Romero v. Evergreen Gardens II LLC
| Decision Date | 28 February 2022 |
| Docket Number | Index 512903/18 |
| Citation | 2022 NY Slip Op 30671 (U) |
| Parties | ALAN CRISTIAN ROMERO, Plaintiff, v. EVERGREEN GARDENS II LLC and BROOKLYN GC LLC, Defendants. EVERGREEN GARDENS II LLC and BROOKLYN GC LLC, Third-Party Plaintiff, v. RELIABLE MASONRY CORP., Third-Party Defendant. |
| Court | New York Supreme Court |
DECISION/ORDER
Hon Ingrid Joseph, Supreme Court 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
116-118, 175, 199.200-205
Affidavits/ Affirmations in Reply
207.215-216
Other Papers (Copies of papers re: Bankr. Stay)
In this labor law dispute, defend ants/third-party plaintiffs Evergreen Gardens II LLC ("Evergreen") and Brooklyn GC, LLC ("Brooklyn GC"), move for an order pursuant to CPLR § 3212, (1) granting them summary judgment dismissing plaintiffs claims sounding in common-law negligence and violations of Labor Law §§ 200 and 241 (6), and (2) granting summary judgment in their favor against third-party defendant Reliable Masonry Corp. ("Reliable") on their contractual indemnification, common-law indemnification, contribution and breach of contractual insurance procurement requirements claims (Motion Seq. 3). Plaintiff, Alan Cristian Romero ("plaintiff) cross-moves for an order, (1) pursuant to CPLR § 3212, granting partial summary judgment in his favor on his Labor Law §§ 240 (1) and 241 (6) causes of action, and (2) pursuant to CPLR § 5015, vacating any prior default on the motion (Motion Seq. 5).[1]
Plaintiff claims arc premised upon common-law negligence and violations of Labor Law §§ 200, 240 (1) and 241 (6) based on an accident that occurred September 14, 2017, when he was struck on the head by two bricks that fell directly from above where he was standing. Evergreen was the owner of the work site and it hired Brooklyn GC to act as the general contractor for the construction of an eight-story mixed use commercial and residential building. Pursuant to a written contract, Brooklyn GC thereafter hired Reliable as the masonry contractor to install the building's brick facade. Plaintiff was employed by Reliable as a mason.
According to plaintiffs deposition testimony, on the day of the accident, plaintiffs work involved laying bricks on the seventh floor of the building. Plaintiff did this work while standing on a mast climber, which is a kind of scaffold that can move up and down the face of a building. When it came time for plaintiff and his coworkers to take their lunch break, plaintiff asserts that the layer of bricks he had completed was mortared into position and that there were no loose bricks in the area where he had been working. In order to take their lunch break, plaintiff and his coworkers lowered the mast climber to the second floor. After the lunch break, plaintiff stood on the mast climber, which was still at the second floor, waiting for bricks and mortar to be loaded onto it before returning to the seventh floor to continue working. While he was waiting on the mast climber, plaintiff was struck on the head with two bricks that fell from above. Plaintiff did not see the bricks until after they hit him.[2]
In his deposition testimony, Moshe Blum, Brooklyn GC's construction superintendent, stated that he observed the bricks fall and hit plaintiff and that, at the time plaintiff was struck, plaintiff was ascending to the seventh floor on the mast climber. According to Blum, at the time of the accident, no one was working in the area from where the bricks fell.[3] Blum did state, however, that Reliable's work was approaching the safety netting and guardrails located around the parapet, and that this safety material had to be removed before Reliable could finish its work. According to Blum, prior to the date of the accident, he had observed that Reliable employees had, on occasion, left unsecure, loose bricks on the worksite, and that, after the accident, he went to the seventh floor, and observed some loose bricks at the top of the brick work. While Blum conceded that he did not witness what actually caused the bricks to fall, he opined that it was vibrations from the mast climber that caused the loose bricks to fall.
In contrast, Leonardo Simon, a Reliable supervisor, asserted in an affidavit submitted in opposition that, in his experience, a mast climber would not have caused enough vibration to dislodge a brick, even one used to hold a "masonry twig" of a "masonry line" in place.[4] Simon asserts that, although he did not witness the accident, a few minutes prior to the accident, he observed a worker, who was not employed by Reliable, removing poles and netting from an area directly above the seventh-floor area where plaintiff had been installing bricks and above where plaintiff was struck by the bricks.
Initially, Evergreen and Brooklyn GC contend that plaintiffs cross motion and opposition to their motion, which were not served and filed until December 23, 2020, cannot be considered because plaintiff failed to comply with the time constraints of a November 25, 2020 order that, in adjourning the return date of the motion to January 6, 2021, required plaintiff to file opposition to defendant's motion on or before December 9, 2020. Plaintiffs delay in opposing defendants' summary judgment motion, however, has no bearing on consideration of plaintiff's cross-motion for summary judgment because the November 25, 2020 order set no time limit for plaintiff to move for summary judgment, [5] and because plaintiffs motion was timely under CPLR 3212 (a) and local court rules since the note of issue that was filed on December 11, 2020 was thereafter vacated by an order (Knipel, J.) dated January 25, 2021 (see Wells Fargo Bank, NA v Apt, 179 A.D.3d 1145, 1146-1147 [2d Dept 2020]).[6] The court will also consider plaintiffs opposition to defendants' motion because plaintiff has sufficiently detailed a reasonable excuse for his delay based on a law office failure in assigning counsel to submit the opposition papers, and defendants have not been prejudiced by the delay as they received additional time to submit their reply and opposition papers (see Stango v Byrnes, 200 A.D.3d 821, 822-823 [2d Dept 2021]; Garcia v City of New York, 189 A.D.3d 788, 789 [2d Dept 2020]).[7]
Labor Law § 240 (1)[8] imposes absolute liability on owners and contractors or their agents when they fail to protect workers employed on a construction site from injuries proximately caused by risks associated with falling from a height or those associated with falling objects (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). For 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).[9]
The primary evidence before the court regarding the falling bricks comes from the testimony and affidavits from plaintiff, Blum, Brooklyn GC's superintendent, and Simon, a Reliable supervisor.[10] A juror might be able to infer from Blum's assertions, made in his affidavit and deposition testimony, that Reliable workers had left unsecured bricks lying around that could have come loose as a result of vibrations from the mast climber. Similarly, Simon's assertions that he observed a worker removing perimeter protection from an area above where plaintiff was working might allow an inference that this worker dislodged the bricks at issue. The assertions of Blum regarding the presence of unsecured bricks and those of Simon regarding the work being performed above plaintiffs location might support an inference that some sort of securing device or overhead protection was necessary under the circumstances (see Hewitt v NY 70th St., LLC, 187 A.D.3d 574, 574-575 [1st Dept 2020]; Garcia v SMJ210 W.18 LLC, 178 A.D.3d 473, 473 [1st Dept 2019]; Passos v Noble Constr. Group, LLC, 169 A.D.3d 706, 707-708 [2d Dept 2019]; Wellington v Christa Constr. LLC, 161 A.D.3d 1278, 1280-1281 [3d Dept 2018]: Cortes v Jing Jeng Hang, 143 A.D.3d 854, 855 [2d Dept 2016]; Stawski v Pasternack, Popish & Reif, P.C., 54 A.D.3d 619, 620 [2d Dept 2008]).
In contrast, plaintiff in his own testimony, stated that he and his coworkers had mortared all the bricks into the wall and left no unsecured bricks where they had been working on the 7th floor are facts that weigh against finding that a Labor Law § 240 (1) safety device would have been necessary or expected to secure the bricks (see Carlton v City of New York, 161 A.D.3d 930, 933 [2d Dept 2018]; Gonzalez v ¶M Constr. Corp., 87 A.D.3d 610, 611 [2d Dept 2011]; Marin v AP...
To continue reading
Request your trial