Lopez v 550 Adler Realty RL, LLC

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Lopez v 550 Adler Realty RL, LLC 2014 NY Slip Op 31650(U) May 29, 2014 Supreme Court, Bronx County Docket Number: 305635/2010 Judge: Norma Ruiz Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] FILED Jun 03 2014 Bronx County Clerk NEW YORK SUPREME COURT----- COUNTY OF BRONX PART22 . . ME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX Index No. 305635/2010 LUIS EDUARDO LOPEZ Plaintiff, -against- Decision and Order HON. NORMA RUIZ 550 ADLER REALTY RL, LLC, 530 ADLER REALTY RL, LLC., ADLER HOLDINGS II, LLC, FIVE STAR CARTING, INC., FIVE STAR CARTING LLC. and THE ADLER GROUP, INCORPORATED, Defendants FIVE STAR CARTING, LLC., Third Party Plaintiff -againstTAH CLEANING SERVICE CORPORATION, Third Party Defendant 550 ADLER REALTY RL, LLC, 530 ADLER REALTY RL, LLC., ADLER HOLDING II, LLC, and THE ADLER GROUP, INCORPORATED Second Third Party Plaintiff -againstTAH CLEANING SERVICE CORPORATION, Second Third Party Defendant 1 [* 2] FILED Jun 03 2014 Bronx County Clerk The following papers numbered 1to 15 Read on this motion SUMMARY JUDGMENT Noticed on_and duly submitted as No. _on the Motion Calendar of---"l-=2'"""'/9'"'-/=13"----Recitation, as required by CPLR 2219(a), of the papers considered in the review of this Motion to: Papers Numbered 1-6 Notice of Motions and Affidavits Annexed ............................... . Notice of Cross Motion and Answering Affidavits ................... . 7-13 14-15 Replying Affidavits .................................................................. . Memorandum of Law .............................................................. . Other: Upon the foregoing papers, the foregoing motion(s) [and/or cross-motions(s), as indicated below, are consolidated/or disposition] and decided as follows: Plaintiff Luis Eduardo Lopez ("Lopez") moves for partial summary judgment pursuant to Labor Law 240(1) on the issue ofliability. Defendant Five Star Carting, LLC ("Five Star") moves for summary judgment. Defendant Five Star Carting, Inc. moves to dismiss pursuant to CPLR 3211 (7). Defendants 550 Adler Realty RL, LLC, 530 Adler Realty RL, LLC, Adler Holding II, LLC and The Alder Group, Inc. (collectively referred to as "Adler") cross moves for contractual indemnification. In this Labor Law action, the plaintiff seeks damages for injuries he sustained in a work related accident on March 16, 2010 when he fell from an unsecured 6-foot ladder that moved and suddenly tipped over while he was removing air conditioning ducts located in the building owned by the Alder defendants. Defendants Five Star and Five Star Carting, Inc. were the alleged gP.neral contractors. On the day of the accident, the plaintiff was employed by third-party defendant/second third party defendant Tah Cleaning Service Corp. ("Tah") and he received his instructions from Tah's foreman Pablo Hidalgo ("Hidalgo"). The court notes that there was conflicting testimony regarding who actually employed Hidalgo, Tah or Five Star Carting, Inc. Hidalgo instructed the plaintiff to take down some walls and air conditioning ducts that were attached to the ceiling. Plaintiff was working on a 6 foot A frame aluminum ladder taking out an air conditioning duct with a crow bar. He used this ladder which he described as old an wobbly, for about three hours before the accident. Plaintiff alleges that he complained to 2 [* 3] FILED Jun 03 2014 Bronx County Clerk Hidalgo that the ladder was moving as he used it. Plaintiff further alleges that Hidalgo instructed the plaintiff to use it anyway. At the time of the accident, the plaintiff was standing with both feet on the fourth step from the bottom, four feet from the floor. No one was holding the ladder. Pursuant to Hidalgo's instructions, he was using a crowbar to remove a screw that was attached to a hanger holding a part of the air conditioning duct. The ladder moved from side to side as he slowly pulled out the screw. When the screw came out, the ladder tipped over causing the plaintiff to fall with it. Plaintiff alleges that he was not wearing a hard hat because none was provided to him. Plaintiffs Motion The court finds that the plaintiff established his prima facia entitlement to judgment as a matter of law by showing that adequate safety devices to prevent the ladder in question from falling or to protect the plaintiff were absent (see McCarthy v. Turner Construction, Inc., 52 A.D.3d 333 [1st Dept 2008]). Defendants' opposition failed to raise an issue of fact with respect to the recalcitrant worker defense (see McCarthy, supra) and the "sole proximate cause" defense. The "sole proximate cause defense" requires the defendants to establish that the plaintiff "had adequate safety devices available; that he knew both that they were available and that he was expected to use them; that he chose for no good reason not to do so; and that had he not made that choice he would not have been injured" (Cahill v. Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40 [2004], Gallagher v New York Post, 14 NY3d 83, 88[2010] see also (Cruz v. Turner Constr. Co., 279 AD2d 322, 323 [1st Dept 2001]; Harris v. City ofNew York, 83 AD3d 104, 111 [1st Dept 2011][Section 240(1) inquiry cannot focus simply on whether the provided safety devices malfunctioned, but must also examine whether the safety devices that were provided operated so to give proper protection]). Accordingly, the plaintiffs motion for partial summary judgment on the issue of liability is granted. 3 [* 4] FILED Jun 03 2014 Bronx County Clerk Defendant Five Star Carting, Inc.'s Motion Defendant Five Star Carting, Inc. moves pursuant to CPLR 3211(7) to dismiss the complaint on the grounds that the plaintiffs complaint fails to state a cause of action as against it . Movant argues that the evidence establishes that Five Star Carting, Inc owned no duty to the plaintiff because it did not contract for any of the work at the job site where the plaintiff was injured. The court finds the plaintiffs complaint states a cause of action against the moving defendant. The court further finds that this motion is actually an untimely summary judgment motion masked as a motion to dismiss. As such, it is denied in its entirety. Adler Defendants' Cross Motion The Adler defendants cross move for summary judgment on their cross claim for common law indemnification against defendants Five Star Carting, Inc. and Five Star. Movant contends that it retained Five Star to be its general contractor. In addition, it contends that there are questions of fact regarding whether Hidalgo was employed by Five Star Carting, Inc. In light of the questions of fact regarding the active tort feasor, the court grants the motion to the extent that it is granted a conditional award of common law indemnification upon a finding of negligence attributable to the defendants Five Star and Five Star Carting Inc. (see McCarthy v. Turner Construction, 17 NY3d 369 [2011]). Defendant Five Star's Motion Defendant Five Star timely moves for summary judgment for an order dismissing the plaintiffs claims against it for common law negligence, Labor Law 200 and Labor Law 241(6), as well as, an order dismissing all cross claims for common law and contractual indemnification. In granting plaintiffs motion for partial summary judgment based upon Labor Law 240(1), the Court declines to consider defendant's argument that they are entitled to summary judgment dismissing the claims based upon the violation of Labor Law § 241 ( 6). The plaintiffs damages are the same regardless of the theory of liability and plaintiff can only recover these damages once. As such, defendants argument concerning the lack of merit of the other theories 4 [* 5] FILED Jun 03 2014 Bronx County Clerk of liability contained in the complaint are academic (see, Jallow v. Kew Gardens Hills Apartments Owners, 803 N.Y.S.2d 18 (Sup. Ct. Bronx Cty. 2005) citing Torino v. KLM Construction Co. Inc., 257 AD2d 541 (1st Dept 1999). That branch of the motion which seeks to dismiss the Adler defendants' cross claim for contractual indemnification is granted since there is no evidence of a contractual agreement to indemnify. However, the relief to dismiss the Adler defendants' claim for common law indemnification is denied This constitutes the decision and order of the Court. HON. NORMA RUIZ, J.S.C. 5

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