Cruz v USTA Natl. Tennis Ctr.

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Cruz v USTA Natl. Tennis Ctr. 2020 NY Slip Op 34385(U) December 28, 2020 Supreme Court, Kings County Docket Number: 513739/2018 Judge: Loren Baily-Schiffman 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] KINGS COUNTY CLERK 01/05/2021 INDEX NO. 513739/2018 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 01/08/2021 At an IAS Part 65 of the Supreme Court of the State of New York, County of Kings at a Courthouse Located at 360 Adams Street, Brooklyn, New York on the ).~av of 2020. · J:>e.,c.... , PRESENT: HON. LOREN BAILY-SCHIFFMAN JUSTICE --------------~-------w-------------------~--------0 ' EDWIN CRUZ, Index No.:.513739/2018 Plaintiff, Motion Seq. ti 2 & 3 - against - ' 'I • ' '. USTA NATIONAL TENNIS CENTER INC., HUNT CONSTRUCTION GROUP, INC., AECOM and AECOM TECHNOLOGY CORP., DECISION & ORDER ' Defendants. . • -----------~---------------M-~-~-----~--------~--·~ As required by CPLR 2219'(a ), the following papeis were considered In the review of thls motion: PAPERS NUMBERED Notice of Motion, Affidavits, Affirmation & Exhibits Plaintiffs Memo of Law In Support Defendants' Notice of Cross-Motion, Affirmation & Exhibits Defendants' Memo of U1w ln Support . l'lalnllffs Memo of Law in Opposition to Cross-Mot'ion Defendants' Reply Memo of Law "1 2 3 4 s 6 Upon the foregoing papers Plaintiff, EDWIN CRUZ, moves this Court for an Order granting partial summary judgement pursuant to CPLR § 3212 on the cause of action based upon labor Law§ 240 (1). Defendants collectively mo.ve this Court for an Ordet pursuant to CPLR § 3212 granting partial summary judgement In their favor and dismissing Plaintiff's cause of action based upon Labor Law§ 240 (1). USTA NATIONAL TENNIS CENTER INC. (USTA), leased the property known as the "Billy Jean King National Tennis Center" (BJK) from the City of New York. USTA was the Project Owner for the new Louis Armstrong Stadium (LAS) construction project on the BJK property. On or about August 15, 2016 USTA emered into an agreement With Defendarit Hunt l 1 of 5 [*FILED: 2] KINGS COUNTY CLERK 01/05/2021 NYSCEF DOC. NO. 90 INDEX NO. 513739/2018 RECEIVED NYSCEF: 01/08/2021 Construction Group, Inc. (Hunt), a subsidiary of Defendant, Aecom, as construction manager for the new LAS. Sometime thereafter Hunt .entered into a subcontractor .agreement with American Pile & Foundation (APF). On AJ)ril 18, 2017 Plaintiff was working as a union dockbuilder for APF. APF was responsible for the installation of deep foundation piles to support the new LAS. There is no dispute that APF utillzed a CAT 325 Excavator, containing a .grappler attachment to pl<;k up the piles and move them to the location where they would be installed. On the day of the accident, the .ehd of one of the piles became lodged into the hydraulic lines.that were connected to the excavator's bootn. In o.rder to exfrlcate the lodged pile, APF sup11rvisors directed Plaintiffand a co-worker to rig the higher end of the pile that was not lodged into the hydraulic lines to a nearby pile already driven into the ground and a loader machine. At the same time, Plaintiff was Instructed to place a sling around the pile that was stuck in the hydraulic lines. Thim the excavator operator was directed to backup slowly and the plan was that this would dislodge the pile so it would release and drop. The pile, a 60foot-long segment weighing in excess of 2000 pounds, was eventually dislodged but allegedly struck Plaintiff as it dropped to the ground. Analysis L~bor Law§ 240(1) imposes a nondelegable duty ... to provide safe!'{ devices necessary to prote;:t workers ftom risks Inherent In elevated work sites. Vasquez-Roldan v. Two Little Red'Hens, Ltd., 129 A.0.3d 828, 829 (Zd Dept 2015}; McCarthy v. Turner Canstr., Inc;, 1.7 Ill. Y.3d 369, 374(2011). To prevail on a motion for summary Judgm!;!nt in a Labor Law§ 240(1) 'falling object'. case, the plaintiff must demonstrate that at. the time the object fell, it either was 2 2 of 5 [*FILED: 3] KINGS COUNTY CLERK 01/05/2021 NYSCEF DOC. NO. 90 INDEX NO. 513739/2018 RECEIVED NYSCEF: 01/08/2021 being hoisted or secured. Wiski 11 Verizon New York, Inc., 186 AD3d 1590 (2d Dept 2020), quoting Fabrltl 11. 1095 A11e. of the Americas, L.L.C., 22 N. Y.3d 658, 662-663 {2014}. However, Labor Law§ 240(1} does not automatically apply simply because an object fell and injured a worker. A plaintiff must also establish that the object fell because ofthe absence or lnadequacy of a safety device of the kind enumerated in the statute. Henriquez 11 Grant; 186 AD1d 577, 577 {:Zd Dept 2020), citing Narducci v•. Monhasset Bay Assoc., 96 N, Y.Zd 259, 268,(2001}. AdditionaUy, 'falling object' liability under Labor Law§ 240(1) is not limited to cases where the falllr:ig object is in the process of being hoisted or secured. Sarata v. Metropolitan Transp. Auth., 134A.D.3d 1089, 1091. {Zd Dept 2015}, dtlng Quottrocchl v. FJ. Sclame Canstr. CC/rp., 11 N. Y.3d 757, '158-159, {2:008). Liabllity also am1ches #where the plaintiff demonstrates that, at the time the object fell, it required securing for the purposes of the undertaking." Escobar v. Safi, 150 A.D.3d 1081, 1083 (2d Dept 2017}, quoting Fabrizi v. 1095 Ave. of the America, $Upro at663. Plaintiff submits ao affidavit from Stuart Sokoloff, i>.E. in support of the instant motion. Mr. Sokoloff opines that the device (the excavator) being utilized to hoist.and install the piles was inadequate for the task. Mdreover, Mr. Sokoloff stated that once the tip of the subject pile became entangled in the hydraulic lines of the excavator, the structural integrity .of the device was compromised. Mr. Sokoloff further opines that the workers should have been instructed to keep clear of the holsted pile while attempting to dislodge it from the excav<;1tor's hydraulic lines. in opposition and in support of their motion for summary judgment, Defendants . · contend that Piaintiff s motion relies only upon his self-serving testimony as no one at the work 3 of 5 [*FILED: 4] KINGS COUNTY CLERK 01/05/2021 NYSCEF DOC. NO. 90 INDEX NO. 513739/2018 RECEIVED NYSCEF: 01/08/2021 site actually witnessed the pile striking Plaintiff after it was .dislodged and fell to the ground. Additi!:mally, Defendants claim that Plaintiff failed to produce any evidence th<1t the alleged injuries resulted from the ·inadequacy of a safety device as enumerated in the statute. According to the Defendants, the occurrence is entirely attributable to error by the. excavator's operator. Defendants further argue that they are not proper statutory:Defendahts pursuant to Labor Law§ 240 (1). The meaning of owners under Labor Law § 2.40(1) has not been llmlted to tltlehµlders but has been held to encompass one who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for the owner's benefit. Kwang Ho Kim v. D & W Shin Realty Corp., 47 AD3d 6l6, 618 (2d Dept 1008). Clearly USTA's hiring of Hunt atthe very least raises a question of fact as to whether or not It was the statutory agent of Vie owner. Moreover, courts have consistently held that a party that coordinates the hiring and payment of subcontractors for the project is a general contractor for the purposes of labor law§ 240 (1). Sanchez v Metro Bliilders Corp., 136 AD3d 783,786 (2.d Dept 2016}; Guanopatin v Flushing Acquisition Holdings, LLC, 1.27 AD3d 812, 813·14 {2d Dept 2015}. Defendants also claim there can be no liability against Hunt or, Aecom because they did not supervise or control any of the work being performed. However, contractor status pursuant to labor Law § 240 (l) is dependent upon whether it had the authoritv to exercise wntrol over the work.. not whether it actually exercised that right. Id at 814; Walls v. Turner Constr. Co., 4 N. Y.3d 861, 864 (2005). A triable issue of fact has, therefore, been raised as to Hunt and Aecom' s status on the subject project. White both parties submit portions of deposition testimony to support their positions, 4 4 of 5 [*FILED: 5] KINGS COUNTY CLERK 01/05/2021 INDEX NO. 513739/2018 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 01/08/2021 when read as a whole much of the evidence is either conflicting or relies upon hearsay and is insufficient to support a motion for summary Judgment. Guanopatin v Flushing Acquisition Holdings, LLC, 1.27 AD3d 81.2, 813-1.4 (2d Dept2015). Defendants cont~nd that Plaintiff failed to establish that any safety device enumerated in the statute would have prc!llenteil Plaintiffs injuries and that they the injuries solely out of the manner in which the wor:lc: was being performed. Wein v E. Side 11th & 28th, LLC, 186 AD3d 1579, J581-82 {2d Dept 2020}: liability pursuant"to labor Law§ 240(1) will not attach ifthe injuries arose solely out of the manner of his employer's work and the defendants exercised no supervisory control over that work. Portalatin v Tully Const. Co.-E.E. Cruz & Co., 155 AD3d 799, 800 (2d Dept201.7). The evidence submitted by Plaintiff is insufficient to establish that his injuries resulted from the absence or inadequacy o.f an enumerated safety device. Houston v State, 171 AD3d :l.J45 (2d.Dept2019}. Under the circumstances of this case, triable issues of fact exist as to whether the named Defendants are proper parties pursuant to labor Law § 240 (1) and whether or not there is a sufficient nexus between Plaintiffs ihjuries and the absence or Inadequacy of an enumerated safety device. Powell v Norfolk Hudson, LLC, 164 AD3d 1.283, 1284 (2d Dept 2018). Accordingly, both motions for summary judgment are denied In their entirety. The parties' ...., ...., = remaining contentions are without merit. (... ~ z This is the Decision and Order of this Court. 1 (.,!; ;:::>< ENTER, 5 of 5 " ~ 9 (...:'.' 5 .·"' "' ::l!: 0 LOREN BAIL\'·SCHIFFMAN, JSC '. . -rt?"." '

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