Moreno v. VS 125, LLC
| Decision Date | 21 June 2022 |
| Docket Number | 3,Mot. Seq. Nos. 2,Index No. 517332/2018 |
| Citation | 2022 NY Slip Op 31950 (U) |
| Parties | Omar Moreno, Plaintiff, v. VS 125, LLC, Plaza Construction LLC, Time Square Construction Inc, and Plaza/Time Square Joint Venture, Defendants. |
| Court | New York Supreme Court |
2022 NY Slip Op 31950(U)
Omar Moreno, Plaintiff,
v.
VS 125, LLC, Plaza Construction LLC, Time Square Construction Inc, and Plaza/Time Square Joint Venture, Defendants.
Index No. 517332/2018, Mot. Seq. Nos. 2, 3
Supreme Court, Kings County
June 21, 2022
Unpublished Opinion
DECISION / ORDER
HON. DEBRA SILBER, J.S.C.
The following e-filed papers read herein:
NYSCEF Doc Nos.
Notice of Motion and Affidavits (Affirmations) Annexed __
37-49 52-69
Opposing Affidavits (Affirmations)
87-92 72-84
Reply Affidavits (Affirmations)
93-95 98
Upon the foregoing papers, defendants VS 125, LLC (VS), Plaza Construction, LLC (Plaza), Time Square Construction, Inc. (Times Square), and Plaza/Time Square Joint Venture (Plaza/Time Square) (collectively, defendants) move (in motion sequence [mot. seq.] two) for an order, pursuant to CPLR 3212, granting them summary judgment dismissing the causes of action asserted by plaintiff Omar Moreno (Moreno) for violations of Labor Law §§ 200, 240 (1), 240 (2), 240 (3) and 241 (6), as well as for common-law negligence.
Plaintiff Moreno also moves (in mot. seq. three) for an order, pursuant to CPLR 3212, granting him partial summary judgment against defendants on the issue of liability under Labor Law §§ 240 (1) and 241 (6).[1]
Background
On August 24, 2018, Moreno commenced this action by filing a summons and a verified complaint against defendants VS and Plaza. Moreno alleges therein that on August 10, 2018, he suffered an injury while directing traffic near the construction site at 125 Greenwich Street in Manhattan.[2] More specifically, on that date Moreno was working as a "flagman" employed by non-party Structuretech, New York, Inc. (STNY) when he heard the sound of an object striking metal, and, immediately thereafter, felt an object strike his left leg. He fell to the ground and sustained a fractured fibula as a result.
At the time of the incident, there was a high-rise building under construction at the site; on the date of the accident, STNY employees were performing concrete superstructure work between the 40th and 51st floors. To prevent against falling hazards, a so-called Doka climbing system or fence[3] was being used around the then-top levels of the building during construction. This equipment consisted of a 2-story high metal fence that was secured with large metal bolts[4] (about five inches long and two inches across, weighing approximately five pounds) to the floor. As work would progress upward on the building
under construction, the bolts would be removed, the equipment would be moved and the fence would then be bolted down again. There were also nets intended to prevent objects from falling from the worksite to the ground surrounding the building, which were deployed at lower floors.
After the accident, Moreno located one of the Doka bolts about ten feet from where he fell. Moreno was then helped by Patrick Gadson, an STNY co-worker who had been operating a forklift nearby, and he brought the bolt to Michael Duffy, STNY director of field operations, who identified the bolt as a "Doka" bolt of the kind used to secure the fence around the top floors of the building under construction.
Moreno infers that the subject bolt must have fallen from the topmost floors and struck his leg. Because of this, Moreno alleged in his original complaint that defendants violated Labor Law §§ 240 (1) and 241 (6), as well as certain applicable provisions of the Industrial Code (12 NYCRR Ch 1, sub. A) by allowing the bolt to fall; Moreno alleges that defendants are owners, contractors, or agents thereof, and therefore, are vicariously liable for these violations of the Labor Law without regard to fault or responsibility. Moreno also alleges causes of action based on Labor Law §§ 200, 240 (2), 240 (3) and common-law negligence. Moreno claims that these Labor Law violations and negligent acts or omissions proximately caused his personal injuries. Lastly, Moreno argues that he was on
a construction site performing construction work.[5] Moreno seeks damages against defendants for his claims.
The original defendants, VS and Plaza, interposed an answer, and discovery ensued. By a November 22, 2019 motion, Moreno sought leave to amend the pleadings to add Time Square and Plaza/Time Square Joint Venture as defendants. By a January 8, 2020 order, Moreno's motion was granted; Moreno subsequently filed and served a supplemental summons and amended complaint. The amended pleadings indicate specifically that defendant VS is the owner of the subject premises and, pursuant to a written agreement, hired defendants Plaza and Time Square (together known as defendant Plaza/Time Square Joint Venture) as the project construction manager. This joint venture then hired STNY to construct the superstructure. The amended pleadings reiterate that all defendants are either owners, contractors, or agents thereof and are, thus, vicariously liable for the claimed Labor Law violations.
Defendants interposed an amended answer and discovery (including non-party depositions) continued. on August 26, 2021, Moreno filed a note of issue with a trial by jury demand, certifying that discovery was complete and that this matter was ready for trial. The instant motions for summary judgment ensued.
Defendants' Summary Judgment Motion
On October 18, 2021, defendants moved for summary judgment and an order dismissing the complaint. Defendants argue that Moreno's Labor Law § 200 and common-law negligence claims must be dismissed. Defendants maintain that such claims are only sustainable in two situations: first, where the allegedly liable party supervised or controlled the work that produced the injury, and second, when the allegedly liable party either created or had actual or constructive notice of a dangerous premises condition that produced the injury. Defendants point out that, here, there was no dangerous premises condition alleged. Instead, defendants aver, Moreno asserts that he was struck with a falling bolt; defendants note that he justifies this assertion by claiming that STNY workers were using such bolts at the top of the subject building. Defendants assert that, therefore, the accident occurred as a result of the methods and equipment which was being used by Moreno's employer.
In such a case, defendants claim, only the parties that exercised authority over the work are subject to liability pursuant to common-law negligence or Labor Law § 200. They argue that the authority exercised must be specific to the work and that the general authority to supervise construction and/or inspect the premises is insufficient for liability purposes. Here, they continue, the record establishes that both Moreno's work and the work that allegedly precipitated the accident was only supervised by STNY personnel. They also assert that their agents never undertook to direct or control such tasks.
Assuming for the sake of argument that this court considers the alleged accident to have been caused by a hazardous premises condition, defendants emphasize that they are
still not subject to liability pursuant to Labor Law § 200 or common-law negligence. This is because, defendants argue, owners, contractors and their agents are not liable for a hazardous premises condition unless they either created it or had actual or constructive notice of it and failed to correct it within a reasonable time. Given that Moreno testified that only STNY workers were present on the then-top floor, defendants reason that it is obvious that their agents could not have created the allegedly dangerous condition (i.e., falling items). By the same reasoning, defendants conclude that they could not have had notice of such a condition, since they did not have personnel positioned on the top of the building at relevant times. Also, defendants maintain that they could not reasonably be charged with having had notice of such a transitory situation as falling items. For these reasons, defendants assert that this court should dismiss Moreno's common-law negligence and Labor Law § 200 claims.
Next, defendants argue that Moreno's Labor Law § 240 (1) claim should be dismissed because it is not supported by any record evidence. Defendants point out that an injured worker is entitled to recover damages pursuant to Labor Law § 240 (1) only when the injury sustained is due to an elevation-related hazard. Defendants note that, here, Moreno did not fall from a height; accordingly, the Labor Law § 240 (1) claim is sustainable only if Moreno can demonstrate that an object fell and struck him, causing injuries. However, defendants continue, the record here contains no direct evidence that Moreno was hit by a falling object. Instead, defendants claim, it is undisputed that Moreno did not actually see an object either fall or strike him. Defendants also claim that Patrick
Gadson (Gadson), the only potential witness and the only other person who was near Moreno when the alleged incident occurred, testified that he did not see any object fall and strike Moreno. In fact, defendants claim that Gadson testified that he heard Moreno moan as he drove the forklift by him; Gadson also testified that he saw no object on the ground nearby when, after parking the forklift, he went back to check on Moreno. Lastly, defendants assert that the record contains no indication that any person, including Gadson, ever told Moreno that they saw an object fall and strike Moreno. Defendants conclude that since the record contains no direct evidence that an object fell and struck Moreno, the plaintiff's Labor Law § 240 (1) claim is unsustainable.
Alternatively, defendants assert that they are entitled to summary judgment dismissing Moreno's Labor Law § 240 (1) claim because Moreno's version of events with regard to the accident is mere speculation and is...
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