Portillo v. TSTY Owner LLC

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Portillo v TSTY Owner LLC 2024 NY Slip Op 31489(U) April 25, 2024 Supreme Court, New York County Docket Number: Index No. 157187/2020 Judge: Sabrina Kraus 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. 157187/2020 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 04/25/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. SABRINA KRAUS PART 57M Justice ----------------------------------------------------------------- ----------------X INDEX NO. 157187/2020 ELIO PORTILLO, MOTION DATE 01/02/2024 Plaintiff, MOTION SEQ. NO. 001 - V -

TSTY OWNER LLC, LENDLEASE (US) CONSTRUCTION DECISION + ORDER ON INC., TSTY CREATE LLC MOTION Defendants. ------------------------------------------------------------------- --------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 34, 35, 36, 37, 38, 39,40,41,42,43,44,45,46,47,48,49,50,51,52,53,54,55,56,57,58,59,60,61, 62, 63,64,65, 66, 67, 68, 69, 70 were read on this motion to/for JUDGMENT-SUMMARY

BACKGROUND

Plaintiff commenced this action seeking damages under the labor law for injuries he

alleges he suffered while performing concrete work on a construction site.

On January 30, 2024, Plaintiff moved for summary judgment on liability on his Labor

Law§ 240(1) claim. On March 29, 2024, Defendants cross-moved for dismissal of said claim.

On April 26, 2024, the motions were marked submitted.

The Court finds there are triable issues of fact regarding the manner in which the accident

occurred and as such the motion and cross-motion are denied.

ALLEGED FACTS

Plaintiff was employed by trade contractor Caulk Construction Corp. and/or Bunlin,

LLC, as a carpenter, doing concrete work, at a premises owned by TSTY Owner, LLC . TSTY

Create, LLC, an agent of the owner, retained Lendlease (US) Construction, Inc., as a general

157187/2020 PORTILLO, ELIO vs. TSTY OWNER LLC Page 1 of4 Motion No. 001

INDEX NO. 157187/2020 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 04/25/2024

Footnotes

[1] of 4 [* 1] contractor/construction manager and retained Caulk and/or Bunlin for the carpentry concrete work. Plaintiff was required to perform concrete work in the basement on its walls, which required a ladder to reach the upper wall. Plaintiff alleges he went to retrieve an A-frame ladder permitted for use for this work, but he first had to remove a 15-20 pound "L" shaped metal plate left at the top of the ladder, before he could relocate the ladder to where he needed to work. Plaintiff alleges he climbed the fully open ladder, lifted the metal plate, and dropped it to the floor when the ladder then moved, causing him to fall backwards. Plaintiff alleges his left foot and ankle landed in a hole in the concrete floor and his body landed backwards on the floor, injuring his left ankle, knee, back, and neck. There were no other witnesses to the accident. Defendants allege that Plaintiff reported that he injured himself when he twisted or turned his ankle while carrying a ladder. In response, an incident report was immediately prepared. The report, signed by Plaintiff states, "At 7:45 a.m., Elio Portillo was in the cellar level w side by the network protection room carrying a ladder. As he was walking, he slipped and twisted his left foot." Plaintiff sought medical attention from the onsite medic who, after speaking to Plaintiff, wrote that the Plaintiff was "walking on the cellar level and he slipped on the wet floor and fell spraining his ankle." Plaintiff also reported his accident to his foremen, Jose Aviles and Juan Martinez, who have provided affidavits stating that Plaintiff told them twisted his ankle while carrying a ladder. 157187/2020 PORTILLO, ELIO vs. TSTY OWNER LLC Page 2 of 4 Motion No. 001

[2] of 4 [* 2] DISCUSSION Summary judgment is a drastic remedy reserved for those cases where there is no doubt as to the existence of material and triable issues of fact (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395,404, 165 N.Y.S.2d 498, 144 N.E.2d 387 [1957] ). To prevail on a motion for summary judgment, the movant must establish, prima facie, its entitlement to judgment as a matter of law, providing sufficient evidence demonstrating the absence of any triable issues of fact. CPLR 3212(b); Matter ofNew York City Asbestos Litig., 33 NY3d 20, 25-26 (2019). If this burden is met, the opponent must offer evidence in admissible form demonstrating the existence of factual issues requiring a trial; "conclusions, expressions of hope, or unsubstantiated allegations or assertions are insufficient." Justinian Capital SPC v WestLB AG, 28 NY3d 160, 168 (2016), quoting Gilbert Frank Corp. v Fed. Ins. Co., 70 NY2d 966, 967 (1988). In deciding the motion, the evidence must be viewed in the "light most favorable to the opponent of the motion and [the court] must give that party the benefit of every favorable inference." 0 'Brien v Port Auth. of New York and New Jersey, 29 NY3d 27, 37 (2017). Plaintiffs moving papers are sufficient to establish a prima facie case for summary judgment showing that his injuries were proximately caused by a violation of Labor Law § 240 (1) by submitting his testimony that the ladder that he was using to slid causing him to fall. See egMelendez v. 1595 Broadway LLC, 214 A.D.3d 600, 601 (2023). However. in response Defendants have raised a triable issue of fact as to how the accident took place, relying on prior inconsistent statements Plaintiff allegedly made to Aviles and Martinez, as well as the statements reflected in the incident report and medics report. 157187/2020 PORTILLO, ELIO vs. TSTY OWNER LLC Page 3 of 4 Motion No. 001

[3] of 4 [* 3] These triable issues of fact preclude an award of summary judgment to either party. See eg Vargas v Con Edison Co. ofNY, Inc. 224 AD3d 581(1 st Dept., 2024); Smigielski v Teachers Insurance and Annuity Association ofAmerica 137 AD3d 676 (1 st Dept., 2016); Albino v 221-

[223] West 82 Owners Corp. 142 AD3d 799 (1 st Dept., 2016); Ellerbe v Port Auth. ofNY & NJ9l AD3d 441 (1 st Dept., 2012); Stephens v Tri borough Bridge & Tunnel Auth. 55 AD3d 410 (1 st Dept., 2008); Jones v West 56th St. Assoc. 33 AD3d 551 (1 st Dept., 2006); Rodriguez v New York City Haus. Auth. 194 AD2d 460 (1 st Dept., 1993). WHEREFORE it is hereby: ORDERED that the motion and cross-motion are denied; and it is further; ORDERED that counsel appear for a virtual pre-trial conference before the Court on May 30th , 2024 at 2:30 pm at which time a trial date will be set; and it is further ORDERED that any relief not expressly addressed has nonetheless been considered and is hereby denied. This constitutes the decision and order of the Court. 4/25/2024 8 DATE SABRINA KRAUS, 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 157187/2020 PORTILLO, ELIO vs. TSTY OWNER LLC Page4 of 4 Motion No. 001 4 of 4 [* 4]