Rodriguez v. Waterfront Plaza, LLC

207 A.D.3d 489

172 N.Y.S.3d 38

Deivy Leon RODRIGUEZ, respondent,

v.WATERFRONT PLAZA, LLC, appellant-respondent,ZNKO Construction, Inc., respondent-appellant

(and third-Party actions).

2019–09662

Index No. 513780/16

Supreme Court, Appellate Division, Second Department, New York.

Argued—March 24, 2022

July 6, 2022

Clark & Fox, New York, NY (Megan K. Foster and Dennis Monaco of counsel), for appellant-respondent.

Fullerton Beck LLP, White Plains, NY (Edward J. Guardaro, Jr., of counsel), for respondent-appellant.

Wingate, Russotti, Shapiro & Halperin, LLP, New York, NY (David M. Schwarz of counsel), for respondent.

VALERIE BRATHWAITE NELSON, J.P., ANGELA G. IANNACCI, PAUL WOOTEN, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Waterfront Plaza, LLC, appeals, and the defendant ZNKO Construction, Inc., cross-appeals, from an order of the Supreme Court, Kings County (Devin P. Cohen, J.), dated June 24, 2019. The order, insofar as appealed from, granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendant Waterfront Plaza, LLC, and denied that branch of that defendant's motion which was for summary judgment on its cross claim against the defendant ZNKO Construction, Inc., for contractual indemnification.

ORDERED that the cross appeal is dismissed as abandoned; and it is further,

ORDERED that the order is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff and the defendant ZNKO Construction, Inc.

The plaintiff was employed as a laborer by nonparty Jara Services, LLC, which was hired in connection with a construction project on real property owned by the defendant Waterfront Plaza, LLC (hereinafter Waterfront). The defendant ZNKO Construction, Inc. (hereinafter ZNKO), served as the general contractor on the project.

According to the plaintiff, during the course of the project, he was assigned to transport 20–foot–long metal beams from the ground level to the third floor of the partially constructed building. To accomplish this, the plaintiff stood the beam up vertically while his partner secured the other end of the beam with his foot. A rope was then tied around the beam, and the beam was pulled onto the third floor. The only device supplied for the task was this rope. The plaintiff testified at his deposition that as he was getting ready to raise one of the beams, his partner asked him to move backwards, and he fell into an unprotected, 15–foot–deep opening in the concrete, which led to the basement. The plaintiff was able to hold onto the sides of the opening so that he did not fall to the ground below, but he let go of the beam, which hit him in the head.

The plaintiff commenced this personal injury action against Waterfront and ZNKO, alleging, inter alia, a violation of Labor Law § 240(1). Waterfront asserted a cross claim for contractual indemnification against ZNKO. After the completion of discovery, Waterfront moved, inter alia, for summary judgment on its cross claim for contractual indemnification against ZNKO, and the plaintiff moved, inter alia, for summary judgment on the issue of liability on the Labor Law § 240(1) cause of action insofar as asserted against Waterfront. The Supreme Court denied that branch of Waterfront's motion and granted that branch of the plaintiff's motion. Waterfront appeals.

" Labor Law § 240(1) requires owners and contractors to provide workers with appropriate safety devices to protect against ‘such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured’ " ( Novak v. Del Savio, 64 A.D.3d 636, 637–638, 883 N.Y.S.2d 558, quoting Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82 ).

Here, contrary to Waterfront's contention, the plaintiff demonstrated, prima facie, that his accident was proximately caused by the failure to provide appropriate safety devices to protect against gravity-related hazards posed by the opening in the floor (see Norero v. 99–105 Third Ave. Realty, LLC, 96 A.D.3d 727, 728, 945 N.Y.S.2d 720 ; Valensisi v. Greens at Half Hollow, LLC, 33 A.D.3d 693, 695, 823 N.Y.S.2d 416 ) and the unsecured metal beam (see Escobar v. Safi...