RS JZ Driggs LLC v. Concrete Courses Concepts Corp.
| Docket Number | Index No. 505351/2020,Motion Sequence No. 3,4,5 |
| Decision Date | 14 June 2023 |
| Citation | 2023 NY Slip Op 31997 (U) |
| Parties | RS JZ Driggs LLC, RS JZ Driggs Holdings, LLC, Redsky Capital, LLC, and Foremost Contracting and Building, LLC, Third-Party Plaintiffs, v. Concrete Courses Concepts Corp., Third-Party Defendant. Valdete Ferreira-Mendes, Plaintiff, v. RS JZ Driggs, LLC, RS JZ Driggs Holdings, LLC, Redsky Capital, LLC, Common Ground Management Corporation, Foremost Contracting and Building, LLC, and Foremost Contracting, LLC, Defendants. RS JZ Driggs LLC, RS JZ Driggs Holdings, LLC, REDSKY CAPITAL, LLC, AND FOREMOST CONTRACTING AND BUILDING, LLC, Third-Party Plaintiffs, v. CONCRETE COURSES CONCEPTS CORP., Third-Party Defendant. |
| Court | New York Supreme Court |
Unpublished Opinion
At an IAS Term, Part 9 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 14th day of June, 2023.
PRESENT: HON. DEBRA SILBER, Justice.
DECISION/ORDER
The following e-fded papers read herein: NYSCEF Doc Nos.
Notice of Motion/Cross Motion and Affidavits (Affirmations) Annexed 44-61, 62-72, 73-99
Reply Affidavits (Affirmations) 121-127, 128-132 Upon the foregoing papers, plaintiff Valdete Ferreira-Mendes moves (in motion sequence [mot. seq.] 3) for an order, pursuant to CPLR 3212, granting him partial summary judgment against defendants/third-party plaintiffs RS JZ Driggs, LLC (Owner or RS JZ Driggs) and Foremost Contracting and Building, LLC (Foremost) on the issue of liability pursuant to Labor Law § 240 (1) and against Foremost only on the issue of liability pursuant to Labor Law § 200 and common-law negligence. Defendants/third-party plaintiffs RS JZ Driggs RS JZ Driggs Holdings, LLC, Redsky Capital, LLC, and Foremost (collectively, defendants) move (in mot. seq. 4) for an order, pursuant to CPLR 3212, granting them partial summary judgment dismissing plaintiffs Labor Law § 200 and common-law negligence claims; and granting them summary judgment on their claims for contractual and commonlaw indemnification against third-party defendant Concrete Courses Concepts Corp. (CCC). Lastly, CCC moves (in mot. seq. 5) for an order, pursuant to CPLR 3212, granting it summary judgment dismissing plaintiffs complaint and all third-party claims.[1]
Plaintiff commenced this action by electronically filing a summons and a verified complaint with this court on March 3, 2020. As relevant to the instant motions, the pleadings indicate that on July 11, 2019, plaintiff was employed by CCC as a carpenter and sustained injuries while stripping forms from a wall[2] while working on a six-story building under construction at 625 Driggs Avenue in Brooklyn. Specifically, plaintiff claims that the accident occurred while he stood on the sixth step of an A-frame ladder, approximately four feet above the third floor, while removing the forms.[3] Plaintiff asserts that the accident occurred when he grasped the bottom of the plywood form to remove it. As he pulled on it, an approximately two-and-a-half inch piece of concrete fell from the top of the form and struck the protective goggles plaintiff wore and his right eye. Despite the goggles, plaintiff states the concrete injured his eye, because the position of his head at the time enabled the concrete to fall between the goggles and his face. Moreover, he claims that, after he was struck, the unsecured ladder upon which he was standing shifted, causing him to lose his balance, fall from the ladder and strike the floor, and sustain additional injuries.
The record shows that at all relevant times, RS JZ Driggs owned the subject premises, and hired Foremost as general contractor to oversee the construction of a six-story building thereon. Foremost retained plaintiffs employer, CCC, to perform concrete superstructure work. The pleadings allege that defendants violated Labor Law §§ 240 (1) and 241 (6), as well as certain specified provisions of the Industrial Code (12 NYCRR Ch 1, sub. A), by failing to provide plaintiff with adequate protection against the risk of falling from a height and the risk of being struck by a falling object. Additionally, the pleadings assert that the ladder provided, which was unsecured, constituted insufficient protection against workplace falls. Plaintiff also alleges that the goggles provided did not adequately protect his eyes from the risk of falling objects. Plaintiff asserts that, although he wore a safety harness and lanyard to prevent falls, there was no safe anchor point to attach or tie it off to. In sum, plaintiff concludes that defendants' failure to adequately protect him from falling from a height and from being struck by falling objects violated Labor Law § 240 (1) and § 241 (6).
With regard to Labor Law § 200 and common-law negligence, plaintiff claims that Foremost is vicariously liable for violating Labor Law § 200 and the common-law duty of care, without regard to fault or responsibility. Plaintiff avers in his complaint that these Labor Law violations and negligent acts or omissions proximately caused his personal injuries. Lastly, plaintiff states that there is no dispute that he was on a constriction site performing construction work. Accordingly, plaintiff seeks damages against defendants for these violations.
After the defendants answered the complaint, discovery, motion practice, and the commencement of a third-party action followed. As relevant here, the third-party claims involve indemnification, both contractual and common-law, contribution, and breach of contract, specifically referring to the covenant to purchase and maintain insurance coverage. On June 28, 2022, plaintiff filed a note of issue with a trial by jury demand, certifying that discovery is complete and that this matter is ready for trial. The instant motions for summary judgment ensued.
In support of the instant motion, plaintiff initially argues that the record demonstrates that Labor Law § 240 (1) was violated, and that said violation proximately caused his injuries. Plaintiff claims that it is undisputed that an unsecured piece of concrete fell from an elevated height striking him in the eye, and that, consequently, he then fell from an unsecured A-frame ladder that shifted underneath him. Plaintiff also contends that the statute required the defendants, owner and contractor, to have provided him with protective equipment against both the risk of falling and the risk of being struck by a falling object. Plaintiff asserts that these facts demonstrate that the statute was violated and that the violation proximately caused his injuries.
Plaintiff asserts that he was employed by CCC as a carpenter in connection with the concrete superstructure work at the subject building. Plaintiff also asserts that immediately prior to the accident, he was removing (stripping) previously-installed concrete forms used to construct the superstructure. Plaintiff argues that, for purposes of Labor Law § 240 (1), he was a protected worker performing a protected activity. Accordingly, plaintiff conclude that the defendants were required to provide him with proper protection against elevation-related risks he might encounter while performing his work. Lastly, plaintiff emphasizes that this duty to provide proper protection is non-delegable, and defendants, as statutorily defined "owner" and "contractor," are subject to absolute vicarious liability for the breach of this duty without regard to responsibility or fault.
Regarding the ladder, plaintiff contends that it was not secured (i.e., not tethered, bolted or held by a co-worker) when he was removing the forms and associated material from the concrete wall. He emphasizes that although he wore a safety harness and lanyard, there was no place to attach his lanyard to so that he could employ this fall arrest system.
Plaintiff also contends that it is undisputed that the ladder shifted underneath him immediately after he was struck by the piece of concrete. Plaintiff claims that this caused both him and the ladder to fall to the ground, and argues that because the unsecured ladder failed to remain steady and erect, or to otherwise perform its function in supporting him, the defendants violated § 240 (1) by failing to supply an appropriate and properly placed safety device to protect plaintiff against the risk of falling.
Plaintiff avers that appellate courts have held that, in the construction context, when a protected worker who was using a ladder shows that the ladder was unsecured and shifted causing the worker to fall, a prima facie Labor Law § 240 (1) case is established. Plaintiff emphasizes that he is not required to prove that the unsecured ladder was defective to establish his prima facie entitlement to judgment as a matter of law on his Labor Law § 240 (1) claim. Accordingly, plaintiff reasons that the defendants, to avoid liability, must demonstrate that he was either a recalcitrant worker or that his own unwise actions were the sole cause of the accident. Plaintiff contends that there is no evidence herein that he committed any wrongful act or omission, and as such, there is no material issue of fact. In sum, plaintiff concludes, the defendants' breach of the nondelegable duty imposed by Labor Law § 240 (1), the duty to provide him with a properly secured ladder that would have allowed him to safely perform his work at an elevated height, was a proximate cause of his fall and resulting injuries. For these reasons, plaintiff concludes that his motion should be granted insofar as it seeks summary judgment on the issue of defendants'...
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