Marrero v. Gotham Plaza Assocs.

1

2023 NY Slip Op 31995(U)

ANGEL L. MARRERO, Plaintiff, v. GOTHAM PLAZA ASSOCIATES, LLC, BDG GOTHAM PLAZA, LLC,THE SALVATION ARMY, MEGA CONTRACTING GROUP, LLC, REPUBLIC SCAFFOLD & HOIST CORP., URBAN ERECTORS, LLC, URBAN PRECAST, LLC,US CRANE LLC, NYC CRANE HOIST & RIGGING, LLC, NYC CRANE HOIST OPERATIONS, LLC, Defendant.

URBAN PRECAST, LLC Plaintiff, v. Defendant.

Index No. 160382/2017, Third-Party Index No. 595656/2018, Motion Seq. Nos. 002, 004, 005, 006, 007

Supreme Court, New York County

June 14, 2023

Unpublished Opinion

MOTION DATE: 06/28/2022, 12/02/2021, 06/23/2022, 06/24/2022 06/27/2022.

DECISION + ORDER ON MOTIONS

Hon Frank P. Nervo, J.S.C.:

The following e-filed documents, listed by NYSCEF document number (Motion 002) 251,252, 253, 254, 255, 256, 257, 258, 259, 260 261, 262, 263, 264, 265, 266, 267, 268, 269, 270, 271, 272 273, 274, 275, 276, 280, 281, 282, 283, 284, 285, 287, 295, 296, 297, 298, 299, 300, 301, 302, 303, 304, 306, 307, 308, 309, 546 were read on this motion to/for JUDGMENT - SUMMARY

The following e-filed documents, listed by NYSCEF document number (Motion 004) 317,318, 319, 320, 321, 322, 323, 324, 325, 326, 327, 328, 329, 330, 331, 332, 333, 334, 335, 336, 337, 338, 339, 340, 341, 342, 343, 344, 345, 346, 347, 348, 449, 450, 451, 452, 453, 481, 482, 483, 484, 485, 493, 494, 499, 500, 501,502, 503, 514, 515, 516, 532, 536, 537, 538, 547 were read on this motion to/for JUDGMENT - SUMMARY

The following e-filed documents, listed by NYSCEF document number (Motion 005) 349, 350, 351,352, 353, 354, 355, 356, 357, 358, 359, 360, 361, 362, 363, 364, 365, 366, 367, 368, 369, 370, 371, 372, 373, 374, 375, 376, 377, 378, 379, 380, 454, 457, 458, 459, 460, 461, 462, 463, 464, 465, 466, 477, 478, 479, 480, 486, 487, 488, 489, 490, 491, 492, 497, 498, 504, 505, 506, 507, 517, 518, 521, 522, 523, 524, 525, 526, 527, 528, 529, 533, 543,544, 548 were read on this motion to/for PARTIAL SUMMARY JUDGMENT

The following e-filed documents, listed by NYSCEF document number (Motion 006) 381,382, 383, 384, 385, 386, 387, 388, 389, 390, 391, 392, 393, 394, 395, 396, 397, 398, 399, 400, 401, 402, 403, 404, 405, 406, 455, 474, 475, 476, 495, 496, 508, 509, 510, 534, 539, 540, 541,542, 549 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER

The following e-filed documents, listed by NYSCEF document number (Motion 007) 407, 408, 409, 410, 411, 412, 413, 414, 415, 416, 417, 418, 419, 420, 421,422, 423, 424, 425, 426, 427, 428, 429, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440, 441,442, 443, 444, 445, 446, 447, 448, 456, 467, 468, 469, 470, 471,472, 473, 511,512, 513, 519, 520, 530, 535, 545, 550 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER

The parties move and cross-move for, inter alia, summary judgment on this Labor Law matter under motion sequences 002, 004, 005, 006, and 007. The Court heard on-the-record oral argument regarding this and related applications on May 17, 2023. This Decision and Order results.

As relevant here, plaintiff was engaged in construction activity when a beam was caused to fall upon his person during the crane-operated lift of said beam. Plaintiff has asserted claims under Labor Law §§ 200, 240(1), and 241(6) for his injuries. Unsurprisingly, the parties have differing conclusions as to cause of the accident.

On a motion for summary judgment, the burden rests with the moving party to make a prima facie showing they are entitled to judgment as a matter of law and demonstrate the absence of any material issues of fact (Friends of Thayer Lake, LLC v. Brown, 27 N.Y.3d 1039 [2016]). Once met, the burden shifts to the opposing party to submit admissible evidence to create a question of fact requiring trial (Kershaw v. Hospital for Special Surgery, 114 A.D.3d 75 [1st Dept 2013]). "When a plaintiff moves for summary judgment, it is proper for the court to ... deny summary judgment if facts are alleged in opposition to the motion which, if true, constitute a meritorious defense" (Nassau Trust Co. v. Montrose Concrete Products Corp., 56 N.Y.2d 175 [1982]). "Where a defendant moves for summary judgment and establishes a prima facie entitlement to such relief as a matter of law, the burden shifts to the plaintiff to raise a triable issue of fact" (Kesselman v. Lever House Rest., 29 A.D.3d 302 [1st Dept 2006]).

Labor Law §200

Labor Law § 200 is a "codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work" (Comes v. New York State Electric and Gas Corp., 82 N.Y.2d 876, 877 [1993]; Allen v. Cloutier Constr. Corp., 44 N.Y.2d 290 [1978]). It provides, in pertinent part:

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

(Labor Law § 200).

The party responsible under Labor Law § 200 must, therefore, have the control over the activity bringing about the injury (Russin v. Picciano it Son, 54 N.Y.2d 311 [1981]). Accordingly, a breach of Labor Law § 200 is, effectively, a breach of the common law duty to maintain a safe work site (Allen v. Cloutier Constr. Corp., 44 N.Y.2d at 299). If the dangerous condition or defect arises from the contractor's methods, the owner will not be liable under § 200 or the common law, absent a showing the owner exercised some control or supervision over the operation (Comes v. New York State Electric and Gas Corp., 82 N.Y.2d at 877; see also Lombardi v. Stout, 80 N.Y.2d 290, 295 [1992]). However, where the plaintiff s injuries arise from a dangerous condition on the premises not caused by the contractor's methods, liability will attach if the property owner had control over the work site and notice of the dangerous condition (Bradley v. HWA 1290 III LLC, 157 A.D.3d 627 [1st Dept 2018]; Mendoza v. Highpoint Assoc., IX, LLC, 83 A.D.3d 1, 9 [1st Dept 2011]).

Here, issues of fact preclude summary judgment on Labor Law § 200.

Among other things, the parties dispute: who was located at the construction site; the responsibilities of those employed and located at the construction site; what was able to be seen by the crane operator; the appropriate measures to be taken when a crane operator performs a "blind lift" relying on signalpersons to guide the crane operation; and whether plaintiff s own actions contributed to his accident. Put simply, the trier of fact must determine the credibility of various witnesses in the face of competing evidence as to: who was on site, where those persons were located, what those persons saw, and what those persons did leading up to plaintiff's accident.

Labor Law §24 q (i)

Labor Law § 240(1) provides, in pertinent part: all contractors and owners ... 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.

The duty imposed by Labor Law § 240(1) is nondelegable; an owner or contractor may be held liable regardless of whether such party actually exercised supervision or control over the work (Haimes v. New York Tel. Co., 46 NYzd 132 [1978]; compare Russin v. Picciano if Son, 54 N.Y.2d 311 [1981], Labor Law § 200). Labor Law § 240(1) "is to be construed as liberally as may be for the accomplishment of the purpose for which it was ... framed" (Koenig v. Patrick Constr. Corp., 298 NY 313 [1948] quoting Quigley v. Thatcher, 207 NY 66 [1912]). However, the injury claimed under § 240(1) must result from elevation-related hazards, "injuries resulting from other types of hazards are not compensable under that statute even if proximately caused by the absence of an adequate scaffold or other required safety device" (Ross v. Curtis-Palmer Hydro-Electric Co., 21 N.Y.2d 494 [1993] Back strain alleged because platform was placed in manner requiring worker to contort not within class of hazards contemplated by Labor Law § 240[1]; Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509 [1991]). That an accident occurred at an elevated height, without more, is insufficient to trigger the protections of Labor Law § 240(1) (Reyes v. Magnetic Constr., Inc., 83 A.D.3d 512 [1st Dept 2011]; see also Auchampaugh v. Syracuse Univ., 57 A.D.3d 1291 [3d Dept 2008]). Finally, a plaintiff may not recover for a violation of Labor Law § 240(1) where the plaintiff if the sole proximate cause of their own accident (Blake v. Neighborhood Housing Services of New York City, Inc., 1 N.Y.3d 280 [2003]).

Here defendants concede, and indeed there can be no question, that the beam fell from an elevated height striking plaintiff and that the safety devices employed at the construction site were insufficient to afford plaintiff proper protection (see Gallegos v. Bridge Land Vestry, LLC, 188 A.D.3d 566 [1st Dept 2020]). Consequently, and as set forth in the motion papers and as presented at oral argument, the issue before this Court on Labor Law § 240(1) is whether plaintiff was the sole proximate cause of his accident. This Court finds that plaintiff was not the sole cause of his accident as evinced by, among other things: use of guidelines (taglines) of insufficient length to effectively guide the beam during the crane lift;...