Bacova v. Paramount Leasehold, L.P.

• Decision Date: 04 August 2022
• Docket Number: Index Nos. 154088/2016,595533/2016,595823/2016,Motion Seq. Nos. 004,005,006,007
• Citation: 2022 NY Slip Op 32650 (U)
• Parties: BUJAR BACOVA, SERVETTE BACOVA, Plaintiff, v. PARAMOUNT LEASEHOLD, L.P., SHAWMUT WOODWORKING &SUPPLY, INC., d/b/a Shawmut Design and Construction, CORD CONTRACTING CO. INC.,ALL- SAFE LLC and LEVIN MANAGEMENT CORPORATION, Defendant. SHAWMUT WOODWORKING &SUPPLY, INC., d/b/a Shawmut Design and Construction, Third-Party Plaintiff, v. CORD CONTRACTING CO. INC. and ALL-SAFE LLC Third-Party Defendant. PARAMOUNT LEASEHOLD, L.P. Second Third-Party Plaintiff, v. HARD ROCK CAFE INTERNATIONAL (USA), INC. Second Third-Party Defendant.
• Court: New York Supreme Court

2022 NY Slip Op 32650(U)

BUJAR BACOVA, SERVETTE BACOVA, Plaintiff,
v.
PARAMOUNT LEASEHOLD, L.P., SHAWMUT WOODWORKING &SUPPLY, INC., d/b/a Shawmut Design and Construction, CORD CONTRACTING CO. INC.,ALL- SAFE LLC and LEVIN MANAGEMENT CORPORATION, Defendant.

SHAWMUT WOODWORKING &SUPPLY, INC., d/b/a Shawmut Design and Construction, Third-Party Plaintiff,
v.
CORD CONTRACTING CO. INC. and ALL-SAFE LLC Third-Party Defendant.

PARAMOUNT LEASEHOLD, L.P. Second Third-Party Plaintiff,
v.
HARD ROCK CAFE INTERNATIONAL (USA), INC. Second Third-Party Defendant.

Index Nos. 154088/2016, 595533/2016, 595823/2016, Motion Seq. Nos. 004, 005, 006, 007

Supreme Court, New York County

August 4, 2022

Unpublished Opinion

PRESENT: HON. FRANCIS KAHN, III JUSTICE

1

DECISION + ORDER ON MOTION

FRANCIS A. KAHN III JUDGE

Third-Party Index No. 595533/2016 Second Third-Party Index No. 595823/2016 The following e-filed documents, listed by NYSCEF document number (Motion 004) 234, 235, 236, 237, 238, 239, 240, 241, 242, 243, 244, 245, 246, 247, 248, 249, 250, 251, 252, 253, 254, 255, 256, 257, 258, 259, 260, 261, 262, 263, 264, 265, 266, 267, 305, 337, 341, 348, 349, 350, 351, 352, 353, 354, 355, 374, 385, 390, 391, 395, 397, 401, 402, 403, 404, 407, 408, 409, 410, 411,412, 413, 414, 415, 416, 417, 418, 419, 420, 427, 428, 429 were read on this motion to/for JUDGMENT-SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 005) 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 224, 225, 226, 227, 228, 229, 230, 231, 232, 338, 342, 356, 357, 358, 359, 360, 361, 375, 381, 382, 383, 387, 392, 398, 432, 433 were read on this motion to/for JUDGMENT- SUMMARY.

1

The following e-filed documents, listed by NYSCEF document number (Motion 006) 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, 339, 343, 362, 363, 364, 365, 366, 367, 376, 378, 379, 380, 389, 393, 399, 430, 431 were read on this motion to/for JUDGMENT-SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 007) 268, 269, 270, 271, 272, 273, 274, 275, 276, 277, 278, 279, 280, 281, 282, 283, 284, 285, 286, 287, 288, 289, 290, 291, 292, 293, 294, 295, 296, 297, 298, 299, 300, 301, 302, 303, 304, 340, 344, 345, 346, 347, 368, 369, 370, 371, 372, 373, 377, 384, 386, 388, 394, 400, 405, 406, 421,422, 423. 424, 425, 426 were read on this motion to/for JUDGMENT-SUMMARY.

Upon the foregoing documents, the motions and cross-motion are determined as follows:

In this action Plaintiff, Bursar Bacova ("Bacova") seeks to recover for injuries sustained when he allegedly tripped and fell at a premises located at 1501 Broadway, New York, New York. At the time, Bacova was employed by Second Third-Party Defendant Hard Rock Cafe International (USA) Inc. (''Hard Rock") as a facility manager. Hard Rock leased the portion of the premises where the accident occurred from Defendant Paramount Leasehold, L.P. ("Paramount"), the purported owner of 1501 Broadway, and operated a Hard Rock Cafe at the premises. Paramount determined to conduct renovations at its premises which included, among other things, relocating the primary entrance of Hard Rock from Broadway to West 43^rd Street as well as installation of an elevator and stairs. Paramount contracted with Defendant Shawmut Woodworking &Supply, Inc ("Shawmut") to act as the general contractor and with Defendant Levin Management ("Levin") to act as construction manager. Shawmut retained Defendants Cord Construction Company, Inc. ("Cord") and All-Safe, LLC ("All-Safe") as subcontractors on the project.

Plaintiff alleges that on April 8, 2016, at approximately 10:15 am. he was walking in the project area in Hard Rock's premises when he tripped on plywood boards installed beneath scaffolding which were allegedly not taped down or secured. The plywood boards were installed to protect the floor beneath the scaffolding during a renovation project. Cord installed the plywood boards and All-Safe erected the scaffolding in the area where plaintiff fell. In his amended complaint, Plaintiff pleads causes of action against Paramount Shawmut, Cord and All-Safe under Labor Law §241 [6] and §200, as well as for common-law negligence. In a separate action against Levin, Plaintiff pled claim all the above claims as well as one under Labor Law §240. These actions were consolidated by order of the Court dated December 12, 2018 (NYSCEF Doc No 157).

Now, all parties have filed motions for summary judgment. Defendants Paramount, Shawmut and Levin move (Motion Seq No 4) for summary judgment dismissing Plaintiff s complaint and against Cord and All-Safe on its claims for contractual indemnification and failure to procure insurance. Plaintiffs oppose the motion and cross-move (Motion Seq No. 4) for summary judgment on the Labor Law §241 [6] and §200 claim and for leave to amend its bill of particulars. Hard Rock opposed Plaintiffs cross-motion but took no position on the motion by Defendants Paramount, Shawmut and Levin. Cord and All-Safe separately oppose Plaintiff s cross-motion.

Cord moves (Motion Seq No 5) for summary judgment dismissing Plaintiffs' complaint, the third-party complaint, and all crossclaims. Plaintiff opposes the motion and Defendant Paramount proffered partial opposition. All-Safe moves (Motion Seq No 6) for summary judgment dismissing

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Plaintiffs' complaint and all crossclaims. Plaintiff opposes the motion and Defendant Cord proffered partial opposition. Hard Rock moves (Motion Seq No 7) for summary judgment dismissing Plaintiffs' complaint, the second third-party complaint and all crossclaims. Plaintiff opposes the motion and Defendant All-Safe proffered partial opposition.

Plaintiff's Deposition

Plaintiff testified that on the day of the accident he was the "facility manager" at the Hard Rock Cafe and supervised a team of four workers, but only one worked during his shift. He averred his duties were to perform repairs at the premises, to direct his workers to do repairs and/or to engage outside companies to perform repairs. Plaintiff stated that each day he would meet with a representative of Shawmut and that no work could proceed without his and his supervisor's approval. In response to an inquiry as to whether he had a supervisor on the premises at the time he volunteered: "I was the one in charge for the construction and repairs". However, Plaintiff acknowledged that he never gave instructions or directions to any construction workers. Plaintiff testified that construction was performed at the location for six to seven months before his accident. Plaintiff acknowledged that he did not assist in the construction of the staircase and that his workers did not perform any physical work on the project.

Prior to his accident, Plaintiff was with one of his workers, Marco Martinez ("Marco"), examining an elevator at the premises that needed repair. Plaintiff testified that, thereafter, he and Marco were walking and talking heading to their "next task". Immediately before he fell, Plaintiff was between 15 and 20 feet from the elevator on a wooden floor when his foot caught on a piece of plywood which caused him to trip and fall to the ground. A square scaffold was also at the location and Plaintiff was walking between two vertical posts and under a horizontal crossbar connecting the two when he tripped. Plaintiff averred that the plywood covering the floor began at the crossbar on the scaffold. He stated the plywood and scaffold were installed by Shawmut between two weeks and a month prior to protect the flooring during the project. He claimed the area in question was "a little dark" because some lights were removed after customer complaints.

In photographs marked at his first deposition on March 1,2017, Plaintiff identified black rubber and carpeted mats on top of the plywood, but he could not remember whether the mats were there on day he fell. Later in his deposition, when showed Exhibit D, Plaintiff identified the area where he fell, but stated the mat in the photograph was not there when he fell. In the photograph marked as Exhibit K, Plaintiff was unable to identify the area where his foot caught because it was covered with a mat. Plaintiffs deposition continued September 7, 2017, and after viewing a video taken by Marco of the accident site, he claimed, in contradiction to his earlier testimony, that a mat was present when he fell. Plaintiff attempted to clarify his testimony and asserted that he meant the mat was present, but not in the correct place. He said it should have been four or five inches closer to his location. As to the cause of his fall, Plaintiff testified that he tripped because of the mat and the movement of the plywood. Plaintiff continued that he did not know whether his foot got caught on the loose plywood or the mat, but it was "[one] of them". At his February 2018 deposition, Plaintiff testified that when an incident report was prepared, he reported the plywood caused him to fall and did not mention the mat. Plaintiff was certain, however, that the scaffolding did not cause his accident and that he never noticed the loose plywood before the accident. Additionally, Plaintiff stated that his accident occurred two feet before the scaffold rather than at its threshold.

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Marco Martinez Deposition - Non-Party

Marco Martinez ("Marco") testified that on the day of the incident he was employed by Defendant Hard Rock as a "facilities tech" and his duties were "preventive maintenance". He was supervised by Plaintiff. Marco stated that no Hard Rock facilities people were involved in the construction at the premises or in the placement of the plywood planks at issue. Marco stated that Hard Rock personnel were permitted to walk under the scaffold before the accident and that...