Lambro v 43-22 Queens St. L.L.C.

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Lambro v 43-22 Queens St. L.L.C. 2021 NY Slip Op 31856(U) June 1, 2021 Supreme Court, Kings County Docket Number: 501089/2017 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 06/01/2021 03:30 PM INDEX NO. 501089/2017 NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 06/01/2021 At an IAS Part 65 of the Supreme Court of the State of New York, County of Kings at a Courthouse Located at 360 Ams F Street, . Brooklyn, New York on the, j. day of . ·. . . ., 2021. I~ . . PRESENT: HON. LOREN BAILY-SCHIFFMAN ·- - -~--~--------- JUSTICE ---- ---- ------------------- JOSEPH LAMBROand JENNIFER LAMBRO, Plaintiffs, '." against- --, Index No,:501089/2017 ,. ,. Motion Seq. # 5 & 6 'I ,.r 43-22 QUEENS STREET LL.C., CAULDWELL~WINGATE COMPANY, LLC; ATLANTIC STATES LUBRICANTS . . . CORP. and HENRI LEE, DECISION & ORDER ,. I ·' ,.' I _,_ .. ________ ~- Defendants. . - - - - ·------.- -- - - - ---- ..... --- ------ - ----- - - ·----·. .. . -. - :- . --- ,·' - .-- - - -.-- -----. ____ -------·-----·---- _... , _. As required by CPLR 2219(a), thefoUowing papers were considered in the review of this motion: PAPERS NUMBERED Piaintiffs Notice of Motion Affirmation & Exhibits Affirmation in Opposition by 43-22 & Affirmation in Opposition by Atlantic & Lee Reply Affirmation Notice of Cross-Motion . . Affi rmatiori in Support of Cross-Motion & Exhibits Affirmation in Opposition to Cross-Motion by Atlantis & Lee Reply Affirmation c~w 1 2 3 4 5 6 7 8 9 Upon the foregoing papers, Plaintiffs move this Court for an Order PU rsuant to CPLR § 3212 granting summary judgment in thei_r favor as against: Defendants 43-22 Queens Street LLC (43,.22) and Cauldwell-Wingate Companyi LLC (C-W) pursuantto Labor Law§ 200 and 241(6); Defehdantlee pursuantto VTL §1146, 1211 and NYC Traffic Rule 4-07; and Defendant Atlantic States Lubricants Corp. (Atlantic) pursuant to VTL § 388. Defendants Atlantic and Henri l 1 of 7 [*FILED: 2] KINGS COUNTY CLERK 06/01/2021 03:30 PM NYSCEF DOC. NO. 160 INDEX NO. 501089/2017 RECEIVED NYSCEF: 06/01/2021 Lee (Lee) cross-move (motion sequence# 6) for an Order dismissing Plaintiffs' causes of action brought pursuant to Labor Law§200, 240 (l) and 241(6). BACKGROUND On or about January 13, 2017Plaintiff , Joseph Lambro, Was injured while working on a construction site located at 43-22 Queens Street in Long Island City. Defendant, 43~22, the property owner, entered into a Construction Mcrnagement Agreement with Defendant, C-W. Total Safety Consulting (Total Safetv), a non-party, was retained by C-"W to oversee site safety. Plaintiff, Joseph Lam bro was employetl by non~party and C-W's subcontractor, Park Avenue Concrete/ High Rise Safety Systems (PAC), as a flagman. The construction site was located on. the west side of Queens Street and c~w was responsible for maintaining a two-way path Of travel only 12feet wide. At the time of the accident, Plaintiff an~ co~worker, Christopher Juno were in the street about to assist a crane ''pick". Two flagmen a·re required to be on the street when the crane operator brings down a load of rebar to street level (crane "pick"). According to the deposition , . . . testimony of Robert Tillis, the Site Safety Manager, New YorkCity regulations require that if anything is beihg lifted by a crane, pedestrian and vehidetraffic within the immediate area must be stopped. The submissions indicate that the flagmen would place a barricade at the intersection of Jackson Avenue and Queens Street to prevent traffic from comin•g down the street during a crane pick pursuant to 12 NYCRR § 23-1,29 (a). When delivery trucks have to enter, the flagmen usually removed the barricade and guided the trucks down Queens Street pursuant to 12 NYCRR § 23-1.29 (b); 2 ____________ ,,,,,,_.,,, "' 2 of 7 . [*FILED: 3] KINGS COUNTY CLERK 06/01/2021 03:30 PM NYSCEF DOC. NO. 160 INDEX NO. 501089/2017 RECEIVED NYSCEF: 06/01/2021 However, on the dci!Y ofth.e accident someone.had removed the barricade that would have prevE!nted At_l_antic's truck fro_m entering·Que~nsStre_et. Peter De Palma,a Senior Construction Superintendent for ·c-W1 testified ·that usually the flagmen wquld work in tandem to make sure no pe·destrians or vehicles were in th.e area where th·e crane pick was occurring. . Further, the flagmen ha:d to be aware of the crc1n.e.. pick at the sc1me time. On the day of the _accident Plaintiff was facing the crane and the dE;!ad-erid feet away facing the intersection part of Queens~tre~_t .. Mr:.Junowas.50 of Jackson Avenue and Queens Stre_et C-W kept.a record .ofthe schedu led-·deliveries. Pricit to a delivery d$y c..w p_repared: a list ofthe deliveries and a copy was given to_ PAC. PAC would hand off-the delivery schedule to the flagmen so that they could be present during deliveries to direct the trucks backing down Queen-s Street. Mr. De Palma supplied the ,;traffic contrnl s·igns" tha.t.were .used. Plaintiff testified that the delivery.being made by Atlantic on January 17~ 2017 was--~ot incl_upe.d in the schedule· for that_ day, The accident hereir, occurred when Defend ant1 Mr .. Lee, driver of the Atlantic Vehide, backed the truck down Queens Street without direction·from the flagmen prese~t. Mr. Le.e testified that although he saw th·e Plaintiff at first, he began _packing down the street after Mr. Lain bro was no longer hi his line.of vision_. Plaintiff was struck by t_he truck .driven by tvlr. Lee and owned by Atlantic when he was directly behind it, in a "blind spof'. The truckwas travel.ling at 2 miies per hour when it hit Plaintiff. Analysis Su in ma ry judgment is a drastic remedy ~ nd sha.i.i Id not be granted where the re is any dqubtas to the existence of a materiai and triable issue offact. Jablonski v Rapalje, 14 AD3d 4841 486 {2nd· Dept 2005), citing Ro"ti1ba Extruders v- Ceppos~ 46 NY2d.223, 23l .(1978J. Th~ 3 3 of 7 [*FILED: 4] KINGS COUNTY CLERK 06/01/2021 03:30 PM NYSCEF DOC. NO. 160 INDEX NO. 501089/2017 RECEIVED NYSCEF: 06/01/2021 court may not determine issues of credibility or fact, but rather identify whether questions of fact exist requiring resolution by a jury. Sillman v Twentieth Century-Fox Film Corp, 3 NY2d 395,404 (1957); Marcum, LLPliSilva, 117 AD3t:l 919, 920 (2nd Dept 2014); The moving parties must establish a prim a facie showing of entitlemE/nt to judgment as a matter of law, tendering sufficient evidence.to demonstrate the absence of any material issues of fact. Ciccone v Bedford Cent School Dist, 21 AD3cl 437,438 {2nd Dept 2005), leave to appeal denied 6 NY3d 702 (2005), citing Alvarez v Prospect Hosp, 68 NY2d 320, 324 (1986). Once this showing is made; the burden shifts to the opposingpar tyto raise a trial:>le issue of fact. Zuckerman v City of New York, 49 NY2d 557, 562(1980). If the movant fails to meet this initial burden, su 111 ma ry Judgment hi ust be denied ;,regard Iess of the sufficiency of the opposing papers." Winegrad v New York Univ Med Ctr, 64 NY2d 851, 853 (1985); Vega v Restani Const, Corp, 18 NY3d 499, 503(2012)._ It is well established that the Labor Law statutes require a liberal construction to achieve the goals intended by the legislature in enacting these provisions. Panek v County of Albany, 99 NY2d 452, 457 /2003), citing Gordon v Eastern Ry Supply, 82 IVY2d 555, 559 (1993). Contrary to Defendants' contention that the acddent herein was not a work site accident thus making the provisions of the labor Law in ap p llcab Ie, Labor Law p rotectioh s a re not Ii ni ited to the actual construction site-. ''Generaliy, the scope ofa work site mUstbe reviewed as 'a flexible concept, defined.not only by the place but by the circumstances ofth-e work to be done;" Gonnermanv . . . . Huddleston, supra at 995; Holgerson v. South 45th St. Garage, 16A.D.2d 255,258, ajfd. 12 N~ Y.2d 1011. 4 -----·--- --------- --------- --------- - 4 of 7 [*FILED: 5] KINGS COUNTY CLERK 06/01/2021 03:30 PM NYSCEF DOC. NO. 160 INDEX NO. 501089/2017 RECEIVED NYSCEF: 06/01/2021 Defendants Atlantic and Lee argue that there can be no liability against them in the instant action as they are neither an owner nor a contractor.However, the Second Department has specifically addressed this issue and held that evidence of a truck backing into the area where Plaintiff was working ata construction site, without being guided by another person who was properly positioned, was sufficient to raise a triable issue of fact of a violation of the Labor Law. Erickson v CrossReady Mix; lnc.i 75 AD3d 524, 526 {2d Dept 2010); Labor Law§ 200 Plaintiff seeks an Ordergranting summaryjudgment against Defendants for violating Labor Law § 200. Labor Law §200 is a codification of the com mon-1 aw duty ·of an owner or gerieralcontractorto provide workers with a aSafe plac:eto work. Ortega v Puccia, 57 AD3d 54, 6(}-;61 (2d Dept 2008), citing Rizzuto v LA Wenger Contr Co, 91 NY2d 343, 352 (1998). An owner or contractor may be held liable for a violation of Labor Law §200 only if it had authority to supervise or control the work. Klimowicz vPowellCove Assoc, LLC, 111 AD3d 605, 608 (2d Dept 2013); Hurtado v Interstate Materials Corp; 56 AD3d 722, 723 (2d Dept 2008). . . Specificallyi in order to impose lfability against an owner or contractor pursuant to labor law §200, a showing that the supervision or control was over the methods or means of a plaintiff's work. Vazquez v Humboldt Single Lofts, 145AD3d 709, 710 (2d Dept 2016); citing Pacheco v Smith, 128 AD3d 926(2d Dept2015}; Rojasv Schwartz; 74AD3d 1046 (2d Dept2010}. The law is clearly established thatliabilitypursuantto Labor Law§200 also aj)pliesto agents of owners or coriti"actors. Romang v Welsbach Elec Cr,rp, 74 AD3d 789 (2d Dept 2008); Paladino·v.societyo/NY Hosp, 307AD2d343,. 344-345 (2d Dept2003}; Yong Ju.Kim v Herbert .Const, Co~ 275 AD2d 709, 712-.713 (2d Dept 2000)."A party i:s deemed to be. an agent of an 5 5 of 7 [*FILED: 6] KINGS COUNTY CLERK 06/01/2021 03:30 PM NYSCEF DOC. NO. 160 INDEX NO. 501089/2017 RECEIVED NYSCEF: 06/01/2021 owner or generc1I contractor when it has supervisory control and authority over the work being done when a plaintiff is injured:" Vazquez v Humboldt Single Lofts, supra; citing Delahaye v Saint Anns School, 40 AD3d 679, 683 (2d Dept 2007), Plaintiff has failed to eliminate all questions of fact establishing that the Defendants had sµpervision or control over the methods or means of Plaintiff's work. However, Defendants Atlantic and lee in. .their tress-motion have . . . eliminated all questions of fact and demonstrated they did not violate labor law §200. Labor law §241(6) Labor Law §241(6) imposes a nondelegable duty upon an owner orgeneral contrnctor to provide reasonable and adequate protection and safety for workers and to com ply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor. GtantVCity of NewYorki 109 AD3d 961, 963 (2d Dept 2013); Misicki v Caradonna, 12 NY3d 511, 515 (2009); Rizzuto v LA Wenger Contr Co, supra at 348. An action brought pursuant to Labor Law §241(6) must allege a violation of a specific and concrete provision of the Industrial Code. Klimowicz vPoWe/1 Cove Assoc, UC, supra 'at 608 {2d Dept2013); Rossv .Curtis-Palmer Hydro-Elec Co, 81 NY2d494,503{1993); Kowa/ikvLipschutz,Bl AD3d 782;.783 {2d Dept20ll}; SamuelvATPDev Corp, 276AD2d685, 686{2d Dept2000}. The provision relied upon must set forth specific positive commands rather than general safety standards. Ross, supra at 501-502; Rizzuto, supra at 349. Plaintiff failed to eliminate all questions offact asto whethe:r the·alleged. sectipns.o.f the .lndll!i:trial Code are applicable herein and whether Defendants violated them; However, questions of fact remain asto whether Defendants violated them. Defendants, Atlantic and Lee, also failecl to meet their.burden .of demonstrating thatthe regulations do hot apply and that 110 violation of therrrexist.s:. 6 ······-·····.......... ______________________________ 6 of 7 [*FILED: 7] KINGS COUNTY CLERK 06/01/2021 03:30 PM NYSCEF DOC. NO. 160 INDEX NO. 501089/2017 RECEIVED NYSCEF: 06/01/2021 Vehicle & TrafficLaw Both Plaintiff and Defendants, Atlantic and Lee, have moved for summary judgment on the causes ofaction against said Defendants for violatio.ns of the YTL Neither party has eliminated all questions of fact as to the applicability of the aHeged VTL provisions and whether said Defendants violated the sections.alleged in the complaint. Conclusion Conflicting evidence has been submitted whether 1) it was the usual practice for a flagman or someone (possibly driver's assistant) to direct the trucks as they backed down . . Queens Street; 2) it was us ua Ip ractice to use barricades to block traffic enterih g Queens . . . Street; and whether Plaintiffwas holding the traffic control sign at the time of the accident. Defendants sufficiently raised questions of fact as to the application ofaUthe other Industrial Code and Vehicle and Traffic Law provisions. Under these circumstances, Plaintiffis not entitled ·to·summaryj udgment. Atlantic and Lee have also failed to demonstrate their entitlementto summaryjudg ment. The parties' remaining contentions are without merit. Accordingly; it is ORDERED:, that Plaintiff's motion (sequence #5) is denied in its entirety, and it is further ORDERED, that Atlantic and Lee's cross motion for summaryjudg ment (sequence #6) is granted to the extent that Plaintiffs cause of action pursuant to Labor Law §200 as against Defendants and Lee is dismissed. The remaining reliefrequest ed in the cross motion (sequence # 6) is denied. ... ENTER, lOREN BAILY-SCHIFFMAN JSC HON. LOREN BAILY-SCHIFFMAN 7 7 of 7

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