Alberico v. LDG Builders LLC

• Decision Date: 19 May 2022
• Docket Number: 011,012,Motion Seq. Nos. 010,Index No. 154621/2016
• Citation: 2022 NY Slip Op 31628 (U)
• Court: New York Supreme Court
• Parties: AMANDA ALBERICO, Plaintiff, v. LDG BUILDERS LLC, ATC CONSTRUCTION GROUP, RIVERSIDE UNIT C, LLC, AE DESIGN INC. D/B/A ANDRES ESCOBAR & ASSOCIATES, NEST SEEKERS INTERNATIONAL LLC, LEV ASSET MANAGEMENT, LLC, A.T.C. CONSTRUCTION GROUP CORP., ANTHONY THOMAS CHAU CONSTRUCTION GROUP CORP, MARCHITECTS INC., and JOHN DOE, Defendants.

2022 NY Slip Op 31628(U)

AMANDA ALBERICO, Plaintiff,
v.
LDG BUILDERS LLC, ATC CONSTRUCTION GROUP, RIVERSIDE UNIT C, LLC, AE DESIGN INC. D/B/A ANDRES ESCOBAR & ASSOCIATES, NEST SEEKERS INTERNATIONAL LLC, LEV ASSET MANAGEMENT, LLC, A.T.C. CONSTRUCTION GROUP CORP., ANTHONY THOMAS CHAU CONSTRUCTION GROUP CORP, MARCHITECTS INC., and JOHN DOE, Defendants.

Index No. 154621/2016, Motion Seq. Nos. 010, 011, 012

Supreme Court, New York County

May 19, 2022

Unpublished Opinion

DECISION+ ORDER ON MOTION

HON. LYLE E. FRANK JUSTICE

The following e-filed documents, listed by NYSCEF document number (Motion 010) 277, 278, 279, 280, 281, 282, 283, 284, 285, 286, 287, 288, 289, 290, 336, 337, 338, 339, 344, 347, 348, 349, 350, 354 were read on this motion to/for JUDGMENT - SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 011) 291, 292, 293, 294, 295, 296, 297, 298, 299, 300, 301, 302, 303, 304, 305, 345, 351, 352, 353 were read on this motion to/for JUDGMENT - SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 012) 306, 307, 308, 309, 310, 311, 312, 313, 314, 315, 316, 317, 318, 319, 320, 321, 322, 323, 324, 325, 326, 327, 328, 329, 330, 331, 332, 333, 334, 335, 340, 341, 342, 343, 346, 355, 356, 357, 358, 359, 360, 361, 362, 363, 364, 365, 366, 367, 368, 369, 370, 371, 372, 373, 374, 375, 376, 377, 378, 379, 380, 381, 382, 383 were read on this motion to/for JUDGMENT - SUMMARY.

Motion sequence nos. 010, 011 and 012 are consolidated for disposition^[1].

This personal injury action arises out of an incident that occurred on November 29, 2015 when a decorative wall panel in plaintiff Amanda Alberico's office fell on her.

In motion sequence no. 010, defendants Riverside Unit C, LLC. (Riverside) and Nest Seekers International LLC (Nest Seekers) (together, Riverside/Nest Seekers) move, pursuant to

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CPLR 3212, for summary judgment dismissing the complaint and all cross claims asserted against them on the ground that the complaint is barred by Workers' Compensation Law §§11 and 29, and for an order, pursuant to CPLR 3025 (b), allowing these defendants to add a collateral source offset under CPLR 4545 as an affirmative defense.

In motion sequence no. 011, defendant AE Design Inc. d/b/a Andres Escobar & Associates (AE) moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint and all cross claim asserted against it.

In motion sequence no. 012, plaintiff moves, pursuant to CPLR 3212, for partial summary judgment against Riverside and defendant A.T.C. Construction Group on the issue of their liability and on the issue of her freedom from comparative negligence. Defendants A.T.C. Construction Group and A.T.C. Construction Group Corp. s/h/a ATC Construction Group and Anthony.Thomas.Chau.Construction Group Corp s/h/a Anthony Thomas Chau Construction Group Corp. (collectively, ATC) cross-move, pursuant to CPLR 3212, for summary judgment dismissing the complaint and all cross claims asserted against them.

BACKGROUND

Plaintiff testified that, on the day of the accident, she was employed by Nest Seekers to manage its office located at 100 Riverside Boulevard, New York, New York (the Premises) (NY St Cts Elec Filing [NYSCEF] Doc No. 284, Doug Gingold [Gingold] affirmation, Ex E at 15 and 21). She was seated at the reception desk in the lobby area when a rectangular fabric-covered decorative wood panel affixed horizontally to the wall four to five feet above the desk fell and struck her head and the left side of her body (id. at 22-25). Plaintiff testified that prior to the accident, she never noticed any problems with the panel (id. at 25); did not know who installed it (id.); never saw anyone cleaning, working in, renovating or repairing the area (id. at 78-79 and

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132); and never saw anyone touch the panel (id. at 132). Plaintiff admitted cleaning her work area and "guess[ed]" that she dusted the wall (id. at 78). Plaintiff testified that she had never complained about the physical conditions in her workplace before the accident (id. at 85). She had never heard of AE or ATC (id. at 79 and 102). Plaintiff also did not know who took the photographs depicting the dislodged panel and the reception area after the accident (id. at 29, 84-85 and 96).

Ravi Gulivindala (Gulivindala), a senior vice president at Nest Seekers, described the Premises as a storefront for Nest Seekers, a real estate brokerage firm (NYSCEF Doc No. 287, Gingold affirmation, Ex H at 7-8). He described the Premises as a "raw space" when Riverside purchased it in 2011 (id. at 8 and 24). Gulivindala stated that Nest Seekers' principal, Eddie Shapiro (Shapiro), hired Andres Escobar (Escobar) to design the build out of the Premises and ATC to construct it (id. at 10-11 and 25-26). He testified that Shapiro was responsible for overseeing the work as it was being performed (id. at 12). Gulivindala learned of the accident when plaintiff contacted him to tell him that a panel above her desk fell on her (id. at 34). Gulivindala stated that he visited the Premises two days after the accident and saw the panel that allegedly struck plaintiff standing upright against a wall (id. at 36). He added that prior to the accident, no one, including plaintiff, had complained about the panel or the reception area and there were no prior incidents involving the panel or the reception area (id. at 33 and 45).

Shapiro, Nest Seekers' president and chief executive officer, testified that Nest Seekers formed Riverside as a single purpose entity tasked with purchasing the Premises (NYSCEF Doc No. 288, Gingold affirmation, Ex I at 9 and 13). Riverside then leased the Premises to Nest Seekers (id. at 17-18). Shapiro explained that Riverside, a wholly-owned subsidiary of Nest Seekers, has no employees, maintains its own bank account and files its own tax returns (id. at13-15).

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He described the Premises as a "concrete shell" when he first saw it (id. at 23). Riverside hired "Andres Escobar Design" as the design firm for the build out (id. at 45) and ATC to perform the construction work (id. at 23 and 34). A separate contractor may have been hired to perform the "AC" work (id. at 34 and 83). "Yoram Barel" (Barel), an administrator, served as Riverside's on-site representative to coordinate with ATC and was responsible for ensuring that ATC's work conformed with the design, although Barel "most likely" was not at the Premises every day (id. at 25 and 44). Shapiro did not believe there was a contract between Riverside and ATC, with the invoice dated December 9, 2011 describing the scope of ATC's work (id. at 31-34). Shapiro stated that ATC installed upholstered panels comprised of fabric and foam padding over a compressed board on the walls surrounding the reception desk (id. at 37-38). Shapiro guessed the panels may have been affixed to the wall with "screws, or nails, and maybe some PL glue, construction glue" (id. at 50). He did not know what "blocking" meant in the artistic renderings of the finished Premises (id. at 54). Shapiro testified that he did not see anything in the design documents about the use of glue as the method for attaching the panel to the wall (id. at 65), and he was not aware of any conversation between ATC, Escobar or the architect about the use of glue as the means and methods of performing this work (id. at 66). He could not recall when it was decided to change the panel's design from faux wood to fabric upholstery, although that was a conversation he likely had with the designer and contractor (id. at 68-69). Shapiro stated there was no entity other than ATC hired to install the decorative panels (id. at 35).

Jonathan Chau (Chau) testified that he is the manager and president for ATC Construction Group Corp. (NYSCEF Doc No. 304, John E. Horan [Horan] affirmation, Ex C at 11-12 and 14). Chau testified that ATC performed work at the Premises for Nest Seekers in 2011, although he could not recall if Riverside paid for the work (id. at 16 and 26). Nest Seekers

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furnished his company with blueprints (id. at 25). Chau stated that he created the invoice dated December 9, 2011, which described the scope of ATC's work (id. at 25). He stated that ATC purchased the materials and built the reception desk, installed glass partitions, carpeting and kitchen cabinets and tiled the bathroom (id. at 28-29). Chau testified that ATC installed sheetrock above the desk (id. at 63), but it did not install the decorative wall panels above and on either side of the reception desk (id. at 61). The panels had not been installed when ATC finished its work at the Premises (id. at 52-53). Chau stated that he did not know who purchased and installed those panels (id. at 71 and 75). He claimed there were other contractors present at the site, but he did not see any of them install the panels (id. at 53).

AE's principal, Escobar, testified that AE was hired to create an office concept and to provide drawings for the build out at the Premises (NYSCEF Doc No. 303, Horan affirmation, Ex H at 10-11). AE submitted the renderings to "Yoram Burrell" and communicated with Shapiro (id. at 21). He testified he had no idea which entity Yoram Burrell was affiliated with (id. at 33), but believed he was the owner's representative (id. at 28). Although AE's work did not include providing a construction manager, AE appointed Nexida Mejia (Mejia) as a project manager (id. at 11-13). Escobar testified that AE had recommended installing tiled panels, not fabric-wrapped panels, on the walls flanking the reception desk (id. at 17-18). The design called for "blocking" to attach the panels to the substrate (id. at 18-19). Escobar described blocking as a "ridged material that will be able to adhere or that the panels would be able to be attached -fastened in a proper matter [sic]" (id. at 19-20). The "right method" in this instance would have been to provide blocking inside the...