Alvarado v. S.C. 142 W. 24, LLC

Full title: ANGEL ALVARADO, Plaintiff, v. SC 142 WEST 24 LLC. MCSAM HOTEL GROUP…

Court: Supreme Court of New York

Date published: Jan 7, 2022

2022 N.Y. Slip Op. 30027 (N.Y. Sup. Ct. 2022)

Opinion

INDEX 156474/2019 595751/2019 595711/2020

01-07-2022

ANGEL ALVARADO, Plaintiff, v. SC 142 WEST 24 LLC. MCSAM HOTEL GROUP, LLC.OMNIBUILD CONSTRUCTION INC., Defendants. SC 142 WEST 24 LLC, MCSAM HOTEL GROUP, LLC, OMNIBUILD CONSTRUCTION INC. Plaintiffs, v. SKY MATERIALS, INC. Defendant. SC 142 WEST 24 LLC, MCSAM HOTEL GROUP, LLC, OMNIBUILD CONSTRUCTION INC. Plaintiffs, v. RELIANCE SAFETY CONSUL TING, LLC Defendant. MOTION SEQ. No. 003

DATE PAUL A. GOETZ, J.S.C.

Unpublished Opinion

MOTION DATE 10/25/2021

DECISION+ ORDER ON MOTION

DATE PAUL A. GOETZ, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 003) 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 78, 80, 81, 82, 83, 84, 85, 86, 87 were read on this motion to/for JUDGMENT - SUMMARY.

Plaintiff commenced this labor law action after he slipped and fell on mud in an excavation pit of dirt on September 11, 2018. The day prior to the accident, it had rained heavily, and so the pit was very muddy. Plaintiff now moves for summary judgment on his Labor Law 241(6) claim insofar as it is premised on a violation of Industrial Code Section 23-1.7(d). Defendants/third-party plaintiffs oppose the motion and cross-move for summary judgment seeking dismissal of the complaint and summary judgment on their contractual indemnification claim against third-party defendant Sky Materials, Inc., plaintiffs employer at the time of the accident.

Industrial Code Section 23-1.7(d) provides that "[e]mployers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing." Here, the plaintiff has met his prima facie burden to show a violation of this provision by submitting testimony showing that he was working at the bottom of an excavation pit at the time of the accident, which was very muddy due to the heavy rain from the prior day. In their opposition, defendants/third-party plaintiffs, as well as the third-party defendant, do not controvert this testimony. Rather, they argue that since the pit was made of dirt, the mud on which the plaintiff slipped cannot be considered a "foreign substance" within the meaning of this provision. However, whether or not the mud is considered a foreign substance is irrelevant as plaintiff has demonstrated that the first part of the provision was violated, namely that he was permitted to work on a slippery floor. See Velasquez v. 795 Columbus LLC, 103 A.D.3d 541 (1^stDep't 2013); Temes v. Columbus Centre LLC, 48 A.D.3d 281 (1^st Dep't 2008). Further, while the dirt and earth on which plaintiff was working was an integral part of the surface, the rain which caused the muddy conditions was not and constitutes a foreign substance under this provision. See Sweet v. Packaging Corporation of America, 297 A.D.2d 421 (3d Dep't 2002) (precipitation causing slipper surface was not integral part of the work site); compare with Galazka v. WFP One Liberty Plaza, 55 A.D.3d 789 (2d Dep't 2008) (wet plastic surface which caused plaintiffs accident was specifically designed to be wet and thus was an integral part of the work site). Accordingly, plaintiff is entitled to summary judgment on this claim. However, it is premature to dismiss defendants' affirmative defense of contributory negligence at this juncture.

In light of this ruling, defendants/third-party plaintiffs' cross-motion for summary judgment is academic. Squicaray v. Con. Edison Co. of NY, Inc., 2017 NY Misc. LEXIS 4060, 2017 NY Slip Op 32277 [U], aff'd 171 A.D.3d 416 (1^st Dept 2019) (holding "[s]ince the court properly granted partial summary judgment in favor of the [plaintiff on his] Labor Law § 240 (1) claim, [defendant's] remaining arguments, concerning plaintiffs Labor Law § 241 (6) claim, are academic", citing Fanning v Rockefeller Univ., 106 A.D.3d 484, 485 [1^st Dept 2013]). Further, to the extent that defendants seek dismissal of the claims against defendant MCSAM Hotel Group, they have failed to submit any admissible evidence in support of this relief. Finally, defendants/third-party plaintiffs request for summary judgment on their contractual indemnification claim against plaintiffs employer, third-party defendant Sky Materials Inc., must be denied. In support of this relief, defendants/third-party plaintiffs rely on a contract which was submitted by plaintiff in support of his motion for summary judgment and which was introduced without any testimony authenticating this document. Since the contract is not authenticated as required by CPLR 4518(a) and it is inadmissible and cannot form the basis to grant summary judgment (Clarke v. American Truck & Trailer, 111 A.D.3d 405, 406 [1^st Dep't 2019] [holding agreement between parties, annexed to an attorney affirmation, was not authenticated and therefore was not admissible and not an appropriate basis on which to grant summary judgment]). Accordingly, it is

ORDERED that plaintiffs motion for summary judgment on his Labor Law 241(6) claim against defendants S.C. 142 West 24 LLC and Omnibuild Construction Inc. is GRANTED; and it is further

ORDERED that plaintiffs motion to dismiss defendants' contributory negligence affirmative defenses is DENIED; and it is further

ORDERED that defendants/third-party plaintiffs' motion for summary judgment is DENIED.