Paulino v. Kola House, LLC

1

2024 NY Slip Op 31340(U)

JONATHAN PAULINO, Plaintiff, v. KOLA HOUSE, LLC and 408 WEST 15th STREET OWNER, LLC, Defendants.

408 WEST 15th STREET OWNER, LLC, Third-Party Plaintiff, v. 408 W15 ASSOCIATES, LLC and DUPRAT CONSTRUCTION CORP, Third-Party Defendants, 408 WEST 15th STREET OWNER, LLC, Second Third-Party Plaintiff v. 408 W15 MEMBERS, LLC. Second Third-Party Defendant

Index No. 517750/16

Supreme Court, Kings County

April 8, 2024

Unpublished Opinion

PRESENT: HON. INGRID JOSEPH Justice

DECISION & ORDER

Ingrid Joseph Judge:

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

Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed __214-219, 220-248 249, 267,269-285

Opposing Affidavits (Affirmations) __268,287,290,292-293,294

Affidavits/ Affirmations in Reply __291, 295

Other Papers:__

Upon the foregoing papers, plaintiff Jonathan Paulino ("plaintiff') moves for an order, pursuant to CPLR 3212, granting him summary judgment under' his Labor Law §§ 240 (1) and 241 (6) causes of action against defendant/third-party plaintiff/second third-party plaintiff 408 West 15^th Street Owner, LLC's ("408 Owner") and defendant/third-party defendant 408 W15 Associates, LLC ("408 Associates") (Mot. Seq No 12). Third-party defendant Duprat Construction Corp. ("Duprat") moves; for an order granting it summary judgment dismissing 408 Owner's third-party claims against it (Mot. Seq. No. 13). Duprat moves also for an order, pursuant to CPLR 3216, striking the answer and cross-claims of 408 Associates for failure to prosecute cross-claims, failure to retain counsel, and failure to comply with discovery (Mot. Seq. No. 14). 408 Owner cross-moves for an order, pursuant to CPLR 3212, granting it summary judgment dismissing plaintiffs complaint against it and granting it summary judgment under its contractual indemnification and breach of contract claims against Duprat (Mot. Seq. No. 15).

The instant action arises out of a September 4, 2016 construction/renovation site accident in which plaintiff sustained various injures after falling from a scaffold. The accident occurred at the premises located at 408 West 15^th Street in Manhattan (the "premises" or the "building"). Prior to the accident, 408 Associates leased the lower level, ground floor, and second level of the building from its" J former owner non-party 405 West 14^th Street, LLC. Thereafter, 408 Owner purchased the building and was assigned the lease agreement. Under the terms of the lease agreement, the tenant was prohibited from making any structural changes to the premises without obtaining:the landlord's prior written consent.

On March 24, 2016, Duprat, 408 Owner and 408 Associates entered into an agreement whereby 408 Owner granted its consent to allow alterations to the premises (the "Consent Agreement"). Among other things, the Consent Agreement contained a clause whereby Duprat agreed to defend and indemnify 408 Owner from and against any and all claims "arising from or out of, or in connection with, or relating to, directly or indirectly, in whole or in part ... the Work, or any other work in or around the Premises and the Building except to the extent caused by the negligence [of 408 Owner]." The Consent Agreement also contained a provision stating that Duprat "agrees to name [408 Owner] as additional insureds under its/their policies of Insurance ... with respect to Work done in the Building." On April 1, 2016, Duprat and second third-party defendant 408 W15 Members, LLC ("Members") entered into a written construction management agreement (the "Construction Agreement") whereby Duprat agreed to serve as the construction manager on a renovation project involving the construction of a new restaurant on the first floor of the premises.^[1] Under the terms of the Construction Agreement, Duprat agreed to obtain general liability insurance coverage with $2,000,000/$4,000,000 coverage limits which listed 408 Owner, 408 Associates, and Members as additional insureds. The Construction Agreement also contained a provision whereby Duprat agreed to indemnify Members from and against any claims arising out of the work to the extent such claims were caused by the acts or omissions of Duprat, its agents, and employees.

Approximately one month prior to the accident, plaintiff was hired by Duprat to work on the underlying project as a carpenter. While working on the project, plaintiff performed a variety of jobs including framing, tiling, and installing sheet rock. When performing this work, plaintiff was supervised by, Anthony Capice, a manager employed by Duprat and another Duprat supervisor named Carlos. On the day of the accident, plaintiff and a co-worker named Felipe were instructed by Mr. Capice to install certain decorative bronze planking near the first-floor ceiling of the building. In order to access this area, plaintiff used a scaffold that consisted of two separate six-foot Baker scaffolds stacked on top of each other. In this regard, plaintiff testified that Felipe and another Duprat employee stacked the scaffolds. Immediately prior to the accident, plaintiff climbed to the top of the scaffold in order to take certain measurements while Felipe held the apparatus to ensure that it remained stable. The accident occurred after plaintiff took the needed measurements and began to climb down from the scaffold. In particular, after receiving confirmation from Felipe that he was holding the scaffold, plaintiff stepped onto the top rung of the scaffold ladder. However, when he did so, the scaffold began to tilt. Plaintiff then threw himself off the scaffold in an attempt to prevent the apparatus from collapsing onto him and fell some 12 feet to the ground. The scaffold ultimately did collapse. At his deposition, plaintiff testified that he learned after the accident that Felipe was not holding the scaffold at the time it collapsed.

By summons and complaint dated September 30, 2016, plaintiff commenced the instant action against 408 Owner and Kola House LLC ("Kola") alleging that his injuries were caused by their negligence and violations of Labor Law §§ 200, 240 (1), and 241 (6). Thereafter, plaintiff commenced a second action against 408 Associates under Kings County Index No. 509737/17 which alleged the same causes of action as the initial complaint. In an order dated November 29, 2017, Hon. David B. Vaughn of this court consolidated the two actions under Kings County Index No. 517750/16. On April 10, 2017, 408 Owner commenced a third-party action against 408 Associates and Duprat seeking common-law indemnification, contractual indemnification, and damages for breach of contract for failure to procure liability insurance. Thereafter, 408 Associates interposed an answer which asserted numerous affirmative defenses as well as two cross-claims against Duprat.

After the accident, 408 Owners sought coverage as an additional insured under a Sompo International Companies ("Sompo") policy which listed Duprat as the named insured. However, although 408 Owners was listed as an additional insured under the policy, Sompo disclaimed coverage as the policy contained an exclusion for claims arising out of bodily injuries sustained by Duprat employees during the course of their employment. In this regard, it is undisputed that plaintiff was injured during the course of his employment with Duprat.

On or about May 8, 2017, the parties entered into a stipulation discontinuing all claims against Kola without prejudice to renewal. On September 20, 2018, 408 Owner commenced a second third-party action against Members seeking common-law indemnification, contractual indemnification, and damages for breach of contract to procure liability insurance. In an order dated September 25, 2018, Justice Vaughn granted 408 Associates' counsel's unopposed motion to withdraw from representing 408 Associates. Since that time, 408 Associates has not appeared in this action or participated in discovery. The instant motions are now before the court.

Plaintiff moves for summary judgment against 408 Owner and 408 Associates under his Labor Law § 240 (1) cause of action. At the same time, 408 Owner cross-moves for summary judgment dismissing this claim against it. In support of his motion, plaintiff points to his own deposition testimony, which indicates that he was injured during the course of a construction/renovation project when the unsecured scaffold that he was descending tilted and collapsed. According to plaintiff, this constitutes prima facie evidence of a Labor Law § 240 (1) violation. Plaintiff further maintains that, as the respective owner and tenant of the premises, 408 Owner and 408 Associates are liable for this violation as a matter of law.

In opposition to this branch of plaintiffs motion, and in support of its own motion for summary judgment dismissing plaintiffs Labor Law § 240 (1) claim against it, 408 Owner argues that the work plaintiff was performing at the time of the accident is not covered under the statute. 408 Owner points to plaintiffs deposition testimony, wherein he stated that at the time of the accident, he was taking measurements in preparation for the installation of decorative brass planking. According to 408 Owner, this work is not covered under the statute as it did not constitute a significant physical change to the structure. Alternatively, 408 Owner argues that plaintiffs own actions were the sole proximate cause of the accident. In particular, 408 Owner notes that plaintiff was using two stacked six-foot Baker scaffolds at the time of the accident. 408 Owner maintains that this was an unsafe, makeshift device and that photographs of the accident site show that 12-foot A-frame ladders were available at the jobsite. Thus, 408...