Jacinto v LSG 365 Bond St., LLC

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Jacinto v LSG 365 Bond St., LLC 2019 NY Slip Op 32113(U) July 7, 2019 Supreme Court, New York County Docket Number: 156440/2015 Judge: Kathryn E. Freed Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 07/19/2019 12:03 PM NYSCEF DOC. NO. 56 INDEX NO. 156440/2015 RECEIVED NYSCEF: 07/19/2019 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART HON. KATHRYN E. FREED PRES EN IAS MOTION 2EFM Justice -------------------------------------------------------------------------------X INDEX NO. 156440/2015 LUIS JACINTO, Plaintiff, MOTION SEQ. NO. 002 -vLSG 365 BOND STREET, LLC and LETTIRE CONSTRUCTION CORP., DECISION AND ORDER Defendants. --------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 32, 33, 34, 35, 36, 37, 38, 39, 40,41, 42,43,44,45,46,47,48,49, 50, 51, 52, 53, 54 SUMMARY JUDGMENT were read on this motion to/for In this personal injury action commenced by plaintiff Luis Jacinto, defendants LSG 365 Bond Street ("Bond Street"), LLC and Lettire Construction Corp. ("Lettire") move, pursuant to CPLR 3212, for summary judgment dismissing the complaint. Plaintiff opposes the motion. After oral argument, and after a review of the motion papers and the relevant statutes and case law, the motion is granted and the complaint is dismissed. FACTUAL AND PROCEDURAL BACKGROUND: In this Labor Law action, plaintiff claims that he was injured on January 20, 2015 at a construction site located at 363-365 Bond Street in Brooklyn, New York ("the site" or "the premises"), where an apartment building was being built. The premises were owned by Bond Street and Lettire was the construction manager on the project. Plaintiff claims that, as he and a coworker were carrying rebar, his co-worker fell, causing the rebar to injure him. 156440/2015 JACINTO, LUIS vs. LSG 365 BOND STREET, LLC Motion No. 002 1 of 11 Page 1of11 [*FILED: 2] NEW YORK COUNTY CLERK 07/19/2019 12:03 PM NYSCEF DOC. NO. 56 INDEX NO. 156440/2015 RECEIVED NYSCEF: 07/19/2019 Plaintiff commenced this action by filing a summons and verified complaint on June 26, 2015. Docs 1 and 34. Defendants joined issue by their verified answer filed August 28, 2015. Docs. 6 and 35. In his bill of particulars, plaintiff alleged that h~ was employed as a metal lather for nonparty Rapid Tied Rebar, LLC ("RTR") and that he was injured on January 20, 2015 on the fifth floor of the site. Doc. 36 at pars. 1-2, 5. He further claimed that defendants created and had actual ,/ , and/or constructive notice of dangerous conditions at the work site, although he did not specify the nature thereof. Doc. 36 at pars. 11-12. Plaintiff alleged that defendants violated Labor Law §§ 200(1), 240(1)-(3), 241(1-6) and 241-a; New York City Administrative Code section § C261907 .1-9; and numerous sections of the New York State Industrial Code ("the Industrial Code"); 29 CFR § 191 O; and the OSHA rules and regulations pertaining to construction, demolition, and alteration. Doc. 36 at par. 14. He claimed the accident occurred due to the negligence of the defendants, including, inter alia, their failure to provide plaintiff with hoisting equipment to lift the rebar which injured plaintiff. Doc. 36 at par. 15. Plaintiff did not allege that the coworker slipped on ice. At his deposition, plaintiff testified that he was an employee of RTR and that he worked at the premises on the day of the incident. Doc. 38 at 77-78, 83. His job duties included carrying rebar and, on the day of the alleged incident, he was carrying rebar with a coworker whose name he did not know. Doc. 38 at 82, 90, 123, 134. Plaintiff took all of his direction at the site from his foreman, Marcial, the owner of RTR, Gabriel, and another foreman employed by RTR. Doc. 38 at 83-84. He was not supervised or directed by anyone from Bond Street or Lettire. Doc. 38af103. 156440/2015 JACINTO, LUIS vs. LSG 365 BOND STREET, LLC Motion No. 002 2 of 11 Page 2of11 [*FILED: 3] NEW YORK COUNTY CLERK 07/19/2019 12:03 PM NYSCEF DOC. NO. 56 INDEX NO. 156440/2015 RECEIVED NYSCEF: 07/19/2019 On the day of the alleged incident, Marcial directed plaintiff to carry some rebar from the fifth floor to the sixth floor so that the decking where concrete would be poured could be formed on the sixth floor. Doc. 38 at 119, 128. The concrete on the fifth floor had been poured by that time. Doc. 38 at 128. Plaintiff and his coworker lifted four 28-foot rods weighing a total of approximately 160 pounds, placed them on their right shoulders with the coworker in front and plaintiff in back, and began to walk. Doc. 38 at 137-141, 169. As the men were walking on the fifth floor, moving towards the stairway so that they could carry the rods to the sixth floor, plaintiffs coworker fell and dropped the end of the rebar he was holding. Doc. 38 at 122, 141-142, 147. The rebar "started to bounce" and "jump over" on plaintiffs shoulder, causing him to fall as well, and the rebar then struck his right hand. Doc. 38 at I 47-150. Although plaintiff had seen patches of ice or snow on the fifth floor prior to his accident, and believed that ice may have played a role in the accident, he did not see his coworker fall on ice, he did not know whether the coworker slipped on ice, the coworker did not tell him that he (the coworker) slipped on ice, he did not see any ice in the area of the incident before the accident, did not see any ice on which his coworker may have slipped, and did not slip on ice, but he did hear his coworker tell Marcial that he (the coworker) slipped on ice. Doc. 38 at 118, 142-147, 175-177. Plaintiffs coworkers also told him prior to the occurrence that there was ice in the area where the alleged incident took place. Doc. 38 at 143. The alleged incident occurred on the fifth floor of the premises, at which a building was being constructed. Doc. 38 at 114, 116. The rebar was lifted to each individual floor by crane. Doc. 38 at 106-107. The workers at the site would then carry the rebar to the locations where it was supposed to be placed in the decking. Doc. 38 at 107. 156440/2015 JACINTO, LUIS vs. LSG 365 BOND STREET, LLC Motion No. 002 3 of 11 Page 3of11 [*FILED: 4] NEW YORK COUNTY CLERK 07/19/2019 12:03 PM NYSCEF DOC. NO. 56 INDEX NO. 156440/2015 RECEIVED NYSCEF: 07/19/2019 Michael Addesa, a superintendent of interior work for Letti re, the construction manager at the site, testified, inter alia, that RTR was hired to perform rebar work at the site, where an ' apartment building was being con.structed. Doc. 39 at 8-9, 17-18, 20, 27-28. The premises were owned by defendant Bond Street. Doc. 39 at 19. Addesa did not direct RTR's work. Doc. 39 at 40, 43-44. As of the date of the incident, Sebastian Wisniewski was the site safety manager. Doc. 39 at 33-35. Plaintiff filed a note of issue on January 25, 2019. Doc. 37. Defendants now move, pursuant to CPLR 3212, for summary judgment dismissing the complaint. In support of the motion, they submit, inter alia, the pleadings (Docs. 34-35); the bill of particulars (Doc. 36); the deposition transcripts of plaintiff and Addesa (Docs. 38-39); an affidavit by Wisniewski attesting to the fact that he did not see any ice in the area where the alleged ~ incident occurred (Doc. 41 ); and the affidavit of expert engineer Preston R. Quick (Doc. 42). In his affidavit in support, Quick states that it is "industry standard custom and practice for construction workers engaged in the construction of concrete reinforcing steel to manually separate and carry on their shoulders bundled reinforcing steel . . . " (emphasis provided). Doc. 42. Defendants argue that the complaint is subject to dismissal on numerous grounds. Plaintiff opposes the motion arguing, inter alia, that the accident occurred because defendants failed to provide him with a hoist to lift the rebar. In opposition to the·motion, plaintiff submits, inter alia, his own affidavit, as well as an- affidavit from Stanley· Fein, P.E., an engineer, who opines that the incident occurred because plaintiff was not provided with a hoist, in violation of Labor Law§ 240(1 ), and also that defendants' failure to keep plaintiff's work area free of debris constituted a violation of Labor Law § 241 (6). 156440/2015 JACINTO, LUIS vs. LSG 365 BOND STREET, LLC Motion No. 002 4 of 11 Page 4of11 [*FILED: 5] NEW YORK COUNTY CLERK 07/19/2019 12:03 PM NYSCEF DOC. NO. 56 INDEX NO. 156440/2015 RECEIVED NYSCEF: 07/19/2019 In reply, defendants substantially reiterate their arguments regarding their entitlement to dismissal. Additionally, defendants assert that Fein's expert affidavit must be disregarded since he failed to rely on any industry standards in support of his opinion that a hoist should have been provided to plaintiff. LEGAL CONCLUSIONS: I Labor Law § 200 "Section 200 (I) of the Labor Law codifies an owner's or general contractor's common-law i duty of care to provide construction site workers with a safe place to \Vork." Cappabiancu v Skanska USA Bldg.. Inc .. 99 AD3d 139. 143, 950 N.Y.S.2d 35 (1st Dept 2012). Where a plaintiff alleges that a dangerous condition caused his or her accident. an owner or contractor may he held liable under Labor Law section 200 if it created or had actual and/or constructive notice of the condition which allegedly caused plaintiff's injury. See Cappabianca, 99 AD3d, at J 44, citing Mendoza v Highpoim A.ssoc .. l.X. LLC, 83 AD3d I. 9. 919 N.Y.S.2d I 29 (201 I); see also Maggio v 24 1'V. 57 APF. LLC. 134 A.D.3d 621, 626, 24 N.Y.S.3d I (1st Dept 2015). Where a plaintiff claims that his or her accident was caused by the means and methods of the wor1', a defendant cannot be liable pursuant to Labor Law § 200(1) unless it directed, supervised or controlled the work. See Cappahianca. 99 ADJcl. at I 44. Here, since plaintiff is unable to identify precisely what caused his CO\vorker to fall, he cannot establish that defendants created or had actual and/or constructive notice of a particular dangerous condition. See Vazquez v Takara Condominium, I 45 ADJd 627, 628 (I st Dept 2016 ). Additionally. since it is undisputed that plaintiff was supervised only by RTR. defendants cannot he liable f(.)r any injury arising from the means and/or methods of his wor1'. 5,'ee Ocampo v Bovis 156440/2015 JACINTO, LUIS vs. LSG 365 BOND STREET, LLC Motion No. 002 5 of 11 Page 5of11, [*FILED: 6] NEW YORK COUNTY CLERK 07/19/2019 12:03 PM NYSCEF DOC. NO. 56 INDEX NO. 156440/2015 RECEIVED NYSCEF: 07/19/2019 Lend Lease LMB. Inc., I 23 AD3d 456 ( 15' Dept 20 I 4). Further, as defendants assert, although plaintiff's coworker told Marcial that he fell on ice, such speculation is fatal to his claim where, as here, there could have been other causes of the accident and plaintiff cannot prove that ice was the cause of the co-worker's fall ''without relying on speculative or inadmissible hearsay evidence." Steinsvaag v City of New York, 96 AD3d 932, 933 (2d Dept 2012); sec also Tompa v 767 Fifth Partners. LLC, 1 I 3 AD3d 466, 468 (15 1 Dept 2014) citing Acevedo v York /111/. Corp., 31 AD3d 255, 257 ( 1"1 Dept 2006), Iv denied 8 NY3d 803 ~2007) (plaintiffs speculation insufficient to defeat defendant's entitlement to summary judgment). Plaintiffs counsel even concedes that "it is conjecture that ice was involved in [plaintiff's] accident" (Doc. 44 at par. 23); plaintiff admitted at his deposition that "[ m ]aybe" ice had a role in the accident (Doc. 3 8 at 118); and plaintiff conceded in his affidavit in opposition to the motion that "I do not know if my [coworker] fell on ice because he was 28 feet in front of me at the time that he fell, and I did not see what he fell on." Doc. 49 at par. 9. Since plaintiffs claim pursuant to § 200( I) is based on nothing more than the coworker's alleged self-serving hearsay statement, it must be dismissed. In reaching this conclusion, this Court notes that plaintiff does not specify his efforts, if any, to identify his coworker, or explain why any such efforts were unsuccessful. Obviously, the testimony of the coworker. would have provided, most likely, necessary information about what caused him to trip. Since the note of issue has been filed, plaintiff can no longer conduct the deposition of this individual, who may have been able to provide testimony sufficient to raise an issue of fact. 156440/2015 JACINTO, LUIS vs. LSG 365 BOND STREET, LLC Motion No. 002 6 of 11 Page 6of11 [*FILED: 7] NEW YORK COUNTY CLERK 07/19/2019 12:03 PM NYSCEF DOC. NO. 56 INDEX NO. 156440/2015 RECEIVED NYSCEF: 07/19/2019 Labor Law§ 240(1) "Labor Law section 240(1) is inapplicable to this case, because plaintiffs injuries were not 'the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential' (Runner v New York Stock Exch .. inc., 13 NY3d 599, 603 (2009)." Carrera v Westchester Triangle Hous. Dev. Fund Crnp., 116 AD3d 585, 984 N.Y.S.2d 339 (lst Dept 2014) (Labor Law§ 240[1] claim dismissed where plaintiff \vho, along with two co-workers, was carrying a pipe on his shoulder, slipped on a muddy surface and tripped on what he believed was a rock and the pipe struck him): see also .Jackson v Hunter Roberts Constr. Group. LLC, 161AD3d666 (1 51 Dept 2018) (Labor Law§ 240[1] claim dismissed where plaintiff and co-worker were carrying a pipe when plaintiff lost his balance upon stepping on a makeshift ramp which bowed, causing both men to fall and causing plaintiff to be struck in the leg by the pipe): Parker v Ariel Assocs. C01p., 19 AD3d 670 (2d Dept 2005) (Labor Law§ 240[1] dismissed where plaintiff and four coworkers were carrying a steel I-beam weighing 300-4~0 pounds when a coworker tripped, injuring plaintiff, who had been holding the beam abq_ve his head). Although plaintiffs attorney attempts to create an issue of fact by arguing that plaintiff needed a hoist to accomplish his task, the facts do not support this argument. Plaintiff stated t~at Marcial told him that he was to carry rebar from the fifth to the sixt-h floor, however, this is not the activity in which plaintiff was engaged at the time of the incident. Indeed, plaintiff stated in his affidavit in opposition to the motion that "my co-worker and I were simply walking across the floor to the place we were directed to go" when the incident occmTed. Doc. 49 at par. 13. Since the incident occurred on the fifth floor, and not in the process of moving rcbar from the fifth to the sixth floor, the incident would not have been prevented by a hoist. Additionally, as noted above, Quick states in his affidavit in support of the motion that it was custom and practice in the 156440/2015 JACINTO, LUIS vs. LSG 365 BOND STREET, LLC Motion ~o. 002 7 of 11 Page 7of11 [*FILED: 8] NEW YORK COUNTY CLERK 07/19/2019 12:03 PM NYSCEF DOC. NO. 56 INDEX NO. 156440/2015 RECEIVED NYSCEF: 07/19/2019 construction industry to carry rebar in the manner in which plaintiff and his co,vorkcr were doing, and that no "crane or other mechanical device·' was required for such work. Doc. 42 at par. 13. Plaintiff attempts to raise an issue of fact by submitting Fcin·s affidavit. in which the expert states, inter alia, that "'f ilt is clear, and unquestionable, that a hoist plaintiff. Doc. 52 at par. 3. should have been provided·· to However, as defendants assert, Fein's opinion that plaintiff and his coworker should not have been carrying the rebar cannot be considered since he did not cite to any industry standards. rules or regulations to support it. See Pena v Ci~y of New York, 161 AD3d. 522, 523 (I st Dept 2018). Labor Law § 241 (6) Defendants also move for dismissal of plaintiff's claim pursuant to Labor Lmv section 241 (6). That section provides. in relevant pai1, that: All contractors and owners and their agents ... when constructirig or demolishing buildings or doing any excavating in connection therewith, shall comply with the follO\ving requirements *** \. (6) All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, [and] equipped . . . as to provide reasonable ~nd adequate protection and safety to the persons employed therein or !av.fully frequenting such places. Labor Law section 241 ( 6) imposes a nondclcgablc duty on "owners and contractors to 'provide reasonable and adequate protection and safety' for workers." Ross,. Curtis-Palmer Hydro- Flee. Co., 81 NY2d 494, 50 I ( 1993 ).. To establish a violation of this statute, and successfully oppose a defendant's motion for summary judgment. it must be shown that defendant violated a 8 LLC of 156440/2015 JACINTO, LUIS vs. LSG 365 BOND STREET, Mntinn Nn nn? 11 Page 8of11 [*FILED: 9] NEW YORK COUNTY CLERK 07/19/2019 12:03 PM NYSCEF DOC. NO. 56 INDEX NO. 156440/2015 RECEIVED NYSCEF: 07/19/2019 specific, applicable, implementing regulation of the Industrial Code. Id., at 503-505. In his affidavit in support of the motion, Quick established defendants'· prima facie entitlement to summary j4dgrnent on the § 241 (6) claim by opining that defendants have not violated any of the provisions of the Industrial Code, or any of the other regulations, cited by plaintiff. Despite the numerous sections of the Industrial Code allegedly violated by defendants, plaintiffs affirmation in opposition to the motion limits his argument to one provision of the Industrial Code, 12 NYCRR 23-1.7(e), which addresses tripping hazards. Thus, plaintiff has abandoned his reliance on the remainder of the Industrial Code sections alleged. See Kempis(v v 246 Spring Street. LLC, 92 AD3d 474 (I51 Dept 2012). 12 NYCRR 27-1.3(e)(l) provides that "[alll passageways shall be kept free ·from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping" and that "[s]harp projections ... shall be removed or covered." 12 NYC RR 27-1.3( e )(2) provides that "areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections ... " Here, plaintiff claims that there were dangerous conditions at the ' ' premises but does not specifically allege that his coworker fell as the result of dirt, debris or sharp projections. Although snow and/or ice has been held to fall within the scope of section 23-l .7(e) (see Maza v University Ave. Dev. Cmp., 13 AD3d 65 [I st Dept 2004]), defendants cannot be liable pursuant to Labor Law § 241 (6) because plaintiff cannot establish a violation of this provision of the Industrial Code "without relying on speculative or inadmissible hearsay evidence.'' S'teinsvaag, 96 AD3d at 933; see also Luciano v New York City Haus. Auth., 1157 AD3d 617 ( l ~t Dept 2018). In arguing that he has a claim pursuant to Labor Law§ 241(6) founded upon section 23I. 7(c), plaintiff relies on Brad~·haw v 845 UN Ltd. Partnership, 2 AD3d 191 (I st Dept 200J). In 156440/2015 JACINTO, LUIS vs. LSG 365 BOND STREET, LLC Motion No. 002 9 of 11 Page 9of11 [*FILED: 10] NEW YORK COUNTY CLERK 07/19/2019 12:03 PM NYSCEF DOC. NO. 56 INDEX NO. 156440/2015 RECEIVED NYSCEF: 07/19/2019 that case, plaintiff was injured while his coworker was helping him guide rebar into place. The incident occurred when the coworker fell over a pile of construction material, causing the re bar to in.iure plaintiff. The facts of Bradshaw are distinguishable: however, since in that case. unlike here, there was admissible evidence at trial regarding the cause of the coworker's fall. Here, as noted above, the only evidence that the coworker slipped on ice arose from the coworker·s alleged statement to Marcial to that effect. However, since plaintiff and his attorney both admit that it is mere conjecture that ice was involved in the accident, the coworker's hearsay statement does not defeat defendants' entitlement to summary judgment. See Tompa v 767 Fi/ih Partners, LLC, 113 AD3d 466, 468 (JS' Dept 2014) citing Acevedo v York Intl. Corp., 31 AD3d 255, 256 (1 51 Dept 2006), Iv denied 8 NYJd 803 (2007). Contrary to plaintiff's argument, Fein 's affidavit does not raise an issue of fact precluding the dismissal of the Labor Law§ 241(6) claim. Fein opines that Industrial Code section was violated because plaintiffs coworker "slip[ed] on something.'" Doc. 52 at par. 8. ~3-1.7 However, plaintiff conceded that he did not know whether the coworker slipped. Doc. 38 at 118. Although plaintiff also alleges violations of Labor Law§§ 240 (2) and (3), 241 (1-5), and ' 241-a, those statutes are clearly inapplicable to the facts of this case. The parties' remaining contentions are without merit or need not be addressed in light of the result above. Therefore, in light of the foregoing, it is hereby: 10 LLC of 156440/2015 JACINTO, LUIS vs. LSG 365 BOND STREET, Untinn ~n nn? 11 ·Page 10of11 [*FILED: 11] NEW YORK COUNTY CLERK 07/19/2019 12:03 PM NYSCEF DOC. NO. 56 INDEX NO. 156440/2015 RECEIVED NYSCEF: 07/19/2019 ORDERED that the motion for summary· judgment by defendants LSG 365 Bond Street, LLC and Lettire Construction Corp. is granted, and the complaint is dismissed; and it is further ORDERED that the Clerk is to enter judgment accordingly; and it is further ORDERED that this constitutes the decision and order of the court. 7/17/2019 DATE CHECK ONE: ~ ~ .· CASE DISPOSED GRANTED D KATHRYN E. FREED, J.S.C. NON-FINAL DISPOSITION DENIED GRANTED IN PART SUBMIT ORDER APPLICATION: SETTLE ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN 156440/2015 JACINTO, LUIS vs. LSG 365 BOND STREET, LLC Motion No. 002 11 of 11 FIDUCIARY APPOINTMENT D D OTHER REFERENCE Page 11of11

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