Heredia v. GCB Inc.

1

2022 NY Slip Op 34524(U)

ANTHONY HEREDIA, Plaintiff, v. GCB INC., JBR CARPENTERS & DRYWALL INC. and SURA BINE LLC., G BUILDERS NY LLC., G BUILDERS MANAGEMENT INC., G BUILDERS USA INC., and GREENFIELD CUSTOM BUILDERS INC., Defendants.

GCB INC., Third-Party Plaintiff, v. METRO HIGH TECH STEEL & BUILDERS, INC., and H&S STEEL BUILDER CORP., Third-Party Defendants.

Index No. 520359/2017, NYSCEF Doc. No. 189, Motion Cal. No. 22-25, Mot. Seq. Nos. 6, 7, 8, 9

Supreme Court, Kings County

October 3, 2022

Unpublished Opinion

RECEIVED NYSCEF: 10/11/2022

Motion Date: 9/7/2022

DECISION AND ORDER

Richard J. Montelione, Judge

After oral argument, the following papers were read on the respective motions pursuant to CPLR 2219(a):

Papers

NYSCEF DOC.#

Plaintiffs motion dated January 6, 2020 (MS#6) (I) Pursuant to CPLR 3212 granting Plaintiff partial summary judgment on the issue of liability against Defendants Sura Bine LLC and GCB INC. for violations of Labor Law§ 240(1) and§ 240 (6); (2) Pursuant to CPLR § 3126 striking Defendants Sura Bine LLC and GCB INC.'s Answers for their willful failure to comply with Court Ordered discovery including plaintiffs Post-EBT demands dated August 22, 20 I 9 and September 25, 20 I 9; (3) Pursuant to CPLR § 3126 precluding Defendants Sura Bine LLC and GCB INC. from offering any evidence that

Papers

NYSCEF DOC.#

Plaintiff should not have been working on the subject construction site on the date of the accident; (4) That the matter be set down for a trial on the issue of damages only; attorney affirmation of Michael Peters, Esq., affirmed on January 6, 2020; Exhibits A-S ....

87-108

Defendant/Third-Party Plaintiff GCB Inc. 's attorney affirmation of Lisa M. Rolle, affirmed on November 3, 2022 in opposition to Plaintiff's motion (MS#6)

171

Plaintiff's reply attorney affirmation of Michael Peters, Esq., affirmed on November 4, 2020, to Defendant GCB's Affirmation in Opposition (MS#6)

173

Defendant Sura Bina, LLC's cross-motion (MS#7) dated March 18, 2020 pursuant to CPLR 3212, (A) granting Sura Bine LLC's cross-motion for summary judgment on liability against plaintiff; (B) granting Sura Bine's cross-motion for summary judgment on common-law and contractual indemnification claims against Defendant GCB, Inc.; attorney affirmation of Meyer Y. Silber, Esq., affirmed on March 18, 2020; Exhibit A; Affidavit of Alex Carasco, sworn to on January 26, 2020

110-113

Plaintiff's attorney affirmation of Michael Peters, Esq., affirmed on October 30, 2020 in opposition to Defendant's cross-motion (MS#7) and in further support of motion (MS#6); Exhibit A

144

Defendant/Third-Party Plaintiff GCB Inc.'s attorney affirmation of Lisa M. Rolle, affirmed on November 3, 2020 in opposition to Defendant Sura Bine LLC's motion for summary judgment (MS#7) .

172

Defendant/Third-Party Plaintiff GCB, Inc.'s motion dated June 10, 2020 (MS#8) pursuant to CPLR 3212, granting Defendant/Third-Party Plaintiff GCB Inc. summary judgment dismissing all claims and cross claims in their entirety; attorney affirmation of Lisa M. Rolle, affirmed on June 10, 2020; Exhibit A-S

116-136

Plaintiff's affirmation in opposition to Defendant GCB's motion for summary judgment (MS#8)

146

Defendant Sura Bine LLC's attorney affirmation of Meyer Y. Silber, affirmed on De ember 21, 2020 in further support of cross-motion (MS#8) and Reply for MS#7 & 8; Exibits A-B; attorney affirmation of Meyer Y. Silber, affirmed on December 22, 2020 in opposition to MS#6; Exhibit A-D

175-183

Third-Party Defendant H&S Steel Builder Corp.'s motion dated November 2, 2020 (M S#9) (1) Pursuant to CPLR § § 603 and 1010, severing the third-party action against H&S Steel Builder Corp. as discovery in the main action is complete and a Note of Issue was filed, or alternatively; (2) Extending H&S Steel Builder Corp.'s time to move for Summary judgment until 120 days following the completion of all outstanding discovery in the third-party action; attorney affirmation of Sasha Grandison, affirmed on November 2, 2020; Exhibit A-H, 1-1 through 1-5, J, K, L 1 through L3, M-P

147

Third-party Defendant H&S Steel Builder Corp.'s attorney affirmation of Sasha Grandison, affirmed on January 21, 2021, in reply (MS#9)

186

MONTELIONE RICHARD J., J.

This action was commenced by filing the summons and complaint on October 20, 2017. The plaintiff claims violations of the Labor Law. Plaintiff is a welder who was injured on October 2, 2017 while on a job site located at 311 Woodbine Street, Brooklyn, NY while using an allegedly defective ladder. The complaint was amended on April 3, 2018. Issue was joined on May 15, 2018 by GCB Inc. ("GCB") filing an answer. Other defendants subsequently appeared and answered. A default judgment dated July 19, 2018 was granted against defendant JBR Carpenters &Dry wall Inc. A default judgment dated March 1, 2019 was granted against defendants G Builders Management Inc. and Greenfield Custom Builders Inc.

Plaintiff Anthony Heredia ("Heredia" or "plaintiff') was employed by third-party defendant Metro High Tech Steel &Builders Inc. ("Metro"). Defendant Sura Bine LLC ("Sura") is the owner as reflected in a deed for the property located at 311 Woodbine Street, Brooklyn, NY where the accident occurred. Through written contract with the owner dated September 11, 2017, defendant GCB is the general contractor. By contract dated June 22, 2017, GCB hired Metro and H&S Steel Builder Corp. ("H&S") to perform construction work involving installation of steel beams on the premises.

GCB asserts that claims under the Labor Law do not apply because Metro and H&S were not authorized to work on the date of the accident. Mendy Gluck ("Gluck"), GCB's project manager, specifically instructed Alex Carasco ("Carasco"), the principal of Metro, to suspend work for three weeks because of a trip he was taking abroad. Carasco states that he was given this direction (NYSCEF&113), but that he forgot about a steel beam delivery and therefore instructed his employees to report to work even though he knew that he was not supposed to do so. There is no evidence that plaintiff ever learned of GCB's direction that Metro was not to do any work until Gluck's return.

GCB is listed as the insurance policy holder, and Sura, as an additional insured, under a certificate of insurance effective August 3, 2017 through August 3, 2018, which does not cover the date of the accident, issued by Lloyds of London as primary insurer. (NYSCEF#177). Labor Law § 200(1). General duty to protect health and safety of employees; enforcement

1. All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons. The board may make rules to carry into effect the provisions of this section.

Labor Law § 240(1):

All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.

Labor Law § 240(6):

All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.

Liabilities under the Labor Law are described in Garcia v Emerick Gross Real Estate, L.P, 196 A.D.3d 676, 152 N.Y.S.3d 462, 465, 2021 NY Slip Op 04540, 2021 WL 3177756 (AD 2d Dept 2021):

"Labor Law § 240(1) imposes upon owners, contractors, and their agents a nondelegable duty to provide workers proper protection from elevation-related hazards" (Zoto v. 259 W. 10th, LLC, 189 A.D.3d 1523, 1524, 134 N.Y.S.3d 728; see Labor Law § 240[1]). To establish liability pursuant to Labor Law § 240(1), a plaintiff must demonstrate a violation of the statute and that such violation was a proximate cause of his or her injuries (see Blake v. Neighborhood Hous. Servs. of N.Y. City, Inc., 1 N.Y.3d 280, 287-289, 771 N.Y.S.2d 484, 803 N.E.2d 757). "Although comparative fault is not a defense to the strict liability of the statute, where the plaintiff is the sole proximate cause of his or her own injuries, there can be no liability under Labor Law § 240(1)" (Lojano v. Soiefer Bros. Realty Corp., 187 A.D.3d 1160, 1162, 134N.Y.S.3d 363; see Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 39, 790 N.Y.S.2d 74, 823 N.E.2d 439).

The elements for common-law and contractual indemnification are found in Crutch v 421 Kent Dev., LLC, 192 A.D.3d 977, 981, 146 N.Y.S.3d 155, 159, 2021 NY Slip Op 01751, 2021 WL 1112925 (AD 2d Dept 2021):

In order to establish a claim for common-law indemnification, a party must prove not only that it was not negligent, but also that the proposed indemnitor's actual negligence contributed

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