Siguencia v City of New York 2024 NY Slip Op 32822(U) August 12, 2024 Supreme Court, New York County Docket Number: Index No. 161392/2018 Judge: Sabrina Kraus 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. 161392/2018 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 08/12/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. SABRINA KRAUS PART 57M Justice ---------------------------------------------------------------------------------X INDEX NO. 161392/2018 FRANKLIN SIGUENCIA, 04/09/2024, Plaintiff, MOTION DATE 05/15/2024
-v- MOTION SEQ. NO. 002 003
THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF EDUCATION, THE NEW YORK CITY DECISION + ORDER ON SCHOOL CONSTRUCTION AUTHORITY MOTION Defendants. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 79, 80, 81, 82, 84, 85, 86, 87 were read on this motion to/for JUDGMENT - SUMMARY .
The following e-filed documents, listed by NYSCEF document number (Motion 003) 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 83, 88, 89, 90, 91, 92, 93, 94 were read on this motion to/for PARTIAL SUMMARY JUDGMENT .
BACKGROUND
Plaintiff commenced this labor law action seeking summary judgment for injuries he
sustained while working as a laborer on a construction project for a New York City public
school. Both parties have move for summary judgment. The motions are consolidated herein
and granted to the extent set forth below.
ALLEGED FACTS
On April 23, 2018, plaintiff was working at the PS 333 construction project in
Manhattan, as a laborer for Hilt Construction, Inc. ("Hilt"). Plaintiff was not employed by
defendants at the time of his alleged accident. The weather conditions that day were sunny and
there was no rain or snow.
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Plaintiff received instructions from the general foreman, "Mohammed", his supervisor
also named Mohammed, and another supervisor, "Alfredo". All three of these gentlemen were
employed by Hilt and provided plaintiff with his job duties as a laborer.
On the date of the alleged incident, plaintiff was instructed by his general foreman,
Mohammed, to help one of the bricklayers. The bricklayer instructed plaintiff to take the planks
from the ground level and move them to the scaffold platform on the fourth level.
The planks were located in the back of the school, on ground level, about ten to fifteen
feet away from where plaintiff stood talking with the bricklayer. The planks were made of
aluminum and were about six to eight feet in length, about one and a half feet wide, and about
two inches thick.
Defendants allege, and plaintiff originally testified that plaintiff was never given specific
instructions as to the manner by which to transport the planks onto the scaffolds. Plaintiff
amended his deposition testimony to allege that a Bricklayer told him to carry the planks up the
stairs. Plaintiff acknowledges a pulley/hoist was available for use and would have been the more
appropriate manner in which to move the planks, but alleges it was on the other side of the
school, and he followed the instructions of the bricklayer. The identity of the bricklayer was
never established.
Plaintiff also acknowledges he has testified to different versions of how the accident
occurred. However, essentially as plaintiff was carrying the first plank up the scaffold/stairs,
other workers were coming down. Exactly how he fell is subject to different versions including
which hand was holding the plank and the railing and whether he lost his balance.
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DISCUSSION
To prevail on a motion for summary judgment, the movant must establish, prima facie,
its entitlement to judgment as a matter of law, providing sufficient evidence demonstrating the
absence of any triable issues of fact. CPLR 3212(b); Matter of New York City Asbestos Litig., 33
NY3d 20, 25-26 (2019). If this burden is met, the opponent must offer evidence in admissible
form demonstrating the existence of factual issues requiring a trial; “conclusions, expressions of
hope, or unsubstantiated allegations or assertions are insufficient.” Justinian Capital SPC v
WestLB AG, 28 NY3d 160, 168 (2016), quoting Gilbert Frank Corp. v Fed. Ins. Co., 70 NY2d
966, 967 (1988). In deciding the motion, the evidence must be viewed in the “light most
favorable to the opponent of the motion and [the court] must give that party the benefit of every
favorable inference.” O’Brien v Port Auth. of New York and New Jersey, 29 NY3d 27, 37 (2017).
Plaintiff's Labor Law §§ 241(6), 200 Claims, Negligence Claims and OSHA Claims Are Dismissed
Plaintiff did not submit opposition to that part of defendant’s summary judgment motion
seeking dismissal of plaintiff's Labor Law §§ 241(6) and 200 claims, common law negligence
claims, and OSHA claims. These claims are therefore dismissed as abandoned. See Kuehne &
Nagel v. Baiden, 36 N.Y.2d 539, 544 (1975); Madeline D'Anthony Enters., Inc v. Sokolowsky,
101 A.D.3d 606 (1st Dep't 2012); Arteaga v. 231/249 W39 Street Corp., 45 A.D.3d 320, 321 (1st
Dep't 2007).
The 240(1) Claim is Not Subject to Summary Judgment
The Court finds that questions of fact remain to be resolved at trial on the 240(1) claim.
These include, but are not limited to, exactly how the accident happened, and whether or not
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plaintiff was directed to carry the plank up the stairs instead of using the hoist, or whether he had
decided to do so on his own.
WHEREFORE it is hereby:
ORDERED that Defendant’s motion for summary judgment is granted to the extent of
dismissing the causes of action predicated on Labor Law §§ 241(6) and 200, common law
negligence claims, and OSHA claims, and is otherwise denied; and it is further
ORDERED that plaintiff’s motion for summary judgment is denied; and it is further
ORDERED that, within 20 days from entry of this order, defendants shall serve a copy of
this order with notice of entry on the Clerk of the General Clerk's Office (60 Centre Street, Room
119); and it is further
ORDERED that such service upon the Clerk shall be made in accordance with the
procedures set forth in the Protocol on Courthouse and County Clerk Procedures for
Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address
www.nycourts.gov/supctmanh);]; and it is further
ORDERED that any relief not expressly addressed has nonetheless been considered and
is hereby denied; and it is further
ORDERED that the counsel appear for a pre-trial conference on September 19, 2024, at
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Siguencia v City of New York 2024 NY Slip Op 32822(U) August 12, 2024 Supreme Court, New York County Docket Number: Index No. 161392/2018 Judge: Sabrina Kraus 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. 161392/2018 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 08/12/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. SABRINA KRAUS PART 57M Justice ---------------------------------------------------------------------------------X INDEX NO. 161392/2018 FRANKLIN SIGUENCIA, 04/09/2024, Plaintiff, MOTION DATE 05/15/2024
-v- MOTION SEQ. NO. 002 003
THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF EDUCATION, THE NEW YORK CITY DECISION + ORDER ON SCHOOL CONSTRUCTION AUTHORITY MOTION Defendants. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 79, 80, 81, 82, 84, 85, 86, 87 were read on this motion to/for JUDGMENT - SUMMARY .
The following e-filed documents, listed by NYSCEF document number (Motion 003) 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 83, 88, 89, 90, 91, 92, 93, 94 were read on this motion to/for PARTIAL SUMMARY JUDGMENT .
BACKGROUND
Plaintiff commenced this labor law action seeking summary judgment for injuries he
sustained while working as a laborer on a construction project for a New York City public
school. Both parties have move for summary judgment. The motions are consolidated herein
and granted to the extent set forth below.
ALLEGED FACTS
On April 23, 2018, plaintiff was working at the PS 333 construction project in
Manhattan, as a laborer for Hilt Construction, Inc. ("Hilt"). Plaintiff was not employed by
defendants at the time of his alleged accident. The weather conditions that day were sunny and
there was no rain or snow.
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Plaintiff received instructions from the general foreman, "Mohammed", his supervisor
also named Mohammed, and another supervisor, "Alfredo". All three of these gentlemen were
employed by Hilt and provided plaintiff with his job duties as a laborer.
On the date of the alleged incident, plaintiff was instructed by his general foreman,
Mohammed, to help one of the bricklayers. The bricklayer instructed plaintiff to take the planks
from the ground level and move them to the scaffold platform on the fourth level.
The planks were located in the back of the school, on ground level, about ten to fifteen
feet away from where plaintiff stood talking with the bricklayer. The planks were made of
aluminum and were about six to eight feet in length, about one and a half feet wide, and about
two inches thick.
Defendants allege, and plaintiff originally testified that plaintiff was never given specific
instructions as to the manner by which to transport the planks onto the scaffolds. Plaintiff
amended his deposition testimony to allege that a Bricklayer told him to carry the planks up the
stairs. Plaintiff acknowledges a pulley/hoist was available for use and would have been the more
appropriate manner in which to move the planks, but alleges it was on the other side of the
school, and he followed the instructions of the bricklayer. The identity of the bricklayer was
never established.
Plaintiff also acknowledges he has testified to different versions of how the accident
occurred. However, essentially as plaintiff was carrying the first plank up the scaffold/stairs,
other workers were coming down. Exactly how he fell is subject to different versions including
which hand was holding the plank and the railing and whether he lost his balance.
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DISCUSSION
To prevail on a motion for summary judgment, the movant must establish, prima facie,
its entitlement to judgment as a matter of law, providing sufficient evidence demonstrating the
absence of any triable issues of fact. CPLR 3212(b); Matter of New York City Asbestos Litig., 33
NY3d 20, 25-26 (2019). If this burden is met, the opponent must offer evidence in admissible
form demonstrating the existence of factual issues requiring a trial; “conclusions, expressions of
hope, or unsubstantiated allegations or assertions are insufficient.” Justinian Capital SPC v
WestLB AG, 28 NY3d 160, 168 (2016), quoting Gilbert Frank Corp. v Fed. Ins. Co., 70 NY2d
966, 967 (1988). In deciding the motion, the evidence must be viewed in the “light most
favorable to the opponent of the motion and [the court] must give that party the benefit of every
favorable inference.” O’Brien v Port Auth. of New York and New Jersey, 29 NY3d 27, 37 (2017).
Plaintiff's Labor Law §§ 241(6), 200 Claims, Negligence Claims and OSHA Claims Are Dismissed
Plaintiff did not submit opposition to that part of defendant’s summary judgment motion
seeking dismissal of plaintiff's Labor Law §§ 241(6) and 200 claims, common law negligence
claims, and OSHA claims. These claims are therefore dismissed as abandoned. See Kuehne &
Nagel v. Baiden, 36 N.Y.2d 539, 544 (1975); Madeline D'Anthony Enters., Inc v. Sokolowsky,
101 A.D.3d 606 (1st Dep't 2012); Arteaga v. 231/249 W39 Street Corp., 45 A.D.3d 320, 321 (1st
Dep't 2007).
The 240(1) Claim is Not Subject to Summary Judgment
The Court finds that questions of fact remain to be resolved at trial on the 240(1) claim.
These include, but are not limited to, exactly how the accident happened, and whether or not
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plaintiff was directed to carry the plank up the stairs instead of using the hoist, or whether he had
decided to do so on his own.
WHEREFORE it is hereby:
ORDERED that Defendant’s motion for summary judgment is granted to the extent of
dismissing the causes of action predicated on Labor Law §§ 241(6) and 200, common law
negligence claims, and OSHA claims, and is otherwise denied; and it is further
ORDERED that plaintiff’s motion for summary judgment is denied; and it is further
ORDERED that, within 20 days from entry of this order, defendants shall serve a copy of
this order with notice of entry on the Clerk of the General Clerk's Office (60 Centre Street, Room
119); and it is further
ORDERED that such service upon the Clerk shall be made in accordance with the
procedures set forth in the Protocol on Courthouse and County Clerk Procedures for
Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address
www.nycourts.gov/supctmanh);]; and it is further
ORDERED that any relief not expressly addressed has nonetheless been considered and
is hereby denied; and it is further
ORDERED that the counsel appear for a pre-trial conference on September 19, 2024, at
11:00 am where the Court will set a trial date for this action.
This constitutes the decision and order of the Court.
8/12/2024 DATE SABRINA KRAUS, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
GRANTED DENIED X GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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