Neto v. Magellan Concrete Structures Corp.
| Citation | 2021 NY Slip Op 33846 (U) |
| Decision Date | 02 July 2021 |
| Docket Number | Index No. 520889/17 |
| Parties | ADRIANO NETO and LARA GOMES VICENTE, Plaintiffs, v. MAGELLAN CONCRETE STRUCTURES CORP., BROOKLYN GC, LLC, and EVERGREEN GARDENS I LLC, Defendants. MAGELLAN CONCRETE STRUCTURES CORP., Third-Party Plaintiff, v. EXTREME BUILDING LLC, Third-party Defendant. |
| Court | United States State Supreme Court (New York) |
Unpublished Opinion
At an IAS Term, Part 43 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse at 360 Adams Street, Brooklyn, New York, on the 2nd day of July, 2021.
PRESENT: HON. MARK I. PARTNOW, Justice.
The following e-filed papers read herein:
NYSEF Doc. Nos.:
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed
Opposing Affidavits (Affirmations)
116, 125,129
Affidavits/ Affirmations in Reply
135 138
Other Papers:
__
Upon the foregoing papers, plaintiffs Adriano Neto and Lara Gomes Vicente move for an order, pursuant to CPLR 3212, granting partial summary judgment in their favor with respect to liability on their Labor Law §§ 240 (1) and 241 (6) causes of action against defendants (motion sequence number 4).
Plaintiffs' motion is granted with respect to the Labor Law § 240 (1) cause of action and denied with respect to the Labor Law § 241 (6) cause of action.
In this action premised upon common-law negligence and violations of Labor Law §§ 200, 240 (1), and 241 (6), plaintiff Adriano Neto[1] alleges that he suffered injuries on September 15, 2017, when a coworker, Emilson Dias Andrade dropped a reshoring post[2]onto plaintiffs shoulder and neck. At the time of the accident, the coworker had intended to hand the post down to plaintiff from the level above. The accident occurred during the construction of a multistory building that was owned by defendant Evergreen Gardens I, LLC (Evergreen). Evergreen had hired defendant Brooklyn GC, LLC, (Brooklyn GC) to act as the general contractor on the project, and Brooklyn GC hired defendant/third-party plaintiff Magellan Concrete Structures, Corp. (Magellan), to erect the concrete superstructure of the building. Magellan, in turn, subcontracted a majority of the concrete superstructure work to third-party defendant Extreme Building LLC (Extreme), plaintiffs employer.[3] Plaintiff was employed as a carpenter for the project, and his tasks included, among other things, building decking, helping with the concrete pours, and stripping the forms from the concrete after the concrete dried. According to plaintiffs deposition testimony, on the afternoon of the accident a supervisor he knew by the name of Wellington directed plaintiff and several of his coworkers to move some of the reshoring posts from the ground floor of the building to the basement where they were needed to build a ramp. In order to do so, two of plaintiffs coworkers would carry the poles from where they had been kept to Andrade, who was at the street level, and who would lower them to another group of workers, including plaintiff, who were in the basement and who would then carry the posts 20 feet or so and lay them onto a cart. After plaintiff had handled 8 to 10 posts in this manner, plaintiff returned to receive another post from Andrade, and just as he arrived to do so, Andrade lost hold of a post and dropped it onto plaintiffs neck and shoulder. At the time Andrade lost hold of the post, it was three to four feet above plaintiffs head.[4] Plaintiff stated that each post was approximately 14 feet long, and weighed approximately 45 to 50 kilograms.[5] Although plaintiff did not testify that Wellington had directed the group of workers to lower the posts in this manner, plaintiff states that Wellington was present on the floor above while the posts were being lowered and observed plaintiff and his coworkers performing the work in this manner.[6]
LABOR LAW § 240 (1)
Labor Law § 240 (1) imposes absolute liability on owners and contractors or their agents when their failure to protect workers employed on a construction site from the risks associated with falling objects proximately causes injury to a worker (see Wilinski v 334 East 92nd Housing Dev. Fund Corp., 18 N.Y.3d 1, 3 [2011]; Narducci v Manhasset Bay Assoc., 96 N.Y.2d 259, 267-268 [2001]; Ross v Curtis-Palmer Hydro-Elec Co., 81 N.Y.2d 494, 500 [1993]). For a defendant to be held liable under Labor Law § 240 (1), a plaintiffs injuries must be "the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Runner v New York Stock Exch., Inc., 13 N.Y.3d 599, 603 [2009]; see Wilinski, 18 N.Y.3d at 10). With respect to accidents involving falling objects, the "plaintiff must show more than simply that an object fell causing injury to a worker" (Narducci, 96 N.Y.2d at 268; see also Fabrizzi v 1095 Ave. of Ams., L.C.C., 22 N.Y.3d 658, 663 [2014]). A plaintiff must show that, at the time the object fell, it was "being hoisted or secured" (Narducci, 96 N.Y.2d at 268) or "required securing for the purposes of the undertaking" (Outar v City of New York, 5 N.Y.3d 731, 732 [2005]; see Quattrocchi v F.J Sciame Constr. Corp., 11 N.Y.3d 757, 758 [2008]) and that the object fell "because of the absence or inadequacy of a safety device of the kind enumerated in the statute" (Narducci, 96 N.Y.2d at 268; see Fabrizzi, 22 N.Y.3d at 663). "While a plaintiff is not required to present evidence as to which particular safety devices would have prevented the injury ... the risk requiring a safety device must be a foreseeable risk inherent in the work" (Niewojt v Nikko Constr. Corp., 139 A.D.3d 1024, 1027 [2d Dept 2016] [citation omitted]; see Carlton v City of New York, 161 A.D.3d 930, 932 [2d Dept 2018]; cf Fabrizi, 22 N.Y.3d at 663).
Here, plaintiff has demonstrated his prima facie entitlement to summary judgment on his Labor Law § 240 (1) cause of action through his deposition testimony that he was struck by the post that was dropped from three to four feet above his head by his coworker. Under these circumstances, plaintiffs testimony that the post was three to four feet above his head demonstrates that he was subject to physically significant elevation differential, even if the post weighed 66 to 77 pounds as asserted by Andrade, rather than the 99 to 110 pounds as asserted by plaintiff (see Wilinski, 18 N.Y.3d at 10; Outar, 5 N.Y.3d at 732; Tropea v Tishman Constr. Corp., 172 A.D.3d 450, 451 [1st Dept 2019], affirming 2017 WL 6731869, *2 [U] [Sup Ct, New York County 2017]; Rutkowski v New York Convention Ctr. Dev. Corp., 146 A.D.3d 686, 686 [1st Dept 2017]; Pritchard v Tully Constr. Co., Inc., 82 A.D.3d 730, 730-731 [2d Dept 2011]; Cardenas v One State St., LLC, 68 A.D.3d 436, 437-438 [1st Dept 2009]; Mendoza v Bayridge Parkway Assoc., LLC, 38 A.D.3d 505, 506 [2d Dept 2007]; cf. Rodriguez v Margaret Tietz Ctr. for Nursing Care, 84 N.Y.2d 841, 843-844 [1994]; Kuhn v Giovanniello, 145 A.D.3d 1457, 1458 [4th Dept 2016]). This evidence further demonstrates that the risks inherent in the work of lowering the posts by hand rendered the need for a section 240 (1) safety device foreseeable and that the post fell because of the absence of a safety device of the kind enumerated in the statute (see Albuquerque v City of New York, 188 A.D.3d 515, 515 [1st Dept 2020]; Barrios v 19-19 24th Ave. Co. LLC., 169 A.D.3d 747, 748-749 [2d Dept 2019]; Passos v Noble Constr. Group, LLC, 169 A.D.3d 706, 707-708 [2d Dept 2019]; Rutkowski, 146 A.D.3d at 686; Gikas v 42-51 Hunter St., LLC, 134 A.D.3d 987, 988 [2d Dept 2015]; Pritchard, 82 A.D.3d at 730-731; Mendoza, 38 A.D.3d at 506; see also McCallister v 200 Park, L.P., 92 A.D.3d 927, 928-929 [2d Dept 2012]). The fact that the post was being lowered by hand does not preclude recovery under Labor Law § 240 (1) (see Gutierrez v Harco Consultants Corp., 157 A.D.3d 537, 537-538 [1st Dept 2017]; Rutkowski, 146 A.D.3d at 686; Escobar v Safi, 150 A.D.3d 1081, 1083 [2d Dept 2017]; Gikas, 134 A.D.3d at 988; Pritchard, 82 A.D.3d at 730-731; Van Eken v Consolidated Edison Co. of N.Y., 294 A.D.2d 352, 353 [2d Dept 2002]; cf Outar v City of New York, 286 A.D.2d 671, 673 [2d Dept 2001], affd5 N.Y.3d 731 [2005]).
Plaintiffs have also shown that defendants are entities that may be held liable under Labor Law § 240 (1). Evergreen, as owner of the premises (see Gordon v Eastern Ry. Supply, 82 N.Y.2d 555, 560 [1993]), and Brooklyn GC, as the general contractor for the project (see McCarthy v Turner Constr., Inc., 17 N.Y.3d 369, 374 [2011]; Barker v Union Corrugating Co., 187 A.D.3d 1544, 1546 [4th Dept 2020]), are entities covered by the statute. Similarly, Magellan, which was hired by Brooklyn GC to perform the concrete superstructure work, and which subcontracted for Extreme to perform a portion of that work, acted as a statutory agent of Evergreen or Brooklyn GC with respect to such work, and it may be thus held liable despite its delegation of a portion of the work to Extreme and regardless of whether it actually exercised supervision or control of the work at issue (see White v 31-01 Steinway, LLC, 165 A.D.3d 449, 452 [1st Dept 2018]; Cabrera v Arrow Steel Window Corp., 163 A.D.3d 758, 759 [2d Dept 2018]; Gallagher v Resnick, 107 A.D.3d 942, 945 [2d Dept 2013]; Britez v Madison Park Owner, LLC, 106 A.D.3d 531, 532 [1st Dept 2013]; Weber v Baccarat, Inc., 70 A.D.3d 487, 488 [1st Dept 2010]; Inga v EBS N. Hills, LLC, 69 A.D.3d 568, 569-570 [2d Dept 2010]).
Contrary to the assertions of Evergreen and Brooklyn GC in their opposition papers, the need for a safety device is shown by plaintiffs testimony regarding the elevation differential at issue, the weight of the post, and the...
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