Opinion
Index No. 157187/2020 MOTION SEQ. No. 001
04-25-2024
ELIO PORTILLO, Plaintiff, v. TSTY OWNER LLC, LENDLEASE (US) CONSTRUCTION INC., TSTY CREATE LLC Defendants.
Unpublished Opinion
MOTION DATE 01/02/2024
PRESENT: HON. SABRINA KRAUS Justice
DECISION + ORDER ON MOTION
Sabrina Kraus Judge:
The following e-filed documents, listed by NYSCEF document number (Motion 001) 34, 35, 36, 37, 38, 39, 40, 41,42, 43, 44, 45, 46, 47, 48, 49, 50, 51,52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70 were read on this motion to/for JUDGMENT - SUMMARY.
BACKGROUND
Plaintiff commenced this action seeking damages under the labor law for injuries he alleges he suffered while performing concrete work on a construction site.
On January 30, 2024, Plaintiff moved for summary judgment on liability on his Labor Law § 240(1) claim. On March 29, 2024, Defendants cross-moved for dismissal of said claim. On April 26, 2024, the motions were marked submitted.
The Court finds there are triable issues of fact regarding the manner in which the accident occurred and as such the motion and cross-motion are denied.
ALLEGED FACTS
Plaintiff was employed by trade contractor Caulk Construction Corp, and/or Bunlin, LLC, as a carpenter, doing concrete work, at a premises owned by TSTY Owner, LLC . TSTY Create, LLC, an agent of the owner, retained Lendlease (US) Construction, Inc., as a general contractor/construction manager and retained Caulk and/or Bunlin for the carpentry concrete work.
Plaintiff was required to perform concrete work in the basement on its walls, which required a ladder to reach the upper wall. Plaintiff alleges he went to retrieve an A-frame ladder permitted for use for this work, but he first had to remove a 15-20 pound "L" shaped metal plate left at the top of the ladder, before he could relocate the ladder to where he needed to work. Plaintiff alleges he climbed the fully open ladder, lifted the metal plate, and dropped it to the floor when the ladder then moved, causing him to fall backwards. Plaintiff alleges his left foot and ankle landed in a hole in the concrete floor and his body landed backwards on the floor, injuring his left ankle, knee, back, and neck.
There were no other witnesses to the accident.
Defendants allege that Plaintiff reported that he injured himself when he twisted or turned his ankle while carrying a ladder. In response, an incident report was immediately prepared. The report, signed by Plaintiff states, "At 7:45 a m., Elio Portillo was in the cellar level w side by the network protection room carrying a ladder. As he was walking, he slipped and twisted his left foot."
Plaintiff sought medical attention from the onsite medic who, after speaking to Plaintiff, wrote that the Plaintiff was "walking on the cellar level and he slipped on the wet floor and fell spraining his ankle."
Plaintiff also reported his accident to his foremen, Jose Aviles and Juan Martinez, who have provided affidavits stating that Plaintiff told them twisted his ankle while carrying a ladder.
DISCUSSION
Summary judgment is a drastic remedy reserved for those cases where there is no doubt as to the existence of material and triable issues of fact (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d498, 144 N.E.2d 387 [1957]).
To prevail on a motion for summary judgment, the movant must establish, prima facie, its entitlement to judgment as a matter of law, providing sufficient evidence demonstrating the absence of any triable issues of fact. CPLR 3212(b); Matter of New York City Asbestos Litig., 33 N.Y.3d 20, 25-26 (2019). If this burden is met, the opponent must offer evidence in admissible form demonstrating the existence of factual issues requiring a trial; "conclusions, expressions of hope, or unsubstantiated allegations or assertions are insufficient." Justinian Capital SPC v WestLB AG, 28 N.Y.3d 160, 168 (2016), quoting Gilbert Frank Corp, v Fed. Ins. Co., 70 N.Y.2d 966, 967 (1988).
In deciding the motion, the evidence must be viewed in the "light most favorable to the opponent of the motion and [the court] must give that party the benefit of every favorable inference." O 'Brien v Port Auth. of New York and New Jersey, 29 N.Y.3d 27, 37 (2017).
Plaintiffs moving papers are sufficient to establish a prima facie case for summary judgment showing that his injuries were proximately caused by a violation of Labor Law § 240 (1) by submitting his testimony that the ladder that he was using to slid causing him to fall. See eg Melendez v. 1595 Broadway LLC, 214 A.D.3d 600, 601 (2023). However, in response Defendants have raised a triable issue of fact as to how the accident took place, relying on prior inconsistent statements Plaintiff allegedly made to Aviles and Martinez, as well as the statements reflected in the incident report and medics report.
These triable issues of fact preclude an award of summary judgment to either party. See eg Vargas v Con Edison Co. of NY, Inc. 224 A.D.3d 581 (1st Dept., 2024); Smigielski v Teachers Insurance and Annuity Association of America 137 A.D.3d 676 (1st Dept., 2016); Albino v 221-223 West 82 Owners Corp. 142 A.D.3d 799 (1st Dept., 2016); Ellerbe v Port Auth. of NY & NJ 91 A.D.3d 441 (1st Dept., 2012); Stephens v Tri borough Bridge & Tunnel Auth. 55 A.D.3d 410 (1stDept., 2008); Jones v West 56th St. Assoc. 33 A.D.3d 551 (1st Dept, 2006); Rodriguez v New York City Hous. Auth. 194 A.D.2d 460 (1st Dept., 1993).
WHEREFORE it is hereby:
ORDERED that the motion and cross-motion are denied; and it is further;
ORDERED that counsel appear for a virtual pre-trial conference before the Court on May 30th, 2024 at 2:30 pm at which time a trial date will be set; and it is further
ORDERED that any relief not expressly addressed has nonetheless been considered and is hereby denied.
This constitutes the decision and order of the Court.