Huaylla v. Chestnut Commons Hous. Dev. Fund Corp.

Huaylla v Chestnut Commons Hous. Dev. Fund Corp. 2025 NY Slip Op 31198(U) April 9, 2025 Supreme Court, New York County Docket Number: Index No. 159180/2020 Judge: Lisa S. Headley 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.

INDEX NO. 159180/2020 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 04/09/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LISA S. HEADLEY PART 28 Justice X --------------------- . -~-· _r<TT• . . . . . . . . . . . . ~ - - - - - - - - - - - - - - - - - - - - - - - - - - INDEX NO. 159180/2020 OSCAR E. MOINA HUAYLLA, 10/29/2024. Plaintiff, MOTION DATE 10/29/2024

-v- MOTION SEQ. NO. _ _ OOJ qq~--

CHESTN UT COMMONS HOUSING DEVELOPMENT FUND CORPORATION, LETTIRE CONSTRUCTION CORP. DECISION + ORDER ON MOTION Defendant. ----------------------------------------TTT~OT . . . . . . . . . . . . . . . . . ··~-~-~~---X

The following e-filed documents, listed by NYSCEF document number {Motion 002) 34, 35, 36, 37, 38, 39,40, 41, 42, 43, 44,45,46, 47,48,49, 59, 61,63,65, 67.68, 69, 81, 82, 83, 84. 85, 86 were res d 011 th is motion to/for JUDGMENT - SUM MARY

The foflowing e-filed documents, tisted by NYSCEF document number {Motion 003) 50. 51. 52. 53, 54, 55, 56, 57, 58, 60, 62, 64, 66, 70. 71, 72, 73, 74. 75. 76, 77, 78, 79, 80 were read on th is motion to/for JUDGMENT - SUM MARY

Before 1he Courl is lhe motion (seq. no. 002) filed by the defendants. Chestnut Commons Housing Development Fund Corporation and Lettfrc Construction Corp. {"'defendants'"), for summary judgment, pursuant to Cl,LR §3 212, dismissing plaintiff'~ complaint. (See, l../YSCEF Doc. ?•./os. 34 - ./7). Plaintiff filed oppositio11 to the motion. (,\-'YSCEF Doc. lVo.v. 67 ~ 69). Also, before the Cout¹ is the motion (.,·eq. no. 003) liled by pluintiff, Oscur \foina IIuaylla ("plaintiff'), for an Order granting summary judgrn~nt on liability against defendants based on their violation oLVe w York ,\'1 are Lahor La.1-" §§2 40 and 2 ./ 1(6) and setting this ma rt er d O\Vll for a trial on damages only. Defendants filed oppo8ition, and plaintiff filed a reply. arguing that the opposition was filed unlimdy and only seven days prior to the return date the motion. or In the complaint, the plaintiff alleges that defendant Chestnut \-vas the 0v.·ntr of lhe building Jocated al l IO Dinsmore Place, llrooklyn. Nc\v York ("suhjed premises"), where the subject accident occurred on September 20, 2020. Defendant !..enire was tht general contrnctor on the subject pn;m1ses, \vho hired subcontrnctor and 110n•pany, \loon~ Group, Lo perfi.)m1 concrete work of a n1:w building at the suhject premises. Plaintiff was employed by Moore Group and v.-"as on the site to perform carpentry and concrete work. Ph:iintiff asserts that while he \Vas perromiing his work on the floor of th1.; building, he left the floor to go to the restroom. and whGn he rd urned he walked underneath plywood Jocatcd at the ceiling and the plywood above him struck him in his head. (See. lvTSCEF Doc. No. 55 at 3 l ). Plainli ff a-;serLs that there ,vas no warning posted or no yellow security tape located on the 6{h floor, and he did nol see that upon his return from the

1591 llOf.,l-O 20 MO INA HUA YLLA, OSCAR E. vs, CH EST NUT COMMONS HOUSING Page 1 of6 Moti-cin No, 1)02 003

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INDEX NO. 159180/2020 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 04/09/2025

The duty imposed by Lahor Law § 240(Jj is nonddegable, meaning that an owner or contractor ,vho vioiaws this duty can be held Jiabk for damages, regardless of whether they exercised actual supervision or contro] over the work. See: e.g., Haimes v. },lew York Tei. Cu., 46 X Y.2d 132, 136-13 7 ( J978). With respect to a falling ohjecl, lubor Lmr §240 (J) applie~ where the falling of an object is related to ··a significant ris;k 1nherent in ... the relative elevulion ... at which materials or loads must be positioned or secured." Rocovich v. Consolidated F.dison Co .. 78 1'.".Y.2d 509_. 514 ( 1991). In assessing liability under New York\ .\'ca..(fhtd rmv, the legislative intcnl behind Labor Law .f 140(/j is to ensure that appropriute safety measures are in place. rcgardlt~-;s or logistical challenge-; or inheren1 danger. See) e.g. Rocovich v. Consolidated EdLwm Co., 78 l\.Y.2d 509, 514 (l991). To pr~vail on a Labor Law§ 140(1) claim, the platnti ff must ~stablish that the violation of the statute v,,.as ;::i proxtmate cause of his or her injurie::;. Riake v. ]\TeiJ;hborhood I lou.r. Sen-'s. of lilew York Ciry, inc.: 1 N. Y.:ld 280, 286 (2003 ). Liahi lity u11der the Scaffolding Law depends upon the injury having reslllte<l from ,;the failure to u~t, or the inadequacy of ... a devic~ '' v.-"ithin the purview of the stutute. Ortiz v. Vtlnity Holdings, LLC, 18 N.Y.3d 335, 340 (2011) (internal quotation marks omitted}. Furthennore, v.·hen t\vo conflicting: versions of an event arc pres~nu~d, and under either version) ;{;afety devices are either absent or inadequate to protect the plainti f1~ the e;,;;istence of such conJ1 icting ciccounts docs not 1;r(;ute ,.m issue of material fact sufficient to pl'eclude summary judgment. See, Juculano v. City ofl•../ew York, 214 A.D.3d 535 (]st Dep't 2023). Here, thi~ Court finds that the plaintiff established a prima facie entitlement to summary judgment on the f.abor Law §240(li cluims. The type of work being performed: inctuding removcng support posts, and the stripping; oflumbar, involves a 1ua<l that l'equircd securing ber..:.a.use plaintiff'~ inj U!)' \V."I s the fore sc cah le cons eq u encc of the risk or performing the task - that being a falling plywood. Further, there i:;; no dispute that a safety device was not in place to prevent plyv..·oo<l from frilling. Dcfrndant-Lettire 's witness~ \ifr. l ,orenzo testified that Juring the stripping proces.s, the plyv,,:ood was dropped under "controlled circumstances." However, the pJy\vood should have been seemed again~t falling and collap-;e by securing the plywood withjacks or posts or other suppoiting members and/or that the plywood should have been removed immediately if any _'jUppQrts had been n~moved. See of.w, Gutierrez v. 610 Lexington Prop .• LLC) 179 AD.3d 513, 117 N.Y.S.3d 208 (1st Dep}t 2020). Tot.! Court also agree.:; with the plaimiff's expert, Mr. Dolhon, who opined that the defendants violated labor Law .6'2-HJ ha.sed upon their failure to secure the s;uspended plyv,:nod. A(;cordingly, {he plaintiffs motion ft1r summary judgment '1.S to the issue ol. liability on the issue of Labor luw §240( 1) is granted, and the defendant'~ motion for summary judgment to dismiss the f.ahor Law §2-10(!) claim is dl!nieJ. Labor. Law ,!)'241(6) Defendants argue that plain ti ff s f.abvr Law .{-'24 I (6) claim should be djsmissed hecause the plainli ff foiled to cstahl ish a violation of a specific salety provision required by 1hc _:,.,f cw York Industrial CoJe. Specifically, Defendants (:Ontend that Industrial Code §23-1. 7(a)(2} is irrnppl [cable, as the vmrksitc \Va:--: not "normal iy exposed" to fol ling object\ and Plaintiff purpo,~eful ly entered the area during s[ripping operations, rendering han-icflding requirements

159180I::Z0 2C MOINA HUA Y L.L.A, OSCAR E. vs, CH EST NUT COM MONS HOU SI NG Page 3 of 6 Motion No. 002 00 3

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INDEX NO. 159180/2020 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 04/09/2025

unJt'r Industrial Code §23-1. 7(a). Id. [Internal citations om11ted]. Further, the plaintiff and defenJanLs present conflicting tes.fonony as to whether there was yellow caution tape to prevent inadvertt:nl entry in the subject area. Therefore, as there are issues of fact as to whether the subject area was normally expo~ed to falling objects, the hrarn,:.h of Plaintiffs motion seeking wmm,eiry judgment on his f.ahor !.ow §241 (6) claim i.isofar as it is predicated upon a violation of i 2 ATCRR 23-1. 7 (a) (l) and(2) is denied. ln addition, thi.s. Court finds that triahle isslles exist regarding whether '>L1pports were in place during lhe placing of concrete or after the concrete had dried. Therefore, the plaintiffs motion for summary judgment as it applies to the application of 1J NYCR R 23-2. 2(a) and (b) is denied. Consequently, the defendant's motion for summary judgmtnt to di~miss these claims is also denied. Labor Lq~1---· f!OO In support of the motion f'or summary _judgment to di.smiss, the defendants argue: inter alici, that plaintiffs Lah or Law )-20() and common Jaw negligence cbims. should be dismissed hec;~use the defendants neither created nor had actual or con-;truct1ve notice of the conditions leading to plaintiff's injury. Sped fically, detcndar:11.:; as~ert that the alleged dangeroL.1s cc.mdition arose solely from the :'iukuntractor's methods and materials. Defendants. also argu~ that mere retemion nf general SL1pervisory authority or en rorc~ment of general safoty standards does not establish the requi-;i le level of control and that the defendants did not direct, c:ontrol, or supervise the stripping operation, and the injury resulted exclusively fro111 plaintiffs 0\,..1l actions and the methods ~mployed by subcontractor~, which precludes imposing liability on defendants. (NYSCEF l.Joc . No. 46). ln oppnsilion, plaintiff argues, inter alici, that defendants failed t0 satisfy their prima.fucie burden on their moLion to dismiss the l.ahor Law §200 and common lav,.r neg.ligencc claims. SpecificaHy 1 pbintiff argues that defendants' affirmation arid memorandum of law are dt'void of testimony or factual proof eliminating their actual or constructive notice of the hazardous condition ca.using plainti h\; injury. Labor Luw §200 c1aims arjsc from an alleged defect or dangerous condition existing on the premises and those arising from the man n~r in which the work was perform ed. N. Y. Labor Law :{•'2()0. Under Lah or Lmv :§200_. it js the g~neral duty of owners and contractors to make certain al I equipment, machinery, and devices arc positioned, operated, and guarded in a Sd;ure manner. Id. ··For an ov,mer to be held liable for comm{)n-la\V negligence or p1,.1rs.uant to !.abor Lmv §200, a plaintiff must show that the o\vncr supervised or con1rniled lhe work or ha<l actual or constructive notice of the unsafe condition causing the accident." Cuartas v. Kourkou.melis. 265 A.D.2d 293, 696 I\. Y.S.2d 475 (1999). Herc, the Coun finds that defendants have foiled to establish its prima.facie entitlcmc-nt 10 summary judgment t0 dismiss the Labor Law .{20() claim as a matter of law. Specifically. the evidcnc~ subniittc-d indicates a triable is.sue as to whethtr the dcfcndari ls exercised the requisite c:ontrol over the meuns and methods by which Lhe \vork was carried out and whether the defendants breached its common lmv duty to prnvide the plainLi ff with sak wmking conditions. Accordingly,

1591 5012020 MOINA HUA Y L.LA, OSCAR I:;, vs, CHEST MUT COMMONS HOU$Ir,.,iG Page Sof6 Motion No. 002 003

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the Court denies the branch of the defendants' motion fr)r summary judgment dismissing the plaintiffs cJaims alleging common-law negligenc:~ and a violation of Labor Law §200. Accordingly, it is hereby ORDERE:D thm defendant~ Chestnut Commons Housing Development Fund Corpnration and Lett ire Constructi0n Corp.· s summary judgment motion to dismiss the plaintiffs complaint 1s DE~lED~ and it is further ORDERED that the portion ofph:iintiff Oscar Mojna Huaylla's ~ummary judgment motion for an Order a-; to liability against defendants, Chestnut Commons Housing Development fund Corporation and r,el ti re C onstru cti on Corp., based on th cir viol at ion of New York St ate Labor Law §240(1) i~ GRANTED; and it is further 0 RD F: RF.. D tl1 at Ihe portion of plaintiff Oscar M 0 in a H uay 11 a• s summary jll dgmcn t motion thr an Order as to liability against defendants, Che~lnut Commons Housing Development Fund Corporation Bnd Letrirc Construction CO!]_)., based on their viola1ion oL'l/ew York Srwe fabor /,(.ru• §2</l (6) is DENILD: and it is further OR0F..RED thut any requested relief sought n0t expressly addressed herein has noncthek~::. b~en considered; and it is further ORDERED that within JO days of entry, p]aintiff shall serve a copy of this Decision/Order upon ull parties with notice of entry. This cons1itutcs the Decision and Order of the Court.

4/Sf2025 DATE

~ CHECK ONE: CASE DISPOSED NOl'l-FINAL DISPOSITION

GRANTED □ Dl;:t-11 ED GRANTED IN PART □ OTHER APPLICA Tl ON: SETTLE ORDE: R SUBMIT ORDER

CHEC~ IF A.PPR:OPR:IATf:; INC LUDE:S 1 R_ANSFi= R/1<:~SSIG N Fl DU CIARY APPOl~TME:NT LJ REFERENCE

Footnotes

[1] of 6 [* 1] bathroom to the floor that pieces of plywood had already been removed, that the support posls were removed~ and plywood was going to drop. Plajntiff ahm a~serts that there was no other route to retum to his work area from lhe bathroom other than under the plywood which aJlcgcdly struck him. The plaimi ff a-;serls separate causes or actions against defendant Chestnut Commlms, as the owner or lhe subj~ct premises, and Letti re Conslruction, as th~: general contra'.:tor. As to the defendant, ChesL11 l.ll Commons, the plaintiff assens in the Complainl the l<)llowing causes of action:'i: neg ligen.ce, carelessness and violations of the Labor I .aw·s or State of New York, including, bllt not limited to Lahor Faw §§200, 240 and 241 (6) and l 2 l·lYCRR 23-1. 7(a}(2). (See, N'fSCF;F Doc. No. 1, Complaint (I!, 9). As to the dcfcndanL, Ldtire Construction, the pluintiff asserts jn the Complainl lhe following causes of a.ctions: negligence: careles~ness and violations of the Lahm J.uv,,•s of State of :'.'-l"cw York, including, but not limited io Lahor lc.r+4' §§200, §240 and §2.:/ l (6) uml 12 NYCRR 23- 1. 7(a)(lj. (Se~, Complahrt at ~I 25). CI'LR S 3211 ··Jt i:s weH settled that ·the proponent of a summary judgment motion must make a prima fa cir; ~ho,,,ving of cntitlcmenl to judgment as a matter of. luw·, tendering sufficient evidem::e to demonstrate the ab:sem:e of any matcrtal is~ue~ offm;.t." I'ul1man v. Silverman, 28 N.Y.3d 1060. l 062 (20 l 6 }, Ah·arc: v. Prospccl Hosp., 68 KY .?d 320, 324 ( 1986). iiF ail me to make such showing. require~ denial ot· the motion regardle-;s ot· the sufficiency of the oppo'.::>ing papers.'' Winegard v. l\rew York Univ. Afed. Ctr., 64 N. Y.2d 8 51, 853 (l 985) (inlernal citations omitted). "On a motiun for summary judgment, facts mu~t be vtc\vcd in the light most favorable to the non- moving party.:' CPLN. § 31 l 2. ·"Once such prtma(t1cie showing has been made, the hurden '.::>hifts to the party oppo~ing 1he motion to produce cvidentiary proof in admissible fom1 ~llfficient to raise material issues or fa.cl which require a trial of the action." Cabrera v. Rodriquez, 72 A.D.3d 553) 553-554 (1st Dep't 2010). Labor Law{: 740(1) h1bor Law§ 240( l ), als0 k.110\Yll as •·K C\V York's Scaffold Lavi' impo-;~~ ·'absolute liability on building owners. an<l contractors whose foil ure to provide proper protection to worktrs employed on a cons1ruL:tion site proximately causes injury to a wmker." See, St'ilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 N. Y.3d 1, 7 (2011 ). The Scaffold law states: ''la]ll contractors and owners and their agents) exc~pt o•;,,mers of one and two-family d,;,vclhng::;, who contract for but do not direct or crn1 twl the work 1 in the erection_. demolition, repairing, ultering, painting, cleanjng or pointing of a building or structure shaU furn rsh or creel, or cause to be furnished or erected f,x the performance of such lahor, sc."lffolding~ hoists, stays, ladders, slings, hangc~, hl0cks, pulleys, hr.ices, irons, ropes, and other d~vi ces which shall be so cons.tn.1c1e<l, pl aced and op~rated as to give proper protection w a pers.on so employed.:: ~v. Y Lahor Law§ 240(1). 1:59180[2020 MO INA H UAYLLA, OS C:A R E, vs. CHESTNUT COMMONS HO US ING .Page 2 of S Moll M No, 002 003 [* 2] 2 of 6

[3] of 6 [* 3] irrelevant. AdditionaHy. Defendants as::;,ert that Industrial Code §23-1.5, addr~ssing general safety r~sponsibilities, lacks the specifi..:ity n~cessary to support a §241 (6) daim. They further maintain lhat compliance \Vith Industrial Code §23-1. 7(a)(l) regarding overhead protection was impractical and v,,:ould have oh~tru1.:led stripping operations. In addition, the defendants argue that Indus/rial Code§§ 23-1.3 and JJ-2. 2(aj-(c) do not appty~ given thal stripping inherently involves dismantling protectjve forms and s1ruclures, rendering these provi~ions inelevant to Plaintiffs circur:n.:;tances. To the contrary, th~ plaintiff argues that Ihc defenJanb · actions violated lnduslrial Code §§ 23-1. 7(a)(l) and (a)(2) because there was no ::;e(;urity tape or warning signs to limit ru.:cess to the work area ~ince the worksitc was suhject to falling objects, Sllch as p!ywood that was in the process of being removed by worke~. The plaintiff contends that the removed plywood was no longer secured by supports and po.s.ts, therefore barricades and overhead protections should have been provided at the worksite. Specifically, the plaintiff argues thal Industrial Code §2 3-1. 7(a)(2) is applicable in liis cm,e bt'c(1use the area where 1he plywood struck him was not the area where plaintiff was requir~d to \.vork, and that the area \vhere defendants· employees were drilling and chopping conneLe on the floor was not blocked off, and there \Vere no warnings posted to indicate the danger of falling debris. In uddition, the plaintiff argLies that Industrial Code §23-2.2(a) and (b), \Vhich applies 10 concrete work, arc applicable in this case. first, f 2 :VYCRR § 13-2.2(a) provides that"lfJorrns, ~hores and rcshores shall be structurally safe and shal I be properJy braced or tied together so as to maintain position and .s.hape.'' 12 NYCRR ,{23-2.2. Second, 12 }./YCRR § 23-2.2(b) provides that ild]csignatcd persons shall continuously in'>p~ct the stability of all forms, shores and rcshorcs induding all hrnces a11d other supports during Lhe pJa.cing of concrete. Any unsafe condition shall be remedied imm~diateJy_:: ld ln this case, plaintiff claims through their expert's opinion thm the defendants foiltJ to ensure that the fc}mnvork and shoring (the plywood) were structuraHy sale and fa1led lo rnntinuously inspec1 lhe stability of the plywood frpmework. (NY5,'C8F Doc. ,Vo. 57 at 16). To the contrary, the defendants argue the stripping p~rfom1ed \vas intended to remove and dismantle those forms after the (;Oncrete had dried~ thus, the above-mentioned provisions are not app Ii cub le. Here, this Court finds tllilt Industrial Code §23-1. 7(a) does not apply to the facts of this case because this section is applicable only \.vhere there is evidence that the plaintiff \Vas inj urtd in an areu vvhere workers \.Vere " normally exposed to falling objects." Sfc also, Metvin v. Cny Const. /1.-1gl.. Inc., 20 I 8 N. Y. Slip Op. 30560 IU I, l 7 ()l.Y. Sup Ct 1 New York County 20 l 8). Htre, there is no dispute that there were no protections in place as the defendunts argued that overhead barricades \vould make the removal work impos,~ihle. However, the plaintiffs rirgumcnt that the plywood should have been secured and there was plywood in the process of· heing removed by workers suggests th.at the area where he wa~ working was not one that is normall:' exposed to falling material or objects. See, Gabriel RodFigucz Be ranees v. Smitell LLC, 2022 N. Y. Slip Op. 32067[L""I, 8 {N. Y. Sup Ct. Kings County 2022). "Al though this regubti on is sufficiently specific to support a cause o(· ac:tion under Lahor law§ 241 (ti), the plaintiff has foiled to make a prima facie shmving that the area \vhere he wa~ working was an area ncmnaHy exposed to falling objeds 16El180l20.lC MOINA HUAYLLA, OSCARE.11:s. CHESTNUT COMMONS I-IOUSlNG Page 4 cf 6 Motion No. 002 003 [* 4] 4 of 6

[15] 91 :;10/2020 MOINA HUA Y L.LA, OSCAR E. vs. CH EST NUT COM MO NS HOUSING Page 6 of 6 Mot!Or'I No. 00 2 003 [* 6] 6 of 6