Sarmiento v Turner Constr. Co., Inc.

Annotate this Case

Download PDF

Sarmiento v Turner Constr. Co., Inc. 2012 NY Slip Op 31024(U) April 13, 2012 Supreme Court, New York County Docket Number: 110432-09 Judge: Judith J. Gische Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON411812012 [* 1] I I NEW YORE: O O m I PReSENf: JlW# I - Index Number : 11043212009 SARMIENTO, MANUEL vs. TURNER c m u c n o N co. SEQUENCE NUMBER : 003 L I I I I 1 SUMMARY JUDGMENT \ i ! I I I I I I I 1 I i I I I I I I ! i ! I ! I I FILED I I APR 1 m 72 . NEW YOHK JNTY CLERKS OFFICE ApR 13'zfllz t: 4% i ! I I [* 2] SUPREW COURT OF THE! STATE OF N W YORK E COUKTY NEWYORK:IAS PARTI O OF I-" ------ X DmsioNI ORDER IMeX NO.: 110432-09 Seq. No.: 003 Manuel Sarmiento and Haidee Orozm, Plaintiff (s), -against- PRESENT: Hen, Judith J. G i s c k J.S.C. Turner Construction Company, Inc. and AMCC Corp., Defendant ( ) s. __ AMCC Corp., T.P. Index No.: 591 195/0@ P Party Plaintiff, -agehst- FILED New York Concrete Corp., 3d Party Defendant. .. APR 17 2012 Recltatlon, aa required by CPLR 5 2219 [a] of the papers considered In t h e ~ N & ~ ~ ~ F F I C E (these) rnotlon(s): Papers Numbered NYCC amended nlm (3212) w/JTP iff~rm, exhs . . . . . . . . . . . . . . . . . . . 1 2 Sarmiento opp w/GWI affirm .................................. TurnerlAMCC opp w/SAM, exh ................................. 3 NYCC reply w/JTP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 _ I _ _ - Upon the fomgoingpapers, the decision and order of the court is as follows: GISCHE J.: Plaintiff Michael Sarrniento alleges that defendants Turner Construction Company, Inc. ('Turner") and AMCC, Cop. ("AMCC")vlolated the Labor Laws (sections 240,241 [6] and 200) and that such violations (and defendants' negligence) were the proximate cause of his injuries. Issue was joined and AMCC impleaded New York Concrete Carp -Page 1 of 5- [* 3] ( NYCC ) whkh appeared and now moves for summary judgment dismissing the third party complaint and any residual negligence daims by Turner. The motlon is opposed by Turner and AMCC. Sarmiento takes no position on the motion other than to oppose some of NYCC s recitations of the facts surrounding his accident. Sarmlento prematurely filed hi8 note of issue and it was stricken. It has been re- filed (November 2,201 I) this motion 1 timely brought (CPLR § 3212; Brill v. CitV of and 8 NewVo& 2 NY3d 648 120041). The court s decision and order is as follows: Facts and Arguments The issue of whether the defendants violated the Labor Laws is not before the court to decide. The sole issue is whether NYCC has established that Sarmiento s injurles were not as a result of any negligence by it. Although the third party complaint asserts claims for contribution and Indemnification, NYCC has not moved with respect to those claims. A very brief recltatlon of Sarrniento sclalms k necessary. Sarmiento, an employee of AMCC andlor AMCI, a unlon affiliate of AMCC, claims that while he was instructed to clean the thlrd floor with a scaffold and on the day of the accident, as he was pulllng along the scaffold, he tripped and fell. Sarmiento testifled at his EBT that he lriipped wlth the trash. Wfmn I was on the ground, laying down, I saw all the trash that was around me. Sarmiento elaborated that the trash or debris consisted of *plpaa and pieces of ducts and that there were pieces of concrete among the debris. Although an accident report made at the time ofthe accident indicates Sarmiento tripped over a concrete curb, the report is not signed by Sarmiento and at his EBT he testifled that he did not recall telling anyone that he had tripp4d over a concrete curb. -Page 2 of 5- [* 4] One ofSarmlento's co-workers ("Yaner") is listed as a wltness to the accldent on a report. Yaner was deposed and testified that ha did not actually witneaa the accident (he had his back turned) but when he heard Sarmiento scream, he turned around and saw Sarmiento on the floor near the door to the mechanical room, close to an uneven area which he explalned Is "Ilke a little thing that is raised so to stop the water.' Yanez ahso tastlfkl "everything [was] clean" in the area where Sarmiento fell. According to Yanez, he had been helpfng Sarmlento clean the mechanical r w m whlch is located on the 4" floor. NYCC was a subcontractor for AMCC on this project. Pursuant to Article IA of Its subcontract agreement' with AMCC made March 29,2006, NYCC was obligated to provide all labor, materials, tools, etc for "site concrete, excavation, removals, concrete, drainage and sewage systems [etc.]. subcontractor to place dirt, rubblah, debris, etc. into piles for removal by others. NYCC contends it I entitled to summary Judgment s because there is no evidence it created a dangerous condition, Sarmlento la the only witness to his accident and there is no proof that he tripped over a "curb." Dbcusslon "The proponent of a summary judgment motion must make a prima f@& showing of entitlement to Judgmentas a matter of law, tendering sufficient evidence to eliminate any material lasues of fact from the case." m d v. New York Unkr. Mad. C 84 k -1 N.Y.2d 851,853 (1985). Sarmiento testifled he tripped over debris on third floor as he was cleaning. Although there were some concrete pieces, It was not a concrate curb, as 'Although NYCC dM not provider the court with a copy of its subcontract with AMCC, it is provlded by AMCC. -Page 3 of 5- [* 5] AMCC alleges, nor did the accident occur on the 4 h floor rnechanfcal room2. NYCC haa, therefore, established Its prima facie case, that Sarmlento did not trip over a concrete curb that was negligently installed by it. To ralse triable issues of fact, AMCC and Turner argue that Samientotripped over the littleraised thing that Yanez referred to in his ¬ET, presumably referring the five (5) Inch curb like structure bear the entrance to the mechanical room on the 4 floor. Sarmiento testified, however, at his EBT that he dM not know whem the mechanical mom wa6 and that he had been working on the 3dfloor when the accident happened. Turner and AMCC also point out that the accident report completed when Sarmiento fell states that he tripped over a concrete curb In the South Mechanical Room on the 4 floor. The accident report is not signed by Sarmiento and ha danles he tripped over any kind of curb. Turner and AMCC have falled to demonstrate the exiatencs of a triable issue of fact (flvarez v. Prosnect Hosp ., 68 N.Y.2d 320 [1986];Zwkerman v. Crtv of New YQrk, 49 N.Y.2d 557 [1980]). Although they may be inconslstencies about how Sarmiento s accident happened, Yanez i not an eye witness to what happened and Sanniento denies s it is an accurate statement of what occurred. A party may not defeat a motion for summary judgment with bare allegations of unsubstantiated facts m a n v. Citvof New York, supra at 583-4). Consequently, the motion by NYCC to dismiss the thfrd party action Is granted. The third party complaint is dismissed. Although NYCC ha9 not elaborated what It means by its motion that any residual 2NYCCstatm that after hls EBT, Sarmiento supplemented his Bill of Partlcularj to clarify thla point That document has not been provided to the mutt -Page 4 of 5- [* 6] I or remaining negllgence claims against it by Turner be dismissed, Turner d m not oppose this branch of the motion and it is granted as wall. This cas0 is ready for trlai once mediation is completed on June 13, 2012. Sarmlento shall serve a copy of this decislon/otder on the on the Mediator and on the Office of Trial Support 80 the case can be scheduld. Conclusion In accordance wlth the forqolng, it ia hereby, ORDERED the motlon by New Yo& Concrete Corp. for summary judgment that dismissing the third party complaint against it is granted; and it is further ORDERED the clerk shall enter JudgmentIn favor of New York Concrete Corp. that dlsmlssing the third party action: and it I further s ORDERED any resldual or remaining negligence claims against it by Turner that are also dlsmlssed; and it i further s ORDERED thb cas8 I ready for trial once mediation Is completed on June 13, that s 2012; Sarmbnto shall serve a copy of this daclalonlorder on the on the Mediator and on the Offlce of Trial Support 50 the case can be scheduled; and it is further ORDERED any relief requested but not specifically addressed is hereby denied; that and I ia further t ORDERED this constitutes the decision and order of the court. that Dated: FILED BpR 17 201% New York, New York April 13,2012 So OrderEId: -Page 5 of 5- NEW YOHK COUNTY CLERKS OFFICE

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.