Veliu v. Verizon N.Y. Inc.

Veliu v Verizon N.Y. Inc. 2025 NY Slip Op 31221(U) April 11, 2025 Supreme Court, New York County Docket Number: Index No. 150918/2023 Judge: Lisa S. Headley 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. 150918/2023 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 04/11/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. USA S. HEADLEY PART 28 Justice ---------------------------------------------~~~~-HTWTrHH.ow.ow.o••X INDEX NO. 150918/2023 IMBERSON VELIU.

MOTION DATE 10/22./2024 Plaintiff.

MOTION SEQ, NO, OQ_L ~~ -v- VERIZON NEW YORK INC., DECISION + ORDER ON MOTION Defendant. -------------------·---..·-·-·-····................ ~--~-~-~------------X The folfowing e•filed documents, listed by NYSCEF documemt number (Motion 001} 26. 27, 28, 29, 30, 31, 32, 33. 34. 35. 36, 37.38, 39,40,41,42,43,44,47.49. 51,52,53,54,55,56, 57, 58.59.60,62, 63, 64, 65, 67, 68, 69, 70. 71, 72, 73, 74, 75. 76, 77 were read on th is motion to/for JUDGMENT•SUMMARY

Rockground The plaintiff~ Imberson Veliu, ('Plaintiff'), was employed as a ,:pitman~: by non•party and ~ub-contrnctor, Granite Avenue Utility Corporation (also known as lJc•Bar contracting Inc.) ("Grnnite"). Ddendant, Verizon Nc\v York lnc., (''DcfcndanC) hired (Jranitc to perform construction and cxcavatcon work at the rnad way in rrnnt o Cthe premi~e~ located at 400 Forest /\. venue, Staten bland, N~w York ("'worksi te"). Tn thls ptrsonal injury action, the plaintiff (1lleges that on September 20, 2022, he was working as a pitman in a trench tmt was approximateJy three feet below street levd to monitor the backhoe 1s mechanical bllckct while it was digging the trench.

The plaintiff alleges th..1.t the bucket was hoisting and lifting the curb about six to eight feet above the ground when an unsecured heavy section of the curh, weighing about l 50 pounds, rolled off the bucket an<l hm<le<l in the tr~m:h injuring the plaintiffs Jett leg and ankle. (NYSCEF Doc. No. 27), ln the complaint, the plaintiff asserts that the defendant violated fo!wr law§§ 2()(); 240(lj; 241(6); c1nd 1V. Y lndustriul Codes, induJing hut not limited to,/ 2 .\-TCRR §§ ~3-/, 7(aj(I) and (a)(2); 23-2.l(a)(]) and (a)(2); 23·2.3; 23·6.l; 23~6.2; wui 23-9.2. The dcfc11d<.1nl flied an Answer lD the Complaint. anJ as~ens aflirmati ve Jefense<:>, including that the ad1:, and/or omissions of the plaintiff ww.: lh..: sok proxhnate cause of the subject accident. (;'1/Y.'•;c1::.,·F Ooc. ,Vo. 29j.

Plainliif"'s Mo/ion /hr Summw'l' Judgmenl Before 1he Coun i '> the plainli ff s motion ltlr sLtrnmary ju<lgmenl (m lhe issue or the defendant's liahihly as lo the hdmr l.ffi,.r §2./0( l) un<l §241 (6) daim1:,. (\TSCF.F Doc. 7',/os. 26-41/ The ddendanl nled opposition to the motion. (See, l\/"YSCFF Doc. lfo. 51-58). Pluintiff nled a reply. (i\·TSCEF Doc ..""lo. 67-77).

1509-1 S/2023 VELIU, IMBERSON \IS, VERIZON NEW YORK INC. Page 1 of 5 Motion No. 001

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Lnbor Law $24(!111 L£~ hor Law § 2 ./0( I)~ also kn ovm as ''New York's Scaffo1d Law·, impo scs ··a bso lure liability on building ow11ers and contractors \vhose failllre to provide proper protection to workers ernplo:•ed on a conS,truction site proximately causes injury to a worker." See, Wilinski v. 334 E 92nd Hous. Dev. Fund. Corp., 18 N. '( .3 d 1: 7 (20 l I). The Scaffold law ~lates: '"laJl l conLnH;lors und o,vners and their agents. except owners of one and twG-fa.mily dv.,dlings \'.'ho contract for but do not direct or control the work, in the crcc1ion, demolition, repu.i1ing, al Lering, painting, cleaning or pointing or· a building or structure shall furnish or erect, or c:uu~t' to be furnished or erected for the performance of such labor, scaffolding, hoists, stays: ladders~ slings 1 hangers, hlocks~ pulleys. hrnccs, irons: ropes, and ulht'r <ltvice3 \vhich shall b~ ~o con~lructed, plac:~d und optrated a~ to give proper protection to a p~r.-;on ~o employed." See, N. Y Labor Law § 240(1).

The duty imposed by Lahor Law §240(1) is nondelegabk\ meaning that an owner or contractor \Vho violates this duty can he held !iahie for damages, regardless of wheth~r they exercised actual supervision or control 0vn the work. S(;!r;, r;, g., Hainu:s •'· iVe1v York Tel. Co., 46 N. Y.?.<l 132, 136-137 (1978). With respect to a falling object, Labor Law §240 f i) applies where the faUing of an object is related to '·a significant risk jnhcrcnt in ... the relative elevation ... at \vhich materials or loads must be positioned or secured." Rocnvich v. Consnlidared Edison Co., 78 N.Y.2d 509, 514 (1991). In asscssjng UabiJity under :Vew York\ .\'ca.f{old Law, the legislative intent behind Labor Law§ 240(1) is to ensure that appropriate safety measures arc in place) regardless of logistical challenges or inherent danger. See, e.g. Rocovich v. Cnnsohdu.frd F...dison Co., 78 KY.2d 509, 514 {1991 ).

To prevail on a Lahor Ltrn,- § 240( l) claim, the p!ainti ff must e~iahlish 1hal the vi olal ion of the starute was a proximate cause or hi:'i or her injurie-;. Rlake v..VeighborhooJ Hous. S(:'rvs. (~( New York City, Inc., 1 N. Y.3<l 280, 286 (2003). T.iability under the Scaffolding Law depends upon the injury having resulted from ''the; failure to use, or the imdequacy of ... a device:) within the purview o (. the ~latut~. Ortiz v. Varsiry Holdinfts, LLC 18 N. Y .3d 33 5, 340 (2011) (internaJ quotation marb omilt~<l). Funhem1ore, when two conflicting versions of an event arc presented, and under either version, safety devices arc ejthcr absent or inadequate to protect the plaintif( the existence of such conflicting accounts docs not create an i~sue of material fact sufficient tn preclude summa..ry judgment. See, Jw.;u/anu v, Cif_v o_fNew York, 214 A.D.3J 535 (l st D~p'l 2023).

Here, tl1e q uest1011 of p."lrmnount importance is \Vhcther there were adequate safety devices to protect tht' p bintiff. The plaintiff submits his deposition testimony where he attests that at the time or the 1nc1dent he wa~ \vorking in the trench about three feet belov,: street level directing a Granite operated backhoe to dig a trench for new V ~rizon PVC pipes, v,,ires and cable instul lation. (See, ]',l} }SC.tF Doc. ,-Vo. 33, llihibil f). Plaintiff attests that while in the trench lhc hackhoe's bucket hoisted a large piece of concrete curb material. that was unsecured. about {hrce to four feet 15091 S/2023 VELIU, IMBERSON 'o's. VERIZON NEW YORK INC. Motion No. 001

[* 2] 2 of 5 INDEX NO. 150918/2023 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 04/11/2025 above street lcvd and the heavy section of the unsecured concrele curb rolled off lhe backhoi;:'s bucket and fell about six to seven feet doVl-n into the trench and landed on Plainti Ir~ leg an<l ankle. (Id.) In opposttion~ the de fernb.nt submib lhe affidavit of Michael Castellano ( ''!\·fr.

Castcllano"} 1 who v,,·a~ a witne~s to Lhe subject accident. \1r. Castellano worked as the backhoe operator for Gran1le an<l attests that the '·plaintiffs accident occmrcd \Vhcn a piece of concrete curb overlay became detached from the underlying nub and sidewalk as part of the excavation v.-"ork taking place[T (See, NYSC.tF Doc 1\/0. 57, .8xhihit .A). :\-tr. Castellano also attests that the iicurb slid into the trench where plaintjff v,.:as standing land that \fr. Ca~tcl!ano J \Vas approximately to 25 feet a,~.:ay from plaintiff." (Jdj. However, Mr. Castellano claim~ "at no point did my backhoe bucket hoist any unsecured piece of concrete curb material into the air ... at no point did any piece of concrete curb roil off my backhoe hucket and fall into trench ... I did nm have- any piece of unsccur(:d concrete curb in my hack ho~ bucket al any time.·• id. Herc} this Court finds that although there are l\vo conl1ic11ng ver~ions of hov,: the accident occurred, under ei lher v1;rsi0n, safrty devices were either absent or inadequate to protect the plaintiff. Defendant's own witness. Mr. Castellano asserted that the slab of cuncrntc that fell on plaintiff became detoched from the underlying curb and sidc\1.--alk as prirt of the- (:Xcavation." id. [n this instance, the existence of such conflicting accounts docs not create an issue of material frtet sufficient to preclude summary judgment. See: Iuculono v. City of,Vel-1' York. 214 A.D.3d 535 (1st Dep't 2023). Thu'>, this Court finds that the plaintiffs motion for summary judgment as ro the defendant's liability on the issue of Lubor Lm...· fl./0(1) i~ grnnted Lahor /,aw §241(6) Thi; provision, Labor laH-· §241(6), requires ovmers and contractors to provide reasonable and ad~quate protection and safety for construction workers. Lahor Law §2-1-1 (6j; ue e.g. Genusi v. FSP 787 S'f."venrh LLC, 228 A.D.3d 459 (1st Dcp't 2024). Specifically, the statute "imposes a nondt'leguble duty of reasonable care upon ov,,:ncr~ and contractors to provide reasonable- and adequate protection and safety to persons employed in. or lawfully frequenting, all ar~a-; in which construction, excavation or demolition work is being perfrm111;d," Ochoo v. JEiH RNd fa-rare Co __ LLC.\ 223 AD.3d 747. 749 (2J Dep't 2024). ·'A~ a prediczite to J section 241(6) cause of action, a plaintiff m u-;t ul lege a viola! ion of a concrete specification promulgated by the Cornmisstoncr of the Department of Labor in the lndustrial Code." {See~ Perez v. 286 Schofr.v St. Corp., 134 Al13d 1085. l086 (2d Dcp 't 20 l 5) linternal ci1ation-; omi1te<l]. Here, the plaintifLugues that Labor Lmv i/2.:/1 (6j applies hecaust' th~ def~ndants violated two Industrial Code regulations, i2 NYCRR §!3- 9. -l(e)(1j and (2).

The provisions. 12 1\lYCRR §23-9.4(e)(l) and (2) provide that (1) any load handled by such equipment shall he suspen<le<l (1·om lh~ hucket or bm:ket arm by means of wire rope having a safety factor of ft)Ur. (2) such \Vire rope ~hall he conneckd by rneuns of either a closed shackle or a safety hook capable of· holding al lea.-;t t'our times the intended load.

12 ?-./"YCRR §JJ.9.4.

150':l 16/202:3 VEL.I U, IMBE RSON 11s, VERIZON NEW YORK INC, Page J of 5 Motlon No. 001

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In the motion, the plaintiff seeks to supplement the Bill or Particular~ hy indud1ng the violation or hidu-;trial codes, 12 NYCRR §23-9.4(ej(lj and (2)) and the plaintilT argues that the incl u-;ion or ~ucb provisions is appropriate because the "Plaintifl\, CompbinL, Ri 11 or Parl1rnlars {.md deposition testimony, as detaikd in our Statem~nt off ad~,- .. !'ully uppri~ed dd~ndant Verizon of this basis of its liability." The plaintiff argue-: that the Court frtely grants leave to amend or ::;,upplement pleadings. See,Adams v. Jamaica Hmpjta!, 25R A.D.2d 604 (1 ~t Dtp't 1999). Plaintiff contends that -~no new facts alkged arc needed to make out a violat1on or this Code provision." Spedicfllly, the allegations remain unchanged that while pert'om1ing constmction and excavation \vork, plaintiff was struck by unsecured elevated and falfo1g heavy concrete curb material that was being hoisted by construction an<l exc:uvation equipment. Therefore, the plaintiff argues that defendant Verizon will not be prejudiced for the inclusion of the above referenced industrial code vi o Iat ion~.

In ~upporl uf the motion, the plaintiff argues that the defendant fo.i led lo pro vi Je su(~ ust': ofth~ backhoe, or to provide other devices as dictated by ihc statute lo secur~ lhe t'lt'v~Led coni;ret~ wrb. (See, NYSCEF Doc. No. 42). P"laintiff submits hi~ deposition test1mony where he attests that his injuries were caused by "the unsecured lurge piece of concrete curb material falling from the back.hoc bucket from an elevated height oC 6-7 feet, striking l\fr. Veliu on his kg and ankle." (id.; see alsn, ,·\/YSCD·· !Joc . .-Vo. 33. the: pfrlintifTs EBT at ./-3, ,i7, 51 and 52j.

In opposition~ the <lefondant ~rgues, inter alia, there arc multiple questions of fact a~ to how the accident occurred, thl.ls, a <lispositive conclusion cannot be reached on this motton as to whether 11 J',.-"YC'RR 23- 9. 4(ej(J) and / 2 /'./YCRR 23-9.4(e)(2) apply here and/or whether they arc the proximate cause n Cthe" acci<lenl. (Se-e. ATJ.~S'CEF Doc. }lo. 5 J). The defendant argues that the plaintiff's co-workers dispute th~t thj; ac:cidenl h(ld anything to do with materials falling overhead from a backhoe. The de t~m.lanL ~ubmits the affidavit of Michael Casi:cllano~ the operator orthe backhoe, who v,,·jtnessed plaintiffs accident. Ylr. Castellano atte~ts that "plaint1 ff was .".>tanding in u lrench that was approximately 24 inches deep at the time or the a(;Cid~nt. \\·'hile standing in the trench, plf1intiff turned hainvay around to face behind him \vhen a portion of the concrete curb overhly detached from the underlying curb and slid into the trench where the plaintiff v,ms standing.

The piece of curb overlay was approximaLdy 4 inches tall by 4 inches \Vide by 6 feet long. At no point did Mr. Castel larn\ as the operalor of the backhoe, hoist Any un~ccurcd portion of the curb into the air; at no point did any pi tee of curb roll off of his back.hoc bucket and fall into the trench; at no point did he hav~ any pi tee of unsecured curb in his backhoe huekct; and, at no point was his backhoe huc..::ket ever directly over the plaintiff." (See, NYSCEF Doc..~~o. 5 land 57). l n add1ti0n, the defendcmt submits the affidavit of Jason Barrala, the co-ov,mer o f'pluintiff s employer, who attests that he was pr~senl at the job site on the evening of plaintiffs accident. (.\'n, NYSCEF Doc. ]\/o. 58). Mr. Barrata attests thal "on the ~vening of plaintiffs ZJccidcnt, plaintiffs employer provided an adequate supply of hracing l umh~r, and the phiintiff had 1n fact directed -;evenll of his co~\vorkers to brace portions of the trenc:h wi Lh thal lumber that had alreZJdy been ext::avated." (See, ATSC.tF Doc. Nos. 51 and 5H). Furthern1ort, the defendant claims that the

1509181:2023 VELIU, !MBERSON vs. VERIZON NEW YORK INC. Pago 4 of 5 Motion N □. D01

[* 4] 4 of 5 INDEX NO. 150918/2023 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 04/11/2025 phologrn.phs ~ubmitted in the plaintiff's motion paper~ show the \vorksik in vurying fom1 and condition. (See, 1VYSCEF Doc. No. 36 and 39).

First, tl1e Comt, within its discretion would pem1it pb1nli ff to ~upplement the Bill of Particulars by including the violation of lnJu'jlrial c:o<les, 12 NYCRR §23-9. 4(ej(l) and (2j, Herc, the defendant's opposition papers do not oppose lhi~ request, and no prejudice has been sho\vn. (See, :VYSCnF Doc. 1Vo. 51).

Furthermore, this Courl finds that the defendant raised triable issues of fact as to \Vhcther the al lcgcd Industrial {:ode violations of 12 A'YC'RR §2 3-9. 4(e)( 1) and (2) in relation to the backhoe use was a proximate cau..-:;~ orthe injury. See. Padilla v. Frances Scher vier llous. De•-'. Fund Corp., 03 A. D. 2d I 94, 196 ( 1.-:;l Dep 't 2 00 3). Plaintiff a sscrts he was caused to be injured by materials falling overhead from a backhoe, hov,,cvcr Mr. Castellano's affidavit attests, infrr alia, he opernk'd the backhoe 20 to 25 kct away from plainti n~ and at no point did he lmve any piece of unsecured curb in his backhoe bucket; and, al no point v.·~ hi.s, buckhoe bucket ever directly over the plaintiff." (See, /,./}'SC:f.:F fJoc ..Vo. 51 and 57). Here, there arc issues of fact regarding. the proximate cause orlhe ac.::ci<lenl, lhus the portion of Pk1intiff' s motion for summary judgment as to l,abor Law §241 (6) is denied. Padilla 11. Frcmce.t Schervier llom. Dev. Fund. Corp., supra ut 198.

Accordingly, it is hereby ORDERED the portion nf the plaintiff's motion lc.lr ~urnmmy judgment on the issue of the defendant's liahility a~ lo th~ Labor Law §240(1) is GR../1.NTED; and it is further OROERF.:D the portion of'the plaintiffs motion for summary judgment on the issue of the defendant's liability as to the rabor l.mt' §24U6j is DENIED~ and it is further ORDERE.D lhut Pluintiff's request to Sllpplemcnt the llill of Particulars by inc.luding the violation oflnJuslriul rndes, 12 }iYCRR §23-9.-J(e)(J) and (2j, is GRANTED; and it is furltier ORDERED that any requested relief sought not expressly ad<lres~ed herein has nonetheless been considered; and it is further O.llilEH.ED that \Vi thin 30 days of entry, plaintiff shall serve a copy of this DecisionlOrder upon the defendant \Vith notice of entry.

This con.~titutes the De(;i~ion and Order of the Court.

4111 /2D25 DATE LISA S. HEADLEY, J.S.C.

~ CHE:CKONE:: CA:S E DISPOSED NON-FINAL DISPOSITION GRANTED □ DENI ED GRANTED lN PART □ OTHE:R APP LIGATION: SETTLE: ORDE;R SUBMIT ORDER c; HECK IF" APPROPRIATE: INCLUDES TRA NS!'E: FVFi:EASSIG N FIDUCIARY APPOINTMENT □ REFER~NCE

150918[2{123 VEU LI. IMBER$ ON vs. VERIZO~ NEW YORK INC. Pag0 6of 5 Motion No. 001

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