### Garcia v 100 Church Fee Owner LLC 2024 NY Slip Op 32185(U) June 28, 2024 Supreme Court, New York County Docket Number: Index No. 158554/2018 Judge: Mary V. Rosado 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. 190 INDEX NO. 158554/2018 RECEIVED NYSCEF: 06/28/2024 

### SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO Justice -------------------------------,---------------------------------X

GEREMIAS J. BERGANZA GARCIA, Plaintiff,

- V - 100 CHURCH FEE OWNER LLC, 100 CHURCH STREET TENANT, LLC,SL GREEN REALTY CORP., R & S CONSTRUCTION CONTRACTING, INC.,STEPHEN FOY MECHANICAL SERVICE CORP.,Defendant. ---------------------------------------------------------------------------------X

100 CHURCH FEE OWNER LLC, SL GREEN REALTY CORP., R & S CONSTRUCTION CONTRACTING, INC. Plaintiff,-againstMELLIFONT CONSTRUCTION CORP. Defendant. --------------------------------------------------------------------------------X PART 33M
INDEX NO. MOTION DATE 158554/2018 04/27/2024 MOTION SEQ. NO.
___ 00_3
__ _
DECISION + ORDER ON MOTION

Third-Party Index No. 595447/2019

The following e-filed documents, listed by NYSCEF document number (Motion 003) 114, 115, 116, 117, 118,119,120,121,122,123,124,125,126,127,128,129,130,131,132,133,134,135,136,137,138, 139, 142, 143, 144, 145, 146, 147, 148, 149, 173 were read on this motion to/for 

### JUDGMENT-SUMMARY Uponthe foregoing documents, and after oral argument, whichtookplace onFebruary 27, 2024, where Timothy Norton, Esq. appeared on behalfofPlaintiffGeremias J. Berganza Garcia ("Plaintiff'), Benjamin B. Petrofsky, Esq. appeared on behalf of Defendant Stephen Foy Mechanical Service Corp. ("Stephen Foy"), Gerard VanLeuven, Esq. appeared onbehalfofthirdparty DefendantMellifontConstructionCorp. ("Mellifont") andLyndsey Caldwell, Esq. appeared
onbehalfofDefendant/Third-Party Plaintiffs 100 Church Fee Owner LLC ("Owner"), SL Green Realty Corp. ("SL Green"), and R&S Construction Contracting, Inc. ("R&S") (collectively "Cross

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### [* 1]NYSCEF DOC. NO. 190 INDEX NO. 158554/2018 RECEIVED NYSCEF: 06/28/2024


### Movants"), Plaintiffsmotion for summaryjudgmenton his Labor Law §240(1) claim is granted, andhis motiononhis LaborLaw §241(6) claim is denied as academic. The CrossMovants' motion for summary judgment dismissing Plaintiffs claims and seeking summary judgment on their claims is denied. 

### I. Background This is an action for personal injuries arising from alleged Labor Law violations. Plaintiff
was employedby third-party defendant MellifontDemolition & Construction (NYSCEF Doc. 118 at 20: 16-19). In June of2018, Plaintiffwas working at the construction site located at 100 Church Street (the "Worksite") (id. 

### at 56:11-13). Plaintiffwas involved in demolition work (id. 

### at 57:13- 15). Plaintiffwas injured in an accident at the Worksite onJune 23, 2018 (id. 

### at 67:21-23). Onthat day, Plaintiffwas instructed to take part in a wall demolition, demolish a door frame, and to put together a scaffold (id. 

### at 73 :9-15). This took place in the basement (id. 

### at 75:22-23). The scaffold
was being put together near an elevator shaft (id. 

### at 77:4-11). There was no ceiling in the area where the scaffold was being erected in preparation for the elevatorto be placed (id. 

### at 77: 11-15). 

### It was in this location that a metal object from a higher floor fell down the elevator shaft being built and struck Plaintiff(id. 

### at 78: 12-20). The Worksite was owned by 100 Church Fee Owner LLC (NYSCEF Doc. 122 at 13-14). It 

### was managed by SL Green Realty Corp. (id. 

### at 13). A representative ofSL Green testified that SL Green was the agent of 100 Church Fee Owner (id. 

### at 15-16). The general contractor at the Worksite was Defendant R&S Construction (NYSCEF Doc. 120 at 14:10-14). William Malm served was the labor foreman for R&S Construction on the date ofPlaintiffs accident (id. 

### at 16- 17). He testified it was hisjob to supervise laborers on the Worksite (id. 

### at 18: 17-18). He testified that without proper overhead protection, such as netting, or plywood, workers should not be

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### [* 2]NYSCEF DOC. NO. 190 INDEX NO. 158554/2018 RECEIVED NYSCEF: 06/28/2024
working in an elevator shaft (id. at 22:3-25). Mr. Malm could not testify with certainty that there
was any protection for the elevator shaft where Plaintiffwas injured (id. at 24:12-22; 25:4-9). Mr. Malmtestified the metal objectthat struck Plaintiffwas a welding clamp which came from the 8th floor, bounced off the second floor, and entered the elevator shaft where it ultimately struck Plaintiff(id. at 33: 11-20). Stephen Foy, the plumbing contractor, was working in a utility shaft directly nextto the elevator shaftwhere Plaintiffwas working. StephenFoy employees wereusing the welding clamp (id. at 38). Mr. Malmconcededthat iftherehadbeenproperprotectionbetween the utility shaft where the plumbers were working and the elevator shaft where Plaintiff was working, the accident would not have happened (id. at 45:4-14). II. The Motion and Cross-Motion A. Plaintiff's Motion Plaintiffmoves for summaryjudgment on his Labor Law § 240(1) claim against Owner, SL Green, and R&S. Plaintiffargues these are proper 240(1) defendants because Owner owned the premises at the time ofthe accident, SL Green was Owner's statutory agent, and R&S was the general contractor. Plaintiff argues that the welding clamp which struck him and fell through a hole was improperly secured in violation of§ 240(1). In opposition, the Cross Movants argues that the welding clamp which struck Plaintiff was not required to be secured and therefore the elevation-related hazard here was unforeseeable. In reply, Plaintiffargues that where there is an accidental dropping of a building material or tool which strikes a worker due to insufficient overhead protection, there is aprima facie Labor Law §240(1) violation. Plaintifflikewise argues precedent establishes there is no need for Plaintiffto establish foreseeability in meeting hisprima facie burden on a §240(1) claim.

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B. Cross Movants' Cross-motion INDEX NO. 158554/2018 RECEIVED NYSCEF: 06/28/2024

The Cross Movants seek dismissal ofPlaintiffs Labor Law §§ 200, 240(1), and 241 (6) claims. 1 Cross Movants also seek summary judgment on its cross claims against Third-Party Defendant Mellifont and Stephen Foy pursuant to the contracts executed with those parties. The cross-motionis opposed by numerousparties. StephenFoy opposes and arguesthat CrossMovants
are not entitled to summaryjudgment on their cross claims because their own negligence caused the accident. Mellifont also opposes and saysthe indemnificationclause is unenforceable. In reply, Cross Movants attempt to argue they are free from negligence and are therefore entitled to summaryjudgment on their crossclaims. 

### III. Discussion A. Standard "Summaryjudgment is a drastic remedy, to be granted only where the moving party has tendered sufficient evidence to demonstrate the absence ofany material issues offact." (Vega v Restani Const. Corp., 18 NY3d 499, 503 [2012]). The moving party's "burden is a heavy one and
on a motion for summaryjudgment, facts must be viewed in the light most favorable to the nonmoving party." (Jacobsen vNew York City Health andHasps. Corp., 22 NY3d 824, 833 [2014]). Once this showing is made, the burden shifts to the party opposing the motion to produce evidentiaryproof, in admissible form, sufficientto establishthe existence ofmaterial issues offact which require a trial. See e.g., Zuckerman v City ofNew York, 49 NY2d 557, 562 [1980]; Pemberton v New York City Tr. Auth., 304 AD2d 340, 342 [1 st Dept 2003]). Mere conclusions of law or fact are insufficient to defeat a motion for summaryjudgment (see Banco Popular North Am. v Victory Taxi Mgt., Inc., l NY3d 381 [2004]).

1Because the Court grants Plaintiffs motion for summaryjudgmenton his Labor Law §240(1) claims, discussion regarding §§ 200 and 241(6) is not needed as liability underthese sections is moot.

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B. Plaintiff's Motion INDEX NO. 158554/2018 RECEIVED NYSCEF: 06/28/2024

Plaintiffis granted summaryjudgmentas to liability onhis Labor Law §240(1) claim. Itis undisputedthatPlaintiffwas engagedin demolitionworkwhen awelding clamp fell from the eight floors, bounced onthe second floor through a hole/gap, and proceeded to fall throughthe elevator shaft where Plaintiffwas assembling a scaffold. It is likewise undisputed that the hole/gap which the welding clamp fell throughwas unsecuredbutafterthis accidentwas securedto prevent similar accidents. It is further undisputed that the Cross Movants are each proper §240(1) defendants as they ownthe premises, are the statutory agent ofthe owner, or were the general contractor. As the First Department has recently held, in the context offalling objects, the risk to be guarded against under §240(1) is the unchecked or insufficiently checked descent ofthe falling object (Torres-Quito v I61I LLC, 207 NYS3d56 [1stDept2024]). Contraryto the CrossMovants' opposition, a Plaintiffis not required to showthat the object was being hoisted or secured when it fell (id.). Although Cross Movants argue that the Court of Appeals decision in Narducci v Manhasset BayAssociates, 96 NY2d 259 [2001

### Jis analogous, this Court disagrees. In Narducci,
no one was working on the window from which glass fell, nor was there evidence that anyone worked on that window during the renovation. Here, there is direct evidence that Stephen Foy employees while working on plumbing accidentally dropped the welding clamp while Plaintiff
was working on demolition. The welding clamp was not properly secured, and Plaintiff was entitled to overhead protection to prevent the unsecured clamp from injuring him (see, e.g. Harsanyi v Extell 41JO LLC, 220 AD3d 528 [1st Dept 2023]; Mayorquin v Carriage House Owner's Corp., 202 AD3d 541 [1st Dept 2022]; Garcia v SMJ210 West 18 LLC, 178 AD3d 474 [1st Dept 20191; Hill vAcies Group, LLC, 122 AD3d 428 [1st Dept 2014]).

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### [* 5]NYSCEF DOC. NO. 190 INDEX NO. 158554/2018 RECEIVED NYSCEF: 06/28/2024

The undisputed facts and a plethora ofprecedent establish a Labor Law §240(1) violation entitled Plaintiffto summaryjudgment. Accordingly, Plaintiffs motion is granted. C. Cross-Motion i. Dismissal ofPlaintifrs Labor Law Claims As a preliminary matter, the portion ofthe Cross Movants' motion seeking dismissal ofthe Labor Law §§ 200, 240(1), and 241(6) claims is denied as moot as this Court has already found Plaintiffis entitledto liability againstthese defendants under §240(1) (Malan v FSJRealty Group IILLC, 213 AD3d 541, 542 [lstDept 2023]; Correto v OnexReal}.'state Partners, 209 AD3d483, 484 [1st Dept 2022]). ii. Third-Party Claims against Mellifont and Cross Claims against Stephen Foy The Cross Movants are denied summaryjudgmentontheir third-party and crossclaims for
common law indemnity. The Cross Movants and their agents were responsible for coordinating the various trades at the Worksite as well as overseeing safety on the worksite. Viewing the facts in the light most favorable to the non-movant, here, Mellifont and Stephen Foy, there is at a minimum a triable issue offact as to whether the Cross Movants were negligent in adequately supervising the trades and ensuring there was proper protection at the Worksite (see generally, AiellovBurnsIntern. Sec. Services Corp., 110 AD3d234 [1stDept2013] [common-lawindemnity inappropriate where party seeking indemnification has participated to some degree in wrongdoing_]). Indeed, the hole through which the clamp fell was eventually sealed by R&S personnel (NYSCEF Doc. 120 at 102:15-19; 105:11-14) and had R&S personnel been aware of the hole, they would have sealed it to prevent the accident (id. at 117:7-19). Given this testimony, the Cross Movants are not entitled to summary judgment on their claim for common law indemnification.

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For the same reasons, any grant of summary judgment on Cross Movants claim for contractual indemnification would be premature (York v Tappan Zee Constructors, LLC, 224 AD3d 527, 529 [1st Dept 2024]; BradleyvNYULangone Hospitals, 223 AD3d 509, 511-512 [1st Dept 2024]; Spielmann v 170BroadwayNYCLP, 187 AD3d 492 [1st Dept2020] [ where atriable issue of fact exists regarding the indemnitee's negligence, a conditional order of summary judgment for contractual indemnificationmust be denied as premature]). Cross Movants motionfor summaryjudgmentonits third-party claimagainstMellifontfor failure to procure insurance is denied without prejudice, with leave to renew in the event the primary coverage of$1,000,000 is exhausted and the excess carrier denies coverage to the Cross Movants. Apartymovingfor summaryjudgmentonitsclaimfor failure to procureinsurancemust show correspondence from the insurer ofthe party against whom summaryjudgment is sought indicating that the moving party was not named as aninsured onany policies issued (Dorset v285 Madison Owner LLC, 214 AD3d 402 [1st Dept 2023]). As a preliminary matter, the Cross Movants concede they are being provided a defense and coverageunderMellifont'sprimary policy. As a secondary matter, Cross Movants have failed to provide to the Court the excess policy obtained by Mellifont which they claim excludes them coverage and therefore the Cross Movants have failed to meet their prima facie burden to obtain summary judgment. Finally, the correspondence proffered by Cross Movants between their counsel and Rockville RiskManagement("Rockville") states that coverage is only triggered when the underlying insurance has been exhausted by payment ofjudgments, settlements, or any cost expense subject to such limit (NYSCEF Doc. 137). Rockville stated that the request for indemnity
was premature because the underlying policy limits were not yet exhausted but stated that the
excess carrier will be willing to review its coverage obligations based on future determinations

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(id.). Accordingly, Cross Movantsmay stillbe affordedthe $5,000,000 in excesscoverageif/when the $1,000,000 in underlying limits is exhausted. There is nothing in the record on this motion which indicates Mellifont failed to name Cross Movants as additional insureds under its excess policy, rather it appears the third-party claims administrator has simply found it is premature to make the $5,000,000 in excess coverage available prior to their being determinations that the $1,000,000 in underlying coverage is or will
soon be exhausted. Thus, this portion ofthe cross-motion is denied without prejudice, with leave to renew should the $1,000,000 become exhausted and the excess fails to become available by virtue ofan exclusion or failure to be named as an additional insured.

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### Accordingly, it is hereby, INDEX NO. 158554/2018 RECEIVED NYSCEF: 06/28/2024



### ORDERED Plaintiff'smotion for summaryjudgment is granted; and it is further ORDERED that PlaintiffGeremias J. 

### Berganza Garcia is granted summaryjudgment on his Labor Law §240(1) claim against 100 Church Fee Owner LLC, SL Green Realty Corp., and R&S Construction Contracting, Inc.; and it is further ORDERED that 100 Church Fee Owner LLC, SL Green Realty Corp., and R&S Construction Contracting, Inc.'s cross motion for summaryjudgment is denied; and it is further ORDERED that within ten days ofentry, counsel for Plaintiffshall serve a copy ofthis Decision and Order, with notice ofentry, on all parties viaNYSCEF; and it is further ORDERED that the Clerk ofthe Court is directed to enterjudgmentaccordingly. This constitutes the Decision and Order ofthe Court.

6/28/2024

DATE CHECK ONE: HON. ARY V. ROSADO, J.S.C.

APPLICATION: CHECK IF APPROPRIATE:

# ~ CASE DISPOSED GRANTED**□** DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

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