Mendez v. Site 5 DSA Owner LLC

Mendez v Site 5 DSA Owner LLC 2025 NY Slip Op 30458(U) February 3, 2025 Supreme Court, Kings County Docket Number: Index No. 514573/2017 Judge: Anne J. Swern 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 02/05/2025 12:39 PM INDEX NO. 514573/2017 NYSCEF DOC. NO. 518 RECEIVED NYSCEF: 02/05/2025 At c.Ul IAS TriaITenn, Part75 ofthe Supreme Court of the State ofNew York, Kings County, at the Courthouse located at 360 Adams Street, Brooklyn, NewYork on the 3 rd day of February 2025. PRES-ENT: HON. ANNE J. SWEEN, J.S.C. ------------. - .------------------ . -----------------------. ---- .' X: SHAWN MENDEZ, Index No.: 514573/2017 Plaintiff, .,.against"." Motion Seq;: 11, 12, 13, 14, 15& 16 SITE 5 DSA OWNER LLC, BFC PARTNERS . Return Date: 7/25/2024 DEVELOPMENT, LLC, TACONIC INVESTMENT PARTNERS~ LLC;L&M DEVELOPMENT. PARTNERS LLC,, ·ESSEX CROSSING BUILDERS, LLC., EARTH STRUCTURES, INC. ESI NOBLE, l..LC and ALL-SAFE LLC, Defendants, . ·--- -·---· ---------------------- .----------. -.... ----. ------------X SITE 5 DSA OWNER LLC arid ESSEX CR.OSSING BUILDERS, LLC,. Third-Party . Plaintiffs,. -against- CALL-A-HEAD CORP., Third-Party Defendant . . ·--· ... ·--- .. --- .--- .-----. ---------- ·--- .. ---- . _. ---· .-------- X SITE 5 DSAOWNER LLC and ESSEX CROSSING BUILDERS, LLC, Second Third-Party Plaintiffs, -against- ALL-SAFELLC and AXIS INSURANCE COMPANY, Second Third-Party Defendants. ---. --..------ .. - .-- .- .-------· -· ------. ·. ·- .----- .--- .. ----------X Recitation ofthefollowingpapers as reqtdred by CPLR 2219 (a): Mendez v Siie 5, etal. 514573/2017. . Pagel of 19 FILED: KINGS COUNTY CLERK 02/05/2025 12:39 PM INDEX NO. 514573/2017 NYSCEF DOC. NO. 518 RECEIVED NYSCEF: 02/05/2025 FILED: KINGS COUNTY CLERK 02/05/2025 12:39 PM INDEX NO. 514573/2017 NYSCEF DOC. NO. 518 RECEIVED NYSCEF: 02/05/2025 Papers Numbered MS_14 SITE 5 DSAOwnerLLC and Essex Crossing Builders, LLC'sNotice of Motion, Affirntation/Affidavits, Stat{lment of Material Facts, and Exhibits (NYSCEF 373-405) ................... 16, 17 Plaintiff's M{lmorandum of Law in Opposition and Response to Statement of Material Facts (NYSCEF 414-415) .............. ,......•. 18 All-Safe, LLC'sAffirmation in Opposition,Exhibits, Memorandum of Law and Response to Statement. OfMaterial Facts (NYSCEF 429-442) ............................................................ 19 Earth Structures, Inc. and ESI Noble LLC's Response to Statement of Material Facts (NYSCEF 447-448) ........................................ 20 SITE 5 DSA Owner LLC and Essex Crossing, Builders LLC's Affirmation in Reply to All-Safe, LLC'sOpposition (NYSCEF 506) ,, .... ,............... ,............................ 21 SITE 5 DSA Owner LLC and Essex Crossing, Builders LLC's Affirmation in Reply to Plaintiffs Opposition (NYSCEF 510) ...... ,...................................................... 22 MS 15 AXIS Insurance Company's Notice ofMotion, Aftitmation/Affidavits, Statement of Mat{lrial Facts, and Exhibits (NYSCEF 409•411) ... ;................................. ;........................ 23, 24 SITE 5 DSA Owner LLC and Essex Crossing, Builders LLC'sAffirmation in Opposition with Exhibits (NYSCEF 478~484)... ,......... 25 AXIS Insurance Company'sReply Affirmation with Exhibit (NYSCEF 496-497) .......................... ;.....................26 MS_16 Earth Structures; Inc. and ESI Noble LLC's Notice of Cross-Motion~ Memorandum of Law, Statement of Material Facts, andExhibits(NYSCEF443·-446) ................ 27, 28 Plaintiff's .Memorandum of Law in Opposition with Exhibit (NYSCEF 466-467) .... :··~•~ ....................... ~ ... , ... ;.• ;'. ... 29 SitE 5 DSA Owner LLC ~d E.ssex Crossing, Builders. LLC' s Affirtrtation in Opposition and Response to Statement ofMaterial Facts (NYSCEF S0l-502) ........................ , ....... ! ......... ,.'.···• .. ~·· .... , .. 3.0 Upon theforegolngpapers, the decisjon and order ofthe Court is as follows: Mendez v Sires; eta/.. 5{457Ji20]7. Pagel of t9 ·················-··--------------------------------------- ~ 3] [* 3 of 19 FILED: KINGS COUNTY CLERK 02/05/2025 12:39 PM INDEX NO. 514573/2017 NYSCEF DOC. NO. 518 RECEIVED NYSCEF: 02/05/2025 Introduction Tiris is an action for personal injuries allegedly sustained by plaintiffinthecourse o:fhis employment with CALL'"A-HEAD CORP. on ll/29/2016 1 on the ground floor of 145 Clinton Street, NewYork,. New York (''the premises''). SITE 5 DSA OWNER; LLC (Site 5), the owner of the premises; executed a general contract with ESSEX CROSSING BUILDERS (Essex), who then enteredirtto subcontracts with EARTH STRUCTURES, INC. (Earth), ESI NOBLE, LLC (ESI), ALL-SAFE LLC (All-Safe), and CALL-A-HEAD CORP. (CAHC). As discussed below, aUparties have moved for suri:imary judgment in their favor except forAll-Safe's insurance carrier, AXIS INSURANCE COMPANY (Axis)). Axis has moved to amend its answer to the second third-party complaint? Plaintiff (MS_ll) Plaintiff 1noves for an order granting. partial summary judgment . on liability on his causes of action urtder Labor Law § 240 ( 1) and § 241 {6) (MS_ 11). The motion is denied as to plaintiff's causenf action under Labor Law·§ 240 (I) a:splaintiff's injuries did not arise from a height differential; The motion is also denied as to Labor Law § 241 {6), Although plaintiff is entitled to the protections of Labor Law § 241 {6), his accidents were unwitnessed. Therefore, plaintiff's testimony concerning the happening of the accident and proximate cause is a question of credibility for the jury. Defendant/Second Third-Party Defendant All-Safe, LLC (MS_12) AH-Safe, moves for art order dismissing plaintiff's complaint, the second third~party complaint, a.n,d all ctoss~cfaims againstit (MS....12). The branch of the.motion dismissing 1 Plaintifrs. St~iement of Material F~cts (SOMF) 114 (NYSCEF 314) . . . . . 2 The. comp Iii int and all cross-claims have. been. discontinue.d .against BFC PARTNERS DE;VELOPME1'1T LLC, TA CONIC INVESTMENT PA.RTNERS LLC:, and ~.&M DEVELOPMENT PARTNERS, INC. (NYSCEF 78). Mendez v S.lte 5, et al. Sl4S7312(117 Page 4 of 19 FILED: KINGS COUNTY CLERK 02/05/2025 12:39 PM INDEX NO. 514573/2017 NYSCEF DOC. NO. 518 RECEIVED NYSCEF: 02/05/2025 FILED: KINGS COUNTY CLERK 02/05/2025 12:39 PM INDEX NO. 514573/2017 NYSCEF DOC. NO. 518 RECEIVED NYSCEF: 02/05/2025 FILED: KINGS COUNTY CLERK 02/05/2025 12:39 PM INDEX NO. 514573/2017 NYSCEF DOC. NO. 518 RECEIVED NYSCEF: 02/05/2025 FILED: KINGS COUNTY CLERK 02/05/2025 12:39 PM INDEX NO. 514573/2017 NYSCEF DOC. NO. 518 RECEIVED NYSCEF: 02/05/2025 FILED: KINGS COUNTY CLERK 02/05/2025 12:39 PM INDEX NO. 514573/2017 NYSCEF DOC. NO. 518 RECEIVED NYSCEF: 02/05/2025 FILED: KINGS COUNTY CLERK 02/05/2025 12:39 PM INDEX NO. 514573/2017 NYSCEF DOC. NO. 518 RECEIVED NYSCEF: 02/05/2025 FILED: KINGS COUNTY CLERK 02/05/2025 12:39 PM INDEX NO. 514573/2017 NYSCEF DOC. NO. 518 RECEIVED NYSCEF: 02/05/2025 that he did not. fall off the ramp or otherwise fall from a height to the ground; there was no height differential (See Narducci v Manhattan Bay Associates, 96 NY2d 25 9, 270. [2001 ]); Plaintiff fell forward landing on the ramp, not the ground.27 To hold otherwise, would eviscerate the difference between LaborLaw § 240 (1) and §241 (6). Likewise, the motions for summary judgment on plaintiff's Labor Law § 240 ( 1) cause of action by All-Safe, Earth and ESI are granted (MS_12 artd MS_15). Additionally, the subcontractors, All-Safe, Earth and ESI, are not an owner nor general contractor· or their agent as defined by the statute warranting dismissal of the plaintiff's complaint. against them. Labor Law §241 (6) "Labor Law § 241 (6) imposes a nondelegable dµty upon owners and. contractors to provide reasonable and adequate. protection and safety to construction workers. A violation ofan explicit and concrete provision of the Industrial Code by a participant in a construction project constitutes some evidence.of negligence, for which the owner or general contractor may be held vicariously liable'' {Bravo v. 609 W. 56th Street Property, LLC, _ AD3d _, 2025 NY Slip Op 00208 * 1 [2d Dept. 2025] [internal quotations and citations omitted]). However, summary judg.rileh(pursuant to Labor Law § 24 l (6) is a fact specific analysis because the statute is not self-executing since the predicate for liability is within varying rules, regulations or industry standards to determi1ie defendants' negligence (see Zimmer v Chemung County PerformingArts, 65NY2d513, 523 [1985] [internalcitations omitted]; and Buckley v Columbia Grammarand Preparatory School, 44 AD3d 263 ,. 271, [ 1st Dept, 2007]). To prevail on surrmni.ry judgment, piaintiff musteslablish that he "was engaged in a type of work which falls within the scope of Labor Law §241 {6), specifically, whether the injury 27 NYSCEF 320, 83:10~25, pp.84-86·• M~ndez "Site S, etul. 514573/201.7 Page.11 ~r i9 11 of 19 [* 11] FILED: KINGS COUNTY CLERK 02/05/2025 12:39 PM INDEX NO. 514573/2017 NYSCEF DOC. NO. 518 RECEIVED NYSCEF: 02/05/2025 occurred in an area in which construction, excavation or demolition work is being performed" (Vernieri v Empire Realty Co., 219 AD2d 593, 595 [2d Dept 1995] [internal qµotations omitted]). lne standard for determining whether plaintiff's work falls within the ambit ofLabor Law§ 241 (6) is governed by 12 NYCRR23-1.4{b) (13); which reads as follows: "All work of the types performed in the Construction, erection,. alteration, repair, maintenance, painting or moving of buildings· ot other structures" (id.), Once the predicate for liability is established, the plaintiff ''must [then] demonstrate that [his] injuries were proximately caused by aviolation of an Industrial Code provision that is applicable under the circumstances of the case" (Bravo v 609 W561h Street Property, LLC, '.2025 NY Slip Op 00208 *l). Plaintiff has established as a matter oflaw that (1) he is a worker entitled to the protections ofLaborLaw§241 (6), and (2) dangerous and hazardous tripping conditionsin violation of 12 NYCRR 23-1.7 (e) (l}and 12 NYCRR2J.,l.7 (e) (2) existed on the job site at the time of his accidents (Bravo·v 609 W 56th StreetProperty, LLC, supra [Summary judgment granted to work~rcleaning debris who was injured while gettinga broom and shovel.]; and Romanov New York City Transit Authority, 213 AD3d 506; 507-508 [2d Dept. 2023] [Summary judgment gtanted to worker injured while cleaning debris.]). However, since plaintiff was the sole witness to the happening ofthe two aceidents, his credibility has been plated al issue tendering summary jucigment inappropriate (see Woszczyna v B.JfV Assoc, 31AD3d 754, 755 [2d Dept~ 2006]). The jury must detetmjne whether the statutory violations were the proximate· cause of his injuries (id),.plaintiff's comparative negligence.and the. apportionment of liability between all defendant,s. Thus, plaintiff's motion for· sutnmary judgtnent is granted only <>n two Meniler.v.Site 5, et a.I. 514573/2017 fage .12 of 19 12 of 19 [* 12] FILED: KINGS COUNTY CLERK 02/05/2025 12:39 PM INDEX NO. 514573/2017 NYSCEF DOC. NO. 518 RECEIVED NYSCEF: 02/05/2025 issues (a) his status as a protector worker and (b) the existence of statutory violations under Labor Law § 241 (6). All-Safe' s argument that the. causal relationship between the statutory violation vis-a-vis the broken mesh on the ramp and plaintiff's injuries is also a question of fact for the jury as between Essex, Site 5 and All-Safe based on the cortflictirig testimony concerning the placement of the wire meshon the ramp (see Cameron vCity ofLongBeach,297AD2d 773,. 774 [2d Dept. 2002] [The motion should be denied.where the.facts are in dispute, where different inferences may be drnwn from the evidence, or where the credibility of the witnesses is in question,]). Therefore, the motions for sllmmary judgment on the cross.;c}aims by Essex, Site 5 and All-Safe are denied. Again, each ofthe subcontractors, All-Safe, Earth and ESI, is not an owner not general contractor as defined by the statute. Therefore, their motions to dismiss plaintiff's Labor Law §. 241 (6)cause of action is granted. The balance of their motions is denied as to . the cross-claims and second third-party complaint by Site 5 and Essex for indemnification and contribution. Labor Law § 20() Laqor Law § 200 (1), only applies to owners, general contractors, or their agepts and is a codification oftheir col1imon-law duty to maintain a safe workplace (Delaluz v Walsh, 228 AD3d 619, 621 [2d Dept. 2024]), "An implicitprecondition to [the] duty toprovide a safe place to work is that the party charged with that responsibility have the authority to control the activity bringing ~bout the injury to enable it to avoid.or correct an unsafe conqition" (id. [internal ~itations and quotation~ omitted]). "A party· is deemed fo be ari agent of an owner or general contmctor under the Labor Law when ithas the ''ability to control the activity whi¢h brought Mender. vSite 5, et al, S14573/2017 Page 13 or19 13 of 19 [* 13] FILED: KINGS COUNTY CLERK 02/05/2025 12:39 PM INDEX NO. 514573/2017 NYSCEF DOC. NO. 518 RECEIVED NYSCEF: 02/05/2025 ~bout the injury" {Guclu y 900 Eighth Avenue Condominium; LLC, 81 AD3d 592, 593 [2d Dept. 20111). All-Safe, ESI,. and Earth have demonstrated th~t they were not the agents Qf the owner ot general contractor with the authority to control the activity bringing aboutthe injury to either avoid or correct an unsafe condition (id.). The motion to dismiss plaintiff;s complaint as against them is· granted. As to SiteS and Essex, the ability to control the means and methods of plaintiff's work is not the only basis for imposing liability under Labor Law §200 upon an owner and general contractor. ''Where a plaintiffs injuries stem not from the manner in which the work was being performed,. but, rather; from a dangerous condition on the premises; [an owner and/or general contractor] may be. liable under Labot Law § 200 if it either Created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition" (Banschet v Actus Lend Lease, LLC, 132 AD3d 707,709 [2d Dept. 2015]). However, Labor Law § 200 does not impose vicariously liability on owners pr general contractors (Marte v. Tishman Construction C:orporation, 23JAD3d 527,527 [2d Dept. 2024]). The evidence establishes as amatteroflawthat (l)plaintiff is awor~erentitled to the protections of Labor Law § 200, and (2) dangerous and hazardous tripping conditions existed on the job site at the time of his accidents (Bravo v 609 W: 5 6th Street Property, LLC, supra). Again, since plaintiff was the sole witness to the happening of the two accidents, :ms credibility has been placed ~tissue rendering summary _·.·.. judgmentinapprop;riate . (see . Woszczyna v BJWAssoc, 31AD3d 755). Therefore, it is a question of fact for the jury whether Esse~' s project superintenclent and/or.AII~Safe were negligent in failing to disc:over and remedy the obvious tripping hazards Mendez v. Sitf! s, ·et al 514573/1017 Page 14 .of 19 14 of 19 [* 14] FILED: KINGS COUNTY CLERK 02/05/2025 12:39 PM INDEX NO. 514573/2017 NYSCEF DOC. NO. 518 RECEIVED NYSCEF: 02/05/2025 that ate alleged to be the proximate cause of plaintiff's injuries. during inspections of thejob site (NusiavLegendAutorama,. Ltd, 219 AD3d 842, 844I2dDept. 2023] and Ventimiglia v Thatch, Ripley & Co.; LLC, 96 AD3d 1043; 1046-1047 [2d D~pt.2012]). It is also a questlon offact as to whether ( 1) Essex or All-Safe created the hazardous tripping condition by placing the wire mesh on the tamp, and (2) ESI and Earth created the hole by the ramp, both ofwhich defeat summary judgment on defendants and third-party defendants' respective cross-:Claims, counterclaims and third-party claims. Finally, the jury must determine whether dangerous and hazardous trippinis conditions were the proximate cause of plaintiff's injuries {Wo,$zczyna v BJW Assoc;J 1AD3d 755); plaintiff's comparative negligence and the apportionment of liability between all defendants. However, as there is no evidence that the owner Site 5 created the hazardous conditions orhad actual or constructive notice.of their existence,,plaintiff's Labor Law·§200 cause of action is also dismissed as to this defendant (Marte ~ Tishman Construction Corporation, 233 AD3d 527). Exclusivity of Workers Compensation Where, as here, "plaintiff ha:s not sustained a •:graveinjury,' 28 section 11 of the Workers' Compensation Law bars third-party actions against employers for indemnification or contribution unless the third-party action is for contractual indemnification pursuant to a written contract in which the employer 'expressly agreed' to indemnify the claimant. Requiring the indemnification contract to be clear and.express furthers the spidt.ofthe ll:l:gislation'1 (Tonking v Poff Authority. of New York & New Jersey, 3 NY3d. 486i 490 [2004] [italics. adcled]). 28 Agraye lriJlll)I is defined as a permanent total disability under secti.on 11,Je,, an injury that results in (l)'the unemployability in any capacity, which ke¢ps wi.th l~gislative •ititent and sets a more objectively ascertainable test than equivalent, or competitive,· employmerit and/or (2) ca:n participate iri activities of daily living (See Rubeis v .Aqua Ciublnc.~ 3 NY3d 408, 4.17 [2004]): Here; plaintiffha:s made nci such c:laims; . Mendeiv Sit~ 5, etai, Si4S.73/2017 Page ts ofl!> ---------------------------------------·--·-·············-······-·· [* 15] 15 of 19 ..····-·..··············· FILED: KINGS COUNTY CLERK 02/05/2025 12:39 PM INDEX NO. 514573/2017 NYSCEF DOC. NO. 518 RECEIVED NYSCEF: 02/05/2025 In opposition to CAH C's motion, Essex and Site 5 failed to come fon:vatd with proof of the alleged contract set forth in the third-party summons and complaint. Therefore, "[W]here no prejudice is shown, the amendmenttnay be allowed [as late as] during or even attrial'' (Murrayv City ofNew York,43NY2d 400,405 [1977]), Here, Site 5 and Essex cannot demonstrate prejudice or surprise since plaintiff's pleadings, bill of particulars and the parties' testimony establish he was an employee of CAHC (Murray v Cify ofNew York; 43 NY2d 407 and De Los Santos v Butkovich, 126 ADJd 845, 846 [2d Dept. 201;5]). Accordingly, CAHC's motion to amend the third-party answer to include the defense of § 11 of the·. Workers Compensation Act is granted, the amended answer is deemed served and the motion to dismiss the third-party action and all cross-claims is. granted. Conclusion Accordingly, it is hereby· ◊RDEREDthatplaintiff'smotion for summary judgment on the Labor Law§ 240{1) cause· of actionis denied (MS ~0 11), and it is further ORDERED that plaintiff's motion for summary judgment on the Labor Law § 241 (6) cause ofaction is granted 011 the issues of ( 1) plaintiff is a worker entitled to the protections of Labor Law §241 (6)~ and (2} dangerous and haz.ardoi..uHripping conditionsin violation of 12 NYCRR 23'-l,7 (e) (1) and 12NYCRR21-l.7 (e){2) existed on the Job site at the time of his accidents; and it is further ORDERED that plaintiff's motion for summary jud,gmei1t on the Labor Law§ 241 (6) cause of action on the issue of proximate cause is denied, and itis further ORDERED that defendant ALL·SAFE LLC's motion for surtunaryjudgment dismissing plaintiff's complaint as against said defendantis granted (MS_012), atid itis further Mem!ei. v Site 51 .et al, 514573/.201? • Pagel6 of19 • 16 of 19 [* 16] FILED: KINGS COUNTY CLERK 02/05/2025 12:39 PM INDEX NO. 514573/2017 NYSCEF DOC. NO. 518 RECEIVED NYSCEF: 02/05/2025 ORDERED that defendant ALL.:SAFE LLC's 'Illotion for SllffitJJary judgment to di~miss all cross-claims and the second third"'"party complaint against said defendant is denied· (MS_012), and it is further ORDERED thatdefendant CALL-A-HEAD CORP. motion foran order permitting it to amend its answer to add the affirmative defense that§ 11 of the Workers' Compensation Act bars the third-party action and thereafter dismiss the third-p¥tY complaint is granted, the amended answer is deemed served and the third-party complaintand all cross-claims are dismissed against said defendant in their entirety (MS_13), and it is further ORDERED that deJendants SITE 5 DSAO\VNER, LLC (''SiteS'') and ESSEX CROSSING BUILDERS 's motion forsummary judgment dismissing plaintiff's Labor Law § 240 ( 1) cause of action. as against them is granted (MS_0l 4), and it is further ORDERED that defendants SlTE 5 DSA OWNER, LLC("Site 5") and ESSEX CROSSING BUILDERS's mQtionfor sllffitlJary judgment dismissing plaintiff's Labor Law § 241 (6)-cause of action against them is denied (MS_014), and it is further ORDERED that defendant ESSEX CROSSING BUILDERS's motion for summary judgment dismissing plaintiff's.Labor Law § 200 cause of action against itis denied(MS _O 14), and it is further ORDERED that defendant SITE 5 DSA OWNER, LLC ("Site 5') motion for sumtJJary judgment dismissing plaintiff's Labor Law § 200 cause of action against it is granted {MS_014), and.. it is further ORDERED that defendants. SITE 5 DSA OWNER, LLC ("Site 5') and ESSEX CROSSING BUILDERS 's motion for sununary judgment dismissing all cross~daims and counter-claims against them is denied (MS_:014 ); and it is further M.enrfez v.Site5, eta[; 5145?312017 Page 17ofl9 17 of 19 [* 17] FILED: KINGS COUNTY CLERK 02/05/2025 12:39 PM INDEX NO. 514573/2017 NYSCEF DOC. NO. 518 RECEIVED NYSCEF: 02/05/2025 ORDERED thatdefendants SITE 5 DSA 0W1'JER, LLC ("Site 5"} and ESSEX CROSSING BUILDERS's motion for an order granting summary judgment on its cross-claims and third-party claims forindemnificafion againstALL.;SA.FE LLCand ESlN0BILE, LLG ("ESI'') and setting this matter down for a hearing on the issue of attorneys' fees and expenses, is denied (MS...,.14}; and it is further ORDERED that defendant AXIS INSURANCE C0MPANY's motion to for an order pursuant to CPLR § 3025 {b) granting AXIS leaye to amend its answer to include counterclaims ruid affirmative defenses. against Defendants/Second Third-Party Plaintiffs Site 5 DSA Owner LLC and Essex Crossing Builders, LLCand severing the Second Third'-Party action from this action is granted (MS_Ol5), and it isfurther ORDERED that SecondThird-Party action is hereby severed from the main action and theSecondThird-Party Plaintiffs' attorney shall e-filea commencementdocumenttogetherwith a copy ofthisOrder with the County Clerk, and pay any necessary fees,;inorder to obtain a new index number for the severed action, and it is further 0RDEREDthatdefendants, EARTHSTRUCTURES, INC and ESIN0BLE, LLC's; cross-motion for -Sutnmary judgment dismissing plaintiff's complaint as· against them is granted (MS_O16), and it is further Mendez v Site 5; et al. 514573/2017 • Page 1.8 ofi9 . 18 of 19 [* 18] FILED: KINGS COUNTY CLERK 02/05/2025 12:39 PM INDEX NO. 514573/2017 NYSCEF DOC. NO. 518 RECEIVED NYSCEF: 02/05/2025 ORDERED that defendants, EARTH STRUCTURES, INC. and EST NOBLE; LLC's, cross--motion fotsurnmary judgmentto dismiss co-defenclants' and third-party defendants' claims, counter-claims,· and cross-claims against them is denied (MS_016). This constitutes the decision and order of the Court. ENTER: Ho . .C. For Clerks use only: Dat · .· 2025 MG _ _ MD _ _ Motion seq.# _ _ __ Mendez v Site 5, ei ~,. 514573/2~]7 .· P!lge .19 of19 19 of 19 [* 19] Footnotes [1] of 19 [* 1] Papers Numbered MS_11 Plaintiff's Notice of Motiqn, Affirmation/Affidavits,. Statement of Material Facts, Memorandum of Law and Exhibits (NYSCEF 313-332) ............................................................ ,..... .1, 2 All-Safe, LLC; s Affirmation in Opposition, :Exhibits, Memorandum of Law and Response to Statement Of Material Facts (NYSCEF 41fr-428) ................................ ,................. ,.. ,........ 3 SITE 5 DSA Owner LLC and Essex Crossing Builders, LLC's Affirmation irt Opposition,E xhibits, . Memorandum of Law (NYSCEF 457~461) ,..... '. .. ,., ................. ,....................... ;.4 Plaintiff's Reply Affirmation (NYSCEF 500) .................. , ................................ 5 MS_12 All-Safe, LLC's Notice of Motion, Affirmation/AffidaviM, .Statement of Material Facts, Memorandum of Law and Exhibits (NYSCEF 333~348) ,.................... ,.,............. ,.... ;:............... ,.. ,., .. :6, 7 Plaintiff's Memotandum ofLaw in Opposition and . . Response to StatementofM aterial Facts(NYSCE F 412~413) ......................... 8 Earth Structures, Inc. and ESI Noble LLC's Response to Statement ofMaterial Facts (NYSCEF 449-450) ................................. ,, ...... ;9 SITE 5 DSAOwner LI.,C and Essex Crossing Builders, LLCsAffitm ation in Opposition, Exhibit, and .. . Response to Statement ofMaterial Facts (NYSCEF 503-505) .... ;.................. 10 AH-Safe, LLC's Response to Plaintiff's Statement of Material Facts and Memorartd.um ofLaw in Reply (NYSCEFJ3' 3-348) ....... Jl MS 13 Calt-A-Head' s Notice ofMotion,AffJID1ation/Affidavits, Statement of Material Facts, and Exhibits (NYSCEF 349~372) ................12, 13 SITES DSA OwnerLLC and Essex Crossing Builders, LLC's Affimiation in Opposition. Exhibit; and ·· Response to Statement of Material Facts (NYSCEF451 -456) ....................... 14 Ca.11-A:.Head's Affimiation in Reply with Exhibit (NYSCEF 511-512) ............. ,................................. ;.. ,.... ;........... ,15 Mendei v Site 5, et al. 514573/2017 Page 2 of 19 -··--·-· 2 of 19 ------- ------- ------- ------- -- ····-···- -···-···· ········· ------- [* 2] [4] of 19 [* 4] plaintifrs complaint is granted sin(;e defendant was :not the owner :gr general c.ontractor or their agent and did not-direct, supervise, ·or control plaintiff's work und~r Labor Law § 200, § 240 (T) and § 241 (6}. The ba:lahce ofthe motion seekin:g_·dismissal of the cross-claims and _second third- party complaint i& denied.- _Third-Party Defendant·Call-A-Head Corp. {MS....._13) CAHC bas moved for an order permitting it to amend its answer to add the affirmative defense that § ·11 of the, Workers' Compensation Act bars the. third-party action and thereaftet dismiss· the third-party c.ot1.1plaint. The motion is gr@nted .. The thirq.~party c9mplaint i~ dismissed in its entirety. ·Defendants/Third-Party. ·Plaintiffs/Second Third..:Party Plaintiffs Site 5 and Essex (MS_l4) Sifo5 81;1._d Essex have irtoVe.d ft.it art ·ordet(l.)-disinissing plairttifts:-_complaini·and all cross-claims, granting suinmary judgment on its cross-claims for indemnification against All- Safe and ESI, 2) granting. smmnary judgment :on its ctoss-ciainis and ·ibird,;party .claims-for indemnification-~gainst All~Saf~_and ESI and setti.Iig· this,martet doWIJ. for a hearing: on the issue of attorneys' fees and expe11ses. The motion to dismiss plaintiff's Labor Law :§240 (1) cause of action is· granted. The branch of _the motion to dismiss the Labor Law § 24 l ·(6) cause ofaction is. denied.. The branch ofthe motio~. to disiµiss the Labor La.W § 200 cause of action is granted as to Site 5 and denied. as to Essex. The _branch o:f the motion for summary judgmenfort (a) its cross- claims and third~party claims for indemnification against Alb-Safe -!ind ESI and setting this matter down.for a hearing..-on -the issue of attorneys'· fees and expenses and (b) .dismissing- all cross- claims agairtstthem is denied. Me11dei v·Site 5; el aL . 51.4S7312017 . . Pilge·s_of19 [5] of 19 [* 5] Second Tbird~Party Defendant Axis Insurance Company (MS_15) Axis has moved for an order permitting it to am.end its answer to include (l) a counter- claim for a declaratory judgment thatit has no duty to defend or indemnify Site 5 and Essex and (2) five additional affirmative· defenses. The motion is granted based on the concessions of the Site 5, Essex and Axis to sever the second third-party action and engage in further discovery. SecondThird-Party Defendant All-:Safo has neither opposed nor taken a position on the motion. Defendants Earth Structures, Inc.and ESI Noble LLC (MS_l6} Earth :md ESI have moved for an order dismissing plaintiff's complaint and all cross- claims against them, The motion dismissing plaintiff's complaint is granted since defendants were not an owner or general orcontractor or their agent :md did not direct, supervise; or control plaintiff's work under Labor Law§ 200, § 240 (1) and § 241 (6). The balance of the motion seeking dismissal of the ctoss'-claimsis denied. Facts The owner of the premises, Site 53 and general contractor, Essex, 4 contracted to construct a mixed-use residential apartment building with commercial space on the ground floot.5 Essex entered into a subcontract with All-Safe to construct a material hoist, platform, and ramp; 6 a rental agreement7 with plaintiff's employer CAHC to supply, clean, and maii1tain portable restrooms for the workers on the project site; 8 a subcontract With ESI to perform excavation and · l. Si~ 5'.s SOMF 'iJl 3 (NYSCEF 374). 4 Id.a!~14 . s Plaintitrs: SOMF ,r22 (NYSCEF 314) a:nd Site 5/Essex'.s Respi:mse to SQMF (NYSCEF 461,,p.8).. [6] Plaintiffs SOtvlF 't124 (NYSCEf314) and Site 5./Essex ~s Respqnse tq SOMF (NYSCEF 46.1., p.8): .The third~p~ complaint against .Call~A-Hea!i cites an indemnification clause in.Articled 16.2 and 16.3" (NYSCEF 381, p. Io; 7 ,2 I), Howe\ler, the bvo-page rental agreement submitted by Site 5/Essex and Call-A-Head in support oftheirrespective motions (MQt. Seq. J 3 aJld 14) has only 14 paragraphs and no articles (NYSCEF 3(;7 ~d 394), Neither party has offered. proof of an additional agreement or contract. Ca:JI-A-Hea~ 's president attested that no .other agreerrierits could be located (See affidavit; 't13 [a] [NYSEF 367]). . .. . . [8] Plain~itrs SOMF 124 (NYS:CEF 314).and Site 5/Essex'sResponsc:,toSOMF (NYSCEF 461; p.8). Mendez. v Site 5, ettil. 5145.73/2017 Page 6 of 19 6 of 19 [* 6] foundation work; 9 and a subcontract with Earth to "dig a footing 1' 10 and maintain the ground surface of the proj ect11 Per the subcontract between Essex and All-Safo, All-Safe agreed to the fullest extent permitted by law to indenmify, defend, and hold Essex [the Indemnified Party] harmless from and against any damages arising from (a) injury or death to any person, (b) the failure of All-Safe to comply with the requirements of the subcontract, ( c) violations oflaw by All~Safe and hs subcontractors, or (d) any other damage or loss in connection with the work. 12 Similarly; CAHCagreed to (a) "in all events indemnify and hold harmless in respect to_ any and all claims or suits made or filed against [Essex] for bodily injury and/or property damage growing out-of the use of the Property" and (b) pay all reasonable fees an:d costs of all collection, includingreas onableattome ys' fees, incurred by [Essex:]if itis required to institute legal proceedings to collect any amount due hereunder or otherwise enforce its rights." 13 Per the rental agreement, CAHC was to provide the services tlrree times per week;14 Plaintiff's duties as a pump truck driver for CAHCinclud ed cleaning, draining, and filling the portable restrooms ("porta-potd.es") oi1 the premises. 15 It is alleged thatplaintiff sustainedhis injuries as the resultoftwou nwitnessed incidents while petforrriing his work duties. 16 The porta~potties were located on a wooden deck approximately five feet off the gtoundaitd accessible by a wooden ramp covered with.broken wire inesh. 17 To perform his duties,- it was necessary for plaintiffto walk upthe ramp to access [9] Earth/ESI's SOMF '1!8 (NYSCEF 445) and Site 5/Essex 's Response to SOMF '1!8 {NYSCEF 502); ·and see subcontract (NYSCEF 3~i . [16] See£ssex's deposition transcript at pAS; lines 2-7 (NYSCEF 323). Acopy of the subcontract was.not offered by any party, 11 NYSCEF 324 pp.36°4O . . . . . . 12 Subcontract Terms and Conditions 'i[l [el and '1!10 (NYSCEF 366, p.6) 13 Rental Agreement 'il'l! 13-14 (NYSCEF 394) .. 14 p;l (NYSCEF367and 31)4) 15 Sits! 5/Essex SOMP'i['ill-2 (NYSCEF 461) 16 Site 5/Essex SOMF 'i1'1!5-l 4 (NYSCEF 461). [17] Site 5/Essex SOMF '1!5 (NYSCEF 461) Mendez vSite. 5, eta/. . 514573/2017 Page 7 of 19 7 of 19 [* 7] the porta~potties. His duties included carrying a hose that was connected to his truck to dean and ''pwnp . out" the porta-:-potties. 18 While the pwnping was in progress, . . plaintiff was returning to his truck to obtain "blue liquid"when he tripped and fell on the wire mesh on the ramp. 19 Plaintiff continued to work, and on his way back to the porta-potties, his left foot tripped in a dirt hole, causing him to fall;he was not on the ramp atthe time. 20 Essex testified that the schematics for the ramp, which included provision of the wire mesh, were prepared by All-Safe' s professional engineer. 21 The witness for All-Safe contradicted Essex. All-Safe testified that the wire mesh was not part of the schematics and, if the witness had observed this ~ondition, he wouldhave removed the rnesh;2 2 However, both witnesses agreed that the wire mesh co11stituted an unnecessary tripping hazard. 23 The ramp on which plaintifffeHwas part of the jobsite and the only means of access to the porta-potties.24 It was Essex's proj ectmanager' s responsibility to inspect the jobsite, respond to complaints and barricade any holes on thejob site?~· Discussion Summary Judgment When deciding a sliinniary judgment motion; the Court's role is solely to identify the existence of triable issues, and not to determine· the merits of any such issues (Vega v Restani Consttuctiov Corp., 18 NY3d 499,505 [2012]) or the credibility of the movant's version of events (See Xiang Fu He v Troon Management, Inc., 34 NY3 d J67, 17 5 [2019] [internal citations [18] Plainiiff'sSOMF 1[6(NYSCEF 314) and Site 5/Essex's Response to SOMF (NYSCEF 461, pJ.). [19] Site. 5/Essex SOMF 16 (NYSCEF461) [20] Site5/Essex SOMF ill 1-12 (NYSCEF 461) .21 NYSCEF 322 48:1-13 2i NYSCEF 325: pp.53-54, 62, 64, 68-29, 154 [23] NYSCEF 322, pp. 62-63 and NYSCEF 325, pp.so.:5 l, 55 [24] NYSCEF 322; 71 :9-25, 72: I - 16 and NYSCEF 325,. p.43 [25] NYSCEF 324, pp.36-40, 56-67 .Mendez v Site 5, et al. 514573/2017 Page8ofl9 8 of 19 [* 8] .omitted]). The Court views the .evidence-in the light inost "fa,Vorable· . .to the norurtoving._party, . . affordjng· them th.e benc:::fit of all re_{'!.sonable infere_nces tl)at can be, dt~wn from the eyidence (see Negri v Shop & Stop, Inc., 65 NY2.d 625, 626 [1985]). The motion should be denied where the .facts are in dispute,· where different inferences may :be drawn:from the evidence, or. where the . .credibility of the .witnesses is in ·question (see Cameron v City ofLong Beach,-291 AD2d 773,, [774] [2d Dept. 2002]). Labor'Law § 240 (1) :It is well settled that Labor Law § 240 ( 1) "imposes. a nondeleg~bkduty @lld absolute liability upon owners and contractors for failing fo provide 13afety devices nt;:cessary fqr worke.rs subjected; to elevation-related risks'? who engage in activities· covered by the- statute ~nd "suffered an iiiju_iy as a direct consequeiice·-of a failure to provide adequate proiectfon'' against. sucli risks· (Soto v J. Crew, Inc., 21 NY3 d 562, 566 [2013] [internal citations omitted]). Such activities include, inter alia, cleartiug a buiiding or -structure (id). However, not all cleaning.-activities_. come within the ambit o{Labor-Law § 240 (1). Cleaning-cannot be-characterized as-a'covered activity :under the statute if the task: "(l) is routine, in the sense thatit.is ·the type. of job ·that occ~r$-rin a daily, weekly, or other relatively :frequent and recurring basis as part of the ordinary · maj.nteD®ce anq:_.cl'J.]:'e ofco1l1Illet(}ial premises; · (2) requires neither.specialized equipment or expertise nor the unusual deployment of labor; (3) generally involves insignificant elevation risks comparable to thoseinherent in typic_al dom~stic or h61,1sehold cleari~g,.and ·· (4} in light of the core purpose of Labor Law § 740 (1) to protect construction workers, [it] is Uirrelatedto any ongoing construction, reuovation~ painting, alteration, or repair project. (Sqto v J. Cr~w. Inc._; 21 NY3cl 568).. · Mendez.-vSite5, etal. 5l4573/2017 Page9 of 19· 9 of 19 [* 9] Finally, "the presence or absence of any one [factor] is notnecessaril y dispositive if, viewed in totality, the remaining considerations militate in favor of placing the task in one .category or the other" (Soto vJ Crew, Inc., 21 NY3d 569). Here, the plaintiff regularly performed porta".'potty. cleaning services three times weekly, requiring specialized equipment to perform the cleaning services as part ofthe ongoi.ng construction projectat the premises. Therefore, as an employee of a subcontractor hired in connection with the ongoing construction at the premises, plaintiffis a worker contemplated by "the core purpose of Labor Law § 240 ( 1)"· (Soto v J. Crew, Inc., 2 l NY3d 568-569; ·cf Blandon v Advance Constr. Co,, 264 AD 2d 550 [Pt Dept; 1999] [Plaintiffwas the buildinfs maintenance foreman and security manager who was not employed by a contractor or subcontractor hired as part of the construction project or performing duties related to the renovation work being petfotined at the premises:]), The Cotirt of Appeals case, Mordkoftky v V.C.V. Dev. Corp., 76 NY2d 573 [1990] relied upon by defendants pre-dates the Court ofAppeal's decision in Soto in 20 l3; which now extends protections to workers employed by asubcontracto r who performs cleaning activities directly Jelatecl to the construction project.rather than ordinary building maintenance and cleaning activities by building employees or homeowners (Soto vJ Crew, Inc., 21 NY3d 569). Under the facts presented, plaintiff's cleaning of the porta,-potties is not comparable to the c:ommercial or domestic cleaning oftoilets (id). 26 However, plaintiff's motion for summ:aryjudgtnenton the cause of action under Labor Law § 240 (l) is denied (MS_11 ), and the motion for Stimrnaryjtidgment dismissing this cause of action by defendants Site 5 and Essex is granted (MS;,_14). Plaintiff's testimony establishes 26 It is ofnci significance that plaintiffwas not carrying the hose at the time he fell (See AU.Safe's Memorandum of Law (NYSCEF 427, jJ. l l). . . . . . . . Mendez v Site 5, et al. 514573/2017 .. Page 10 of.19 --······ 10 of 19 ------- ------- ------- ------- ·-······ ········ ------- ------- [* 10]