Parada-Sanabria v. 14. So. Williamsport Holdings LLC

• Court: New York Supreme Court
• Writing for the Court: HONORABLE CHEREÉ A. BUGGS, JUSTICE
• Citation: Parada-Sanabria v. 14. So. Williamsport Holdings LLC, 2021 NY Slip Op 34270(U), Index No. 707113/2020, Motion Seq. No. 2 (N.Y. Sup. Ct. Jun 04, 2021)
• Docket Number: Index No. 707113/2020,Motion Seq. No. 2
• Decision Date: 04 June 2021
• Parties: JHONATAN PARADA-SANABRIA, Plaintiff, v. 14. SO. WILLIAMSPORT HOLDINGS LLC, SERRAS CONTRACTING CORP., AQUEDUCT MECHANICAL CORP., PRATT CONSTRUCTION & RESTORATION INC., and SPRING SCAFFOLDING, LLC, Defendants.

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2021 NY Slip Op 34270(U)

JHONATAN PARADA-SANABRIA, Plaintiff, v. 14. SO. WILLIAMSPORT HOLDINGS LLC, SERRAS CONTRACTING CORP., AQUEDUCT MECHANICAL CORP., PRATT CONSTRUCTION & RESTORATION INC., and SPRING SCAFFOLDING, LLC, Defendants.

Index No. 707113/2020, Motion Seq. No. 2

Supreme Court, Queens County

June 4, 2021

Unpublished Opinion

Motion Date: May 19, 2021

Present: HONORABLE CHEREÉ A. BUGGS Justice

HONORABLE CHEREÉ A. BUGGS, JUSTICE

The following numbered papers 33-55 submitted and considered on this motion by defendant Serras Contracting Corp, (hereinafter "Serras") seeking summary judgment pursuant to Civil Practice Law and Rules (CPLR) 3211 (a)(1) dismissing plaintiff Jhonatan Parada-Sanabria's (hereinafter "Jhonatan") complaint against it upon the grounds that a defense is founded upon documentary evidence; pursuant to CPLR 3211 (c) treating this motion as one for summary judgment and dismissing plaintiff's complaint; pursuant to 22 NYCRR 130-1.1 and CPLR 8303-a issuing costs and sanctions against plaintiff.

Papers Numbered

Notice of Motion-Affidavits-Exhibits........ EF 33-50

Answering Affidavits-Exhibits ................ EF 51-53

Reply Affidavits-Exhibits......................... EF 54-55

Upon the foregoing papers, it is ordered that the motion is determined as follows:

On August 30,2019 Jhonatan allegedly sustained injuries while he was dismantling a sidewalk bridge at a construction site located and known as 225 West 34^th Street, City County and State of New York. At the time of the occurrence Jhonatan was employed by RHG Manpower Inc. Jhonatan claimed that he was taking down a sidewalk bridge which had been constructed around the building when he was injured. Jhonatan initiated this lawsuit on June 9, 2020. Co-defendant 14 So. Williamsport Holdings, LLC (hereinafter "Williamsport") appeared in the action with the filing of an answer to the verified complaint on July 17, 2020. Pursuant to a stipulation to extend the time to answer dated July 23, 2020, Serras' time to appear in the matter was extended up to and including August 24, 2020. Serras filed a verified answer with cross claims on August 10, 2020. By Order of the undersigned dated January 6, 2021 the matter was consolidated with Index number 715022/2020 for all purposes.

In support of the motion Serras submitted the pleadings; the affirmation of Mehreen Hayat, Esq dated March 16, 2021; the affidavit of Michael Serras dated March 5, 2021; Jhonatan's verified bill of particulars dated August 17, 2020; the undersigned's Consolidation Order dated January 6, 2021; September 15, 2017, February 19, 2019 and August 20,2019 contracts between Williamsport and Serras; Serras' construction schedule dated July 8, 2019; correspondence from Spring Scaffoldings; an after-hours variance permit issued to Spring Scaffoldings dated August 22, 2019; deed to the project premises dated August 23, 2007; Serras' Alteration Type 2 Permit; correspondence to plaintiff's counsel seeking discontinuance; and, its Memorandum of Law.

Jhonatan's Verified Bill of Particulars

Jhonatan alleged in his verified bill of particulars dated August 17, 2020 claims under the Labor Law against defendants. He claimed that defendants were negligent in among other things, the defendants allowed steel beams to collapse or fall; failed to make repairs to the steel beam; negligently allowed the dangerous and defective condition to remain; failed to warn or provide him with overhead protection. Jhonatan's makes claims under Labor Law 200, 240(1) and 241(6), and, Industrial Code sections 23-1.2(a), 23-1.2(e), 23-1.5(a), 23-1.7(a), 23-5 et seq., 23-6.1 et seq.

Affidavit of Michael Serras

Serras submitted the affidavit of its President Michael Serras dated March 5, 2021. On or about February 19, 2019 on behalf of Serras, he entered into a contract with Williamsport for interior demolition and renovation for the 19^th and 20^th Floors of 225 W. 34^th Street, New York, New York 10122. The project was called Prager Metis 1920 since Prager Metis was the tenant on those floors. On or about August 20, 2019 he entered into another contract on behalf of Serras with Williamsport for a project at the subject premises where Serras was hired to do interior demolition and renovation for project Prager Phase III on the 18^th floor of the building and a project referred to as Albanese, which referred to work to be performed on the 14^th floor of the building. On August 30, 2019, Jhonatan's alleged date of the accident, he claimed that Serras was wrapping up its work on the Prager Metis 1920 Project, and that the work had not commenced on the Prager Phase III or Albanese projects. Pursuant to its construction schedule, the week of August 26, 2019, Serras was performing work on the 20^th Floor of Prager Metis and was installing units, lighting and glass. Also, Jhonatan claimed that he sustained injury on August 30, 2019 at 4 A.M. when he was struck by a steel beam. Serras claimed it performed and completed its work on August 29, 2019 at approximately 4 P.M. and did not return until August 30, 2019 until approximately 7 A.M. He stated that Serras did not have an after-hours variance permit to perform any work at the time of Jhonatan's accident. Further, Serras did not require the use of any steel beams for its work during the week of August 26, 2019, and, there is no way any of the equipment which Serras was using could have fallen on anyone outside of the building at 4 A.M. Therefore, it is not possible that Jhonatan's accident could have resulted from Serras' work, and, Jhonatan's claims should be dismissed against it.

Discussion

To grant summary judgment, it must clearly appear that there are no material issues of fact (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 [1957]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to eliminate any material issues of fact from the case (Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980]; Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 [1957]). Furthermore, "[a] motion for summary judgment 'should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" (Ruiz v Griffin, 71 A.D.3d 1112 1112 [2d Dept 2010], quoting Scott v Long Is. Power Auth., 294 A.D.2d 348 [2d Dept 2002]; see also Benetatos v Comerford, 78 A.D.3d 750 [2d Dept 2010]; Lopez v Beltre, 59 A.D.3d 683, 685 [2d Dept 2009]; Baker v D.J. Stapleton, Inc., 43 A.D.3d 839 [2d Dept 2007]).

Where there are no material and triable issues of fact, the motion for summary judgment should be granted....[t]he party making the motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by offering sufficient evidence to demonstrate the absence of any material issue of fact and the party must do so by tender of evidentiary proof in admissible form." (See Dougherty v Kinard, 215 A.D.2d 521 [2d Dept 1995]; see also Friends of Animals, Inc. v Assoc. Fur Mfrs., 46 N.Y.2d 1065 [1979].)

To succeed on a motion to dismiss pursuant to CPLR 3211 (a)(1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim." (Teitler v Pollack & Sons, 288 A.D.2d 302 [2d Dept 2001]; see also Held v Kaufman, 91 N.Y.2d 425 [1998]; Hoeg Corp, v Peebles Corp, 153 A.D.3d 607 [2d Dept 2017]). "To qualify as documentary evidence, the evidence 'must be unambiguous and of undisputed authenticity'" (Fontanetta v Doe, 73 A.D.3d 78 [2d Dept 2010]). "Judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other paper, the contents of which are essentially undeniable,' qualify as documentary evidence in proper cases..." (Hartnagel v FTW Contr., 147 A.D.3d 819 [2d Dept 2017]).

"Under CPLR 3211 a trial court may use affidavits in its consideration of a pleading" (see Rovello v Orofino Realty Co., Inc., 40 N.Y.2d 633 [1976]). Letters are not considered documentary evidence (see Fontanetta v Doe, 73 A.D.3d 78 [2d Dept 2010]; see also Anderson v Armentano, 139 A.D.3d 769 [2d Dept 2016]).

"A motion to dismiss a complaint pursuant to CPLR 3211 (a)(1) may be granted only if the documentary evidence submitted by the defendant utterly refutes the factual allegations of the complaint and conclusively establishes a defense as a matter of law...[i]n order for evidence to qualify as documentary it must be unambiguous, authentic and undeniable." (See Granada Condominium III Assn, v Palomino, 78 A.D.3d 996 [2d Dept 2010] [internal citations omitted].)

Dismissal is warranted under CPLR 3211 (a) (7) if the facts alleged in the complaint do not fit within any cognizable legal theory (see generally Hecht v Andover Assocs. Mgmt. Corp., eta!., 114 A.D.3d 638 [2d Dept 2014]; G.L. v Markowitz, 101 A.D.3d 821 [2d Dept 2012]; Salvatore v Bd. of Educ. of Mineola Union Free School Dist., 89 A.D.3d 1078 [2d Dept 2011]; Treeline 1 OCR, LLC v Nassau County Indus. Dev. Agency, 82 A.D.3d 748 [2d Dept 2011]).

An owner and general contractor are vicariously liable for any injuries sustained by a worker on its premises when there is a violation of Labor Law §240 (1) and 241(6). (See Rizzuto v L.A Wenger Contr. Co., Inc., 91 N.Y.2d 343 [1998].) A general contractor can meet its prima facie burden with regard to Labor Law §240 (1), by submitting sufficient evidence to show that there was no elevation-related risk which calls for any protective devices of the type enumerated in the statute. (See Bond v York...