Reyes-Guevara v. 722 Metro. LLC

2024 NY Slip Op 30361(U)

• Court: New York Supreme Court, New York County
• Decided: February 2, 2024
• Status: Unpublished

Opinion

Reyes-Guevara v 722 Metro. LLC 2024 NY Slip Op 30361(U) February 2, 2024 Supreme Court, New York County Docket Number: Index No. 151479/2020 Judge: Paul A. Goetz 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. 151479/2020 NYSCEF DOC. NO. 144 RECEIVED NYSCEF: 02/02/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. PAUL A. GOETZ PART 47 Justice ----------------------------------------------------------------- ----------------X INDEX NO. 151479/2020 HALMAR REYES-GUEVARA, MOTION DATE 10/11/2023 Plaintiff, MOTION SEQ. NO. 003 - V -

722 METROPOLITAN LLC, GOTHAM NEW YORK LLC, ALBA SERVICES, INC., CAPSTONE CONTRACTING DECISION + ORDER ON CORPORATION, MOTION

Defendants. ------------------------------------------------------------------- --------------X

722 METRO POLITAN LLC, GOTHAM NEW YORK LLC Third-Party Index No. 595639/2020 Plaintiffs,

-against-

ALBA SERVICES, INC., CAPSTONE CONTRACTING CORPORATION

Defendants. -------------------------------------------------------------------------------- X

722 METRO POLITAN LLC, GOTHAM NEW YORK LLC Second Third-Party Index No. 595118/2022 Plaintiffs,

OAK PARK ENTERPRISES INC., FRIENDLY HAND LABOR CORP.

Defendants. -------------------------------------------------------------------------------- X

The following e-filed documents, listed by NYSCEF document number (Motion 003) 100, 101,102,103, 104,105,106,107,108,109,110,111,112,113,114,115,116,117,118,119,120 were read on this motion to/for JUDGMENT-SUMMARY

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In this Labor Law personal injury action arising out of a construction worker's fall from a

stack of iron reinstallation bars (rebars) on top of a platform, plaintiff moves unopposed for

summary judgment pursuant to CPLR § 3212 on his Labor Law§§ 200, 240(1), and 241(6)

claims as against defendants 722 Metropolitan LLC (722 Metropolitan) and Gotham New York

LLC (Gotham) (collectively, defendants).

BACKGROUND

Defendant 722 Metropolitan owns a building located at 722 Metropolitan A venue,

Brooklyn, New York 11211 (NYSCEF Doc No 1). In a construction management agreement

dated May 2, 2017, 722 Metropolitan hired defendant Gotham to "cause to be performed and

provided through Trade Contractors[] all labor, material, equipment, tools and services required

for the complete construction of the Project," the conversion of a former factory into a 7-story

multi-family residential building with a commercial space on the first floor (NYSCEF Doc No

117, § 2.1). Gotham was tasked with "supervi[ng] the performance of the Work by Trade

Contractors" and "all safety precautions" (id., §§ 3 .4(b ), 17 .1.1 ). In a sub-contract agreement

dated May 4, 2017, Gotham hired third-party defendant Alba Services, Inc. (Alba) to "perform

all work ... necessary for the construction and completion of the excavation, soe, underpinning,

concrete (foundation and superstructure) work for the project" (NYSCEF Doc No 118 § 1.4,

emphasis removed). Alba subsequently hired third-party defendant Capstone Contracting

Corporation (Capstone) as a second-tier subcontractor to assist (NYSCEF Doc No 119).

Capstone was plaintiffs employer (NYSCEF Doc No 115).

Plaintiffs work entailed the installation of iron rebars for the building's flooring; this

stage came after carpenters had set down a wooden base, and before another tradesman would

pour concrete over the rebars (NYSCEF Doc No 114, 49:25-50: 17). The rebars, which were each

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approximately 20-30 feet long (id. at 59:4-8), were bundled together with wire when they arrived

at the jobsite (id. at 53:25-54: 17). 1 Upon delivery, they would be placed on a platform that was

roughly 3-4 feet high, such that the top of the bundle would be elevated about 5-6 feet from the

floor (id. at 61 :6-13). Plaintiff, who is 5 feet and 10 inches tall (id.), had a practice of climbing

onto the platform, and then up on top of the iron bundle, so that he could clip the wires holding

the rebars together (id. at 86: 13-87:6, 93:5-7). He would then pull out as many rebars as he could

comfortably manage at once and carry them down from the platform (id. at 53:25-54: 17). He

would place the rebar on the floor and tie it down with wire, attaching each rebar to the one

installed before it (id. at 57:10-14). There were tradesmen from other companies who performed

work in the same space, but plaintiff had never heard of 722 Metropolitan or Gotham (id. at

65:21-66:4).

The date of plaintiffs accident, February 4, 2019 (id. at 33-11), was about two weeks

into his assignment at the jobsite (id. at 48: 14-21). A few hours into his workday (id. at 43: 13-15,

74: 15-16), plaintiff climbed onto a bundle of iron standing on top of the platform and cut the

wire holding the rebars together, as he normally did (id. at 59: 18-21 ). With plaintiff and a

coworker taking hold of either side of a rebar, they pulled it out of the pile (id. at 77: 17-21 ),

using "a lot of strength" to free it, at which point plaintiff lost his grip and fell to his right (id. at

58:13-20, NYSCEF Doc No 102, ,i,i 62-64). Since plaintiff had "nowhere to grab onto" (id. at

77:15-16), he hit the floor. He then reported the incident to his supervisor, Christian (id. at 64:6-

13, 69: 19-21 ). 2 As a result of this fall, plaintiff alleges that he has suffered severe physical

injuries (NYSCEF Doc No 1, ,J,J 50-51).

1 Plaintiff does not know who delivered the rebar (id. at 88:9-15). 2 Plaintiff does not know who employed Christian (id. at 47:2-7). 151479/2020 REYES-GUEVARA, HALMAR vs. 722 METROPOLITAN LLC Page 3 of 11 Motion No. 003

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Stuart Samtur' s Deposition

Samtur testified as a principal of Gotham (NYSCEF Doc No 116, 10: 18-20). He stated

that Gotham was responsible for supervising the performance of work by any contractors or

subcontractors on the project (id. at 15:5-8). This entailed sending the company's assistant

construction superintendent, John Doko, to make daily visits to the jobsite and take note of any

safety hazards (id. at 18:20-19: 12, 24: 17-25: 10). He stated that Gotham had the authority to stop

work in the case of any noncompliance with safety regulations (id. at 27: 14-18). Samtur testified

that he first heard plaintiff's name in connection with this lawsuit and was unfamiliar with the

circumstances of his accident (id. at 47:21-48:13).

Plaintiff brought this action against defendants, alleging violations of Labor Law§§ 200,

240(1), 241(6) and common law negligence (NYSCEF Doc No 1). Plaintiff moves unopposed

for summary judgment on liability on his Labor Law§§ 200, 240(1), and 241(6) claims as

against defendants 722 Metropolitan and Gotham (MS #3, NYSCEF Doc No 103).

DISCUSSION

"It is well settled that '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"' (Pullman v Silverman, 28 NY3d 1060,

1062 [2016], quoting Alvarez v Prospect Hosp., 68 NY2d 320,324 [1986]). "Failure to make

such showing requires denial of the motion, regardless of the sufficiency of the opposing papers"

(Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). "Once such a prima facie

showing has been made, the burden shifts to the party opposing the motion to produce

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evidentiary proof in admissible form sufficient to raise material issues of fact which require a

trial of the action" (Cabrera v Rodriguez, 72 AD3d 553, 553-54 [1st Dept 2010]).

"The court's function on a motion for summary judgment is merely to determine if any

triable issues exist, not to determine the merits of any such issues or to assess credibility"

(Meridian Mgt. Corp. v Cristi Cleaning Serv. Corp., 70 AD3d 508, 510-11 [1st Dept 2010]

[internal citations omitted]). The evidence presented in a summary judgment motion must be

examined "in the light most favorable to the non-moving party" (Schmidt v One New York Plaza

Co. LLC, 153 AD3d 427,428 [2017], quoting Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339

[2011]) and bare allegations or conclusory assertions are insufficient to create genuine issues of

fact (Rotuba Extruders v Ceppos, 46 NY2d 223,231 [1978]). If there is any doubt as to the

existence of a triable fact, the motion for summary judgment must be denied (Rotuba Extruders

v Ceppos, 46 NY2d 223,231 [1978]).

Labor Law § 200 Claim

Labor Law§ 200 "is a codification of the common-law duty imposed upon an owner or

general contractor to provide construction site workers with a safe place to work" (Singh v Black

Diamonds LLC, 24 AD3d 138, 139 [1st Dept 2005], citing Comes v New York State Elec. & Gas

Corp., 82 NY2d 876, 877 [1993]). It provides, in relevant part: "All places to which this chapter

applies shall be so constructed, equipped, arranged, operated and conducted as to provide

reasonable and adequate protection to the lives, health and safety of all persons employed therein

or lawfully frequenting such places" (Labor Law§ 200[1]). "In order to prevail on such a claim

against an owner or general contractor, a plaintiff must prove that the party so charged had

authority or control over the activity causing the injury, thus enabling it to avoid or correct an

unsafe condition" (0 'Sullivan v IDI Constr. Co., Inc., 28 AD3d 225,226 [1st Dept 2006]).

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Plaintiff argues that Gotham3 should be held liable under the statute on the basis that it was the

general contractor on the project and created or had knowledge of the hazardous condition

alleged.

Plaintiff has not established his entitlement to judgment as a matter oflaw on the issue of

Gotham's liability under Labor Law§ 200. Samtur acknowledged in his deposition that Gotham

was responsible for supervising the performance of work by subcontractors (NYSCEF Doc No

116, 15:5-8); that Doko made daily visits to the jobsite (id. at 18:20-19: 12); and that Gotham had

the authority to stop work if any violations of safety regulations were discovered (id. at 27: 14-

18). Nonetheless, it is unclear whether Gotham had control over plaintiffs work as required to

hold a general contractor liable (0 'Sullivan, 28 AD3d at 226 [the record must show that "the

general contractor[] supervised, controlled or directed the performance of plaintiffs job"]). As

plaintiffs own testimony demonstrates, he had never heard of Gotham at the time of his accident

(NYSCEF Doc No 114, 65:21-66:4), nor did he know which entity employed his only

supervisor, Christian (id. at 64:6-13, 47:2-7) (0 'Sullivan, 28 AD3d at 226 ["Plaintiff has

admitted never speaking with or taking instructions from anyone other than his supervisor," who

was also employed by the subcontractor]). Where, as here, an injury arises from the

subcontractor's methods of performing the work (Sotarriba v 346 W 17th St. LLC, 179 AD3d

599, 601 [1st Dept 2020]), to hold the general contractor liable, it must be shown that the general

contractor "exercised actual supervision and control over plaintiffs activity, rather than

possessing merely a general supervisory authority" (Mitchell v NY Univ., 12 AD3d 200,200

[1st Dept 2004] [emphasis added]; Vasiliades v Lehrer McGovern & Bovis, Inc., 3 AD3d 400,

401-02 [1st Dept 2004] [general contractor's "general supervision and coordination of the

3 Plaintiff does not present an argument that 722 Metropolitan should be held liable under Labor Law § 200 and therefore summary judgment will not be granted as against it on this cause of action. 151479/2020 REYES-GUEVARA, HALMAR vs. 722 METROPOLITAN LLC Page 6 of 11 Motion No. 003

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worksite was insufficient to trigger liability"]; 0 'Sullivan, 28 AD3d at 226 ["Absent any

evidence that [the general contractor] gave anything more than general instructions as to what

needed to be done, as opposed to how to do it, [it] cannot be held liable under Labor Law §

200"]). Thus, as there are questions of fact as to whether Gotham had actual control over

plaintiffs work, it cannot be found liable as a matter oflaw (Mitchell, 12 AD3d at 200-01

[general contractor monitored subcontractor's work but "had no direct involvement in the

performance of plaintiffs work," which was "admittedly overseen and directed by the

subcontractor's personnel"]).

Moreover, "the proponent of a Labor Law § 200 claim must demonstrate that the

defendant had actual or constructive notice of the allegedly unsafe condition that caused the

accident, and such notice must "call attention to the specific defect or hazardous condition and its

specific location" (Mitchell, 12 AD3d at 201 ). Here, plaintiff argues that defendant must have

had notice of the dangerous condition because "Mr. Samtur testified that his site supervisor Mr.

Doko was on the job site every day and conducted daily site walk-through inspections which

were logged" (NYSCEF Doc No 103). This testimony raises a question of fact, and even ifDoko

noticed rebars stacked on the platform, it has not been established that he was on notice of the

dangerous practice of Capstone employees climbing on top of the stacks (Burton v CW Equities,

LLC, 97AD3d 462,462 [1st Dept 2012] ["Whether [a party] had the requisite notice of the

dangerous condition is an issue of fact raised by its principal' s testimony that he visited the site

approximately every other day").

Plaintiff has not met his prima facie burden of demonstrating entitlement to judgment as a

matter oflaw, and accordingly, the portion of his motion seeking summary judgment on

Gotham's liability on his Labor Law§ 200 claim will be denied.

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Labor Law § 241 ( 6) Claim

Labor Law§ 241(6) provides that "[a]ll areas in which construction, excavation or

demolition work is being performed shall be so constructed, shored, equipped, guarded,

arranged, operated and conducted as to provide reasonable and adequate protection and safety to

the persons employed therein or lawfully frequenting such places" (Labor Law§ 241[6]). In

order to state a viable Labor Law § 241 claim, a plaintiff must allege that the defendant violated

a specific standard of conduct under the Industrial Code ( Toussaint v Port Auth. of NY, 3 8

NY3d 89, 94 [2022]). Notably, the obligations imposed under Labor Law§ 241 are non-

delegable, meaning that once a plaintiff has established a violation, he need not demonstrate that

the owner or general contractor exercised supervision or control over the worksite (Ross v

Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 502 [1993]; Rizzuto v L.A. Wenger Contr. Co., 91

NY2d 343, 348-49 [1998] ["section 241 (6) imposes liability upon a general contractor for the

negligence of a subcontractor, even in the absence of control or supervision of the worksite"]

[emphasis in original]).

Plaintiff relies on 12 NYCRR § 23-1.16, which governs the use of safety belts, harnesses,

tail lines and safety lines, as the basis for his Labor Law§ 241(6) claim. However, as even

plaintiff seems to recognize (NYSCEF Doc No 103 ["there is no Industrial Code section

addressing the complete failure to provide ladders or scaffolds for reaching materials stored at

elevation"]), his "reliance on alleged violations of 12 NYCRR § [23-1.16] is misplaced"

(Dzieran v 1800 Boston Rd., LLC, 25 AD3d 336,337 [1st Dept 2006]). That section, "which

set[s] standards for [safety belts and harnesses, does] not apply because plaintiff was not

provided with any such safety devices" (id.; Phillip v 525 E. 80th St. Condominium, 93 AD3d

578,579 [1st Dept 2012] [§ 23-1.16 "sets forth only the standards for the use of such devices ...

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and is inapplicable where, as here, defendant did not provide plaintiff with any such devices"];

Cordeiro v TS Midtown Holdings, LLC, 87 AD3d 904, 906 [1st Dept 2011] [where plaintiff fell

from an elevated point, "Supreme Court properly dismissed plaintiffs Labor Law§ 241 (6) claim

to the extent it is based on 12 NYCRR 23-1.16, since plaintiff[] never alleged [that he] was given

defective safety equipment"]).

Accordingly, since plaintiffs Labor Law§ 241(6) claim is not based on an applicable

Industrial Code provision, summary judgment on liability under this section will be denied.

Labor Law§ 240(1) Claim

Labor Law§ 240, known as New York's "Scaffold Law," requires that "[a]ll contractors

and owners and their agents, ... furnish or erect [ladders] and other devices which shall be so

constructed, placed and operated as to give proper protection to a person so employed." (Labor

Law§ 240[1]). "To prevail on a Labor Law§ 240 (1) claim, a plaintiff must establish that the

statute was violated and that the violation was a proximate cause of the injury" (Cutaia v Bd. of

Mgrs. of the 160/170 Varick St. Condo., 38 NY3d 1037, 1042-43 [2022]). The protections of this

section "do not encompass any and all perils that may be connected in some tangential way with

the effects of gravity" (Ross, 81 NY2d at 501). Rather, the injury must be "attributable to the

kind of extraordinary elevation-related risk that the statute was intended to guard against" (Sihly

v New York City Tr. Auth., 282 AD2d 337 [2001]). As with Labor Law§ 241, the obligations

imposed by this section are non-delegable (Ross, 81 NY2d at 500).

Plaintiff has met his prima facie burden by establishing that he was working at an

elevated level (Auriemma v Biltmore Theatre, LLC, 82 AD3d 1, 5 [1st Dept 2011] [four-foot-

deep open pit at worksite constituted an elevation-related hazard]); defendants did not provide

plaintiff with any safety device for the performance of this work (Clavijo v Atlas Terms., LLC,

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104 AD3d 475,476 [1st Dept 2013] [plaintiff entitled to summary judgment where defendant

"failed to provide any safety devices"]); and plaintiffs injury was the direct result of a gravity-

related risk (Naughton v City ofNew York, 94 AD3d 1 [1st Dept 2012] [finding Labor Law§

240(1) liability where defendant failed to provide a ladder, requiring plaintiff to climb on top of

bundles of material on a flatbed truck, from which plaintiff fell]).

Accordingly, since 722 Metropolitan and Gotham failed to raise an issue of fact, or

indeed oppose plaintiffs motion, that portion of plaintiffs motion seeking summary judgment

on his Labor Law § 240(1) claim will be granted (Pichardo v Urban Renaissance Collaboration

Ltd. Partnership, 51 AD3d 472, 472-73 [1st Dept 2008] [granting summary judgment in

plaintiffs favor where "[ d]efendants failed to set forth a conflicting theory ... sufficient to raise

a triable issue of fact"]; Auriemma, 82 AD at 5 ["Because the defendants have not raised an issue

of fact with regard to a violation of the statute or whether the plaintiff was the sole proximate

cause of his own injuries, partial summary judgment is granted in favor of the plaintiff."]).

CONCLUSION

Based on the foregoing, it is

ORDERED that plaintiffs motion for summary judgment on his Labor Law§ 240(1)

claim as against 722 Metropolitan and Gotham is granted, and it is further

ORDERED that plaintiffs motion for summary judgment is otherwise denied.

2/2/2024 DATE PAUL A. GOETZ, 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

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