Hao Sheng Zhou v. Rockaway Hotel Owner LLC

2025 NY Slip Op 32135(U)

• Court: New York Supreme Court, New York County
• Decided: June 15, 2025
• Docket: Index No. 156652/2020
• Status: Unpublished

Opinion

Hao Sheng Zhou v Rockaway Hotel Owner LLC 2025 NY Slip Op 32135(U) June 15, 2025 Supreme Court, New York County Docket Number: Index No. 156652/2020 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. INDEX NO. 156652/2020 NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 06/16/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice -------------------X INDEX NO. 156652/2020 HAO SHENG ZHOU, MOTION DATE 09/16/2024 Plaintiff, MOTION SEQ. NO. 003 - V -

ROCKAWAY HOTEL OWNER LLC,COMALLA CONSTRUCTION LLC,JBS PROJECT MANAGEMENT DECISION + ORDER ON LLC,A&B HEATING AND AIR CONDITIONING INC., MOTION

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

ROCKAWAY HOTEL OWNER LLC, COMALLA Third-Party CONSTRUCTION LLC Index No. 596057/2020

Plaintiff,

-against-

JDP DESIGN CONSTRUCTION, INC.

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

ROCKAWAY HOTEL OWNER LLC, COMALLA Second Third-Party CONSTRUCTION LLC, JBS PROJECT MANAGEMENT LLC Index No. 596057/2021

A&B HEATING AND AIR CONDITIONING, INC.

The following e-filed documents, listed by NYSCEF document number (Motion 003) 96, 97, 98, 99, 100, 101,102,103,104,105,106,107,108,109,110,111,145,150,161,162 were read on this motion to/for JUDGMENT-SUMMARY Upon the foregoing documents, and after a final submission date of April 15, 2025, Plaintiff

Hao Sheng Zhou's motion for summary judgment on the issue ofliability with respect to his Labor

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Law § 240(1) claim asserted against Defendants Rockaway Hotel Owner LLC and Comalla

Construction LLC is denied.

I. Background

On December 14, 2019, Third-Party Defendant JDP Design Construction, Inc. ("JDP

Design") employed Plaintiff Hao Sheng Zhou ("Plaintiff') as carpenter at a project constructing

the Rockaway Hotel (the "Premises"). The general contractor at the Premises was

Defendant/Third-Party Plaintiff/Second Third-Party Plaintiff Comalla Construction LLC

("Comalla") (NYSCEF Doc. 67 at 29). Plaintiff testified he climbed a six-foot white aluminum

ladder to take measurements on the first-floor ceiling at the Premises when he fell off the ladder,

which shook and wobbled (NYSCEF Doc. 65 at 79-80; NYSCEF Doc. 66 at 25). The ladder was

old, and Plaintiff was concerned about its sturdiness because the metal braces, which lock the

ladder in position, were bent (NYSCEF Doc. 65 at 99-101). When Plaintiff fell, the ladder fell

with him (NYSCEF Doc. 66 at 25).

At the time of Plaintiffs accident, there were many different trades working at the

Premises, including plumbers, sheet rockers, electricians, framers, and HVAC mechanics

(NYSCEF Doc. 67 at 34-35). Comalla contracted JDP Design as a framer and sheet rocker while

A&B Heating was contracted to complete HV AC work (NYSCEF Doc. 67 at 39). According to

JDP's foreman, Plaintiff fell from a blue ladder owned by A&B Heating (NYSCEF Doc. 69 at 80).

A JDP employee present at the time of Plaintiff's fall likewise testified Plaintiff fell from a blue

ladder (NYSCEF Doc. 70 at 53). A&B Heating's witness stated it was not their blue ladder

involved in Plaintiffs accident, but a silver ladder (NYSCEF Doc. 68 at 21 ). Plaintiff admitted he

did not know who the ladder belong to, and admitted he was told not to use other contractors' tools

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(NYSCEF Doc. 66 at 121). Plaintiff now seeks summary judgment on his Labor Law§ 240(1)

claim, which Owner and Comalla oppose.

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 Hosps. 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]).

Viewing the facts in the light most favorable to the non-movants, the Court finds there are

issues of fact as to whether Plaintiff was the sole proximate cause of his accident. As a preliminary

matter, Plaintiff admitted that he was instructed not to use other contractors' equipment on the

jobsite. Nonetheless, he decided to use an aluminum ladder, whose locking mechanism was

noticeably bent, and despite not knowing who owned the ladder (NYSCEF Doc. 66 at 87-88; 100-

01). Moreover, he knowingly placed the ladder on unsteady footing, by allowing three of the

ladder's feet to rest on level concrete but placing the fourth foot on cardboard (NYSCEF Doc. 66

at 94-95). When asked why, he stated "I didn't really give it much thought. I think it's only one of

the feet and it's not that thick of a pile of cardboard." (Id). Furthermore, Plaintiff admitted that he

knew his employer had its own ladders on the job site and they were "very stable and steady" and

he admitted that those ladders were available to him but he decided to use the allegedly defective

adder because it was "right by me" (NYSCEF Doc. 66 at 102).

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On this record, Plaintiff has failed to eliminate triable issues of fact as to whether he was

the sole proximate cause of his accident. Indeed, Plaintiff admitted there were other adequate safety

devices available, yet he seemingly chose to use an old and defective ladder, whose owner was

unidentified, and despite being instructed by his employer to only use JDP design ladders.

Therefore, Plaintiffs motion is denied (see Cantre v BLDF Oceanside LLC, 216 AD3d 451 [1st

Dept 2023]; Quinones v Olmstead Properties, Inc., 133 AD3d 87 [1st Dept 2015]; Garzon v

Metropolitan Transp. Auth., 10 AD3d 568 [1st Dept 2010]).

Accordingly, it is hereby,

ORDERED that Plaintiffs motion for partial summary judgment on the issue of liability

with respect to his Labor Law§ 240(1) claim against Defendants Rockaway Hotel Owner LLC

and Carnalla Construction LLC is denied; and it is further

ORDERED that within ten days of entry, counsel for Defendants 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.

. MARY V. ROSADO, J.S.C.

CHECK ONE: CASE DISPOSED x NON-FINAL DISPOSITION

GRANTED [ ; ] DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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