Peralta v Hunter Roberts Constr. Group LLC

2024 NY Slip Op 31515(U)

April 29, 2024

Supreme Court, New York County

Docket Number: Index No. 159317/2018

Judge: Suzanne Adams

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.
NYSCEF DOC. NO. 111 

INDEX NO. 159317/2018 

RECEIVED NYSCEF: 04/29/2024 

PRESENT: 

SUPREME COURT OF THE STATE OF NEW YORK 

NEW YORK COUNTY 

HON. SUZANNE ADAMS PART 

Justice 

39M 

----------------------------- ---------X INDEX NO. 159317/2018 

JOSE PERALTA, 

Plaintiff, 

-vHUNTER ROBERTS CONSTRUCTION GROUP LLC,RXR 

GARVIES P1 BUILDING H OWNER LLC, 

Defendant. 

--------------------X 

HUNTER ROBERTS CONSTRUCTION GROUP LLC, RXR 

GARVIES P1 BUILDING H OWNER LLC 

Plaintiff, 

-againstALL TECH INC. D/B/A GOLDEN EAGLE FRAMING LLC, MB 

HOME REMODELING LLC, GOLDEN EAGLE FRAMING, 

LLC., GOLDEN CONTRACTOR MANAGEMENT, LLC 

Defendant. 

MOTION DATE N/A 

MOTION SEQ. NO. 002 

DECISION + ORDER ON 

MOTION 

Third-Party 

Index No. 595238/2019 

-------------------- --------------- ------X 

The following e-filed documents, listed by NYSCEF document number (Motion 002) 68, 69, 70, 71, 72, 

73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 

100, 101, 102, 103, 104, 105, 106, 107, 108, 109 

were read on this motion to/for JUDGMENT-SUMMARY 

Upon the foregoing documents, it is ordered that defendants/third-party plaintiffs' motion 

is granted in part and denied in part, and plaintiffs cross-motion is denied. This personal injury 

action arises out of an incident that occurred on August 30, 2018, at the site of a construction 

project at Garvies Point Road in Glen Cove, New York, owned by defendant/third-party plaintiff 

RXR Garvies Pl Building H Owner LLC (the "Owner"). The Owner retained defendant/thirdparty plaintiff Hunter Roberts Construction Group LLC (the "CM") to serve as construction 

159317/2018 PERALTA, JOSE C. vs. RXR REALTY LLC 

Motion No. 002 

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manager for the project, and the CM retained third-party defendant Golden Eagle Framing LLC 

("Golden Eagle") to perform certain work necessary for the construction of timber framing for the 

project. The subcontract between the CM and Golden Eagle required Golden Eagle to, inter alia, 

procure certain insurance policies and name both the Owner and the CM as additional insureds. 

Golden Eagle subcontracted a certain portion of its work on the project to third-party defendant 

MB Home Remodeling, LLC ("MB"), who was plaintiffs employer. On the date in question, 

plaintiff alleges he was at the work site installing trusses from a defective temporary scaffold which 

collapsed and caused him to fall to the ground, sustaining personal injuries. 

Plaintiff commenced this action in October 2018, asserting, in sum, common-law 

negligence claims as well as claims under Labor Law § § 200, 240(1 ), and 241 ( 6). 

Defendants/third-party plaintiffs now move pursuant to CPLR 3212 for summary judgment 

dismissing plaintiffs complaint and granting their claims for contractual indemnity over and 

against third-party defendants Golden Eagle and MB. Golden Eagle and MB partially oppose the 

motion inasmuch as it pertains to summary judgment as against them. Plaintiff opposes the motion 

and cross-moves for summary judgment on the issue ofliability. Defendants/third-party plaintiffs 

oppose the cross-motion. 

The proponent of a summary judgment motion must make a prima facie showing of 

entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the 

absence of any material issues of fact." Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 (1986) 

(citing Winegrad v. New York University Medical Center, 64 N.Y.2d 851 (1985)); see also 

Winegrad, 64 N.Y.2d at 853. The party opposing a motion for summary judgment is entitled to 

all reasonable inferences most favorable to it, and summary judgment will only be granted if there 

are no genuine, triable issues of fact. Assaf v. Ropog Cab Corp., 153 A.D.2d 520, 521-22 (1st 

159317/2018 PERALTA, JOSE C. vs. RXR REALTY LLC 

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Dep't 1989). Further, New York Labor Law§ 200 codifies the common law duty of owners or 

general contractors to provide a safe construction site workplace, with the "implicit precondition 

to this duty ... [being] that the party charged with that responsibility have the authority to control 

the activity bringing about the injury .... " Russin v. Louis N Picciano & Son, 54 N.Y.2d 311, 

316-17 ( 1981 ). Labor Law § 240 imposes liability only upon an owner or general contractor, or a 

third party who has been delegated the duties outlined in the statute and thus obtains the authority 

to supervise and control the work and becomes a statutory "agent" of the owner or contractor. 

Russin, 54 N. Y.2d at 317-18. 

As an initial matter, plaintiff does not oppose that portion of the motion seeking dismissal 

of the Labor Law § 241 ( 6) claim, thus said claim is dismissed. However, the record before the 

court precludes the granting of summary judgment to either the movants or the cross-movant on 

the§§ 200 and 240(1) claims, as the parties present conflicting evidence which raises significant 

questions of fact. For example, although its contract provided that Golden Eagle was solely 1 1 

responsible for supplying and constructing the scaffolding at issue, plaintiff testified that the CM 

was involved in discussions regarding the installation and use of scaffolding and approved a plan 

on how to build them. The Owner and CM assert that plaintiff improperly constructed the disputed 

temporary scaffolding, but plaintiff maintains that it is undisputed that no one with personal 

knowledge has testified to that effect. Such factual issues are properly determined by a trier of 

fact. 

With respect to the defendants/third-party plaintiffs' contractual indemnity claims (as per 

the Notice of Motion; the supporting papers also refer to common law indemnification), same are 

barred by the anti-subrogation rule. See Washington v. New York City Indus. Dev. Agency, 215 

A.D.2d 297, 298-99 (1 st Dep't 1995). Further, any award of conditional indemnification against 

159317/2018 PERAL TA, JOSE C. vs. RXR REAL TY LLC 

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an excess carrier is premature at this stage of the litigation, where there has yet to be an ultimate 

settlement or judgment. Oprea v. New York City Haus. Auth., 239 A.D.2d 119, 120 (1 st Dep't 

1997). 

Accordingly, it is hereby 

ORDERED that defendants/third-party plaintiffs' motion is granted to the extent that any 

claims under Labor Law § 241 ( 6) are dismissed, and is otherwise denied; and it is further 

ORDERED that plaintiffs cross-motion is denied. 

This constitutes the decision and order of the court. 

04/29/2024 

DATE 

CHECK ONE: 

APPLICATION: 

CHECK IF APPROPRIATE: ~ CASE DISPOSED 

GRANTED □ DENIED 

SETTLE ORDER 

INCLUDES TRANSFER/REASSIGN 

159317/2018 PERALTA, JOSE C. vs. RXR REALTY LLC 

Motion No. 002 

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SUZANNE ADAMS, J.S.C. 

NON-FINAL DISPOSITION 

GRANTED IN PART 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

□ OTHER 

□ REFERENCE 

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