Rivera v. Bedford Court Local Dev. Corp.

Rivera v Bedford Court Local Dev. Corp. 2025 NY Slip Op 30394(U) January 31, 2025 Supreme Court, Kings County Docket Number: Index No. 505720/2020 Judge: Ingrid Joseph Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

FILED: KINGS COUNTY CLERK 01/31/2025 11:06 AM INDEX NO. 505720/2020 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 01/31/2025

At an IAS Term, Part 83 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 t h e ~ day of ~a,+i~J , 2025.

PRE SENT: HON. INGRID JOSEPH, J.S.C. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------------------------------------------------X LUIS RIVERA,

Plaintiff, Index No.: 505720/2020

-against- DECISION AND ORDER

BEDFORD COURTS LOCAL DEVELOPMENT CORPORATION, BEDFORD COURTS III LLC, (Motion Seq. No. 5) BEDFORD COURTS III DEVELOPER LLC, BEDFORD COURTS I LLC, BEDFORD COURTS I DEVELOPER LLC, CITY OF NEW YORK AND ARMORY BUILDER III, LLC

Defendants. --------------------------------------------------------------------------X BEDFORD COURTS LOCAL DEVELOPMENT CORPORATION, BEDFORD COURTS III LLC, BEDFORD COURTS III DEVELOPER LLC, BEDFORD COURTS I LLC, BEDFORD COURTS I DEVELOPER LLC,

Third-Party Plaintiffs,

-against-

CONCRETE SUPERSTRUCTURES, INC., .

Third-Party Defendant. --------------------------------------------------------------------------X

FILED: KINGS COUNTY CLERK 01/31/2025 11:06 AM INDEX NO. 505720/2020 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 01/31/2025

FILED: KINGS COUNTY CLERK 01/31/2025 11:06 AM INDEX NO. 505720/2020 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 01/31/2025

FILED: KINGS COUNTY CLERK 01/31/2025 11:06 AM INDEX NO. 505720/2020 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 01/31/2025

Footnotes

[1] of 4 [* 1] ____________________________________________,___x BEDFORD COURTS LOCAL DEVELOPMENT CORPORATION, BEDFORD COURTS III LLC, BEDFORD COURTS III DEVELOPER LLC, BEDFORD COURTS I LLC, BEDFORD COURTS I DEVELOPER LLC, Second Third-Party Plaintiffs, -against- CONCRETE STRUCTURES, lNC., Second Third-Party Defendant. --------------------------------------------------------------------------X The following e-filed papers read herein: NYSCEF Doc Nos. Notice ofMotion/Affrrmation in Support/Exhibits ............................... . 101-124 Affmnation and Affidavit in Opposition ........................................... . 127-128 Affinnation in Reply ................................................................... . 136 Plaintiff Luis Rivera ("Plaintiff") commenced this action seeking to recover damages for personal injuries sustained on February 28, 2020. Upon the foregoing papers, Plaintiff moves for an order, pursuant to CPLR 3212, granting partial summary judgment in Plaintiffs favor on his Labor Law§§ 240 (1) and 241 (6) causes of action (Mot. Seq. No. 5). Defendants Bedford Courts Local Development Corporation, Bedford Courts III LLC, Bedford Courts III Developer LLC, Bedford Courts I LLC, Bedford Courts I Developer LLC, City of New York and Armory Builder Ill, LLC (collectively, "Defendants") oppose Plaintiff's motion. In his motion, Plaintiff asserts that at the time of the accident, he was walking on a scaffold when unsecured planks shifted and moved, causing him to fall. Plaintiff was wearing a harness and 6-foot lanyard. Since he fell from a height, Plaintiff asserts that the owner and general contractor are strictly liable under Labor Law § 240 (1). In addition, Plaintiff argues that Defendants' failure to provide him with a proper fall arrest system constitutes a prima facie violation of Labor Law§ 241 (6), predicated upon Industrial Code§ 23-1.16 (b). In opposition, Defendants contend that Plaintiff was provided with a harness and lanyard, as well as anchor points to attach his lanyard onto. Since Plaintiff chose to walk across the scaffold detached from any anchor point, Defendants maintain that Plaintiff is the sole proximate cause of the accident. 2

[2] of 4 [* 2] "Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it 'should only be employed when there is no doubt as to the absence of triable issues of material fact"' (Kolivas v Kirchoff, 14 AD3d 493, 493 [2d Dept 2005], citing Andre v Pomeroy,

[35] NY2d 361,364 [1974]; see Sucre v Consolidated Edison Co. ofN.Y., Inc., 184 AD3d 712, 714 [2d Dept 2020]). "The proponent for the summary judgment must make a prima facie showing of entitlement to judgment as a matter oflaw, tendering sufficient evidence to demonstrate absence of any material issues of fact" (Sanchez v Ageless Chimney Inc., 219 AD3d 767, 768 [2d Dept 2023], citing Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once a moving party has made a prima facie showing of its entitlement to summary judgment, the burden shifts to the opposing party to produce admissible evidence to establish the existence of material issues of fact which require a trial for resolution (see Gesuale v Campanelli & Assocs., 126 AD3d 936, 937 [2d Dept 2015]; Garnham & Han Real Estate Brokers v Oppenheimer, 148 AD2d 493, 494 [2d Dept 1989]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad, 64 NY2d at 853; Skrok v Grand Loft Corp., 218 AD3d 702 [2d Dept 2023]; Menzel v Plotnick, 202 AD2d 558, 558-559 [2d Dept 1994]). Labor Law § 240 (1) applies to accidents and injuries that directly flow from the application of the force of gravity to an object or to the injured worker performing a protected task (see Gasques v State of New York, 15 NY3d 869 [2010]; Vislocky v City ofNew York, 62 AD3d 785,

[786] [2d Dept 2009], Iv dismissed 13 NY3d 857 [2009]). It is uncontested that Plaintiff was "subjected to the elevation-related risk of the wooden plank which broke suddenly, causing the injured plaintiff to fall" (Amaro v New York City School Constr. Auth., 229 AD3d 746, 748 [2d Dept 2024]. Defendant concedes that in the area where Plaintiff was, there were no anchor points from which Plaintiff could attach his lanyard (see Garzon v Viola, 124 AD3d 715, 716 [2d Dept 2015]). Thus, it cannot be said that Plaintiff was a recalcitrant worker (id.). Regardless, his comparative negligence, if any, is not a defense to claim under this statute (see Roblero v Bais Ruchel High Sch., Inc., 175 AD3d 1446, 1447 [2d Dept 2019], citing Blake v Neighborhood Hous. Servs. ofN.Y. City, 1 NY3d 280,286 [2003]). Thus, Plaintiff is entitled to summary judgment on his Labor Law§ 240 (1) cause of action. 3 3 of 4 [* 3] Under Labor Law§ 241 (6) cause of action, an owner, general contractor or their agent may be held vicariously liable for injuries to a plaintiff where the plaintiff establishes that the accident was proximately caused by a violation of an Industrial Code section stating a specific positive command that is applicable to the facts of the case (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 349-350 [1998]; Honeyman v Curiosity Works, Inc., 154 AD3d 820, 821 [2d Dept 2017]). Industrial Code§ 23-1.16 (b) requires that a worker using a harness have an appropriate secure location to tie off his or her tail line and that such "attachments shall be so arranged that if the user should fall such fall shall not exceed five feet." The Court finds that Plaintiff met his prima facie burden demonstrating that Defendants violated Section 23-1.16 (b) by failing to provide a lifeline or a proper place on which to tie off a harness (see King v Villette, 155 AD3d 619, 623 [2d Dept 2017]; Anderson v MSG Holdings, L.P., 146 AD3d 401, 404-405 [1st Dept 2017], lv dismissed 29 NY3d 1100 [2017]; Hoffman v SIP TS, LLC, 111 AD3d 467, 467 [1 st Dept 2013]). Accordingly, the Court finds that plaintiff has made a prima facie demonstration of his entitlement to summary judgment on his Labor Law § 241 (6) cause of action, predicated upon a violation of Industrial Code§ 23-1.16 (b). In opposition, Defendants fail to raise a triable issue of fact. Thus, it is hereby ORDERED, that Plaintiff's motion (Mot. Seq. No. 5) for an order granting partial summary judgment as to his Labor Law§§ 240 (1) and 241 (6) claims is granted. This constitutes the decision and order of the court. Hon. "d Joseph, J.S.C. ,. H . Ingrid Joseph Supreme Court Justice 4 4 of 4 [* 4]