Narvaez v. 12 W. 31st St. Corp.

2024 NY Slip Op 33910(U)

• Court: New York Supreme Court, New York County
• Decided: November 1, 2024
• Docket: Index No. 152206/2021
• Status: Unpublished

Opinion

Narvaez v 12 W. 31st St. Corp. 2024 NY Slip Op 33910(U) November 1, 2024 Supreme Court, New York County Docket Number: Index No. 152206/2021 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. 152206/2021 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 11/01/2024

SUPREME COURT o·F THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARYV. ROSADO PART 33M Justice -------------------X INDEX NO. 152206/2021 WILSON NARVAEZ, MOTION DATE 07/11/2024 Plaintiff, MOTION SEQ. NO. 005 -v- 12 WEST 31ST STREET CORP., KAY WATERPROOFING . DECISION + ORDER ON CORP., HRC CORPORATION, MOTION Defendant. -------------------X

KAY WATERPROOFING CORP., HRC CORPORATION Third-Party Index No. 595162/2022 Plaintiff,

-against-

VIVI NY CORP.

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

The following e-filed documents, listed by NYSCEF document number (Motion 005) 102, 103, 104, 105, 106,107,108,109,110,111,112,113,115,116,118 were read on this motion to/for JUDGMENT-SUMMARY Upon the foregoing documents, Plaintiff Wilson Narvaez's ("Plaintiff') motion seeking

summary judgment on the issue of liability on his Labor Law § 240(1) claim is denied.

I. Background

On September 25, 2020, Plaintiff, employed by Third-Party Defendant Vivi NY Corp.

("Vivi") was cleaning a fire escape on the 11 th floor exterior fire escape located at 12 West 3pt

Street, New York, New York (the "Premises'') in preparation for other workers to paint the fire

escape (NYSCEF Doc. 107 at 73 ). Other workers on the 9th and 10th floors were painting (id. at 74

152206/2021 NARVAEZ, WILSON vs. 12 WEST 31ST STREET CORP. Page 1 of4 Motion No. 005

1 of 4 [* 1] INDEX NO. 152206/2021 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 11/01/2024

and 82). While walking from the 11 th floor fire escape to the 10th floor fire escape, Plaintiff slipped

on wet paint and fell down three steps (id at 140).

Alex Rosenblatt, employed by Defendant/Third-Party Plaintiff Kay Waterproofing Corp.,

("Kay") testified that he was the lead project manager at the Premises at the time of Plaintiffs

accident (NYSCEF Doc. 108 at 7-8). Kay was contracted to provide repairs to the fire escape at

the Premises (id. at 15-16). Kay in turn contracted work to an entity named "Biviny" (id at 17).

Abimael Garcia, who worked for third-party defendant Vivi, testified he supervised Plaintiffs

work at the Premises (NYSCEF Doc. 109 at 10-12). Mr. Garcia testified that Plaintiff did not notify

him of his accident until three days after he fell and that he worked for three days prior to reporting

the accident (id at 19-20). According to Mr. Garcia, Plaintiff slipped on the fire escape (id. at 21 ).

Plaintiff argues he is entitled to summary judgment on his Labor Law § 240(1) claim

because the fire escape constituted a safety device and was inadequate to prevent Plaintiff from

being injured. Plaintiff relies on an affidavit from a certified site safety manager, Kathleen

Hopkins, who alleges the presence of slippery conditions on a fire escape constitutes a violation

of Labor Law § 240(1). In opposition, Defendants argue that Plaintiffs fall was not a direct

consequence of a height related risk. Defendants further argue that a permanent structure on a

worksite is not designed as a safety device to protect workers. Moreover, Defendants argue that

Ms. Hopkins' expert affidavit stated broad and conclusory assertions and therefore should not be

afforded probative value. Plaintiff has submitted no reply.

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

152206/2021 NARVAEZ, WILSON vs. 12 WEST 31ST STREET CORP. Page 2of4 Motion No. 005

2 of 4 [* 2] INDEX NO. 152206/2021 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 11/01/2024

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-movant, there are triable issues of

fact which preclude summary judgment. Specifically, there is an issue as to whether Plaintiff's slip

due to wet paint on a fire-escape staircase constitutes the failure of a "safety device" under the

scaffold law (see, e.g. Gamez v Sandy Clarkson LLC, 221 AD3d 453 [1st Dept 2023]; Waldron v

City ofNew York, 203 AD3d 565 [1st Dept 2022]). Moreover, there is an issue of fact as to whether

Plaintiffs injury was caused by an "elevation-related risk" as he only fell two to three steps, and

his injury was admittedly caused by wet paint and not a failing object or the collapse of a safety

device (Nicometi v Vineyards of Fredonia, LLC, 25 NY3d 90 [2015]). Here, a jury could

reasonably conclude that Plaintiff's injury was a result of an ordinary slipping hazard, and not a

direct consequence of an elevation-related risk (Nicometi at 99 citing Cohen v Memorial Sloan-

Kettering Cancer Center, 11 NY3d 823 [2008]). Therefore, Plaintiff's motion is denied.

[The remainder ofthis page is intentionally left blank.]

152206/2021 NARVAEZ, WILSON vs. 12 WEST 31ST STREET CORP. Page 3 of4 Motion No. 005

3 of 4 [* 3] INDEX NO. 152206/2021 NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 11/01/2024

Accordingly, it is hereby,

ORDERED that Plaintiffs motion seeking partial summary judgment on the issue of

liability on his Labor Law § 240(1) claim 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.

11/1/2024 DATE HON. M RY V. ROSADO, J.S.C.

~ CHECK ONE: CASE DISPOSED NONaFINAL DISPOSITION

GRANTED 0 DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

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

152206/2021 NARVAEZ, WILSON vs. 12 WEST 31ST STREET CORP. Page4of4 Motion No. 005

4 of 4 [* 4]