Diaz v. Insite Prop. Group LLC

Diaz v Insite Prop. Group LLC 2025 NY Slip Op 32010(U) June 6, 2025 Supreme Court, New York County Docket Number: Index No. 157189/2020 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.

INDEX NO. 157189/2020 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 06/06/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice -----------------------------------------------------------------X INDEX NO. 157189/2020 RONY FRANKLIN POSAS DIAZ, MOTION DATE 01/18/2024 Plaintiff, MOTION SEQ. NO. 005 - V -

INSITE PROPERTY GROUP LLC,P.B. BROWN, LLC,HEMUNINU CONSTRUCTION SOLUTIONS DECISION + ORDER ON LLC,ELLIS STORAGE LLC, MOTION

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

INSITE PROPERTY GROUP LLC, P.B. BROWN, LLC, ELLIS Third-Party STORAGE LLC Index No. 595836/2021

Plaintiff,

-against-

HEMUNINU CONSTRUCTION SOLUTIONS, LLC

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

INSITE PROPERTY GROUP LLC, P.B. BROWN, LLC, ELLIS Second Third-Party STORAGE LLC Index No. 595057/2023

Plaintiff,

-against-

ISLAND REDI-MIX, INC., KG CONCRETE PUMPING CORP.

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

The following e-filed documents, listed by NYSCEF document number (Motion 005) 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 98, 99,100,101,102,103, 104, 105,106,107,108, 109, 110, 111 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER

Upon the foregoing documents, and after a final submission date of April 22, 2025,

Plaintiff Rony Franklin Posas Diaz's ("Plaintiff') motion for partial summary judgment on the

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issue of liability on his Labor Law§ 240(1) claim against Defendants P.B. Brown, LLC ("P.B.

Brown") and Ellis Storage LLC ("Ellis") (collectively "Defendants") is denied. 1

I. Background

On August 12, 2020, Plaintiff was working for Defendant/Third-Party Defendant Hemiunu

Construction Solutions, LLC ("Hemiunu") at a construction site at 1 Ellis Street, Staten Island,

New York (the "Premises") when the concrete pump hose he was holding exploded and caused

him to fall sixteen feet from the top of a seawall (NYSCEF Doc. 90 at 9-12; 16; 32; 50-51). Ellis

owned the Premises and P.B. Brown was the general contractor (NYSCEF Doc. 92 at 9; see also

NYSCEF Doc. 93). Hemiunu was contracted to build a seawall at the Premises to conform with

the Department of Building's post-Hurricane Sandy requirements (NYSCEF Doc. 104 at 24).

Plaintiff was filling concrete into the seawall being formed when the concrete hose he was holding

exploded and threw him to the ground. Plaintiff now moves for summary judgment on his Labor

Law§ 240(1) claim and Defendants 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]). The moving party's "burden is a heavy one and

on a motion for summary judgment, facts must be viewed in the light most favorable to the non-

moving party." (Jacobsen v New York City Health and Hasps. Corp., 22 NY3d 824, 833 [2014]).

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]).

1 A stipulation of discontinuance was executed as to Defendant Insite Property Group, LLC, and Defendant/Third- Party Defendant Hemiunu is in default. 157189/2020 POSAS DIAZ, RONY FRANKLIN vs. lNSITE PROPERTY GROUP LLC Page 2 of 4 Motion No. 005

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Viewing the facts in the light most favorable to the non-movant, the Defendants, the Court

finds there are issues of fact which preclude granting summary judgment. There is conflicting

testimony and inconclusive photographic evidence as to whether scaffolding was present at the

time and location of Plaintiff's accident. While Plaintiff testified there were no scaffolds on the

day of his accident (NYSCEF Doc. 90 at 31), Mr. Gonzalez testified that there was scaffolding on

the backside of the wall where Plaintiff fell (NYSCEF Doc. 92 at 11 ). Guy Saccento, another

witness for P.B. Brown, testified there was scaffolding erected around the entire retaining wall

(NYSCEF Doc. 104 at 26). Plaintiff's counsel argues that even if scaffolding was present this does

not mean he could tie his harness off to the scaffolding. However, this contradicts Plaintiff's own

testimony that he used the scaffold to secure his harness (NYSCEF Doc. 90 at 24). The conflicting

testimony about the availability of an adequate safety device creates an issue of fact which cannot

be resolved on summary judgment (Fundus v Scarola, 214 AD3d 479, 479-80 [1st Dept 2023];

Albino v 221-223 West 82 Owners Corp., 142 AD3d 799, 800 [1st Dept 2016]; Moracho v Open

Door Family Medical Center, Inc., 74 AD3d 657. 658 [1st Dept 2010]).

There are further issues of fact as to whether any safety device could have protected

Plaintiff from falling from the force of an exploding cement hose (see Valle v Port Auth. of NY

& NJ, 189 AD3d 594, 595 [1st Dept 2020] citing Morera v New York City Tr. Auth., 182 AD3d

509 [1st Dept 2020]). Plaintiff testified the person who was handling the flow of concrete from the

truck to the hose "was being trained" and when the concrete started flowing from the truck to

Plaintiff's hose, "before one minute had passed ... the hose exploded" and "hit [his] head ... and

threw [him] down" (NYSCEF Doc. 90 at 49-51 ).

Based on the record before the Court, there is an issue of fact as to whether the negligence

of the individual operating the concrete pump was the cause of Plaintiff's accident, and whether

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Footnotes

[3] of 4 [* 3] any safety device could have prevented Plaintiff from falling when confronted with the force of an exploding concrete hose (see also Hajderlli v Wiljohn 59 LLC, 71 AD3d 416, 416-17 [1st Dept

[201] O]). Therefore, Plaintiffs motion is denied. Accordingly, it is hereby, ORDERED that Plaintiffs motion for partial summary judgment on the issue of liability with respect to his Labor Law § 240(1) claim is denied; and it is further ORDERED that within ten days of entry, counsel for Defendants 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. HON. ARY V. ROSADO, J.S.C. CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION GRANTED 0 DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE 157189/2020 POSAS DIAZ, RONY FRANKLIN vs. INSITE PROPERTY GROUP LLC Page 4 of 4 Motion No. 005 4 of 4 [* 4]