Carvalho v. Lotus Residence LLC

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Carvalho v Lotus Residence LLC 2025 NY Slip Op 31764(U) May 14, 2025 Supreme Court, Kings County Docket Number: Index No. 523886/2020 Judge: Steven Z. Mostofsky 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.

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At an IAS Term, Part 9, of the Supreme Court of the State of New York, held in and for the Coun ty of Kings, at the Courthouse, at 360 Adam s Street, Brooklyn, New York on the 14th Day of May, 2025.

PRE S ENT : HON . STEV EN Z. MOS TOF SKY , Justice. ---------------- ------ --- --- ------ --- --- ------ ------ ------ -X VINI CIUS COU TO CAR VAL HO,

Plaintiff,

-against- Inde x No.: 523886/2020

LOTUS RES IDEN CE LLC AND RIVE RSID E DEV ELO PER S USA INC. ,

Defe ndan ts. ------------------------------------- ------ --- ------ --- --- -X

The following e-filed papers read herein: NYS CEF Doc Nos.: Notice of Moti on/O rder to Show Cause/ I Petition/Cross Motion and Affidavits (Affirmations) Anne xed Opposing Affid avits (Affirmations)- ----- 72-131 _ _ _ __ 103-121 Affid avits / Affirmations in Reply_ _ _ _ __ Exhibits 126-128 --------------- Var.

Vinicius Cout o Carvalho ("pla intiff ') commenced an action against defen dants , Lotus Residences LLC ("Lotus"), and Riverside Developer s USA Inc., ("Riverside"), alleging that defen dants violated Labo r Law § 240(1 ), and § 241 (6). I Defe ndan ts, Lotus and Riverside, cross-move, seeki ng summary judg ment dismissing plaintiff's complaint that they violated Labo r Law § 240(1), § 241(6), and § 200.

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irons, ropes, and other devices which shall be so constructed , placed and operated as to give proper protection to a person so employed." I It is, by now, well established that the duty imposed by Labo r Law§ 240(1) is non- delegable and that an owne r or contractor who breaches that duty may be held liable for damages regardless of wheth er it has exercised supervision or contr ol over the work (Ross v Curtis- Palmer Hydro-Electric Co., 81 NY2d 494, 500 [1993 ]). The purpose of Labo r Law §240(1) is to protect construction workers "from the pronounced risks arising from construction work site elevation differentials" (Runner v New York Stock Exch., Inc., 13 NY3 d 599, 603 [2009]). The worker's injuries have to be a direct consequence of failur e to adequately protect against risk arising from physically significant elevation differential (Id.). In other words, Labor Law § 240(1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder, or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person (Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494,⁵ 01 [1993]). The right ofrec overy affor ded by the statute does not extend to other types of harm, even if the harm in question was caused by an inadequate, malfunctioning, or defectively designed scaffo ld, stay, or hoist (Id.). Whether a device provides proper protection is a question of fact, except when the device collapses, moves, falls, or otherwise fails to support the plaintiff and his or her materials (Melchor v Singh, 90 AD3 d 866, 868 [2d Dept 2011]). A fall from a ladder, by itself, is not sufficient to impose liability unde r Labor Law § 240 (1) (Id.). There must be evidence that the subject ladde r was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial facto r in causing the plaintiff's injuries (Id.). Plain tiff was engaged in one of the enumerated activities I unde r Labor Law 240(1 ), as he was performing construction work while on a ladder. Plain tiff's accident was gravity related as he fell from a height from the second or third rung of the ladder, which was approximately ten 3

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(10) feet (NYSCEF Doc. No. 96 at p. 2). Plaintiff allege s that his injuries were sustained as a direct result of failing to provide adequate protection again st the risk of falling from the ladder, which became slippery and dirty from the rain (NYSCEF Doc. No. 111 at p. 45-46). In Milligan v Tutor Perini Corp., 191 AD3 d 437 [1st Dept 2021], the court held that plaintiff established prima facie that plaintiff's work expos ed him to an elevation-related risk against which defen dants failed to provide him with prope r prote ction, as required by Labor Law § 240(1 ). Plain tiff testified that he was injured when he fell while using a wet and slippery wooden ladde r provided by defen dants for him to move betwe en the tenth and eleventh floors of the construction site to perform his work (Id.). Therefore, I Plain tiff was not required to show that the ladde r was inherently defec tive (Id.; see McCarthy v Turner Constr., Inc., 52 AD3 d 333 [1st Dept 2008]).

Plain tiff established that he was going from the first floor to the basement using a wood en ladde r (NYS CEF Doc. No. 111 at p. 44-45), the ladde r was wet due to the rain (Id.), and as plaintiff was coming down the ladder, he slipped and fell from a height of approximately ten (10) feet (Id. at 46) as a result. While plaintiff was weari ng a harness, hard hat, and synthetic gloves (NYSCEF Doc. No. 75 at p. 45), plaintiff's emplo yer still sent plain tiff out in the rain to work on a wet ladde r despite the known risk of falling while working at height of approximately ten (10) feet in inclement weather. Given the weather condi tions, plaintiff should not have been using the ladder. Therefore, plain tiff was exposed to an elevation-related risk against which defendants failed to provide him with proper protection.

Defen dants contend that their lack of supervision of plain tiff at the worksite exculpates it from the absolute liability for failure to furnish or erect safety devices that are necessary to protect workers from sustaining fall-related injuries. Aaron Goldberger, the project manager for Riverside, testified that he did not recall any issues with the job-built ladders, that the decision to

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work in the rain was at Magellan's discretion, and that he was not responsible for determining whether Magellan workers should stop work due to the rain (NYSCEF Doc. No. 74 at p. 4). Furthermore, defen dants argue that plaintiff's accident and resulting claims arose from his use own use of the ladder, that all necessary safety equipment, including a harness, hardhat, gloves, and goggles, were available, and plaintiff has failed to establ ish that he fell from any significant height. However, the defen dants ' contentions fail, and while plain tiff has established a prima facie case, the defen dant has failed to show that a mater ial issue of fact exists. In Blake v. Neighborhood Haus. Servs. ofN. Y City, Inc., 1 N.Y.3d 280,2 87 [2003], the Court of Appeals held:

Liability unde r Labor Law § 240 (1) as "absolute" in the sense that owners or contractors not actually involved in construction can be held liable (see Haimes v New York Tel. Co., 46 NY2 d 132, 136 [1978]), regardless of whether they exerc ise supervision or control over the work (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2 d 494,5 00 [1993]). Intending the same meaning as absolute liability in Labor Law§ 240 (1) contexts, the Court in 1990 introduced the term "strict liabili ty" (Cannon v Putnam, 76 NY2d 644,6 49 [1990]) and from that point on used the terms interchangeably. Furthermore, once a court determines that an owner or contr actor has failed to furnish or erect the requisite safety devices, absolute liability results even where the owne r or contractor has exercised little or no supervision, control, or direction over the injury-producing work (Haimes v. New York Telephone Co., 46 N.Y.2d 132, 137 [1978]. Therefore, defendants, Lotus and Riverside, have failed to meet their prima facie burde n under Labor Law § 240 (1) that their lack of supervision of plaintiff at the work site exculpates them from the absolute liability for failing to provide safety devices.

Plaintiff has therefore met its prima facie burden under 240(1 ), as the papers before the I court do not indicate that plaintiff was provided with an appropriate ladder, safety netting, or any other device that would have prevented him from falling by the defendants. Therefore, the court grants plaintiff's motion seeking summary judgment (Mot. Seq. 4) on the issue of liability under 5

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Plaintiff was injured due to falling off of a ladder. The court notes that plain tiff did not raise this section in their papers. I Industrial Code 23-2.7: References "Stairway requiremen ts during the construction of buildings." Specifically, 23-2.7(e), requires protective railing s on stairways. The defendants have established plaintiff's alleged accident occurred on a ladde r, not a stairway. Industrial Code § 23-3.3: References "Demolition by hand. " The defen dants have established that this section is inapplicable as the building was not being demolished. The court notes that plaintiff did not raise this section in their paper s. OSH A Regulations: Defendants have established that OSH A Regulations are inapplicable, as OSH A Regulations do not provide a basis of liability under Labor Law 241(6) (Greenwood v Shearson, Lehm an & Hutton, 238 AD2d 311, 313 [2d Dept 1997]). The court notes that plaintiff did not raise this section in their paper s. Plaintiff has made a prima facie showing that the defend ants, Lotus and Riverside, violated the following New York Industrial Code Rule:

Industrial Code § 23-1.7: References "Protection from gener al hazards." More specifically, § 23-l. 7(d) "Slipping hazards" states:

"Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease, and any other foreign substance which may cause slippery footing shall be removed, sanded, or covered to provide safe footin g." Plaintiff has established that he slipped off the wet ladde r because it was raining (NYSCEF Doc. No. 91 at p. 45-46), the rain began before the incident and I workers were told to continue working unless the rain got worse (NYS CEF Doc. No. 98 at p. 3).

Therefore, defen dants ' motion seeking summary judgm ent (Mot. Seq. 3) on Plaintiff's Labor Law§ 241(6) is denied except that the court holds that defen dant did not violate the

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following Indus trial Code secti ons:§ 23-1.5; § 23-1. 7(e); § 23-1.11; § 23-1.15; § 23-1.16; § 23- 1.21; § 23-1.30; § 23-2.1; § 23-2.2; § 23-2.7; § 23-3. 3; and OSH A Regulations. Plain tiff's motion seeking summary judg ment on the issue of liability unde r Labo r Law § 241(6) (Mot. Seq. 4) is granted to Indus trial Code secti on§ 23-1.7(d).

Labor Law § 200 "'Lab or Law § 200 is a codification of the common-la w duty imposed on owners, contractors and their agents to prov ide workers with a safe place to work "' (Mondragon-Moreno v Sporn, 189 AD3 d 1574, 1576 [2d Dept 2020], quoti ng Doto v Astoria Energy 11, LLC, 129 AD3 d 660, 663 [2d Dept 2015]). '"Cas es involving Labo r Law § 200 fall into two broad categories, namely, those where workers are injure d as a result of dangerous or defec tive premises conditions at a work site and those involving the manner in which the work is perfo nned "' (Southerton v City of New York, 203 AD3 d 977, 979-98 [2d Dept 2022], quoting Torres v City of New York, 127 AD3 d 1163, 1165 [2d Dept 2015]). Where plaintiffs allege that their injuries result from the means or meth ods by which work is perfo rmed , "to be held liable unde r Labo r Law § 200, 'a defen dant must have the authority to exercise supervision and control over the I work "' (Narvarra v Hannon, 197 AD3 d 474, 476 [2d Dept 2021], quoting Torres v City of New York, 127 AD3 d at 1165). "Alth ough property owners often have a general authority to overs ee the progress of the work, mere general supervisory authority at a worksite for the purpose of overseeing the progress of the work and inspecting the work prod uct is insufficient to impo se liability unde r Labo r Law § 200" (Medina- Arana v Henry Street Property Holdings, LLC , 186 AD3 d 1666, 1668 [2d Dept 2020], quoting Ortega v Puccia, 57 AD3 d 54, 62 [2d Dept 2008])). Wher e a plaintiff's injuries stem not from the manner in whic h the work was being performed , but, rather, from a dangerous condition on the premises, an owne r may be held liable in comm on-law negligence and unde r Labo r Law §

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200 if it had contr ol over the work site and eithe r creat ed the dang erous cond ition that cause d the accid ent or had actua l or const ructi ve notic e of the I dang erous cond ition that cause d the accid ent (Azad v 270 5th Realty Corp., 46 AD3 d 728, 730 [2d Dept 2007]). Defe ndan ts have made a prim a facie show ing of entitl emen t for summ ary judgm ent on their Labo r Law § 200 claim, and plain tiff does not oppo se the relief. Here , defen dants , Lotu s and Rive rside established entitl emen t to summ ary judgm ent becau se Aaro n Gold berge r, the project mana ger on beha lf of Rive rside , did not have actual or const ructiv e notic e of the dang erous cond ition that cause d the accident. Mr. Gold berge r testif ied that he did not hear abou t the accid ent on the day of the accid ent but withi n I a mont h of testif ying at the depo sition (NYS CEF Doc. No. 76 at p. 19). Addi tiona lly, Mr. Gold berge r testif ied that he hims elf had walk ed on that ladde r and neve r recalled any probl em with the job-b uilt ladde rs (Id. at 28). Lotu s and Rive rside neith er contr olled the mann er or meth od in whic h plain tiff work ed. Mr. Gold berge r testif ied that it was Mage llan's decis ion in controlling their mean s and meth ods of work to decid e whet her to work if it rained or not (Id. at 28-30). The c Therefore, the court grant s the defen dants motio n for summ ary judg ment (Mot. Seq. 3) dismissing the Labo r Law § 200 claim.

Conclusion Plain tiff's moti on seeki ng summary judg ment on the issue of liability unde r Labo r Law § 240(1) (Mot. Seq. 4) against the defen dants ' is grant ed. Plain tiff's motio n seeki ng summary judg ment on the issue of liability unde r Labo r Law § 241(6 ) (Mot. Seq. 4) is grant ed to Indus trial Code secti on§ 23-1. 7(d). I Defe ndan ts' moti on seeki ng summ ary judg ment (Mot. Seq. 3) on Plain tiff's Labo r Law § 241(6) is denie d excep t that the court holds that defen dant did not viola te the follo wing Indus trial Code secti ons:§ 23-1.5; § 23-1.7(e); § 23-1. 11; § 23-1.15; § 23-1. 16; § 23-1. 21; § 23-1. 30; § 23-

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2.1; § 23-2.2; § 23-2.7; § 23-3.3; and OSHA Regulations. Defendants' motion seeking summary

judgment dismissing plaintiff's Labor Law§ 200 claim is granted (Mot. Seq. 3).

Any other claims not specifically addressed in this decision are denied.

This constitutes the decision and order of the Court.

ENT~ --

J.S.C

Hon. Steven z. Mostofsky Justice, Supreme Court

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Footnotes

[1] of 12 [* 1] Statement of Facts On September 6th, 2019, plaintiff alleges that while emplo yed by Magellan Concrete Structures Inc., ("Magellan"), he sustained injuries as a result of slipping and falling down a portable wood en ladde r while going from the first floor to the basement. Lotus was the owner of the worksite, 3 78 Flushing A venue, Brooklyn, New York, and the general contractor onsite was Riverside. Plaintiff was employed by Magellan as a gener al carpe nter setting up decks and staircases, as well as working with cement. Plaintiff allege s that the ladde r was maintained in a wet and slippery condition due to rain on the day of the alleged incident. After the alleged incident, plaintiff was taken to Wood ull Medical Center, Brooklyn, New York. Legal Standard '"[S]ummary judgm ent is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue"' (Rotuba Extru ders, Inc v Ceppos, 46 NY2d 223, 231 [1978], quoting Moskowitz v Garlock, 23 AD2d 943 [3rd Dept 1965]). "[T]he proponent of a summary judgment motion must make a prima facie show ing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrat e the absence of any material issues of fact" (Alvarez v Prospect Hospital, 68 NY2d 320,3 24 [1986 ], citing Winegrad v New York Univ Med Center, 64 NY2 d 851 [1985]) and "facts must be viewe d 'in the light most favorable to the non-moving party "' (Vega v Restani Const Corp, 18 NY3 d 499, 503 [2012]). The court's function is to determine "material triable issues of fact (or point to the lack thereof)" (Vega v Restani Const Corp, 18 NY3 d at 505). Labor Law § 240(1) Labor Law§ 240(1), which provides, in pertinent part, as follows:: "All contractors and owners and their agents ... who contr act for but do not direct or control the work, in the erection, demolition, repairing, [or] altering ... of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hange rs, blocks, pulleys, braces, 2 [* 2] 2 of 12

[5] of 12 [* 5] Labor Law § 240(1), and defen dants ' motion for summary judge ment (Mot Seq.3) under Labor Law § 240(1) is denied. Labor Law § 241(6) Labor Law§ 241(6) "imposes a [non-delegable] duty ofrea sonab le care upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excav ation, or demolition work is being perfonned" (Song v. CA Plaza, LLC, 208 AD3d 760, 761 [2d Dept 2022] [internal quotation marks omitted]). "To establish liability, a plaintiff must demo nstrate that his injuries were proximately caused by a violation of an applicable Indus I trial Code provision" (Graziano v. Source Builders & Consultants, LLC, 175 AD3 d 1253, 1258 [2d Dept 2019], quoting Arag ona v. State ofNew York, 147 AD3d 808, 809 [2d Dept 2018] ). A party must breach a "specific, positive command" rather than a "reiteration of common-law standards" (Ross v Curtis-Palmer Hydro-Elec . Co., 81 NY2 d 494, 502 [1993]). Ross distinguished betwe en Code provisions "mandatin g compliance with concrete specifications and those that establish general safety stand ards" (Id. at 505). In their motion to dismiss, defendants, Lotus and Riverside, have made a prima facie showing that the following industrial codes were not violat ed: Industrial Code § 23-1.5: References "General responsibil ity of employers." Defendants have established that Industrial Code § 23-1.5 cannot be a basis for liability, as the standard of liability unde r§ 241(6) requires that a plaintiff must demo nstrat e that his or her injuries were proximately caused by a violation of a New York State Indus I trial Code provision that is applicable given the circumstances of the accident and sets forth a concrete standard of conduct rather than a mere reiteration of common-law principles (Ross v Curti s-Pal mer Hydro-Elec. Co.,

[81] NY2d 494, 501-502 [1993]). Furthermore, Industrial Codes 23-1.2, 23-1.3, and 23-1 .5-ar e 6 [* 6] 6 of 12 too general to support a Labor Law § 241 (6) claim (Huether v New York Times Bldg., LLC, 24 Misc 3d 634, 648 [Sup Ct 2009]). The court notes that I plaintiff did not raise this section in their papers. Industrial Code § 23-1.7(e): References "Tripping and other hazards." Defendants have established that this section is inapplicable, as plaintiff slipped while descending a wet ladder. Additionally, defendants have established that the alleg ed incident did not result from the accumulation of dirt and debris or from any other obstr uctions or conditions which could cause tripping, as plain tiff slipped while descending a wet ladde r. Industrial Code § 23-1.11: References "Lumber and nail fastenings." Defendants have established that this section is inapplicable as there is no testimony suggesting any defect in the wood, lumbar, or nails used for the ladder. The court notes that plaintiff did not raise this section in their papers. Industrial Cod e§ 23-1.15: References "Safe ty railin gs." Defendants have established that this section is inapplicable as safety railings were not in use for plaintiff's work. The ladde r that plaintiff was using was built specifically by his employers, and plaintiff did not testify to using any safety railings for the work being performed I . The court notes that plaintiff did not raise this section in their papers. Industrial Code § 23-1.16: References "Safety belts, harnesses, tail lines, and lifelines", but "does not specify when such safety devices are requi red" (Thompson v Sithe/lndep., LLC,

[107] AD3 d 1385, 1388 [4th Dept 2013]). Plaintiff testif ied that he was wearing his harness, a hard hat, and synthetic gloves while descending the ladde r (NYSCEF Doc. No. 75 at p. 45), therefore, this section is inapplicable. Industrial Cod e§ 23-1.21: References "Lad ders and ladderways," including general ladde r maintenance and when such ladders should be used. Plaintiff testified that he did not have 7 [* 7] 7 of 12 any difficulty going up and down the ladde r before the alleged accident and the ladde r had been in the same position for four days (NYSCEF Doc. No. 75 at p. 46, 49). Additionally, plaintiff did not testify that there had been any defects regarding the ladde r he used. Furthermore, while the footings might have been on a slippery surface becau se of the rain, the proximate cause of the accident was due to the plaintiff slipping off of a wet ladder. Therefore, this section is inapplicable. Industrial Cod e§ 23-1.30: References "Illumination." Defendants have established that the alleged accident occurred in the afternoon between 3:30 and 4:30 P.M. (NYSCEF Doc. No. 75 at p. 43), and there is no testimony of poor illuminatio I n. The court notes that plaintiff did not raise this section in their papers. Industrial Code § 23-2.1: References "Maintenance and housekeeping." The accident did not involve the obstruction of a "passageway, walkway, stairway or other thoroughfare" by a material pile and, therefore, 23-2 .l(a) (l) is not appli cable (Ginter v Flushing Terrace, LLC, 121 AD3 d 840, 844 [2d Dept 2014]). 23-2 .l(a)( 2) provi des, in relevant part, that "material and equipment shall not be placed or stored so close to any edge of a floor, platform or scaffold as to endanger any person beneath such edge." Industrial Code 23-2.l(a)(2) is inapplicable because plaintiff was not struck by an object that fell from store d material on the floor above him. Plaintiff claims he was struck by an item he had just passed up, not which was stored at the edge of a floor (See Mahoney v Madeira Assoc., 32 AD3 d 1303, 1305 [4th Dept 2006]). Lastly, 23- 2 .1 (b) is inapplicable because the disposal of debris was not involved in the instant matter. Industrial Code § 23-2.2: References "Concrete work ." The defendants have established that this section is inapplicable, because plaintiff does not claim he was injured because a form, shore, or re-shore was improperly "braced or tied toget her to maintain position or shape." 8 [* 8] 8 of 12