Ansioso v. Cross Country Constr.

• Decision Date: 18 April 2023
• Docket Number: Index No. 158460/2018,Motion Seq. No. 011
• Parties: ANTONIO ANSIOSO, Plaintiff, v. CROSS COUNTRY CONSTRUCTION, LLC, VNO 225 WEST 58TH STREET LLC, LENDLEASE (US) CONSTRUCTION, INC., LENDLEASE (US) CONSTRUCTION LMB, INC., and WOODWORKS CONSTRUCTION CO, INC., Defendants.
• Court: New York Supreme Court

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2023 NY Slip Op 31226(U)

ANTONIO ANSIOSO, Plaintiff,
v.
CROSS COUNTRY CONSTRUCTION, LLC, VNO 225 WEST 58TH STREET LLC, LENDLEASE (US) CONSTRUCTION, INC., LENDLEASE (US) CONSTRUCTION LMB, INC., and WOODWORKS CONSTRUCTION CO, INC., Defendants.

Index No. 158460/2018, Motion Seq. No. 011

Supreme Court, New York County

April 18, 2023

Unpublished Opinion

MOTION DATE 01/18/2023.

PRESENT: HON. JOHN J. KELLEY, Justice.

DECISION + ORDER ON MOTION

HON. JOHN J. KELLEY, Justice.

The following e-filed documents, listed by NYSCEF document number (Motion 011) 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 151, 154, 155, 157, 167, 168, 169 were read on this motion to/for SUMMARY JUDGMENT.

I. INTRODUCTION

In this action to recover damages for personal injuries for common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6), arising from a construction site accident, the plaintiff moves pursuant to CPLR 3212 for summary judgment on the issue of liability on his causes of action alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6) insofar as asserted against the defendants Cross Country Construction, LLC (CCC), VNO 225 West 58th Street LLC (VNO), Lendlease (US) Construction Inc. (Lendlease, Inc.), Lendlease (US) Construction LMB, Inc. (Lendlease LMB),and Woodworks Construction Co., Inc. (Woodworks) (collectively the defendants). The defendants oppose the motion. The motion is granted to the extent that the plaintiff is awarded summary judgment on his Labor Law §§ 240(1) and 200 and common-law negligence causes of action insofar as assert against VNO and Lendlease LMB, and the motion is otherwise denied.

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II. BACKGROUND

On March 16, 2018, the plaintiff was employed by nonparty Del Savio Construction (DSC) as a mason tender in connection with the construction of a building at 220 Central Park South, New York, New York (the premises). His duties consisted of preparing concrete and mortar for the bricklayers, erecting scaffolds, loading the scaffolds with cinder blocks, bricks, and mortar, and transporting deliveries from the loading dock to wherever they were needed on the premises. VNO owned the premises, while Lendlease LMB served as the construction manager, and CCO and Woodworks served as trade contractors. The parties disagree as to whether Lendlease, Inc., was also a contractor for any of the work being done at the premises. The plaintiff claimed that, on March 16, 2018, he was advised that a delivery of concrete bags and cinder blocks had arrived, and was instructed by his foreman to transport pallets of the concrete bags from the street level to the second-floor patio. The plaintiff claimed that he used an electric pallet jack, owned by DSC, to pick up the pallets, which weighed approximately 5,000 pounds, travel through the front entrance, and wait for a hoist to take him to the second floor, whereupon he was to transport the pallets to the outside patio. The plaintiff explained that there "was a doorway to go on the outside patio and there was a three-foot ledge to get over" and, thus, a plywood structure had been installed that consisted first of a ramp going up the ledge, measuring approximately eight to nine feet long, followed by a platform measuring four feet long, and ended with a ramp going down to the patio, measuring approximately 10 to 12 feet long (hereinafter the "ramp-platform structure"). The plaintiff claimed that the plywood structure was built and maintained by Woodworks, since it employed the only carpenters on site, and explained that the structure was wet, and "corroded, warped, holes, cracked."

The plaintiff explained that, after he successfully transported the first load of concrete bags, the pallet jack's battery died, at which time he asked someone from CCC if he could borrow one of its pallet jacks. The person, whom the plaintiff knew to be named Tommy, and whom he assumed was the foreman, pointed to a jack, and told the plaintiff that he could use it.

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The plaintiff claimed that he told Tommy that the jack looked old, but Tommy told him "just take that one, it's fully charged." The plaintiff inspected the CCC pallet jack and proceeded to use it without incident to transport another 5,000-pound load of concrete bags. The plaintiff claimed, however, that on his second trip with the CCC pallet jack, the subject accident occurred. The plaintiff explained that he proceeded down the final ramp portion of the ramp-platform structure in a backwards fashion, with the pallet jack above him on the ramp, while two stationary pallet jacks, holding scaffolding equipment, had been parked behind him at the bottom of the ramp. The plaintiff further claimed that, as he descended the final ramp portion of the ramp-platform structure, he found himself in what he described as "a channel," where on one side of the final ramp there was a scaffold, and on the other side of that ramp there were materials and parts that belonged to the other subcontractors on the premises. He claimed that, as he made his way slowly down final ramp portion of the ramp-platform structure, which was rocking, he tried to apply the brakes on the pallet jack, but that they failed and, as such, the pallet jack continued to move down, crushed his left foot, and pinned him against the parked pallet jacks at the end of the ramp.

On September 12, 2018, the plaintiff commenced this action against CCO and VNO, under Index Number 158460/2018. On March 3, 2021, the plaintiff commenced a separate action against Lendlease Inc., Lendlease LMB, and Woodworks, under Index Number 152160/2021. On July 12, 2021, this court granted the plaintiff's motion fully to consolidate the two actions into the action pending under Index Number 158460/2018. On June 29, 2022, the plaintiff filed the note of issue and certificate of readiness. On August 26, 2022, the plaintiff timely filed the instant motion.

III. DISCUSSION-THE SUMMARY JUDGMENT MOTION

In his complaint, the plaintiff alleged that the defendants were negligent and careless in their ownership, control, maintenance, supervision, and operation of the premises and all its appurtenances, such as the defective pallet jack that he was using. The plaintiff also alleged

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that the defendants failed to provide a safe instrument and a safe working environment, thereby causing and/or creating a dangerous, defective, and unsafe condition. The plaintiff further alleged that the defendants violated Labor Law §§ 200, 240, and 241. In his bill of particulars, the plaintiff asserted that the defendants were negligent, careless, and reckless in causing, permitting, and allowing a dangerous, hazardous, and defective condition to exist and/or remain at the premises. He further asserted that the defendants were negligent in subjecting him to an unreasonable risk due to the dangerous and hazardous condition at the premises. He also asserted that the defendants were negligent in failing to maintain the braking mechanism of the pallet jack in a proper and adequate condition, and in failing to provide him with safe and effective equipment. The plaintiff alleged that the defendants negligently failed to provide him with proper safety equipment and protection, and failed to warn him of the dangerous condition that existed at the premises. The plaintiff alleged that the defendants had actual and constructive notice of the dangerous and defective condition at the premises. Finally, the plaintiff asserted that the defendants violated Labor Law §§ 200, 240, and 241.

In support of his motion, the plaintiff submitted the pleadings and his own deposition transcript, as well as the deposition transcripts of Lendlease LMB's general superintendent, James Fallon, and CCO's former construction supervisor, James J. Costigan. The plaintiff also submitted the trade contract agreement between Lendlease LMB and Woodworks, and the expert affidavit of licensed professional engineer Vincent A. Ettari. In opposition, the defendants submitted the pleadings and the deposition transcript of the plaintiff, Fallon, and Costigan. In addition, they submitted the deposition transcripts of Woodworks' general foreman, Octavio Goncalves, CCO's pickup foreman, Thomas Canty, CCO's cleanup foreman, Thomas Zangara, and CCO's general carpentry foreman, Darren McCallion. The defendants also submitted the trade contract agreement between Lendlease LMB and Woodworks and between Lendlease LMB and CCO, as well as the construction management agreement between VNO and Lendlease LMB. Finally, the defendants submitted the March 12, 2018 witness statement of

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nonparty Port Morris's employee, Brandon Morgenstern, and the expert affidavit of licensed professional engineer George H. Pfreundschuh.

Ettari opined that construction at the premises where the plaintiff was injured was subject to the requirements of the 2008 New York City Building Code § 315.1.4, New York State Industrial Code (12 NYCRR) § 23-1.22(b) and 23-1.28(a), and Occupational Safety and Health Administration (OSHA) regulations 29 CFR 1926.305(a)(2) and 1926.451(e)(5)(H) and (iii). Building Code § 315.1.4 requires that ramps shall not have a slope steeper than one in four, which is 25%, or 14 degrees. Additionally, Building Code § 315.1.4 and OSHA regulation 29 CFR 1926.451 (e)(5)(iii) requires that ramps with a slope steeper than one in eight (12.5%. or 7 degrees) shall have cleats spaced not more than 14 inches apart and securely fastened to the planking. OSHA regulation 29 CFR 1926.451 (e)(5)(ii) requires that all ramps and walkways not be inclined with a slope greater than one vertical to three horizontal, or 20 degrees. Based on the plaintiffs testimony that the slope of the ramp in question was between 30 to 45 degrees, and that it did not have cleats, the defendants failed to satisfy the Building Code or OSHA requirements. Ettari opined that if the...