Opinion
501467/16
10-10-2018
Sotero Tapia SANCHEZ and Ramona Mendoza, Plaintiffs, v. Rosemaria LANFRANCHI, GR & J Hub Home Improvement Center, Inc., Defendants. GR & J Hub Home Improvement Center, Inc., Third-Party Plaintiff, v. Cristo Rey Construction, Corp., Third-Party Defendant. Rosemaria Lanfranchi, Second Third-Party Plaintiff, v. Cristo Rey Construction, Corp., Second Third-Party Defendant. GR & J Hub Home Improvement Center, Inc., Third-Party Plaintiff, v. Cristo Rey Construction, Corp., Third-Party Defendant. Rosemaria Lanfranchi, Second Third-Party Plaintiff, v. Cristo Rey Construction, Corp., Second Third-Party Defendant.
Attorney for Plaintiff: Christopher J. Donadio Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf, 80 Pine Street, New York, NY 10005, (212) 943-1090 Attorney for Defendant/Third Party Plaintiff: GR & J Hub Home Improvement, Danielle L. Rizzo, Esq., Milber, Makris, Plousadis & Seiden LLP, 3 Barker Avenue, 6th Floor, White Plains, NY 10601 Attorney for Defendant/Second Third-Party Plaintiff: Rosemarie Lanfranchi, Brand, Glick & Brand, 600 Old Country Road, Suite 440, Garden City, NY 11530 Attorney for Third-Party/Second Third-Party Defendant: Cristo Rey Construction, Baxter, Smith & Shapiro, 99 North Broadway, Hicksville, NY 11801
Attorney for Plaintiff: Christopher J. Donadio Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf, 80 Pine Street, New York, NY 10005, (212) 943-1090
Attorney for Defendant/Third Party Plaintiff: GR & J Hub Home Improvement, Danielle L. Rizzo, Esq., Milber, Makris, Plousadis & Seiden LLP, 3 Barker Avenue, 6th Floor, White Plains, NY 10601
Attorney for Defendant/Second Third-Party Plaintiff: Rosemarie Lanfranchi, Brand, Glick & Brand, 600 Old Country Road, Suite 440, Garden City, NY 11530
Attorney for Third-Party/Second Third-Party Defendant: Cristo Rey Construction, Baxter, Smith & Shapiro, 99 North Broadway, Hicksville, NY 11801
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of plaintiffs Sotero Tapia Sanchez (hereinafter injured plaintiff) and Ramona Mendoza filed on March 9, 2018, under motion sequence two, for an order granting summary judgment to plaintiff on the issue of liability pursuant to CPLR 3212 and New York Labor Law § 240 (1) against defendants, Rosemary Lanfranchi (hereinafter Lanfranchi) and GR & J Hub Home Improvement Center, Inc. (hereinafter Hub)
Notice of Motion
Affirmation in Support
Exhibits A-M
Plaintiff's Memorandum
Affirmation in Opposition to Plaintiff's Motion and Support of Cross Motion
Exhibit A-N
Affirmation in Opposition
Reply Affirmation in Support
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of cross motion of defendant/third party plaintiff Hub Home filed on April 27, 2018, under motion sequence three, for an order pursuant to CPLR 3212 : (1) denying plaintiffs' motion for summary judgment in its entirety; (2) granting summary judgment in its favor dismissing plaintiffs' New York Labor Law § 200 claims and all cross claims; (3) granting summary judgment in its favor and awarding it common law indemnification against the third party defendant, Cristo Rey Construction Corp. (hereinafter Cristo).
Notice of Cross Motion
Affirmation in Opposition to Plaintiff's Motion and Support of Cross Motion
Exhibit A-N
Affirmation in Partial Opposition
Cristo opposes plaintiffs' motion and partially opposes Hub's cross motion. Both motions are unopposed by Lanfranchi.
MOTION PAPERS
Plaintiff's motion papers consist of an affirmation of counsel and thirteen annexed exhibits labeled A to M. Exhibit A is the summons and verified complaint. Exhibit B contains two separate verified answers and cross claims from defendants Lanfranchi and Hub, as well as, Cristo's third party answer. Exhibit C is plaintiff's verified bill of particulars. Exhibit D is the note of issue filed on February 2, 2018. Exhibit E is the deposition transcript of defendant Lanfranchi. Exhibit F is the deposition transcript of Hub employee, Christopher Garofalo. Exhibit G is a copy of the contract between defendants Lanfranchi and Hub. Exhibit H is the deposition transcript of Laureano Tapia. Exhibit I is a copy of the affidavit of Laureano Tapia dated August 26, 2015. Exhibit J is the deposition transcript of Sotero Tapia Sanchez dated December 8, 2016. Exhibit K is the deposition transcript of Sotero Tapia Sanchez dated May 19, 2017. Exhibit L is a black and white copy of a photograph, purported to be a fire escape on the subject premises. Exhibit M is a copy of the affidavit of Marcus Leandro dated August 24, 2015.
Hub's cross motion consists of an affirmation of counsel and fourteen annexed exhibits labeled A to N. Exhibit A is plaintiff's summons and verified complaint. This exhibit is a duplicate of plaintiff's exhibit A. Exhibit B consists of Lanfranchi's verified answer and cross claims, as well as, Hub's verified answer and cross claims. Exhibit C consists of Hub's verified third party complaint and Lanfranchi's verified second third party complaint. Exhibit D consists of Cristo's answers to both the Hub third party complaint and Lanfranchi's second third party complaint. Exhibit E is the note of issue. This exhibit is a duplicate of plaintiffs' exhibit D. Exhibit F is the transcript of Lanfranchi. This exhibit is a duplicate copy of plaintiffs' exhibit E. Exhibit G is a copy of the contract between Hub and Lanfranchi. This exhibit is a duplicate of plaintiffs' exhibit G. Exhibit H is the transcript of Hub employee, Christopher Garofalo. This is a duplicate of plaintiffs' exhibit F. Exhibit I is a copy of Sanchez' transcript dated December 8, 2016. This is a duplicate of plaintiffs' exhibit J. Exhibit J is a copy of Sanchez' transcript dated May 19, 2017. This is a duplicate copy of plaintiffs' exhibit K. Exhibit K is purported to be a photograph of a fire escape. This is a duplicate of plaintiffs' exhibit L. Exhibit L is deposition transcript of Laureano Tapia. This is a duplicate of plaintiffs' exhibit M. Exhibit M is described as Lutheran Medical Center records. Exhibit N is described as Worker's Compensation records.
BACKGROUND
On February 2, 2016, injured plaintiff and Ramona Mendoza, his wife suing derivatively, commenced the instant action for damages for personal injuries by filing a summons and verified complaint with the Kings County Clerk's Office (hereinafter KCCO). On April 18, 2016, defendant Lanfranchi joined issue by verified answer with cross claims. On April 26, 2016, defendant Hub joined issue by verified answer with cross claims. On February 2, 2018, plaintiff filed the note of issue.
On June 3, 2016, defendant Hub commenced a third party action for indemnification by filing a third party summons and verified complaint with the KCCO. On August 3, 2016, Cristo interposed an answer with cross claims and counterclaims.
On June 19, 2017, defendant Lanfranchi commenced a second third party action against Cristo. On July 19, 2017, Cristo interposed an answer to the second third party with cross claims and counterclaims.
The verified complaint, the verified bill of particulars and the injured plaintiff's deposition transcripts allege the following salient facts. On August 5, 2015, the date of the accident, Sanchez was installing new siding at a three-family residence located at 1165 46th Street, Brooklyn, New York (hereinafter the subject premises). Lanfranchi owned the subject premises on the date of the accident and hired Hub as a general contractor. Hub hired Cristo as a subcontractor. The injured plaintiff was employed by Cristo.
The injured plaintiff alleges that on the date of the accident, he and Marcus Leandro (hereinafter Leandro), a fellow employee, were demolishing the existing facade of the subject premises so that new siding could be installed. To do so, he and Leandro created a makeshift scaffold. The scaffold consisted of a platform that extended across the back of the house, a ladder that served as the right support for the platform, and an outer pole of a pump scaffold that served as the left support for the platform. The scaffold platform was also supported by a fire escape on the subject premises. He further alleges that the left side of the platform should have been secured with rope by Leandro and the right side he secured by sliding it through the ladder that was secured into the subject premises. The injured plaintiff alleges that the left side of the platform was unsecured causing him to fall approximately eight feet. He sustained injuries to his head, neck, limbs and suffers from paraplegia. The injured plaintiff has also alleged that the defendants violated New York Labor Law §§ 200, 240 (1). He also claims Labor Law § 241 (6) by violations of the following New York Industrial Codes 12 NYCRR 23-1.7 (b)(1), 12 NYCRR 23-1.15, 12 NYCRR 23-1.16, 12 NYCRR 23-5.1, 12 NYCRR 23-5.1(j), 12 NYCRR 23-5.6, 12 NYCRR 23-5.15 and 12 NYCRR 23-5.16.
LAW AND APPLICATION
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists ( Alvarez v. Prospect Hospital, 68 NY2d 320 [1986] ). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts ( Guiffirda v. Citibank, 100 NY2d 72 [2003] ).
A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers ( Ayotte v. Gervasio, 81 NY2d 1062 [1993] ). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact ( Alvarez, 68 NY2d at 324 ).
"Pursuant to CPLR 3212 (b) a court will grant a motion for summary judgment upon a determination "that the movant's papers justify holding, as a matter of law, that there is no defense to the cause of action or that the cause of action or defense has no merit." Further, all of the evidence must be viewed in the light most favorable to the opponent of the motion ( Marine Midland Bank v. Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2nd Dept 1990] )" ( People ex rel. Spitzer v. Grasso, 50 AD3d 535, 544 [1st Dept 2008] ).
Plaintiff's Motion for Summary Judgment
Labor Law § 240 (1) imposes a nondelegable duty and absolute liability upon owners, general contractors, and their agents to provide safety devices necessary for workers subjected to elevation-related risks in circumstances specified by the statute (see Rapalo v. MJRB Kings Highway Realty, LLC, 163 AD3d 1023 [2nd Dept 2018], citing Barreto v. Metropolitan Transp. Auth. , 25 NY3d 426, 433 [2015] ). To prevail on a cause of action under Labor Law § 240 (1), a plaintiff must establish that the defendant violated its duty and that the violation proximately caused the plaintiff's injuries (Id. ). Moreover, a plaintiff must make a prima facie showing that he or she was injured "in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure," as well as, acts ancillary to those activities (see Garbett v. Wappingers Cent. School Dist. , 160 AD3d 812, 814 [2nd Dept 2018], quoting Goodwin v. Dix Hills Jewish Center , 144 AD3d 744, 745-746 [2nd Dept 2016] ); see also Labor Law § 240 [1 ] ). The purpose of Labor Law § 240 (1) is the protection of workers from injury and the statute is to be construed liberally as may be for the accomplishment of that purpose (see Rapalo, 163 AD3d 1023 ). However, when the worker's own conduct is the sole proximate cause of the accident, no recovery under Labor Law § 240 (1) is available (see Rapalo, 163 AD3d 1023, citing Robinson v. East Med. Ctr., LP, 6 NY3d 550, 554 [2006] ).
There is no dispute that on the date of the accident Lanfranchi was the owner of the subject premises. It is also undisputed that Lanfranchi hired Hub as a general contractor to perform work at subject premises. Hub, then, hired Cristo to install the siding and Cristo hired the injured plaintiff to work at the subject premises. The injured plaintiff's deposition testimony establishes that while he was standing on the left side of the scaffold and in the process of removing cutting and removing wood the scaffold collapsed causing him to fall. Here, he demonstrated, prima facie, his entitlement to judgment as a matter of law on the issue of liability pursuant to Labor Law § 240 (1) by submitting evidence that scaffold was unstable and unsecured and he had not been provided with any safety devices despite the potential elevation risks involved (see Godoy v. Neighborhood Partnership Hous. Dev. Fund Co., Inc., 104 AD3d 646 [2nd Dept 2013] ).
Defendant Hub is opposing the motion. For reasons unknown to the Court, Lanfranchi did not oppose the motion. Hub contends that a triable issue of fact exists as to whether the type of work performed by the injured plaintiff falls within the ambit of Labor Law § 240 (1) and also whether the plaintiff was the sole proximate cause of his injury. Third party defendant Cristo is also opposing plaintiff's motion on the grounds that he is the sole proximate cause of his injury.
Contrary to the defendant's contentions, the installation of siding does fall within the ambit of Labor Law § 240 (1) as an alteration (see Custer v. Jordan , 107 AD3d 1555 [4th Dept 2013], citing Belding v. Verizon NY, Inc. , 14 NY3d 751, 752–753[2010] ). The plaintiff met his burden in moving for summary judgment, demonstrating prima facie, that he was engaged in the "altering" of the subject premises at the time of his accident such that he is entitled to the protections of Labor Law § 240 (1).
Furthermore, where a violation of Labor Law § 240 (1) is a proximate cause of an accident, the plaintiff's conduct, of necessity, cannot be deemed the sole proximate cause (see Melchor v. Singh , 90 AD3d 866, 867 [2nd Dept 2011], citing Blake v. Neighborhood Hous. Servs. of NY City , 1 NY3d 280, 290 [2003] ). The injured plaintiff testified that the makeshift scaffold was constructed with assistance of Leandro, who was responsible for securing the left side of the scaffold. Hub and Cristo acknowledge that the scaffolding collapse occurred because one side was unsecured with rope. Laureano Tapia, Cristo's principal, testified that both the injured plaintiff and Leandro were left to work to together at the subject premises. Accordingly, plaintiff's conduct could not have been the sole proximate cause of his injuries (see Barreto v. Metropolitan Transp. Authority , 25 NY3d 426, 434 [2015] ). It is noted that a worker's alleged comparative negligence is not a defense to a cause of action under Labor Law § 240 (1) and does not cause a reduction in liability ( Rapalo, 163 AD3d 1023 citing Blake, 1 NY3d at 286 ). Therefore, Hub and Cristo have failed to raise a triable issue of fact to overcome the injured plaintiff's prima facie showing of defendants liability pursuant to Labor Law § 240 (1).
Hub's Cross Motion for Summary Judgment
Hub has cross moved pursuant to CPLR 3212 for an order granting summary judgment in its favor on the issue of liability and dismissing all causes of action and cross claims asserted against it. Hub also moved for summary judgment in its favor on the issue of common law indemnification against Cristo.
Pursuant to the Uniform Civil Term Rules of the Supreme Court, Kings County, a motion for summary judgment must be made no later than 60 days after the filing of the note of issue, unless leave of the court is obtained on good cause shown (see Goldin v. New York and Presbyt. Hosp. , 112 AD3d 578, 579 [2nd Dept 2013], citing Kings County Supreme Court Uniform Civil Term Rules, Part C, Rule 6).
It is undisputed that the note of issue was filed on February 2, 2018 and the instant motion was made on April 27, 2018, twenty-five days late. At oral argument, Hub contended that its motion, although untimely, may be properly considered because portions of its claims were unopposed by the plaintiff and that the arguments within the motion make a prima facie case for summary judgment. However, in the absence of a showing of good cause for the delay in filing a motion for summary judgment, the court has no discretion to entertain even a meritorious, non-prejudicial motion for summary judgment (see Bivona v. Bob's Discount Furniture of NY, LLC, 90 AD3d 796 [2nd Dept 2011] ; see Brill v. City of New York , 2 NY3d 648, 652 [2004] ). Hub did not seek leave to make a late summary judgment motion or demonstrate good cause for the delay (see CPLR 3212 [a]; Ade v. City of New York , --- NYS3d ----[2nd Dept 2018], citing Courtview Owners Corp. v. Courtview Holding B.V., 113 AD3d 722, 723 [2nd Dept 2014] ). Therefore, the motion is untimely.
Hub also asserted that its cross motion is nearly identical to plaintiff's motion. Indeed, an untimely motion or cross motion for summary judgment may be considered by the court where a timely motion for summary judgment was made on nearly identical grounds ( Sheng Hai Tong v. K and K 7619, Inc. , 144 AD3d 887, 890 [2nd Dept 2016] ). Plaintiff's motion seeks summary judgment only on the issue of liability pursuant to Labor Law § 240 (1). Whereas, Hub's cross motion seeks summary judgment in its favor dismissing all plaintiff's claims asserted under to Labor Law § 200 and common law negligence. Hub also seeks dismissal of all cross claims asserted against it, as well as, summary judgment on the issue of common law indemnification against Cristo. Clearly, Hub's cross motion and plaintiff's motion are not based upon identical grounds. Accordingly, Hub's motion is denied with leave to seek permission to file a late summary judgment motion.
CONCLUSION
Plaintiffs Sotero Tapia Sanchez and Ramona Mendoza's motion for an order granting summary judgment to plaintiff on the issue of liability pursuant to CPLR 3212 and New York Labor Law § 240 (1) against defendants, Rosemary Lanfranchi and GR & J Hub Home Improvement Center, Inc. is granted.
Defendant GR & J Hub Home Improvement Center, Inc.'s motion for an order granting summary judgment in its favor dismissing plaintiffs' New York Labor Law § 200 claims and all cross claims is denied as untimely.
Defendant GR & J Hub Home Improvement Center, Inc.'s motion granting summary judgment in its favor and awarding it common law indemnification against the third party defendant, Cristo Rey Construction Corp. is denied as untimely.
The foregoing constitutes the decision and order of this Court.