DiCrescento v FPG CH 350 Henry, LLC
| Decision Date | 24 July 2020 |
| Docket Number | Index No. 514226/2018 |
| Parties | JOHN DICRESCENTO, Plaintiff, v. FPG CH 350 HENRY, LLC, and FORTIS PROPERTY GROUP, LLC Defendants. FPG CH 350 HENRY, LLC, and FORTIS PROPERTY GROUP, LLC, Third-Party Plaintiff, v. ICS BUILDERS, INC., BIG APPLE DESIGNERS INC., and HEADQUARTERS MECHANICAL INC, Third-Party Defendants. |
| Court | New York Supreme Court |
Unpublished Opinion
DECISION & ORDER
Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion:
Papers Numbered:
Notice of Motion/Cross Motion/Order to Show Cause and Affidavits (Affirmations) Annexed 19-34, 43, 78-98
Reply Affidavits (Affirmations) 131-138, 171-176
Other Papers: Third-Party Defendant's Memorandum of Law 99
Plaintiff John DiCrescento, moves by notice of motion, sequence number one, pursuant to CPLR § 3212 for summary judgment on his causes of action pursuant to Labor Law §§ 240(1) and 241(6). Defendants, FPG CH 350 Henry, LLC and Fortis Property Group, LLC, and third-party defendant ICS Builders Inc, oppose this application.
Third-party defendants, ICS Builders, Inc. moves by notice of motion sequence number three, pursuant to CPLR §§ 3211 and 3212, (1) for summary judgment because the complaint is barred by the anti-subrogation rule; (2) alternatively, to dismiss for breach of contract; (3) alternatively, to dismiss the claims for contribution and common law indemnification as barred by the exclusive remedy provision of Workers Compensation Law §§ 11 and 29; (4) to dismiss as untimely; and (5) pursuant to CPLR §§ 603 and 1010 to dismiss or sever, extending ICS's time to conduct discovery and file a dispositive motion. Third-party plaintiffs oppose this motion.[1]
This is an action to recover monetary damages for personal injuries allegedly sustained by the plaintiff on July 2, 2018, while working at a construction site located at 350 Henry Street in Brooklyn, New York (the premises). FPG was the owner of the premises, and Fortis was FPG's designated representative. At the time of the accident, the premises' was undergoing construction, known as the Polhemus project, which involved the renovation of the former Long Island College Hospital from a health care facility to multiple dwelling residential apartments. On July 5, 2016, Fortis, acting on behalf of FPG, entered into a contract with ICS for the latter to serve as the construction manager for the renovation project. Third-party defendants Big Apple Designers. Inc, (Big Apple), and Headquarters Mechanical, Inc. (Headquarters), were subcontractors retained by ICS to perform interior framing/carpentry and plumbing work, respectively, at the premises. Akiva Kobre, the Senior Vice President of Fortis, testified that Fortis was FPG's representative and acted as the liaison with ICS regarding construction-related issues on the project. He testified that ICS was subsequently terminated from the project in August 2018 due to its failure to perform work in accordance with its contractual obligations. At the time of the accident, plaintiff was employed by ICS as a laborer.
During his deposition, plaintiff testified that he had worked for ICS as a laborer for about two weeks before the accident occurred. He was hired to perform demolition work. On the morning of the accident, plaintiff arrived at the site between 6:00 - 7:00 a.m. He could not recall to whom he reported that day, but claimed he was given instructions to sweep the sidewalk by an ICS supervisor. At some point, an ICS foreman, Recco, instructed plaintiff to get a grinder from the job shanty, and report back to the eighth floor. Plaintiff met Recco on the eighth floor with the grinder wearing a hard hat and protective eye wear. Recco then instructed plaintiff to use the grinder to cut a metal cable. According to plaintiff, the metal cable was wrapped around and/or coming out of the stairs on that floor. Plaintiff testified that just before he was about to start cutting with the grinder, Recco instructed him to move a piece of plywood that was resting on the floor right next to the stairs. Plaintiff described the plywood as measuring about six feet by three feet. He claimed that the plywood was neither nailed down nor painted, and that there were no signs nearby. Using both hands, plaintiff lifted the plywood up from the front and then turned it on its side. As he did so, he took a step and fell 12 feet through a hole/opening in the floor and landed on the seventh floor below. Plaintiff testified that he lifted the plywood with the intention of moving it to the other side of the room. He could not recall the dimensions of the hole through which he fell. Plaintiff also could not recall if there were any other trades working on the eighth floor at the time of the accident. After he fell, an ICS supervisor came to plaintiffs aid on the seventh floor and called an ambulance, which transported him to the hospital.
Plaintiff subsequently commenced the within action on or about July 12, 2018 against FPG and Fortis (collectively, defendants) seeking to recover for personal injuries he allegedly sustained as a result of the incident. His complaint alleges violations of Labor Law §§ 240 (1), 241 (6), 200 and common-law negligence. Issue was joined by the filing of FPG's Verified Answer on August 14, 2018, and Fortis' Verified Answer on August 24, 2018. Defendants, thereafter, commenced a third-party action against ICS, Big Apple and Headquarters asserting claims for contractual indemnity, common-law indemnity, contribution and breach of contract for failure to procure insurance. The parties subsequently engaged in discovery, and the following motions, which are timely, ensued.
Plaintiff's Motion (Seq. No. 1)
Plaintiff seeks partial summary judgment as to liability on his Labor Law §§ 240 (1) and 241 (6) claims against defendants. It is well settled that "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Ayotte v. Gervasio, 81 N.Y.2d 1062 [1993], citing Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986]; Zapata v Buitriago, 107 A.D.3d 977 [2013]). Failure to make such a showing requires the denial of the motion, regardless of the sufficiency of the papers in opposition (see Alvarez v. Prospect Hospital, 68 N.Y.2d 324; see also, Smalls v. AJI Industries. Inc., 10 N.Y.3d 733 [2008]). Once a prima facie demonstration has been made, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action (see Zuckerman v. City of New York, 49 N..Y.2d 557 [1980]).
Labor Law § 240 (1) Claim
In support of his motion for summary judgment on his Labor Law § 240 (1) claim, plaintiff argues that FPG, as the owner, and Fortis, as its statutory agent, are liable for their failure to provide him with adequate safety devices to prevent him from an elevated- related risk. Relying on his own deposition testimony, in addition to an ICS incident report and various OSHA records, all of which are submitted herein, plaintiff contends that he was required to work on a jobsite on which the defendants failed to ensure that the floor openings were properly marked and guarded so as to prevent workers from stepping into them and being injured. Plaintiff points out that his ICS supervisor, Recco, instructed him to move the plywood covering, and that defendants failed to provide him with any safety devices to prevent or break his fall after such covering was removed. Plaintiff argues that the defendants' failure to provide such protection constitutes a violation of Labor Law § 240 (1), which was a proximate cause of his injuries.
In opposition, defendants initially argue that plaintiffs motion should be denied as premature since the liability portion of plaintiff s deposition has not yet been completed. Defendants further argue that plaintiffs motion is defective in that it failed to include all pleadings as required by CPLR 3212 (b), particularly the pleadings pertaining to the third-party action which was commenced just before plaintiffs motion was filed. Defendants additionally argue that the plaintiff relies on inadmissible evidence in that his deposition transcript is unsigned and, therefore, is not in proper form.
As to the merits of the motion, defendants contend that the plaintiffs allegations are not credible as a matter of law, and that he has failed to establish the absence of material questions of fact. In this regard, defendants argue that issues of fact exist as to whether plaintiffs conduct in removing the plywood covering from the floor opening, rather than any alleged failure to provide proper protection, was the sole proximate cause of his fall. Defendants additionally contend that, contrary to plaintiffs claims, he was previously aware of the presence of the opening in the floor before he removed the plywood. In support of this contention, defendants rely upon the ICS incident report, which is unsigned, and point to the notation that the plaintiff "lifted floor protection not paying attention and walked into the cut opening" and that the opening through which he fell was on the seventh floor, not the eighth floor as the plaintiff testified (NYSCEF Doc. No. 31).
Defendants also rely on an unsworn statement by Joseph Bianco, an ICS supervisor who worked on the project (NYSCEF Doc. No. 74 Bianco affidavit). In his statement, Bianco stated that, weeks before the accident...
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