Meza v. Dutch Vortex LLC
Opinion
Meza v Dutch Vortex LLC
2024 NY Slip Op 31948(U)
June 5, 2024
Supreme Court, New York County Docket Number: Index No. 160934/2020 Judge: Sabrina Kraus
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.
NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 06/05/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY
PRESENT: HON. SABRINA KRAUS PART 57M Justice
---------------------------------------------------------------------------------X INDEX NO. 160934/2020 JONATHAN GUSTAVO MENDEZ MEZA, MOTION DATE 02/29/2024 Plaintiff,
MOTION SEQ. NO. 001 -v-
DUTCH VORTEX LLC,37-11 30TH STREET HOLDINGS DECISION + ORDER ON
LLC,SD BUILDERS AND CONSTRUCTION LLC, MOTION
Defendant.
---------------------------------------------------------------------------------X
37-11 30TH STREET HOLDINGS LLC, SD BUILDERS AND Third-Party CONSTRUCTION LLC Index No. 595466/2024
Plaintiff,
-against-
RISE CONCRETE LLC
Defendant.
--------------------------------------------------------------------------------X
The following 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, 58, 61, 62, 63, 69 were read on this motion to/for JUDGMENT - SUMMARY .
BACKGROUND
On December 16, 2020, Plaintiff initiated this action under the Labor Law to recover for alleged serious personal injuries sustained on November 19, 2020, while he provided construction services on behalf of Defendants at the property located at 37-11 Astoria Boulevard in Queens. Plaintiff alleges injuries to his neck, back and shoulder that required surgery.
160934/2020 MENDEZ MEZA, JONATHAN GUSTAVO vs. DUTCH VORTEX LLC Page 1 of 7 Motion No. 001
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PENDING MOTION
On March 27, 2024, Plaintiff moved for partial summary judgment as to liability under Labor Law § 240(1). The motion was fully briefed and marked submitted on May 10, 2024, and the Court reserved decision. For the reasons set forth below, the motion is granted.
ALLEGED FACTS
The Court finds the following facts uncontested pursuant to the statement and counterstatement of facts submitted by the parties.
Plaintiff was involved in an accident on November 19, 2020, at approximately 11:40 a.m., while in the course of his employment for non-party Rise Concrete (“Rise”) and while working at the construction site located at 37-11 Astoria Boulevard in Queens (“the Project”).
The site was owned by Defendant 37-11 30th Street Holdings. Defendant SD Builders and Construction LLC was the general contractor for the project.
Plaintiff was tasked with passing materials by hand from the fourth floor through a small hole to his co-worker, Alonso, who was standing on the fifth floor some fourteen feet above Plaintiff.
A hoist or boom was previously available for this task but could not be used on the date of the accident because it was broken. The record does not disclose whether other hoists or booms were available. Plaintiff and his co-worker were not provided with any ladders or platforms, or any device to secure or hoist the materials.
Plaintiff’s accident occurred when his co-worker dropped a 5’7” metal beam, which weighed approximately 40 pounds, that Plaintiff had passed up to him. The beam struck Plaintiff in the shoulder with such force that it drove him to the ground, causing Plaintiff to fall onto his back.
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DISCUSSION
To prevail on a motion for summary judgment, the moving party must establish its cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in its favor. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 (1985); Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). Absent such a prima facie showing, the motion must be denied, regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]).
However, “[o]nce the movant makes the required showing, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that precludes summary judgment and requires a trial” (Dallas-Stephenson v Waisman, 39 AD3d 303, 306 [1st Dept 2007], citing Alvarez, 68 NY2d at 324). “[A]ll of the evidence must be viewed in the light most favorable to the opponent of the motion” (People v Grasso, 50 AD3d 535,544 [1st Dept 2008]). “On a motion for summary judgment, the court's function is issue finding, not issue determination, and any questions of credibility are best resolved by the trier of fact” (Martin v Citibank, N.A., 64 AD3d 477,478 [1st Dept 2009]; see also Sheehan v Gong, 2 AD3d 166,168 [1st Dept 2003] [“The court's role, in passing on a motion for summary judgment, is solely to determine if any triable issues exist, not to determine the merits of any such issues”], citing Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]).
Labor Law § 240(1) provides:
All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons,
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ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.
Not every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240(1). Rather, liability is contingent upon the existence of a hazard contemplated in section 240(1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein (see, Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82).* The decisive question is whether the worker's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential, Nicometi v Vineyards of Fredonia, LLC, 25 NY3d 90 (2015); Runner v New York Stock Exchange, Inc., 13 NY3d 599 (2009); Gonzalez v Madison Sixty, LLC, 216 AD3d 1141 (2d Dept 2023).
In order to prevail on summary judgment in a section 240(1) “falling object” case, the injured worker must demonstrate the existence of a hazard contemplated under that statute “and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein” (Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267, 727 N.Y.S.2d 37, 750 N.E.2d 1085 [2001], citing Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82 [1993] ). Essentially, the plaintiff must demonstrate that at the time the object fell, it either was being “hoisted or secured”
(Narducci, 96 N.Y.2d at 268, 727 N.Y.S.2d 37, 750 N.E.2d 1085), or “required securing for the purposes of the undertaking” (Outar v. City of New York, 5 N.Y.3d 731, 732, 799 N.Y.S.2d 770, 832 N.E.2d 1186 [2005]; see Quattrocchi v. F.J. Sciame Constr. Corp., 11 N.Y.3d 757, 759, 866 N.Y.S.2d 592, 896 N.E.2d 75 [2008] ).
Fabrizi v. 1095 Ave. of Americas, L.L.C., 22 N.Y.3d 658, 662–63, (2014).
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