Zuniga v BRP Dev. Corp.

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Zuniga v BRP Dev. Corp. 2020 NY Slip Op 31495(U) May 15, 2020 Supreme Court, New York County Docket Number: 450926/2016 Judge: Paul A. Goetz 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 05/18/2020 11:58 AM] NYSCEF DOC. NO. 151 INDEX NO. 450926/2016 RECEIVED NYSCEF: 05/18/2020 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. PAUL A. GOETZ PART Justice -------------------------------------------------------------------------------X IAS MOTION 47EFM INDEX NO. 450926/2016 MAGNO ZUNIGA, MOTION DATE Plaintiff, MOTION SEQ. NO. -----=0-'-0-'-4,'--'0--=0....:c5_~ -v-,., BRP DEVELOPMENT CORPORATION, BRP MACEDONIA PLAZA DEVELOPERS, LLC, MACEDONIA PLAZA DEVELOPMENT LLC AND MACEDONIA PLAZA COMMUNITY DEVELOPMENT CORPORATION, DECISION + ORDER ON MOTION Defendants. -------------------------------------------------------------------------------x The following e-filed documents. listed by NYSCEF document number (Motion 004) 91-107, 123-137, 142-143; (Motion 005) 108-122, 142-146 were read on these motions for SUMMARY JUDGMENT Plaintiff Magno Zuniga commenced this Labor Law action to recover for personal injuries he suffered on April 18, 2013, while using a hammer drill in the course of construction work at 3 7-08 Union Street, Flushing, Queens, New York. In his complaint, plaintiff asserts claims under Labor Law Sections 200, 240(1) and 241(6). In motion #004, plaintiff moves pursuant to CPLR 3212 for summary judgment on liability on his Labor Law 240(1) claim and on his Labor Law 241(6) clmoo insofar as it is premised on violations oflndustrial Code Sections 23-9.2(a) and 23- 1.5(c)(3). Plaintiff also moves for leave to file an Eighth Supplemental Bill of Particulars which adds allegations regarding the violation of these regulations. Defendants oppose plaintiffs motion and by way of motion #005, and move for an order (i) granting summary judgment to defendants and dismissing plaintiffs complaint; (ii) striking plaintiff's Eighth Supplemental Bill of Particulars as untimely served; and (iii) pursuant to CPLR 3116 striking plaintiff.s errata sheet served in connection with his deposition as it improperly seeks to make substantive changes to Page 1of6 1 of 6 [* 2] [FILED: NEW YORK COUNTY CLERK 05/18/2020 11:58 AM] NYSCEF DOC. NO. 151 INDEX NO. 450926/2016 RECEIVED NYSCEF: 05/18/2020 plaintiffs testimony without a sufficient explanation for these changes. The motions are consolidated for purposes of this decision. Plaintiff testified that on the day of the accident, April I 8, 2013, he was working for BRP Construction Corp. at a construction project located in Flushing, New York. Affirmation of Rachel E. Smith dated November 27, 2019, Exh. E (PlfDcp. Tr. 7, 36-37). He had worked at the project site for approximately four months prior to his accident, doing small repairs, which were to "replenish, to put fences, to make holes on the floor." Smith Aff., Exh. E (PlfDcp. Tr. 37-39). His work was overseen by Larry Ingram, project manager for the developer, BRP Construction Group. Smith Aff., Exh. E (PlfDcp. Tr. 31); Exh. H (Ingram Dcp. Tr. 38-39, 222). On the day prior to the a,ccident, plaintiff testified that Mr. Ingram told plaintiff to use a hammer drill tb make holes in the floor. Smith Aff., Exh. E (Plf Dep. Tr. 44-45). Plaintiff testified that on that day, he had trouble turning on the hammer drill, that he informed Mr. Ingram about the issue, and that Mr. Ingram told plaintiff to "deal with it like that." Smith Aff., Exh. E (Plf Dcp. Tr. 48-50). On the day of the accident, plaintiff testified that Mr. Ingram again directed plaintiff to use the hammer drill to drill holes in the cement floor. Smith Aff, Exh. E (Plf Dep. Tr. 40, 44, 50). Plaintiff testified that he asked Mr. Ingram for a different drill but that Mr. Ingram instructed him to keep working with that one. Smith Aff., Exh. E (Plf Dcp. Tr. 50). Plaintiff testified that he was having trouble turning ort the drill and that while he was holding it and trying to turn it on, the drill suddenly started, causing plaintiff to fall backwards and striking plaintiff on his body and face. Smith Aff., Exh. E (PlfDep. Tr. 53-57, 60-61 ). Plaintiff testified that he did not receive any training on how to use the drill. Smith Aff., Exh. E (Plf Dep. Tr. 51 ). Mr. Ingram, plaintiff's supervisor and the project manager for BRP Construction Group~ testified on behalf of defond~nts. Notably, Mr. Ingram testified that he did not recall instructing Page 2 of 6 2 of 6 [* 3] [FILED: NEW YORK COUNTY CLERK 05/18/2020 11:58 AM] NYSCEF DOC. NO. 151 INDEX NO. 450926/2016 RECEIVED NYSCEF: 05/18/2020 plaintiff to use the hammer drill and he did not recall plaintiff making any complaints to him about the drill prior to the accident. Smith Aff., Exh. II (Ingram Dep. Tr. 77, 91-92). R&fael Collado, the ditector of construction at BRP Construction Group, also testified on behalf of defendants. Smith Aff., Exh. I (Collado Dep. Tr. 6). Mr. Collado testified that every tool at the job site that was not working would be taken out of service and that when a piece of equipment was not working, the labor foreman would take it to the shop to see if it could be fixed. Smith Aff., Exh. I (Collado Dcp. Tr. 34, 66). If the tool could not be fixed, he would purchase new equipment for the site. Smith Aff., Exh. I (Collado Dep. Tr. 34). In his motion, plaintiff seeks summary judgment on liability on his Labor Law Section 241(6) claim insofar as it is premised on defendants' alleged violation oflrtdustrial Code Sections 23-9.2(a) and 23-1.5(c)(3), which pertain to the maintenance of equipment at the job site. However, these regulations were not included in plaintiffs complaint or arty of his prior bills of particulars. Thus, as a preliminary matter, plaintiff argues that he properly served his Eighth Supplemental Bill of Particulars as of right under CPLR 3043(b), or, in the alternative, he seeks leave to serve the supplemental bill. In opposition and in support of their motion, defendants argue th'l.t the bill was improperly served after the filing of the note of issue and that it should be stricken. Contrary to plaintif:f s contention, the Eighth SupplementaJ Bill of Particulars cannot be served as of right under CPLR 3043 (b) as plaintiff seeks to allege additional violations of the Industrial Code and is not merely seeking to supplement his allegations regarding special damages. Rather, the so-called Eighth Supplemental Bill of Particulars is really an amended bill of particulars and plaintiff must obtain leave to serve this bill under CPLR 3042 as the note of issue has already been filed. "Leave to amend a bill of particulars following the filing of a note of issue is ordinarily freely granted absent surprise or prejudice to the defendants." Henchy v. VAS Exp. Page 3 of 6 3 of 6 [*[FILED: 4] NEW YORK COUNTY CLERK 05/18/2020 11:58 AM] NYSCEF DOC. NO. 151 INDEX NO. 450926/2016 RECEIVED NYSCEF: 05/18/2020 Corp, 115 A.D.3d 478, 479 (1st Dep't 2014) (internal citations omitted). However, "where the proposed amendment clearly lacks merit and serves no purpose but to needlessly complicate discovery and trial, such a motion should be denied. Id. at 480. Hcrc, plaintiff's proposed amended bill of particulars was served approximately one month after the filing of the note of issue and prior to the filing of any summary judgment motions, which is not an unreasonable delay. Further, defendants are not prejudiced by the amended bill as they arc well-aware that plaintiff is alleging a dangerous work condition related to the hammer drill he used at the work site. See Tuapante v. LG-39 LLC, 151 A.D.3d 999, 1000 (2d Dcp 't 2017). There are no new facts or theories of liability involved in the proposed amendment to assert additional Industrial Code violations and thus plaintiffs motion for leave to serve the amended bill must be granted nunc pro tune. Turning to the merits, plaintiff argues in support of his motion that he is entitled to sllmihaty judgment on his Labor Law 241(6) claim insofar as it is premised on the violation of Industrial Code Sections 23-9.2(a) and l.5(e)0), which require that equipment on the job site be maintained in good repair and in proper operating condition. With regard to the alleged violation of Industrial Code Section 23-9.2(a), defendants correctly argue that the hammer drill which aIIegedly injured plaintiff was not "heavy equipment or machinery" as defined under 23-9.1 and thus this section is inapplicable. Nicola v. United Veterans Mui. Ilous. No. 2 Corp., 178 A.D.3d 937, 940 (2d Dep't 2019). With respect to the remaining section, plaintiff argues that defendants violated this as the hammer drill he was directed to use was not in proper operating condition and that plaintiff notified his supervisor of this condition, who nevertheless directed plaintiff to use the drill. However, Mr. Ingram, plaintiff's supervisor, testified that he did not recall plaintiff telling him that the drill was not working prior to the accident and Mr. Collado, the director of BRP Construction, testified that Mr. Collado testified that every tool at the job site that was not working Page 4 of6 4 of 6 [*[FILED: 5] NEW YORK COUNTY CLERK 05/18/2020 11:58 AM] NYSCEF DOC. NO. 151 INDEX NO. 450926/2016 RECEIVED NYSCEF: 05/18/2020 would be taken out of service and that when a piece of equipment was not working, the labor foreman would take it to the shop to see if it cot.Lld be fixed. Smith Aff., Exh. I (Collado Dcp. Tr. 34, 66). Thus, at the very least, there is a question of fact as to whether defendants had notice that the hammer drill was not working properly and summary judgment on this claim must be denied. Nicola, 178 A.D.3d at 940. Defendants argue, in support of their motion and in opposition to plaintiffs motion, that plaintiff has abandoned reliance on the other Industrial Code provisions cited in his bill of pm1iculars by failing to raise them in his motion for summary judgment. However, this case differs from the cases cited by defendants in support of their argumcntinsofar as here it was plaintiff who moved for summary judgment. See, e.g. Perez v. Folio l!otrse, Inc., 123 A.D.3d 519 (1st Dep't 2014). Contrary to defendants' contention, plaintiffs failure to move for summary judgment on these provisions does not constitute an abandonment ofthese claims. Kempisty v. 246 Spring Street LLC, 92 A.D.3d 474, 475 (1st Dep't 2012). Since this is the only basis for defendants' motion for summary judgment on these provisions, the motion must be denied. With respect to the remaining claims, defendants com~ctly argue that plaintiff's Labor Law Section 240(1) claim must be dismissed as the uncontrovertcd evidence shows that plaintiff's accident was unrelated to the failure of any protective device to shield him from harm directly flowing from the force of gravity or the force of a falling object. See 0 'Brien v. Port Auth. ofNY and NJ, 29 N.Y.3d 27, 33 (2017). Defendants also seek dismissal of plaintiff's Labor Law Section 200 claim based on a lack of actual or constructive notice of the alleged defect. However, as discussed above, there is an issue of fact with respect to notice and thus this claim will not dismissed. Page 5 of6 5 of 6 [*[FILED: 6] NEW YORK COUNTY CLERK 05/18/2020 11:58 AM] NYSCEF DOC. NO. 151 INDEX NO. 450926/2016 RECEIVED NYSCEF: 05/18/2020 Finally, defendants seek to strike the errata sheet served in connection with plaintiffs deposition under CPLR 3116(~). Contrary to plaintiff's contcnti9n, the errata sheet seeks to make substantive changes to plaintiff's testimony, including with respect to the critical issue of notice. Compare Smith Aff., Exh. E (PlfDcp. Tr.) to Exh. F (errata sheet), 43:17, 59:5, 63:9. Plaintiff failed to provide a specific reason for each of these substantive changes and his broad assertion that there was an issue with the translation is vague and unsupported. Caraudella v. 17 St. John St. Assoc., 140 A.D.3d 508, 508 (1st Dcp't 2016); Marzan v. Persaud, 29 A.D.3d 652, 653 (2d Dep't 2006). Finally, the errata sheets were not accompanied by an affidavit from a Spanish translator. Thus, the errata sheet must be stricken. Accordingly, it is ORDERED that plaintiff's motion is granted insofar as plaintiff is granted leave, nunc pro tune, to serve the Eighth Supplemental Bill of Particulars, and is otherwise denied; and it is further ORDERED that defendants' motion is granted as to plaintiffs Labor Law Section 241(6) claim to the extent it is predicated on a violation oflndustrial Code Section 23-9.2(a) and plaintiffs Labor Law Section 240(1) claim, and those claims arc dismissed; and the errata sheet served in connection with plaintiffs deposition and it is stricken, and defendants' motion is otherwise denied. CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ CASE DISPOSED GRANTED D NON-FINAL DISPOSITION DENIED GRANTED JN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT D OTHER D REFERENCE Page 6 of 6 6 of 6

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