Arizaga v. Lex Gardens II TP4 Hous. Dev. Fund Co.

2023 NY Slip Op 50237(U)

Jamie Arizaga, Plaintiff(s), v. Lex Gardens II TP4 Housing Development Fund Company, Inc., LEXINGTON GARDEN OWNERS LLC, LEX GARDENS II TP4 LLC, LEX GARDENS HOUSING DEVELOPMENT FUND COMPANY, INC. and CONGRESS BUILDERS LLC, Defendant(s).

LEX GARDENS II TP4 HOUSING DEVELOPMENT FUND COMPANY, INC., LEXINGTON GARDEN OWNERS LLC, LEX GARDENS II TP4 LLC, LEX GARDENS HOUSING DEVELOPMENT FUND COMPANY, INC. and CONGRESS BUILDERS LLC, Third-Party Plaintiffs, v. MILL CREEK CONSTRUCTION CORP., Third-Party Defendant.

Index No. 712392/2018

Supreme Court, Queens County

March 7, 2023

Unpublished Opinion

William Schwitzer & Associates, for plaintiff

Brody O'Connor & O'Conner, for defendants/third party plaintiffs (1) Lex Gardens II TP4 Housing Development Fund Company, Inc., (2) Lexington Garden Owners LLC, (3) Lex Gardens II TP4 LLC, Congress Builders LLC

Sobel Pevzner, LLC, for defendant Lex Gardens Housing Development Fund Company, Inc.

Wade Clark Mulcahy, for third-party defendant Mill Creek Construction Corp.

Denis J. Butler, J.

The following papers were read on this motion (Seq. 4) by plaintiff Jamie Arizaga for an order granting plaintiff partial summary judgment pursuant to CPLR 3212 as to his Labor Law 240(1) claim against defendants Lex Gardens II TP4 Housing Development Fund Company, Inc., Lexington Gardens Owners LLC, Lex Gardens II TP4 LLC (hereinafter Lex Gardens) and Congress Builders LLC (hereinafter Congress, and together with Lex Gardens, defendants/third party plaintiffs); and motion (Seq. 6) by defendants/third party plaintiffs for an order: (1) pursuant to CPLR 3212 granting summary judgment and dismissing the complaint; and (2) pursuant to CPLR 3212 granting defendants/third party plaintiffs summary judgment against third-party defendant Mill Creek Construction Corp. (hereinafter Mill Creek), on defendants/third party plaintiffs' claims for contractual indemnity and breach of contract for failing to comply with the insurance procurement clause.

(SEQUENCE 004)

Papers Numbered

Notice of Motion, Affirmation, Exhibits. E119-134

Affirmation in Opposition, Exhibits. E159-163

Affirmation in Opposition, Exhibits, Memo of Law. E174-178

Reply Affirmation. E213

(SEQUENCE 006)

Papers Numbered

Notice of Motion, Affirmation, Exhibits and Memorandum of Law. E179-200

Plaintiff's Affirmation In Opposition, Exhibits. E202-203

Affirmation in Partial Opposition, Exhibits. E204-209

Reply Affirmation, Exhibits, Memo of Law. E210-212

Upon the foregoing papers, it is ordered that these motions are determined as follows:

On June 14, 2018, plaintiff, a construction worker employed by third-party defendant Mill Creek, was performing carpentry-related work at the subject premises when the scaffold platform plaintiff was standing on lifted up, then fell back down, causing plaintiff to lose his balance and fall.

Defendant/third party plaintiff Lex Gardens owned the subject premises defendant/third party plaintiff Congress was the general contractor retained to oversee work at the subject premises, and third-party defendant Mill Creek was retained as a subcontractor to perform concrete and excavation related work at the subject premises.

The Court first addresses the motion by plaintiff (Seq. 4) seeking partial summary judgment against defendants/third party plaintiffs on plaintiff's Labor law 240(1) cause of action, in which plaintiff alleges he is entitled to summary judgment on his Labor Law 240(1) claim because his injury occurred due to an inadequately secured scaffold "which collapsed," and caused plaintiff to fall from a height.

Defendants/third party plaintiffs, and third-party defendant Mill Creek, separately oppose plaintiff's motion on grounds there are triable issues of fact as to whether plaintiff fell from a height, or whether plaintiff fell onto the scaffold platform itself.

A proponent for summary judgment must make a prima facie showing of entitlement to summary judgment through the submission of sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 24 [1986]). Once the movant establishes prima facie entitlement to summary judgment, it is incumbent upon the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of triable issues of fact (see Zuckerman v City of New York, 49 N.Y.2d 557, 63 [1980]). Summary judgment is "a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues" (Andre v Pomeroy, 35 N.Y.2d 361, 364 [1974]).

Labor Law 240(1) imposes a nondelegable duty upon owners, general contractors, and their agents, to provide scaffolding which is "so constructed, placed and operated as to give proper protection" to employees using it (Labor Law 240[1]). To make a prima facie showing of liability under Labor Law 240(1) plaintiff must establish the statute was violated and that the violation was a proximate cause of his or her injuries (see Felix v Klee & Woolf, LLP, 138 A.D.3d 920, 921 [2d Dept 2016]). The statute, however, "is intended to provide 'extraordinary protections [applicable] only to a narrow class of dangers. More specifically, [the statute] relates only to special hazards presenting elevation-related risks'" (Christiansen v Bonacio Const., Inc., 129 A.D.3d 1156, 1157 [3d Dept 2015], quoting Nicometi v Vineyards of Fredonia, LLC, 25 N.Y.3d 90, 97 [2015]; see Eddy v John Hummel Custom Builders, Inc., 147 A.D.3d 16, 20 [2d Dept 2016]). Elevation-related risks "are limited to [] specific gravity-related accidents [such] as falling from a height" (Ross v Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d 494, 501 [1993]), from "a 'physically significant elevation differential'" (Christiansen v Bonacio Const., Inc., 129 A.D.3d 1156, 1157, quoting Runner v New York Stock Exch., Inc., 13 N.Y.3d 599, 603 [2009]). "Merely because a worker is injured while working above ground does not ipso facto mean that the injury resulted from an elevation-related risk contemplated by Section 240(1) of the Labor Law" (Guallpa v Canarsie Plaza, LLC, 144 A.D.3d 1088, 1090 [2d Dept 2016] [internal quotation marks omitted]; see Jones v City of New York, 166 A.D.3d 739, 740 [2d Dept 2018]).

Plaintiff, in support, annexed, inter alia, his deposition testimony, wherein he attested that in the course of performing "stripping work" while on the subject scaffold, the scaffold plank lifted and "tipped," causing plaintiff to lose his balance and fall. Plaintiff also annexed the expert affidavit of Kathleen Hopkins, a "Certified Site Safety Manager" who opined the scaffold planks at issue were inadequately secured, failed to protect plaintiff from height related risks, and thus violated Labor Law 240(1). Generally, the failure of the unsecured scaffold would give "rise to 'a prima facie showing that the statute was violated and that the violation was a proximate cause of [plaintiff's] injuries'" (Debennedetto v Chetrit, 190 A.D.3d 933, 936 [2d Dept 2021], quoting Dos Santos v State of New York, 300 A.D.2d 434, 434 [2d Dept 2002]).

Defendants/third party plaintiffs, and third-party defendant Mill Creek, relying on plaintiff's deposition testimony, assert there are triable issues of fact as to whether plaintiff was injured due to an elevation related risk (see D'Ambruoso v Port Auth. of New York & New Jersey, 211 A.D.3d 573, 573 [1st Dept 2022]; Bonaparte v Niagara Mohawk Power Corp., 188 A.D.2d 853 [3d Dept 1992]). Plaintiff testified during his deposition on February 27, 2020, that he fell approximately "two feet" and hit his shoulder on the "lateral side of the scaffold," and during his deposition on February 22, 2021, that he told his doctor he fell "on a scaffold" (see Smith v County of Nassau, 242 A.D.2d 380, 381 [2d Dept 1997]; see generally Christiansen v Bonacio Const., Inc., 129 A.D.3d 1156, 1158). This evidence, viewed in the light most favorable to defendants/third party plaintiffs as the nonmoving parties (see Pearson v Dix McBride, LLC, 63 A.D.3d 895 [2d Dept 2009]), presents a triable issue of fact as to whether plaintiff's fall was caused "by [a] height differential" (Polonia v 14 Sutton Tenants Corp., 210 A.D.3d 417, 418 [1st Dept 2022]), or that plaintiff fell "from an elevation" (Smith v County of Nassau, 242 A.D.2d 380, 381), as required to bring plaintiff's injury within the ambit of Labor Law § 240(1). While plaintiff asserts that during his January 28, 2021, deposition he testified that he fell "like five feet" off of the side of the scaffold and into the metal scaffold assembly, this evidence was inconsistent with plaintiff's other deposition testimony, and therefore failed to resolve issues of fact whether plaintiff fell from a height (see 6243 Jericho Realty Corp. v AutoZone, Inc., 27 A.D.3d 447, 449 [2d Dept 2006]; Rodriguez v New York City Hous. Auth., 194 A.D.2d 460, 462 [1st Dept 1993]).

As such, the motion by plaintiff (Seq. 4) seeking partial summary judgment pursuant to CPLR 3212 as to plaintiff's Labor Law 240(1) claim against defendants/third party plaintiffs, is denied.

The Court next addresses the motion by defendants/third party plaintiffs (Seq. 6) seeking (1) summary judgment and dismissal of plaintiff's complaint, and (2) summary judgment on defendants/third party plaintiffs' third-party claims against third-party defendant Mill Creek for contractual indemnification and breach of contract.

The first branch of defendants/third party plainitffs' motion seeks summary judgment and dismissal of plaintiff's Labor Law 240(1) cause of action on grounds an investigation by third-party defendant Mill Creek into the accident determined plaintiff fell on the same level where he was working plaintiff gave...