Opinion
15519-15519A Index No. 304215/13E Case Nos. 2020-04178, 2021-01510
03-15-2022
Erwin HERRERA et al., Plaintiffs–Respondents, v. KENT AVENUE PROPERTY III LLC et al., Defendants–Appellants–Respondents J & A Concrete Corp., Defendant–Respondent–Appellant, And other Third–Party Actions
Lawrence, Worden, Rainis & Bard, P.C., Melville (Karin McCarthy of counsel), for appellants-respondents. Cerussi & Spring, P.C., White Plains (Christopher B. Roberta of counsel), for respondent-appellant. Gorayeb & Associates, P.C., New York (John M. Shaw of counsel), for Erwin Herrera and Lauteria Herrera, respondents.
Lawrence, Worden, Rainis & Bard, P.C., Melville (Karin McCarthy of counsel), for appellants-respondents.
Cerussi & Spring, P.C., White Plains (Christopher B. Roberta of counsel), for respondent-appellant.
Gorayeb & Associates, P.C., New York (John M. Shaw of counsel), for Erwin Herrera and Lauteria Herrera, respondents.
Gische, J.P., Kern, Gonza´lez, Shulman, Higgitt, JJ.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered August 20, 2020, which, to the extent appealed from as limited by the briefs, denied defendants Kent Avenue Property III, LLC and JE Levine Builder, Inc.’s motion for summary judgment dismissing the Labor Law § 240(1) claim, denied defendant J & A Concrete Corp.’s cross motion for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims as against it, and granted plaintiffs’ cross motion for partial summary judgment on the § 240(1) claim, unanimously modified, on the law, to grant defendants’ motions as to the Labor Law § 240(1) claim and deny plaintiffs’ motion as to that claim, and otherwise affirmed, without costs. Order, same court and Justice, entered April 27, 2021, which, to the extent appealed from, denied defendant J & A's motion for leave to renew, unanimously affirmed, without costs.
Labor Law § 240(1) is inapplicable to this case because plaintiff's injuries were not "the direct consequence of a failure to provide adequate protection against a risk from a physically significant elevation differential" ( Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 603, 895 N.Y.S.2d 279, 922 N.E.2d 865 [2009] ). Plaintiff was struck by an excavator; the fact that at the time he was bringing debris up an earthen ramp, or that he rolled down the ramp after being struck, does not give rise to a cause of action pursuant to Labor Law § 240(1) (see Joseph v. City of New York, 143 A.D.3d 489, 38 N.Y.S.3d 556 [1st Dept. 2016], lv denied 33 N.Y.3d 904, 2019 WL 2043622 [2019] ; Dominguez v. Mirman, Markovits & Landau, P.C., 180 A.D.3d 646, 647, 119 N.Y.S.3d 136 [2d Dept. 2020] ).
The court correctly determined that defendant J & A was a "statutory agent" for Labor Law purposes. The record establishes that J & A had been delegated the authority to control the activity that brought about the injury, including responsibility to provide barriers, flagmen, and also post danger signs (see Walls v. Turner Constr. Co., 4 N.Y.3d 861, 863–864, 798 N.Y.S.2d 351, 831 N.E.2d 408 [2005] ; Sanchez v. 404 Park Partners, LP, 168 A.D.3d 491, 492, 92 N.Y.S.3d 9 [1st Dept. 2019] ; Ohadi v. Magnetic Constr. Group Corp., 182 A.D.3d 474, 476, 122 N.Y.S.3d 612 [1st Dept. 2020] ).
The court properly denied renewal, as J & A failed to provide a reasonable explanation for failing to submit the newly proffered evidence on the original motion ( CPLR 2221[e][3] ). In any event, the newly proffered evidence does not change the result on these motions. We decline plaintiffs’ request to search the record with respect to their common-law negligence and Labor Law §§ 200 and 241(6) claims, as plaintiffs raise issues not raised by the appealing parties (see Taveras v. 1149 Webster Realty Corp., 134 A.D.3d 495, 497, 23 N.Y.S.3d 162 [1st Dept. 2015], affd 28 N.Y.3d 958, 38 N.Y.S.3d 516, 60 N.E.3d 411 [2016] ).