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 REAL TY 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 

Upon the foregoing documents, and after oral argument, which took place on February 27, 

2024, where Timothy Norton, Esq. appeared on behalf of Plaintiff Geremias J. Berganza Garcia 

("Plaintiff'), Benjamin B. Petrofsky, Esq. appeared on behalf of Defendant Stephen Foy 

Mechanical Service Corp. ("Stephen Foy"), Gerard Van Leuven, Esq. appeared on behalf ofthirdparty Defendant Mellifont Construction Corp. ("Mellifont") and Lyndsey Caldwell, Esq. appeared 

on behalf of Defendant/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 

158554/2018 BERGANZA GARCIA, GEREMIAS J. vs. 100 CHURCH FEE OWNER LLC 

Motion No. 003 

1 of 9 

Page 1 of 9 

[* 1]
NYSCEF DOC. NO. 190 

INDEX NO. 158554/2018 

RECEIVED NYSCEF: 06/28/2024 

Movants"), Plaintiffs motion for summary judgment on his Labor Law § 240(1) claim is granted, 

and his motion on his Labor Law §241 (6) claim is denied as academic. The Cross Movants' 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 employed by third-party defendant Mellifont Demolition & Construction (NYSCEF Doc. 118 

at 20: 16-19). In June of 2018, Plaintiff was working at the construction site located at 100 Church 

Street (the "Worksite") (id. at 56:11-13). Plaintiff was involved in demolition work (id. at 57:13-

15). Plaintiff was injured in an accident at the Worksite on June 23, 2018 (id. at 67:21-23). On that 

day, Plaintiff was 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 elevator to 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 of SL 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 of Plaintiffs accident (id. at 16-

17). He testified it was his job 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 

158554/2018 BERGANZA GARCIA, GEREMIAS J. vs. 100 CHURCH FEE OWNER LLC 

Motion No. 003 

2 of 9 

Page 2 of 9 

[* 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 Plaintiff was injured (id. at 24:12-22; 25:4-9). Mr. 

Malm testified the metal object that struck Plaintiff was 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 next to the elevator shaft where Plaintiff was working. Stephen Foy employees were using 

the welding clamp (id. at 38). Mr. Malm conceded that ifthere had been proper protection between 

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 

Plaintiff moves for summary judgment on his Labor Law § 240(1) claim against Owner, 

SL Green, and R&S. Plaintiff argues these are proper 240(1) defendants because Owner owned 

the premises at the time of the 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, Plaintiff argues that where there is an 

accidental dropping of a building material or tool which strikes a worker due to insufficient 

overhead protection, there is a prima facie Labor Law § 240( 1) violation. Plaintiff likewise argues 

precedent establishes there is no need for Plaintiff to establish foreseeability in meeting his prima 

facie burden on a §240(1) claim. 

158554/2018 BERGANZA GARCIA, GEREMIA$ J. vs. 100 CHURCH FEE OWNER LLC 

Motion No. 003 

3 of 9 

Page 3 of 9 

[* 3]
NYSCEF DOC. NO. 190 

B. Cross Movants' Cross-motion 

INDEX NO. 158554/2018 

RECEIVED NYSCEF: 06/28/2024 

The Cross Movants seek dismissal of Plaintiffs 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-motion is opposed by numerous parties. Stephen Foy opposes and argues that Cross Movants 

are not entitled to summary judgment on their cross claims because their own negligence caused 

the accident. Mellifont also opposes and says the indemnification clause is unenforceable. In reply, 

Cross Movants attempt to argue they are free from negligence and are therefore entitled to 

summary judgment on their crossclaims. 

III. Discussion 

A. Standard 

"Summary judgment is a drastic remedy, to be granted only where the moving party has 

tendered sufficient evidence to demonstrate the absence of any material issues of fact." (Vega v 

Restani Const. Corp., 18 NY3d 499, 503 [2012]). The moving party's "burden is a heavy one and 

on a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party." (Jacobsen v New York City Health and Hasps. Corp., 22 NY3d 824, 833 [2014]). 

Once this showing is made, the burden shifts to the party opposing the motion to produce 

evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact 

which require a trial. See e.g., Zuckerman v City of New 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 summary judgment (see Banco Popular North 

Am. v Victory Taxi Mgt., Inc., l NY3d 381 [2004]). 

1 Because the Court grants Plaintiffs motion for summary judgment on his Labor Law §240(1) claims, discussion 

regarding §§ 200 and 241 (6) is not needed as liability under these sections is moot. 

158554/2018 BERGANZA GARCIA, GEREMIA$ J. vs. 100 CHURCH FEE OWNER LLC 

Motion No. 003 

4 of 9 

Page 4 of 9 

[* 4]
NYSCEF DOC. NO. 190 

B. Plaintiff's Motion 

INDEX NO. 158554/2018 

RECEIVED NYSCEF: 06/28/2024 

Plaintiff is granted summary judgment as to liability on his Labor Law §240(1) claim. It is 

undisputed that Plaintiff was engaged in demolition work when a welding clamp fell from the eight 

floors, bounced on the second floor through a hole/gap, and proceeded to fall through the elevator 

shaft where Plaintiff was assembling a scaffold. It is likewise undisputed that the hole/gap which 

the welding clamp fell through was unsecured but after this accident was secured to prevent similar 

accidents. It is further undisputed that the Cross Movants are each proper §240(1) defendants as 

they own the premises, are the statutory agent of the owner, or were the general contractor. 

As the First Department has recently held, in the context of falling objects, the risk to be 

guarded against under §240(1) is the unchecked or insufficiently checked descent of the falling 

object (Torres-Quito v I 61 I LLC, 207 NYS3d 56 [1st Dept 2024]). Contrary to the Cross Movants' 

opposition, a Plaintiff is not required to show that 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 Bay Associates, 96 NY2d 259 [2001 J is 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 41 JO LLC, 220 AD3d 528 [1st Dept 2023]; Mayorquin v Carriage House 

Owner's Corp., 202 AD3d 541 [1st Dept 2022]; Garcia v SMJ 210 West 18 LLC, 178 AD3d 4 74 

[1st Dept 20191; Hill v Acies Group, LLC, 122 AD3d 428 [1st Dept 2014]). 

158554/2018 BERGANZA GARCIA, GEREMIAS J. vs. 100 CHURCH FEE OWNER LLC 

Motion No. 003 

5 of 9 

Page 5 of 9 

[* 5]
NYSCEF DOC. NO. 190 

INDEX NO. 158554/2018 

RECEIVED NYSCEF: 06/28/2024 

The undisputed facts and a plethora of precedent establish a Labor Law §240(1) violation 

entitled Plaintiff to summary judgment. Accordingly, Plaintiffs motion is granted. 

C. Cross-Motion 

i. Dismissal of Plaintifrs Labor Law Claims 

As a preliminary matter, the portion of the Cross Movants' motion seeking dismissal of the 

Labor Law § § 200, 240(1 ), and 241 ( 6) claims is denied as moot as this Court has already found 

Plaintiff is entitled to liability against these defendants under § 240(1) (Malan v FSJ Realty Group 

II LLC, 213 AD3d 541, 542 [l st Dept 2023]; Corre to v Onex Real }.'state Partners, 209 AD3d 483, 

484 [1st Dept 2022]). 

ii. Third-Party Claims against Mellifont and Cross Claims against 

Stephen Foy 

The Cross Movants are denied summary judgment on their 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 of fact as to whether the Cross Movants were negligent in adequately 

supervising the trades and ensuring there was proper protection at the Worksite (see generally, 

Aiello v Burns Intern. Sec. Services Corp., 110 AD3d 234 [1st Dept 2013] [common-law indemnity 

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. 

158554/2018 BERGANZA GARCIA, GEREMIAS J. vs. 100 CHURCH FEE OWNER LLC 

Motion No. 003 

6 of 9 

Page 6 of 9 

[* 6]
NYSCEF DOC. NO. 190 

INDEX NO. 158554/2018 

RECEIVED NYSCEF: 06/28/2024 

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]; Bradley v NYU Langone Hospitals, 223 AD3d 509, 511-512 [1st 

Dept 2024 ]; Spielmann v 170 Broadway NYC LP, 187 AD3d 492 [1st Dept 2020] [ where a triable 

issue of fact exists regarding the indemnitee's negligence, a conditional order of summary 

judgment for contractual indemnification must be denied as premature]). 

Cross Movants motion for summary judgment on its third-party claim against Mellifont for 

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. A party moving for summary judgment on its claim for failure to procure insurance must 

show correspondence from the insurer of the party against whom summary judgment is sought 

indicating that the moving party was not named as an insured on any policies issued (Dorset v 285 

Madison Owner LLC, 214 AD3d 402 [1st Dept 2023]). 

As a preliminary matter, the Cross Movants concede they are being provided a defense 

and coverage under Mellifont's primary 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 Risk Management ("Rockville") states that coverage is only triggered when 

the underlying insurance has been exhausted by payment of judgments, 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 

158554/2018 BERGANZA GARCIA, GEREMIAS J. vs. 100 CHURCH FEE OWNER LLC 

Motion No. 003 

7 of 9 

Page 7 of 9 

[* 7]
NYSCEF DOC. NO. 190 

INDEX NO. 158554/2018 

RECEIVED NYSCEF: 06/28/2024 

(id.). Accordingly, Cross Movants may still be afforded the $5,000,000 in excess coverage if/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 of the 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 of an exclusion or failure to be named as an additional insured. 

[The remainder of this page is intentionally left blank.] 

158554/2018 BERGANZA GARCIA, GEREMIAS J. vs. 100 CHURCH FEE OWNER LLC 

Motion No. 003 

8 of 9 

Page 8 of 9 

[* 8]
NYSCEF DOC. NO. 190 

Accordingly, it is hereby, 

INDEX NO. 158554/2018 

RECEIVED NYSCEF: 06/28/2024 

ORDERED Plaintiff's motion for summary judgment is granted; and it is further 

ORDERED that Plaintiff Geremias J. Berganza Garcia is granted summary judgment 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 summary judgment is denied; and it is further 

ORDERED that within ten days of entry, counsel for Plaintiff shall serve a copy of this 

Decision and Order, with notice of entry, on all parties via NYSCEF; and it is further 

ORDERED that the Clerk of the Court is directed to enter judgment accordingly. 

This constitutes the Decision and Order of the 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 

15855412018 BERGANZA GARCIA, GEREMIAS J. vs.100 CHURCH FEE OWNER LLC 

Motion No. 003 

9 of 9 

OTHER 

REFERENCE 

Page 9 of 9 

[* 9]