Calvo v. Hylan Plaza 1339, LLC

Calvo v Hylan Plaza 1339, LLC 2024 NY Slip Op 31578(U) May 2, 2024 Supreme Court, Kings County Docket Number: Index No. 518045/20 Judge: Ingrid Joseph 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: KINGS COUNTY CLERK 05/03/2024 10:51 AM INDEX NO. 518045/2020 NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 05/03/2024

lAS Term, At an IAS of the Supreme Part 83 of Term, Part Supreme Court of Court State of of the State New York, of New held in and York, held County of for the County Kings, at the Courthouse, of Kings, Courthouse, at 360 Adarps Street, 360 Ada.rps New York, Brooklyn, New Street, Brooklyn, York, ~ay a y o the ~ on the 2024. ;_ · of~,f ~ • 2024. PRESENT: PRESENT:

HON. INGRID JOSEPH, HON. INGRID JOSEPH, Justice. Justice. --------------------------------------------------. -------------------X --------------------------------------------------_._-------------------)( AMILCAR ZACARIAS AMILCAR ZACARIAS CAL CALVO,VO,

Plaintiff, Plaintiff, -against- -against- No.: 518045/20 Index No.: . Index 518045/20

HYLAN PLAZA 1339, HYLAN PLAZA LLC., and 1339, LLC., HUDSON MERIDIAN and HUDSON MERIDIAN CONSTRUCTION GROUP, LLC, CONSTRUCTION GROUP, LLC,

Defendants. Defendants. ----------------------- ---- . ----------- . ----------------------------X -----------------------------------------------------------------------)( DECISION & ORDER DECISION ORDER HUDSON MERIDIAN HUDSON GROUP LLC, CONSTRUCTION GROUP MERIDIAN CONSTRUCTION LLC,

Third-Party Plaintiff, Third-Party Plaintiff,

-against- -against-

BUILDER SERVICES GROUP, BUILDER SERVICES d/b/a TRUTEAM INC. d/b/a GROUP, INC. TRUTEAM COMMERCIAL SERVICES, A TOPBUILD COMMERCIAL SERVICES, TOPBUILD COMPANY, COMPANY, Third-Party Defendant. Third-Party Defendant. -------------------------------------------------------------~-- -------X -------------------------------------------------------------~---------)( following e-filed The following read herein: papers read e-filed papers herein: NYSCEF Doc NYSCEF Nos.: Doc Nos.:

Notice of Notice Show Cause/ Motion/Order to Show of Motion/Order Cause/ Petition/Cross Motion and Petition/Cross Motion and Affidavits Annexed _ _ _ _ _ _ __ (Affirmations) Annexed Affidavits (Affirmations) 96-97, 104 79-81, 96-97, 79-81, Opposing Affidavits (Affirmations ) _ _ _ _ _ Opposing Affidavits (Affirmations)_· __ ~ __ 112, 116, 117-118 112,116,117-118 Affidavits/ Affirmations Affidavits/ Reply _ _ _ _ _ _ __ Affirmations in Reply 120

foregoing papers, Upon the foregoing Upon plaintiff Amilcar papers, plaintiff Calvo (plaintiff) Zacarias Calvo Amitcar Zacarias moves for an · (plaintiff) moves order, pursuant order, pursuant to CPLR 3212, granting CPLR 3212, partial summary granting partial judgD1ent in his favor summary judgment respect to with respect favor with Labor Law liability on his Labor liability 99 240 Law §§ and 241 (6) causes 240 (1) and action as against of action causes of defendant Hylan against defendant Hylan Plaza LLC (Hylan Plaza 1339, LLC Plaza) and defendant/third-party (Hylan Plaza) defendant/third-party plaintiff Hudson Meridian plaintiff Hudson Meridian

FILED: KINGS COUNTY CLERK 05/03/2024 10:51 AM INDEX NO. 518045/2020 NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 05/03/2024

FILED: KINGS COUNTY CLERK 05/03/2024 10:51 AM INDEX NO. 518045/2020 NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 05/03/2024

FILED: KINGS COUNTY CLERK 05/03/2024 10:51 AM INDEX NO. 518045/2020 NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 05/03/2024

FILED: KINGS COUNTY CLERK 05/03/2024 10:51 AM INDEX NO. 518045/2020 NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 05/03/2024

factual factual issues issues as to whether whether his actions actions were were the sole proximate proximate cause cause ·of of the accident. accident. The existence existence of of factual factual issues issues .as whether a as to whether a plaintiff plaintiff was the the. sole proximate proximate cause cause of of the accident accident may may be shown shown where where a defendant defendant presents presents evidence evidence that that a plaintiff plaintiff may may have have created created the the very very ···- ~ ..__ -·· .._.. ~opC:i.iti~J?. .copditi91.1.tpat caused the scaffold )~a:¹ caused scaffold to colJap~e collapse (s~e. (s?e Elibox Elibpx v y Nehemiah. Nehemiah, Spring Cr..JV $p,:.ing. Cr. 1V Mixed Mi;r:e<( . . . Income Hous. Dev. Fund Income Fund Co., Inc., Inc:, 219 AD3d AD3d 906, 907 [2d Dept Dept 2023] 2023] [evidence [evidence that that plaintiff plaintiff · removed removed nails nails securing securing the the plank plank on which which he stood]; Berenson v Jericho stood]; Berenson Dist., 33 AD3d Jericho Water Dist., AD'3d . . , '

574, 576 [2d Dept Dept 2006] 2006] [evidence [evidence that that plaintiff, plaintiff, or workers workers he supervised, supervised, placed placed ·an an inadequate inadequate plank plank onto onto scaffold]; scaffold]; Storms Storms v Dominican Coil. Of Dominican Coll. Blauvelt, 308 AD2d Of Blauvelt, AD2d 575, 576 576 [2d Dept Dept 2003] 2003] [plaintiff [plaintiff stepped stepped on plank plank from from which which he had just removed had just removed a bracket]; Heffernan v Bais bracket]; Heffernan Bais Corp., Corp., 294 AD2d AD2d 401, 401, 403 [2d Dept Dept 2002] 2002] [plaintiff [plaintiff failed failed to replace plywood cover replace plywood cover over over two-by- two-by- fours]). fours]). This This court, court, however, however, rejects rejects defendants' defendants' sole proximate cause sole proximate cause argument argument on the the facts presented here. presented here. Plaintiff, Plaintiff, in his own own testimony, testimony, stated stated that that he had properly attached had properly attached the the hooks hooks for the platform platform and and defendants, defendants, in opposition, opposition, have have oniy only offered offered their their counsel's counsel's speculative speculative assertion assertion that plaintiff must that plaintiff must be at fault because he assembled fault because assembled the the scaffold scaffold (see Campbell Campbell v 111 Chelsea Chelsea Commerce, L.P., 80 AD3d Commerce, L.P., AD3d 721, 722 [2d Dept Dept 2011]). 2011]). The The fact that that plaintiff plaintiff was responsible responsible for the assembly of the assembly of the scaffold, scaffold, however, however, does does not, not, in and and of of itself itself create create an issue issue of of fact (see Debennedetto, Debennedetto, 190 AD3d AD3d at 936) 936) and other other courts courts in cases cases involving involving identical identical or related related facts, have have rejected rejected similar similar conclusory conclusory sole sole proximate proximate cause cause arguments arguments (see Bialucha, Bialucha, 222 AD3d AD3d · at 511-512; Hernandez, 199 AD3d 511-512; Hernandez, AD3d at 485; Cruz, 174 AD3d AD3d at 783; Bermejo, Bermejo, 119 AD3d AD3d at 502). Moreover, Moreover, in view view of of plaintiff's plaintiffs uncontradicted uncontradicted testimony testimony that that his supervisor supervisor inspected inspected his work work and directed directed plaintiff plaintiff to continue continue using using the scaffold scaffold despite despite being being told told that that it was unsteady, unsteady, any error error in the the assembly assembly of of the the scaffold scaffold would, would, at most, most, demonstrate demonstrate comparative comparative fault, fault, which which is not not a defense defense to a Labor Law S 240 Labor Law§ 240 (1) cause cauSe ofact1on of action (see Vicki v City City of Niagara Falls, of Niagara Falls, 215 AD3d AD3d 1285, 1288 [4th Dept Dept 2023]; Finocchi v Live 2023]; Finocchi Live Nation Nation Inc., 204 AD3d AD3d 1432, 1433-1434 1433-1434 [4th Dept Dept 2022]; Garces Garces v Windsor Plaza, LLC, Windsor Plaza, LLC, 189 AD3d AD3d 539, 539 [1st Dept Dept 2020]; Lojano v Soiefer 2020]; Lojano Soiefer Realty Corp., Bros. Realty Corp., 187 AD3d AD3d 1160, 1163 [2d Dept Dept 2020]; 2020]; DeRose Bloomingdale 's Inc., 120 DeRose v Bloomingdale's 120

AD3d AD3d 41, 46-47 46-47 [1st Dept Dept 2014]; Pichardo. v Aurora 2014]; Pichardo. Aurora Contrs., Inc., Inc., 29 AD3d AD3d 879, 880-881 880-881 [2d Dept Dept 2006]; 2006]; cf cf Gamez Gamez v New New Line Line Structures Structures & Dev., LLC, LLC, 218 AD3d AD3d 446,448 446, 448 [2d Dept Dept 2023] 2023] [[contradictory contradictory evidence evidence as to whethir whether plaintiff plaintiff performing performing work work ·in a manner manner directed directed by supervisors]). supervisors]).

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Accordingly, defendants Accordingly, have failed defendants have failed to demonstrate • den:o.nstrate the existence existence of of a factual ,I factual issue, ,. issue, and i;' •

plaintiff is thus plaintiff thus entitled partial summary entitled to partial judgm,ent iri. summary judgm.ent in his favor favor on the issue of the issue of liability liability with with ' respect respect to his Labor Law S 240 (1) cause Labor Law§ cause of of action. action. · With With respect respect~oto ,El(i,intifr:s •- plaintiff's Llib()E.La,,:J ---··········- Labor Law §. 241 ((6} ----·-------- 6) calls~ cause of ----- action, und~~}hat ?f,action, under that section, . -- section, an ' ---•···· -- -- -· . __,. 7· . t owner, owner, general general contractor contractor or their their agent agent may may be held held vicariously vicariously liable· liable" for injuries injuries to a plaintiff plaintiff where the plaintiff where plaintiff establishes that the accident establishes that was proximately accident Was proximately caused caused by a violation violation of of an Industrial Code Industrial Code section section stating stating a specific specific positive command that is applicable positive c~mmandthat applicable to the facts of of the case (Rizzuto case (Rizzuto v L.A. Wenger Wenger Contr. Co., 91 NY2d,343, NY2d:343, 349-350 349-350 [1998]; Honeyman v Curiosity [1998]; Honeyman Curiosity I:: 1.:

Works, Inc., Inc.,· 154 AD3d AD3d 820, 821 [2d Dept Dept 2017]). 2017]). Plaintiff, Plaintiff, . in order order to meet meet ·his summary summary ;:: judgment burden judgment burden on a section section 241 (6) cause cause of of action, required to demonstrate: action, is required demonstrate: (I) (1) a concrete concrete Industrial Industrial Code Code section applied under section applied under .the ,the circumstances; circumstances; (2) the defendants defendants or a contractor contractor or \' · subcontractor subcontractor within within the chain chain of the project of the project violated that section's violated that section's specific specific commands; commands; (3) this this I ! violation alone, violation alone, or considered with other considered with other undisputed factual evidence, undisputed factual evidence, constitutes constitutes negligence; negligence; and (4) the violation violation caused caused plaintiff's injuries (see Bdzdaric plaintiffs injuries Bdzdaric v Almah Almah Partners Partners LLC, LLC, --- NY3d NY3d ---, 2024 NY Slip Op 00847, 2024 NY 00847, *3 [2024]; Rizzuto, 91 NY2d [2024]; Rizzuto, NY2d at 351). Here, Here, in moving, moving, plaintiff relies on Industrial plaintiff relies Industrial Code Code (12 NYCRR) SS 23-5.1 (c) (1) and NYCRR) §§ ,.23-5.1 23-5. I (e) ((1). 1). While While plaintiff plaintiff first alleged alleged that that these sections were these sections were violated violated in his instant motion instant motion papers and opposition papers papers, contrary opposition papers, contrary to defendants' contention, plaintiffs defendants' ,contention, belated allegation plaintiff's belated allegation ' that sections that 23-5.1 ((c) sections 23-5.1 c) (1) and 23-5.1 ((e) and 23-5.1 e) (1) were were violated violated is not not a bar bar to their their consideration consideration - ~ ~

since since the claimed violations do not claimed violations not involve involve any new new factual factual allegations, allegations, raise raise any new new theories of theories of liability, liability, or cause prejudice to defendants cause prejudice defendants {see Simmons Simmons vvCity City of New York, 165 AD3d o/New AD3d 725, 729 [2d Dept Dept 2018]; Klimowicz v Powell 2018]; Klimowicz . Pmvell Cove Assoc ... LLC, Cove Assoc., . LLC, 111 AD3d 605, 111 AD3d . 605, 607 [2d Dept . , Dept 2013]; 2013]; //

Ross v DD Ross DD 11th Ave., LLC, 11th Ave., LLC, 109 AD3d AD3d 604, 606 [2dDept 604,606 2013]). [2d,Dept 2013]). With respect With respect to section section 23-5.1 (c) (1), that t_hat section section provides provides that, "[e]xcept where that, "[e]xcept where otherwise specifically otherwise provided in this specifically provided this Subpart, Subpart, all scaffolding scaffolding shall shall be so constructed constructed as to bear bear four times times the maximum maximum weight weight required required to be dependent therefrom or placed dependent therefrom placed thereon thereon when when in use. (See (See Labor Law, §S 240, Labor Law, 240, subdivision subdivision 3.) Such Such maximum maximum weight shall be construed weight shall construed to mean mean the sum of of both both dead dead and and live live loads." loads." The Appellate, Appella.t~ Division, Division, Second Department Second has found Department has found that' that .' ... . '.

section section 23-5.1 (c) (1) is sufficiently sufficiently specific specific to state state ;,a ;,a section section 241 (6) violation violation (see Debennedetto, 190 AD3d Debennedetto, AD3d at 936; 936; Treu v Cappelletti, Cappelletti, 71 AD3d AD3d, 994, 998 [2d Dept Dept 201 2010]). O]). In 1 addition, based on the fact that addition, based that the scaffold scaffold failed failed to support support even even plaintiff's plaintiff's weight weight and

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FILED: KINGS COUNTY CLERK 05/03/2024 10:51 AM INDEX NO. 518045/2020 NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 05/03/2024

collapsed collapsed for some unexplained reason, some unexplained plaintiff has demonstrated, reason, plaintiff prima facie, that demonstrated, prima that the scaffold scaffold unable to "bear was unable "bear four four times times the maximum maximum weight weight ... ... [to be] placed placed thereon thereon when when in use" use" as is required required by section section 23-5.1 23-5.1 (c) (1), that that Truteam Truteam violated violated the statute's statute's specific specific commands, commands, and that the scaffolds scaffolds collapse collapse was was a proximate proximate cause cause of injuries (see Bazdaric, of his injuries Bazdaric, 2021 NY Slip Op 202~ NY 00847, Kristo v Board 00847, *3-5; Kristo Board of of Educ. of of the City of NY, 134 AD3d of NY, AD3d 550, 551 [1st Dept 550,551 Dept 2015]; 2015]; Faria v CLS Faria Project Solutions CIS Project Solutions Inc., 69 Misc Misc 3d 1222 [A], 2020 NY Slip Op 51464[U], 2020 NY 51464[U], *2-3 [Sup Ct, Queens Queens County County 2020]). 2020]). Contrary Contrary to defendants' defendants' contentions, contentions, Colavito's Colavito's statements statements do not demonstrate issue of demonstrate an issue of fact. Colavito's Colavito's statements statements support plaintiffs contentions. support plaintiffs contentions. In fact, Colavito's Colavito's statement statement that plaintiff was atop the platform that plaintiff platform installing installing the second second guardrail guardrail demonstrates demonstrates that plaintiff had that plaintiff had finished finished assembling rest of assembling the rest of the scaffold, scaffold, and Colavito' Colavito's s statement statement that that the scaffold scaffold slid slid down down while plaintiff was on it, demonstrates while plaintiff demonstrates that that the scaffold scaffold was unable unable to support plaintiffss weight support plaintiff weight - let alone alone four times times the maximum maximum weight. weight. Plaintiff Plaintiff is thus entitled entitled to partial partial summary judgment on his Labor summary judgment Law §S 241 (6) cause Labor Law cause of of action action to the extent extent that it is premised premised on section section 23-5.1 (c) (1). Regarding Regarding Industrial Industrial Code NYCRR) §S 23-5.1 (e) (1), which Code (12 NYCRR) which requires, requires, among among other other things, things, that that scaffold planks "be scaffold planks "be laid tight," plaintiffs testimony tight," plaintiffs testimony and and Colavito's Colavito's statements statements do not eliminate eliminate factual factual issues issues as to whether whether the collapse slipping of collapse or slipping of the scaffold scaffold was related related to a failure failure to lay planks planks tight. tight. Indeed, Indeed, the record record is not not clear clear if if the scaffold platform, which scaffold platform, plaintiff which plaintiff described described as being being made made up of of wood wood and metal, metal, constituted planking within constituted planking within the meaning meaning of of section section 23-5.1 (e) (1). Defendants, Defendants, on the other other hand, hand, have have not pointed to evidence not pointed evidence demonstrating demonstrating that section section 23-5.1 (e) (1) was was inapplicable inapplicable or that that the accident accident was not not proximately proximately caused caused by a violation violation of of that section (see Debennedetto, that section Debennedetto, 190 AD3d Klimowicz, 111 AD3d at 936; Klimowicz, 111 AD3d AD3d at 607; Treu, 71 AD3d AD3d at 998). 998). Accordingly, both plaintiff Accordingly, both plaintiff and defendants defendants have have failed failed to demonstrate demonstrate the absence of absence of factual factual issues issues with with respect respect to a violation violation of of section section 23-5.1 (e) (1), and each each of of their their motions motions with with respect respect to that that section section must must thus thus be denied. denied. On the other other hand, hand, defendants defendants have demonstrated, demonstrated, prima prima facie, that that Industrial Industrial Code Code (12 NYCRR) SS 23-1.2 NYCRR) §§ 23-1.2 (b); 23-1.5 23-1.5 (a); 23-1.7 23-1.7 (a); 23-1.7 23-1.7 (b); 23-1.32; 23-1.32; 23-3.1; 23-3.1; 23-3.2; 23-3.2; 23-3.3; 23-3.3; 23- 4.1; 23-4.2; 23-4.2; 23-4.4, 23-4.4, the Industrial Industrial Code Code sections sections identified plaintiff in his bill of identified by plaintiff particulars, do of particulars, not state specific standards or are inapplicable specific standards inapplicable to the facts here. here. Since plaintiff has abandoned Since plaintiff abandoned reliance on those reliance those sections sections by failing failing to address them in his motion address them motion and and opposition papers, opposition papers, defendants defendants are entitled dismissal of entitled to dismissal of the section section 241 ((6) 6) cause cause of of action action to the the extent extent that it is

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premised on those premised those sections sections (see Debennedetto, Debennedetto, 190 AD3d AD3d at 936; Pita Pita v Roosevelt Roosevelt Union Free Free Dist., 156 AD3d Sch. Dist., AD3d 833, 835 [2d Dept 833,835 Dept 2017]). 2017]). Finally, Finally, defendants, who have defendants, who have submitted submitted evidence evidence showing that the accident showing that was not accident was caused by a dangerous caused bya dangerous property condition (see Przyborowski property condition Przyborowski v A&M A&M Cook, LLC, LLC, 120 AD}4 AD?4 651, . ·- 652-653 652-653 [2d Dept 2014]; Ortega Dept 2014]; Ortega v Puccia, Puccia, 57 AD3d AD3d 54, 61-63 [2d Dept Dept 2008]) 2008]) and that that they they did not exercise exercise more more than than general general supervision supervision and control control over over the injury injury producing producing work work (see Wilson v Bergan Bergan Constr. Constr. Corp., 219 AD3d Corp., 219 AD3d 1380, 1383 [2d Dept Dept 2023]; Kefaloukis v Mayer, 2023]; Kefaloukis Mayer, 197 . . . AD3d 470,471 AD3d 470, 471 [2d Dept Dept 2021]; Lopez v Edge 2021]; Lopez Edge 11211, LLC, LLC, 150 AD3d 12is-1216 [2d AD3d 1214, 1215-1216 Dept Dept 2017]), have demonstrated 2017]), have their prima demonstrated their prima facie facie entitlement entitlement to summary summary judgment dismissing judgment dismissing plaintiffs common-law plaintiffs common-law negligence negligence and Labor Labor Law S 200 causes biw § causes of of action. action. Since Since counsel counsel for plaintiff, plaintiff, in the affirmation affirmation in opposition opposition to defendants' defendants' motion, motion, concedes concedes that that the facts in this - case do not support support either either a cognizable cognizable common-law common-law negligence negligence or section section 200 claim, claim, defendants defendants are entitled entitled to dismissal of those dismissal of those causes causes of of action. action. Accordingly, it is hereby Accordingly, hereby ORDERED, that Plaintiffs ORDERED, that motion (motion Plaintiffs motion (motion sequence number 2) is granted sequence number with respect granted with respect to his Labor Law S 240 Labor Law§ 240 (1) caµse ca)lse of of action action and with with respect respect to his Labor Law S 241 (6) cause Labor Law§ cause of of · action action to the extent extent that that it is premised premised on Industrial Industrial Code NYCRR) §S 23-5.1 (c) (1). Code (12 NYCRR) (1) .. · Plaintiffs Plaintiff s motion motion is otherwise otherwise denied; denied; and it is further further ORDERED, that ORDERED, that Defendants' Defendants' motion motion (rrmtion (motion sequence sequence number number 3) is granted granted to the extent that plaintiffs extent that plaintiffs common-law negligence and Labor common-law negligence Labor Law S 200 Law § 200 causes causes of of action action are dismissed dismissed and to the extent that plaintiff extent that plaintiffss Labor Labor Laws Law § 241 ((6) 6) cause cause of of action action is dismissed dismissed with with respect respect to Industrial Industrial Code Code (12 NYCRR) SS 23-1.2 NYCRR) §§ 23-1.2 (b); 23-1.5 23-1.5 (a); 23'-l.7 23'"1.7 (a); 23-1.7 23-1.7 (b); 23-1.32; 23-1.32; 23-3.1; 23-3.1; 23-3.2; 23-3.2; 23-3.3; 23-3.3; 23-4.1; 23-4.1; 23-4.2; 23-4.2; 23-4.4. 23-4.4. Defendants' Defendants' motion motion is otherwise otherwise denied. denied. This constitutes constitutes the decision decision and order order of of the court. court.

ENTER ENTER

HON. HON. INGRI INORI JOSEPH, JOSEPH, J.S.C. J.S.C. Hon. Han. Ingrid Ingrid Joseph Joseph Supreme Supreme Court Court Justice Justice

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Footnotes

[1] of 8 [* 1] Construction Construction Group, LLC (Hudson Group, LLC Meridian) (c6llectively (Hudson Meridian) (c6llectively referred referred to as defendants) defendants) (motion., (motion l •~ sequence number 2). Defendants sequence number Defendants .move move for an ordir, ord~r, pursuapt pursuapt to CPLR CPLR 3212, 3212, granting granting summary'' summary :lI i~ judgment dismissing judgment dismissing the complaint complaint against against them them (tjlotion (motion sequence sequence number number 3). " I In this this action premised upon action premised upon common-law common-law negligence violations of negligence and violations of Labor Labor Law ~~" Law §§ J - .. _- ----- _ ..._--_. 200, 200, 240 (1) and 241 (6), plaintiff plaintiff alleges that,a,I on July alleges that, July 8, 2020, 2020, he suffered suffered injuries injuries while'! while·. :I'I ~ preparing preparing to spray spray foam foam fireproofing material °:nto fireproofing material ~nto steel steel beams located in the ceiling beams located ceiling of of a commercial building being commercial building being constructed constructed in Staten Island, New Staten Island, New York. York. The The premises premises at issue issue was was, i . . 'I'i owned owned by Hylan Plaza, 11 which Hylan Plaza, which hired hired Hudson Hudson Meridian construction manager/general Meridian as a construction manager/general contractor contractor for a project project involving involving the constructio~ construction of of a strip mall.22 Hudson strip mall. Hudson Meridian, Meridian, in tum, tum, subcontracted subcontracted with third-party · defendant with third-party' Buil,der Services defendant Bui~der Services Group, Group, Inc., Inc., d/b/a d/b/a Truteam Truteam Commercial Commercial Services, Services, a Topbuild Topbuild Company Company (Truteam), (Truteam), to perform perform spray-on fireproofing work spray-on fireproofing work ;,iJ . on, among among other other things, things, the newly installed ste~l. newly installed steb1. Plaintiff Plaintiff was employed employed by Truteam Truteam as a I sprayer. sprayer. I According to plaintiffs According plaintiffs deposition deposition testiniony, testimony, on the date date of of the accident, accident, Dominic, Dominic. Colavito, Colavito, a Truteam Truteam employee employee and plaintiffs supervisor, and plaintiffs supervisor, dire.cted dire'cted him assemble a baker's him to assemble baker's . " !I scaffold scaffold to stand stand on while while he sprayed sprayed fireproofing fireproofing material_ material, onto beams in the ceiling onto beams ceiling of of one of· of ii,I the buildings buildings being being constructed. constructed. Plaintiff asserted, that Plaintiff asserteq that he connected connected all the the hooks hooks holding holding the .I . :1 platform platform onto the frame, frame, inspected locked the!~wheels, inspected it, locked the,(wheels, and then then used A-frame ladder used an A-frame ladder to" to . ;j climb climb onto platform, which onto the platform, which was was six to seven' seven!' feet above ground. Once above the ground. Once he was on the · . platform, plaintiff platform, plaintiff noticed noticed that that the platform platform moved. moved. Plaintiff, Plaintiff, as a result, result, climbed climbed back down the , back down ladder ladder and told told Colavito Colavito that platform just that the platform just moved, moved, but but Colavito Colavito told told plaintiff continue plaintiff to continue . .~- i:. , . ' working, working, stating, stating, "let's "let's go, let's let's do this this fast" (plaintiffs fast" (plaintiffs ~. ~. deposition, at 80,. ... Ins 24-25). deposition, 24-25). After" After'' Ii~ plaintiff plaintiff climbed back onto climbed back onto the the scaffold's platform:aa second scaffold's platform second time, but before time, but had brought before he had brought any 1 'I of of the spray spray equipment equipment up with with him him or started started work,ing, the platform worl?ng, the platform and scaffold scaffold collapsed collapsed under under . him, and plaintiff him, plaintiff fell with with the the scaffold scaffold to the floor. ·Plaintiff also asserted 'Plaintiff also asserted that Colavito had that Colavito inspected inspected the scaffold scaffold after plaintiff constructed after plaintiff constructed it, although although its unclear from its unclear from plaintiff plaintiffss testimony testimony whether Colavito whether Colavito did so before before plaintiff plaintiff reached reached . theII platform platform on ,his first first and/or and/or second second time. 'I , ,,II It is well well established that the established that the party party moving moving for summary summary judgment judgment must make a prima must make prima , facie showing showing ofof entitlement judgment as a matter entitlement to judgment matter of of l~w, law, tendering evidence to 'i sufficient evidence tendering sufficient .•, 1 IHylan Hylan Plaza conceded that Plaza conceded that it owned owned the the premises premises at issue issue in :its jts answer.' answer. The deposition The

[22] deposition testimony testimony ofof Hudson Hudson Meridian's Meridian's witness witness and and its contract contract with with Hylan Hylan Plaza Plaza demonstrate demonstrate that that Hudson Meridian Hudson Meridian acted acted as the the general general contractor contractor for fortheprojett. the project. 2 2 of 8 [* 2] demonstrate demonstrate the absence absence of of any material material issues issues of of fact (Ayotte (Ayotte v. Gervasio, 81 NY2d v. Gervasio, NY2d 1062, 1063 [1993), [1993], citing Alvarez v. citing Alvarez Hospital, 68 Prospect Hospital, v. Prospect N\2d 320, 68N'X"2d 324 [1986); 320,324 Zapata v. [1986]; Zapata Buitriago, 107 v. Buitriago, AD3d AD3d 977 [2d Dept Dept 2013)). 2013)). Once Once a prima prima facie showing showing has been been made, made, the burden burden shifts shifts to the party opposing party opposing the motion. motion to produce produce evidentiary evidenti~ proof, in admissible proof, sufficient to admissible form, sufficient establish establish the existence existence of of material material issues issues of of fact which which require require a trial trial of of the action. action. (Zuckerman (Zuckerman v. v. City of New York, 49 NY2d of New NY2d 557 [1980)). [1980)). Turning Turning first to plaintiffs plaintiffs Labor Labor Law S 240 (1) cause Law § cause of of action, action, Labor Labor Law S 240 (1) Law § imposes imposes a nondelegable nondelegable duty upon owners, duty upon owners, general general contractors, contractors, and and their their agents agents to provide provide scaffolding scaffolding which which is "so "so constructed, placed and constructed, placed and operated operated as to give proper protection" give proper protection" to employees employees using using it. To make make a prima prima facie showing showing of of liabili_ty under Labor liability under Labor Law S 240 (1), a Law § plaintiff must plaintiff must establish establish that that the the statute statute was· was' violated violated and that that the violation violation was was a proximate proximate cause· cause' ofplaintiffs ofplaintiffs injuries injuries (see Debennedetto Chetrit, 190 AD3d Debennedetto v Chetrit, AD3d 933, 936 [2d Dept Dept 2021); 2021]; Cruz Cruz v Roman Catholic Roman Church of Catholic Church of St. Gerard 174 AD3d Magel/a,!~174 Gerard Magel/a, AD3d 782, 783 [2d Dept Dept 2019)). 2019)). The burden burden then then shifts shifts to the defendant defendant to raise raise a triabl_e triable issue issue of of fact (see Bermejo Bermejo v New New York City City Health & Hosps. Health Corp., 119 AD3d Hasps. Corp., AD3d 500, 502 [20,14), dismissed 24 NY3d [20,14], Iv dismissed NY3d 1096 [2015)). [2015)). A plaintiffs comparative plaintiffs comparative negligence defense to a cause negligence is not a defense cause of of action under Labor action under Labor Law S 240 Law § (1) (see Blake Blake v Neighborhood Neighborhood Hous. Haus. Servs. of NY City, 1 NY3d of NY NY3d 280, 286 [2003); Rapalo v [2003]; Rapalo MJRB Kings MJRB Kings Highway Highway Realty, LLC, 163 AD3d Realty, LLC, AD3d 10?3, 1O?3, 1024 [2d Dept Dept 2018)). 2018)). However,.1where However"lwhere a plaintiffss actions plaintiff actions are the sole proximate cause sole proximate cause of of his or her injuries, injuries, liability liability under under Labor Labor Law S Law §

[240] (1) does does not not attach attach (see Robinson Robinson v East East Med LP, 6 NY3d Med Ctr., LP, NY3d 550, 554 [2006); Rapalo, [2006]; Rapalo, 163 AD3d AD3d at 1024). Here, Here, there there is no dispute dispute that that Hylan Hylan Pla~a, the owner owner of of the premises, premises, and Hudson Hudson Meridian, Meridian, the general general contractor, contractor, are entities entities that that may may be held held liable liable under under Labor Law S 240 (1) Labor Law§ (see Gordan Gordan v Eastern Supply, 82 NY2d Eastern Ry. Supply, NY2d 555, 559-560 559-560 [1993); Jara v Costco [1993]; Jara Costco Wholesale Wholesale Corp., 178 AD3d AD3d 687,690 687,690 [2d Dept Dept 2019); 2019]; see also McCarthy McCarthy v Turner Inc., 17 NY3d Turner Constr:, Inc., NY3d 369, 374 [2011); Turner Constr. Co., 114 AD3d Pipia v Turner [2011]; Pipia AD3d 424, 424, 427 [1st Dept Dept 2014), 2014], Iv dismissed dismissed 24 NY3d NY3d 1216 [2015)), [2015)), that plaintiffs fireproofing that plaintiffs fireproofing work work is work work that that is covered under section covered under section 240 (1) (se~ Belding v Verizon (sec Belding NY, Inc., 14 NY3d Verizon NY, NY3d 751, 752-753 752-753 [2010); Artoglou v Gene [2010]; Artoglou Scappy Corp., 57 AD3d Realty Corp., Scappy Realty AD3d 460, 460, 461 [2d Dept Dept 2008)), 2008)),33 and that plaintiff, at the time that plaintiff, time of of the This fireproofing 3 This 3 fireproofing work work was was also also ancillary ancillary to the larger larger construction project involving construction project involving the erection erection of of the buildings the buildings (see Depass v Mercer (see Depass LLC, 219 Mercer Sq., LLC, 219 AD3d AD3d 801, 801, 802 [2d Dept Dept 2023]). 2023]). 3 3 of 8 [* 3] accident, accident, was working working at an elevation elevation for purposes purposes of of section section 240 (l) (see Data 240 (1) Doto v Astoria Astoria Energy Energy LLC, 129 AD3d II, LLC, AD3d 660, 662 [2d Dept 660,662 Dept 2015]; Auriemma v Biltmore 2015]; Auriemma Biltmore Theatre, LLC, 82 AD3d Theatre, LLC, AD3d 1, 1,99 [1st Dept Dept 2011]; Bradley v Morgan 2011]; Bradley Morgan Stanley CO.,'Inc., 21 AD3d Stanley & Co.,'lnc., AD3d 866, 867-868 [2d Dept 867-868 [2d Dept 2005], 2005], __ -,.--. ___ -;._.______ _a_brogated_ pn other a.brogate4 (!n grounds Wrighten other grounds Wrighten v ZHN Corp., 3~ ZHN Contr. Corp., ..1~J?~d .HUJJ~sLRept 3~_:~J?~d _H)J_<) __[ist_ Qept iQQQ]). ~QQQ]). Additionally, Additionally, through through his testimony testimony that that the scaffold scaffold and scaffold platform collapsed scaffold platform collapsed and caused caused him to fall to the ground, plaintiff has demonstrated, ground, plaintiff prima facie, that demonstrated, prima that the the statute statute was violated violated and that that this violation violation was was a proximate cause of proximate cause plaintiffs injuries of plaintiffs injuries (see Bialucha Bialucha v City of New of New York, 222 AD3d AD3d 511, 511-512 511-512 [1st Dept Dept 2023]; Hernandez v 767 Fifth 2023]; Hernandez Fifth Partners, LLC, 199 AD3d Partners, LLC, AD3d 484, 485 [1st Dept 484,485 Dept 2021]; Debennedetto, 190 AD3d 2021]; Debennedetto, AD3d at 936; Cruz, Cruz, 174 AD3d AD3d at 783; Caban Caban v Corp., 153 AD3d Plaza Constr. Corp., Plaza AD3d 488, 488, 489-490 489-490 [2d Dept Dept 2017]). 2017]). Contrary Contrary to defendants' defendants' contentions, contentions, the accident accident reports reports relating relating to the subject subject incident incident do not demonstrate demonstrate the existence existence of of a factual factual issue. issue. In the report prepared for Truteam report prepared Truteam and dated dated July 31, 2020, 2020, Colavito Colavito stated, stated, as is relevant relevant here, here, that, "Employee "Employee was was installing installing a broken broken scaffold scaffold in [the] F building building fire pump pump room. room. He was on the platform, platform, about about 4 feet up to install install the safety safety guard guard rail and as he went went to install install the seco'nd guard, guard, the scaffold scaffold slid down down on one side causing causing him him to fall." fall." Colavito Colavito also made made a similar similar statement statement in an accident accident report prepared by the report prepared project's project's site safety safety manager. manager. Assuming Assuming that that Colavito's Colavito's statements statements in the reports reports are admissible admissible (see Mayorquin Mayorquin v Carriage House Owner's Carriage House Corp., 202 AD3d Owner's Corp., AD3d 541, 541 [1st Dept 541,541 Dept 2022]; Buckley. 2022]; Buckley v JA. Jones/GMO, 38 AD3d JA. Jones/GMO, AD3d 461, 461, 462-463 462-463 [1st Dept Dept 2007]), 2007]),44 they they actually actually support plaintiff's support plaintiffs entitlement entitlement to summary judgment since, summary judgment since, even even though though Colavito' description of Colavito's s description of the accident accident is not exactly exactly the same same as plaintiff plaintiff's, s, he states states that that the _scaffold scaffold was broken and that was broken that it slid down down causing plaintiff to falL causing plaintiff fall, On the other other hand, hand, Hudson:Meridian's Hudson:Meridian's accident accident report report does does not not appear appear to have. have, any evidentiary evidentiary value, value, since since Jorge Jorge Garcia, Garcia, Hudson Hudson Meridian's Meridian's general general superintendent/project superintendent/project manager, manager, testified testified at his deposition deposition that that he did not not witness accident.s5 witness the accident. In opposing opposing the motion, motion, defendants defendants also argue argue that, that, since plaintiff was since plaintiff was the. sole person person to assemble assemble the scaffold, scaffold, he must must have have misassembled misassembled the scaffold, scaffold, and, as such, such, there there are at least least 4 4 Plaintiff relied upon Plaintiff relied upon Colavito's Colavito's statements statements in his opposition papers and may opposition papers may be deemed deemed to have have waived waived any objection respect to their objection with respect their admissibility. admissibility.; ; The court 55 The court notes notes that, that, in contrast contrast to the the statements statements by Colavito, Colavito, plaintiff not rely plaintiff did not rely on Garcia's Garcia's statement statement in his papers. In addition, papers. addition, while while defendants defendants submitted submitted a copy copy of Hudson Meridian's of Hudson Meridian's accident accident report report and and mentioned mentioned Garcia's Garcia's statement contained in it in defendants' statement contained defendants' initial initial statement statement ofof material material facts facts submitted submitted in support support of of their their motion, motion, they made no argument they made argument that that Garcia's Garcia's statement statement supported supported their position until their position until their reply papers. their reply papers. Thus, while Thus, while the accident report may accident report may properly properly be considered before the court, considered before plaintiff cannot court, plaintiff cannot be deemed have waived deemed to have waived an objection objection to the admissibility admissibility of of the the statement. statement. . · 4 4 of 8 [* 4]