Argudo v. 80 Adams Prop. Owner

1

2024 NY Slip Op 31122(U)

MIGUEL ARGUDO, Plaintiff, v. 80 ADAMS PROPERTY OWNER, LLC, HOPE STREET CAPITAL, LLC, TRITON CONSTRUCTION COMPANY INC. and EAST-END CONCRETE CORP., Defendants.

Index No. 514166/19

Supreme Court, Kings County

March 25, 2024

Unpublished Opinion

PRESENT: HON. INGRID JOSEPH, Justice

DECISION & ORDER

HON INGRID JOSEPH, JUSTICE

The following e-filed papers read herein: NYSCEF Doc Nos.:

Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed 62-75

Opposing Affidavits (Affirmations) 78-79

Affidavits/Affirmations in Reply 81

Upon the foregoing papers, defendants 80 Adams Property Owner, LLC (80 Adams), Hope Street Capital, LLC (Hope Street), Triton Construction Company Inc., (Triton) and East-End Concrete Corp. (East-End) (collectively, defendants) move (in motion sequence number 3) for an order, pursuant to CPLR 3212 granting summary judgment dismissing plaintiffs claims arising under Labor Law §§ 240 (1), 241 (6), 200 and common law negligence.

This matter involves an accident that occurred on October 15 2018, at a project involving the construction of a condominium building located at 80 Adams Street in Brooklyn. Defendant 80 Adams was the owner of the property and had entered into a contract with Triton to serve as the general contractor for the project. Triton subcontracted with non-party Highbury Concrete (Highbury) to perform superstructure concrete, which involved pouring the concrete for the structure of the building as well as columns and floor slabs. Plaintiff was employed by Highbury as a street foreman and was responsible for receiving deliveries of materials to the site to be used by Highbury. Typically, the materials would be unloaded from trucks using a forklift and then placed in a "staging area" where the materials would remain until they were brought into the building. The Highbury staging area was located on the sidewalk and a portion of the street on the Adams Street side of the property.

Plaintiff testified that some of the materials, such as plywood shoring posts, would be brought into the building manually. He further testified that other materials unloaded from the trucks and moved within the construction site, but outside of the building, were moved using a barela, which is a wheeled basket used to take materials to the staging area. Plaintiff noted that the barelas could not be brought into the building because there was a ramp leading up to the first floor that could not support the weight of the barela and the materials contained therein. Accordingly, a crane or forklift would be used to bring the materials into the building area.

Plaintiff further testified that the day prior to his accident, a delivery of approximately 50-100 pieces of rebar was received and placed in the staging area at his direction. He noted that the rebar remained in that area because the crane that was needed to bring the rebar into the building was broken and thus the materials could not be moved into the building. The next day, October 15, 2018, plaintiff and two of his co-workers were moving various materials that were unloaded from trucks and needed to be moved to the staging area. At some point, they began moving a barela that was loaded with steel beams. While they were in the process of lifting it approximately two feet onto the curb in the staging area, plaintiff tripped on the rebar that had been placed there the day prior, causing him to fall and sustain various injuries.

Plaintiff commenced the instant action by filing a summons and verified complaint on June 26, 2019. Defendants joined issue by filing a verified answer on August 21, 2019. On or about September 13, 2019, plaintiff served his verified bill of particulars. Depositions were conducted and plaintiff filed his note of issue on May 25, 2023.

Defendants move for summary judgment dismissing plaintiffs claims arising under Labor Law §§ 240 (1), 241 (6) and 200 and common law negligence. "Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it 'should only be employed when there is no doubt as to the absence of triable issues of material fact'" (Kolivas v Kirchoff 14 A.D.3d 493, 493 [2d Dept 2005], citing Andre v Pomeroy, 35 N.Y.2d 361, 364 [1974]; see Sucre v Consolidated Edison Co. of N.Y., Inc., 184 A.D.3d 712, 714 [2d Dept 2020]). "The proponent for the summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate absence of any material issues of fact" (Sanchez v Ageless Chimney Inc., 219 A.D.3d 767, 768 [2d Dept 2023], citing Alvarez v Prospect Hospital, 68 N.Y.2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985].

Once a moving party has made a prima facie showing of its entitlement to summary judgment, the burden shifts to the opposing party to produce admissible evidence to establish the existence of material issues of fact which require a trial for resolution (see Gesuale v Campanelli & Assocs., 126 A.D.3d 936, 937 [2d Dept 2015]; Garnhdm & Han Real Estate Brokers v Oppenheimer, 148 A.D.2d 493, 494 [2d Dept 1989]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad, 64 N.Y.2d at 853; Skrok v Grand Loft Corp., 218 A.D.3d 702 [2d Dept 2023]; Menzel v Plotnick, 202 A.D.2d 558, 558-559 [2d Dept 1994]).

The Court will first address Labor Law § 240 (1). The purpose of Labor Law § 240 (1) is to protect workers "from the pronounced risks arising from construction work site elevation differentials" (Runner v New York Stock Exch., Inc., 13 N.Y.3d 599, 603 [2009]; see also Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 514 [1991]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501 [1993]). Consequently, Labor Law § 240 (1) applies to accidents and injuries that directly flow from the application of the force of gravity to an object or to the injured worker performing a protected task (see Gasques v State of New York, 15 N.Y.3d 869 [2010]; Vislocky v City of New York, 62 A.D.3d 785, 786 [2d Dept 2009], Iv dismissed 13 N.Y.3d 857 [2009]). The statute is designed to protect against "'such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured'" (Ross v DD 11th Ave., LLC, 109 A.D.3d 604, 604-605 [2d Dept 2013], quoting Ross, 81 N.Y.2d at 501). "[L]iability arises under Labor Law § 240 (1) only where the plaintiffs injuries are the 'direct consequence' of an elevation-related risk, not a separate and ordinary tripping or slipping hazard" (Schutt v Dynasty Transp. of Ohio, Inc., 203 A.D.3d 858, 860-861 [2d Dept 2022], quoting Nicometi v Vineyards of Fredonia, LLC, 25 N.Y.3d 90, 98-99 [2015], quoting Runner, 13 N.Y.3d at 60; see Melber v 6333 Main St., 91 N.Y.2d 759 [1998]).

The duty to provide the required "proper protection" against elevation-related risks is nondelegable; therefore, owners, contractors and their agents are liable for the violations even if they have not exercised supervision and control over either the subject work or the injured worker (see Zimmer v Chemung County Performing Arts, Inc., 65 N.Y.2d 513, 521 [1985] [owner or contractor is liable for Labor Law § 240 (1) violation "without regard to . . . care or lack of it"]; see Roblero v Bais Ruchel High Sch., Inc., 175 A.D.3d 1446, 1447 [2d Dept 2019]). "To succeed on a cause of action under Labor Law § 240 (1), a plaintiff must establish that the defendant violated its duty and that the violation proximately caused the plaintiff s injuries" (id).

Here, plaintiffs testimony reveals that his Labor Law § 240 (1) claim arises out of his tripping over rebar while moving a basket of materials with his co-workers. Thus, defendants argue that inasmuch as plaintiff did not fall from a higher level to a lower level, his accident did not involve a physically significant elevation differential. Moreover, they note that he was not struck by an object that was elevated above the worksite. Defendants point out that plaintiffs testimony reveals that he and his co-workers lifted the barela only two feet off the ground to get it onto the sidewalk and plaintiff admits that he was never struck by the barela.

In opposition, plaintiff appears to be arguing that Labor Law § 240 (1) is applicable because the barela he was lifting at the time of his accident should not have been moved manually by hand due to its weight, and instead should have been moved by a forklift. In support of his opposition, plaintiff points to various cases, the majority of which involve a plaintiff struck by a falling object, which is distinguishable from the facts herein.

The court finds that defendants have demonstrated, prima facie that Labor Law § 240 (1) is inapplicable in this case. Plaintiffs testimony that he tripped and fell over the rebar at ground level has demonstrated that the alleged accident is "unrelated to any elevation risk," and that the absence or inadequacy of any safety device was not the cause of his fall (Schutt, 203 A.D.3d at 861; see Nicometi, 25 N.Y.3d at 98-99; Cohen v Memorial Sloan-Kettering Cancer Ctr., 11 N.Y.3d 823, 825 [2008]; Nieves v Five Boro Air Conditioning & Refrigeration Corp., 93 N.Y.2d 914 [1999]; Castro v Wythe Gardens, LLC, 217 A.D.3d 822, 825 [2d Dept 2023]; Krarunzhiy v 91 Cent. Park W. Owners Corp., 212 A.D.3d 722, 723 [2d Dept 2023]; Sanchez v 74 Wooster Holding, LLC, 201 A.D.3d 755, 756 [2d Dept 2022] Lopez v Edge 11211, LLC, 150A.D.3d 1214, 1215 [2d Dept 2017]). Accordingly, that branch of defendants' motion seeking dismissal of plaintiff s Labor Law § 240 (1) cause of action is...