Salinas v. Pratt Inst.
| Citation | 2022 NY Slip Op 32696 (U) |
| Decision Date | 10 August 2022 |
| Docket Number | Index No. 506839/2018,Mot. Seq. 5,6,7 |
| Parties | DIEGO ERNESTO VELASCO SALINAS, Plaintiff, v. PRATT INSTITUTE, LPCIMINELLI INC., LPCIMINELLI CONSTRUCTION CORP, LPCIMINELLI INTERESTS, INC., LPCIMINELLI SOLUTIONS LLC, THORNTON TOMASETTI FOUNDATION, DHS FRACO LLC, AND ALL STAR CONCRETE AND MASON, INC., Defendants. PRATT INSTITUTE, LPCIMINELLI INC., LPCIMINELLI CONSTRUCTION CORP., LPCIMINELLI INTERESTS, INC., AND LPCIMINELLI SOLUTIONS LLC, Third-Party Plaintiffs, v. ECI CONTRACTING, LLC, Third-Party Defendant. ECI CONTRACTING, LLC, Second Third-Party Plaintiff, v. ALL STAR CONCRETE AND MASON, INC., Second Third-Party Defendant. ECI CONTRACTING, LLC, Third Third-Party Plaintiff, v. R&D CONSTRUCTION/REN CORP., Third Third-Party Defendant. ALL STAR CONCRETE AND MASON, INC., Fourth Third-Party Plaintiff, v. R&D CONSTRUCTION/REN CORP., Fourth Third-Party Defendant. PRATT INSTITUTE, LPCIMINELLI INC., LPCIMINELLI CONSTRUCTION CORP., LPCIMINELLI INTERESTS, INC., LPCIMINELLI SOLUTIONS LLC, Fifth Third-Party Plaintiffs, v. R&D CONSTRUCTION/REN CORP., Fifth Third-Party Defendant. |
| Court | New York Supreme Court |
2022 NY Slip Op 32696(U)
DIEGO ERNESTO VELASCO SALINAS, Plaintiff,
v.
PRATT INSTITUTE, LPCIMINELLI INC., LPCIMINELLI CONSTRUCTION CORP, LPCIMINELLI INTERESTS, INC., LPCIMINELLI SOLUTIONS LLC, THORNTON TOMASETTI FOUNDATION, DHS FRACO LLC, AND ALL STAR CONCRETE AND MASON, INC., Defendants.
PRATT INSTITUTE, LPCIMINELLI INC., LPCIMINELLI CONSTRUCTION CORP., LPCIMINELLI INTERESTS, INC., AND LPCIMINELLI SOLUTIONS LLC, Third-Party Plaintiffs,
v.
ECI CONTRACTING, LLC, Third-Party Defendant.
ECI CONTRACTING, LLC, Second Third-Party Plaintiff,
v.
ALL STAR CONCRETE AND MASON, INC., Second Third-Party Defendant.
ECI CONTRACTING, LLC, Third Third-Party Plaintiff,
v.
R&D CONSTRUCTION/REN CORP., Third Third-Party Defendant.
ALL STAR CONCRETE AND MASON, INC., Fourth Third-Party Plaintiff,
v.
R&D CONSTRUCTION/REN CORP., Fourth Third-Party Defendant.
PRATT INSTITUTE, LPCIMINELLI INC., LPCIMINELLI CONSTRUCTION CORP., LPCIMINELLI INTERESTS, INC., LPCIMINELLI SOLUTIONS LLC, Fifth Third-Party Plaintiffs,
v.
R&D CONSTRUCTION/REN CORP., Fifth Third-Party Defendant.
Index No. 506839/2018, Mot. Seq. # 5, 6, 7
Supreme Court, Kings County
August 10, 2022
Unpublished Opinion
PRESENT: HON. DEBRA SILBER, JUSTICE
DECISION/ORDER
DEBRA SILBER, JUDGE
The following e-filed papers read herein:
NYSCEF Doc Nos.
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed
157-158, 160-195, 196-241, 243-259
Opposing Affidavits (Affirmations)
276-287, 312-316, 318, 288-311, 333-334, 336-338, 339-340, 342-344 347-354, 356-359, 360, 362-366, 367-369, 371-373, 375-382
Reply Affidavits (Affirmations)
391, 392-394
Upon the foregoing papers, plaintiff Diego Ernesto Velasco Salinas (Salinas) moves (in motion sequence [mot. seq.] five) for an order, pursuant to CPLR 3212 and Labor Law §§ 240 (1) and 241 (6), granting him summary judgment on the issue of liability against defendants/third-party plaintiffs Pratt Institute (Pratt), LPCiminelli Inc. (LPCI, and, together with Pratt, the Owners), LPCiminelli Construction Corp., LPCiminelli Interests Inc., LPCiminelli Solutions LLC (collectively, the LPC Defendants) and All Star Concrete and Mason, Inc. (All Star).[1]
The LPC Defendants move (in mot. seq. six) for an order, pursuant to CPLR 3212 and 3215: (1) awarding them summary judgment dismissing all claims, cross-claims and counterclaims asserted against LPCiminelli Interests, LPCiminelli Solutions, and LPCiminelli Construction Corp., dismissing Salinas' Labor Law §§ 200 and 241 (6) and common-law negligence claims asserted against Pratt and against them, dismissing all claims, cross-claims and counterclaims asserted by DHS Fraco, third-party defendant ECI and defendant and third-party defendant All Star against Pratt and against them; (2) awarding summary judgment in favor of Pratt and them on their claims for contractual and common law indemnification asserted against third-party defendant/third-party plaintiff ECI Contracting, LLC (ECI) and All Star, or, alternatively, "awarding conditional summary judgment on any or all of those claims"; and (3) awarding them a default judgment on their cross-claims and third-party
claims asserted against third-party defendant R&D Construction/Ren Corp. (R&D), and scheduling an inquest on damages.
Third-party defendant/third-party plaintiff ECI moves (in mot. seq. seven) for an order, pursuant to CPLR 3212: (1) awarding it partial summary judgment on its claims for contractual indemnification and breach of contract against All Star, and (2) granting it summary judgment dismissing the common-law indemnification and contribution claims asserted against it, All Star's counterclaim for contractual indemnification, Pratt's claims for breach of contract, the LPC Defendants' claims and Salinas' Labor Law § 241 (6) claim.
Background
On April 5, 2018, Salinas commenced this action by filing a summons and a verified complaint against all defendants except defendant All Star alleging that on February 12, 2018, he suffered an injury while installing and removing concrete wall forms in the building then under construction at 135 Emerson Place in Brooklyn (Premises). The record shows that Pratt owns the Premises and hired LPCI as the construction manager and general contractor to oversee the construction of a ten-story dormitory building. LPCI then hired ECI to perform concrete foundation work; later, the contract was amended by a change order to include superstructure work. ECI then subcontracted the work to All Star, which, in turn, subcontracted the work to R&D, plaintiff Salinas' employer.
On February 12, 2018, Salinas was tasked with removing forms (the equipment used to shape concrete walls; wet concrete is poured between the forms, it then solidifies into a wall) on or near the fifth floor of the building under construction. As relevant here, Salinas
was equipped with a safety harness, which had metal chains with hooks on the ends, and a safety line.[2] Removing forms involved removing the pins that held the forms in place; Salinas would remove each pin until the form became loose. There were several forms at each level, and Salinas explained that while he removed the pins from one form, his chains and hooks would be attached to the form (ostensibly still secured by pins) which was adjacent to it. After the pins were removed from a form, a co-worker would lift the loose form away from the wall.
The accident occurred while Salinas had his chain and hooks attached (also referred to as "tied off") to a form adjacent to a form which he had just finished removing the securing pins from. His co-worker, Hugo Duarte, had just finished lifting the form that Salinas had worked on. Salinas believed that the form which his chain and hooks were attached to was still secured by its pins - however, the form which Salinas was attached to suddenly fell; Salinas fell with it and struck a wooden platform approximately five stories below. Salinas suffered injuries, including a fractured pelvis, as a result.
The pleadings allege that the defendants violated Labor Law §§ 240 (1) and 241 (6), as well as certain applicable provisions of the Industrial Code (12 NYCRR Ch 1, sub. A) by, essentially, failing to provide Salinas with adequate protection against falling. Specifically, Salinas claims that attaching his chains and hooks to the form next to the one which he was working on was the accepted - but, for safety purposes, insufficient - practice among his co-workers
and supervisors. He asserts that, although he had a tail line to prevent falls, there was no adequate safe anchor point to attach it to. Also, Salinas continues, the record suggests that ECI was responsible for installing a fall-protection system with anchor points (referred to as "D-rings") attached to secure structures, but failed to do so. Salinas also points out the absence of any safety nets around the building under construction. In sum, Salinas concludes that defendants' failure to adequately protect him against falling violated both Labor Law § 240 (1) and 241(6), and the applicable provisions of the Industrial Code.
Salinas further alleges causes of action based on Labor Law § 200 and common-law negligence. The complaint alleges that defendants are owners, contractors or agents thereof, and therefore, are vicariously liable for violations of the Labor Law and the common-law duty of care without regard to fault or responsibility. Salinas argues that these Labor Law violations and negligent acts or omissions proximately caused his personal injuries. Salinas states that there is no serious dispute that he was on a construction site performing construction work.[3] Accordingly, Salinas seeks damages against defendants for these violations.
Defendants interposed answers, and discovery, motion practice and third-party practice ensued. As relevant here, the third-party claims involve indemnification (contractual and common-law), contribution and breach of the covenant to purchase and maintain insurance coverage. Also, by supplemental summons and amended complaint, plaintiff added All Star as a direct defendant; the LCP Defendants subsequently asserted indemnification,
contribution and breach of covenant to purchase and maintain insurance coverage causes of action as cross claims against All Star. On June 10, 2021, Salinas 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.
Salinas' Partial Summary Judgment Motion
Salinas, in support of his motion for partial summary judgment against defendants on the issue of liability pursuant to Labor Law § 240 (1) and § 241 (6), asserts that he is entitled to judgment as a matter of law with respect to Labor Law § 240 (1) because he was injured as the result of an elevation-related risk while performing protected work. Specifically, plaintiff points out that it is undisputed that he was removing forms from the side of the subject building while he was five stories above ground level. He claims that, therefore, pursuant to Labor Law § 240 (1), defendants had a non-delegable duty to ensure that he was given "proper protection" against the risk of falling. Here, Salinas continues, "proper protection" would have consisted of anchored safety lines, D-rings and/or straps that he could have used to tie off to. Salinas suggests that, given the absence of adequate fall protection, he would attach his chain and hook to one of the nearby forms.[4] Moreover, Salinas testified that while he also had a tail line in addition to his chain and hook, there was nothing to hook the tail line to in the area where his accident occurred. Anticipating a claim that he should have used a nearby rebar to anchor himself, Salinas contends instead...
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