Moreira v. Brooklyn GC LLC

• Docket Number: Index No. 513010/2019,Mot. Seq. Nos. 1,2,NYSCEF Doc. No. 65
• Decision Date: 21 June 2023
• Citation: 2023 NY Slip Op 32052 (U)
• Parties: ODIEL DE ALMEIDA MOREIRA, Plaintiff, v. BROOKLYN GC LLC, EVERGREEN GARDENS II LLC and STANEV ASSOCIATES LLC., Defendants. BROOKLYN GC LLC, EVERGREEN GARDENS II LLC and STANEV ASSOCIATES LLC., Third-Party Plaintiffs, v. MAGELLAN CONCRETE STRUCTURES CORP., Third-Party Defendant.
• Court: New York Supreme Court

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2023 NY Slip Op 32052(U)

ODIEL DE ALMEIDA MOREIRA, Plaintiff, v. BROOKLYN GC LLC, EVERGREEN GARDENS II LLC and STANEV ASSOCIATES LLC., Defendants.

BROOKLYN GC LLC, EVERGREEN GARDENS II LLC and STANEV ASSOCIATES LLC., Third-Party Plaintiffs, v. MAGELLAN CONCRETE STRUCTURES CORP., Third-Party Defendant.

Index No. 513010/2019, Mot. Seq. Nos. 1, 2, NYSCEF Doc. No. 65

Supreme Court, Kings County

June 21, 2023

Unpublished Opinion

DECISION/ORDER

Hon Debra Silber, J.S.C.

The following e-filed papers read herein: NYSCEF Doc Nos:

Notice of Motion/Cross Motion, Affidavits (Affirmations) Annexed_____ 33-43; 44-58

Opposing Affidavits (Affirmations)_____ 57-58; 59, 61

Affidavits/ Affirmations in Reply_____ 60;

Plaintiff moves (in motion sequence number one) for an order, pursuant to CPLR 3212 (a), granting him partial summary judgment on the issue of liability under Labor Law § 240(1) against defendants BROOKLYN GC LLC and EVERGREEN GARDENS II LLC, the general contractor and the property owner, respectively.^[1] All three defendants cross-move (in mot. seq. no. two) for an order, pursuant to CPLR 3212 (a), granting them summary judgment dismissing plaintiffs complaint in its entirety as against all defendants, or, in the alternative, granting them summary judgment on their third-party claims for contractual indemnification contribution and common law indemnification against the third-party defendant Magellan CONCRETE STRUCTURES CORP. The plaintiffs complaint contains causes of action alleging violations of Labor Law §§ 240(1), 241(6), 200 and common law negligence.

BACKGROUND

On January 30, 2017, the day of plaintiffs accident, defendant EVERGREEN GARDENS II LLC was the owner of the property located at 54 Noll Street in Brooklyn, New York (hereinafter "the premises"). Defendant BROOKLYN GC LLC was the general contractor hired to oversee the construction project which was a new eight-story residential building with more than four hundred apartments. It was completed in 2019.

Plaintiff testified that he was employed by the third-party defendant Magellan Concrete, and was working with a crew that was dismantling ("stripping") forms after concrete had been poured. He was bent over, pulling nails out of plywood when he was suddenly struck on the back with a steel shoring post, which was eight to ten feet long, which caused him to fall to the ground and sustain serious personal injuries.

Plaintiff commenced this action by filing a summons and verified complaint on June 12, 2019, and issue was joined by the filing of defendants' answer on July 19, 2019. Plaintiff filed his note of issue on November 18, 2022, and these motions timely followed.

Plaintiffs Motion

Plaintiff moves for partial summary judgment on the issue of liability under Labor Law § 240(1), which provides, in pertinent part, as follows:

"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection demolition, repairing, [or] altering ... 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."

Labor Law § 240 (1) was enacted to "prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield an injured worker from harm directly flowing from the application of the force of gravity to an object or person" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501 [1993]). In order to accomplish this goal, the statute places the responsibility for safety practices and safety devices on owners, general contractors, and their agents who "are best situated to bear that responsibility" (id. at 500; see also Zimmer v Chenuing County Perf. Arts, 65 N.Y.2d 513, 520 [1985]). Further, "[t]he duty imposed by Labor Law § 240 (1) is nondelegable and ... an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work" (Ross, 81 N.Y.2d at 500). Given the exceptional protection offered by Labor Law § 240 (1), the statute does not cover accidents merely tangentially related to the effects of gravity. Rather, gravity must be a direct factor in the accident, as when a worker falls from a height or is struck by a falling object (Ross, 81 N.Y.2d at 501; Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 513 [1991]).

In falling object cases, "a plaintiff must show more than simply that an object fell causing injury to a worker. A plaintiff must show that the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute" (Narducci v Manhasset Bay Assoc., 96 N.Y.2d 259, 268 [2001]), "or that the falling object required securing for the purposes of the undertaking" (Simmons v City of New York, 165 A.D.3d 725, 727 [2018], quoting Banscher v Actus Lend Lease, LLC, 103 A.D.3d 823, 824 [2013]).

Here, there is no dispute that the object that fell, a shoring post, "required securing for the purpose of the undertaking." Miguel Garcia, a foreman for Magellan at the time of the plaintiffs accident, was deposed on July 28, 2021 [Doc 43], He was asked many questions about the procedures for the company's work at the site. In brief, he testified that after the concrete for a floor of the new building was poured, it has to cure for about a month before they could remove the shoring posts. Removing a shoring post is not a one-person job. He said "one person have to hold the post, another person have to remove it" [Doc 43 Page 64], He said the posts weigh about twenty to thirty pounds [id. Page 60], They are meant to support the concrete for the floor poured above [id. Page 66], They are secured with a "strap of metal, nail it to the top of the floor so this post cannot knock around" [id.]. He was asked "when you install it, you turn it to create the tension between the floor and the ceiling, correct?" Mr. Garcia said "That's correct." Then he was asked "When you have the tension, then you use a device on the top to make sure that it's secure to the plywood, correct?" and he replied, "Yes" [id, Page 71].

Mr Garcia testified that he did not learn of the plaintiff s accident in 2017. He first learned of it when he was asked to appear at the deposition. Nobody reported it to him at the job site. He testified that plaintiff did not work for Magellan, "because I don't see his name on the timesheet that they have to sign in every morning" [id. Page 20], From this answer, defendants' attorney concludes that plaintiff worked for a company called New Age, which was a subcontractor of Magellan's [Doc 58 ¶¶30-36], There is no actual evidence of this, nor is there any legal significance if he worked for a subcontractor of Magellan or for Magellan with regard to this motion. Plaintiff testified that he worked for Magellan, and that Joao Bueno was his supervisor. He said he had never heard of New Age Contractors [Doc 52 Page 29], Mr. Garcia testified that Mr. Bueno was a supervisor for New Age. Mr. Garcia said he was not sure what work was going on the day of the accident. Mr. Garcia doesn't work for Magellan any longer, and so he could not look at the daily logs before coming to the deposition. He said "we was working on the third floor or the fourth floor. Probably we was doing the clean up removing the form after the pour. After the concrete is cure we have to remove the form, we have to clean it up, you know. That probably was the process that we were doing on that day" [id. Page 21], Mr. Garcia said that a worker would use a hammer and a pry (crow) bar, and one or two people would be needed to remove a foim, depending on the type of fonn. After the form is removed, there may be nails that need to be removed [Page 24]. Mr. Garcia testified that there were thirty to forty men working for Magellan at this job site [id. Page 47], and he did not know who plaintiff is. He did not remember ever speaking to him [id. Page 34], He had no records to confirm that he (Garcia) was on site at the time of the plaintiffs accident, and said "I may have a day off or I may go to the doctor" [id. Page 39], He was asked [id. Page 67] "can you think of or do you know of any particular reason why one of these eight- or ten-foot vertical posts would fall?" He responded "Maybe if it's a - maybe - maybe because the other worker is not concentrating or he joking or whatever, they not concentrating on whatever they doing, the post may go out of his hand. That's very rarely to happen." Then, he was asked "What about, would it potentially fall as well if it wasn't properly secured either to the ceiling or to the floor?" and he replied, "The post pressure that they had between the floor and the slab on the top, it's veiy rarely that's going to happen unless somebody lose it." He was asked "So normally the safe way to perform that task is to have one worker hold it, meaning the vertical beam, while the other worker detaches it from the ceiling?" and he responded "yes" [id. Page 69], In addition to plaintiffs EBT transcript and Mr. Garcia's EBT transcript, plaintiff also provides the EBT transcript for Moshe Blum, Document 42. He testified on behalf of defendant general contractor Brooklyn GC LLC. He no longer works for that company. He was their site superintendent for this job. He stated that they have been out of business since 2020. At the beginning of the job, when just the concrete company Magellan was...