Pagliuca v. Broome Prop. Owner JV LLC

2024 NY Slip Op 32408(U)

• Court: New York Supreme Court, New York County
• Decided: July 12, 2024
• Docket: Index No. 155510/2020
• Status: Unpublished

Opinion

Pagliuca v Broome Prop. Owner JV LLC 2024 NY Slip Op 32408(U) July 12, 2024 Supreme Court, New York County Docket Number: Index No. 155510/2020 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. 155510/2020 NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 07/12/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice -------------------X INDEX NO. 155510/2020 ANTHONY PAGLIUCA, MOTION DATE 06/15/2024 Plaintiff, MOTION SEQ. NO. 001 -v- BROOME PROPERTY OWNER JV LLC,TRITON DECISION + ORDER ON CONSTRUCTION COMPANY, LLC MOTION Defendant. -------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 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, 82,83,84 were read on this motion to/for JUDGMENT - SUMMARY

Upon the foregoing documents, Plaintiff Anthony Pagliuca's ("Plaintiff') motion for

partial summary judgment on his Labor Law § 240( 1) claim is denied.

I. Background

On February J3, 2019, Plaintiff was working at 100 Varick Street a/k/a 565 Broome Street,

New York, New York (the "Premises") (NYSCEF Doc. 87 at 111-2). The Premises are owned by

Defendant Brome Property Owner JV LLC ("Broome") (NYSCEF Doc. 61 ). The general

contractor at the Premises was Defendant Triton Construction Company LLC ("Triton") (id.). The

premises are a 25-story building (NYSCEF Doc. 60 at 15: 12-22). Plaintiff was a marble setter

employed by Jantile Inc. (NYSCEF Doc. 58 at 122-23). Jantile, Inc. was a subcontractor of Triton

(NYSCEF Doc. 62). Plaintiff was a foreman and worked with his apprentice, Gabe Hernandez

(NYSCEF Doc. 58 at 173-74). Plaintiff installed large marble countertops in kitchens at the

Premises (id. at 156-57; 220).

155510/2020 PAGLIUCA, ANTHONY vs. BROOME PROPERTY OWNER JV LLC Page 1 of 4 Motion No. 001

1 of 4 [* 1] INDEX NO. 155510/2020 NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 07/12/2024

A hoist was used to get new material upstairs, including the large pieces of marble

countertops (id at 202; 209:2-16). Before his accident, Plaintiff testified he complained that the

hoists were taken down (id at 192:2-8).

When the hoist was not up, Plaintiff had to roll the countertops off a truck, to the ground

floor, and push them towards an elevator to move them to higher floors (id at 202:17-25). Without

the hoist, Plaintiff had to pick up physically the marble countertops and make them fit into the

elevator (id at 223 :6-22). The countertops that Plaintiff was moving on the date of his accident

were 3 ½ feet wide, 9 feet long, and an inch and a quarter thick (id. at 263:22-25). Plaintiff testified

he and his colleague shimmied the countertop above his head into the elevator diagonally until

they moved the countertop vertically into the elevator (id at 272:2-8; 284). During this process,

the stone fell on Plaintiffs shoulder (id. at 285). Plaintiff testified the stone was between 7 to 9

feet high when it fell (id. at 287). Plaintiff was trapped between the stone and the elevator when it

fell (id at 296:9-12).

A representative of Triton, Paul Smith, provided deposition testimony (NYSCEF Doc. 60).

Mr. Smith confirmed that there were two hoists at the North Tower of the Premises where Plaintiff

was working (id at 20:3-7). Mr. Smith also confirmed that Triton made the decision to have the

hoists removed a few months prior to Plaintiffs injury (id. at 37; 39:5-7). Mr. Smith admitted the

service elevator in use at the time of Plaintiffs accident was 12 feet high and admitted that Triton

implemented safety procedures at the Premises (id at 43:3-6; 47:5-9). Mr. Smith indicated that the

Plaintiff may have been working on the 22nd floor on the date of his accident (id at 88:9-11). Mr.

Smith met Plaintiff on the day of the accident and asked how he hurt his arm, to which Plaintiff

allegedly responded "I have been lifting these pieces of stone for 35 years and my arm is hurting."

(id. at 115:12-16).

155510/2020 PAGLIUCA, ANTHONY vs. BROOME PROPERTY OWNER JV LLC Page 2 of 4 Motion No. 001

2 of 4 [* 2] INDEX NO. 155510/2020 NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 07/12/2024

Plaintiff now moves for summary judgment on his Labor Law § 240(1) claim. Plaintiff

argues summary judgment is appropriate because he was injured due to Defendants' removal of

the hoists despite large and heavy slabs of marble needing to be transported up many floors.

Defendants oppose by proffering the witness affidavits of Paul Smith and Rajendra Shrestha.

These witnesses state that Plaintiff told them there was no accident and he was injured due to years

of moving heavy stones. Defendants argue this discrepancy creates an issue of fact. In reply,

Plaintiff argues that Defendants cannot rely on his inadmissible hearsay statements to create an

issue of fact.

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, Plaintiff's contradictory

statements raises an issue of fact as to whether the marble was a falling object to bring his injury

within the ambit of Labor Law§ 240(1). This is compounded by the affidavit ofRajendra Shrestha

who likewise testified the marble blocks did not have to be lifted to enter the elevator. It is for the

trier of fact to determine whether Plaintiff was injured due to his decades of heavy manual labor,

or as a result of a falling marble block.

155510/2020 PAGLIUCA, ANTHONY vs. BROOME PROPERTY OWNER JV LLC Page 3 of 4 Motion No. 001

3 of 4 [* 3] INDEX NO. 155510/2020 NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 07/12/2024

Accordingly, it is hereby,

ORDERED that Plaintiff Anthony Pagliuca's motion for partial summary judgment on his

Labor Law § 240( 1) claim is granted; 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; and it is further

ORDERED that the Clerk of the Court is directed to enter judgment accordingly.

This constitutes the Decision and Order of the Court.

7/12/2024 DATE

CHECK ONE: CASE DISPOSED x NON-FINAL DISPOSITION

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

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

155510/2020 PAGLIUCA, ANTHONY vs. BROOME PROPERTY OWNER JV LLC Page4 of 4 Motion No. 001

4 of 4 [* 4]