Barrera-Romero v. Wythe Holdings LLC

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2024 NY Slip Op 30163(U)

SIDNEY BARRERA-ROMERO, Plaintiff, v. WYTHE HOLDINGS LLC., PH 296 WHYTHEILLC. and YNH. CONSTRUCTION INC., Defendants WYTHE HOLDINGS LLC., PH 296 WHYTHEILLC. and Y.N.H. CONSTRUCTION INC., Third-Party Plaintiff(s), v. CORE SCAFFOLD SYSTEMS, INC., Third-Party Defendant CORE SCAFFOLD SYSTEMS, INC., Second Third-Party Plaintiff, v. K&V GARCIA CORP., Second Third-Party Defendant.

Index No. 501879/2020, Mot. Seq. Nos. 4, 5

Supreme Court, Kings County

January 10, 2024

Unpublished Opinion

PRESENT: HON. DEBRA SILBER, Justice.

DECISION/ORDER

HON DEBRA SILBER, Justice.

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

Notice of Motion/Cross Motion and Affidavits (Affirmations) Annexed 98-124, 128-129, 131

Opposing Affidavits (Affirmations) 134-135, 140-143, 145 146-152

Replies 144, 155, 158, 162, 164, 172 Upon the foregoing papers, all three defendants/third-party plaintiffs, Wythe Holdings LLC., (Wythe), PH 296 Wythe I LLC (PH 296) and Y.N.H. Construction, Inc., (YNH) (collectively, defendants) move (in motion [mot.] sequence [seq.] number [no.] 4) for an order: 1) pursuant to CPLR 3212, granting them summary judgment dismissing plaintiff s complaint, which asserts claims under Labor Law §§ 240 (1), 241 (6), 200 and common law negligence; 2) granting them summary judgment against third-party defendant Core Scaffold Systems Inc., (Core) and second third-party defendant K&V Garcia Corp., (K&V) on defendants' third-party claims and cross claims for contractual indemnification, breach of contract to provide insurance coverage, common law indemnification and contribution; 3) granting them summary judgment dismissing any and all cross claims and/or counterclaims asserted against defendants by Core; and 4) pursuant to CPLR 3124, 2221, 3212 (a), and 2004, for leave to conduct the examination before trial of Core and to renew and/or refile the instant summary judgment motion after completion of said examination before trial.^[1] Plaintiff Sidney Barrera-Romero (plaintiff) cross-moves (in mot. seq. no. 5) for an order granting him partial summary judgment on his Labor Law §§ 240 (1) and 241 (6) claims.

Background and Procedural History

Defendants Wythe and PH 296 (the owner defendants) were the joint owners of the premises located at 296 Wythe Avenue in Brooklyn, New York at the time of plaintiff's accident. Plaintiff was working there on a project which involved the demolition of an existing building and the construction of a new building. The owners retained YNH as its construction manager for the project. YNH subcontracted with Core for the construction of the scaffolding and sidewalk bridge. Core then sub-subcontracted with second third-party defendant K&V to actually perform the scaffolding and sidewalk bridge work. Plaintiff testified at his EBT that he was employed by Core as a helper and that he received all of his instructions regarding what work to perform from a Core foreman. Specifically, he testified that his supervisor was a person named Vicente. Plaintiffs duties included bringing materials and tools to his coworkers who were working on constructing the sidewalk bridge and the scaffolding. The sidewalk bridge was approximately 14 feet high. Plaintiff had been working at the site for approximately three days prior to his accident, which occurred on September 13, 2019. On that day, he was working on top of the sidewalk bridge with several coworkers. After working for two to three hours, plaintiff attempted to descend from the sidewalk bridge to the sidewalk. With his left foot and hands on the platform of the sidewalk bridge, plaintiff put his right foot on the first horizontal cross beam, but plaintiff was not able to then bring his left foot down to a cross beam, so he attempted to move his right foot to the other side of the cross beam. At that point, his right foot slipped, causing plaintiff to fall to the ground and sustain injuries. Plaintiff testified that there was no ladder present at the site to use to access the platform of the sidewalk bridge, or any type of lift or elevator. He further testified that there was no guardrail or safety railing in the area where he was working.

On or about January 24, 2020, plaintiff commenced this action against defendants, asserting claims for negligence and the violation of Labor Law §§ 200, 240(1) and 241(6). Defendants joined issue via the e-filing of a verified answer dated March 16, 2020. Defendants commenced the First Third-Party Action against Core via e-file on June 12, 2020. Core answered and asserted counter claims against defendants, by e-filing an answer on August 19, 2020. Core commenced the Second Third-Party Action against K&V via e-file on July 19, 2021. K&V was served via the New York State Secretary of State on July 26, 2021. Defendants allege that they served their cross claims [Doc 96] against K&V via e-file and/or first class mail^[2] on January 13, 2022. K&V did not answer the second third party action or the cross claims.

The parties engaged in discovery and plaintiff filed his Note of Issue and Certificate of Readiness on November 22, 2022. Defendants then timely moved for summary judgment. Plaintiffs cross motion was filed approximately two weeks past the deadline for moving for summary judgment.^[3] However, the law in the Second Department is that "[a]n untimely motion or cross motion for summary judgment may be considered by the court where a timely motion for summary judgment was made on nearly identical grounds" (Munoz v Salcedo, 170 A.D.3d 735 [2d Dept 2019]). Accordingly, the court will determine the merits of both motions.

The Parties' Motion and Cross Motion

All three defendants seek an order: 1) pursuant to CPLR 3212, granting them summary judgment dismissing plaintiff's claims arising under Labor Law §§ 240 (1), 241 (6), 200 and common law negligence; and 2) for summary judgment on behalf of all defendants/third-party plaintiffs against Core and K&V on defendants' claims for contractual indemnification, breach of contract to provide insurance coverage, common law indemnity and contribution. Defendants also seek an Order dismissing Core's counterclaims for common law indemnification and contribution. Plaintiff cross-moves for an order granting him partial summary judgment under his Labor Law §§ 240 (1) and 241 (6) claims.

In support of their motion, defendants argue that plaintiff's complaint should be dismissed as against all defendants because he was the sole proximate cause of his accident. Defendants claim that plaintiff decided to descend the sidewalk bridge by using the cross beams without any instruction or direction to do so from the moving defendants. They further assert that all of plaintiff's claims should be dismissed as against YNH, as it was merely the construction manager and thus is not subject to liability. In this regard, defendants contend that YNH was only responsible for scheduling subcontractors' work at the job site, ensuring that the subcontractors' work fell within the budget and was performed in a timely manner. YNH maintains that it exercised only general supervisory control over the work being performed and did not have the authority to stop plaintiffs work.

Specifically, defendants argue that plaintiff's Labor Law § 240 (1) claim should be dismissed as there is no evidence that the sidewalk bridge was defective or inadequately secured. They contend that plaintiff s accident was caused solely by his misstep on a metal beam while descending the sidewalk bridge. Defendants note that there is no testimony establishing that the sidewalk bridge collapsed, tipped over, wobbled, or moved in any respect. Defendants further point out that plaintiff and his coworkers had used the horizontal beams to ascend and descend from the bridge on the days prior to, and on the day of his accident, without incident, and that plaintiff did not identify any defect in the beams.

In opposition, and in support of the branch of plaintiff's cross motion seeking summary judgment in his favor on his Labor Law § 240 (1) claim, plaintiff argues that defendants' failure to provide him with adequate safety devices was the proximate cause of his fall and resulting injuries. Specifically, plaintiff notes that his testimony is undisputed -- he was not provided with a ladder to safely access the sidewalk bridge, and the sidewalk bridge lacked any form of railing to prevent the workers from falling off the edge during the construction of the scaffold. Plaintiff further points out that defendants concede that they did not provide a safety belt, harness or any type of safety line to plaintiff. Thus, plaintiff argues that defendants violated Labor Law § 240 (1) and any actions he took could not be considered the sole proximate cause of his accident.

Discussion

"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 summary judgment 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" (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...