Penaranda v 4933 Realty, LLC

Annotate this Case

Download PDF

Penaranda v 4933 Realty, LLC 2012 NY Slip Op 32368(U) September 11, 2012 Sup Ct, NY County Docket Number: 100963/10 Judge: Joan M. Kenney 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. [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY JOAN M.KENNEY PRESENT: - PART Justice "2- - Index Number : 100963/2010 PENARANDA, BRAULIO MILTON vs . 4933 REALTY SEQUENCE NUMBER : 002 INDEX NO. ; : , 7 MOTION DATE MOTION SEQ. NO. SUMMARY JUDGMENT The followlng papen, numbend 1 to 16 Notice of MotionlOrder to Show Caure -Affldavb - Exhlbb Answerlng Affldavltr - ExhlblG m&Z&i , were read on thlr rnotlon totfor i Uf&.@lh?4) (No(+ j - -IC] IW4. I3 INo(#). / 6 Replying AMdavltr I' Upon the foregolng papen, It I ordsred that thls motlon I t s i SEP 13 2012 . ... , ., 'I ,. .* MOTION IS DECIDED IN ACCORDANCE WITH THE ATTACHED MEMORANDUM UkGMO?J ,J.S.C. ..................................................................... CASE DISPOSED DENIED 2. CHECK AS APPROPRIATE: .............. ~ O T I O N 0QRANTED IS: 1. CHECK ONE: 3. CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER DO NOT POST NON-FINAL DISPOSITION 0QRANTED IN PART 0OTHER 0SUBMIT ORDER FIDUCIARY APPOINTMENT REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 8 X BRAULIO MILTON PENARANDA, Plaintiff, Decision & Order Index No.: 100963/10 -against- Third-party Plaintiff, FILED -against- SEP 13 2012 CONSTRUCTION WORK, INC, d / b / a K&S CONSTRUCTION, NY ! I Third-party Defendant. Motion sequence numbers 001 and 002 are consolidated for disposition. Defendant, 4933 Realty, LLC (4933) s e e k s an Order, pursuant to CPLR 3212, dismissing plaintiff's Labor Law §§ 200, claims based on violations of 240 (1) and 2 4 1 ( 6 ) , and for summary judgment on its third-party claims (motion sequence 001). Third-party defendant NY Construction Work, Inc. d/b/a K&S Construction (NY Construction) seeks an Order, pursuant to CPLR 3212, dismissing the third-party complaint (motion sequence 002). FACTUAL ElACKGROUND This action arises out of an accident that occurred on November 24, 2009, when plaintiff injured his left wrist, neck and back when he fell off a "Bobcat" machine while working at 129-09 26th Avenue, Flushing, New Y o r k . At the time of the accident, [* 3] plaintiff was employed by third-party defendant, NY Construction, and was in the process of carrying plywood on the Bobcat machine. According to the complaint, 4933 is the owner of the property where the accident took place, and NY Construction was engaged by 4933 to perform construction at the premises and leased the premises where the accident occurred from 4933. Motion 001, Ex. B. The complaint alleges causes of action against 4933 for common-law negligence and violations of Labor Law 55 200, 240 (1) and 241 (6). In his bill of particulars, plaintiff asserts violations of the following sections of the Industrial Code: 23-6.1 (c) (1) and (2); 23-6.3 ( k ) ; 23-9.2 (b) (1) and (2) (c) (1); 23-9.4 (f), ( 9 ) and (h) (4); and 23-9.7 ( c ) and (e). Motion 001, Ex. A. At his examination before trial (EBT), plaintiff testified that he was employed to clean up trash and move plywood a t the project and, at the time of the occurrence, he was standing on t h e Bobcat machine, approximately three feet off the ground, when he was thrown to the ground. Plaintiff EBT, at 40, 4 5 - 4 6 , 48. Plaintiff said that, at the time that he got onto the machine it was stopped, but that, while h e was holding on to it, the driver of the Bobcat started moving the machine, causing him to be thrown to the ground. I d . at 48. Plaintiff testified that the driver of t h e Bobcat told him to hold on to the machine and to act as a counterweight to balance the Bobcat because of the plywood in the front. Id. at 49-50. Plaintiff was not on a s e a t on the Bobcat 2 [* 4] when the accident took place. Id. At a second EBT, plaintiff averred that he was instructed to move the plywood by his NY Plaintiff's 2d EBT, at 44, 5 4 . Construction boss. Plaintiff confirmed that the plywood that he was moving was not used to frame the concrete in order to erect the curbs. Id. at 54. Hyuk K. Hwang (Hwang), the president of NY Construction, was also deposed in this matter and testified that NY Construction leased the warehouse at the location where the accident took place. Hwang EBT, at Hwang 9-11. stated that NY Construction was contracted by 4933 to erect a concrete curb around the parking lot located at 129-09 26th Avenue. Id. at 13-14. According to Hwang, he was unaware of any accident occurring at the project, and he never took any NY Construction employee to the hospital during t h e three-day project. Id. at 37. Hwang said that the accident occurred within the warehouse that NY Construction leased from 4933, and that plaintiff did n o t work at the curb construction project, but rather worked inside the warehouse, organizing the warehouse space. Id. at 40-42, 70, 80-81. In addition, Hwang averred that he was responsible for directing the work of NY Construction's employees and that no one from 4933 directed or controlled the work of NY Construction employees. I d . at 34-35. Andy K i m (Kim), the property manager for 4933, was deposed in this matter and stated that NY Construction leased the warehouse where the accident occurred from 4933, and that 4933 did n o t 3 [* 5] provide any equipment, tools, materials or supervision to or for NY Construction workers. Kim EBT, at 32-33. Further, Kim said that 4933 was not in charge of safety at the project. Id. at 32. Pursuant to the terms of the lease agreement entered into between NY Construction and 4933 f o r the warehouse space, [the Tenant will] forever indemnify and save harmless the Landlord for and against all liability, penalties, damages, expenses, and judgments arising from injury during said term to person o r property of any nature, occasioned wholly O F in part by any act or acts, omission or omissions of the Tenant, o r of the employees, guests, agents, assigns, or undertenants of the Tenant and also for any matter or thing growing out of the occupation of the demised premises . . . . Motion 001, Ex. H. In addition to the lease agreement, NY Construction and 4933 also entered into a liability agreement, which states, in pertinent part: The Contractor [NY Construction] hereby indemnifies and holds harmless the Company [ 4 9 3 3 ] , its subsidiaries, and affiliates, and their o f f i c e r s and employees, from any damages, claims, liabilities, and costs, including reasonable attorney s fees, or losses of any kind or nature whatsoever which may in any way arise from the services performed by the Contractor hereunder, the work of employees of the Contractor while performing the services of the Contractor hereunder, or any breach or alleged breach by Contractor of this Agreement, including the warranties s e t forth herein. The Company shall have the right to retain control over the defense of, and any resolution or settlement relating to, such loss. Each Party hereto had the opportunity to have this Agreement reviewed by competent counsel; therefore, this Agreement shall constitute a product of armslength negotiations and be interpreted as mutually drafted by the parties herein. 4 [* 6] Motion 001, EX. I. K i m testified that he does not read English a n d did not recall reviewing the liability agreement, but d i d acknowledge his signature on the document. Kim EBT, at 19. The main thrust of 4933's argument is that, based on the above-quoted provisions of the lease and liability agreements, it is entitled to complete contractual indemnification from NY Construction, and that, even though liability has' yet to be established, it is entitled to an order of conditional liability. As a secondary argument, 4933 contends that, if the court is unwilling to grant its request for contractual indemnification from NY Construction, plaintiff's Labor Law claims must, nevertheless, be dismissed, because, at the time of the occurrence, plaintiff was not involved in a n y aspect of the construction project that forms the basis of his lawsuit. 4933 maintains that all of the deposition testimony confirms that plaintiff's job was to organize the warehouse and that he was not involved in the actual erection of the concrete curb. Moreover, 4933 asserts that, in order to prevail on a Labor Law 5 240 (1) cause of action, the injury must have been caused by an elevation r i s k , which was not the case in the instant mattes. Further, 4933 argues that to hold an owner liable for a claim pursuant to Labor Law 5 200, a worker must prove that the owner either created or had notice of a dangerous condition, with sufficient time to remedy it, whereas in the case 5 [* 7] at bar, plaintiff's accident occurred because a co-worker started moving the Bobcat machine while plaintiff was still standing on it. Lastly, 4933 claims that the nature of plaintiff's work indicates that he was not "employed" at the construction site, thereby negating plaintiff's Labor Law S 241 (6) cause of a c t i o n . In opposition to motion sequence number 001, plaintiff states that he withdraws his causes of action based negligence and Labor Law 5 2 0 0 . on common-law Plaintiff contends that, in its third-party bill of particulars, 4933 admits that plaintiff was not provided with adequate safety equipment; however, in the thirdparty bill of particulars 4933 says that N Y Construction failed to provide the requisite safety measures. Plaintiff's O p . , Ex. 6. Moreover, plaintiff maintains that the work in which he was engaged was incidental and necessary to the construction project. I n sum and substance, plaintiff argues that triable issues of material fact exist with respect to his Labor Law 55 240 (1) and 241 (6) causes of action which preclude granting 4933 summary judgment dismissing the complaint. NY Construction has opposed that portion of 4 9 3 3 ' s motion seeking contractual indemnification from it based on the lease agreement, because that agreement was not part of the third-party complaint. In addition, NY Construction agrees that, at the time of the occurrence, plaintiff was not w o r k i n g on the construction project, the erection of a concrete curb, but was organizing the 6 [* 8] warehouse, thereby b a r r i n g him from asserting a n y cause of action under the Labor Laws. The third-party complaint asserts four causes of action against NY Construction: (1) common-law indemnification; (2) common-law contribution; (3) contractual indemnification; and (4) breach of contract in not procuring insurance. In motion sequence number 002, NY Construction avers that 4933 is not entitled to indemnification because plaintiff, its employee, did not suffer a grave injury and because the lease agreement was not part of the third-party complaint. In addition, NY Construction contends that the fourth cause of action must be dismissed because the contract does not require that NY Construction obtain insurance. The court notes that the liability agreement states that NY Worker's Construction is required to obtain Compensation insurance but, in the event that it is excused from obtaining Worker's Compensation insurance, it then must obtain general commercial liability insurance. NY Construction maintains that the liability agreement is unenforceable because it is undated, it does n o t indicate that it pertains to the contract for the erection of the concrete curb, and the accident does not arise from services performed by NY Construction. Further, NY Construction contends that the w o r k that plaintiff was performing did not arise out of or was incidental to the contractual work of erecting a concrete curb. 7 [* 9] In opposition to motion sequence 002, 4933 argues that the (1) Kim liability agreement is valid and enforceable because: acknowledged signing it; (2) it indicates the party to be indemnified; (3) it was executed in conjunction with the work agreement; and (4) it confirmed the type of work and location where the work was to be performed; hence, the lack of a date on the agreement is irrelevant. 4933 also maintains that, if the court concludes that plaintiff was performing the contracted for work at the time of the occurrence, it is also entitled to contractual indemnification based on the lease, since the third-party complaint asserts a contractual indemnification claim, the lease is a contract executed by the parties, and NY Construction cannot argue, in good faith, that the lease should be disregarded since it was in possession of the lease when the third-party action was instituted. In reply, NY Construction reiterates its argument that plaintiff cannot maintain his suit a g a i n s t 4933. DISCUSSION The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from omitted] . the case [internal quotation marks Santiago v Filstein, and citation 35 AD3d 184, 185-186 ( l S t Dept 2006). The burden then shifts to the motion s opponent to present [* 10] evidentiary facts in admissible form sufficient to r a i s e a genuine, triable issue of fact." Mazuxek v Metropolitan Museum of Art, 2 7 AD3d 227, 228 ( l g Dept 2 0 0 6 ) ; see Zuckerman v C i t y of New Y o r k , 4 9 t NY2d 5 5 7 , 562 (1980). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied. See Rotuba E x t r u d e r s , Inc. v Ceppos, 46 NY2d 223, 231 (1978). That portion of 4 9 3 3 ' s motion (motion sequence number 001) s e e k i n g to dismiss plaintiff's complaint is granted. Since plaintiff has withdrawn his causes of action based on common-law negligence and violations of Labor Law 5 200, the only causes of action remaining for the court's consideration are those based on violations of Labor Law §§ 2 4 0 (1) and 2 4 1 (6). Section 240 (1) of the New York Labor Law states, in pertinent part: "All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, b l o c k s , pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give p r o p e r protection to a person so employed. " As stated by the Court of Appeals in Rocovich v C o n s o l i d a t e d E d i s o n Company ( 7 8 N Y 2 d 5 0 9 , 513 [1991]), "It is settled that section 2 4 0 (1) i s to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed. Thus, we have interpreted the section as imposing absolute liability 9 [* 11] for a breach which has proximately caused an injury. . . . In furtherance of this same legislative purpose of protecting workers against the known hazards of the occupation, we have determined that the duty under section 240 (1) is n o n d e l e g a b l e and that an owner is liable for a violation of the section even though the job was performed by an independent contractor over which it exercised no supervision or control [internal quotation marks and citations omitted]. Labor Law § 240 (1) was designed to protect workers against elevation-related risks, including instances wherein a worker f a l l s f r om a height or Manhasset Bay A s s o c i a t e s , (Narducci a falling object struck 96 NY2d 259 [20011). V In order to prevail upon a claim pursuant to Labor L a w 5 240 (l), a p l a i n t i f f must establish that the statute was violated, and that this violation was a proximate cause of his injuries ( Z g o b a v E a s y Shopping C o r p . , 246 A D 2 d 539, 541 [2d Dept 19981). A worker s negligence is irrelevant to the absolute liability of the owner and general contractor (Cosban v New York C i t y T r a n s i t A u t h o r i t y , 227 AD2d 160 [ l S tDept 19961). However, not a l i gravity-related injuries are encompassed by this section of the Labor Law, and the single decisive question is whether plaintiff s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential. R u n n e r v N e w York Stock E x c h a n g e , Inc., 13 NY3d 599, 6 0 3 ( 2 0 0 9 ) . In the case at bar, plaintiff fell off the back of a Bobcat machine when the driver of the machine moved it while plaintiff was 10 [* 12] hanging on to the back, at the direction of the driver, plaintiff's co-worker and fellow employee of NY Construction. Plaintiff fell approximately three feet. As the Court said in T o e f e r v Long I s l a n d R a i l r o a d (4 NY3d 399, 408 [ 2 0 0 5 ] ) , a case in which that plaintiff fell three feet off the back of a pick-up truck on which he was riding, this is "not an elevation-related risk which calls for any protective devices of the types listed in Labor Law [internal quotation marks and citation omitted] .'I § of the 240 (1) Simply stated, plaintiff's injuries arose from the realities of the workplace and do not implicate the protections of Labor Law 5 240 (1). DeRosa v B o v i s Lend Lease LMB, Inc. , 96 AD3d 652, 653-654 (1" Dept 2012). The court finds that the case relied upon by plaintiff, Ortiz v V a r s i t y H o l d i n g s , LLC (18 NY3d 335 [2011]), is distinguishable from the facts of the instant case. In O r t i z , the worker was injured while he was standing on top of a dumpster loading and arranging debris therein. The O r t i z Court said that the particular task that Ortiz was performing required him to stand on the top of the dumpster, which might require the use of the type of safety equipment enumerated in Labor Law 5 240 (1). In the case at bar, plaintiff was not required to ride on the back of the Bobcat to perform his work. Therefore, based on the foregoing, plaintiff's cause of action based on a violation of L a b o r Law 5 240 (1) is dismissed. 11 . In [* 13] addition, for the reasons stated below, plaintiff s claim based on a violation of Labor Law § 240 (1) would also be dismissed because, at the time of the occurrence, plaintiff was not engaged in the type of activity for which the Labor Laws provide protections. Labor Law 5 241 states: Construction, excavation and demolition w o r k . All contractors and owners and their agents, except owners of one and two-family dwellings who contract for b u t do not direct or control the work, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements: *** 6. All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to t h e persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and Contractors and their agents f o r such w o r k , except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith. To prevail on a cause of action based on Labor Law 5 241 ( 6 ) , a plaintiff must establish a violation of an applicable Industrial Code provision which sets f o r t h a specific standard of conduct ( R i z z u t o v L . A . Wenger Contracting C o . , I n c . , 91 N Y 2 d 343 [ 1 9 9 8 1 ) . However, while proof of a violation of a specific Industrial Code regulation is required to sustain an action under Labor Law 5 241 (6), such proof does not establish liability, and is merely evidence of negligence (Ross Company, 81 N Y 2 d 494 [ 1 9 9 3 ] ) . v Curtis-Palmer Hydro-Electric In addition, an owner or general contractor may raise any valid defense to the imposition of the 12 [* 14] vicarious liability imposed under section 241 (6) of the Labor Law, including contributory and comparative negligence. R i z z u t o v L . A . Wenger C o n t r a c t i n g Co., I n c . , 91 N Y 2 d at 350, s u p r a . Of all of the Industrial Code provisions alleged to have been violated by plaintiff, the only one that is possibly applicable to the facts of the case is section 23-9.7 (e), dealing with motor trucks, which states: "Riding. No person shall be suffered or permitted to ride on running b o a r d s , fenders or elsewhere on a truck or similar vehicle except where a properly constructed and installed seat or platform is provided." 12 NYCRR 23-9.7 (e). This section of the Industrial Code has been found sufficient to sustain a cause of action based on a violation of Labor Law 5 241 (6). See C l a u s e v E . I . d u Pont d e Nemours & Co. , 284 AD2d 966 ( d t h Dept 2001). The thrust of 4933 and NY Construction's arguments is that, at the time of the accident, plaintiff was not engaged in construction, excavation or demolition work, thereby rendering any cause of action based on a violation of Labor Law 5 2 4 1 inapplicable. (6) The court agrees. All of the evidence presented indicates that, whereas the construction work for which N Y Construction was hired consisted of erecting concrete curbs around the premises, plaintiff's job consisted exclusively of cleaning up trash and moving plywood inside the warehouse facility leased from 4933 by NY Construction. 13 ~ [* 15] Further, plaintiff confirmed that the plywood that he was moving was not used for framing the concrete for the curbs. Plaintiff never alleges that he was engaged in the actual construction of t h e concrete curbs, which were being erected outside of the warehouse on the street. In order to sustain a Labor Law must establish that the accident excavation or demolition work. Industrial Development Agency, § 241 (6) claim, a plaintiff arose from construction, See Esposito v New York C i t y 1 NY3d 526 (2003); see also Sotomayer v M e t r o p o l i t a n Transportation A u t h o r i t y , 92 AD3d 8 6 2 (2d Dept 2012); Panico v Avanstar Communications, I n c . , 92 Ad3d 656 (2d Dept 2012). "Plaintiff's w o r k . . . did not 'affect the structural integrity of the building or structure or [constitute] an integral p a r t of the construction [or demolition] of a building or structure.' Rather, his w o r k was unrelated to any broader renovation or construction project, and was limited to removing [and moving plywood and organizing the warehouse]. Inasmuch as [such work] had no physical impact upon the [contracted f o r work], plaintiff's Labor Law § 241 (6) claim should [be] dismissed [internal citations omitted] . " Lavigne v Glens F a l l s Cement Company, I n c . , 92 AD3d 1182, 1183 (3d Dept 2012). The cases cited by plaintiff in opposition to the instant motion (motion sequence number 001) are all distinguishable, in that the injured workers in those cases were all actually involved in the construction w o r k of the project itself, unlike plaintiff in 14 [* 16] the case at bar. See Linkowski v C i t y of New York, 33 AD3d 971 ( 2 d Dept 2006); Whalen v C i t y of N e w York, 270 AD2d 340 (2d Dept 2000); H i g g i n s v E . I . du Font de Nemouss & Company, 186 AD2d 1011 ( 4 t h Dept 1992); R i v e r a v S q u i b b Corp. , 184 AD2d 239 (13t Dept 1992). Moreover, in order to avoid dismissal of a Labor Law 5 241 (6) cause of action, a plaintiff must be able to establish that the Industrial Code violation upon which that claim is based was the proximate cause of his injuries. T s e u v Cappelletti, 71 AD3d 994 (2d Dept 2010); Abreo v URS G r e i n e r Woodward Clyde, 6 0 AD3d 878 (2d Dept 2009). In the case at bar, plaintiff f e l l o f f the Bobcat when he was holding on to the back of the machine while the machine was in .motion. Not only was plaintiff not supposed to place himself in that position, but what he was doing, acting as a counterweight, was not part of his j o b . Further, there was a s e a t on the Bobcat, which the driver was using, and the driver was the only person who should have been on the machine while it was moving. Therefore, since there was a seat on the B o b c a t , in accordance with Industrial Code 23-9.7 (e), it cannot be said that a violation of that provision was the proximate cause of plaintiff's injuries. As a consequence of the foregoing, plaintiff's cause of action based on a violation of Labor Law 5 241 (6) is dismissed, and t h e portion of 4 9 3 3 ' s motion seeking summary judgment on its thirdparty claim is rendered moot. 15 [* 17] Since, by this decision, plaintiff's complaint is dismissed, third-party NY Construction's motion for summary judgment dismissing the third-party complaint is granted. Based on the foregoing, it is hereby ORDERED that the branch of defendant's motion (motion sequence number 001) seeking to dismiss the complaint is granted and the complaint is dismissed, with c o s t s and disbursements to defendant as t a x e d by the Clerk of the Court upon submission of an appropriate bill of costs; and it is further ORDERED that the remainder of defendant's motion (motion sequence number 001) is denied as moot; and it is further ORDERED that third-party defendant's motion (motion sequence number 002) seeking to dismiss the third-party complaint is granted and the third-party complaint is dismissed, with costs and disbursements to third-party defendant as taxed by the Clerk of the - Court upon s u b r n i s s i a n F o f afapaopriate 4 k d 1 Dated: September 11, 2012 gEp 13 Zo9 N W YoRK& E e ,I ~~~. .-=.* bill of costs. > .--=- ..-. ; *.--i Joan M. Kenney, J . S . C . U&w'-'- 16

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.