Garcia v. 100 Church Fee Owner LLC

Garcia v 100 Church Fee Owner LLC 2024 NY Slip Op 32185(U) June 28, 2024 Supreme Court, New York County Docket Number: Index No. 158554/2018 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. 158554/2018 NYSCEF DOC. NO. 190 RECEIVED NYSCEF: 06/28/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice -------------------------------,---------------------------------X INDEX NO. 158554/2018 GEREMIAS J. BERGANZA GARCIA, MOTION DATE 04/27/2024 Plaintiff, 00_3_ __ MOTION SEQ. NO. _ _ _ - V-

100 CHURCH FEE OWNER LLC, 100 CHURCH STREET TENANT, LLC,SL GREEN REAL TY CORP., R & S DECISION + ORDER ON CONSTRUCTION CONTRACTING, INC.,STEPHEN FOY MECHANICAL SERVICE CORP., MOTION

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

100 CHURCH FEE OWNER LLC, SL GREEN REALTY Third-Party CORP., R & S CONSTRUCTION CONTRACTING, INC. Index No. 595447/2019

Plaintiff,

-against-

MELLIFONT CONSTRUCTION CORP.

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

The following e-filed documents, listed by NYSCEF document number (Motion 003) 114, 115, 116, 117, 118,119,120,121,122,123,124,125,126,127,128,129,130,131,132,133,134,135,136,137,138, 139, 142, 143, 144, 145, 146, 147, 148, 149, 173 were read on this motion to/for JUDGMENT-SUMMARY

Upon the foregoing documents, and after oral argument, which took place on February 27,

2024, where Timothy Norton, Esq. appeared on behalf of Plaintiff Geremias J. Berganza Garcia

("Plaintiff'), Benjamin B. Petrofsky, Esq. appeared on behalf of Defendant Stephen Foy

Mechanical Service Corp. ("Stephen Foy"), Gerard Van Leuven, Esq. appeared on behalf ofthird-

party Defendant Mellifont Construction Corp. ("Mellifont") and Lyndsey Caldwell, Esq. appeared

on behalf of Defendant/Third-Party Plaintiffs 100 Church Fee Owner LLC ("Owner"), SL Green

Realty Corp. ("SL Green"), and R&S Construction Contracting, Inc. ("R&S") (collectively "Cross 158554/2018 BERGANZA GARCIA, GEREMIAS J. vs. 100 CHURCH FEE OWNER LLC Page 1 of 9 Motion No. 003

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Movants"), Plaintiffs motion for summary judgment on his Labor Law § 240(1) claim is granted,

and his motion on his Labor Law §241 (6) claim is denied as academic. The Cross Movants' motion

for summary judgment dismissing Plaintiffs claims and seeking summary judgment on their

claims is denied.

I. Background

This is an action for personal injuries arising from alleged Labor Law violations. Plaintiff

was employed by third-party defendant Mellifont Demolition & Construction (NYSCEF Doc. 118

at 20: 16-19). In June of 2018, Plaintiff was working at the construction site located at 100 Church

Street (the "Worksite") (id. at 56:11-13). Plaintiff was involved in demolition work (id. at 57:13-

15). Plaintiff was injured in an accident at the Worksite on June 23, 2018 (id. at 67:21-23). On that

day, Plaintiff was instructed to take part in a wall demolition, demolish a door frame, and to put

together a scaffold (id. at 73 :9-15). This took place in the basement (id. at 75 :22-23). The scaffold

was being put together near an elevator shaft (id. at 77 :4-11 ). There was no ceiling in the area

where the scaffold was being erected in preparation for the elevator to be placed (id. at 77: 11-15).

It was in this location that a metal object from a higher floor fell down the elevator shaft being

built and struck Plaintiff (id. at 78: 12-20).

The Worksite was owned by 100 Church Fee Owner LLC (NYSCEF Doc. 122 at 13-14).

It was managed by SL Green Realty Corp. (id. at 13). A representative of SL Green testified that

SL Green was the agent of 100 Church Fee Owner (id. at 15-16). The general contractor at the

Worksite was Defendant R&S Construction (NYSCEF Doc. 120 at 14:10-14). William Malm

served was the labor foreman for R&S Construction on the date of Plaintiffs accident (id. at 16-

17). He testified it was his job to supervise laborers on the Worksite (id. at 18: 17-18). He testified

that without proper overhead protection, such as netting, or plywood, workers should not be

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working in an elevator shaft (id. at 22:3-25). Mr. Malm could not testify with certainty that there

was any protection for the elevator shaft where Plaintiff was injured (id. at 24:12-22; 25:4-9). Mr.

Malm testified the metal object that struck Plaintiff was a welding clamp which came from the 8th

floor, bounced off the second floor, and entered the elevator shaft where it ultimately struck

Plaintiff (id. at 33: 11-20). Stephen Foy, the plumbing contractor, was working in a utility shaft

directly next to the elevator shaft where Plaintiff was working. Stephen Foy employees were using

the welding clamp (id. at 38). Mr. Malm conceded that ifthere had been proper protection between

the utility shaft where the plumbers were working and the elevator shaft where Plaintiff was

working, the accident would not have happened (id. at 45:4-14).

II. The Motion and Cross-Motion

A. Plaintiff's Motion

Plaintiff moves for summary judgment on his Labor Law § 240(1) claim against Owner,

SL Green, and R&S. Plaintiff argues these are proper 240(1) defendants because Owner owned

the premises at the time of the accident, SL Green was Owner's statutory agent, and R&S was the

general contractor. Plaintiff argues that the welding clamp which struck him and fell through a

hole was improperly secured in violation of§ 240(1 ). In opposition, the Cross Movants argues that

the welding clamp which struck Plaintiff was not required to be secured and therefore the

elevation-related hazard here was unforeseeable. In reply, Plaintiff argues that where there is an

accidental dropping of a building material or tool which strikes a worker due to insufficient

overhead protection, there is a prima facie Labor Law § 240( 1) violation. Plaintiff likewise argues

precedent establishes there is no need for Plaintiff to establish foreseeability in meeting his prima

facie burden on a §240(1) claim.

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B. Cross Movants' Cross-motion

The Cross Movants seek dismissal of Plaintiffs Labor Law §§ 200, 240(1 ), and 241 (6)

claims. 1 Cross Movants also seek summary judgment on its cross claims against Third-Party

Defendant Mellifont and Stephen Foy pursuant to the contracts executed with those parties. The

cross-motion is opposed by numerous parties. Stephen Foy opposes and argues that Cross Movants

are not entitled to summary judgment on their cross claims because their own negligence caused

the accident. Mellifont also opposes and says the indemnification clause is unenforceable. In reply,

Cross Movants attempt to argue they are free from negligence and are therefore entitled to

summary judgment on their crossclaims.

III. Discussion

A. Standard

"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];

Pemberton v New York City Tr. Auth., 304 AD2d 340, 342 [1 st Dept 2003]). Mere conclusions of

law or fact are insufficient to defeat a motion for summary judgment (see Banco Popular North

Am. v Victory Taxi Mgt., Inc., l NY3d 381 [2004]).

1 Because the Court grants Plaintiffs motion for summary judgment on his Labor Law §240(1) claims, discussion regarding §§ 200 and 241 (6) is not needed as liability under these sections is moot. 158554/2018 BERGANZA GARCIA, GEREMIA$ J. vs. 100 CHURCH FEE OWNER LLC Page 4 of 9 Motion No. 003

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B. Plaintiff's Motion

Plaintiff is granted summary judgment as to liability on his Labor Law §240(1) claim. It is

undisputed that Plaintiff was engaged in demolition work when a welding clamp fell from the eight

floors, bounced on the second floor through a hole/gap, and proceeded to fall through the elevator

shaft where Plaintiff was assembling a scaffold. It is likewise undisputed that the hole/gap which

the welding clamp fell through was unsecured but after this accident was secured to prevent similar

accidents. It is further undisputed that the Cross Movants are each proper §240(1) defendants as

they own the premises, are the statutory agent of the owner, or were the general contractor.

As the First Department has recently held, in the context of falling objects, the risk to be

guarded against under §240(1) is the unchecked or insufficiently checked descent of the falling

object (Torres-Quito v I 61 I LLC, 207 NYS3d 56 [1st Dept 2024]). Contrary to the Cross Movants'

opposition, a Plaintiff is not required to show that the object was being hoisted or secured when it

fell (id.). Although Cross Movants argue that the Court of Appeals decision in Narducci v

Manhasset Bay Associates, 96 NY2d 259 [2001 J is analogous, this Court disagrees. In Narducci,

no one was working on the window from which glass fell, nor was there evidence that anyone

worked on that window during the renovation. Here, there is direct evidence that Stephen Foy

employees while working on plumbing accidentally dropped the welding clamp while Plaintiff

was working on demolition. The welding clamp was not properly secured, and Plaintiff was

entitled to overhead protection to prevent the unsecured clamp from injuring him (see, e.g.

Harsanyi v Extell 41 JO LLC, 220 AD3d 528 [1st Dept 2023]; Mayorquin v Carriage House

Owner's Corp., 202 AD3d 541 [1st Dept 2022]; Garcia v SMJ 210 West 18 LLC, 178 AD3d 4 74

[1st Dept 20191; Hill v Acies Group, LLC, 122 AD3d 428 [1st Dept 2014]).

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The undisputed facts and a plethora of precedent establish a Labor Law §240(1) violation

entitled Plaintiff to summary judgment. Accordingly, Plaintiffs motion is granted.

C. Cross-Motion

i. Dismissal of Plaintifrs Labor Law Claims

As a preliminary matter, the portion of the Cross Movants' motion seeking dismissal of the

Labor Law § § 200, 240(1 ), and 241 (6) claims is denied as moot as this Court has already found

Plaintiff is entitled to liability against these defendants under § 240(1) (Malan v FSJ Realty Group

II LLC, 213 AD3d 541, 542 [l st Dept 2023]; Corre to v Onex Real }.'state Partners, 209 AD3d 483,

484 [1st Dept 2022]).

ii. Third-Party Claims against Mellifont and Cross Claims against Stephen Foy

The Cross Movants are denied summary judgment on their third-party and crossclaims for

common law indemnity. The Cross Movants and their agents were responsible for coordinating

the various trades at the Worksite as well as overseeing safety on the worksite. Viewing the facts

in the light most favorable to the non-movant, here, Mellifont and Stephen Foy, there is at a

minimum a triable issue of fact as to whether the Cross Movants were negligent in adequately

supervising the trades and ensuring there was proper protection at the Worksite (see generally,

Aiello v Burns Intern. Sec. Services Corp., 110 AD3d 234 [1st Dept 2013] [common-law indemnity

inappropriate where party seeking indemnification has participated to some degree in

wrongdoing_]). Indeed, the hole through which the clamp fell was eventually sealed by R&S

personnel (NYSCEF Doc. 120 at 102:15-19; 105:11-14) and had R&S personnel been aware of

the hole, they would have sealed it to prevent the accident (id. at 117:7-19). Given this testimony,

the Cross Movants are not entitled to summary judgment on their claim for common law

indemnification.

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For the same reasons, any grant of summary judgment on Cross Movants claim for

contractual indemnification would be premature (York v Tappan Zee Constructors, LLC, 224

AD3d 527, 529 [1st Dept 2024]; Bradley v NYU Langone Hospitals, 223 AD3d 509, 511-512 [1st

Dept 2024 ]; Spielmann v 170 Broadway NYC LP, 187 AD3d 492 [1st Dept 2020] [where a triable

issue of fact exists regarding the indemnitee's negligence, a conditional order of summary

judgment for contractual indemnification must be denied as premature]).

Cross Movants motion for summary judgment on its third-party claim against Mellifont for

failure to procure insurance is denied without prejudice, with leave to renew in the event the

primary coverage of $1,000,000 is exhausted and the excess carrier denies coverage to the Cross

Movants. A party moving for summary judgment on its claim for failure to procure insurance must

show correspondence from the insurer of the party against whom summary judgment is sought

indicating that the moving party was not named as an insured on any policies issued (Dorset v 285

Madison Owner LLC, 214 AD3d 402 [1st Dept 2023]).

As a preliminary matter, the Cross Movants concede they are being provided a defense

and coverage under Mellifont's primary policy. As a secondary matter, Cross Movants have failed

to provide to the Court the excess policy obtained by Mellifont which they claim excludes them

coverage and therefore the Cross Movants have failed to meet their prima facie burden to obtain

summary judgment. Finally, the correspondence proffered by Cross Movants between their

counsel and Rockville Risk Management ("Rockville") states that coverage is only triggered when

the underlying insurance has been exhausted by payment of judgments, settlements, or any cost

expense subject to such limit (NYSCEF Doc. 137). Rockville stated that the request for indemnity

was premature because the underlying policy limits were not yet exhausted but stated that the

excess carrier will be willing to review its coverage obligations based on future determinations

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(id.). Accordingly, Cross Movants may still be afforded the $5,000,000 in excess coverage if/when

the $1,000,000 in underlying limits is exhausted.

There is nothing in the record on this motion which indicates Mellifont failed to name

Cross Movants as additional insureds under its excess policy, rather it appears the third-party

claims administrator has simply found it is premature to make the $5,000,000 in excess coverage

available prior to their being determinations that the $1,000,000 in underlying coverage is or will

soon be exhausted. Thus, this portion of the cross-motion is denied without prejudice, with leave

to renew should the $1,000,000 become exhausted and the excess fails to become available by

virtue of an exclusion or failure to be named as an additional insured.

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Accordingly, it is hereby,

ORDERED Plaintiff's motion for summary judgment is granted; and it is further

ORDERED that Plaintiff Geremias J. Berganza Garcia is granted summary judgment on

his Labor Law §240(1) claim against 100 Church Fee Owner LLC, SL Green Realty Corp., and

R&S Construction Contracting, Inc.; and it is further

ORDERED that 100 Church Fee Owner LLC, SL Green Realty Corp., and R&S

Construction Contracting, Inc.'s cross motion for summary judgment is denied; 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; and it is further

ORDERED that the Clerk of the Court is directed to enter judgment accordingly.

This constitutes the Decision and Order of the Court.

6/28/2024 DATE HON. ARY V. ROSADO, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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