Gomez v. 91-93 Franklin LLC
Decision Date | 24 April 2023 |
Docket Number | Index No. 527680/2019,Motion Seq. Nos. 7,9,10 |
Citation | 2023 NY Slip Op 31340 (U) |
Parties | JOSE GOMEZ, Plaintiff, v. 91-93 FRANKLIN LLC, Y.N.H. CONSTRUCTION INC., and ALPINE READY MIX INC, Defendants 91-93 FRANKLIN LLC AND Y.N.H. CONSTRUCTION INC., Third-Party Plaintiffs, v. CAPITAL CONCRETE NY INC., Third-Party Defendant. |
Court | New York Supreme Court |
Date submitted: 3/9/23
DECISION/ORDER
The following papers read herein: NYSCEF Documents
Notices of Motion, Affidavits (Affirmations) and Exhibits .................................................................148-159 182-200
Notices of Cross-Motion, Affidavits (Affirmations) and Exhibits ................................. ....................170-181
Opposing Affidavits (Affirmations) and Exhibits .............................................212-214; 207-210
Reply ......................................211; 215; 216
Upon the foregoing papers, defendant Alpine Ready Mix Inc. (hereafter "Alpine") moves, in mot. seq. 7, for an order, pursuant to CPLR 3212, granting it summary judgment and dismissing the plaintiff's complaint as against it. This motion was filed on August 30, 2022, and as such, was timely filed, as the note of issued was filed on July 11, 2022. In motion seq. #9, plaintiff cross-moves for an order granting him partial summary judgment on his Labor Law §241(6) claim as against defendant Alpine. This motion was filed on October 18, 2022, and as such, was untimely, although as it involves the same subject matter as Alpine's motion, the court has the discretion to entertain it. In motion seq. 10, also filed on October 18,2022, plaintiff requests more time to move for summary judgment, and also in that motion, he seeks an order granting him partial summary judgment on his Labor Law §241(6) claim as against the other two defendants.
Plaintiff commenced the instant action on December 20, 2019, by electronically filing a summons and verified complaint. Plaintiff claims therein that on September 18, 2019, he was working at 91 Franklin Avenue in Brooklyn, NY when he was injured in a work-related accident. He avers that defendant 91-93 Franklin LLC (hereafter "Franklin") was the owner of the premises at all relevant times, and that defendant Y.N.H. Construction Inc. (hereafter "YNH") was the general contractor[1] He avers that both defendant Alpine and third-party defendant Capital Concrete NY Inc. (hereafter "Capital"), were sub-contractors of YNH. On the date of the subject accident, plaintiff was employed by third-party defendant Capital. Plaintiff alleges that at all relevant times, he was engaged in work within the scope of the Labor Law. The project was a new four-story residential apartment building. Plaintiff alleges that defendants failed to provide him with a safe place to work, and failed to provide him with proper equipment and/or safety devices so as to prevent him from being injured at the worksite. Specifically, he alleges that he was "struck in the eye with hot liquid concrete due to defective conditions at the premises, including but not limited to his not having been provided with eye protection equipment or with suitable overhead protection, barricades, fencing or the equivalent" [Doc 1 ¶22], The complaint asserts causes of action pursuant to Labor Law sections 240(1), 241(6) and 200, as well as for common law negligence.
Defendant Alpine interposed an answer [Doc 6] on March 23, 2020, generally denying plaintiff s allegations and asserting a cross claim against the other two defendants for contribution and common law indemnification. Defendants Franklin and YNH apparently answered the complaint and asserted cross claims against Alpine, but failed to electronically file it until March 23, 2023, after oral argument on these motions [Doc 217],[2] This answer, dated April 1, 2020, was, until it was filed as Document 217, solely viewable as an exhibit to the motions in this case, the first of which is at Document 27. On January 10,2022, defendants Franklin and YNH commenced a third-party action against Capital [Doc 49], The third-party complaint asserts claims for contribution, common law indemnification, contractual indemnification, and breach of the contractual obligation to procure insurance. The third-party defendant then interposed a third-party answer on July 21, 2022 [Doc 97], Plaintiff then filed a note of issue on July 11, 2022. These motions followed.
Plaintiff testified at his EBT, held virtually on April 20, 2021, that he lives alone, and grew up in Florida. He had been trained before the accident, on forklift, backhoe, cherry picker and attended OSHA safety training. His OSHA certification is for 30 hours, issued in the summer of 2019. He has not worked since the date of the accident, September 18, 2019. He started working for Capital in May 2019. Asked what his job description was at Capital, he said [Doc 155 Page 15] He explained that he used this "app" called Raken to take progress photos of the worksite for Capital. He used it as his prior job as well. Counsel looked up the app on the Internet and reported [id. at 16] that it is described as follows: "Raken provides a cloud based mobile and daily reporting platform solutions to companies - construction application for daily reporting that allows users to get real-time updates on the progress of a job, and access, manage, and download various jobs." Plaintiff said Capital is a foundation superstructure company [id. at 27], Asked what "everything" entailed, plaintiff said "Helping out the guys when they need help." Asked for examples, he said "Building forms, prepping for concrete, check the tool list, make sure all of the tools are in at the end of the day" [id. at 18], He testified that he had worked for a concrete company in Miami, Florida and has been working in "the concrete business" since 1993, "on and off', and in carpentry as well [id. at 19], Plaintiff testified that he learned safety at his OSHA course, and that in the concrete industry, safety equipment includes "gloves, face shields, goggles, hard hat, boots, harness if needed" [id. at 22], He was then asked, "And in regard to goggles, what were you advised or taught?" and he responded, "It's very important."
Plaintiff testified that the building site was a new building being constructed, and that the superstructure was finished before he first worked at this jobsite. He started there about a week before the accident [id. at 30], and on the date of his accident, there were seven or eight Capital workers present. His supervisor was Jesus Verde, the foreman. Capital did not provide him with any job training. He owned his own safety vest and harness and safety goggles [id. at 36] and a hard hat [id. at 46] and Capital "once in a while" provided him with safety equipment, such as "safety goggles, harnesses, flags for the trafficking - for the traffic outside, and vests [id. at 36]". Later on in the EBT, he said he had been given the goggles at the prior jobsite, where he left them, and was asked "how did these goggles become your own personal goggles as opposed to goggles . . . that you needed to return" and he responded "he gave them to me and told me I could keep them" [id. at 63], Plaintiff as then asked if he had ever bought his own goggles, and he said "no, they were always given to me by the GC of the buildings" [id. at 63], and "a couple times" by his employer [id.]. Plaintiff was asked what went into his decision to bring "his own" equipment with him to work, and he answered that it depended on what the work they were doing was. He was asked "what general activities would you not bring your PPE (personal protective equipment) items to work?" and he replied "when I was just taking pictures that day" [id. at 39].
Plaintiff testified that on the day of his accident, he was assigned "to get the guys ready for prepping for concrete" [id. at 41], which entailed "getting it ready to pour concrete on inside the forms." He continued "My job was to watch them, take pictures, and log what we were doing, building the forms, getting ready for concrete." He received a call from Mende, the foreman's supervisor, who was not on site, that they should "get ready, that he was about to dispatch concrete" [id. at 44], He had left his own goggles at the last jobsite in the gang box there, so he only had his hardhat [id. at 46] and his boots. He asked for goggles when he first started working at Franklin. First he asked somebody from YNH whose name he could not remember, and was told they did not have any. He did not ask anyone from Capital for goggles. Asked "why?" He said "Just didn't think about it at the time" [id. at 56], A few minutes later, after a break in the deposition, plaintiff testified that he asked his foreman Jesus Verde for goggles the first day he was at the 91 Franklin jobsite, and was told that Capital did not have any, to ask the general contractor, that "they're supposed to provide to you" [id. at 59], The GC said they did not have any, but when asked if he told Mr. Verde that, plaintiff responded "I don't remember" [id. at 60], Plaintiff was asked "what were you instructed in regard to wearing goggles on the jobsite?" and he replied He was then asked, "were you given any instructions as to when you should be wearing your goggles at a jobsite", and he responded "the whole time" [id. at 57], Counsel then asked plaintiff if he had worn...
To continue reading
Request your trial