Velasquez v. RS JZ Driggs LLC
| Decision Date | 12 January 2023 |
| Docket Number | Index No. 514312/2019,Mot. Seq. Nos. 4,5 |
| Citation | 2023 NY Slip Op 30114 (U) |
| Parties | Blaines Santos Velasquez, Plaintiff, v. RS JZ Driggs LLC and Foremost Contracting and Building LLC, Defendants. |
| Court | New York Supreme Court |
Unpublished Opinion
At an IAS Part 9 of the Supreme Court of the State of New York held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 12th day of January, 2023.
PRESENT: HON. DEBRA SILBER, Justice.
DECISION/ ORDER
The following e-filed papers read herein: NYSCEF Doc Nos.
Notice of Motion/Cross Motion and Affidavits (Affirmations) 99-150, 160; 129-143
In this personal injury action, plaintiff Blaines Santos Velasquez (plaintiff) moves, in mot. seq. four, for an order granting him leave to amend his bill of particulars, pre-note of issue, pursuant to CPLR 3025 (b), to allege a violation of 12 NYCRR (Industrial Code) 23-1.7 (e) (2), and, upon receiving such leave, granting him partial summary judgment on his Labor Law § 241 (6) claim, pursuant to CPLR 3212, based upon on a violation of 12 NYCRR 23-1.7 (e) (2).
Defendants RS JZ Driggs LLC (Driggs) and Foremost Contracting and Building LLC (Foremost) (collectively, defendants) cross-move, in mot. seq. five, for an order pursuant to CPLR 3212, granting them summary judgment and dismissing plaintiff's complaint.[1]
Plaintiff commenced this action on June 28, 2019, after sustaining injuries while performing construction work at the premises located at 658 Driggs Avenue in Brooklyn, New York (premises or worksite) on May 31, 2019. Driggs was the owner of the property where, at the time, a new five-story mixed-use building was being constructed. Foremost was the general contractor for the project, and Concrete was the subcontractor hired by Foremost to perform the foundation rebar and concrete superstructure work. At the time of the accident, plaintiff was employed by Concrete as an ironworker. In his complaint, plaintiff asserts claims against the defendants for common law negligence and alleged violations of Labor Law §§ 200, 240 (1), 240 (2), 240 (3) and 241 (6). Issue was joined on September 16, 2019, by the filing of defendants' answer, which was later amended on December 22, 2021.
On April 25, 2022, plaintiff filed the instant motion seeking leave to amend his bill of particulars to allege a violation of 12 NYCRR 23-1.7 (e) (2), and, upon receiving such leave for an order granting him partial summary judgment on his Labor Law § 241 (6) claim. In support of his motion, plaintiff has submitted his attorney's affirmation, his deposition transcript, two photographs marked as defendants' exhibits A1 and A2 during plaintiff's deposition, the deposition transcript of Foremost's witness, and plaintiff's proposed amended bill of particulars.
During his deposition, plaintiff testified that he began working for Concrete at the premises two months before his accident. His work included making rebar columns, known as "throwing iron," a process during which pieces of rebar are placed in specific areas on a plywood floor prior to the pouring of concrete. Mario and Antonio were the foremen for defendant Concrete. Antonio directly oversaw the ironworkers and gave them daily work instructions. No one, other than Antonio and Mario, gave plaintiff instructions at the site. The other ironworkers on this job included Edwin Cruz, Dennis Cruz, someone named Meno, and someone named Elder. Defendant Concrete also had carpenters on site.
On the day of the accident, plaintiff arrived at the site at 6:40 a.m., as his shift began at 7:00 a.m. Upon his arrival, Antonio directed the ironworkers to work on the building's first floor, which was at street level. Plaintiff worked on the first floor until 9:15 a.m., when he and other ironworkers took a fifteen-minute coffee break. After plaintiff returned to work following his coffee break, Antonio told him that he and Elder should go to the floor above, (the second floor) to help the ironworkers who were already working there. Plaintiff and Elder then climbed a ladder to access the building's second floor, which was open to the sky, as the third floor had not yet been constructed.
The accident occurred five minutes after plaintiff arrived on the second floor. He had not previously been on the second floor that day. Upon his arrival, he saw other ironworkers and carpenters working. Everyone on the second floor at that time was employed by Concrete. The carpenters had placed plywood on the floor so the ironworkers could perform their work. During the minutes before the accident, plaintiff was placing rebar "chairs,"[2] which were to be used to install the rebar, onto the plywood floor surface. The floor was level and dry. In describing his accident, plaintiff stated that he and Elder were placing the chairs, four feet apart, onto the surface when, as he took two steps backwards, a portion of the plywood floor "lifted up." As a result of the plywood lifting up, he fell backwards and was impaled by a piece of rebar, which he alleges was uncapped. At the time of the accident, plaintiff was holding three rebar chairs with his hands in front of him. Dennis and Edwin were on each side of him and Elder was behind him. Antonio was also on the second floor at the time of the accident.
The piece of rebar which plaintiff fell onto was one of several pieces of rebar which were previously attached to the floor which constituted a "rebar column," and they extended approximately ten inches above the plywood surface. The rebar columns were to serve as reinforcement for subsequently poured concrete. Although plaintiff believes that the rebar column was uncapped, he did not observe it prior to his fall on the day of the accident. Plaintiff was shown two photographs at his deposition, which were marked as defendants' exhibits A1 and A2. According to plaintiff, the photograph marked as defendants' exhibit A1 depicts the accident location shortly after his accident and shows three other ironworkers. However, he could not discern their identities since their faces are not visible in the photograph. The photograph also depicts the ambulance personnel who assisted him at the accident scene and the rebar column at issue. Although the rebar column is depicted with safety caps, plaintiff asserts that the caps were placed on the rebar after his accident. He believes that Mario instructed the carpenters, whose job it was to place the caps on the rebar, to cap the rebar after his accident, because he later saw that the rebar was capped. Plaintiff admits, however, that he did not hear Mario give the carpenters this instruction and that no one told him that they heard Mario give this instruction. He did not know who took the photographs or when they were taken. All of the rebar in the subject column are capped in both photographs.
Anthony Piscione (Piscione), the President of Foremost, testified that Driggs, as owner of the property, retained Foremost as the general contractor for the construction project at the premises. Foremost then hired the subcontractors for the project, including Concrete. The project was completed in July or August of 2021. Foremost's field superintendent during the concrete superstructure phase was Timothy Wallette (Wallette). Frank Purino (Purino) was another Foremost superintendent, who primarily worked at another construction project, but would sometimes come to the subject construction site. Piscione did not recall whether Wallette or Purino had witnessed plaintiff's accident. Wallette was at the site daily during the time of the plaintiff's accident. With regard to safety, Foremost only had a limited safety role at the site. Concrete hired a concrete safety manager, who was on site during the concrete superstructure phase. Wallette generally oversaw the subcontractors' work and held regular safety meetings for the subcontractors, which would be attended by the subcontractors' foremen and employees. If there was a safety issue, Wallette had the authority to stop the work.
Piscione does not know the plaintiff and was not at the premises when the accident occurred. He had visited the site in the morning on the date of the plaintiff's accident, but had left to visit another construction project. He first learned of the accident when someone, whose name he does not recall, called him to advise him of it. After learning of the accident, he returned to the subject construction site. At that time, plaintiff had already been taken to the hospital. Upon his arrival, Piscione spoke to Wallette, who took him to the accident location, which was on a plywood deck on the second floor. The weather was clear and dry, and the deck was level and non-slippery. Wallette told him that plaintiff was unloading rebar on the deck with another ironworker when he slipped and fell backwards onto a piece of rebar, which was part of a column of rebar that protruded vertically from the plywood deck. Piscione did not see any slipping hazards when he inspected the deck after the accident. Concrete had installed the deck on May 29, 2019. The rebar column had been installed by Concrete before the deck was installed. Based upon his visit to the accident location and his conversation with Wallette following the accident, Piscione prepared an accident report that day or the next day. During his deposition, Piscione was not asked whether the rebar column was uncapped when he saw it after the accident or if he ever learned that it was uncapped at the time of the accident.
Plaintiff's counsel argues that plaintiff should be granted leave to amend his Bill of Particulars to...
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