De Beras-Cotes v. CPC Norfolk Senior Hous. Dev. Fund Corp.

De Beras-Cotes v CPC Norfolk Senior Hous. Dev.

Fund Corp. 2024 NY Slip Op 34565(U) December 19, 2024 Supreme Court, Kings County Docket Number: Index No. 532592/2021 Judge: Devin P. Cohen 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: KINGS COUNTY CLERK 01/03/2025 09:46 AM INDEX NO. 532592/2021 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 01/03/2025

Supreme ~ourt of the State of New York Index Number 532592/2021 _ Comity of Kings Seq.002 Part LLl DECISION/ORI>ER Recitation, as required by CPLR §2219 (a), of the papers considered in the review of this Motion · TOMAS:DE BERAS~COTES~ Papers Numbered Notice ofMotion artdAffidavitsAnnexed,.,. _!_ Order to.Show Cause and Affidavits Annexed. _ Plaintiff, AnsweringAffidavits .............. , ..... __2_ ReplyingAffidaviti;" ..... , .. , ...•. , ....... -1.....

Exhibits .... : ......... , .. , , . , ...... , .. , .:Yru:. against Other ........•.......... , ........ .

CPC NORFOLK SENIOR HOUSING DEVELOPMENT FUND CORPORATION, Go NORFOLKLLC, MONADNOCK CONSTRUCTION, INC., AND JNJ REBAR, LLC,

Defendants.

Based on the foregoing papers, defendants' motion for summary judgment (Seq. 002) is decided as follows: Procedural Posture Plaintiffcommenced this action to recover for damages he claims to have sustained on December 3, 2 021, _when he fell at a construction -site· 1ocated at -64 Norfolk Street, New York, NY 10002 (the premises}; The parties entered a stipulation 011 April 15, 2022, ·agreeing that for - the purposes of this lawsuit, CPC Norfolk Senior Housing Development Fund Corporation (CPC) owned the premises. It is undisputed that Go Norfolk LLC (Go Norfolk) was also an owner for the purposes -of the Labor. Law. It is• further undisputed that the· owners contracted with Monadnock Gonstruction Inc . . (Monadnock) to. provicle construction services, and that Monadnock st:ib-contractedLonglsland Concrete (LIC) as a concrete sub-c.ontractor.. LIC sub- contractecl JNJ Rebar, LLC (Jli.JJ) to install re~bar as part of LiC's concrete·pouring. It is

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Factual Background The. plaintifftestified as follows: Oh the• morning of his accident,. plaintiff was tasked with pol.iring concrete (Coates EB T at 5 0). Plaintiff was working on the 11 iii floor of the premises, which was comprised ofalayer ofplywood with fourlevels ofrebar cm top ofthe plywood (id. at 43). After completing a concrete pour, plaintiff broke down the connected concrete hoses and began to take a length of hose to a separate area to clean out the concrete{id. at 63--64, 71-72). While carrying the hose through the rebar network, plaintiff testified that his foot was caught in therebat because the rebar was untied, and he fell (id. at72).

Cazie Pope, plaintiff's co-worker (Pope EBTat2), testified as follows: The structural rebar for concrete pours is tied off at one.,.foot intervals(id at22). lvlr. Pope estimated that ninety to ninety.cfive percentofthe rebar was tiedtogether(id.). The workers werenottaughta specific way to walk across the rebar grid (id. at 24). Mr. Pope was working alongside plaintiff on the day he ''gothurt'; (id at 25), arid plaintiff was a competent worker (28).

James Spence, superintendent for the Norfolk Project and representative of the owners; testified that concrete pouring cannot begin until the rebar is tied together because it would compromise the structural integrity of the building (Spence EBT at72~7J). Edward Monroy, structural special inspector for non-party DeSimone Consulting Engineers at the Norfolk Project, testified as. fo Hows:· Mt. Monroy was responsible for ensuring tliat the· re bar .installa:tioh. w&s correctly pla:ced (Mr. Mqnroy EBT Ett 22....23). Mr. MonrQy inspected 't}le re bar the. day ptiot to when the concrete was poured on December 3, 2021; and again on the morning .ofplaintiff' s

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Analysis Labor Law § 240 (1) Defendant's. motion for summary j udgmeilt on plaintiffs Labor Law §·240 (I} claim is granted withoutopposition; there is no indication in the record that plaintiffs alleged accident was caused by a qualifying gravity~related risk (see Castro v Wythe Gardens, LLC, 217 AD3d 822· [2d Dept 2023 ]).

Labor Law § 241 (6) ' '

To prevail on a cause of action pursuant to Labor Law§ 241 (6), plaintiff must show that he was'( 1) on a job s_ite, (2) engaged in qualifyingwork, and (3} suffered an injury, (4) the proximate cause of which was a violation ofan Industrial Code provision (Moscaii v Consolidated Edison Co. ofN. Y, Inc.; 168 AD3d 71 7, 718 [2d Dept 2019]}. Plaintiff's Labor Law§ 241 (6) claim is predicated on a violationoflndustrial Code 23-1.7 (e), which concerns trippi11g hazards at a construction site.

_Defendant argues that the re bar grid was integral to the work of pouting a concrete floor.

Mr. Momoy's and Mr. Pope's affhmations containing the conclusory statement that"rebar and PVC piping ... were all an integral part ofthe>Con.crete pout" (Manry aff. at ,r 10; Pope aff. at~ 9) areinadequate to support a motion for summary judgment (Mitchell v 148th Street Jamaica Condominium,221 AD3d 596 [2d Dept 2023]). However, defendant's submission of Mr. Spence''stestimony that the rebar needed to be tied do.wn and 1n place before the concrete pouring couid occur and Mr. Monroy's corroborating testimony are sufficient to make out 1ts

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FILED: KINGS COUNTY CLERK 01/03/2025 09:46 AM INDEX NO. 532592/2021 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 01/03/2025 prirna facie case that the rebar grid plaintiff tripped on was integral to his work (see Mitchell v Caton on the Park, LLC, 167 AD3d 865, 866 [2d Dept 2018]).

Plaintiff opposes cm the basis that, although a rebar grid may have been integral to ·pouring concrete,. lll):tied rebar was not. Plaintiff testified unequivocally that the re bar he tripped on was untied,. and provided an affidavit from his co-worker Kerron Williams which c:orrobora_tes his testimony that the rebar was untied (Williams aff. at~J); There is no indication in the record that plaintiff was responsible for constructing the rebargrid or ensuring that the rebar' was tied down.

The ''integral to the work",.doctrine "applies only when the dangerous condition is inherent to the task at hand, and not .... when a defendant or third party's negligence created a danger that was avoidable without obstructing the work" (Bazclaric v A/mah partners LLC, 41 NY3 d 310 [2024]). The function of the court is not to make credibility determinations between two parties on a motion for summary judgmenf(see Schultheis v Arcate, 216 AD3d 1018 [2d Dept 2023]), and here there.is a material issue of fact.as to whether the rebar on which plaintiff tripped was untiec;L Therefore, defendant's motion is deniedas to plaintiffs Labor Law § 241 (6)claim.

Labor Law §200 Labor Law § 200 is a codification of the common-law duty Of landowrters and general coiltrnctorsto provide workers with a reasonably safe place to work" (Pacheco v Smith, 128 AD3 d 92(5, 926 [2d Dept 2015]). Thus, claims for negligence and for violations of LaborLaw § are evaluated using the. same negligence analysis ( Or(ega v Puccia, 5 7 AD3d 54, 61 [2d Dept 2008]). "Where a pren1ises condition is at issue, property owners .rriay be held liable. for a.

vfolatiori of Labor Law § 2 00 if the owner either created, th~ dangeroµs cqndition that caused the

There is, as noted in the above section on Labor Law§ 241 (6); already a material q11estion of fact about whether therebar was untied. The following analysis therefore concerns whether, even if the rebar were untied, defendants would be entitled to summary judgment on plaintiff sLaborLaw § 200 claim. Defendants contend that this case should be categorized as a means and methods case for the purpose of Labor Law § 200 analysis; plaintiff contends that the case should be analyzed under a dangerous condition analysis. Therefore, the court must determine whether plaintiff's claim is viable under either analysis (see Reyes v Arco Wentworth Management Corp., 83 AD3d 47 [2d Dept 201 l]). ·With respect to defective methods and materials~ defendants contend that they did· not direct, control, or supervise plaintiff's work, b11t that LIC did. However, this argument misarticulates the standard under Labor Law § 200. A party need not have actually directed or controlled the work, but rather hmst have possessed the authority to direct and Supervise the work That duty cannot be delegated, even if the contractor hires subwcontractors to assist in its accomplishment (Tomyuk v: Junejield Assoc., 57 AD3d 51 Sj 520 (2d Dept. 2008]); Since Mr. Spence admitted that he \1/as· present on the site and .since JNJ Re b:ar Wa$ responsible for installirig the.re bar, there ate minimally questions of fact about Whether .Monadnock and. JNJ had .authority over the work {tying the tebaf grid) that plaihtiffalleges .caused. his irtj ury. There is no evidence, however,that CPC and Go.Norfolk (the owners) had authority a:t the site.· .5

With respectto analyzing the untied rebar as a dangerous c~ndition, ''a defendant may be liable under Labor Law § 200 ifit either created the dangerous condition. that caused the accident or had actual or constructive notice of the dangerous condition" (Estrella v ZRHLE Holdings, lLC,218 AD3d 640 (2d Dept 2023 ]). Since Mr. Spence was present on the site and because JNJ was responsible for installing the reba:r, there are again minimally questions of fact as to whether Monadnock had notice (actual or constructive) of untied rebar and whether JNJ caused or created the dangerous condition. The motionis denied as to these entities.

Defendants' motion is granted~ however; as to CPC Norfolk and Go Norfolk. The owners did not retain Mr. Monroy; s company; did not have representatives on site, and therefore were not on notice of a potentially dangerous condition (see Ortega, supra at 61). Plaintiffs Labor Law § 200 claims are dismissed againstthe owners.

Conclusion Defendants' motion for summary judgment (Seq. 002) is granted as to plaintiffs Labor Law § 240 (1) claim as to all defendants and his Labor Law § 200 claim mi against the owners only: the motion is otherwise denied.

This constitutes the decision and order of the court.

December 19. 2024 DATE DEVINP.C Justice of the Supreme Court

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