### Sotamba v 183 Broadway Owner LLC 2024 NY Slip Op 32327(U) July 9, 2024 Supreme Court, New York County Docket Number: Index No. 155991/2021 Judge: David B. 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.NYSCEF DOC. NO. 81 INDEX NO. 155991/2021 RECEIVED NYSCEF: 07/09/2024 

### SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DAVID B. COHEN Justice ---------------------------------------------------------------------------------X

VICTOR SOTAMBA, Plaintiff,

- V - 183 BROADWAY OWNER LLC, and PAVARINI MCGOVERN LLC. Defendants.

---------------------------------------------------------------------------------X PART 58
INDEX NO. 155991/2021 MOTION SEQ. NO. 002 003

DECISION + ORDER ON MOTION

The following e-filed documents, listed by NYSCEF document number (Motion 002) 31, 32, 33, 34, 35, 36, 37, 38,39,40,41,42,43,44,45, 67,68, 69, 70, 76, 77 were read on this motion to/for PARTIAL SUMMARY JUDGMENT The following e-filed documents, listed by NYSCEF document number (Motion 003) 47, 48, 49, 50, 51, 52, 53, 54,55, 56,57, 58,59, 60,61, 62,63, 64,65, 71, 72, 73, 74, 75, 78, 79 were read on this motion to/for JUDGMENT-SUMMARY In this LaborLaw action, plaintiffmoves (Seq. 002), pursuantto CPLR 3212, for summary judgmentagainst defendants on the issue ofliabilityunderLaborLaw § 240(1 ). Defendantsmove (Seq. 003), pursuant to CPLR 3212, for summaryjudgment dismissing the complaint. I. Factual and Procedural Background This case arises from an incident on June 3, 2021, in which plaintiffwas allegedly injured after being struck by a large window panel while working on a scaffold at a construction site located at 185 Broadwayin Manhattan (the premises) (NYSCEF Doc No. 33). The premises were owned by defendant 183 Broadway Owner LLC (183 Broadway) and defendant Pavarini McGovern LLC (Pavarini) was the constructionmanager (Doc No. 33). Plaintiffcommenced this action against defendants alleging claims of common-law negligence and violations of Labor Law§§ 200, 240(1), (2), and (3), and 241(6) (Doc No. 37). Defendants joined issue by their

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answer dated September 1, 2021, denying all substantive allegations ofwrongdoing and asserting various affirmative defenses (Doc No. 34). Plaintiffnow moves for partial summaryjudgmenton his Labor Law§ 240(1) claim (Doc No. 31), which defendants oppose (Doc No. 67). Defendants
move for summary dismissal ofthe complaint (DocNo. 47), whichplaintiffpartiallyopposes (Doc No. 75). A. Deposition Testimony of Plainti(f(DocNos. 39-40) Athis deposition, plaintifftestified that he was employedbynonpartyAlubuild as ahelper responsible for installing windows and window panels at the premises. He was given instructions by his supervisor, who was another Alubuild employee. On the day ofthe incident, he and three other coworkers were instructed to move panels from the 29th floor to the 30th floor. The panels
were roughly twelve feet long by three feet wide and weighed approximately 80 pounds. Suction cups with handles were attached to the panels to help move the panels byhand from floor to floor. Plaintiffwas never told to use any other lifting equipment to move the panels. He and a coworker
were positioned on the exterior of the building on a scaffold on the 29th floor and two other coworkers were stationed above on the 30th floor. The panel was initially held horizontally but needed to be rotated vertically to be handed to the two workers on the floor above. Afterplaintiff andhis coworkerrotatedthe panel andbeganto liftitupwards towards the 30thfloor, his coworker lost his grip and the panel fell onto plaintiff's right shoulder. Plaintiffproceeded to the health station immediately and subsequently visited an urgent healthcare facility. He denied speaking to an accident investigator or completing any accident report for Alubuild or any other entity at the premises. However, when shown a copy of an Alubuild accident report bearing his signature that was completed the day of his accident, he acknowledged that the signature on the report was his.

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B. Deposition Testimony of Pavarini (Doc No. 41) INDEX NO. 155991/2021 RECEIVED NYSCEF: 07/09/2024

A safety manager for Pavarini testified that he was responsible for coordinating safety compliance at the premises. He was assigned to the project at the premises on the date of the incident, but he did not witness plaintiff's accident. Pavarini hired Alubuild as a subcontractor performing work on the glass exterior ofthe building, but Pavarini was not responsible for the "manner and means" of Alubuild's work. Although he stated that "personnel hoists" were available on the premises, he was unsure whether "material hoists" were also available. Pavarini also hired CitySafety Compliance Corp. (CitySafety) to perform site safety management. Afterplaintiff's accident, Pavarini and CitySafety each generated an accidentreport. When shown a copy ofthe Pavarini accident report, the safety manager confirmed that he created it, although he could notrememberwhen he first learned ofplaintiff's accident orhowhe obtained the information needed to create thatreport. However, he confirmed that he never referenced the CitySafety accident report in generating the Pavarini report. C. ContractBetween Defendants (Doc No. 42) Pursuant to the contract, 1 Pavarini was responsible for "administer[ing], manag[ing], supervis[ing], direct[ing], coordinat[ing] and caus[ing] the proper and efficientperformance
... of all work, labor, materials, equipment, [and] tools" required for the project. Pavarini also retained "control over construction means, methods, techniques, sequences[,] and procedures" for the work performed.

1 The contract listed 187 Broadway Owner LLC as the owner ofthe premises and included no references to 183 Broadway. However, in its opposition papers, 183 Broadway admitted that it was the owner ofthe premises at the time ofplaintiff's accident (Doc No. 68 at 1).

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D. VariousAccidentReports (Pavarini, Alubuild, and CitySafety) (Doc Nos. 61-63) The Pavarini accidentreportidentified one ofPavarini's employees as the report's creator, however, it contained no signatures from him or plaintiff. The report provided that plaintiff "experienced a sudden pain in his right shoulder while lifting" one of the window panels, identifying the nature ofhis injury as a fracture (Doc No. 61). Although it indicated that there
were witnesses to plaintiff's accident, it did not list them. The CitySafety accident report aligned with the Pavarini report, in that it provided that plaintiff"hurt [his] right shoulderloading [a] window panel on to [a] scaffold" (Doc No. 63). The report was signed by the CitySafety employee who created it, butnot byplaintiff. TheAlubuild accidentreport alignedwith the details ofthe Pavarini and CitySafetyreports, in thatit statedplaintiffwas injured afterhe "suddenly moved and twisted his right shoulder" while installing a window panel (Doc No. 62). The report indicated that one ofplaintiff's coworkers witnessed the accident, and itwas signedbyplaintiffandhis supervisor on the date ofthe accident. E. Plaintiff'sMedicalRecords (Doc No. 60) The doctor who examinedplaintiffat the urgenthealthcare facility included an entryin his notes that plaintiff stated "when [an]other employee lost his grip on the metal object, [plaintiff] tried to hold the metal on his own and ended up injur[ing] his [right] shoulder." F. Plaintiff's Workers' CompensationBoardC-3 Form (Doc No. 64) Shortly after the date of his accident, plaintiff submitted a C-3 form to the Workers' Compensation Board. Within the form, plaintiffwrote that his injury happened when a frame "started to fall" and "fractur[ed his] clavicle."

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II. Legal Analysis and Conclusions A. Plaintiff'sMotionfor PartialSummaryJudgment INDEX NO. 155991/2021 RECEIVED NYSCEF: 07/09/2024

Plaintiffcontends that he has made a prima facie showing that defendants violated Labor Law § 240(1) and such violations caused his injuries because defendants failed to provide him with a safety device like a pulley or hoist to lift the panel. Defendants argue in opposition that plaintiffwas not subjected to an elevation-related risk, he suffered an ordinaryperil ofworking at
a construction site. They also argue that none ofthe safety devices mentioned in the statute were necessary for himto performhiswork. Finally, theymaintainthat questions offact existregarding the circumstances ofplaintiff's accident because the information contained in the various accident reports, plaintiff's medical records, and his workers' compensation C-3 form contradict his testimony about howhe was injured. In reply, plaintiffreiterates thathis work was coveredbythe statute, and argues, among otherthings, that defendants failed to demonstrate that questions offact exist because they rely solely on hearsay evidence that is not in admissible form. "Labor Law§ 240(1) imposes a nondelegable duty and absolute liabilityupon owners and contractors for failing to provide safety devices necessary for workers subjected to elevationrelated risks in circumstances specified by the statute" (Soto v J Crew Inc., 21 NY3d 562, 566 [2013] [citations omitted]; see Healy v EST Downtown, LLC, 38 NY3d 998, 999 [2022]). However, "[n]ot every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of [the statute]" (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]). A plaintiffseeking summaryjudgmenton the issue ofliability "must establish that the statute was violated and that such violation was a proximate cause ofhis injury" (Barreto v Metropolitan Transp. Auth., 25 NY3d 426, 433 [2015]; see Villanueva v 114 FifthAve. Assoc. LLC, 162 AD3d 404,405 [1st Dept 2018]).

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Plaintiffdemonstrates that the panel he was lifting "was an objectthat required securing to preventitfrom becoming dislodged orfalling duringthework" (Rutkowski vNew York Convention Ctr. Dev. Corp., 146 AD3d 686, 686 [1st Dept 2017] [rejecting defendant's contention that "lighting bar" being carried by hand meant it did not require safety device to secure]). In falling object cases, "the risk to be guarded against is the unchecked or insufficiently checked descent of the object" (Arnaud v 140Edgecomb LLC, 83 AD3d 507, 508 [1st Dept 2011]; seeApelv City of New York, 73 AD3d 406,407 [1st Dept 2010]). Plaintiffalso demonstrates through his testimony that he was notprovidedwith any safety device like arope, pulley, orhoist to support the panel as it was moving to the floor above. Therefore, he has made aprima facie showing that he is entitled to judgment as a matter oflaw on the issue ofliability (see Arnaud, 83 AD3d at 508 [granting summaryjudgmentto plaintiffinjuredwhen woodplankbeingliftedbetween floors fell and struck plaintiff]). Yet, defendants satisfy their shifted burden to demonstrate that there are questions offact. Defendants focus on five items in attempting to identify questions offact regarding how plaintiff
was injured: three accident reports generated by Alubuild, Pavarini, and CitySafety, plaintiff's workers' compensation C-3 form, and medical records from the urgent healthcare facility he visited shortly after his accident. 2 The C-3 form mentioned that plaintiff's injury occurred when the windowframe "startedto fall," which does not controverthis testimony thatthepanel fell onto him (see Ging v F.J Sciame Constr. Co., Inc., 193 AD3d 415,417 [1st Dept 2021] [concluding

2 Defendants also submitted a transcript ofa purported recorded statement made byplaintiffwith the help ofa translator shortly after the accident (Doc No. 65). Inthe transcript, plaintiffallegedly statedthat the panel did not fall and hit him on the shoulder (Doc No. 65 at 4-5). However, defendants provided no accompanying documentationto verify the accuracy ofthe information contained in the transcript. Therefore, it will not be considered.

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no issue of fact raised because C-3 form did not "actually controvert plaintiff's account ofthe accident"]). However, plaintiff's medical records include an entry that plaintiff stated he was injured when his coworker "losthis grip" and plaintiff"triedto hold the metal [frame] on his own," which does contradict his deposition testimony. Although the medical records constitute hearsay evidence, that specific entry satisfies the party admissions exception to the rule against hearsay because it is "directly attributable to plaintiffso as to constitute [an] admission[]" (Pina vArthur Clinton Haus. Dev. Fund Corp. 188 AD3d 614, 614 [1st Dept 2021] [concluding medical record entries containing description of accident satisfied party admissions exception because plaintiff
was source ofinformation]). That statement, combined with the information in the various accident reports explaining thatplaintiffwas injuredwhenhis shouldertwisted, allow for a different conclusionregardinghow plaintiffwas injured. Where different conclusions may be reasonably drawn from the evidence provided, a motion for summaryjudgment should be denied (see Jaffe v Davis, 214 AD2d 330, 330 [1st Dept 1995]). Although the accident reports also constitute hearsay evidence (see Mayorquin v Carriage House Owner's Corp., 202 AD3d 541, 541 [1stDept2022]), "hearsaymay be considered in opposition to a summaryjudgment motion," itjust cannot be the sole basis on which to deny summaryjudgment (Clarke v Empire Gen. Contr. & Painting Corp., 189 AD3d 611, 612 [1st Dept 2020]). Here, defendants' opposition did notrely solely on hearsay evidence.

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B. Defendants'Motionfor SummaryDismissal I. Plaintiff'sLaborLaw§240(1) Claim INDEX NO. 155991/2021 RECEIVED NYSCEF: 07/09/2024

Based on the finding above that there are questions of fact regarding how plaintiff was injured, the branch of defendants' motion seeking summary dismissal of plaintiff's Labor Law § 240(1) claim is denied. 2. Plaintiff'sRemaining Claims Plaintiffexplicitly declined to oppose the branch ofdefendants' motion seeking to dismiss his claims of common-law negligence and violations ofLabor Law §§ 200, 240(2), 240(3), and 241(6) (Doc No. 72 at 1). Therefore, those branches of defendants' motion are granted without opposition. The parties' remaining contentions are eitherwithout merit or need notbe addressed given the findings above. Accordingly, itis hereby: ORDERED that the motion (Seq. 002) by plaintiff for summary judgment against defendants 183 Broadway OwnerLLC andPavarini McGovern LLC on the issue ofliabilityunder Labor Law § 240(1) is denied; and it is further ORDERED that the motion (Seq. 003) by defendants 183 Broadway Owner LLC and Pavarini McGovern LLC for summaryjudgment dismissing the complaint is decided as follows:
• the branch of the motion seeking summary judgment dismissing plaintiff's Labor Law § 240(1) claim is denied;
• the branch ofthe motion seeking summaryjudgment dismissing plaintiff's commonlaw negligence and Labor Law §§ 200, 240(2), and (3), and 241(6) claims is granted without opposition; and it is further

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ORDERED that the claims byplaintiffagainst defendants 183 Broadway Owner LLC and PavariniMcGovernLLC for common-lawnegligence andviolations ofLaborLaw §§ 200, 240(2), and (3), and 241(6) are severed and dismissed; and it is further ORDERED that the Clerk ofthe Court is directed to enterjudgment accordingly; and itis further ORDERED that counsel for plaintiffshall serve a copy ofthis order with notice ofentry upon the Clerk ofthe Court (60 Centre Street, Room 141B), and the Clerk ofthe General Clerk's Office (60 Centre Street, Room 119); and it is further ORDERED that such service upon the Clerk ofthe Court and the Clerk ofthe General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Proceduresfor Electronically Filed Case (accessible at the "EFiling" page onthe court's website at the address www.nycourts.gov/supctmanh); and itis further ORDERED that the parties are to appear for a settlement/trial scheduling conference in person at 71 Thomas Street, Room 305, on August 7, 2024, at 10:00 a.m.

7/9/2024

DATE CHECK ONE: DAVID B. COHEN, J.S.C.

APPLICATION: CHECK IF APPROPRIATE:

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

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