 [2d Dept . ,
Dept 2013];
2013]; //
Ross v DD Ross DD 11th Ave., LLC, 11th Ave., LLC, 109 AD3d
AD3d 604, 606 [2dDept
604,606 2013]).
[2d,Dept 2013]).
With respect With respect to section
section 23-5.1 (c) (1), that t_hat section
section provides
provides that, "[e]xcept where that, "[e]xcept where
otherwise specifically otherwise provided in this specifically provided this Subpart, Subpart, all scaffolding
scaffolding shall
shall be so constructed
constructed as to bear
bear
four times
times the maximum
maximum weight
weight required
required to be dependent therefrom or placed dependent therefrom placed thereon thereon when
when in
use. (See
(See Labor Law, §S 240,
Labor Law, 240, subdivision subdivision 3.) Such
Such maximum
maximum weight shall be construed weight shall construed to mean mean
the sum of
of both
both dead
dead and
and live
live loads."
loads." The Appellate,
Appella.t~ Division,
Division, Second Department Second has found Department has found that'
that .'
... . '.
section section 23-5.1 (c) (1) is sufficiently sufficiently specific
specific to state
state ;,a
;,a section
section 241 (6) violation violation (see
Debennedetto, 190 AD3d Debennedetto, AD3d at 936;
936; Treu v Cappelletti,
Cappelletti, 71 AD3d
AD3d, 994, 998 [2d Dept
Dept 201
2010]).
O]). In 1
addition, based on the fact that addition, based that the scaffold scaffold failed
failed to support
support even
even plaintiff's
plaintiff's weight
weight and
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collapsed collapsed for some unexplained reason, some unexplained plaintiff has demonstrated, reason, plaintiff prima facie, that demonstrated, prima that the scaffold scaffold
unable to "bear
was unable "bear four
four times
times the maximum
maximum weight
weight ...
... [to be] placed
placed thereon
thereon when
when in use"
use" as is
required required by section
section 23-5.1
23-5.1 (c) (1), that
that Truteam
Truteam violated
violated the statute's
statute's specific
specific commands,
commands, and
that the scaffolds
scaffolds collapse
collapse was
was a proximate
proximate cause
cause of injuries (see Bazdaric, of his injuries Bazdaric, 2021 NY Slip Op 202~ NY
00847, Kristo v Board 00847, *3-5; Kristo Board of of Educ. of
of the City of NY, 134 AD3d of NY, AD3d 550, 551 [1st Dept 550,551 Dept 2015];
2015];
Faria v CLS Faria Project Solutions CIS Project Solutions Inc., 69 Misc Misc 3d 1222 [A], 2020 NY Slip Op 51464[U], 2020 NY 51464[U], *2-3 [Sup Ct, Queens
Queens County
County 2020]).
2020]). Contrary
Contrary to defendants'
defendants' contentions,
contentions, Colavito's
Colavito's statements
statements do not
demonstrate issue of demonstrate an issue of fact. Colavito's Colavito's statements
statements support plaintiffs contentions.
support plaintiffs contentions. In fact, Colavito's Colavito's statement
statement that plaintiff was atop the platform that plaintiff platform installing installing the second
second guardrail
guardrail
demonstrates demonstrates that plaintiff had that plaintiff had finished finished assembling rest of assembling the rest of the scaffold, scaffold, and Colavito'
Colavito's s
statement statement that
that the scaffold
scaffold slid
slid down
down while plaintiff was on it, demonstrates while plaintiff demonstrates that that the scaffold
scaffold was
unable unable to support plaintiffss weight support plaintiff weight - let alone alone four times
times the maximum
maximum weight.
weight. Plaintiff
Plaintiff is thus
entitled entitled to partial
partial summary judgment on his Labor summary judgment Law §S 241 (6) cause Labor Law cause of of action
action to the extent
extent
that it is premised
premised on section
section 23-5.1 (c) (1).
Regarding Regarding Industrial
Industrial Code NYCRR) §S 23-5.1 (e) (1), which Code (12 NYCRR) which requires, requires, among
among other
other
things, things, that
that scaffold planks "be
scaffold planks "be laid tight," plaintiffs testimony tight," plaintiffs testimony and and Colavito's
Colavito's statements
statements do not
eliminate eliminate factual
factual issues
issues as to whether
whether the collapse slipping of collapse or slipping of the scaffold scaffold was related
related to a
failure failure to lay planks
planks tight.
tight. Indeed,
Indeed, the record
record is not
not clear
clear if
if the scaffold platform, which scaffold platform, plaintiff which plaintiff
described described as being
being made
made up of
of wood
wood and metal,
metal, constituted planking within constituted planking within the meaning meaning of
of
section section 23-5.1 (e) (1). Defendants, Defendants, on the other
other hand,
hand, have
have not pointed to evidence not pointed evidence demonstrating demonstrating
that section
section 23-5.1 (e) (1) was was inapplicable
inapplicable or that
that the accident
accident was not
not proximately
proximately caused
caused by a
violation violation of
of that section (see Debennedetto, that section Debennedetto, 190 AD3d Klimowicz, 111 AD3d at 936; Klimowicz, 111 AD3d AD3d at 607;
Treu, 71 AD3d
AD3d at 998).
998). Accordingly, both plaintiff Accordingly, both plaintiff and defendants defendants have
have failed
failed to demonstrate
demonstrate the
absence of absence of factual
factual issues
issues with
with respect
respect to a violation
violation of
of section
section 23-5.1 (e) (1), and each each of
of their
their
motions motions with
with respect
respect to that
that section
section must
must thus
thus be denied.
denied.
On the other
other hand,
hand, defendants
defendants have demonstrated, demonstrated, prima
prima facie, that
that Industrial
Industrial Code
Code (12
NYCRR) SS 23-1.2 NYCRR) §§ 23-1.2 (b); 23-1.5 23-1.5 (a); 23-1.7
23-1.7 (a); 23-1.7
23-1.7 (b); 23-1.32;
23-1.32; 23-3.1;
23-3.1; 23-3.2;
23-3.2; 23-3.3;
23-3.3; 23-
4.1; 23-4.2;
23-4.2; 23-4.4,
23-4.4, the Industrial
Industrial Code
Code sections
sections identified plaintiff in his bill of identified by plaintiff particulars, do of particulars,
not state specific standards or are inapplicable specific standards inapplicable to the facts here.
here. Since plaintiff has abandoned Since plaintiff abandoned reliance on those reliance those sections sections by failing
failing to address them in his motion address them motion and and opposition papers,
opposition papers,
defendants defendants are entitled dismissal of entitled to dismissal of the section section 241 ((6)
6) cause
cause of
of action
action to the
the extent
extent that it is
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premised on those premised those sections sections (see Debennedetto, Debennedetto, 190 AD3d
AD3d at 936; Pita
Pita v Roosevelt
Roosevelt Union Free
Free
Dist., 156 AD3d
Sch. Dist., AD3d 833, 835 [2d Dept 833,835 Dept 2017]).
2017]).
Finally, Finally, defendants, who have defendants, who have submitted submitted evidence
evidence showing that the accident showing that was not accident was
caused by a dangerous caused bya dangerous property condition (see Przyborowski property condition Przyborowski v A&M A&M Cook, LLC,
LLC, 120 AD}4
AD?4 651, . ·-
652-653 652-653 [2d Dept 2014]; Ortega Dept 2014]; Ortega v Puccia, Puccia, 57 AD3d
AD3d 54, 61-63 [2d Dept
Dept 2008])
2008]) and that
that they
they did
not exercise
exercise more
more than
than general
general supervision
supervision and control
control over
over the injury
injury producing
producing work
work (see
Wilson v Bergan
Bergan Constr.
Constr. Corp., 219 AD3d
Corp., 219 AD3d 1380, 1383 [2d Dept Dept 2023]; Kefaloukis v Mayer, 2023]; Kefaloukis Mayer, 197 . . .
AD3d 470,471 AD3d 470, 471 [2d Dept
Dept 2021]; Lopez v Edge
2021]; Lopez Edge 11211, LLC, LLC, 150 AD3d 12is-1216 [2d AD3d 1214, 1215-1216
Dept Dept 2017]), have demonstrated 2017]), have their prima demonstrated their prima facie facie entitlement
entitlement to summary
summary judgment dismissing judgment dismissing
plaintiffs common-law plaintiffs common-law negligence negligence and Labor
Labor Law S 200 causes
biw § causes of
of action.
action. Since
Since counsel
counsel for
plaintiff, plaintiff, in the affirmation affirmation in opposition opposition to defendants'
defendants' motion,
motion, concedes
concedes that
that the facts in this -
case do not support
support either
either a cognizable
cognizable common-law
common-law negligence
negligence or section
section 200 claim,
claim, defendants
defendants
are entitled
entitled to dismissal of those dismissal of those causes causes of
of action.
action.
Accordingly, it is hereby Accordingly, hereby ORDERED, that Plaintiffs ORDERED, that motion (motion Plaintiffs motion (motion sequence number 2) is granted sequence number with respect granted with respect
to his Labor Law S 240
Labor Law§ 240 (1) caµse ca)lse of
of action
action and with
with respect
respect to his Labor Law S 241 (6) cause Labor Law§ cause of of
· action action to the extent
extent that
that it is premised
premised on Industrial
Industrial Code NYCRR) §S 23-5.1 (c) (1).
Code (12 NYCRR) (1) .. · Plaintiffs Plaintiff s motion
motion is otherwise
otherwise denied;
denied; and it is further further
ORDERED, that ORDERED, that Defendants'
Defendants' motion
motion (rrmtion
(motion sequence
sequence number
number 3) is granted
granted to the
extent that plaintiffs extent that plaintiffs common-law negligence and Labor common-law negligence Labor Law S 200 Law § 200 causes
causes of
of action
action are
dismissed dismissed and to the extent that plaintiff extent that plaintiffss Labor Labor Laws
Law § 241 ((6)
6) cause
cause of
of action
action is dismissed
dismissed with
with
respect respect to Industrial
Industrial Code
Code (12 NYCRR) SS 23-1.2 NYCRR) §§ 23-1.2 (b); 23-1.5 23-1.5 (a); 23'-l.7
23'"1.7 (a); 23-1.7
23-1.7 (b); 23-1.32;
23-1.32;
23-3.1; 23-3.1; 23-3.2;
23-3.2; 23-3.3;
23-3.3; 23-4.1;
23-4.1; 23-4.2;
23-4.2; 23-4.4.
23-4.4. Defendants'
Defendants' motion
motion is otherwise
otherwise denied.
denied.
This constitutes
constitutes the decision
decision and order
order of
of the court.
court.
ENTER ENTER
HON. HON. INGRI
INORI JOSEPH,
JOSEPH, J.S.C.
J.S.C.
Hon. Han. Ingrid
Ingrid Joseph
Joseph
Supreme Supreme Court
Court Justice
Justice
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