Jablonski v. Archstone Builders, LLC
| Decision Date | 23 October 2017 |
| Docket Number | INDEX NO. 154224/2014 |
| Citation | 2017 NY Slip Op 32269 (U) |
| Court | New York Supreme Court |
| Parties | ROBERT JABLONSKI, Plaintiff, v. ARCHSTONE BUILDERS, LLC, L&M 825, LLC, L&M LL C.O FRI, Defendants. |
MOTION DATE __________
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99
were read on this application to/for summary judgment.
This is a personal injury action to recover damages sustained by a stone worker on May 24, 2013 after he pushed a cart carrying stone slabs over an extension cord, resulting in one of the slabs sliding and falling off the cart onto his left big toe.
Defendant Archstone Builders, LLC (Archstone) moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint, including Labor Law §§ 240 (1), 241 (6), 200, and common-law negligence claims, filed by plaintiff Robert Jablonski (Plaintiff), and dismissing any cross-claims against it (mot. seq. 002). Likewise, defendant L&M 825, LLC, (L&M) moves for summary judgment dismissing same, including any cross-claims against it (mot. seq. 003). Plaintiff opposes, and defendants oppose each other. The motions are consolidated for disposition.
BACKGROUND
On the day of Plaintiff's accident, L&M was the owner of the premises located at 821 Madison Avenue in Manhattan. The premises were leased by non-party Valentino USA, Inc. (Valentino) and Valentino retained Archstone to perform general contracting services for the interior renovations and build-out of a retail store at the premises. In addition, Valentino accepted a proposal from Setex Inc. (Setex) to furnish and install terrazzo1 and tile as part of the construction project. Plaintiff was employed as a stone worker for Setex.
Archstone's responsibilities included supervising and directing its employees and subcontractors relating to the work contained in its contract with Valentino dated June 29, 2012 (the Contract). Archstone was also responsible for coordinating all portions of the work under the Contract and was responsible for and had control over the construction means and methods. Accordingly, Archstone had a laborer at the project on a daily basis, but it claims that its laborer did not direct or supervise Plaintiff's work.
Plaintiff's Deposition Testimony
Plaintiff testified that as a stone worker for Setex on the construction project, his duties included unloading slabs of marble from a delivery truck and installing them at the job site. Because some of the slabs weighed as much as 450 pounds and were as large as 3 feet by 12 feet, Plaintiff would use a metal cart2 to move them. In order to protect the slabs, Plaintiff placed Styrofoam on the platform of the cart before loading the cart with slabs. He would then place the slabs on the Styrofoam and lean them against the rail of the cart.
On the day of the accident, Plaintiff and his co-worker loaded four slabs onto the cart. Upon transporting the slabs, Plaintiff's coworker was guiding the cart and Plaintiff was pushing the cart when its wheels ran over an extension cord and the cart "jumped up," causing an unsecured slab to fall off the cart and onto Plaintiff's foot (Jablonski Tr. at 36).
Plaintiff further testified that the slabs were not affixed to the cart. There was no chain or rope to keep them from moving while being transported, and he was not provided any straps or devices to affix the slabs to the cart. Typically, the Styrofoam would prevent the slab from moving.
Testimony of Robert Marrero (Archstone, Labor Foreman)
Robert Marrero testified on behalf of Archstone. He testified that at the time of Plaintiff's accident he was a laborer for Archstone and that Archstone was the general contractor for the construction project. As such, Archstone "supervised the whole construction at that site" and "did a whole build out," i.e., "ran the whole project" (Marrero Tr. at 10, 12). Mr. Marrero's duties primarily included maintaining "the place clean in a safe working environment," and he would pass out "toolbox papers," i.e., safety instructions to all the subcontractors going to the site (id. at 12, 36). He never saw or dealt with any of the contracts between Archstone and L&M or any of the subcontractors, and he was not sure whether Archstone subcontracted Setex.
Regarding the accident, Mr. Marrero testified that the accident involved the company doing the terrazzo work. He heard the incident as it occurred, as he was "two or three feet away" (id. at 21). He testified that he observed that a portion of the Styrofoam was not cut to the size of the platform of the A-frame cart, thus did not adequately support the terrazzo slab and resulted in the Styrofoam snapping and breaking under the slab's weight and causing the slab to land on Plaintiff's foot. He also testified that there were "no straps or devices to keep the terrazzo on the A-frame" cart (id. at 60).
Mr. Marrero further testified that there were electrical cords in the area which belonged to the terrazzo workers which said workers used to "power the winch that they were using to raise the terrazzo up" (id. at 30).
Testimony of Marc LaPointe (Larstrand Corporation, Director of Architecture)
Marc LaPointe testified that he was employed by non-party Larstrand Corporation as Director of Architecture. Larstrand Corporation is a management company that manages properties on behalf of owners Lawrence Friedland and the estate of Melvin Friedland, who are members of L&M. L&M was formed by the owner of properties located at 817 Madison to 827 Madison, and Valentino occupied one of those properties as a tenant. He testified that he visited the premises about once a month for ten to fifteen minutes, and his purpose was to monitor progress on the construction project. He also testified that Archstone was a general contractor for the job.
DISCUSSION
On a motion for summary judgment, the moving party has the burden of offering sufficient evidence to make a prima facie showing that there is no triable material issue of fact. Jacobsen v. N.Y. City Health & Hosps. Corp., 22 N.Y.3d 824, 833 (2014). Once the movant makes that showing, the burden shifts to the non-moving party to establish, through evidentiary proof in admissible form, that there exist material factual issues. Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). In determining a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party. Henderson v. City of New York, 178 A.D.2d 129, 130 (1st Dep't 1997). The court's function on a motion for summary judgment is issue-finding, rather than making credibility determinations or findings of fact. Vega v. Restani Const. Corp., 18 N.Y.3d 499, 503, 505 (2012).
Plaintiff's Labor Law § 240 (1) Claim
Defendants move for dismissal of Plaintiff's Labor Law § 240 (1) claim against them. Initially, L&M contends that it is not liable under the Labor Law because it had nothing to do with the accident. Similarly, Archstone argues that it is not liable under the Labor Law because, per its contract, it was not responsible for supervising and directing the injury-producing work. However, Labor Law § 240 (1), also known as the Scaffold Law (Ryan v. Morse Diesel, 98 A.D.2d 615, 615 [1st Dep't 1983]), provides, in relevant part:
"All contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."
As owner of the premises where the accident occurred, L&M may be liable for Plaintiff's injuries under Labor Law § 240 (1). Archstone may be similarly liable as the general contractor. Mr. Marrero testified that Archstone was the general contractor on the construction project and supervised the entire construction project on the site. He further testified that he was at the project every day.
L&M argues that after Valentino accepted the Setex proposal, a Modification3 was made to the Contract, noting that terrazzo was now included in the construction project for the original price of $805,000. Thereafter, the terrazzo work that Plaintiff was performing was specifically listed and included in Archstone documents, including invoices, requisition summaries, the AIA Application and Certification for payment, Project Directory and Project Schedule. L&M also argues thatpursuant to the Contract, Archstone was responsible for the safety of employees "on the Work and other persons who may be affected thereby."
Archstone contends that the terrazzo work was specifically excluded from its contract with Valentino, and further, that the documentary evidence offered by L&M is inadmissible hearsay. See Ortiz v. Igby Huntlaw LLC, 146 A.D.3d 682, 683 (1st Dep't 2017), leave to appeal denied, No. 2017-672, 2017 WL 4051778 (N.Y. Sept. 14, 2017) ().
Notwithstanding Archstone's contentions, as general contractor of the construction project, Archstone may be liable for Plaintiff's injuries under Labor Law § 240 (1). See Paljevic v. 998 Fifth Avenue Corp., 65 A.D.3d 896, 897 (1st Dep't 2009) (...
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