Marrero v. Gotham Plaza Assocs.

• Docket Number: Index No. 160382/2017,Third-Party Index No. 595656/2018,Motion Seq. Nos. 002,004,005,006,007
• Decision Date: 14 June 2023
• Parties: ANGEL L. MARRERO, Plaintiff, v. GOTHAM PLAZA ASSOCIATES, LLC, BDG GOTHAM PLAZA, LLC,THE SALVATION ARMY, MEGA CONTRACTING GROUP, LLC, REPUBLIC SCAFFOLD & HOIST CORP., URBAN ERECTORS, LLC, URBAN PRECAST, LLC,US CRANE LLC, NYC CRANE HOIST & RIGGING, LLC, NYC CRANE HOIST OPERATIONS, LLC, Defendant. URBAN PRECAST, LLC Plaintiff, v. Defendant.
• Court: New York Supreme Court

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2023 NY Slip Op 31995(U)

ANGEL L. MARRERO, Plaintiff,
v.
GOTHAM PLAZA ASSOCIATES, LLC, BDG GOTHAM PLAZA, LLC,THE SALVATION ARMY, MEGA CONTRACTING GROUP, LLC, REPUBLIC SCAFFOLD & HOIST CORP., URBAN ERECTORS, LLC, URBAN PRECAST, LLC,US CRANE LLC, NYC CRANE HOIST & RIGGING, LLC, NYC CRANE HOIST OPERATIONS, LLC, Defendant.

URBAN PRECAST, LLC Plaintiff,
v.
Defendant.

Index No. 160382/2017, Third-Party Index No. 595656/2018, Motion Seq. Nos. 002, 004, 005, 006, 007

Supreme Court, New York County

June 14, 2023

Unpublished Opinion

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MOTION DATE: 06/28/2022, 12/02/2021, 06/23/2022, 06/24/2022, 06/27/2022.

DECISION + ORDER ON MOTIONS

Hon. Frank P. Nervo, J.S.C.:

The following e-filed documents, listed by NYSCEF document number (Motion 002) 251,252, 253, 254, 255, 256, 257, 258, 259, 260, 261, 262, 263, 264, 265, 266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, 280, 281, 282, 283, 284, 285, 287, 295, 296, 297, 298, 299, 300, 301, 302, 303, 304, 306, 307, 308, 309, 546 were read on this motion to/for JUDGMENT - SUMMARY

The following e-filed documents, listed by NYSCEF document number (Motion 004) 317,318, 319, 320, 321, 322, 323, 324, 325, 326, 327, 328, 329, 330, 331, 332, 333, 334, 335, 336, 337, 338, 339, 340, 341, 342, 343, 344, 345, 346, 347, 348, 449, 450, 451, 452, 453, 481, 482, 483, 484, 485, 493, 494, 499, 500, 501,502, 503, 514, 515, 516, 532, 536, 537, 538, 547 were read on this motion to/for JUDGMENT - SUMMARY

The following e-filed documents, listed by NYSCEF document number (Motion 005) 349, 350, 351,352, 353, 354, 355, 356, 357, 358, 359, 360, 361, 362, 363, 364, 365, 366, 367, 368, 369, 370, 371, 372, 373, 374, 375, 376, 377, 378, 379, 380, 454, 457, 458, 459, 460, 461, 462, 463, 464, 465, 466, 477,

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478, 479, 480, 486, 487, 488, 489, 490, 491, 492, 497, 498, 504, 505, 506, 507, 517, 518, 521, 522, 523, 524, 525, 526, 527, 528, 529, 533, 543,544, 548 were read on this motion to/for PARTIAL SUMMARY JUDGMENT

The following e-filed documents, listed by NYSCEF document number (Motion 006) 381,382, 383, 384, 385, 386, 387, 388, 389, 390, 391, 392, 393, 394, 395, 396, 397, 398, 399, 400, 401, 402, 403, 404, 405, 406, 455, 474, 475, 476, 495, 496, 508, 509, 510, 534, 539, 540, 541,542, 549 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER

The following e-filed documents, listed by NYSCEF document number (Motion 007) 407, 408, 409, 410, 411, 412, 413, 414, 415, 416, 417, 418, 419, 420, 421,422, 423, 424, 425, 426, 427, 428, 429, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440, 441,442, 443, 444, 445, 446, 447, 448, 456, 467, 468, 469, 470, 471,472, 473, 511,512, 513, 519, 520, 530, 535, 545, 550 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER

The parties move and cross-move for, inter alia, summary judgment on this Labor Law matter under motion sequences 002, 004, 005, 006, and 007. The Court heard on-the-record oral argument regarding this and related applications on May 17, 2023. This Decision and Order results.

As relevant here, plaintiff was engaged in construction activity when a beam was caused to fall upon his person during the crane-operated lift of said beam. Plaintiff has asserted claims under Labor Law §§ 200, 240(1), and 241(6) for his injuries. Unsurprisingly, the parties have differing conclusions as to cause of the accident.

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On a motion for summary judgment, the burden rests with the moving party to make a prima facie showing they are entitled to judgment as a matter of law and demonstrate the absence of any material issues of fact (Friends of Thayer Lake, LLC v. Brown, 27 N.Y.3d 1039 [2016]). Once met, the burden shifts to the opposing party to submit admissible evidence to create a question of fact requiring trial (Kershaw v. Hospital for Special Surgery, 114 A.D.3d 75 [1st Dept 2013]). "When a plaintiff moves for summary judgment, it is proper for the court to ... deny summary judgment if facts are alleged in opposition to the motion which, if true, constitute a meritorious defense" (Nassau Trust Co. v. Montrose Concrete Products Corp., 56 N.Y.2d 175 [1982]). "Where a defendant moves for summary judgment and establishes a prima facie entitlement to such relief as a matter of law, the burden shifts to the plaintiff to raise a triable issue of fact" (Kesselman v. Lever House Rest., 29 A.D.3d 302 [1st Dept 2006]).

Labor Law §200

Labor Law § 200 is a "codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work" (Comes v. New York State Electric and Gas Corp., 82 N.Y.2d 876, 877 [1993]; Allen v. Cloutier Constr. Corp., 44 N.Y.2d 290 [1978]). It provides, in pertinent part:

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All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded and lighted as to provide reasonable and adequate protection to all such persons

(Labor Law § 200).

The party responsible under Labor Law § 200 must, therefore, have the control over the activity bringing about the injury (Russin v. Picciano it Son, 54 N.Y.2d 311 [1981]). Accordingly, a breach of Labor Law § 200 is, effectively, a breach of the common law duty to maintain a safe work site (Allen v. Cloutier Constr. Corp., 44 N.Y.2d at 299). If the dangerous condition or defect arises from the contractor's methods, the owner will not be liable under § 200 or the common law, absent a showing the owner exercised some control or supervision over the operation (Comes v. New York State Electric and Gas Corp., 82 N.Y.2d at 877; see also Lombardi v. Stout, 80 N.Y.2d 290, 295 [1992]). However, where the plaintiff s injuries arise from a dangerous condition on the premises not caused by the contractor's methods, liability will attach if the property owner had control over the work site and notice of the dangerous condition (Bradley v. HWA 1290 III LLC, 157 A.D.3d 627 [1st Dept 2018]; Mendoza v. Highpoint Assoc., IX, LLC, 83 A.D.3d 1, 9 [1st Dept 2011]).

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Here, issues of fact preclude summary judgment on Labor Law § 200.

Among other things, the parties dispute: who was located at the construction site; the responsibilities of those employed and located at the construction site; what was able to be seen by the crane operator; the appropriate measures to be taken when a crane operator performs a "blind lift" relying on signalpersons to...