Perez v. ZZZ Carpentry, Inc.

• Decision Date: 13 May 2022
• Docket Number: Index No. 510843/2019
• Citation: 2022 NY Slip Op 31676 (U)
• Parties: OSIEL PEREZ and PAULINO CARREON, Plaintiff(s), v. ZZZ CARPENTRY, INC. and ANGELA SUN., Defendant(s) ZZZ CARPENTRY, INC., Third-Party Plaintiff, v. A.R. EQUIPMENT, LLC Third-Party Defendant,
• Court: New York Supreme Court

2022 NY Slip Op 31676(U)

OSIEL PEREZ and PAULINO CARREON, Plaintiff(s), v. ZZZ CARPENTRY, INC. and ANGELA SUN., Defendant(s)

ZZZ CARPENTRY, INC., Third-Party Plaintiff, v. A.R. EQUIPMENT, LLC Third-Party Defendant,

Index No. 510843/2019

Supreme Court, Kings County

May 13, 2022

Unpublished Opinion

DECISION AND ORDER

Karen B. Rothenberg, Judge

Recitation as required by CPLR 2219(a), of the papers considered in plaintiffs motion for summary judgment.

Papers Numbered

Order to Show Cause/Motion and Affidavits Annexed. 60-77

Answering Affidavits 112, 114, 116

Reply Papers………………………………………… 117

Memoranda of Law …………...…………...………… 78, 113, 118

Upon the foregoing cited papers, the Decision/Order on this motion is as follows:

In this action to recover damages for personal injuries arising out of a construction site accident, plaintiff Osiel Perez [Perez] moves for an order pursuant to CPLR 3212 granting him partial summary judgment on his Labor Law §§ 240(1) and 241(6) claims.

On July 23, 2018, Perez, an employee of third-party defendant A.R. Equipment LLC [A.R. Equipment], was allegedly injured due to a ceiling collapse at a 100-year-old townhouse that was under going a gut renovation located at 150 East 28^th Street, New York. At the time of this alleged accident, Perez and several of his coworkers were in the process of removing debris on the 4th floor of the townhouse when the partially demolished 4^th floor ceiling, which was not braced or shored, collapse d on them. On the date of the accident, the premises was owned by defendant Angela Sun [Sun] who retained ZZZ Carpentry Inc. [ZZZ] as the general contractor to perform the gut renovation of the townhouse. A.R. Equipment was the subcontractor retained by ZZZ to perform the demolition work for the project. Perez commenced this action against defendants ZZZ and Sun^[1] asserting causes of action for common-law negligence, and alleging violations of Labor Law §§ 200, 240(1), and 241(6)^[2].

Labor Law § 240 (1) imposes a nondelegable duty upon owners and contractors to provide certain safety devices to protect workers from elevation-related risks, and the absence of appropriate safety devices constitutes a violation of the statute as a matter of law (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494 [1993]; Barr v 157 5 Ave., LLC, 60 A.D.3d 796 [2d Dept 2009]). "In order for liability to be imposed under Labor Law §240(1), there must be 'a foreseeable risk of injury from an elevated-related hazard…, as defendants are liable for all normal and foreseeable consequences of their acts'" (Shipkoski v Watch Case Factory Assoc., 292 A.D.2d 587, 588 [2d Dept 2002]). "Thus, to establish a prima facie case pursuant to Labor Law § 240(1), a plaintiff must demonstrate that the risk of injury from an elevation-related hazard was foreseeable, and that an absent or defective protective device of the type enumerated in the statute was a proximate cause of the injuries alleged" (Shipkoski at 588).

Perez's testimony indicates that on the morning of the accident he and some of hi s co-workers were removing debris from the surface of the 4^th floor. The debris was from the demolition of the rear half of the 4^th floor ceiling that had occurred three to four days prior. While he and his co-workers were in the process of clearing the debris, the remaining front half of the 4^th floor ceiling suddenly collapsed on top of them. A.R. Equipm ent's foreman, Rodolfo Carino, who was also clearing debris at the time, testified that the front portion of the 4^th floor ceiling w as not braced, shored, or otherwise guarded, a nd that the only thing securing the ceiling were two by fou rs that remained from the existing wall of the structure. Mr. Carino acknowledged that after the rear portion of the ceiling was demolished, the remainder of the ceiling was wea kened. He also acknowledged that the existing pieces of wood were not able to s upport the ceiling. Mr. Carino testified that ceilings at demolitions sites should be secured at all times while workers are working underneath them, and that a par tially-demolished ceiling, that is not braced, reinforced, or secured, can collapse. John Sherman, who was the president and owner of ZZZ in 2018, testified that ZZZ did not brace, shore or place any device to secure any part of the 4^th floor ceiling for this project, and did not request that any other company do so. When shown pictures of the ceiling after its collapse, Mr. Sherman testified that the material used in the ceiling was not typical construction and that the ceiling itself had been attached in a way that did not provide it with adequate support.

Based on the above testimony, plaintiff establishes prima facie that his work on the 4^th floor exposed him to a foreseeable risk of injury from an elevation related hazard, and that absence of a type of safety device enumerated under Labor Law § 240(1) was a proximate cause of his injuries (cf, Paguay v Cup of Tea, LLC, 165 A.D.3d 964, 966 [2d Dept 2018]). In opposition, ZZZ fails to raise a triable issue of fact in order to defeat Perez's motion. Contrary to ZZZ's arguments, the witness testimonies are sufficient such that Perez does not have to offer an expert opinion on the issue of foreseeability in order to prevail on his Labor Law § 240(1) claim.

Labor Law § 241(6) imposes on owners and contractors a nondelegable duty to "provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed" (Lopez v. New York City Dept. of Envtl. Protection, 123 A.D.2d 982, 983 [2d Dept 2015]). To establish liability under Labor Law §241(6), "a plaintiff or claimant must demonstrate that his injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the case" (Aragona v State of New York, 147 A.D.3d 808, 809 [2d Dept 2017]). The predicate Industrial Code provision must "set[ ] forth specific safety standards" (Hricus v. Aurora Contrs., Inc., 63 A.D.3d 1004, 1005 [2d Dept 2009] [internal quotation marks omitted]. Here, Perez' cause of action alleging a violation of Labor Law §241(6) is predicated on alleged violations of Industrial Code (12 NYCRR) § 23-3.3(b)(3) and (c).

Industrial Code (12 NYCRR) § 23-3.3(b)(3) provides that "[w]alls, chimneys and other parts of any building or other structure shall not be left unguarded in such condition that such parts...