Rodriguez v. VillageFH, LLC

2024 NY Slip Op 31071(U)
CourtNew York Supreme Court, New York County
DecidedApril 1, 2024
StatusUnpublished

This text of 2024 NY Slip Op 31071(U) (Rodriguez v. VillageFH, LLC) is published on Counsel Stack Legal Research, covering New York Supreme Court, New York County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rodriguez v. VillageFH, LLC, 2024 NY Slip Op 31071(U) (N.Y. Super. Ct. 2024).

Opinion

Rodriguez v VillageFH, LLC 2024 NY Slip Op 31071(U) April 1, 2024 Supreme Court, New York County Docket Number: Index No. 154863/2018 Judge: Arlene P. Bluth 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. 154863/2018 NYSCEF DOC. NO. 200 RECEIVED NYSCEF: 04/01/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ARLENE P. BLUTH PART 14 Justice ---------------------------------------------------------------------------------X INDEX NO. 154863/2018 ROBERTO RODRIGUEZ, MOTION DATE N/A, N/A Plaintiff, MOTION SEQ. NO. 004 005 -v- VILLAGEFH, LLC,SMI CONSTRUCTION MANAGEMENT, DECISION + ORDER ON INC., MOTION Defendant. ---------------------------------------------------------------------------------X

VILLAGEFH, LLC, SMI CONSTRUCTION MANAGEMENT, Third-Party INC. Index No. 595480/2020

Plaintiff,

-against-

DONATO, INC. and INTERIOR ROCK, INC.,

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

The following e-filed documents, listed by NYSCEF document number (Motion 004) 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 159, 161, 163, 169, 170, 171, 172, 173, 174, 175, 176, 177, 183, 185, 189, 190, 191, 196, 197, 198 were read on this motion to/for SUMMARY JUDGMENT .

The following e-filed documents, listed by NYSCEF document number (Motion 005) 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 160, 162, 164, 178, 179, 180, 181, 182, 184, 186, 188, 192, 193, 194, 195 were read on this motion to/for JUDGMENT - SUMMARY .

Motion Sequence numbers 004 and 005 are consolidated for disposition. Defendants

VillageFH, LLC and SMI Construction Management’s motion (MS004) for summary judgment

dismissing all claims against it is granted in part and denied in part and plaintiff’s cross-motion

for partial summary judgment on his Labor Law § 240(1) claim and to amend his bill of 154863/2018 RODRIGUEZ, ROBERTO vs. VILLAGEFH, LLC Page 1 of 14 Motion No. 004 005

1 of 14 [* 1] INDEX NO. 154863/2018 NYSCEF DOC. NO. 200 RECEIVED NYSCEF: 04/01/2024

particulars to add an Industrial Code Section is granted in part and denied in part. The motion

(MS005) by third-party defendant Interior Rock, Inc. (“Interior Rock”) for summary judgment is

granted in part and denied in part.

Background

This Labor Law case arises out of an accident involving plaintiff on September 13, 2016.

On the day of the accident, plaintiff was working for non-party Jovin Demo New York, Inc.

(“Jovin”), a demolition contractor at a job site in Manhattan. Defendant SMI Construction

Management, Inc. (“SMI”) was the general contractor.

Plaintiff testified that Jovin was hired to “Break debris and chop down some metal”

(NYSCEF Doc. No. 119 at 64). Plaintiff added that he was told he was going to be cutting steel

on the fourth floor (id. at 68). After plaintiff and his coworkers arrived at the jobsite, Jovin’s

foreman told him to do downstairs and clear “out the debris that’s dropping from the fourth floor

to the basement” and take it out to the street (id. at 74).

When asked to describe the basement, plaintiff testified that “It was a war zone. You

have planks everywhere. Certain areas were being excavated and some places weren’t, some

places were already done, and we had our section where we were working in the pit” (id. at 80).

Plaintiff insisted that the planks were put down so workers would not have to walk in a ditch

during the excavation (id.). Prior to his accident, plaintiff estimated that he made about 25 to 35

trips from the basement to the dumpster outside as part of his debris removal task (id. at 89).

Plaintiff testified that his accident occurred as he was leaving the basement while

carrying a full load of debris on his back (id. at 93-94). He added that “they filled up the bucket

and hoisted it up on my back. When I’m going out, somebody was coming in. That’s when –

when we got to each other, that’s when I went straight into the hole (indicating) because we

154863/2018 RODRIGUEZ, ROBERTO vs. VILLAGEFH, LLC Page 2 of 14 Motion No. 004 005

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nipped each other and I went straight into the hole. If there was a railing there, if there was a

railing there, I would have bounced back off and kept going, like a boxing match, a wrestling

match. It wasn’t that. I went straight into the hole. He dropped his bucket. He came to help me

and I couldn’t get up, my legs were numb” (id. at 94). Plaintiff estimated the fall was about two

feet (id. at 95).

Unfortunately, this is not the only version of the accident offered by plaintiff. When

plaintiff sought medical treatment, he offered somewhat conflicting accounts of how he was hurt

that ranged from assertions that he “slipped and fell,” “he fell backwards” and that he “suffered a

mechanical fall due to an uneven floor” (NYSCEF Doc. No. 190). None of these records suggest

that his fall was caused because a co-worker bumped into him. And neither plaintiff’s deposition

testimony nor his bill of particulars suggests that he slipped and fell.

VillageFH LLC

Defendants seek summary judgment with respect to VillageFH on the ground that this

defendant is entitled to the homeowner’s exception to the Labor Law.

“In 1980, the Legislature amended Labor Law §§ 240 and 241 to exempt owners of one

and two-family dwellings who contract for but do not direct or control the work” from the

absolute liability imposed by these statutory provisions. The amendments, intended by the

Legislature to shield homeowners from the harsh consequences of strict liability under the

provisions of the Labor Law, reflect the legislative determination that the typical homeowner is

no better situated than the hired worker to furnish appropriate safety devices and to procure

suitable insurance protection” (Bartoo v Buell, 87 NY2d 362, 367, 639 NYS2d 778 [1996]).

154863/2018 RODRIGUEZ, ROBERTO vs. VILLAGEFH, LLC Page 3 of 14 Motion No. 004 005

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“The homeowner exemption to liability under Labor Law § 240(1) is available to owners

of one-and two-family dwellings who contract for the performance of work on the premises, but

who do not direct or control the work. Where . . . the property is used for both residential and

commercial purposes, the courts employ a flexible site and purpose test to determine whether the

work contracted for directly relates to the residential use of the building so as to warrant

application of the exemption” (Nicholas v Phillips, 151 AD3d 731, 731, 54 NYS3d 675 [2d Dept

2017] [citations omitted]).

Here, VillageFH met its burden in the moving papers through the affidavit from the

general contractor SMI, which noted that VillageFH did not direct or control the work and

attached a certificate of occupancy for the property that shows it is a single-family residence

(NYSCEF Doc. No. 122).

Plaintiff did not raise an issue of fact concerning the application of the homeowner’s

exception. He contends that the property was commercial on the date of the accident. But that is

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Bluebook (online)
2024 NY Slip Op 31071(U), Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodriguez-v-villagefh-llc-nysupctnewyork-2024.