### 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 NEWYORK 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 ofa construction project at Garvies Point Road in Glen Cove, NewYork, 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

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### manager for the project, and the CM retained third-party defendant Golden Eagle Framing LLC ("Golden Eagle") to perform certainworknecessary for the construction oftimber framing for the project. The subcontractbetween the CM and Golden Eagle required Golden Eagle to, interalia, 

### procure certain insurance policies and name both the Owner and the CM as additional insureds. Golden Eagle subcontracted a certain portion ofits work on the project to third-party defendant MB Home Remodeling, LLC ("MB"), who was plaintiffs employer. On the date in question, plaintiffallegeshe wasatthe work siteinstallingtrusses from adefectivetemporary scaffoldwhich 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 motioninasmuchas itpertainsto summaryjudgmentas againstthem. Plaintiffopposesthemotion and cross-moves for summaryjudgmentonthe issue ofliability. Defendants/third-party plaintiffs oppose the cross-motion. The proponent of a summary judgment motion must make a primafacie 

### showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence ofany material issues offact." Alvarezv. 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 summaryjudgment is entitled to all reasonable inferences most favorable to it, and summaryjudgmentwill only be grantedifthere are no genuine, triable issues offact. Assafv. Ropog Cab Corp., 

### 153 A.D.2d 520, 521-22 (1st

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Dep't 1989). Further, New York Labor Law§ 200 codifies the common law duty ofowners or general contractors to provide a safe construction site workplace, with the "implicitprecondition to this duty ... [being] thatthe party chargedwiththat 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" ofthe owner or contractor. Russin, 54 N.Y.2d at 317-18. As an initial matter, plaintiffdoes not oppose thatportion ofthe motion seeking dismissal ofthe Labor Law § 241(6) claim, thus said claim is dismissed. However, the record before the court precludes the granting ofsummaryjudgment 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, plaintifftestified thatthe CM was involved in discussions regarding the installation and use ofscaffolding and approved a plan onhowto buildthem. The Ownerand CMassertthatplaintiffimproperly constructedthe 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 ofMotion; the supporting papers also referto commonlaw 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 ofconditional indemnification against

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### an excess carrier is premature at this stage ofthe litigation, where there has yetto be an ultimate settlement orjudgment. 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 plaintiffscross-motion is denied. This constitutes the decision and order ofthe 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
4 of 4 SUZANNE ADAMS, J.S.C. NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

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