Rosario v. Gentry Tenants Co-Op

2024 NY Slip Op 50485(U)

Francisco Rosario, Plaintiff, v. Gentry Tenants Co-Op, JL WHITE MANAGEMENT, INC., WHITE MANAGEMENT LTD, ANDREA BUNIS MANAGEMENT, INC., LEARDON BOILER WORKS, INC., Defendant.

GENTRY TENANTS CORPORATION, Third-Party Plaintiff, v. LEARDON BOILER WORKS, INC., Third-Party Defendant.

LEARDON BOILER WORKS, INC., Second Third-Party Plaintiff v. JRS BOILER, INC., Second Third-Party Defendant

Index No. 155290/2015

Supreme Court, New York County

April 22, 2024

Unpublished Opinion

Plaintiff: Marc Getler, Esq; Avanzino & Moreno P.C. Gentry:

Timothy Layer, Esq.; Ahmuty, Demers, & McManus

Leardon: Peter D. Cantone, Esq.; Lippman & Lesperance

JRS Boiler: Courtney A. Chadwell, Esq.; Barry McTiernan &amp Moore LLC

DAKOTA D. RAMSEUR, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 007) 251, 252, 253, 254, 255, 256, 257, 258, 259 260, 261, 262, 263, 264, 265, 266, 267, 268, 269, 270, 271, 272, 345, 346, 347, 348, 352, 356, 360, 361, 362, 419, 420, 421, 422, 423, 424 were read on this motion to/for JUDGMENT - SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 008) 275, 276, 277, 278, 279, 280, 281, 282, 283, 284, 285, 286, 287, 288, 289, 290, 291, 292, 293, 294, 295, 296, 349, 353, 357, 367, 368, 370, 371, 372, 373, 374, 375, 376, 377, 378, 379, 380, 381, 382, 409, 410, 411, 413, 415, 416 were read on this motion to/for JUDGMENT - SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 009) 297, 298, 299, 300, 301, 302, 303, 304, 305, 306, 307, 308, 309, 310, 311, 312, 313, 314, 315, 316, 317, 318, 319, 320, 321, 322, 323, 324, 350, 354, 358, 364, 365, 366, 383, 384, 385, 386, 387, 388, 389, 390, 391, 392, 393, 407, 408, 414, 417 were read on this motion to/for JUDGMENT - SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 010) 325, 326, 327, 328, 329, 330, 331, 332, 333, 334, 335, 336, 337, 338, 339, 340, 341, 342, 343, 344, 351, 355, 359, 369, 394, 395, 396, 397, 398, 399, 400, 401, 402, 403, 404, 405, 406, 412, 418 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER.

In May 2015, plaintiff Francisco Rosario commenced this Labor Law action to recover damages for injuries he allegedly sustained in a fall while attempting to install a new hot water tank at an apartment complex located at 21 Fairview Avenue, Tuckahoe, New York. He asserts causes of action against Gentry Tenants Co-Op (hereinafter, "Gentry"), Andrea Bunis Management, Inc. ("Andrea Bunis"), and Leardon Boiler Works, Inc. ("Leardon")-respectively, the owner of the premises, the building manager, and the contractor hired to perform the installation-under Labor Law §§ 200, 240 (1) and 241 (6). Thereafter, Gentry commenced a third-party action against Leardon, and Leardon commenced a second third-party action against its subcontractor (and plaintiff's employer) JRS Boiler, Inc ("JRS"). In this Decision and Order, the Court consolidates the following motions for resolution:

(1) Motion Sequence 007: Plaintiff moves for summary judgment against Gentry, Andrea Bunis, and Leardon on liability under Labor Law § 240 (1);

(2) Motion Sequence 008: Gentry and Andrea Bunis' move for summary judgment on plaintiff's Labor Law § 200 and § 240 (1) claims; alternatively, should the Court deny the that portion motion, they move for summary judgment on their contractual and common law indemnification claims against Leardon and JRS; ^[1]

(3) Motion Sequence 009: Leardon moves for summary judgment on all of plaintiff's and Gentry's claims against it as well as for summary judgment on its contractual and indemnification claims against JRS; and

(4) Motion Sequence 010: JRS moves for summary judgment, dismissing plaintiff's complaint in its entirety. ^[2]

BACKGROUND

Relevant Deposition Testimony

Plaintiff-Depositions on March 16, 2018, and March 16, 2022

A boiler technician/repairman/welder employed by JRS Boiler since around 2003, plaintiff testified that his accident occurred on June 6, 2014. Plaintiff reported to the apartment complex with a coworker, Jorge De La Cruz, at around 9:00 a.m., as assigned by a JRS. (NYSCEF doc. no. 284 at 57-58 68, and 72, plaintiff dep. transcript 3/16/18.) Brian Policastro, a Leardon employee, and Juan Gill, another JRS employee, were already at the site. (Id. at 72-73.) According to plaintiff, Policastro directed the other three in unloading the two hot water tanks from a delivery truck. (Id. at 75.) Each tank measured approximately six ft. long, 34-36 inches in diameter, and weighed approximately 200-300 pounds or more. (Id. 76-77.) The driver off-loaded the tanks from the truck via a hydraulic lift gate, and the four placed them on pallet jacks. (Id. at 77.) However, the tanks could not fit through the entrance as originally planned (id. at 83), so Policastro directed the tanks to be removed from the pallet and placed on metal hand trucks that plaintiff and De La Cruz had brought to the site (id. at 86). Plaintiff testified that, once they managed to place them on the hand trucks, Policastro secured them using one rope, saying that was sufficient. (Id. at 90, 92.)

They then pushed the first tank through the entrance way and had to get it up a set of three steps to the boiler room. The steps were lit and without debris or garbage on them. (Id. at 97.) In getting it up the stairs, plaintiff and Policastro, situated directly to his left, each gripped one of the hand truck's handles and pulled from above while De La Cruz and Gill pushed and lifted from below. (Id. at 92-95.) While this was happening, plaintiff testified that Policastro cut his hand on the upper part of the tank and let go of the hand truck. (Id. at 99-100.) According to plaintiff, the hand truck fell towards him, knocked him over, and the tank- being inadequately secured to the hand truck -came to rest on top of him. (Id. at 99-101.) Later, plaintiff explained that he ended up bent/crouched on his back between the wall and the tank but with his feet still on the ground. (Id. at 106-107.) Plaintiff, in his words, "ended up in a position like as if I had been crushed under the tank." (Id. at 104.) Eventually, De La Cruz, Gill, and Policastro pulled the tank off him and continued transporting it to the boiler room. They moved the second tank using the same procedure. (Id. at 107, 112.) He testified that he had reported the accident to JRS, but no accident report was prepared. (Id. at 118.)

Brian Policastro-Depositions on June 5, 2018, and February 27, 2019

Policastro, a nine-year Leardon service mechanic, testified that he was present at the premises to ensure the boiler tanks "weren't bad" and to assist JRS employees with moving in the two new tanks. (NYSCEF doc. no. 286 at 98, Policastro dep. transcript dated 6/5/18.) He explained that he had experience moving boiler tanks up stairways a handful of times (id. at 47) and had been trained in securing and rigging hand trucks (id. at 56-57.) When securing hot water tanks to a hand truck, Policastro testified that he had never, and would not, use ropes since they cannot be tied as securely as straps and they leave room for human error in tying knots. (Id. at 58-59.) On the day in question, he testified that, to his knowledge, they did not use ropes. (Id. at 133.) At this particular site, JRS owned and supplied the equipment used to install the new tanks-including the hand truck. (Id. at 94, 106.) This included any safety devices that were to be used. (Id. at 107.) He testified that getting the tanks to the boiler room involved moving them up one step and through the entrance, then up three additional stairs five feet away, which led directly to the boiler room. (Id. at 87.) In addition, he felt the hand truck was a good device for the job because it allowed them to roll and lift the tanks into position. (Id. at 123.) Further, to him, the hand truck-because it looked well maintained and solid-felt safe to use to go up the three steps. (Id. at 130.) Nonetheless, the tank extended beyond both the base of the truck and its top handle. (Id. at 125-126.) According to him, there was no portable ramp available to roll the tank up the stairs. (Id. at 131.) In contrast to plaintiff, Policastro testified that he did not control the logistics of getting the tanks to the boiler room, that it was instead JRS's employees who had the rigging equipment and directed how the tanks were to be moved. (Id. at 105; NYSCEF doc. no. 262 at 243, Policastro dep. transcript dated 2/17/19.) Moreover, he testified that JRS employees did not answer to him and that Leardon does not supervise, inspect, or direct their work. (Id. at 105-106.)

In terms of the alleged accident, Policastro testified that "when we were going up the stairs, I think [plaintiff] lost his footing for a second and I steadied off the weight of the hand truck." (NYSCEF doc. no. 286 at 140.) In responding to the question, "what made you think plaintiff lost his footing?", Policastro explained "the load of the hand truck shifted because he was holding it and I just remember having to take the extra load of the hand truck, and I steadied it off." (Id. at 141.) He further explained that, when the hand truck shifted, plaintiff's "rear touched the ground and then he quickly popped back up... Everything happened in a second and he was on his feet again." (Id. at 142-143.) According to him, plaintiff did not say anything-including to question the use of a hand truck-before they continued moving the tank up the stairs. (Id.) Just as plaintiff testified, there were no structural defects or debris in the area of the stairs. (Id. at 236.) Policastro could not remember if he cut his hand, but no accident reports were filed-either concerning his hand or plain...