Brereton v. Queens Balark Co.

• Decision Date: 20 July 2021
• Docket Number: Index No. 618481/2016,Mot. Seq. Nos. 003 MotD,004 XmotD,005 XMD
• Parties: BRIDGE ITE BRERETON, Plaintiff, v. QUEENS BALLPARK COMPANY, LLC, INSOMNIAC HOLDPNGS, LLC, FOUR AND TWENTY LLC, d/b/a BML-BLACKBIRD THEATRICAL SERVICES INC., BML-BLACKBIRD INC., and DIVERSIFIED PRODUCTION SERVICES LLC, Defendants.
• Court: New York Supreme Court

2021 NY Slip Op 33631(U)

BRIDGE ITE BRERETON, Plaintiff,
v.
QUEENS BALLPARK COMPANY, LLC, INSOMNIAC HOLDPNGS, LLC, FOUR AND TWENTY LLC, d/b/a BML-BLACKBIRD THEATRICAL SERVICES INC., BML-BLACKBIRD INC., and DIVERSIFIED PRODUCTION SERVICES LLC, Defendants.

Index No. 618481/2016, Mot. Seq. Nos. 003 MotD, 004 XmotD, 005 XMD

Supreme Court, Suffolk County

July 20, 2021

Unpublished Opinion

Motion Date 1/7/21 (003), 2/11/21 (004, 005)

Adj. Date 4/15/21

PALERMO LAW, P.L.L.C . Attorney for Plaintiff

LESTER SCI IWAB KATZ & DWYER, LLP Attorney for Defendants Queens Ballpark Company, LLC, Insomniac Holdings, LLC, Four and Twenty LLC, and BML-Blackbird Inc.

LAW OFFICE OF VICTORIA A. TUROHETTI Attorney for Defendant Diversified Production Services LLC

PRESENT: Hon. GEORGE M. NOLAN, Justice of the Supreme Court

HON. GEORGE M. NOLAN, JUSTICE

Upon the following papers read on this e-filed motion for summary judgment: Notice of Motion/Order to Show Cause and supporting papers filed by defendants Queens Ballpark Company, LLC, Insomniac Holdings. LLC, hour and Twenty LLC, d/b/a_BML,-Blackbird Theatrical Services, LLC, and BML-Blackbird Inc., on December 14, 2020; Notice of Cross Motion and supporting papers filed by defendant Diversified Production Services LLC, on January 15, 2021; filed by plaintiff, on January 28, 2021; Answering Affidavits and supporting papers filed by defendant Diversified Production Services LLC, on April 8, 2021:

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Replying Affidavits and supporting papers filed by defendants Queens Ballpark Company, LLC, Insomniac Holdings. LLC. Four and Twenty LLC, d/b/a BML-Blackbird Theatrical Services, LLC, and BML-Blackbird Inc., on April 8, 2021; filed by defendants Queens Ballpark Company. LLC. Insomniac Holdings. LLC. Four and Twenty LLC, d/b/a BML-Blackbird Theatrical Services. LLC, and BML-Blackbird Inc., on April 8, 2021: filed by defendant Diversified Production Services LLC, on April 3, 2021 filed by plaintiff, on April 13, 2021; Other ___; it is

ORDERED that the motion by defendants Queens Ballpark Company, LLC, Insomniac Holdings, LLC, Four and Twenty LLC, and BML-Blackbird Inc. for summary judgment dismissing the complaint and cross claims against them is granted to the extent set forth herein, and is otherwise denied; and it is further

ORDERED that the cross motion by defendant Diversified Production Services LLC for summary judgment dismissing the complaint and cross claims against it is granted to the extent set forth herein, and is otherwise denied; and it is further

ORDERED thai the cross motion by plaintiff Bridgette Brereton for summary judgment in her favor on the issue of defendants' liability on her claim under Labor Law § 240 (1) is denied.

Plaintiff Bridgette Brereton commenced this action to recover damages for personal injuries she allegedly sustained during her employ for nonparty 360 Productions on May 16. 2016. at a parkins? lot located at the premises known as Citi Field, located in Flushing, New York. The accident allegedly occurred when plaintiff was struck by three steel trusses during the takedown of light structures and apparatus from a prior event known m Electric Daisy Carnival ("EDC"). Defendants Queens Ballpark Company, LLC ("QBC") allegedly leased certain parking lots of Citi Field to defendant Insomniac Holdings,' LLC ("Insomniac") to host EDC. Insomniac allegedly subcontracted with defendants Four and Twenty LLC, d/b/a BML-Blackbird Theatrical Services, LLC ("Four and Twenty"), BML-BlackBird Inc. ("BML-Blackbird"), Diversified Production Services LLC ("DPS"), and nonparty 360 Productions to perform certain services at the worksite. Plaintiff asserts claims against defendants for common-law negligence and violations of Labor Law §§ 200, 240 (1), and 241 (6).

QBC, Insomniac. Four and Twenty, and BML-Blackbird now move for summary judgment dismissing the complaint and cross claims against them. They argue, among other things, that plaintiffs common-law negligence and Labor Law § 200 causes of action against them must be dismissed, since plaintiff is unable to identify the cause of her accident without engaging in speculation, and that they did not exercise the requisite authority to supervise or control her work. QBC, Insomniac, Four and Twenty, and BML-Blackbird also argue that they cannot be held liable pursuant to Labor Law § 240 (1), since plaintiffs accident was not height- or elevation-related, and that no safety devices would have prevented it. As to plaintiffs claims under Labor Law § 241 (6), they argue that the provisions relied upon to support her cause of action either lack the specificity required to qualify as a predicate for liability, or are inapplicable to this action. QBC, Insomniac, Four and Twenty, and BML-Blackbird also argue that Four and Twenty and BML-Blackbird (collectively, "BML") are not statutory defendants under Labor Law §§ 240 (1) and 241 (6). In addition, QBC, Insomniac, and BML contend that the cross claims against them for contractual indemnification and breach of contract for failure to procure insurance should be dismissed, since there was no contract between DPS and either QBC or BML, that the relevant indemnification provision of the contract between Insomniac and DPS is inapplicable to this action, and that Insomniac was not contractually obligated to procure insurance. In support of their motion, QBC, Insomniac, and BML submit, among other

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things, the transcripts of the deposition testimony of plaintiff, Alyxzander Bear, Kevin Brophy, Frank Prokop, Akiko Moritake, and Chris Covin.

DPS opposes the motion by QBC, Insomniac, and BML, and cross-moves for summary judgment dismissing the complaint and cross claims against it. With regard to plaintiffs common-law negligence and Labor Law § 200 causes of action, DPS contends that it did not have authority to supervise or control her work. With regard to plaintiffs claims under Labor Law §§ 240 and 241, DPS argues, in part, that it is not a statutory defendant within those sections of Labor Law. In support of its opposition to the motion by QBC, Insomniac, and BML, and its cross motion, DPS relies upon exhibits submitted with codefendants' motion!

Plaintiff opposes the motion by QBC, Insomniac, and BML, and the cross motion by DPS, and cross-moves for summary judgment in her favor on the issue of defendants' liability under Labor Law § 240 (1). She argues, among other things, that she is able to identify how her accident occurred without engaging in speculation, and that Insomniac, BML, and DPS acted in supervisory roles at the work site. As to her claims under Labor Law §240 (1), plaintiff argues, in part, that she was injured by falling objects at the worksite, and that the trusses generated a significant amount of force when they fell. In support of her opposition and her cross motion, plaintiff relies upon exhibits submitted with the motion by QBC, Insomniac, and BML.

At plaintiffs deposition, she testified that she was employed as a stagehand by 360 Productions at the time of the accident. Plaintiff referred to a "Frank" and "John" as her bosses, and testified that they directed to her to move the subject trusses. While she was unable to identify the precise entity employing Frank or John at her deposition, she testified that one of them was from Insomniac, and that the other one was from BML. She explained that they wore shirts bearing a company logo and identification tags. According to plaintiffs deposition testimony, the three trusses at issue were stacked on top of each other and placed on a dolly prior to the accident. Plaintiff testified that each truss weighed approximately three tons, that the topmost truss was approximately two feet above her head, and that no rachet straps were attached to them. She further testified that her accident occurred when "[she] was in an argument with the Insomniac and Blackbird people over touching the truss." Plaintiff allegedly refused to move the trusses without a forklift. Another laborer allegedly assisted Frank and John in moving the subject trusses. When asked whether "[plaintiff] actually [saw] them physically pushing, or pulling, or doing anything else with the trusses," plaintiff answered in the affirmative. She elaborated that she was saw them "attempt[] to move the truss" by pulling on it with their hands. She further explained that "[w]ithin two seconds, [s]he was on the ground," that she heard a "clang," and that the "[t]he truss was on top of [her]." She clarified that all three trusses separately fell on her. Plaintiff allegedly was wearing a hard hat at the time of the accident.

At Alyxzander Bear's deposition testimony, he testified that he served as Insomniac's director of productions on the date of the accident. He testified that Insomniac hired DPS to handle production, including the hiring of vendors, of LDC. He elaborated that DPS was "responsible" for "load in and load out."

According to Kevin Brophy's deposition testimony, he was a crew chief for Four and Twenty at the time of the accident, and he was a witness to plaintiffs accident. Brophy testified that the accident occurred when plaintiff was moving trusses, which were strapped together with a one- or two-inch piece of rachet strap, on a dolly, with another laborer. He elaborated that "[he] saw her pull over a stack of truss [sic] ..

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.over onto herself' during the load out period, and that they fell within a matter of seconds. He described the trusses as weighing "60, 70 pounds, if that," and reaching a height of "90-inches plus wheel height . so maybe 96 inches" when stacked on top of each other.

At Frank Prokop's deposition, he testified thai he was employed as "first electric" by Four and Twenty al the time of the accident. He explained that Four and Twenty was responsible for "the entire lighting package" for certain stages. He testified that while the stagehands were responsible...