Opinion
Index No. 531868/2021 Seqs. No. 004
10-01-2024
Jaime Santos, Plaintiff, v. LIC Corp., 4th Avenue Development Owner LLC, and Level One Holdings Corp., Defendants. LIC Corp. 4th Avenue Development Owner LLC, Third-Party Plaintiffs, v. ShopWorx, Inc., Third-Party Defendants.
Unpublished Opinion
DECISION/ORDER
Devin P. Cohen Judge:
Recitation, as required by CPLR §2219 (a), of the papers considered in the review of this Motion
Papers Numbered
Notice of Motion and Affidavits Annexed...... 1
Order to Show Cause and Affidavits Annexed.__
Answering Affidavits. ............... 2
Replying Affidavits------ -----. 3
Exhibits............................. Var
Other............... __
Based on the foregoing papers, plaintiff's motion for summary judgment (Seq. 004) is decided as follows:
Introduction
Plaintiff commenced this action to recover for damages he claims to have sustained on December 22, 2020. when he fell from a ladder at a construction site located at 58 St. Mark's Place, Brooklyn, NY (the premises). It is undisputed that the premises was owned by 4th Avenue Development Owners LLC (Development) and that LIC Corp. (LIC) was retained as the general contractor.
Factual Background
Plaintiff testified as follows: Plaintiff was employed by ShopWorx Inc. (ShopWorx) (Santos EBT at 33). Plaintiff s main responsibility at the site was to cover the window openings with plastic (id. at 58-59, 67-68). On the date of his accident, plaintiff was. installing plastic on window openings on the eighth floor (id.at 48-49, 62-63). Plaintiff was provided with a harness, which was attached to a lifeline dangling from the ceiling (Santos EBT at 49-50). Plaintiff was working with "Alex" and "Emilio," and could not recall if anyone else was on the eighth floor at the time (id. at 62-63), Alex also worked for ShopWorx; plaintiff did not know who Emilio worked for, but he performed the same work as plaintiff (id). All three workers were installing a plastic covering on the same window. Emilio was on a ladder to plaintiff s right, and plaintiff Was on the middle rung of a twelve-foot aluminum A-frame ladder (id, at 91-93. 95-96). Emilio passed a wood block and a drill to plaintiff; moments later, Emilio began to fall from his ladder (id. at 95-96). Emilio and his ladder struck plaintiffs ladder, causing plaintiff and his ladder to fall (id:). The harness did riot prevent plaintiff from falling because the harness was only meant to prevent him from falling from the building.
Plaintiff testified that, after he fell, German Mota (LIC's senior construction manager) drove plaintiff to City MD and then to NYU Lang one Medical Center (Santos EBT at 146, 149), Mr, Mota denied taking anyone to the hospital and. denied learning that Mr. Santos fell until several days after plaintiffs alleged accident (Mota EBT at 54).
The record also contains daily sign-in sheets for December 16, 2020 and December 22, 2020. These sheets were authenticated by Faisal Ahmed, the owner of ShopWorx (Ahmed EBT at 45). Mr. Ahmed claimed that employees were responsible for signing in every day they were working at the site (id.).
Analysis
Oh a motion for summary judgment, the moving party bears the initial burden of making a prima facie showing that there are no triable issues of material fact (Giuffrida v Citibank, 100 N.Y.2d 72, 81 [2003]). Once a prima facie showing has been established, the burden shifts to the non-moving party to rebut the movant's showing such that a trial of the action is required (Alvarez v Prospect Hospital. 68 N.Y.2d 320, 324 [1986]).
As an initial matter, defendants contend that plaintiff's motion is untimely. The note of issue was filed on January 18, 2024, and the preliminary conference order required dispositive motions to be filed within 60 days of the filing of the note of issue. This motion was filed on May 22, 2024, approximately 125 days after the Note of Issue was filed.
Plaintiff provides four reasons for his delay in filing the instant motion. First, defense counsel was substituted, which may have contributed to, second, plaintiff not receiving the deposition transcripts until March 13, 2024. Third, defendants moved to vacate the Note of Issue, and that motion was not resolved until March 4, 2024. Finally, fourth, the transcripts for the deposition of Mr. Ahmed were not received until April 26, 2024. Plaintiff filed this motion less than a month after receiving the transcript of this party deposition. Additionally, on the day that plaintiff filed the note of issue, the court issued a discovery order extending the deadline to file the note of issue to January 3, 2025, indicating that additional discovery' was outstanding. In light of circumstances leading up the instant filing, and plaintiff s expedition in filing the motion after disco very was completed, plaintiff has demonstrated good cause for delay and his motion will be considered by the court (Brill v City of New York, 2 N.Y.3d 648 [2004]).
Labor Law § 240 (1)Liability under Labor Law § 240 (1) is "absolute" where a plaintiff is exposed to elevation-related risks and is not provided with adequate safety devices to prevent him from falling (Blake v. Neighborhood Hous. Services of New York City, Inc, 1 N.Y.2d 280.287 [2003] [citing Haimes v. New York Tel. Co., 46 N.Y.2d 132, 136 (1978) and Ross v Curtis-Palmer Hydro-Elec. Co., 81 KY.2d 494, 500 (1993)]), Plaintiff testified that he was performing covered work on a construction site when the unsecured ladder he was standing on was struck, and plaintiff fell to the ground. This testimony is sufficient to make out plaintiffs prima facie entitlement to summary judgment under Labor Law § 240 (1).
In opposition, defendants contend that there is a question of fact as to whether plaintiff was on site on December 22, 2020. Defendants point to the sign-in sheets, There is a question of fact as to whether the plaintiff Was present on site on the date he claims to have been injured. Mr. Mota denies that he took plaintiff to the hospital, and Mr. Ahmed authenticated the sign-in sheets and the general practice of requiring employees to sign in.
While it is the case that a plaintiff can obtain summary judgment when they are the sole witness to an accident (see Cardenas v 111-127 Cabrini Apartments Corp., 145 A.D.3d 955, 957 [2d Dept 2016]), that scenario requires that the plaintiff s testimony about the accident be sufficient to resolve all questions of fact, leaving only issues of law. Here, plaintiffs absence from the sign-in sheet, without explanation, does raise a question about whether the plaintiff was present on site, and plaintiffs testimony that Mr. Mota drove him from the site is directly contested by Mr. Mota's own testimony . Resolving these issues requires a credibility determination that is inappropriate on a motion for summary judgment (see Schultheis v Arcale, 216 A.D.3d 1018 [2d Dept 2023]).
Plaintiff s Labor Law §§ 241 (6) and 200 claims depend upon, inter alia, plaintiff s presence at the site. Since the court has already determined that there are questions of fact about whether plaintiff was present, plaintiffs motion is denied as to these claims due to material questions of fact.
Conclusion
Plaintiff s motion for summary judgment (Seq. 004) is denied.
This constitutes the decision and order of the court.