Opinion
Index No. 520889/17
07-02-2021
ADRIANO NETO and LARA GOMES VICENTE, Plaintiffs, v. MAGELLAN CONCRETE STRUCTURES CORP., BROOKLYN GC, LLC, and EVERGREEN GARDENS I LLC, Defendants. MAGELLAN CONCRETE STRUCTURES CORP., Third-Party Plaintiff, v. EXTREME BUILDING LLC, Third-party Defendant.
Unpublished Opinion
At an IAS Term, Part 43 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 2nd day of July, 2021.
PRESENT: HON. MARK I. PARTNOW, Justice.
MARK I. PARTNOW, J.S.C.
| The following e-filed papers read herein: | NYSEF Doc. Nos.: |
| Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed | 92-93 106 |
| Opposing Affidavits (Affirmations) | 116, 125,129 |
| Affidavits/ Affirmations in Reply | 135 138 |
| Other Papers: | __ |
Upon the foregoing papers, plaintiffs Adriano Neto and Lara Gomes Vicente move for an order, pursuant to CPLR 3212, granting partial summary judgment in their favor with respect to liability on their Labor Law §§ 240 (1) and 241 (6) causes of action against defendants (motion sequence number 4).
Plaintiffs' motion is granted with respect to the Labor Law § 240 (1) cause of action and denied with respect to the Labor Law § 241 (6) cause of action.
BACKGROUND
In this action premised upon common-law negligence and violations of Labor Law §§ 200, 240 (1), and 241 (6), plaintiff Adriano Neto alleges that he suffered injuries on September 15, 2017, when a coworker, Emilson Dias Andrade, dropped a reshoring postonto plaintiffs shoulder and neck. At the time of the accident, the coworker had intended to hand the post down to plaintiff from the level above. The accident occurred during the construction of a multistory building that was owned by defendant Evergreen Gardens I, LLC, (Evergreen). Evergreen had hired defendant Brooklyn GC, LLC, (Brooklyn GC) to act as the general contractor on the project, and Brooklyn GC hired defendant/third-party plaintiff Magellan Concrete Structures, Corp. (Magellan), to erect the concrete superstructure of the building. Magellan, in turn, subcontracted a majority of the concrete superstructure work to third-party defendant Extreme Building LLC (Extreme), plaintiffs employer.
Plaintiff Lara Gomes Vicente's claims are derivative only. All singular references to plaintiff relate to plaintiff Adriano Neto.
Reshoring posts, also referred to as jacks, are used to support decking until the concrete in the support beams and concrete poured onto the decking dries.
Although plaintiff, at the time he worked on the project, was under the impression that he had been employed by Magellan, there does not appear to be any real dispute that plaintiff's employer was Extreme and that plaintiff worked under the supervision of Extreme's supervisors Wellington (who was only known by that name) and Joao Bueno.
Plaintiff was employed as a carpenter for the project, and his tasks included, among other things, building decking, helping with the concrete pours, and stripping the forms from the concrete after the concrete dried. According to plaintiffs deposition testimony, on the afternoon of the accident a supervisor he knew by the name of Wellington directed plaintiff and several of his coworkers to move some of the reshoring posts from the ground floor of the building to the basement where they were needed to build a ramp. In order to do so, two of plaintiffs coworkers would carry the poles from where they had been kept to Andrade, who was at the street level, and who would lower them to another group of workers, including plaintiff, who were in the basement and who would then carry the posts 20 feet or so and lay them onto a cart. After plaintiff had handled 8 to 10 posts in this manner, plaintiff returned to receive another post from Andrade, and just as he arrived to do so, Andrade lost hold of a post and dropped it onto plaintiffs neck and shoulder. At the time Andrade lost hold of the post, it was three to four feet above plaintiffs head. Plaintiff stated that each post was approximately 14 feet long, and weighed approximately 45 to 50 kilograms. Although plaintiff did not testify that Wellington had directed the group of workers to lower the posts in this manner, plaintiff states that Wellington was present on the floor above while the posts were being lowered and observed plaintiff and his coworkers performing the work in this manner.
At his deposition, Andrade stated that the post fell approximately six feet.
The court takes judicial notice that 45 to 50 kilograms is around 99 to 110 pounds. The court notes that Andrade, in his deposition testimony, stated that the post weighed approximately 30 to 35 kilograms, the equivalent of around 66 to 77 pounds.
In Andrade' deposition testimony, which was submitted by defendants, Andrade stated that it was Joao Bueno, one of Extreme's supervisors, who told him and his coworkers to lower the poles by hand threw a hole in the floor to the level below.
DISCUSSION
LABOR LAW § 240 (1)Labor Law § 240 (1) imposes absolute liability on owners and contractors or their agents when their failure to protect workers employed on a construction site from the risks associated with falling objects proximately causes injury to a worker (see Wilinski v 334 East 92nd Housing Dev. Fund Corp., 18 N.Y.3d 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]). For a defendant to be held liable under Labor Law § 240 (1), a plaintiffs injuries must be "the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Runner v New York Stock Exch., Inc., 13 N.Y.3d 599, 603 [2009]; see Wilinski, 18 N.Y.3d at 10). With respect to accidents involving falling objects, the "plaintiff must show more than simply that an object fell causing injury to a worker" (Narducci, 96 N.Y.2d at 268; see also Fabrizzi v 1095 Ave. of Ams., L.C.C., 22 N.Y.3d 658, 663 [2014]). A plaintiff must show that, at the time the object fell, it was "being hoisted or secured" (Narducci, 96 N.Y.2d at 268) or "required securing for the purposes of the undertaking" (Outar v City of New York, 5 N.Y.3d 731, 732 [2005]; see Quattrocchi v F.J Sciame Constr. Corp., 11 N.Y.3d 757, 758 [2008]) and that the object fell "because of the absence or inadequacy of a safety device of the kind enumerated in the statute" (Narducci, 96 N.Y.2d at 268; see Fabrizzi, 22 N.Y.3d at 663). "While a plaintiff is not required to present evidence as to which particular safety devices would have prevented the injury ... the risk requiring a safety device must be a foreseeable risk inherent in the work" (Niewojt v Nikko Constr. Corp., 139 A.D.3d 1024, 1027 [2d Dept 2016] [citation omitted]; see Carlton v City of New York, 161 A.D.3d 930, 932 [2d Dept 2018]; cf Fabrizi, 22 N.Y.3d at 663).
Here, plaintiff has demonstrated his prima facie entitlement to summary judgment on his Labor Law § 240 (1) cause of action through his deposition testimony that he was struck by the post that was dropped from three to four feet above his head by his coworker. Under these circumstances, plaintiffs testimony that the post was three to four feet above his head demonstrates that he was subject to physically significant elevation differential, even if the post weighed 66 to 77 pounds as asserted by Andrade, rather than the 99 to 110 pounds as asserted by plaintiff (see Wilinski, 18 N.Y.3d at 10; Outar, 5 N.Y.3d at 732; Tropea v Tishman Constr. Corp., 172 A.D.3d 450, 451 [1st Dept 2019], affirming 2017 WL 6731869, *2 [U] [Sup Ct, New York County 2017]; Rutkowski v New York Convention Ctr. Dev. Corp., 146 A.D.3d 686, 686 [1st Dept 2017]; Pritchard v Tully Constr. Co., Inc., 82 A.D.3d 730, 730-731 [2d Dept 2011]; Cardenas v One State St., LLC, 68 A.D.3d 436, 437-438 [1st Dept 2009]; Mendoza v Bayridge Parkway Assoc., LLC, 38 A.D.3d 505, 506 [2d Dept 2007]; cf. Rodriguez v Margaret Tietz Ctr. for Nursing Care, 84 N.Y.2d 841, 843-844 [1994]; Kuhn v Giovanniello, 145 A.D.3d 1457, 1458 [4th Dept 2016]). This evidence further demonstrates that the risks inherent in the work of lowering the posts by hand rendered the need for a section 240 (1) safety device foreseeable and that the post fell because of the absence of a safety device of the kind enumerated in the statute (see Albuquerque v City of New York, 188 A.D.3d 515, 515 [1st Dept 2020]; Barrios v 19-19 24th Ave. Co. LLC., 169 A.D.3d 747, 748-749 [2d Dept 2019]; Passos v Noble Constr. Group, LLC, 169 A.D.3d 706, 707-708 [2d Dept 2019]; Rutkowski, 146 A.D.3d at 686; Gikas v 42-51 Hunter St., LLC, 134 A.D.3d 987, 988 [2d Dept 2015]; Pritchard, 82 A.D.3d at 730-731; Mendoza, 38 A.D.3d at 506; see also McCallister v 200 Park, L.P., 92 A.D.3d 927, 928-929 [2d Dept 2012]). The fact that the post was being lowered by hand does not preclude recovery under Labor Law § 240 (1) (see Gutierrez v Harco Consultants Corp., 157 A.D.3d 537, 537-538 [1st Dept 2017]; Rutkowski, 146 A.D.3d at 686; Escobar v Safi, 150 A.D.3d 1081, 1083 [2d Dept 2017]; Gikas, 134 A.D.3d at 988; Pritchard, 82 A.D.3d at 730-731; Van Eken v Consolidated Edison Co. of N.Y., 294 A.D.2d 352, 353 [2d Dept 2002]; cf Outar v City of New York, 286 A.D.2d 671, 673 [2d Dept 2001], affd5 N.Y.3d 731 [2005]).
Plaintiffs have also shown that defendants are entities that may be held liable under Labor Law § 240 (1). Evergreen, as owner of the premises (see Gordon v Eastern Ry. Supply, 82 N.Y.2d 555, 560 [1993]), and Brooklyn GC, as the general contractor for the project (see McCarthy v Turner Constr., Inc., 17 N.Y.3d 369, 374 [2011]; Barker v Union Corrugating Co., 187 A.D.3d 1544, 1546 [4th Dept 2020]), are entities covered by the statute. Similarly, Magellan, which was hired by Brooklyn GC to perform the concrete superstructure work, and which subcontracted for Extreme to perform a portion of that work, acted as a statutory agent of Evergreen or Brooklyn GC with respect to such work, and it may be thus held liable despite its delegation of a portion of the work to Extreme and regardless of whether it actually exercised supervision or control of the work at issue (see White v 31-01 Steinway, LLC, 165 A.D.3d 449, 452 [1st Dept 2018]; Cabrera v Arrow Steel Window Corp., 163 A.D.3d 758, 759 [2d Dept 2018]; Gallagher v Resnick, 107 A.D.3d 942, 945 [2d Dept 2013]; Britez v Madison Park Owner, LLC, 106 A.D.3d 531, 532 [1st Dept 2013]; Weber v Baccarat, Inc., 70 A.D.3d 487, 488 [1st Dept 2010]; Inga v EBS N. Hills, LLC, 69 A.D.3d 568, 569-570 [2d Dept 2010]).
Contrary to the assertions of Evergreen and Brooklyn GC in their opposition papers, the need for a safety device is shown by plaintiffs testimony regarding the elevation differential at issue, the weight of the post, and the nature of the work and no expert testimony is required under these circumstances (see McCallister, 92 A.D.3d at 928-929; see also Rubio v New York Proton Mgt., LLC, 192 A.D.3d 438, 439 [1st Dept 2021]; Franco v 1221 Ave. Holdings, LLC, 189 A.D.3d 615, 615 [1st Dept 2020]; Aguilar v Graham Terrace, LLC, 186 A.D.3d 1298, 1301 [2d Dept 2020]; Passos, 169 A.D.3d at 707-708).
Extreme argues, in opposition, that there are at least factual issues as to whether plaintiff was the sole proximate cause of his accident because plaintiff could have used the staircase to the basement or a crane that was at the jobsite to perform the work. Assuming arguendo that the crane was available or that plaintiff could have used the stairs, the availability of the crane or stairs fails to demonstrate the existence of a factual issue with respect to sole proximate cause because plaintiffs deposition testimony shows that plaintiff was following the lead of his coworkers and acting with at least the tacit approval of his supervisor Wellington in performing the work in the manner he did (see Portillo v DRMBRE-85 Fee LLC, 191 A.D.3d 613, 614 [1st Dept 2021]; Zholanji v 52 Wooster Holdings, LLC, 188 A.D.3d 1300, 1302 [2d Dept 2020]; Rico-Castro v Do &Co N.Y. Catering, Inc., 60 A.D.3d 749, 750-751 [2d Dept 2009]; Pichardo v Aurora Contrs., Inc., 29 A.D.3d 879, 880-881 [2d Dept 2006]; see also Biaca-Neto v Boston Rd. II Hous. Dev. Fund Corp., 34 N.Y.3d 1166, 1168 [2020]; Murray v Arts Ctr. &Theater of Schenectady, Inc., 77 A.D.3d 1155, 1156-1157 [3d Dept 2010]). Indeed, in Andrade's deposition testimony, which was provided by defendants' in opposition, Andrade goes further and states that he and his coworkers were specifically instructed by Joao Bueno to lower the posts through a hole in the floor by hand.
While Extreme correctly notes that Andrade's affidavit is inadmissible in the absence of an affidavit from a translator (see Gonzalez v Abreu, 162 A.D.3d 748, 748-749 [2d Dept 2018]; Saavedra v 64 Annfield Court Corp., 137 A.D.3d 771, 772-773 [2d Dept 2016], Iv denied 28 N.Y.3d 909 [2016]; Reyes v Arco Wentworth Mgt. Corp., 83 A.D.3d 47, 54-55 [2d Dept 2011]; CPLR 2101 [b]), this defect with plaintiffs proof does not require denial of plaintiffs motion, since, as discussed above, plaintiffs own deposition testimony is sufficient to make out his prima facie showing. Moreover, Andrade's deposition testimony is largely consistent with his affidavit, and nothing in his testimony suggests the existence of factual issues with respect to the happening of the accident.Finally, contrary to Extreme's assertion, there are no material inconsistencies in the testimony of plaintiff or Andrade sufficient to demonstrate a factual issue with respect to their credibility such that the plaintiffs' motion must be denied (see Cano v Mid-Valley Oil Co., Inc., 151 A.D.3d 685, 689-690 [2d Dept 2017]; Fox v H &M Hennes & Mauritz, L.P., 83 A.D.3d 889, 890-891 [2d Dept 2011]).
Indeed, given the submission of Andrade's deposition transcript, this court need not consider whether the affidavit from the translator submitted by plaintiff on reply was sufficient to demonstrate the qualifications of the translator and the accuracy of the translation (see Taveras v Cayot Realty, Inc., 125 A.D.3d 754, 755 [2d Dept 2015]).
Lastly, Extreme and each of the defendants oppose plaintiffs' motion on the ground that summary judgment is premature because discovery is incomplete. None of these parties, however, has provided an evidentiary basis to suggest that discovery might lead to relevant evidence or that facts justifying the denial of the motion are within the exclusive knowledge and control of the plaintiff (see Martin v County of Westchester, 194 A.D.3d 1036, 1037 [2d Dept 2021]; Chen v City of New York, 194 A.D.3d 904, 905 [2d Dept 2021]; Mayorga v 75 Plaza LLC, 191 A.D.3d 606, 608 [1st Dept 2021]). The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is an insufficient basis for denying summary judgment (see Chen, 194 A.D.3d at 1037).
The defendants each assert that they have not had a chance to depose either of plaintiffs supervisors employed by Extreme. The court notes, however, that during the pendency of plaintiffs' summary judgment motion, Magellan obtained an order (Knipel, J.) dated March 9, 2021, requiring Extreme to appear for a deposition by May 18, 2021. This order further provided that a failure of a party to comply with the order "will result in the noncomplying party being precluded from offering evidence." As the parties have since notified the court that this deposition did not take place, it would appear that Extreme has been precluded pursuant to the terms of the order. In view of this apparent preclusion of Extreme, there is now no reason to delay determination of the motion based on the lack of discovery even if defendants had shown that the testimony of Extreme's supervisors would lead to relevant evidence.
In sum, defendants have failed to demonstrate any issue with plaintiffs' prima facie showing and have failed to submit any evidentiary proof demonstrating the existence of a factual issue that would require denial of plaintiffs' motion with respect to the Labor Law § 240 (1) cause of action.
LABOR LAW§241 (6)
In seeking summary judgment with respect to the Labor Law § 241 (6) claim, plaintiffs rely on violations of 12 NYCRR 23-1.7 (a) (1) and 12 NYCRR 23-2.1 (a) (2). Section NYCRR 23-1.7 (a) (1), which provides, as is relevant here, that, "[e]very place where persons are required to work or pass that is normally exposed to falling material or objects shall be provided with suitable overhead protection," and mandates the placement of planks, plywood or other suitable material to protect workers in the area. Here, plaintiffs have presented no evidentiaiy proof showing that the accident location was an area that was normally exposed to falling material or objects as is necessary to show a violation of section 23-1.7 (a) (1) (see Crichigno Pacific Park 550 Vanderbilt, LLC, 186 A.D.3d 664, 665 [2d Dept 2020]; Moncayo v Curtis Partition Corp., 106 A.D.3d 963, 965 [2d Dept 2013]). Additionally, plaintiffs have failed to address whether the provision of the overhead protection required by section 23-1.7 (a) (1) would have been consistent with the objective of the work involving the lowering of the posts through the hole (see Salazar v Novalex Contr. Corp., 18 N.Y.3d 134, 140 [2011]; Crichigno, 186 A.D.3d at 665). Plaintiffs have also failed to demonstrate that a violation of section 23-2.1 (a) (2), which sets requirements regarding the storing of materials, was a proximate cause of the accident since the post that struck plaintiff was not being stored, but rather, was in use at the time of the accident (see Zamajtys v Cholera, 84 A.D.3d 1360, 1362 [2d Dept 2011]; Castillo v Starrett, 4 A.D.3d 320, 321-322 [2d Dept 2004]; see also Miles v Buffalo State Alumni Assn., Inc., 121 A.D.3d 1573, 1574 [4th Dept 2014]). Accordingly, as plaintiffs have failed to demonstrate that either section 23-1.7 (a) (1) or section 23-2.1 (a) (2) was violated, plaintiffs have failed to make their prima facie showing with respect to their Labor Law § 241 (6) claim, and their motion in this regard must be denied regardless of the sufficiency of the opposition papers (see Crichigno, 186 A.D.3d at 665; see also Winegrad v New York Univ. Hosp. Ctr., 64 N.Y.2d 851, 853 [1985]).
This constitutes the decision and order of the court.