Tenemaza v. PS 488 Grp.

• Decision Date: 28 March 2023
• Docket Number: Index No. 512605/2018,Motion Sequence No. 7
• Parties: JULIO TENEMAZA, Plaintiff, v. PS 488 GROUP LLC, GALIL PS 488 LLC, HAPPY LIVING DEVELOPMENT LLC, and PARK SLOPE 488 DEVELOPMENT LLC, Defendants. PS 488 GROUP LLC, GALIL PS 488 LLC, and HAPPY LIVING DEVELOPMENT LLC, Third-Party Plaintiffs, v. HYBRID FRAMING & INTERIORS INC., Third-Party Defendant. HYBRID FRAMING & INTERIORS INC., Second Third-Party Plaintiff, v. JDS CARPENTRY CORP., Second Third-Party Defendant.
• Court: New York Supreme Court

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2023 NY Slip Op 30983(U)

JULIO TENEMAZA, Plaintiff,
v.
PS 488 GROUP LLC, GALIL PS 488 LLC, HAPPY LIVING DEVELOPMENT LLC, and PARK SLOPE 488 DEVELOPMENT LLC, Defendants.

PS 488 GROUP LLC, GALIL PS 488 LLC, and HAPPY LIVING DEVELOPMENT LLC, Third-Party Plaintiffs,
v.
HYBRID FRAMING & INTERIORS INC., Third-Party Defendant.

HYBRID FRAMING & INTERIORS INC., Second Third-Party Plaintiff,
v.
JDS CARPENTRY CORP., Second Third-Party Defendant.

Index No. 512605/2018, Motion Sequence No. 7

Supreme Court, Kings County

March 28, 2023

Unpublished Opinion

PRESENT: HON. DEBRA SILBER, JUSTICE

DECISION/ORDER

DEBRA SILBER, JUDGE

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 28th day of March, 2023.

The following papers read herein:	NYSCEF Documents
Notice of Motion and Affidavits (Affirmations) Annexed and Exhibits	142-170
Opposing Affidavits (Affirmations) and Exhibits	171-172
Reply	174

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Upon the foregoing papers, plaintiff moves, in mot. seq. 7, for an order, pursuant to CPLR 3212, granting him partial summary judgment on the issue of liability against defendants PS 488 Group LLC, Galil PS 488 LLC, and Happy Living Development LLC, pursuant to Labor Law §240(1) and §241(6), and against Happy Living Development LLC pursuant to Labor Law §200 and common law negligence. The plaintiff previously obtained a default judgment order against the fourth defendant, Park Slope 488 Development LLC, which states that the inquest should be held at the time of trial [Doc 149].

Background

Plaintiff commenced the instant action on June 19, 2018 by electronically filing a summons and verified complaint. Plaintiff claims therein that defendants PS 488 Group LLC (hereafter "PS 488") and Galil PS 488 LLC (hereafter "Galil") were the co-owners of the premises known as 488 Fourth Avenue, Brooklyn, NY, at all relevant times, and that the other defendant, Happy Living Development LLC (hereafter "Happy Living") was the owner, and/or the lessee and/or the lessor and/or the managing agent and/or the construction manager and/or the general contractor.^[1] On the date of the subject accident, plaintiff was employed by JDS Carpentry Corp., which had been hired by one of defendant Happy Living's subcontractors, Hybrid (third-party defendant) for work on a new building being constructed at the location, a ten-story residential condominium with commercial space on the ground floor. Plaintiff alleges that defendants failed to provide him with a safe place to work, and failed to offer proper equipment and/or safety devices so as to prevent him from being injured

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at the worksite. Specifically, he alleges that he fell from a four-foot step ladder. The complaint asserts causes of action pursuant to Labor Law sections 240(1), 241(6) and 200, as well as for common law negligence.

Plaintiff alleges that on March 23, 2018, while he was working for non-party (the former second third-party defendant) JDS Carpentry Corp. (hereafter "JDS") at the subject premises, he was "caused to fall from an elevated height, off a dangerous, defective A-frame ladder, to the unfinished, uneven debris-covered ground below, and sustain serious physical injuries [Doc 143 ¶3]. Plaintiff also claims that at all relevant times, he was engaged in work within the scope of the Labor Law.^[2]

Defendants (other than Park Slope 488 Development LLC) subsequently interposed an answer [Doc 2] on August 15, 2018, generally denying plaintiff's allegations. Plaintiff then moved for a default judgment order against Park Slope 488 Development LLC in Motion Sequence #1, which was granted. Defendants (other than Park Slope 488 Development LLC) subsequently interposed an amended answer on September 8, 2020, [Doc 68] without leave of court. As it was not rejected, it shall stand as defendants' answer. On April 22, 2019, defendants commenced a third-party action against Hybrid Framing & Interiors Inc., (hereafter "Hybrid,") and then amended it as of right on May 1, 2019 [Doc 30]. The third-party defendant then interposed a third-party answer on June 17, 2019 [Doc 36]. Plaintiff then filed a note of issue on May 22, 2020. On March 2, 2021, third-party defendant Hybrid commenced a second third-party action against second third-party defendant JDS Carpentry Corp. [Doc 73]. The second third-party defendant has not answered the second third-party

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complaint, and more than a year has passed since its default. Thus, the second third-party action has been abandoned and, accordingly, is dismissed [see CPLR 3215(c)].

On April 29, 2022, a motion in CCP was decided by J. Knipel which denied defendants' (untimely) motion (Motion Seq. 6) filed March 29, 2022, to vacate the note of issue. On July 8, 2022, after the instant motion (# 7) was filed, J. Knipel granted defendants' motion for reargument (Motion Seq. 8) and, inter alia^[3], vacated the note of issue, making this motion, untimely filed on May 9, 2022, timely, albeit retroactively. On September 16, 2022, defendants submitted an attorneys' affirmation in opposition to plaintiff's motion, and on November 8, 2022, plaintiff filed his affirmation in reply. The motion was submitted for decision on November 10, 2022. On January 23, 2023, plaintiff filed a note of issue with a demand for trial by jury, certifying that discovery was complete and that this matter is ready for trial.

Plaintiff testified at his EBT, held on April 20, 2021, that he started working for JDS about a year before his accident. He completed a 10-hour OSHA course about six months before his accident [Doc 155 Page 27]. His supervisors were Oscar and Jorge, and they were the only people who instructed him with regard to his work [id.]. When he started working at 488 4^th Avenue, they had completed eight of the floors. He started working at this job site about two weeks before his accident. He worked as a carpenter, installing door and window molding. JDS had two aluminum ladders, and he was given gloves, a hardhat, hooks and a knee brace [Page 33]. Masks were available [Page 40]. One ladder was an A-frame that was about four feet, and the other one was about six feet. He used the smaller one, as his boss

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Jorge used the bigger one. It was not working right, as "it moved, and the thing, it was, like, loose." The brackets (spreaders) would not lock in place, they were loose [Page 36]. He complained to Jorge. One of the legs of this smaller ladder did not have its rubber foot [id]. Jorge did not do anything. Plaintiff used this ladder for the entire two weeks he was working at this job site up to the date of the accident. He most recently complained about it two days before the accident. Jorge said "well, this is what we have at the time, so use what we have, and if you don't you can go home" [Pages 54-55].

On the date of plaintiff's accident, he testified that there were three workers from JDS at the job site in addition to himself, Jorge, plaintiff, Oscar, and another worker whose name he could not remember. There were also workers from other trades. The plaintiff's accident occurred while plaintiff was nailing molding around the doors on the seventh or eighth floor. He arrived at work at 7:00 a.m. and then proceeded to work. One worker cut the moldings and he was nailing them into place. His accident took place around noon, when he was nailing molding around the doorway for a closet. He was inside the closet, installing the molding around the inside of the doorframe. The ladder was entirely inside the closet [Page 46]. He went up and down the ladder once or twice after he set the ladder up inside the closet before the accident happened [id.]. He had the molding in his left hand and a nail gun in the right hand. He said "I was placing the mold on the top part of the closet door. The [cement] floor was uneven. I did whatever I could. The [wood] floor was not placed yet, and the person in charge wanted the work to be done as soon as possible. I was on top of the ladder. I was placing the mold when the legs of the ladder opened. I fell towards my left with pistol and all to the floor" [Page 50]. Plaintiff elaborated that the ladder broke during his accident, one of

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the legs bent and the brackets (spreaders) in the middle came off [Page 56]. He said "the A-frame ladder that I was on, on the leg that did not have the piece of rubber on it, and since the floor was uneven, the, it didn't have the rubber, and there was garbage on the floor. That's what caused the accident" [Page 55]. Jorge was in another room and did not witness the accident. Asked about the debris, plaintiff said it contributed to the accident, as "The garbage from the Sheetrock, all of that was, yes, awful that, yes, the garbage, the unleveled floor, and the ladder." He continued [Page 58] that [the garbage from the sheetrock] "It was everywhere. The closet that I was working in was not clean, and the apartment, it was very narrow because there was Sheetrock, there was many things in the apartment." The attorneys explored this further, and plaintiff testified "The floor was dirty. I did the best I could to clean the closet floor to be able to place the ladder in the closet." He was asked "So when you placed the ladder on the closet floor, were you able to place it where it wasn't on top of any debris or Sheetrock" and he answered "I did everything possible, but the floor was too dirty. I did everything possible to be able to work inside the closet." He added [Page 61] "There was small pieces, big pieces, (of sheetrock) there was cement. And the uneven cement floor also contributed to the accident." Plaintiff's counsel summarizes "Plaintiff landed on the floor, partially inside the closet and partially outside of it. His left knee, left ankle, left shoulder, left elbow, lower...