Gallegos v Bridge Land Vestry, LLC

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Gallegos v Bridge Land Vestry, LLC 2019 NY Slip Op 35024(U) November 6, 2019 Supreme Court, Bronx County Docket Number: Index No. 29392/2018E Judge: Lucindo Suarez 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. INDEX NO. 29392/2018E FILED: BRONX COUNTY CLERK 11/12/2019 02:09 PM NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/12/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX: PART 19 Mtn. Seq. I JOAQUIN GALLEGO S , Index No .: 29392/20 l 8E Plaintiff, - against - DECISION and ORDER BRIDGE LAND VESTRY LLC, RELATED 0 STR CTION LLC, BWK CONTRAC TfNG CORP., and JEM CONTRAC TING CORPORA TION, Defendants. PRESENT : Hon. Lucinda Suarez The issue in Plaintiffs motion is whether he has established aprimafac ie case entitling him to summary judgment as to liability on his Labor Law §240(1) claim. This court finds he has not. Labor Law §240(1) imposes a nondelegable duty upon owners and contractors to provide safety devices to protect workers from risk inherent in elevated work sites. See McCarthy v. Turn er Constr., Inc. 17 N.Y.3d 369, 953 .E.2d 794 929 N.Y.S.2d 556 (2011). Plaintiff mu t demonstrat e both a violation of the statute and the violation ' s proximate cause of the injury. See Blake v. eighborhoo d Hous. Servs. 1 N.Y.3d 280 803 N.E.2d 757, 771 .Y.S.2d 484 (2003). Specifically , the hazards contemplat ed by the statute "are those related to the effects of gravity where protective devices ar called for. .. because of a difference between the elevation level of the required work and a lower level. Gordon v. Eastern Ry. Supply, 82 N.Y.2d 561 , 626 .E.2d 912, 606 N.Y.S.2d 127 (1993). The pecial hazards referred to are limited to such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or [* 1] 2 of 4 FILED: BRONX COUNTY CLERK 11/12/2019 02:09 PM NYSCEF DOC. NO. 42 INDEX NO. 29392/2018E RECEIVED NYSCEF: 11/12/2019 inadequately secured. Labor Law §240( 1) was designed to prevent those type of accidents in which the scaffold, hoist, stay ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gra ity to an object or person. The right of recovery afforded by the statute does not extend to other types of harm, e en if the harm in question wa caused by an inadequate, malfunctioning or defectively deigned scaffold, stay or hoist. Ro ·s N .E.2d 82, 60 I 1. 'urtis-PaLmer Hydro-ELec. Co. 81 N.Y .2d 494, 618 .Y.S .2d 49 ( 1993). Here, Plaintiff alleged he was injured at a construction site when a stone slab that wa being hoisted became loose from the straps hoisting it, causing it to fall on Plaintiff. Plaintiff attached his affidavit to the instant motion but be has not been deposed. Defendants argued that Plaintiff motion is premature since he ha not been deposed and further argued that the mere fact an object fell on Plaintiff is not sufficient for Plaintiff to establish a primafacie case pur uant to Labor Law §240(1 ). Defendants posited that Plaintiff must still established that the object that fell on him while being hoisted fell due to the ab ence or inadequacy of a safety device de cribed in the statute. Plaintiff merely provided his affida it which does not provide information as to how the stone lab fell on him. There were no other sworn affidavits from witnesses including an expert affidavit pro iding information as to whether the device used on the date of Plaintiffs injury was inadequate. Defendants have therefore, suggested there i ti ll discovery that is necessary that ma lead to relevant evidence. See DaSilva v. Haks Engrs., Architects & Land urvey ors, P.C., 125 A;.D)d 480,_ 4 .Y . .J d 162 (1st Dep) 2015). Accordingly it is 2 [* 2] 3 of 4 FILED: BRONX COUNTY CLERK 11/12/2019 02:09 PM NYSCEF DOC. NO. 42 INDEX NO. 29392/2018E RECEIVED NYSCEF: 11/12/2019 ORDERED, that Plaintiffs motion for summary judgment is denied, without prejudice with leave to re-file if at all. This constitutes the decision and order of the court. Dated: November 6, 2019 UCINDO SUAREZ, J.s.c. 3 [* 3] 4 of 4

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