Calegari v. Rinaldi Group, LLC

Calegari v Rinaldi Group, LLC 2025 NY Slip Op 31613(U) May 5, 2025 Supreme Court, New York County Docket Number: Index No. 150671/2021 Judge: Mary V. Rosado 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: NEW YORK COUNTY CLERK 05/05/2025 04:54 P~ INDEX NO. 150671/2021 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 05/05/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice ------------------------------------------------------------------------------X INDEX NO. 150671/2021 SILVERIO ROCHA CALEGARI, MOTION DATE 05/31/2024 Plaintiff, MOTION SEQ. NO. 002 - V -

THE RINALDI GROUP, LLC, 106 WEST 56TH STREET DECISION + ORDER ON PROPERTY INVESTORS Ill, LLC, MOTION Defendant. --------------------------------------------------------------------------------X

THE RINALDI GROUP, LLC Third-Party Index No. 595507/2021 Plaintiff,

-against-

MOB DEVELOPMENT CORP.

Defendant. --------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 002) 61, 62, 63, 64, 65, 66,67,68,69, 70, 71, 72, 73, 78, 81, 82, 83, 84, 85, 88 were read on th is motion to/for JUDGMENT-SUMMARY

Upon the foregoing documents, and after oral argument, which took place on February 25,

2025, where Julio Cesar Roman, Esq. appeared for Plaintiff Silverio Rocha Calegari ("Plaintiff'),

Dennis S. Heffernan, Esq. appeared for Defendants The Rinaldi Group, LLC ("Rinaldi"), and 106

West 56 th Street Property Investors III, LLC ("106 West 56th Street"), and Carl A. Formicola, Esq.

appeared for Third-Party Defendant MDB Development Corp., Plaintiff's motion for summary

judgment on the issue of liability with respect to his Labor Law §§ 240(1) and 241 (6) claims is

granted in part and denied in part.

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I. Background

On December 2, 2020, Plaintiff was employed by MDB Development Corp. as a mason

employing stucco at a construction site at 106 West 56th Street, New York, New York (the "Site")

(NYSCEF Doc. 65 at 32; 35). Defendant 106 West 56 th owned the Site, while Rinaldi was the

general contractor and MDB Development Corp. was a subcontractor (NYSCEF Doc. 68 at 24-

25). Plaintiff moved materials back and forth from sidewalk bridge to the second floor using a

makeshift wooden ladder (NYSCEF Doc. 65 at 47-48). Plaintiff was climbing the ladder when the

ladder, which he testified was unsecured, moved and Plaintiff fell (Id. at 57). Plaintiffs supervisor,

Nicholas Fiorello, testified the ladder was the only way to access the second floor and that it was

provided by Rinaldi (NYSCEF Doc. 71 at 32). Mr. Fiorello could not recall whether the ladder

was properly secured on the date of Plaintiffs accident (Id. at 28) and he testified that because the

ladder was provided by Rinaldi, MDB did not inspect it (Id. at 50). An incident report authored by

Mr. Fiorello stated that Plaintiff slipped on the ladder, however Mr. Fiorello could not remember

the source of this information and he personally did not observe Plaintiff fall (Id. at 71-72). In this

motion, Plaintiff moves for partial summary judgment with respect to the issue of liability on his

Labor Law§§ 240(1) and 241(6) claims. Rinaldi and 106 West 56 th Street oppose.

II. Discussion

"Summary judgment is a drastic remedy, to be granted only where the moving party has

tendered sufficient evidence to demonstrate the absence of any material issues of fact." (Vega v

Restani Const. Corp., 18 NY3d 499,503 [2012]). Once this showing is made, the burden shifts to

the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to

establish the existence of material issues of fact which require a trial (See e.g., Zuckerman v City

of New York, 49 NY2d 557, 562 [1980]). The Court of Appeals has instructed Courts to interpret

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Labor Law §240(1) liberally to accomplish its purpose of ensuring workers are properly protected

against elevation related hazards (Zimmer v Chemung County Performing Arts, Inc., 65 NY2d 513

[1985]).

Plaintiffs motion for summary judgment on the issue ofliability with respect to his Labor

Law § 240(1) claim is granted. There is no dispute that Defendants are proper Labor Law

defendants. Nor is there any dispute that Plaintiff was engaged in construction work coming within

the ambit of Labor Law § 240(1 ). There is uncontroverted testimony from Plaintiff that he fell

after the makeshift ladder he was using moved while ascending from one floor to the next. When

a makeshift unsecured ladder moves or shifts, there is a prima facie violation of Labor Law §

240(1) (see Sanchez v MC 19 East Houston LLC, 216 AD3d 443,443 [1st Dept 2023]). Plaintiff

was not required to show the ladder was defective to establish his prima facie entitlement to

summary judgment under Labor Law § 240(1) (see Rodas-Garcia v NYC United LLC, 225 AD3d

556, 556 [1st Dept 2024]; Lin v JOO Wall Street Property LLC, 193 AD3d 650, 651 [1st Dept

2021 ]). Moreover, no party disputes that the makeshift ladder was only secured by rope on one

side, but the other side of the ladder remained unsecured, allowing it to move and cause Plaintiffs

fall. Indeed, when asked, Mr. Fiorello, Plaintiffs supervisor, could not recall whether the ladder

was properly secured. That the ladder did not move on prior occasions does not negate Plaintiffs

uncontroverted testimony that at the time of his accident, he fell because the unsecured ladder

moved.

Where there is a prima facie violation, it is impossible for a plaintiff to be considered the

sole proximate cause of his accident (Suazo v 501 Madison-Sutton LLC, 235 AD3d 513 [1st Dept

2025]). Nor do any issues of Plaintiffs comparative negligence preclude summary judgment on

the issue of liability with respect to his Labor Law § 240(1) claim (Rodriguez v City of New York,

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31 NY3d 312 [2018]). Moreover, the Defendants' reliance on their expert affidavit is insufficient

to raise an issue of fact where the Defendants' expert did not examine the ladder or location of

Plaintiffs accident, and instead relies on undated photographs of the ladder and merely resorts to

attacking Plaintiffs expert affidavit as speculative (Rivera v 7I 2 Fifth Ave. Owner LP, 229 AD3d

401,403 [1st Dept 2024] citing Ciborowski v 228 Thompson Realty, LLC, 189 AD3d 428 [1st Dept

2020]). Further, to the extent Defendants' expert attacks Plaintiffs expert's conclusions, that is

insufficient to deny summary judgment as Plaintiff is not required to produce expert testimony to

show a prima facie entitlement to summary judgment under Labor Law § 240(1) (Jara-Salazar v

250 Park, LLC, 231 AD3d 674, 674 [1st Dept 2024]). Likewise, the accident report which

Defendants rely on, which is not annexed as an exhibit, contains hearsay, and was allegedly

translated from Spanish to English but there was never any translator's affidavit produced, making

it insufficient to defeat summary judgment (Nava-Juarez v Mosholu Fieldston Realty, LLC, 167

AD3d 511 [1st Dept 2018]).

Therefore, Plaintiff is entitled to summary judgment on his Labor Law § 240( 1) claim.

Plaintiffs motion for summary judgment on their Labor Law § 241 (6) claim is denied as academic

(see Perez v 1334 York, LLC, 234 AD3d 455,457 [1st Dept 2025]).

Accordingly, it is hereby,

ORDERED that Plaintiffs motion for summary judgment is granted in part and denied in

part; and it is further

ORDERED that Plaintiffs motion for summary judgment is granted to the extent that he

is granted summary judgment on the issue ofliability with respect to his Labor Law §240(1) claim

against Defendants The Rinaldi Group, LLC, and 106 West 56 th Street Property Investors III, LLC;

and it is further

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Footnotes

[4] of 5 [* 4] ORDERED that Plaintiffs motion for summary judgment with respect to his Labor Law §241(6) claim is denied as academic; and it is further ORDERED that within ten days of entry, counsel for Plaintiff shall serve a copy of this Decision and Order, with notice of entry, on all parties via NYSCEF. This constitutes the Decision and Order of the Court. 5/5/2025 DATE RY V. ROSADO, J.S.C. CHECK ONE: CASE DISPOSED x NON-FINAL DISPOSITION GRANTED □ DENIED x GRANTED IN PART □ OTHER APPLICATION : SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE : INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE 150671/2021 CALEGARI, SILVERIO ROCHA vs. RINALDI GROUP, LLC Page 5 of 5 Motion No. 002

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