De Paz v. LEMX Corp.

2025 NY Slip Op 30195(U)

• Court: New York Supreme Court, New York County
• Decided: January 16, 2025
• Docket: Index No. 160251/2020
• Status: Unpublished

Opinion

De Paz v LEMX Corp. 2025 NY Slip Op 30195(U) January 16, 2025 Supreme Court, New York County Docket Number: Index No. 160251/2020 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 04:48 PM] INDEX NO. 160251/2020 NYSCEF DOC. NO. 171 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. 160251/2020 JOEL DE PAZ, MOTION DATE 04/08/2024 Plaintiff, MOTION SEQ. NO. 003 -v- LEMX CORP., 30 EAST 85TH STREET COMPANY, LLC,WALLACK MANAGEMENT, CO., INC.,THE BOARD OF MANAGERS OF THE 30 EAST 85TH STREET DECISION + ORDER ON CONDOMINIUM, THE 30 EAST 85TH STREET MOTION CONDOMINIUM,

Defendant. -----------------------------------------------------------------------X

LEMXCORP. Third-Party Index No. 595888/2021 Plaintiff,

-against-

PHOENIKS INC.

Defendant. --------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 003) 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 145, 146, 147, 148, 150, 151, 152, 153, 154, 155, 161, 163, 164, 165 were read on this motion to/for JUDGMENT - SUMMARY

Upon the foregoing documents, and after a final submission date of September 19, 2024,

Plaintiff Joel De Paz's ("Plaintiff') motion for summary judgment on the issue ofliability against

all Defendants on his Labor Law 241(6) claim is granted.

I. Background

This is an action for personal injuries sustained by Plaintiff on November 11, 2020 at 30

East 85th Street, New York, New York (the "Premises") (NYSCEF Doc. 123 at 37-8; 58). The

Premises are owned by the Defendant Board of Managers of the 30 East 85th Street Condominium 160251/2020 JOEL DE PAZ, vs. LEMX CORP., ET AL Page 1 of 4 Motion No. 003

[* 1] 1 of 4 [FILED: NEW YORK COUNTY CLERK 01/17/2025 04:48 PM] INDEX NO. 160251/2020 NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 01/17/2025

("Board") and the Premises were managed by Defendant Wallack Management Company

("Wallack Management") (NYSCEF Doc. 124). Defendant LEMX Corp. ("LEMX") was a general

contractor retained by the Board to conduct fac;ade repair work.

Plaintiff was working for Third-Party Defendant Phoeniks Inc., a subcontractor ofLEMX,

at the time of the accident (NYSCEF Doc. 126 at 45-46). When Plaintiff removed a metal pipe it

touched a live electrical wire, which sent shock waves through Plaintiffs body and made him fall.

Plaintiff testified he saw the loose wire after he fell. According to a representative of Wallack,

LEMX was responsible for installing the lighting (NYSCEF Doc. 124 at 59-60) and admitted that

the lighting should have been disconnected prior to dismantling the sidewalk shed. Plaintiff now

seeks summary judgment on his Labor Law 241(6) claim predicated on violations of Industrial

Code § 1.13(b).

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 of New 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

160251/2020 JOEL DE PAZ, vs. LEMX CORP., ET AL Page 2 of 4 Motion No. 003

[* 2] 2 of 4 [FILED: NEW YORK COUNTY CLERK 01/17/2025 04:48 PM] INDEX NO. 160251/2020 NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 01/17/2025

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

of an opportunity to cure the dangerous condition (Gallina v MTA Capital Construction Company,

193 AD3d 414 [1st Dept 2021] citing Rubino v 330 Madison Co., LLC, 150 AD3d 603, 604 [1st

Dept 2017]). Industrial Code § 1.13 is titled "Electrical Hazards" and requires employers to

identify and warn workers where an exposed or concealed electric power circuit may exist on the

worksite. (see 12 NYCRR 23-1.13[b][3]). It further prohibits employers from allowing employees

to work dangerously close to electric power circuits unless the employee is protected from

electrocution by deenergizing the circuit and grounding it, or by guarding the circuit by use of

insulation (12 NYCRR 23-1.13[b][4]).

Plaintiff's motion for summary judgment is granted. Plaintiff met his prima facie burden

through his undisputed testimony that he was launched backwards by an electrical shock while

removing metal rods from a sidewalk shed (Haynes v Boricua Vil. Haus. Dev. Fund Co., Inc., 170

AD3d 509 [1st Dept 2019]; De/Rosario v United Nations Federal Credit Union, 104 AD3d 515

[1st Dept 2013]). All witnesses agree that the electricity should have been shut off while Plaintiff

was working, and no party has produced evidence showing that the electricity was shut off.

Plaintiff's testimony was unwavering in that he was injured because the metal rod he was holding

electrified by contacting a live wire, and there is no evidence to the contrary.

Likewise, the "integral to the work" defense raised is inapplicable to this case. This defense

applies to conditions which are an integral part of construction (Krzyanowski v City of New York,

179 AD3d 479 [1st Dept 2020]). It applies when eliminating the allegedly defective condition

"would be impractical and contrary to the very work at hand" (Sinai v Luna Park Housing Corp.,

209 AD3d 600 [1st Dept 2022]). All witnesses agree that the electrical wiring should have been

160251/2020 JOEL DE PAZ, vs. LEMX CORP., ET AL Page 3 of 4 Motion No. 003

3 of 4 [* 3] [FILED: NEW YORK COUNTY CLERK 01/17/2025 04:48 PM] INDEX NO. 160251/2020 NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 01/17/2025

removed or shut off prior to removal of the sidewalk shed. The undisputed facts of this case are

inapposite of the integral to the work defense. Therefore, Plaintiff's motion is granted.

Accordingly, it is hereby,

ORDERED that Plaintiff is granted summary judgment as to liability on his Labor Law §

241(6) claims predicated on violations of Industrial Code §§1.13(b)(3) and (b)(4) against

Defendants LEMX Corp., 30 East 85th Street Company, LLC, Wallack Management, Co., Inc. ,

the Board of Managers of the 30 East 85th Street Condominium, and the 30 East 85th Street

Condominium; 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.

1/16/2024 DATE HON. M Y 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

160251/2020 JOEL DE PAZ, vs. LEMX CORP., ET AL Page 4 of 4 Motion No. 003

4 of 4 [* 4]