Berrezueta v. 12 Ave. Real Prop.

1

2024 NY Slip Op 30252(U)

HENRY BERREZUETA, Plaintiff, v. 12 AVE REAL PROPERTY LLC, JJSS DH LLC, TSANG CONSTRUCTION, INC., and YU HUA CONSTRUCTION CORP., Defendants.

Index No. 518718/2020, Mot. Seq. 4 & 5

Supreme Court, Kings County

January 17, 2024

Unpublished Opinion

DECISION / ORDER

Hon Debra Silber, J.S.C.

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

Notice of Motion, Affidavits (Affirmations), and Exhibits Annexed 69-82;83-97

Opposing Affidavits (Affirmations) and Exhibits Annexed .....................................................................................112_101-106_

Reply Affirmations ................................................................................................................................................113_114

Upon the foregoing papers in this action to recover damages for personal injuries, defendants 12 AVE REAL PROPERTY LLC, and TSANG CONSTRUCTION, INC., (hereafter "12 Ave" and "Tsang") move, pursuant to CPLR 3212, in motion sequence #4, for an order granting them summary judgment and entirely dismissing the plaintiff s complaint as against them. Plaintiff moves, pursuant to CPLR 3212, (motion sequence number 5) for an order granting him partial summary judgment on the issue of liability on his cause of action under Labor Law § 240 (1) as against defendants 12 Ave and Tsang.

Plaintiffs complaint, dated October 2, 2020 (NYSCEF Doc No. 1), asserts causes of action premised on violations of Labor Law §§ 240 (1), 241 (6), and 200, as well as for common-law negligence. His lawsuit stems from a construction-site accident which took place on June 9, 2020. Plaintiff named four different defendants in the complaint. An answer was interposed [Doc 9] on December 7, 2020 by one law firm on behalf of two of the defendants, 12 Ave and Tsang. Plaintiff moved for a default judgment order as against the other two defendants, which was granted on October 26, 2021. The note of issue was filed on January 31 2023, and the case is on the trial calendar. The next appearance is on January 22, 2024.

Plaintiff claims he was injured while working for non-party Right Choice Construction Corp.^[1] The job site, located at "6301/6323 12th Avenue, also known as 1202/1216 63rd Street, also known as 1284 63rd Street, also known as 1201/1215 64th Street" (complaint) in Brooklyn, NY, was owned by defaulting defendant JJSS DH LLC and by moving defendant 12 Ave, as tenants in common, on the date of plaintiffs accident. About a month after plaintiffs accident, 12 Ave transferred all of its interest in the property to JJSS DH LLC, and that entity transferred it to different parties subsequently. It was known as Block 5739, Lots 1, 5 and 10, which are three adjacent parcels. Currently, Lot 1, which is a landmarked property that had been a church-owned property, is owned by an entity named 630112^th Ave LLC. Lot 5 is owned by an entity named 1222 Realty Group LLC, and Lot 10 was transferred back to defendant 12 Ave Real Property LLC. Defendant 12 Ave as Sponsor filed a condominium declaration in 2022, for a condominium called Dyker Gardens Condominium. Defendants' counsel avers that defendant Tsang was the construction manager, and as it was not the general contractor, it is not a proper Labor Law defendant, and that plaintiffs claims should be dismissed against this defendant on this basis [Doc 70 ¶5].

The court must address a procedural issue first. The defendants' motion was timely made, but plaintiffs motion was filed a few days late. It is noted that under the "good cause" analysis of Brill v. City of WL2 N.Y.3d 648 [2004], and CPLR 3212 (a) governing untimely motions for summary judgment, the court may entertain a cross motion which addresses nearly the identical issues as a timely motion (see e.g., Lennard v Khan, 69 A.D.3d 812, 814 [2d Dept 2010]; Grandev v Peteroy, 39 A.D.3d 590, 591-592 [2d Dept 2007]). It is well settled that "an untimely cross motion for summary judgment may be considered by the court where ... a timely motion for summary judgment was made on nearly identical grounds" (see Snolis v Clare, 81 A.D.3d 923, 925 [2011]). This is clearly applicable here, even though plaintiff does not call his motion a cross-motion.

Next, a determination must be made on the issue of whether Tsang is a proper Labor Law defendant. The NYC Buildings Department issued a permit to Tsang Construction Inc. in March of 2020, which lists this entity as General Contractor # GC-039964. It is for the installation of a construction fence at 630112^th Avenue, Brooklyn, and states that it is issued "in conjunction with New Building Permit # 321830426", for a new building on Lot 10 of the same block, known as 1238 63^rd Street. This building, now a condominium, has 146 apartments, according to the NY State Attorney General's Real Estate Financing database.^[2] Defendants do not provide anything in support of its claim that Tsang was not the general contractor other than the testimony of its witness, Mark Chin. He testified [Doc 78 Page 16] that there was a contract between Tsang Construction and Right Choice, but no copy is provided. Right Choice was plaintiffs employer. There is no contract between the owner and any contractor, general or subcontractor, provided and no building permits. Mr. Chin was asked if he was familiar with a project at 1250 63^rd Street, and he said yes, it was new construction and that it was also known as 1238 63^rd Street. Tsang is listed as the general contractor on the building permit for that new construction. It is their liability insurance that was provided to the Buildings Department so the permit would be issued. Therefore, the court concludes that Tsang was the general contractor for the project and is thus subject to the Labor Law.

The court next turns to consideration of the merits of the motions.

Labor Law 240 (1)

Defendants move for summary judgment dismissing plaintiffs Labor Law § 240 (1) cause of action. They support their motion with an affirmation of counsel, the pleadings, the EBT transcripts for the plaintiff and of Mark Chin for Tsang, the decision of the Workers' Compensation Board, a memo of law, and an incident report. Plaintiff moves for summary judgment on his Labor Law § 240 (1) cause of action against the two appearing (and moving) defendants. Plaintiff supports his motion with an affirmation of counsel, the pleadings, plaintiff s bills of particulars, the EBT transcripts of plaintiff and defendant Tsang, as well as one of non-party Wesley Braz, and an expert affidavit from a certified site safety manager.

Plaintiff was deposed on October 22, 2021 and November 23, 2021 [Docs 76 and 77]. He was provided with a Spanish interpreter. Plaintiff testified that he has not worked since the accident. He has gained 38 pounds. He is currently approximately forty-three years old. He uses a cane to walk. He came to the United States from Ecuador on March 11,2020, a few months before this accident. He came here for work, and started work right away, as he had a cousin named Manuel who remodeled homes [Doc 76 Page 34], He worked for his cousin for around a month and was paid in cash. Then the work "dried up" presumably due to the Covid-19 Pandemic. He has an OSHA certificate which he obtained after he stopped working for his cousin. One day in May of 2020 he walked into a construction site near his cousin's home, and was hired by someone he met there, Mr. Wally [id. Pages 39-43], Mr. Wally was the foreman for EBW Construction. Plaintiff worked there for approximately three weeks until the date of his accident. They paid him in cash, on Fridays. Mr. Wally gave him a work vest, which said EBW, and a hard hat. Plaintiff said he worked from 7:00 a.m. to 5 p.m. He was supervised by Mr. Wally. Plaintiff could not say if Wally's legal name was Wesley Braz.

Plaintiff testified that on the day of his accident, he signed in, put on his vest and hard hat and proceeded to work. This is as far as he got when the deposition was stopped because he said he was in too much pain to continue. The deposition continued on November 23, 2021. Plaintiff said he had also been given goggles and gloves, but he brought his own tools. Wally was the only one who assigned him his tasks. There were some safety meetings, but they were held in English, and he did not go. That day, in addition to being asked to pick up the trash, Wally gave him a shovel "to remove some dirt and some wood" [Doc 77 Page 14]. Mr. Wally gave him a dolly to put the wood on. He had a hammer of his own. The basement was still a dirt floor. They were going to pour cement. He had to clean from the first floor up to the third floor. He had a co-worker named "Flaco." He worked with him regularly, and he was with him that entire day. At around 3:30 p.m., he thinks he was on the second floor, and while he was picking up garbage, a metal pipe fell and hit him, causing him to fall to the ground. It hit him on his left shoulder, his left knee and his left foot. There was a video that he was shown previously, and said that he identified himself in it, laying on the ground.

Plaintiff was then asked additional questions about the accident. He did not know who had placed the metal "poles" where they were. He referred to them as having been "installed." He could not provide the specifications for the poles. He said the pole hit his foot first, then his shoulder, which knocked him down. The pole then fell to the ground. Flaco came right up to him while he was on the ground and said he would go find Wally [id. Page 28]. Wally came to see him shortly afterwards. A number of people came over to him, helped him up and took him to a "company car" and brought him...