Opinion
Index No. 518045/20
05-02-2024
AMILCAR ZACARIAS CALVO, Plaintiff, v. HYLAN PLAZA 1339, LLC., and HUDSON MERIDIAN CONSTRUCTION GROUP, LLC, Defendants. HUDSON MERIDIAN CONSTRUCTION GROUP LLC, Third-Party Plaintiff, v. BUILDER SERVICES GROUP, INC. d/b/a TRUTEAM COMMERCIAL SERVICES, A TOPBUILD COMPANY, Third-Party Defendant.
Unpublished Opinion
DECISION & ORDER
HON. INGRID JOSEPH, Justice.
The following e-filed papers read herein: NYSCEF Doc Nos.:
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed____ 79-81,96-97,104
Opposing Affidavits (Affirmations) ___ 112, 116, 117-118
Affidavits/ Affirmations in Reply __ 120
Upon the foregoing papers, plaintiff Amilcar Zacarias Calvo (plaintiff) moves for an order, pursuant to CPLR 3212, granting partial summary judgment in his favor with respect to liability on his Labor Law §§ 240 (1) and 241 (6) causes of action as against defendant Hylan Plaza 1339, LLC (Hylan Plaza) and defendant/third-party plaintiff Hudson Meridian Construction Group, LLC (Hudson Meridian) (collectively referred to as defendants) (motion sequence number 2). Defendants move for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint against them (motion sequence number 3).
In this action premised upon common-law negligence and violations of Labor Law §§ 200, 240 (1) and 241 (6), plaintiff alleges that, i on July 8, 2020, he suffered injuries while s preparing to spray foam fireproofing material onto steel beams located in the ceiling of a commercial building being constructed in Staten Island, New York. The premises at issue was, owned by Hylan Plaza, which hired Hudson Meridian as a construction manager/general contractor for a project involving the construction of a strip mall. Hudson Meridian, in turn, subcontracted with third-party defendant Builder Services Group, Inc., d/b/a Truteam Commercial Services, a Topbuild Company (Truteam), to perform spray-on fireproofing work on, among other things, the newly installed steel. Plaintiff was employed by Truteam as a sprayer.
Hylan Plaza conceded that it owned the premises at issue in its answer.
The deposition testimony of Hudson Meridian's witness and its contract with Hylan Plaza demonstrate that Hudson Meridian acted as the general contractor for the project.
According to plaintiffs deposition testimony, on the date of the accident, Dominic, Colavito, a Truteam employee and plaintiffs supervisor, directed him to assemble a baker's scaffold to stand on while he sprayed fireproofing material onto beams in the ceiling of one of 1) the buildings being constructed. Plaintiff asserted that he connected all the hooks holding the platform onto the frame, inspected it, locked the, wheels, and then used an A-frame ladder to climb onto the platform, which was six to seven, feet above the ground. Once he was on the platform, plaintiff noticed that the platform moved. Plaintiff, as a result, climbed back down the ladder and told Colavito that the platform just moved, but Colavito told plaintiff to continue working, stating, "let's go, let's do this fast" (plaintiffs deposition, at 80, Ins 24-25). After plaintiff climbed back onto the scaffold's platform a second time, but before he had brought any il, of the spray equipment up with him or started working, the platform and scaffold collapsed under him, and plaintiff fell with the scaffold to the floor. Plaintiff also asserted that Colavito had inspected the scaffold after plaintiff constructed it, although its unclear from plaintiffs testimony whether Colavito did so before plaintiff reached the platform on his first and/or second time.
It is well established that the party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Ayotte v. Gervasio, 81 N.Y.2d 1062, 1063 [1993], citing Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 [1986]; Zapata v. Buitriago, 107 A.D.3d 977 [2d Dept 2013]). Once a prima facie showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action. (Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]).
Turning first to plaintiffs Labor Law § 240 (1) cause of action, Labor Law § 240 (1) imposes a nondelegable duty upon owners, general contractors, and their agents to provide scaffolding which is "so constructed, placed and operated as to give proper protection" to employees using it. To make a prima facie showing of liability under Labor Law § 240 (1), a plaintiff must establish that the statute was violated and that the violation was a proximate cause of plaintiffs injuries (see Debennedetto v Chetrit, 190 A.D.3d 933, 936 [2d Dept 2021]; Cruz v Roman Catholic Church of St. Gerard Magellan 174 A.D.3d 782, 783 [2d Dept 2019]). The burden then shifts to the defendant to raise a triable issue of fact (see Bermejo v New York City Health &Hosps. Corp, 119 A.D.3d 500, 502 [2014], Iv dismissed 24 N.Y.3d 1096 [2015]). A plaintiffs comparative negligence is not a defense to a cause of action under Labor Law § 240 (1) (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 286 [2003]; Rapalo v MJRB Kings Highway Realty, LLC, 163 A.D.3d 1023, 1024 [2d Dept 2018]). However,: where a plaintiffs actions are the sole proximate cause of his or her injuries, liability under Labor Law § 240 (1) does not attach (see Robinson v East Med. Ctr., LP, 6 N.Y.3d 550, 554 [2006]; Rapalo, 163 A.D.3d at 1024).
Here, there is no dispute that Hylan Plaza, the owner of the premises, and Hudson Meridian, the general contractor, are entities that may be held liable under Labor Law § 240 (1) (see Gordan v Eastern Ry. Supply, 82 N.Y.2d 555, 559-560 [1993]; Jara v Costco Wholesale Corp., 178 A.D.3d 687, 690 [2d Dept 2019]; see also McCarthy v Turner Constr., Inc., 17 N.Y.3d 369, 374 [2011]; Pipia v Turner Constr. Co., 114 A.D.3d 424, 427 [1st Dept 2014], Iv dismissed 24 N.Y.3d 1216 [2015]), that plaintiffs fireproofing work is work that is covered under section 240 (1) (see Belding v Verizon N.Y, Inc., 14 N.Y.3d 751, 752-753 [2010]; Artoglou v Gene Scappy Realty Corp., 57 A.D.3d 460, 461 [2d Dept 2008]), and that plaintiff, at the time of the accident, was working at an elevation for purposes of section 240 (1) (see Doto v Astoria Energy II, LLC, 129 A.D.3d 660, 662 [2d Dept 2015]; Auriemma v Biltmore Theatre, LLC, 82 A.D.3d 1, 9 [1st Dept 2011]; Bradley v Morgan Stanley &Co.,'Inc., 21 A.D.3d 866, 867-868 [2d Dept 2005], abrogated on other grounds Wrighten v ZHN Contr. Corp., 32 A.D.3d 1019 [2d Dept 2006]). Additionally, through his testimony that the scaffold and scaffold platform collapsed and caused him to fall to the ground, plaintiff has demonstrated, prima facie, that the statute was violated and that this violation was a proximate cause of plaintiffs injuries (see Bialucha v City of New York, 222 A.D.3d 511, 511-512 [1st Dept 2023]; Hernandez v 767 Fifth Partners, LLC, 199 A.D.3d 484, 485 [1st Dept 2021]; Debennedetto, 190 A.D.3d at 936; Cruz, 174 A.D.3d at 783; Caban v Plaza Constr. Corp., 153 A.D.3d 488, 489-490 [2d Dept 2017]).
This fireproofing work was also ancillary to the larger construction project involving the erection of the buildings (see Depass v Mercer Sq., LLC, 219 A.D.3d 801, 802 [2d Dept 2023]).
Contrary to defendants' contentions, the accident reports relating to the subject incident do not demonstrate the existence of a factual issue. In the report prepared for Truteam and dated July 31, 2020, Colavito stated, as is relevant here, that, "Employee was installing a broken scaffold in [the] F building fire pump room. He was on the platform, about 4 feet up to install the safety guard rail and as he went to install the second guard, the scaffold slid down on one side causing him to fall." Colavito also made a similar statement in an accident report prepared by the project's site safety manager. Assuming that Colavito's statements in the reports are admissible (see Mayorquin v Carriage House Owner's Corp., 202 A.D.3d 541, 541 [1st Dept 2022]; Buckley v J.A. Jones/GMO, 38 A.D.3d 461, 462-463 [1st Dept 2007]), they actually support plaintiffs entitlement to summary judgment since, even though Colavito's description of the accident is not exactly the same as plaintiffs, he states that the scaffold was broken and that it slid down causing plaintiff to fall. On the other hand, Hudson Meridian's accident report does not appear to have. any evidentiary value, since Jorge Garcia, Hudson Meridian's general superintendent/project manager, testified at his deposition that he did not witness the accident.
Plaintiff relied upon Colavito's statements in his opposition papers and may be deemed to have waived any objection with respect to their admissibility.
The court notes that, in contrast to the statements by Colavito, plaintiff did not rely on Garcia's statement in his papers. In addition, while defendants submitted a copy of Hudson Meridian's accident report and mentioned Garcia's statement contained in it in defendants' initial statement of material facts submitted in support of their motion, they made no argument that Garcia's statement supported their position until their reply papers. Thus, while the accident report may properly be considered before the court, plaintiff cannot be deemed to have waived an objection to the admissibility of the statement.
In opposing the motion, defendants also argue that, since plaintiff was the sole person to assemble the scaffold, he must have misassembled the scaffold, and, as such, there are at least factual issues as to whether his actions were the sole proximate cause of the accident. The existence of factual issues as to whether a plaintiff was the sole proximate cause of the accident may be shown where a defendant presents evidence that a plaintiff may have created the very condition that caused the scaffold to collapse (see Elibox v Nehemiah Spring Cr. IV Mixed Income Hous. Dev. Fund Co., Inc:, 219 A.D.3d 906, 907 [2d Dept 2023] [evidence that plaintiff removed nails securing the plank on which he stood]; Berenson v Jericho Water Dist., 33 A.D.3d 574, 576 [2d Dept 2006] [evidence that plaintiff, or workers he supervised, placed an inadequate plank onto scaffold]; Storms v Dominican Coll. Of Blauvelt, 308 A.D.2d 575, 576 [2d Dept 2003] [plaintiff stepped on plank from which he had just removed a bracket]; Heffernan v Bais Corp., 294 A.D.2d 401, 403 [2d Dept 2002] [plaintiff failed to replace plywood cover over two-by-fours]).
This court, however, rejects defendants' sole proximate cause argument on the facts presented here. Plaintiff, in his own testimony, stated that he had properly attached the hooks for the platform and defendants, in opposition, have only offered their counsel's speculative assertion that plaintiff must be at fault because he assembled the scaffold (see Campbell v 111 Chelsea Commerce, L.P,, 80 A.D.3d 721, 722 [2d Dept 2011]). The fact that plaintiff was responsible for the assembly of the scaffold, however, does not, in and of itself create an issue of fact (see Debennedetto, 190 A.D.3d at 936) and other courts in cases involving identical or related facts, have rejected similar conclusory sole proximate cause arguments (see Bialucha, 222 A.D.3d at 511-512; Hernandez, 199 A.D.3d at 485; Cruz, 174 A.D.3d at 783; Bermejo, 119 A.D.3d at 502). Moreover, in view of plaintiffs uncontradicted testimony that his supervisor inspected his work and directed plaintiff to continue using the scaffold despite being told that it was unsteady, any error in the assembly of the scaffold would, at most, demonstrate comparative fault, which is not a defense to a Labor Law § 240 (1) cause of action (see Vicki v City of Niagara Falls, 215 A.D.3d 1285, 1288 [4th Dept 2023]; Finocchi v Live Nation Inc., 204 A.D.3d 1432, 1433-1434 [4th Dept 2022]; Garces v Windsor Plaza, LLC, 189 A.D.3d 539, 539 [1st Dept 2020]; Lojano v Soiefer Bros. Realty Corp., 187 A.D.3d 1160, 1163 [2d Dept 2020]; DeRose v Bloomingdale's Inc., 120 A.D.3d 41, 46-47 [1st Dept 2014]; Pichardo v Aurora Contrs., Inc., 29 A.D.3d 879, 880-881 [2d Dept 2006]; cf. Gamez v New Line Structures &Dev., LLC, 218 A.D.3d 446, 448 [2d Dept 2023] [contradictory evidence as to whether plaintiff performing work in a manner directed by supervisors]).
Accordingly, defendants have failed to demonstrate the existence of a factual issue, and plaintiff is thus entitled to partial summary judgment in his favor on the issue of liability with respect to his Labor Law § 240 (1) cause of action.
With respect to plaintiff's Labor Law §. 241 (6) cause of action, under that section, an owner, general contractor or their agent may be held vicariously liable for injuries to a plaintiff where the plaintiff establishes that the accident was proximately caused by a violation of an Industrial Code section stating a specific positive command that is applicable to the facts of the case (Rizzuto v L.A. Wenger Contr. Co., 91 N.Y.2d;343, 349-350 [1998]; Honeyman v Curiosity Works, Inc., 154 A.D.3d 820, 821 [2d Dept 2017]). Plaintiff, in order to meet his summary j judgment burden on a section 241 (6) cause of action, is required to demonstrate: (1) a concrete Industrial Code section applied under the circumstances; (2) the defendants or a contractor or i subcontractor within the chain of the project violated that section's specific commands; (3) this violation alone, or considered with other undisputed factual evidence, constitutes negligence; and (4) the violation caused plaintiffs injuries (see Bdzdaric v Almah Partners LLC,__NY3d __, 2024 NY Slip Op 00847, *3 [2024]; Rizzuto, 91 N.Y.2d at 351).
Here, in moving, plaintiff relies on Industrial Code (12 NYCRR) §§ 23-5.1 (c) (1) and -23-5.1 (e) (1). While plaintiff first alleged that these sections were violated in his instant motion papers and opposition papers, contrary to defendants' contention, plaintiffs belated allegation that sections 23-5.1 (c) (1) and 23-5.1 (e) (1) were violated is not a bar to their consideration since the claimed violations do not involve any new factual allegations, raise any new theories of liability, or cause prejudice to defendants (see Simmons v City of New York, 165 A.D.3d 725, 729 [2d Dept 2018]; Klimowicz v Powell Cove Assoc., LLC, 111 A.D.3d 605, 607 [2d Dept 2013]; Ross v DD 11th Ave., LLC, 109 A.D.3d 604, 606 [2d;Dept 2013]).
With respect to section 23-5.1 (c) (1), that section provides that, "[e]xcept where otherwise specifically provided in this Subpart, all scaffolding shall be so constructed as to bear four times the maximum weight required to be dependent therefrom or placed thereon when in; use. (See Labor Law, § 240, subdivision 3.) Such maximum weight shall be construed to mean the sum of both dead and live loads." The Appellate Division, Second Department has found that s section 23-5.1 (c) (1) is sufficiently specific to state a section 241 (6) violation (see Debennedetto, 190 A.D.3d at 936; Treu v Cappelletti, 71 A.D.3d 994, 998 [2d Dept 2010]). In 1 addition, based on the fact that the scaffold failed to support even plaintiffs weight and, collapsed for some unexplained reason, plaintiff has demonstrated, prima facie, that the scaffold was unable to "bear four times the maximum weight... [to be] placed thereon when in use" as is required by section 23-5.1 (c) (1), that Truteam violated the statute's specific commands, and that the scaffolds collapse was a proximate cause of his injuries (see Bazdaric, 2024 NY Slip Op 00847, *3-5; Kristo v Board of Educ. of the City of N.Y, 134 A.D.3d 550, 551 [1st Dept 2015]; Faria v CLS Project Solutions Inc., 69 Mise 3d 1222 [A], 2020 NY Slip Op 51464[U], *2-3 [Sup Ct, Queens County 2020]). Contrary to defendants' contentions, Colavito's statements do not demonstrate an issue of fact. Colavito's statements support plaintiffs contentions. In fact, Colavito's statement that plaintiff was atop the platform installing the second guardrail demonstrates that plaintiff had finished assembling the rest of the scaffold, and Colavito's statement that the scaffold slid down while plaintiff was on it, demonstrates that the scaffold was unable to support plaintiffs weight - let alone four times the maximum weight. Plaintiff is thus entitled to partial summary judgment on his Labor Law § 241 (6) cause of action to the extent that it is premised on section 23-5.1 (c) (1).
Regarding Industrial Code (12 NYCRR) § 23-5.1 (e) (1), which requires, among other things, that scaffold planks "be laid tight," plaintiffs testimony and Colavito's statements do not eliminate factual issues as to whether the collapse or slipping of the scaffold was related to a failure to lay planks tight. Indeed, the record is not clear if the scaffold platform, which plaintiff described as being made up of wood and metal, constituted planking within the meaning of section 23-5.1 (e) (1). Defendants, on the other hand, have not pointed to evidence demonstrating that section 23-5.1 (e) (1) was inapplicable or that the accident was not proximately caused by a violation of that section (see Debennedetto, 190 A.D.3d at 936; Klimowicz, 111 A.D.3d at 607; Treu, 71 A.D.3d at 998). Accordingly, both plaintiff and defendants have failed to demonstrate the absence of factual issues with respect to a violation of section 23-5.1 (e) (1), and each of their motions with respect to that section must thus be denied.
On the other hand, defendants have demonstrated, prima facie, that Industrial Code (12 NYCRR) §§ 23-1.2 (b); 23-1.5 (a); 23-1.7 (a); 23-1.7 (b); 23-1.32; 23-3.1; 23-3.2; 23-3.3; 23-4.1; 23-4.2; 23-4.4, the Industrial Code sections identified by plaintiff in his bill of particulars, do not state specific standards or are inapplicable to the facts here. Since plaintiff has abandoned reliance on those sections by failing to address them in his motion and opposition papers, defendants are entitled to dismissal of the section 241 (6) cause of action to the extent that it is premised on those sections (see Debennedetto, 190 A.D.3d at 936; Pita v Roosevelt Union Free Sch. Dist., 156 A.D.3d 833, 835 [2d Dept 2017]).
Finally, defendants, who have submitted evidence showing that the accident was not caused by a dangerous property condition (see Przyborowski v A&M Cook, LLC, 120 A.D.3d 651, 652-653 [2d Dept 2014]; Ortega v Puccia, 57 A.D.3d 54, 61-63 [2d Dept 2008]) and that they did not exercise more than general supervision and control over the injury producing work (see Wilson v Bergon Constr. Corp., 219 A.D.3d 1380, 1383 [2d Dept 2023]; Kefaloukis v Mayer, 197 A.D.3d 470, 471 [2d Dept 2021]; Lopez v Edge 11211, LLC, 150 A.D.3d 1214, 1215-1216 [2d Dept 2017]), have demonstrated their prima facie entitlement to summary judgment dismissing plaintiffs common-law negligence and Labor Law § 200 causes of action. Since counsel for plaintiff, in the affirmation in opposition to defendants' motion, concedes that the facts in this case do not support either a cognizable common-law negligence or section 200 claim, defendants are entitled to dismissal of those causes of action.
Accordingly, it is hereby
ORDERED, that Plaintiffs motion (motion sequence number 2) is granted with respect to his Labor Law § 240 (1) cause of action and with respect to his Labor Law § 241 (6) cause of action to the extent that it is premised on Industrial Code (12 NYCRR) § 23-5.1 (c) (1). Plaintiffs motion is otherwise denied; and it is further
ORDERED, that Defendants' motion (motion sequence number 3) is granted to the extent that plaintiffs common-law negligence and Labor Law § 200 causes of action are dismissed and to the extent that plaintiffs Labor Law § 241 (6) cause of action is dismissed with respect to Industrial Code (12 NYCRR) §§ 23-1.2 (b); 23-1.5 (a); 23-1.7 (a); 23-1.7 (b); 23-1.32; 23-3.1; 23-3.2; 23-3.3; 23-4.1; 23-4.2; 23-4.4. Defendants' motion is otherwise denied.
This constitutes the decision and order of the court.