Romero v. 201 W. 79th St. Realty Corp.

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2023 NY Slip Op 34516(U)

KLEBER ROMERO, Plaintiff v. 201 WEST 79th STREET REALTY CORP, d/b/a LUCERNE HOTEL ASSOCIATES and GRAND AMERICA ASSOCIATES LLC, Defendants.

201 WEST 79th STREET REALTY CORP, d/b/a LUCERNE HOTEL ASSOCIATES and GRAND AMERICA ASSOCIATES LLC, Third-Party Plaintiffs, v. PHOENIX SUTTON STR. INC. and PHOENIKS INC., Third-Party Defendants.

Index No. 514168/18

Supreme Court, Kings County

December 20, 2023

Unpublished Opinion

DECISION AND ORDER

HON INGRID JOSEPH, JUDGE

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

Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed ............................99-100. 102, 107 136-138, 139

Opposing Affidavits r Affirmations) ................................................................................................................................123-125 132, 158, 160

Affidavits/ Affirmations in Reply 155, 169

Upon the foregoing papers, plaintiff moves for an order, pursuant to CPLR 3212, granting partial summary judgment in his favor with respect to liability on his Labor Law SS 200, 240 (1) and 241 (6) causes of action as against defendants/third-party plaintiffs 201 West 79^th Street Realty Corp. d/b/a Lucerne Hotel Associates ("Hotel Lucerne") and Grand America Associates LLC ("Grand America") (collectively referred to as "defendants") (motion sequence number 5). Defendants move for an order, pursuant to CPLR 3212, dismissing plaintiffs complaint (motion sequence number 6).

In this action premised on common-law negligence and violations of Labor Law 99 200, 240 (1) and 241 (6), plaintiff alleges that he suffered injuries while constructing a sidewalk bridge^[1] in front of a corner building located on West 79^th Street when he slipped off the piping on which he was standing and fell to the ground below. Grand America owned the building at issue and Hotel Lucerne acted as the managing agent for the building. Hotel Lucerne contracted for third-party defendant Phoenix Sutton Str. Inc. ("Phoenix") to install a sidewalk bridge over the sidewalk surrounding the building and plaintiff was employed by Phoenix as a scaffolding assembler.

According to plaintiffs deposition testimony, Phoenix began assembling the sidewalk bridge on January 8, 2018. On that day, plaintiff and his coworkers stood on a rolling scaffold (also referred to as a baker scaffold and a rolling tower) to perform their scaffold assembly work. However, plaintiffs supervisor Conrad (also spelled Konrad) did not bring the rolling scaffold to the job site on January 9, 2018, the date of plaintiffs accident, because he thought it took too much time to use. Thus, on January 9, 2018, Phoenix's workers only had a single fourteen-foot--tall A-frame ladder to assemble the sidewalk bridge.

If there had been another ladder at the worksite, plaintiff testified that he would have performed his pipe installation work, in the time leading up to the accident, from a ladder. Other workers, however, needed the ladder to perform their work, so plaintiff used the ladder to climb up onto piping that had already been installed to perform his work. Although he had not been specifically instructed to stand on the pipes, he had done so in the past when the rolling scaffold was not available. These pipes were approximately 14 feet above the ground, and while he was standing there installing other pipes, plaintiff was able to tie off the lifeline attached to the harness he was wearing onto one of the pipes. The pipes on which he was standing were slippery and icy because they had been covered with snow and ice where they had been stored. After plaintiff had been working in this manner for approximately three minutes, Conrad told plaintiff to come down from the sidewalk bridge. Plaintiff testified that he did not have the option of waiting for the other workers to finish using the ladder because he had to obey Conradss direction to climb down. Accordingly, plaintiff then unhooked his lifeline, which was four feet long, in order to climb down on the pipes. Upon unhooking the lifeline, plaintiff immediately slipped and fell 14 feet to the ground.

Plaintiff, in moving, has also submitted an affidavit from Oscar Donaldo ("Donaldo",, a coworker who worked with plaintiff on the date of the accident. Donaldo states that the rolling scaffold was not available on the date of the accident. Donaldo averred that, shortly before the accident, he stood on the ground handing piping to plaintiff. At that time, plaintiff was standing directly on the steel piping of the sidewalk bridge with his harness clipped onto one of the bridgess pipes. Donaldo stated that the framework for the sidewalk bridge was wet and icy and according to Donaldo, plaintiff unhooked his safety harness in order to climb down and had only descended approximately a foot when he fell to the ground.

Section 240 (1) imposes absolute liability on owners and contractors or their agents when they fail to protect workers employed on a construction site from injuries proximately caused by risks associated with falling from a height or those associated with falling objects (see Wilinski v 334 E. 92nd Housing Dev. Fund Corp., 18NY3d 1,3 [2011]; Narducci v Manhasset Bay Assoc., 96 N.Y.2d 259, 267-268 [2001]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500 [1993]).

Here, there is no dispute that Grand America, as owner (see Gordan v Eastern Ry. Supply, 82 N.Y.2d 555, 559-560 [1993]), and Hotel Lucerne, as the managing agent of the property that contracted Phoenix to perform the work, (see Merino v Continental Towers Condominium, 159 A.D.3d 471, 472 [1st Dept 2018]; Ragubir v Gibralter Mgt. Co., Inc., 146 A.D.3d 563, 564-565 [1st Dept 2017]; Corona v Metropolitan 298-308 Assoc, 281 A.D.2d 447, 447-448 [2d Dept 2001]) may be held liable under section 240. It is further undisputed that plaintiffs work in erecting the sidewalk bridge is of the kind of work that is covered under section 240 (see Prats v Port Auth of N.Y. & N.J., 100 N.Y.2d 878, 881-883 [2003]; Kyle v City of New York, 268 A.D.2d 192, 197-198 [1st Dept 2000], Iv denied 97 N.Y.2d 608 [2002]), or that plaintiff was' working at an elevation for purposes of section 240 (see Davies v Simon Property Group, Inc., 174 A.D.3d 850, 853 [2d Dept 2019]; Ventimiglia v Thatch, Ripley & Co., LLC, 96 A.D.3d 1043, 1043 [2d Dept 2012]; Auriemma v Biltmore Theatre, LLC, 82 A.D.3d 1,9 [1st Dept 2011]). Plaintiff has also demonstrated his prima facie entitlement to summary judgment with respect to liability on his section 240 (1) cause of action through his deposition testimony and the affidavit of Donaldo demonstrating that plaintiff was not provided with adequate safety devices to prevent him from falling and that the absence of such devices was a proximate cause of his injuries (see Mogrovejo v JG Horn. Dev. Fund, Inc., 207 A.D.3d 457, 460 [2d Dept 2022]; Anderson v MSG Holdings, L.P., 146 A.D.3d 401, 402 [1st Dept 2017], Iv dismissed 29 N.Y.3d 1100 [2017]; Vetrano v J. Kokolakis Contr., Inc., 100 A.D.3d 984, 985-986 [2d Dept 2012]; Zender v Madison-Oneida County BOCES, 46 A.D.3d 1361, 1362 [4th Dept 2007]; Romero v John's Fruits & Vegetables, Inc., 23 A.D.3d 364, 365 [2d Dept 2005]).

In opposing the motion, defendants argue that the ladder harness, and lifeline provided to plaintiff constituted adequate safety devices and that plaintiffs own actions were the sole proximate cause of his accident. Defendants, however, have failed to present any evidence that plaintiff was ever instructed to tie off while ascending or descending (see Gallagher v New York Post, 14 N.Y.3d 83, 88-89 [2010]; Mushkudiani v Racanelii Constr. Group, Inc., 219 A.D.3d 613, 615 [2d Dept 2023]; Doto v Astoria Energy II, LLC, 129 A.D.3d 660, 662 [2d Dept 2015]; Murray v Arts Or. & Theater of Schenectady, Inc., 77 A.D.3d 1155, 1156-1157 [3d Dept 2010]). Defendants have also failed to refute plaintiffs testimony that the lifeline was only approximately four feet long and they have submitted no evidence that there were appropriate anchorage points to which plaintiff could have tied off his lifeline while ascending or descending (see Martinez v Kingston 541, LLC, 210 A.D.3d 556, 556-557 [1st Dept 2022]; Gomez v Trinity Ctr. LLC, 195 A.D.3d 502, 503 [1st Dept 2021]; Anderson, 146 A.D.3d at 404; Garzon v Viola, 124 A.D.3d 715, 716-717 [2d Dept 2015]). With respect to the ladder, it cannot be deemed readily available for plaintiffs use in view of plaintiff s testimony that it had been moved from where plaintiff was working and was being used by other workers at the time of the accident (see Gonzalez v DOLP 205 Props. II, LLC, 206 A.D.3d 468, 470 [1st Dept 2022]; Lojano v Soiefer Bros. Realty Corp., 187 A.D.3d 1160, 1163 [2d Dept 2020]; Pena v Jane H. Goldman residuary Trust No. I., 158 A.D.3d 565, 565 [1st Dept 2018]; DeRose v Bloomingdale 's Inc., 120 A.D.3d 41, 46-47 [1st Dept 2014]; Zender, 46 A.D.3d at 1362). Nor does plaintiffs failure to wait for the other workers to finish using the ladder constitute the sole proximate cause of the accident in view of his testimony that he started climbing down at the direction of his supervisor, who was at the job site and was undoubtedly aware that plaintiff had no ladder at the time of his request (see Finocchi v Live Nation Inc., 204 A.D.3d 1432, 1433-1434 [4th Dept 2022]; Lojano, 187 A.D.3d at 1163; DeRose, 120 A.D.3d at 46-47; cf. Graziano v Source Bldrs. & Consultants, LLC, 175 A.D.3d 1253, 1257-1258 [2d Dept 2019]). At the very least, the record demonstrates that plaintiffs manner of performing his work had the tacit approval...