Da Silva v. Porter Ave. Holdings

1

2023 NY Slip Op 32166(U)

LUCAS ALVES DA SILVA, Plaintiff, v. PORTER AVE. HOLDINGS LLC, BRUMAN REALTY LLC, APARTMENT DEVELOPERS LLC, EMPIRE MANAGEMENT & CONSTRUCTION LLC and BROOKLYN GC LLC, Defendants.

PORTER AVENUE HOLDINGS LLC and EMPIRE MANAGEMENT & CONSTRUCTIJON LLC, Third-Party Plaintiffs v. MAGELLAN CONCRETE STRUCTURES CORP., Third-Party Defendant.

Index No. 510764/2019, Mot. Seq. Nos. 4, 5

Supreme Court, Kings County

June 23, 2023

Unpublished Opinion

PRESENT: HON. ROBIN S. GARSON, JUSTICE.

DECISION & ORDER

Robin S. Garson, Judge

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

Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed 78-83, 84-106

Opposing Affidavits (Affirmations)_ 112-113,114-120,121,122,123

Affidavits/ Affirmations in Reply _ 126, 127

Other Papers: Upon the foregoing papers, defendants/third-party plaintiffs Porter Avenue Holdings, LLC (Porter) and Empire Management &Construction, LLC (Empire) (collectively, defendants) move (in motion [mot.] sequence [seq.] 4) for an order awarding them summary judgment dismissing plaintiff Lucas Alves DaSilva's (plaintiff) complaint against them. Defendants further move for summary judgment under their third-party contractual indemnification claim against third-party defendant Magellan Concrete Structures Corp. (Magellan). Plaintiff cross-moves (in mot seq. 5) for summary judgment against Porter and Empire under his Labor Law §§ 240 (1) and 241 (6) causes of action. The motion and cross-motion are each granted to the extent as follows:

Background Facts and Procedural History

The instant action arises out of a construction site accident that occurred on March 9, 2018 at the premises located at 1134 Fulton Street, Brooklyn, New York (the building). Prior to the accident, Porter, which owned the building, hired Empire to serve as the general contractor on the underlying construction project, which involved the construction of a multi-story structure containing both commercial space and residential apartment units. Thereafter, in a subcontract agreement dated March 20, 2017, Empire hired plaintiffs employer Magellan to perform concrete work on the project. This work included assembling vertical and horizontal wooden forms, pouring concrete into these forms, and disassembling or "stripping" the formwork once the concrete had sufficiently cured. Among other things, the subcontract agreement contained a clause whereby Magellan agreed to indemnify Empire and Porter "from and against all liability or claimed liability for bodily injury ... arising out of or resulting from the Work covered by this Contract Agreement to the extent such work was performed by or contracted through [Magellan]."

At the time of the accident, Magellan was the only subcontractor working at the jobsite and the construction project was in its early stages. In particular, the building's foundation had been excavated and the concrete that would ultimately form the ground floor/basement ceiling of the structure had been poured into the aforementioned forms. On the morning of the accident, plaintiff was directed by his Magellan supervisor, Jaala Olivieri, to assist in stripping the formwork in the basement of the building. According to plaintiff, this work involved stacking and organizing pieces of the forms that had already been removed by his coworkers. Immediately before the accident, plaintiff was asked by his coworker, Fernando Rezende, to assist him in removing a piece of 2" x 8" wooden planking from the basement ceiling which was paid of the formwork. In order to reach this planking, plaintiff set up a 16-foot A-frame ladder and climbed to the second or third highest rung. Mr. Rezende also set up an A-frame ladder approximately 10 feet away from plaintiff and climbed his ladder with the intention of removing the other end of the planking.^[1] However, as plaintiff reached for the piece of planking, it unexpectedly broke free from the ceiling and struck the ladder. This in turn caused the ladder to topple over and collapse. As a result, plaintiff fell to the basement floor and sustained various injuries.^[2]There is no evidence before the court regarding what caused the plank to fall.

At his deposition, plaintiff testified that he was wearing a safety harness at the time of the accident. However, plaintiff was never questioned as to whether he affixed the harness to an anchor point using a lanyard, if there were any anchor points in the ceiling in the location where he was working, or if he was even provided with a lanyard. In an affidavit submitted by plaintiff, his co-worker Mr. Rezende states that "[s]afety harnesses were provided to us, but we could not tie off because the pieces to attach the harnesses were not provided. There was nothing to attach the harness to." Magellan's principal, Jonathan Rocchio testified that all of Magellan's workers were provided with lanyards that could be attached to fixed holding points and that they were required to use this safety equipment when working at heights greater than six feet. When asked if there was an anchor point for plaintiff to use at the time of the accident, Mr. Rocchio testified that, "I wasn't at the location to know exactly where this incident occurred. So I don't recall exactly. But typically there is - within a 10-foot radius you typically have an attach point."

By summons and complaint dated May 13, 2019, plaintiff commenced the instant action against Porter and Empire alleging that tire underlying accident was caused by their negligence, as well as their violation of Labor Law §§ 240 (1), 241 (6), and 200.^[3]Subsequently, plaintiff filed a bill of particulars which alleged that Porter and Empire violated 12 NYCRR 23-1.7 (a), 23-1.11, 23-1.22 (c), 23-2.1, 23-2.2 23-2.7, 23-3.3, 23-5.1, and 23-5.3. After being served with the summons and complaint, Porter and Empire joined issue by filing a joint answer generally denying the allegations in the complaint. On or about December 11, 2019, Porter and Empire commenced a third-party action against Magellan seeking contractual indemnification, common-law indemnification, and damages for breach of contract to procure liability insurance. Discovery is now complete and the instant motions are now before the court.

Plaintiffs Labor Law § 240 (1) Cause of Action

Porter and Empire move for summary judgment dismissing plaintiff's Labor Law § 240 (1) cause of action. At the same time, plaintiff cross-moves for summary judgment against Porter and Empire under this cause of action. In support of this branch of their motion, Porter and Empire note that the plank, which fell from the ceiling, was not an object that was being hoisted or secured at the time of the accident. In addition, Porter and Empire argue that there is no evidence that the plank fell because of the absence or inadequacy of a safety device of the kind enumerated in the statute. Thus, according to Porter and Empire, the work that plaintiff was performing arose out of the ordinary and usual dangers associated with construction work, and did fall under the extraordinary protection offered under Labor Law § 240 (1) against gravity-related risks. In addition, Porter and Empire argue that plaintiff was not engaged in work protected under the statute at the time of the accident. In this regard, Porter and Empire note that plaintiff was merely climbing the ladder at the time of the accident and was not engaged in stripping work. In addition, Porter and Empire argue that there is no evidence that the ladder that plaintiff fell from was defective. In support of this contention, Porter and Empire note that plaintiff testified that he checked the ladder before climbing it and determined that it was safe and in good working order.

Porter and Empire also argue that plaintiff's own actions were the sole proximate cause of the accident. In support of this contention, Porter and Empire point to the deposition testimony Mr. Rocchio. In particular, as previously noted, Mr. Rocchio testified that all Magellan workers were provided with harnesses and lanyards, that there were tie-off points to which Magellan's workers could attach their safety harness lanyards within a 10-foot radius of locations where the workers were required to work, and that these workers were instructed to use this safety equipment elevations above six feet. In addition, Mr. Rocchio testified that if there was nowhere to tie off, Magellan's workers were expected to "do something else." Finally, Mr. Rocchio testified that stripping work was to be performed by three workers, with one of those workers holding the ladder used by the other workers. Thus, Porter and Empire maintain that plaintiff's actions in failing to affix his harness to a tie off point and in failing to ensure that the ladder that he climbed was being held by a coworker was the sole proximate cause of the accident.

In opposition to this branch of Porter and Empire's motion, and in support of his own cross motion for summary judgment under Labor Law § 240 (1), plaintiff maintains that the accident was caused by two separate violations of the statute. In particular, plaintiff argues that the failure to secure the plank that fell from the ceiling constituted a violation of Labor Law § 240 (1) and that under relevant caselaw, there is no need for him to prove what exactly caused the planlc to fall. In addition, plaintiff avers that the accident was caused by Porter and Empire's failure to properly secure the ladder as required under the statute. In this regard, plaintiff notes that he fell some 16 feet to the ground after the ladder collapsed.

In further support of his cross motion for summary judgment under Labor Law § 240 (1), and in opposition to d...