Buestan v EAN Holdings, LLC

[*1] Buestan v EAN Holdings, LLC 2017 NY Slip Op 50291(U) Decided on March 8, 2017 Supreme Court, Queens County Modica, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 8, 2017
Supreme Court, Queens County

Manuel Buestan and MARIA LLIVIGANAY, Plaintiffs,

against

EAN Holdings, LLC, LATAYA NICHOLE CARTER, SALS HOLDING CORP., PGREF I 1633 BROADWAY LAND, LP, PGREF I PARAMOUNT PLAZA GP, LLC, PGREF I 1633 BROADWAY TOWER, L.P., PARAMOUNT GROUP, INC., WALDORF EXTERIORS LLC and W5GROUP LLC, Defendants. x WALDORF EXTERIORS LLC and W5GROUP LLC, Third-Party Plaintiffs, CALVIN MAINTENANCE, INC., Third-Party Defendant. And Two Other Actions.



7993/2012



For Plaintiffs MANUEL BUESTAN and MARIA LLIVIGANAY: Gorayeb & Associates, PC, by Peter D. Suglia and Gregory Gastman, Esqs., 100 William Street, New York, N.Y. 10038

For Plaintiff PATRICIO PALAGUACHI: Helen F. Dalton & Associates, P.C., 69-12 Austin Street, Forest Hills, New York 11375

For Defendants PGREF I 1633 BROADWAY LAND, LP, PGREF I PARAMOUNT PLAZA GP,LLC, PGREF I 1633 BROADWAY TOWER, L.P., PARAMOUNT GROUP, INC., WALDORF EXTERIORS LLC and W5GROUP LL" target="_blank">see Romero v J & S Simcha, Inc., 39 AD3d 838 [2007]). In order to prevail under this section of the Labor Law, a plaintiff must establish that specific safety rules and regulations of the Industrial Code promulgated by the Commissioner of the Department of Labor were violated (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]); Ares v State of New York, 80 NY2d 959 [1992]). The rule or regulation alleged to have been breached must be a specific, positive command and be applicable to the facts of the case (see Kwang Ho Kim v D & W Shin Realty Corp., 47 AD3d 616, 619 [2008]; Jicheng Liu v Sanford Tower Condominium, Inc., 35 AD3d 378, [*5]379 [2006]). The plaintiffs' claim violations of several provisions of the Industrial Code, including sections 23-1.5; 23-1.15; 23-1.16; 23-1.17; 23-1.29(a)(b); and 23-1.30.

First, Industrial Code section 23-1.5 cannot serve as a predicate for liability under Labor Law section 241(6) (see, Ulrich v Motor Parkway Props., LLC 84 AD3d 1221 [2011]). With respect to Industrial Code section 23-1.15, it applies to how safety rails are to be constructed when the code requires one, which is not the case herein; therefore, the provision is inapplicable to this case. Next, the defendants have established that Industrial Code section 23-1.16 is likewise inapplicable to this case because it only applies where a safety belt had been provided to the injured plaintiff and there is no evidence that one was provided or required to be used here (see, Smith v Cari, 50 AD3d 879 [2008]; Kwang Ho Kim v D & W Shin Realty Corp., 47 AD3d 616 [2008]; Dzieran v 1800 Boston Rd., LLC, 25 AD3d 336 [2006]; Avendano v Sazerac, Inc., 248 AD2d 340[1998]).

The defendants have also demonstrated the inapplicability of other Industrial Code violations alleged herein by the plaintiff, to wit- Industrial Code section 23-1.17,which applies to life nets, does not apply when a plaintiff, as in this case, was not provided with such device (see, Dzieran v 1900 Boston Road, LLC, 25 AD3d 336 [2006]) and Industrial Code section 23-1.29(b), which applies to the requirements of a flag person designated to direct traffic, does not apply in this case since there was no designated flag person at the site, .

Industrial Code sections 23-1.29(a) and 23-1.30 are applicable, however, to the facts of this case since the accident occurred in injured plaintiff Buestan's work zone. Industrial Code section 23-1.29(a) provides:

Whenever any construction, demolition or excavation work is being performed over, or in close proximity to a street, road, highway or any other location where public vehicular traffic may be hazardous to the persons performing such work, such work area shall be so fenced or barricaded as to direct such public vehicular traffic away from such area or such traffic shall be controlled by designated persons.

Industrial Code section 23-1.30, furthermore, states:

Illumination sufficient for safe working conditions shall be provided wherever persons are required to work or pass in construction, demolition and excavation operations, but in no case shall such illumination be less than 10 foot candles in any area where persons are required to work . . . .

The testimonial evidence submitted herein indicates that an empty demolition trash bin was placed behind the truck where the accident occurred in order to alert oncoming drivers that work was being performed there. In addition, the examination before trial testimony of driver defendant Carter indicates that she did not see the area where the garbage truck and bin were parked before she struck the injured plaintiff because her view was obstructed by steam that was coming out of the roadway.

Thus, notwithstanding the conflicting affidavits of the parties' experts regarding whether the requirements of Industrial Code sections 23-1.29(a) and 23-1.30 were met, the witness testimony given upon examination before trial highlights the existence of triable issues of fact, inter alia, as to whether the measures taken to direct traffic away from and illuminate the work area where the accident occurred were adequate to satisfy the Industrial Code (see, Alvarez v Prospect Hospital, 68 NY2d 230 [1986]).

In light of the foregoing, that branch of the defendants' motion which seeks summary judgment dismissing the plaintiff's Labor Law section 241(6) claim against them is granted, in part, only to the extent that the claimed violations of Industrial Code, sections 23-1.5, 23-1.15, 23-1.16, 23-1.17 and 23-1.29(b) are hereby severed and dismissed, and the remaining branches of their request is denied in light of the aforementioned triable issues of fact regarding the defendants' compliance with Industrial Code sections 23-1.29(a) and 23-1.30.

Accordingly, the plaintiffs' cross-motion for summary judgment on their Labor Law section 241(6) claim is also denied.

Turning to the third-party action for indemnification, it is noted that a third-party action may be brought against plaintiff Buestan's employer under the circumstances presented herein as the loss of plaintiff Buestan's leg constitutes a "grave injury" within the meaning of Worker's Compensation Law section 11 (See, Storms v. Dominican Coll. of Blauvelt, 308 AD2d 575, 577 [2003]).

Notwithstanding the foregoing, summary judgment on a claim for common-law indemnification is not appropriate at this juncture since there are triable issues of fact concerning the degree of fault attributable to the parties (see Aragundi v. Tishman Realty & Construction Co., Inc., 68 AD3d 1027 [2009]; Coque v. Wildflower Estates Developers, Inc., 31 AD3d 484 [2006]).

Accordingly, the defendants' cross motion for a conditional award of indemnification against third-party defendant Calvin Maintenance, Inc. , and Calvin Maintenance, Inc.'s cross motion for summary judgment dismissing the third-party [*6]action against it are denied as premature.

The motions and cross-motions are, in all other respects, denied.

Counsel for the parties shall appear in the Trial Scheduling Part on March 14, 2017, at 9:30 A.M., for the trial of the action.

The foregoing constitutes the decision, opinion, and order of this Court.

Dated:Jamaica, New York

March 8, 2017 Honorable Salvatore J. Modica

J.S.C. Footnotes

Footnote 1:The action was discontinued with prejudice as against defendant Sal's. Thus, its motion and the plaintiffs' cross motion insofar as asserted against it are moot.

Footnote 2:The claims against defendant EAN Holdings, LLC., the owner of the vehicle operated by defendant Carter, have been settled.