Velez v Boricua Vil. Hous. Dev. Fund Co., Inc.

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Velez v Boricua Vil. Hous. Dev. Fund Co., Inc. 2012 NY Slip Op 31222(U) May 4, 2012 Supreme Court, New York County Docket Number: 105708/2010 Judge: Saliann Scarpulla 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 ON 51912012 [* 1] 4 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: S & W N SCARPULIA PART i7 Justice - Index Number : 10570812010 INDEX NO. MOTION DATE VELEZ, ALEXIS vs. BORICUA VILLAGE HOUSING MOTION SEQ. NO. SEQUENCE NUMBER : 001 SUMMARY JUDGMENT U c decided p2r the memorandum decision dated which disposes of motion sequence(s)no. 001 FILED NEW YORK COUNTY CLEljK'S OFFICE NON-FINAL DISPOSITION 0 CASE DISPOSED 0DENIED 0GRANTED IN PART 0OTHER 2. CHECK AS APPROPRLATE: .......................... .MOTION IS: 0GRANTED SUBMIT ORDER 3. CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER 0DO NOT POST 0FIDUCIARY APPOINTMENT REFERENCE 1. CHECK ONE: ..................................................................... [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: CIVIL TERM: PART 19 BORICUA VILLAGE HOUSING DEVELOPMENT F U N D COMPANY, INC., BORICUA VILLAGE D, LLC, KNICKERBOCKER CONSTRUCTION, LLC and KNICKERBOCKER CONSTRUCTION 11. LLC. - . -. -_ - _ .- Defendants . For Plaintiff: Block, O Toole & Murphy, LLP One Penn Plaza, Suite 53 15 New York, N Y 101 19 F I L-EB- For Defendants: Pillinger Miller Tarallo, LLP 570 Taxter Raod, Suite 275 Elmsford, NY 10523 NEW YORK COUNTYCLERK S OFFICE Papers considered in review of this motion for summary judgment: Aff in Support. . . . . . . . . . . . . . ..1 A f f in Opposition . . . . . . . . . . . . .2 Reply Aff . . . . . . . . . . . . . . . . . . 3 HON. SALIANN SCARPULLA, J.: In this action to recover damages for personal injuries, plaintiff Alexis Velez ( Velez ) moves for summary judgment on the issue of liability against defendants Boricua Village Housing Development Fund Company, Inc. ( Boricua Village Housing ), Boricua Village D, LLC ( Boricua Village D ), Knickerbocker Construction, LLC ( Knickerbocker Construction ) and Knickerbocker Construction 11, LLC ( Knickerbocker Construction 11 ) (collectively defendants ). 1 [* 3] This action arises from injuries Velezsustained on Marc,. , 2010 while working on a project (the project ) to build an apartment building at 507 East 16 1st Street (the premises ). At the time of the accident, Velez was employed by AMJ Ironworks ( AMJ ) as a welder. Knickerbocker Construction 11, the project s general contractor, subcontracted with AMJ to perform iron work on the project. Boricua Village Housing and Boricua Village D owned the premises. At his deposition, Velez testified that the accident occurred while he was .- - . ascending a ladder on the roof of the premises. Earlier that day, AMJ had assigEd-Velez- to place railings around the edge of the roof. Velez testified that immediately before the accident, his foreman directed him to assist a co-worker in taking measurements inside an elevator shaft that extended 14 or 15 feet off the roof. The only way to access the top of the elevator shaft was with the upper piece of a two-piece extension ladder. Velez testiced that as he neared the top of the ladder, it slipped out from under him, causing him to fall. According to Velez, no one was holding the bottom of the ladder when the accident occurred, though a coworker and his foreman were also on the roof. Knickerbocker Construction and Knickerbocker Construction I1 are sister companies. 2 -. [* 4] - Velez commenced this action in April 20 10, pleading causes of action under common law negligence and various state and federal statutes, including Labor Law $8 240 and 241. Velez now moves for summary judgment, arguing that defendants are liable under Labor Law 5 240( 1) because no one secured the ladder as Velez climbed it. Velez further argues that defendants failure to secure the ladder was a violation of part 12 of the New York Industrial Code, and thus a violation of Labor Law . 4 24 l(6). In opposition, defendanC<aEuethat Velez was not involved ina construction activity at the time he was injured and therefore defendants are not liable under the Labor Law. Discussion A movant seeking summary judgment must make aprima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to eliminate any material issues offact. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985). Once a showing has been made, the burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact. Alvarez v. Prospect Hosp., 68 N.Y.2d 320,324 (1986); Zuckerman v. Ct of New York,49 N.Y.2d 557 (1980). iy Velez has made aprima facie showing of entitlement to summary judgment on the Labor Law $ 240( I ) cause of action against Boricua Village Housing, Boricua Village D and Knickerbocker Construction 11. Owners and general contractors are required under Labor Law 240( 1) to provide protections against elevation-related hazards for workers 3 [* 5] engaged in the construction, repair, demolition, painting and alteration of a building or c structure. Jurnil v. Concourse Enters., 293 A.D.2d 27 1, 273 (1 St Dept. 2002). Here, the parties do not dispute that Boricua Village Housing and Boricua Village D owned the premises, or that Knickerbocker Construction I1 was the project s general contractor. Nor do the parties dispute that Velez fell because a ladder slipped out from under him, which constitutes aprima facie violation of Labor Law @ 240( 1). See Jumil, 293 A.D.2d at 273. __ Defendants argue that the Labor Law is inapplicable because Velez was taking measurements when he was injured, which does not constitute a construction activity under the Labor Law. However, Velez worked as a welder with the subcontractor responsible for iron work on a construction project. Further, Velez was injured while this construction was ongoing. Accordingly, the Labor Law applies to his accident despite the fact that the particular job being performed at the moment [he] was injured did not in and of itself constitute construction. Covey v. Iroquois Gas Transmission Sys. L.P., 2 18 A.D.2d 197, 199 (3d Dept. 1996); see also Campisi v. Epos Contr. Corp., 299 A.D.2d 4, 6-7 (2d Dept. 2002).2 However, Velez is not entitled to summary judgment as to Knickerbocker Construction. The Labor Law applies only to owners, general contractors and their 2Becausethe Court holds that Boricua Village Housing, Boricua Village D and Knickerbocker Construction I1 are liable under 5 240( l), it does not address whether they are also liable under 5 24 l(6). 4 [* 6] I agents, see Rodrigxez v. New York City Hous. Auth., 194 A.D.2d 460,461 ( lStDept. I 1993), and Velez has presented no evidence that Knickerbocker Construction was either the owner, general contractor or agent on the project. In accordance with the foregoing, it is hereby ORDERED that plaintiff Alexis Velez's motion for summary judgment on the issue of liability is granted as to defendants Boricua Village Housing Development Fund Company, Inc., Boricua Village D, LLC, and Knickerbocker Construction 11, LLC, and is . otherwise denied; and it is further ORDERED that plaintiff Alexis Velez shall file and serve a note of issue for trial on the issue of damages within thirty (30) days of the date of this order; and it is further ORDERED that the Clerk is directed to place this matter on the appropriate calender for an ass'essment of damages. This constitutes the decision and order of the Court. FILED Dated: New York, New York May 4,2012 Ialiann Scarpulja, J.S.'6) 5

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