Peralta v. Hunter Roberts Constr. Group LLC

2024 NY Slip Op 31515(U)

• Court: New York Supreme Court, New York County
• Decided: April 29, 2024
• Status: Unpublished

Opinion

Peralta v Hunter Roberts Constr. Group LLC 2024 NY Slip Op 31515(U) April 29, 2024 Supreme Court, New York County Docket Number: Index No. 159317/2018 Judge: Suzanne Adams 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. 159317/2018 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 04/29/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. SUZANNE ADAMS PART 39M Justice ----------------------------- ---------X INDEX NO. 159317/2018 JOSE PERALTA, MOTION DATE N/A Plaintiff, MOTION SEQ. NO. 002 -v- HUNTER ROBERTS CONSTRUCTION GROUP LLC,RXR DECISION + ORDER ON GARVIES P1 BUILDING H OWNER LLC, MOTION Defendant. --------------------X

HUNTER ROBERTS CONSTRUCTION GROUP LLC, RXR Third-Party GARVIES P1 BUILDING H OWNER LLC Index No. 595238/2019

Plaintiff,

-against-

ALL TECH INC. D/B/A GOLDEN EAGLE FRAMING LLC, MB HOME REMODELING LLC, GOLDEN EAGLE FRAMING, LLC., GOLDEN CONTRACTOR MANAGEMENT, LLC

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

The following e-filed documents, listed by NYSCEF document number (Motion 002) 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109 were read on this motion to/for JUDGMENT-SUMMARY

Upon the foregoing documents, it is ordered that defendants/third-party plaintiffs' motion

is granted in part and denied in part, and plaintiffs cross-motion is denied. This personal injury

action arises out of an incident that occurred on August 30, 2018, at the site of a construction

project at Garvies Point Road in Glen Cove, New York, owned by defendant/third-party plaintiff

RXR Garvies Pl Building H Owner LLC (the "Owner"). The Owner retained defendant/third-

party plaintiff Hunter Roberts Construction Group LLC (the "CM") to serve as construction 159317/2018 PERALTA, JOSE C. vs. RXR REALTY LLC Page 1 of 4 Motion No. 002

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manager for the project, and the CM retained third-party defendant Golden Eagle Framing LLC

("Golden Eagle") to perform certain work necessary for the construction of timber framing for the

project. The subcontract between the CM and Golden Eagle required Golden Eagle to, inter alia,

procure certain insurance policies and name both the Owner and the CM as additional insureds.

Golden Eagle subcontracted a certain portion of its work on the project to third-party defendant

MB Home Remodeling, LLC ("MB"), who was plaintiffs employer. On the date in question,

plaintiff alleges he was at the work site installing trusses from a defective temporary scaffold which

collapsed and caused him to fall to the ground, sustaining personal injuries.

Plaintiff commenced this action in October 2018, asserting, in sum, common-law

negligence claims as well as claims under Labor Law §§ 200, 240(1 ), and 241 (6).

Defendants/third-party plaintiffs now move pursuant to CPLR 3212 for summary judgment

dismissing plaintiffs complaint and granting their claims for contractual indemnity over and

against third-party defendants Golden Eagle and MB. Golden Eagle and MB partially oppose the

motion inasmuch as it pertains to summary judgment as against them. Plaintiff opposes the motion

and cross-moves for summary judgment on the issue ofliability. Defendants/third-party plaintiffs

oppose the cross-motion.

The proponent of a summary judgment motion must make a prima facie showing of

entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the

absence of any material issues of fact." Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 (1986)

(citing Winegrad v. New York University Medical Center, 64 N.Y.2d 851 (1985)); see also

Winegrad, 64 N.Y.2d at 853. The party opposing a motion for summary judgment is entitled to

all reasonable inferences most favorable to it, and summary judgment will only be granted if there

are no genuine, triable issues of fact. Assaf v. Ropog Cab Corp., 153 A.D.2d 520, 521-22 (1s t

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Dep't 1989). Further, New York Labor Law§ 200 codifies the common law duty of owners or

general contractors to provide a safe construction site workplace, with the "implicit precondition

to this duty ... [being] that the party charged with that responsibility have the authority to control

the activity bringing about the injury .... " Russin v. Louis N Picciano & Son, 54 N.Y.2d 311,

316-17 ( 1981 ). Labor Law § 240 imposes liability only upon an owner or general contractor, or a

third party who has been delegated the duties outlined in the statute and thus obtains the authority

to supervise and control the work and becomes a statutory "agent" of the owner or contractor.

Russin, 54 N. Y.2d at 317-18.

As an initial matter, plaintiff does not oppose that portion of the motion seeking dismissal

of the Labor Law § 241 (6) claim, thus said claim is dismissed. However, the record before the

court precludes the granting of summary judgment to either the movants or the cross-movant on

the§§ 200 and 240(1) claims, as the parties present conflicting evidence which raises significant

questions of fact. For example, although its contract provided that Golden Eagle was solely 1 1

responsible for supplying and constructing the scaffolding at issue, plaintiff testified that the CM

was involved in discussions regarding the installation and use of scaffolding and approved a plan

on how to build them. The Owner and CM assert that plaintiff improperly constructed the disputed

temporary scaffolding, but plaintiff maintains that it is undisputed that no one with personal

knowledge has testified to that effect. Such factual issues are properly determined by a trier of

fact.

With respect to the defendants/third-party plaintiffs' contractual indemnity claims (as per

the Notice of Motion; the supporting papers also refer to common law indemnification), same are

barred by the anti-subrogation rule. See Washington v. New York City Indus. Dev. Agency, 215

A.D.2d 297, 298-99 (1 st Dep't 1995). Further, any award of conditional indemnification against

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an excess carrier is premature at this stage of the litigation, where there has yet to be an ultimate

settlement or judgment. Oprea v. New York City Haus. Auth., 239 A.D.2d 119, 120 (1 st Dep't

1997).

Accordingly, it is hereby

ORDERED that defendants/third-party plaintiffs' motion is granted to the extent that any

claims under Labor Law § 241 ( 6) are dismissed, and is otherwise denied; and it is further

ORDERED that plaintiffs cross-motion is denied.

This constitutes the decision and order of the court.

04/29/2024 DATE SUZANNE ADAMS, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

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

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

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