Molina v. Brooklyn GC LLC

2022 NY Slip Op 30540(U)

KENNY OMAR MOLINA Plaintiff, v. BROOKLYN GC LLC, GEDALIA WERDE, 1550 BEDFORD AVE LLC, and ALL YEAR MANAGEMENT LLC, Defendants.

BROOKLYN GC LLC and 1550 BEDFORD AVE LLC, Third-Party Plaintiffs, v. MONCON, INC. Third-Party Defendant.

Index No. 511367/19

Supreme Court, Kings County

February 14, 2022

Unpublished Opinion

Ingrid Joseph, Judge

The following c-filed papers read herein:

NYSCEF Nos.

Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed

50-52. 54-61, 90-104

Opposing Affidavits (Affirmations)

73-88, 144.146

Affidavits/Affirmations in Reply

147

Other Papers: Memoranda of Law

53, 145, 148

Plaintiff Kenny Omar Molina ("plaintiff) moves (Motion Seq. 2) for an order, pursuant to CPLR § 3212, granting partial summary judgment as to liability on his Labor Law §§ 240 (1) and 241 (6) claims. Defendants/third-party plaintiffs Brooklyn GC LLC ("Brooklyn GC") and 1550 Bedford Ave LLC ("1550 Bedford") move (Motion Seq. 3) for an order pursuant to CPLR § 3212, granting summary judgment dismissing the plaintiffs complaint as against them and defendant Gedalia Werde.

This action arises out of an incident in which the plaintiff sustained injuries on January 24, 2019, while working at premises located at 1550 Bedford Avenue in Brooklyn, New York ("the premises"). Defendant 1550 Bedford is the owner of the premises which, at the time, was undergoing the construction of a new building. Brooklyn GC was the general contractor for the construction project. Third-party defendant Moncon, Inc., ("Moncon") was retained on the project to perform the concrete and rebar work. At the time of the accident, the plaintiff was employed by Moncon as an iron worker.

During his deposition, the plaintiff testified that his work for Moncon involved assembling metal columns and walls of metal and rebar into which concrete was to be poured. Walter Bersian was the Moncon foreman in charge. On the date of the accident, Bersian assigned the plaintiff to work in the basement with two Moncon co-workers, Saul Hernandez and Manuel. Plaintiff and his co-workers were instructed to remove plywood forms that were supporting a recessed ceiling in the basement. Plaintiff and his co-workers took turns using a scaffold to reach the ceiling and using hammers to remove the plywood. The scaffold was about six feet above the basement floor. Just before the accident occurred, Hernandez and Manuel were on the scaffold platform in the process of removing the plywood. Once they removed the plywood, they would hand it down to plaintiff, who was standing on the basement tloor. The plaintiff would then carry the plywood to another location where it was being stacked. At some point, while standing on the basement floor, the plaintiff began draining water from his gloves that had gotten wet from the day before. As he did so. Hernandez began striking a metal support with his hammer, which slipped out of his glove and fell down on the plaintiff striking him in his left eye. Plaintiff described the hammer as being made of metal with a rubber grip on the outside, and weighing about four to ten pounds. At the time of the accident, plaintiff was wearing a hard hat, but not goggles. Plaintiff testified that he did not have goggles with him at the worksite. lie claimed that he had asked a man named Frank from the safety company at the site for goggles on prior occasions but was told none were onsite. Although Frank promised to bring some goggles plaintiff claims he never did so. Plaintiffs co-workers Hernandez and Manuel also had not been provided with any goggles or safety glasses.

Plaintiff subsequently commenced this action against Brooklyn GC Gedalia Werde, 1550 Bedford and All Year Management LLC seeking to recover for the injuries he allegedly sustained, asserting claims under common-law negligence. Labor Law §§ 200, 240(1) and 241 (6).^[1]

Discussion

Plaintiff seeks for an order, pursuant to CPLR § 3212, granting partial summary judgment as to liability on his Labor Law §§ 240 (1) and 241 (6) claims as premised upon 12 NYCRR § 23-1.8 (a) and 23-1.7 (a) (1). Brooklyn GC and 1550 Bedford (collectively. defendants) move (Motion Seq. 3) for an order, pursuant to CPLR § 3212, granting summary judgment dismissing plaintiffs complaint as against them as well as against Gedalia Werdc, who was Brooklyn GC's project superintendent at the time of the accident. Summary judgment is a drastic remedy and may be granted only when it is clear that no triable issue of fact exists (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). The moving party is required to make a prima facie showing of entitlement to judgment as a matter of law, and evidence must be tendered in admissible form to demonstrate the absence of any material issues of fact (see Alvarez, 68 N.Y.2d at 324; see also Zuckerman v City of New York, 49 N.Y.2d 557 [1980]). The papers submitted in the context of the summary judgment application are always viewed in the light most favorable to the party opposing the motion (see Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 A.D.2d 610 [2d Dept 1990]). If the initial prima facie showing has been met, the burden then shifts to the opposing party to present sufficient evidence to establish the existence of material issues of fact requiring a trial (see CPLR § 3212 [b]; see also Alvarez, 68 N.Y.2d at 324; Zuckerman, 49 N.Y.2d at 562). Generally, the party seeking to defeat a motion for summary judgment must tender evidence in opposition in admissible form, and "mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient." (Zuckerman, 49 N.Y.2d at 562).

In support of his motion, the plaintiff argues that the activity in which he was engaged as an iron worker during the course of a construction project clearly falls within the ambit of Labor Law § 240 (1). He further argues that he has demonstrated his prima facie entitlement to judgment as a matter of law through the submission of his deposition testimony which establishes that he was hit by an unsecured hammer that fell approximately six feet from above, thereby striking him in the eye. Plaintiff contends that when workers are using hand tools, including hammers, at elevated worksites like scaffolding, it is critical that these tools, which are known to slip from gloved and even bare hands, be secured against failing. Thus, plaintiff argues that the accident occurred due to defendants' failure to ensure that the hammer in question was secured with a lanyard to Hernandez's wrist, and that their failure to provide such protection from falling objects was in violation of Labor Law § 240 (1).

Defendants oppose plaintiffs motion, and in support of their own motion, argue that Labor Law § 240 (1) is not applicable herein as the hammer in question was not an object that required "securing for the purposes of the undertaking." In this regard, defendants contend that the hammer was a hand-held instrument in use at the time it fell, and therefore does not fall within the type of hazard that requires securing in order to use it for the removal of concrete forms. Further, defendants argue that the hammer was neither being hoisted nor secured at the time of the accident. Moreover, they argue that in order to recover under Labor Law § 240 (1), plaintiff must show that the object fell because of the absence or inadequacy of a safety device of the type enumerated within the statute. Thus, defendants contend that plaintiffs Labor Law § 240 (1) cause of action should be dismissed.

In addition, defendants argue that an accident report prepared by Brooklyn GC's project superintendent, Gedalia Werde, and New York Presbyterian's hospital records contradict the plaintiffs version of how the accident occurred, indicating that plaintiff himself may have been the one using the hammer when it kicked back and hit him in the eye (NYSCEF Doc Nos. 83 & 84). In the hospital record, the statement that the plaintiff accidentally hit himself in the eye with a hammer is attributed to an unnamed "friend" of the plaintiff who accompanied him to the emergency room (NYSCEF Doc No. 84). In addition, Gedalia Werde, who did not witness the accident, avers in an affidavit that he filled out the accident report based upon information he learned from another Moncon employee (NYSCEF Doc No. 88).

Labor Law § 240 (1) "imposes absolute liability on building owners and contractors whose failure to 'provide proper protection to workers employed on a construction site' proximately causes injury to a worker" (Wilinski v 334 E. 92ndHous. Dev. Fund Corp., 18 N.Y.3d 1, 7 [2011], quoting Misseritti v Mark IV Constr. Co., 86 N.Y.2d 487, 490 [1995]; see Fabrizi v 1095 Ave. of the Ams., LLC, 22 N.Y.3d 658, 662 [2014]; Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 513 [1991]). The statute is intended to provide "extraordinary protections [applicable] only to a narrow class of dangers. More specifically, [the statute] relates only to special hazards presenting elevation-related risks" (Nicometi v Vineyards of Fredonia, LLC. 25 N.Y.3d 90, 96-97 [2015] [internal quotation marks, brackets and citations omitted]). "In order to prevail on summary judgment in a section 240 (I) Tailing object' case, the injured worker must demonstrate the existence of a hazard contemplated under that statute 'and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein'" (Fabrizi v J 095 Ave. of the Ams., LLC, 22 N.Y.3d at 662, quoting Narducci v Manhasset Bay Assoc, 96 N.Y.2d 259, 267 [2001]).

"Essentially, the plaintiff must demonstrate that at the time the object fell, it either was being hoisted or secured or required securing for the...