Hualpa v. Porven Real Estate, Inc

2025 NY Slip Op 31666(U)

• Court: New York Supreme Court, New York County
• Decided: May 7, 2025
• Docket: Index No. 152866/2019
• Status: Unpublished

Opinion

Hualpa v Porven Real Estate, Inc 2025 NY Slip Op 31666(U) May 7, 2025 Supreme Court, New York County Docket Number: Index No. 152866/2019 Judge: David B. Cohen 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 05/07/2025 04:10 PM INDEX NO. 152866/2019 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 05/07/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DAVID B. COHEN PART 58 Justice ---------------------------------------------------------------------------------X INDEX NO. 152866/2019 ANGEL HUALPA, ROSA HUALPA, MOTION DATE 08/28/2024 Plaintiffs, MOTION SEQ. NO. 002 -v- PORVEN REAL ESTATE, INC, DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 002) 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 85, 86, 87, 88, 89, 90, 91, 92 were read on this motion to/for JUDGMENT - SUMMARY .

In this Labor Law personal injury action, plaintiffs move for partial summary judgment

on their Labor Law 240(1), 241(6), and 200 claims. Defendant/third-party plaintiff Povern Real

Estate, Inc. (Povern) cross-moves for summary judgment seeking indemnification against third-

party defendant Pal Environmental Services, Inc., a/k/a Pal Environmental Safety Corp.,

d/b/a Pal Environmental Services (Pal).

I. PERTINENT BACKGROUND

Plaintiffs assert claims against Povern for negligence, violations of the Labor Law,

and loss of consortium. Plaintiffs allege plaintiff Angel Hualpa (“Mr. Hualpa” or “Angel”) was

hired to do construction work on its building located at 204 Fifth Avenue, New York, New York,

and was injured during his work there on March 8, 2019.

Mr. Hualpa testified at his deposition that he was employed by Pal, and supervised by

Pal’s supervisor, Jose Barrientos. When Angel arrived at the building the morning of his

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accident, Barrientos instructed him as to his specific job. Angel put on gloves, a mask, goggles

and a hard hat for the work.

When Angel got to the premises’ basement, a portion of the ceiling had already been

removed by others; the ceiling was made of cement and meshed to chicken wire, which had to be

cut. Above the ceiling were pipes made of asbestos. Angel hit the ceiling with a hammer, then

used a crowbar to pry off pieces, then used wire cutters to cut the wire. He removed the ceiling

along with three coworkers, including Raul Copara, and they used a scaffold that was about 5-6

feet high.

After his lunch break, Angel did not use the scaffold because Barrientos directed him to

remove the ceiling in another part of the basement. At that location, the only thing holding up

the ceiling was the chicken wire. A six-foot A-frame ladder was used instead of a scaffold

because the space was too small.

Angel was working with Copara, who was 10 feet away at the time of the incident.

While on the ladder, Angel used a hammer to break up the ceiling, while standing on a ladder

that was closed and leaning against a wall. A pipe fell from the ceiling, hitting Angel’s head

while he was on the fourth rung of the ladder, and he fell down while attached to the ladder.

Angel asserts that once he got up, he reported the incident to Barrientos and told him that he had

fallen from the ladder and his shoulder hurt. He continued to work that day and did not seek

medical treatment until the following day (NYSCEF Doc. Nos. 61-62).

Barrientos testified on behalf of Pal, and stated that he was the supervisor of the subject

Project. He instructed Angel and the other workers on their work on the day of the incident, and

they were all working together in an area of the basement, with Copara and Angel working

approximately five feet apart. According to Barrientos, he learned from two Pal workers on the

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accident date that Copara, not Angel, had been hit by a falling ceiling pipe, and that later that

day, Copara told him that as well. Barrientos prepared an incident report that recounted that

Copara had been injured. He was never told and was unaware that anything had happened to

Angel. When Barrientos asked Angel about the incident and whether Angel was all right or had

been hurt, Angel told him he was unharmed and that there was “nothing wrong” with him. He

first heard of Angel’s alleged injury when he learned of the instant lawsuit (NYSCEF Doc. No.

63).

Chuck Amorelli testified on behalf of Povern, and confirmed that Povern was the owner

of the building and hired Pal for the purpose of removing asbestos from the building, including

the basement (NYSCEF Doc. No. 64).

Plaintiff’s expert, Anthony Corrado, submits an affidavit in which he indicates that he

examined the pertinent evidence and concludes that the removal of the asbestos was done

without any apparent engineering survey or plan to prevent unplanned collapses or falling

objects, despite it being required in the Invitation for Bid documents, and, moreover, the

sprinkler system was not independently supported.

Corrado opines that Povern violated section 240(1) of the Labor Law by failing to

provide adequate protection against falling objects for workers at an elevation, that Angel was

working on an improperly positioned ladder without additional safety measures, that safer

alternatives were not used, and that there was no evidence of proper ladder training or adequate

supervisory oversight.

Moreover, Coarrado opines that Povern violated section 241(6) of Labor Law by failing

(1) to install protective measures such as debris netting or catch platforms; (2) to secure overhead

fixtures, including the pipe that struck Angel; (3) to delegate a competent person to conduct

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ongoing inspections as work progressed; (4) to detect and address hazards posed by the sprinkler

system, and (5) to halt work from continuing in areas where hazards occurred (NYSCEF Doc.

No. 65).

In 2019, Copara filed his own lawsuit against Porven, in which he alleges that on March

8, 2019, he was injured at the building (index no. 153329/19; NYSCEF 1). In that action, the

incident report prepared by Barrientos was submitted, and it reflects that Copara was injured on

March 8, 2019 when a pipe fell from the ceiling onto him, and that Angel and two other Pal

workers were able to evacuate the area “without incident” (NYSCEF 21).

Copara submitted his own incident report, translated into English by Barrientos, which

reflects that a pipe fell on him and his coworkers went to get him help. Copara also recounts that

Barrientos called an ambulance for him and he went to the hospital (id., NYSCEF 21).

II. PLAINTIFFS’ MOTION

A. Contentions

Plaintiffs move for summary judgment against Povern as the owner of the building

where Angel was injured, contending that Povern is liable under sections 200, 240(1) and 241(6)

of the Labor Law, and that it violated sections 23-1.7(a)(1) and 23-3.3(c) of the New York Code

of Rules and Regulations (NYCRR) (Industrial Code). Plaintiffs argue that the

evidence demonstrates that there are no issues of fact precluding the granting of summary

judgment regarding the Labor Law violations.

With respect to section 200 of Labor Law, plaintiffs contend that Povern had constructive

notice of an unsecured sprinkler system, and that the failure to secure the system, in violation of

the Building Code, led to the collapse of the pipe and the accident, thereby violating section

200.

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Povern argues that there is an issue of fact as to whether Angel was actually involved in

any accident. Povern relies on Barrientos’ testimony that he was unaware of the accident

involving Angel until later, and that when he drafted the accident report, he mentioned Copara

but not Angel. He also testified that when he did speak to Angel, Angel said that he was

unharmed and that nothing happened to him. Based on this evidence, Povern argues that it is not

conclusive that Angel was involved in any accident.

With respect to section 240(1) of Labor Law, Povern contends that there is no

conclusive proof that the pipe was improperly secured. Povern observes that Angel was wearing

appropriate safety equipment for this work, including goggles and a hard hat, and that Povern did

not supply the ladder but in any event, the accident was not due to the absence or malfunction of

a hoisting device or ladder. Povern also contends that the fact that Angel was four steps up on

the ladder raises an issue as to whether a significant elevational difference existed.

With respect to section 241(6) of the Labor Law, Povern argues that plaintiffs have not

proven that the Industrial Code sections were violated and that said violations were the

proximate cause of the accident. As to section 200 of the Labor Law, Povern argues that the

accident did not arise from any dangerous physical condition of the property, but by the means

and methods of Angel’s work, which included hammering and peeling. Povern claims that it

was Pal that was primarily responsible for the work at the time of the incident. According to

Povern, Pal authorized the work and instructed Angel; and Pal, not Povern, provided the labor,

equipment and tools for the work. Thus, Povern contends that Pal controlled the means of its

workers and is liable for any violations (NYSCEF Doc. No. 76).

In reply to Povern, plaintiffs argue that they submitted a statement of facts which

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contained the details of the events leading up to Angel’s accident, and that Povern failed to

submit a response to the statement, thereby accepting plaintiffs’ proposed facts. Plaintiffs

contend that Barrientos’s testimony is insufficient to raise an issue as to whether Angel was

involved in the accident, since he only stated that he was unaware if Angel was involved in the

accident. They contend that they are entitled to summary judgment because there was no bracing

or other device that offered Angel proper protection from the falling pipe and because the

ladder was not positioned to give him proper protection.

Plaintiffs claim to have offered proof that the pipe was not adequately supported, and

they deny that the height differential involving Angel’s position on the ladder was de

minimus. Plaintiffs also argue that Povern failed to respond to Corrado’s expert affidavit, which

contains detailed observations of the condition of the premises (NYSCEF Doc. No. 83).

Pal also opposes, maintaining that summary judgment should not be granted on the

ground that it is not conclusively proven that Angel was involved in the accident. Pal responded

to plaintiffs’ statement of facts by referring to Barrientos’s testimony.

In reply to Pal, plaintiffs rely on the same arguments they raised against Povern, that

Barrientos’s testimony is insufficient to raise an issue concerning Angel’s involvement in the

accident (NYSCEF Doc. No. 89).

B. Analysis

“It is axiomatic that summary judgment is a drastic remedy and should not be granted

where there is any doubt as to the existence of factual issues” (Birnbaum v Hyman, 43 AD3d

374, 375 [1st Dept 2007]). “The substantive law governing a case dictates what facts are

material, and ‘[o] nly disputes over facts that might affect the outcome of the suit under the

governing law will properly preclude the entry of summary judgment’” (People v Grasso, 50

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AD3d 535, 545 [1st Dept 2008]). “To prevail on a summary judgment motion, the moving

party must provide evidentiary proof in admissible form sufficient to warrant the direction of

summary judgment in his or her favor” (Kershaw v Hospital for Special Services, 114 AD3d 75,

81 [1st Dept 2013]). “Once this burden is met, the burden shifts to the opposing party to submit

proof in admissible form sufficient to create a question of fact requiring a trial” (Id. at 82).

The only evidence that plaintiff was injured in the accident at issue is plaintiff’s own

testimony; there is no evidence that any witness saw the pipe fall on plaintiff, rather than on

Copara. “Where a plaintiff is the sole witness to an accident, an issue of fact may exist where he

or she provides inconsistent accounts of the accident, his or her account is contradicted by other

evidence, or his or her credibility is otherwise called into question with regard to the accident”

(Smigielski v Teachers Ins. and Annuity Assn. of Am., 137 AD3d 676 [1st Dept 2016]).

Here, even assuming that plaintiffs established a prima facie violation of the Labor Law,

Barrientos’s testimony that only Copara and not Angel was injured by the falling pipe is

buttressed by Copara’s own lawsuit and his evidence against Porven, including the incident

reports prepared by Barrientos and Copara. The court is authorized to take judicial notice of e-

filed court records in other cases (57 NY Jur 2d, Evidence and Witnesses 43 [2025]).

Moreover, Barrientos testified that Angel told him that he was unharmed and nothing was

wrong with him when asked about the incident, which constitutes an admission against interest

(Matter of Newman, 231 AD3d 12 [1st Dept 2024] [admission by party is admissible against

party as evidence of matter asserted in admission, whether or not party’s statement was against

his or her interest when statement was made]).

Barrientos’s version of his conversation with Angel also conflicts with Angel’s version,

and the two cannot be reconciled (see Gkoumas v Lewis Constr. and Architectural Mill Work,

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233 AD3d 609, 609 [1st Dept 2024] [plaintiff submitted transcript of supervisor’s deposition

testimony, which contained different version of accident than plaintiff’s accident, and thus

plaintiff, by submitting transcript in support of his motion, “effectively adopted it as accurate,”

and called into question his own credibility as to how accident occurred.] [citations omitted];

Hernandez v 46-24 28th St., LLC, 214 AD3d 451 [1st Dept 2023] [as foreman denied that events

occurred as described by plaintiff, conflicting evidence raised question of fact]). Barrientos’s

version is further supported by the fact that the only incident report prepared of the accident

relates to Copara and that only Copara went to the hospital by ambulance from the premises.

While not dispositive as to whether Angel’s accident occurred, the overall testimony and

evidence is sufficient to raise a triable issue as to Angel’s credibility and account of the accident

that cannot be resolved on summary judgment (Moore v Skanska USA Bldg., Inc., __AD3d __ ,

2025 NY Slip Op 02272 [1st Dept 2025] [defendants raised triable issues regarding plaintiff’s

version of events, and conflicting accounts presented issues of credibility for jury to resolve];

Simpertegui v Carlyle House Inc., 227 AD3d 486 [1st Dept 2024] [defendants raised triable issue

by identifying various inconsistencies in plaintiff’s account of accident, calling into question his

credibility and circumstances underlying claimed injuries]; Alvarez v 2455 8 Ave, LLC, 202

AD3d 724 [2d Dept 2022] [triable issue created through plaintiff’s supervisor’s affidavit, which

called in question plaintiff’s credibility as to how incident occurred]).

There is no merit to plaintiffs’ argument that Povern’s failure to submit a counter-

statement of material facts requires that all the facts asserted in plaintiffs’ statement to be true, as

the court has discretion to pardon the failure to submit a counter-statement (22 NYCRR 202.8-

g[e]; Taveras v Inc. Vill. of Freeport, 225 AD3d 822 [2d Dept 2024] [defendants’ failure to

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submit counterstatement did not compel court to deny motion]). In any event, Pal submitted a

counter-statement, which cited to Barrientos’s testimony.

III. POVERN’S CROSS-MOTION

As there are triable issues as to whether Angel was injured at the premises, it is premature

to address Povern’s third-party indemnity claims.

Accordingly, it is

ORDERED that plaintiffs’ motion for summary judgment is denied; and it is further

ORDERED that defendant/ third-party plaintiff Povern Real Estate Inc.’s cross motion is

denied.

5/7/2025 DATE DAVID B. COHEN, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

□ GRANTED X DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

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

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