Garcia v. 13 W. 38, LLC, Index No. 300076/2015E

CourtUnited States State Supreme Court (New York)
Writing for the CourtAdrian Armstrong, J.
Citation155 N.Y.S.3d 689,73 Misc.3d 434
Docket NumberIndex No. 300076/2015E
Decision Date13 September 2021
Parties Anthony G. GARCIA, Plaintiff, v. 13 WEST 38, LLC, et al., Defendants.

73 Misc.3d 434
155 N.Y.S.3d 689

Anthony G. GARCIA, Plaintiff,
v.
13 WEST 38, LLC, et al., Defendants.

Index No. 300076/2015E

Supreme Court, Bronx County, New York.

Decided on September 13, 2021


155 N.Y.S.3d 691

Piergrossi & Peterman, LLP, Bronx (Brian J. Isaac of counsel), for plaintiff.

Lester Schwab Katz & Dwyer, LLP, New York City (Paul Tarr of counsel), for 13 West 38, LLC, defendant and third-party plaintiff, and for NYC Management LLC, second third-party defendant.

Rosenbaum & Taylor, PC, White Plains (Joshua P. Acosta of counsel), for Just Renovations & GC, LLC, defendant.

Gottlieb Siegel & Schwartz, LLP, New York City (Desiree Luree Berger of counsel), for Uplift Elevator Corp., defendant.

Mead, Hecht, Conklin & Gallagher, LLP, White Plains (Kevin Thomas Conklin of counsel), for FroMark, Inc., defendant, third-party defendant and second third-party plaintiff.

Law Office of Thomas K. Moore, White Plains (Roula Theofanis of counsel), for Bene Rialto LLC, defendant and third-party defendant.

Adrian Armstrong, J.

In NYSCEF Motion Sequence No. 5, defendant Just Renovations & GC, LLC (hereinafter, "Just Renovations") moves for summary judgment dismissing the plaintiff's complaint and all cross-claims asserted against it. Plaintiff cross-moves for partial summary judgment on the issue of liability under Labor Law § 240 (1).

In NYSCEF Motion Sequence No. 6, defendant and third party defendant Bene Rialto LLC ("Bene Rialto") moves for summary judgment dismissing the plaintiff's complaint and all cross-claims asserted against it. Plaintiff cross-moves for partial summary judgment on the issue of liability under Labor Law § 240 (1).

In NYSCEF Motion Sequence No. 7, defendant third party plaintiff 13 West 38 LLC ("13 West 38") and second third-party defendant NYC Management LLC ("NYC Management") (also at times collectively referred to herein as the "owner defendants"), move for an Order awarding summary judgment dismissing all claims as to 13 West 38 and NYC Management, and in addition, awarding 13 West 38 contractual indemnity and costs against third party defendants Bene Rialto, FroMark,

155 N.Y.S.3d 692

Inc., and Uplift Elevator, or in the alternative, common law indemnity, and costs, against defendant Uplift Elevator, and awarding common law indemnity against Just Renovations. Plaintiff cross-moves for partial summary judgment on the issue of liability under Labor Law § 240 (1).

In NYSCEF Motion Sequence No. 8, FroMark Inc. ("Fromark") moves for an Order dismissing the plaintiff's complaint and the third party complaint of 13 West 38 LLC as against third-party defendant FroMark along with any and all cross-claims. Plaintiff cross-moves for partial summary judgment on the issue of liability under Labor Law § 240 (1).

In NYSCEF Motion Sequence No. 9, defendant Uplift Elevator Corp. ("Uplift") moves for summary judgment dismissing the plaintiff's complaint and all cross-claims asserted against it. Plaintiff cross-moves for partial summary judgment on the issue of liability under Labor Law § 240 (1).

Overview

This personal injury action arises out of a September 21, 2014 construction accident that occurred at 13 West 38th Street in connection with the renovation and upgrading of an elevator. According to deposition testimony of both the plaintiff and Jose Rivera, an elevator mechanic employed by Uplift, Rivera was having difficulty finishing his assigned tasks in connection with the renovation of the elevator. Rivera knew the plaintiff as they had previously worked together for another elevator repair company unrelated to the present action. Rivera requested that plaintiff assist him in completing the work on a Sunday, which entailed "[w]iring up hall fixtures, locks, double checking the wiring on the actual controller and helping wiring up top of the car which is the inspection box, light fixture, emergency stop switch."1

Rivera agreed to pay the plaintiff $200 to $300, depending on how much time was spent on the job. Plaintiff had no discussions concerning this arrangement with anyone from Uplift. Plaintiff testified that he "assumed" that the money was coming from Uplift, but he admitted that Rivera never stated that payment was coming from Uplift. Rivera knew that he had no permission to hire a helper.

On the Sunday when they arrived at the worksite, plaintiff wore an "Uplift" t-shirt given to him by Rivera. While other workers were on-site, none of them were working on the elevators. Plaintiff observed that Rivera had installed a "run box" on the elevator. A "run box" is a device that allows repairing or installing elevators to control the movement of the elevator. The particular "run box" had two buttons, one for upward movement, and one for downward movement. Plaintiff testified at his deposition that he knew that a "run box" with only two buttons was unsafe.2 A proper "run box" would be equipped with a key switch, an emergency stop switch, and an "enable button" which must be depressed in order for the elevator to move, and thus protect against accidentally depressing the up or down buttons. Plaintiff also knew that the elevator was not set to a slower speed, which would be used when working on an elevator. Rivera stated that while

155 N.Y.S.3d 693

plaintiff was on top of the elevator cab, Rivera accidentally placed the "run box" under his arm, and thereby activated the elevator's upward movement.3 The elevator moved rapidly upward, causing plaintiff to strike a structure at the top of the elevator shaft and fall against the top of the elevator cab. Plaintiff then fell through the top of the elevator, through the emergency hatch.

Defendant Just Renovations argues that defendant 13 West 38 LLC owned the subject property, and that Just Renovations was a contractor for a renovation project at the premises, hired by Rialto and FroMark, and that it was not a general contractor. Further, Just Renovations argues that Uplift was hired by NYC Management, LLC, as the contractor to perform the modernization of the elevator. Just Renovations argues that it never directed, instructed or controlled the work done by Uplift, nor did it contract with, supervise or engage in any supervisory role relating to the work done by Uplift. In this regard, Just Renovations relies on the testimony of Silverence, Uplift's Vice-President, who testified that he "never heard of" Just Renovations. Moreover, Just Renovations maintains that Rivera hired plaintiff,4 and thus plaintiff was not an employee suffered to work at the premises, nor entitled to the protections of the Labor Law.

Defendant Bene Rialto argues that it is not liable to the plaintiff, as it was a tenant that took occupancy after the accident herein. Angela Ortiz, currently a partner of Besen Partners, LLC, and previously an employee of NYC Management, testified that NYC Management is affiliated with Besen Partners, LLC. Ortiz testified that Bene Rialto was not a tenant at the time of the renovations, and that Just Renovations oversaw the elevator renovations.5 Further, as did Just Renovations, Bene Rialto argues that there was no nexus between Bene Rialto and the plaintiff. Lastly, Bene Rialto argues that to the extent that the owner 13 West alleges that Bene Rialto exercised supervision over the work, Bene Rialto argues that it was not responsible for the supervision of the work involving the elevator in question, and had no authority to do so.

Defendants 13 West and NYC Management contend that Bene Rialto agreed to procure insurance to indemnify them, and that Bene Rialto further agreed to indemnify them for any breach by Tenant, Tenant's agent or contractors, or any negligence by Tenant's agents, contractors or employees. In addition, they maintain that FroMark agreed to request and obtain certificates of insurance from all subcontractors naming 13 West, Bene Rialto and FroMark as additional insureds. Lastly, they argue that Uplift specifically agreed to indemnify them with respect to the

155 N.Y.S.3d 694

present incident by letter agreement. With respect to the merits of the action, the owner defendants argue that the court should dismiss plaintiff's Labor Law § 200 and common-law negligence claims because 13 West 38 did not direct, supervise or controll his work on the elevator renovation project. Further, defendants contend that where, as here, a portion of the plaintiff's body was injured by an elevator or lift, or component of an elevator or lift, while it was ascending or descending, there is no Labor Law § 240 (1) violation, citing Gasques v. State of New York , 15 N.Y.3d 869, 910 N.Y.S.2d 415, 937 N.E.2d 79 (2010) and Nevins v. Essex Owners Corp. , 276 A.D.2d 315, 316, 714 N.Y.S.2d 38 (1st Dep't 2000). In addition, they argue that none of the violations cited support a claim under Labor Law § 241 (6).

Defendant FroMark argues, as do the other defendants, that plaintiff was solely an employee of Rivera, and not entitled to Labor Law protection from any of the defendants. Moreover, FroMark argues that even if the Labor Law applies, in order for liability to attach to an owner or general contractor under Labor Law § 200, the owner or general contractor must have exercised supervisory...

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