Munguia v. 5501 New Utrecht LLC
| Docket Number | Index No. 512535/19 |
| Decision Date | 12 October 2023 |
| Citation | 2023 NY Slip Op 33775 (U) |
| Parties | ELMER MUNGUIA, Plaintiff, v. 5501 NEW UTRECHT LLC, GREENLINE DEVELOPERS LLC, AND TOT DEVELOPERS, INC., Defendants. |
| Court | New York Supreme Court |
Unpublished Opinion
DECISION AND ORDER
The following e-filed papers read herein: NYSCEF Nos.:
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed ____ 84-96
Affidavits/ Affirmations in Reply _____ 104
Upon the foregoing papers, plaintiff Elmer Munguia ("plaintiff') moves (in motion [mot.] sequence [seq.] number [no.] 5), for an order, pursuant to CPLR 3212 granting partial summary judgment in plaintiffs favor on his Labor Law §§ 240 (1) and 241 (6) claims.
5501 New Utrecht LLC ("5501") is the owner of property located at 5501 New Utrecht Avenue in Brooklyn, New York (the "property"). Non-party Beitel Group is the entity that served as the general contractor for a project at the property which involved the construction of a new building. Non-party Team One NYC/Intemational Concrete ("International") was subcontracted to perform work as part of the project. Plaintiff was employed by International and worked as a laborer.
On May 30, 2019, plaintiff was performing work on the structural concrete foundation. To accomplish this task, he was required to work in a construction pit. Plaintiff was responsible for placing waterproofing over insulation coverings on forms or rebar/metal framing. He testified that he was not provided with a ladder to perform his work in the pit, rather he was provided with a makeshift toe board. In his affidavit in support of his motion, plaintiff states that the toe board was approximately eight feet high and had seven rungs that were approximately one foot apart from each other. Plaintiff states that he was standing on the second or third rung from the top performing his work when the toe board tilted backwards and away from the wall, causing him to fall approximately eight feet down to the ground, with the toe board landing on top of him.
Plaintiff commenced the instant action by filing a summons and verified complaint on June 5, 2019. Defendant 5501 joined issue by filing a verified answer with cross claims on August 7, 2019. On or about September 3, 2019, plaintiff served his verified bill of particulars. On or about November 9, 2021, plaintiff served an amended summons and complaint adding TOT Developers Inc., as a defendant.[1] On December 9, 2021, 5501 served its answer to the amended complaint. Plaintiff was deposed on March 3, 2021, and May 11, 2021, and 5501 produced a witness for examination before trial on August 17, 2022. On November 30, 2022, plaintiff filed his note of issue and the following timely motion ensued.
"Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it 'should only be employed when there is no doubt as to the absence of triable issues of material fact'" (Kolivas v Kirchoff, 14 A.D.3d 493, 493 [2d Dept 2005], citing Andre v Pomeroy, 35 N.Y.2d 361, 364 [1974]; see Sucre v Consolidated Edison Co. of N.Y Inc., 184 A.D.3d 712, 714 [2d Dept 2020]). "The proponent for the summary judgment must make a prima facie showing of entitlement to judgment as a matter of law tendering sufficient evidence to demonstrate absence of any material issues of fact" (Sanchez v Ageless Chimney Inc., 219 A.D.3d 767 [2d Dept 2023], citing Alvarez v Prospect Hospital, 68 N.Y.2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985], Once a moving party has made a prima facie showing of its entitlement to summary judgment, the burden shifts to the opposing party to produce admissible evidence to establish the existence of material issues of fact which require a trial for resolution (see Gesuale v Campanelli & Assocs., 126 A.D.3d 836, 937 [2d Dept 2015]; Garnham &Han Real Estate Brokers v Oppenheimer, 148 A.D.2d 493, 494 [2d Dept 1989]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad, 64 N.Y.2d at 853; Skrok v Grand Loft Corp., 218 A.D.3d 702,[2d Dept 2023]; Menzel v Plotnick, 202 A.D.2d 558, 558-559 [2d Dept 1994]).
Plaintiff moves for partial summary judgment in his favor on his Labor Law §§ 240 (1) and 241 (6) claims. Plaintiff argues that he was caused to fall from an elevated height when he was not provided with proper safety equipment to perform his work. In this regard, he points out that the makeshift toe board that he was provided was not secured and that there was no place that he could attach his safety harness to when he was working on the toe board. Moreover, he asserts that he was not provided with a lifeline or anchored retractable line above his work area to safely attach to in order to prevent his fall. Plaintiff testified that when he was performing work while standing at the top of the toe board, he was able to clip his harness on the top of the metal form wall but, as he descended down the toe board and into the pit, there was nothing for him to attach his safety harness to. Plaintiff contends that it was unsafe for him to perform his work on the toe board because it was not attached to the foundation wall, no other worker was securing it from below and there was no place to attach his harness. Moreover, he notes that the toe board only allowed the front part of a workers' foot to rest on the rung which resulted in the rest of the workers' weight being set further back not resting on anything, rendering it unsafe. Accordingly, plaintiff argues that Labor Law § 240 (1) was violated and that 5501 is strictly liable for this violation.
In opposition, 5501 argues that plaintiff was not required to be provided with a fall arrest system in the form of a lifeline or harness for the work that he was performing. In support of this argument, 5501 submits an expert affidavit from Joseph Danatzko, a licensed professional engineer. Mr. Danatzko affirms that he reviewed all of the deposition testimony, plaintiffs bill of particulars, plaintiffs motion and supporting affirmations, as well as three videos of the incident. He opines that the location where plaintiff was required to work at the time of the incident did not require that he be provided with a fall arrest system. Specifically, he states that "[t]here is also no evidence that Plaintiff was required to wear a safety belt, a harness, a tail line or a lifeline in order to properly and safely perform his job, nor that the absence of or defect in those safety items was a proximate cause of the incident" (NYSCEF Doc No. 99, Danatzko aff at ¶15). Mr. Danatzko further states that plaintiff fails to specify a single required enumerated safety device that 5501 failed to provide.
In reply, plaintiff argues that Mr. Danatzko's affidavit fails to raise an issue of fact as it is conclusory and fails to assert any basis for his opinion that a fall arrest system was not needed. Moreover, plaintiff points out that the expert mistakenly claims that plaintiff has failed to "specify a single required enumerated safety device" (id. at 13). In this regard, plaintiff points out that in support of his motion he specifically argues that he should have been provided with a properly secured ladder, scaffold, lifelines, and/or retractable safety line that could be anchored from above.
Labor Law § 240 (1), states, in relevant part, that:
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, 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 ...
The purpose of Labor Law § 240 (1) is to protect workers "from the pronounced risks arising from construction work site elevation differentials" (Runner v New York Stock Exch., Inc., 13 N.Y.3d 599, 603 [2009]; see also Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 514 [1991]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501 [1993]). Consequently, Labor Law § 240 (1) applies to accidents and injuries that directly flow from the application of the force of gravity to an object or to the injured worker performing a protected task (see Gasques v State of New York, 15 N.Y.3d 869 [2010]; Vislocky v City of New York, 62 A.D.3d 785, 786 [2d Dept 2009], Iv dismissed 13 N.Y.3d 857 [2009]). The statute is designed to protect against '"such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured'" (Ross v DD 11th Ave., LLC, 109 A.D.3d 604, 604-605 [2d Dept 2013], quoting Ross, 81 N.Y.2d at 501).
The duty to provide the required "proper protection" against elevation-related risks is nondelegable; therefore owners, contractors and their agents are liable for the violations even if they have not exercised supervision and control over either the subject work or the injured worker . (see Zimmer v Chemung County Performing Arts, Inc., 65 N.Y.2d 513, 521 [1985] []; see Roblero v Bais Ruchel High' Sch., Inc., 175 A.D.3d 1446, 1447 [2d Dept 2019]). "To succeed on a cause of action under Labor Law § 240 (1), a plaintiff must establish that the defendant violated its duty and that the...
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