### Rocha v Skyline Restoration, Inc. 2024 NY Slip Op 32416(U) July 12, 2024 Supreme Court, New York County Docket Number: Index No. 161153/2020 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.INDEX NO. 161153/2020 NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 07/12/2024

1 of 7 PRESENT: 

### SUPREME COURT OF 

### THE STATE OF NEW YORK NEW YORK COUNTY HON. MARYV. ROSADO PART Justice 33M -------------------X INDEX NO. 161153/2020

IZAIAS ROCHA, Plaintiff,

- V - SKYLINE RESTORATION, INC.,CORNELL UNIVERSITY, THE ROCKEFELLER INSTITUTE, MEMORIAL HOSPITAL FOR CANCER AND ALLIED DISEASES, NEWYORKPRESBYTERIAN HEALTHCARE SYSTEM, INC.,MANHATTAN EYE, EAR, & THROAT HOSPITAL, NEWYORK SOCIETY FOR THE RELIEF OF THE RUPTURED AND CRIPPLED, MAINTAINING THE HOSPITAL FOR SPECIAL SURGERY, Defendant. -------------------X

CORNELL UNIVERSITY, THE ROCKEFELLER INSTITUTE, MEMORIAL HOSPITAL FOR CANCER AND ALLIED DISEASES, NEW

### YORK SOCIETY FOR THE RELIEF OF THE RUPTURED AND CRIPPLED, MAINTAINING THE HOSPITAL FOR SPECIAL SURGERY Plaintiff,-againstONETEAM RESTORATION Defendant. -------------------X MOTION DATE 06/22/2024 MOTION SEQ. NO. 001

DECISION + ORDER ON MOTION

Third-Party Index No. 595543/2024

The following e-filed documents, listed by NYSCEF document number (Motion 001) 38, 39, 40, 41, 42, 43,44,45,46,47,48,49,50,51,52,53,54,55,56,57,58,59,60,61,62,63,64,65,66,67,68,69, 70, 71, 72, 73, 74 were read on this motion to/for 

### JUDGMENT-SUMMARY Upon the foregoing documents, and after oral argument, which took place on April 23, 2024, where Julio Cesar Roman, Esq. appeared for Plaintifflzais Rocha ("Plaintiff''), Lee D. Tarr, Esq. appeared for Defendant Skyline Restoration ("Skyline"), and Jeffrey D. Fippinger, Esq.

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2 of 7 appeared for all otherDefendants (collectively "Owner")Plaintiff'smotionfor summaryjudgment
onhis Labor Law 240(1) claim is granted. The cross-motion by Owneris denied as untimely. 

### I. Background This is an action seeking damages for personal injuries allegedly sustained as a result of violations ofNew York's Labor Law 

### (see generally NYSCEF Doc. 1 ). One Team Contractors ("One Team") employed Plaintiff as a mechanic. One Team was a subcontractor of Skyline. Skyline was hired by Owner to serve as a general contractor for a renovation project, including brick replacement and balcony restoration, at 430 E. 63rd Street, New York, New York (the ''Premises"). Plaintiff was lifting a wooden frame balcony from the ground up to the second floor. Plaintiff'sco-workerwas expectedto grab the woodenframe balconybutlosthis grip. This caused the wooden frame balcony to fall on Plaintiff allegedly causing his personal injuries. Plaintiff claims there was no pulley, winch, or rope which was provided to him, nor did he see any such equipment at the worksite. He testified he asked about obtaining safety equipment earlier in the day, but he was told to "go to work." Plaintiff's co-worker that day, Wender Penha testified that he saw Plaintiffliftthe wooden frame balcony to another worker and sawit fall onto the Plaintiff. Mr. Penha also testified that there were no lifting devices available. Skyline's superintendent, Cristian Estudillo testified that there was a beta max hoist onsite for lifting a variety ofobjects. Mr. Estudillo testified that he saw Plaintiffusing a hoist in the past but could not recall Plaintiff
ever being specifically told that the hoist must be used. Plaintiffalso produced an expert affidavit from Herman Silverberg, P.E. According to Mr. Silverberg, the appropriate practice for lifting the wooden frame balcony would have been to use

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3 of 7 a crane or chain hoist rather than manual effort. Mr. Silverberg testified that the beta max hoist
was insufficient for lifting the materials and equipment involved in Plaintiff's accident. 

### II. The Motion and Cross-Motion A. Plaintifrs Motion Plaintiffargues itisentitledto summaryjudgmentonhisLaborLaw §240(1)claimbecause he was not provided with adequate safety devices to transportthe wooden frame balcony from the first floor to the second floor. Plaintiff argues that the Defendants, as the owner and general contractor, are liable parties pursuant to §240(1). Owner opposes and argues there is a question ofmaterial fact as to whether plaintiffhad adequate safety devices available. Owner argues that a hoist was available and there is testimony that Plaintiffwas instructed to use the hoist to perform hisjob. Skyline opposes by arguing that Plaintifffailed to establish a

### primafacie case under §240(1). Skyline also produced an affidavit from Charles C. Temple, P.E. Mr. Temple disagrees with Plaintiff's expert because there is evidence that a hoist was present and there are too many factors at play to determine whether the hoistthat was present was sufficient for the work involved. In reply, Plaintiffargues thatthere is no evidence that Plaintiffwas everprovided with, or instructed to use; a mechanical hoisting device. Plaintiffargues that although Defendants rely on Mr. Estudillo'stestimony to establishthat a hoist was available, Plaintiffasserts that Mr. Estudillo
nevertestifiedthat the hoist was actually available to Plaintiffatthe time ofthe accident, nordoes it refute Plaintiff's testimony that he asked for hoisting equipmentyet was not given any and told to get to work. Plaintiffargues there is no proofhe was a recalcitrant worker_because it has not been established thatthe safety equipment was readily available, and he was instructed to use it.

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### B. Owner's Cross-Motion Owner cross-moves for summaryjudgment dismissing Plaintiffs Labor Law 

### § 200 and
common law negligence claims and seeks summary judgment on its contractual defense and indemnification claims against Skyline. While Ownerconcedes that it'scross-motion is untimely, it argues that it can still be heard since it seeks identical reliefto Plaintiffs motion. Owner argues that pursuant to the terms ofits contract with Skyline, and the facts ofthis case, Owner is entitled to contractual indemnification. Plaintiffopposes and argues the cross-motion should be rejected
as untimely. Plaintiff asserts that the cross-motion does not seek identical relief as Plaintiff's motion, and that Owner has failed to establish good cause for the late filing. Skyline joins in arguing that the motion is untimely. 

### 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 v

### New York City Health andHosps. 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, sufficientto establishthe existence ofmaterial issues offact which require a trial (See e.g., Zuckerman v 

### City of New York, 49 NY2d 557, 562 [1980]). As stated by the Court ofAppeals, "Labor Law§ 240(1) is to be construed as liberally as may be for the accomplishmentofthepurpose for whichitwasframed" (Ross v

### Curtis-PalmerHydro-Electric Co., 81 NY2d 494 [1993]).

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### B. Plaintifrs Motion for Partial Summary Judgment Here, Plaintiffhas met his prima facie burden ofentitlementto summaryjudgment on his LaborLaw §240(1) claim. It is undisputedthat Skyline was the generalcontractoronthe Premises and that the Owner Defendants were the statutory owners. It is further undisputed that there was ongoing construction involving balcony renovation atthe Premises and that Plaintiffwas actively engaged in construction. There is no testimony contradicting Plaintiffs deposition testimony that he requested a hoist but was told to continue working. Moreover, there is no testimony from anyone stating that Plaintiffwas directly toldto use an available hoist on site. Further, the Penhaaffidavit thatbalcony equipment was being moved manually, withworkers passing the equipmentupto eachother from
one floor to another, and without a hoist. The uncontradicted testimony that Plaintiffwas injured while handing balcony materials from one floor up to a co-worker shows that multiple workers on the site were unaware of an available hoist on the worksite and is corroborated by the Penha Affidavit (see Iuculano v City of New York, 214 AD3d 535 [1st Dept 2023] [people are not safety devices within the meaning ofLabor Law §240(1)]; Rodriguez v BSREP UA Heritage LLC, 181 AD3d 537 [1st Dept 2020]). Because there is no evidence that Plaintiffwas instructed to use the hoist on site, he cannot be considered the sole proximate cause ofthe accident (Gallagher v New York Post, 14 NY3d 83 [2010]; Jarzabek v Schafer Mews Hous. Dev. Fund Corp., 160 AD3d 412 [1st Dept 2018]; Nacewicz v Roman Catholic Church of the Holy Cross, 105 AD3d 402 [1st Dept 2013]). In fact, the PenhaAffidavitwhichDefendantsrely onexplicitly statesthat "[Plaintiff] was newonthejob" amplifying Plaintiffs argument that he was not properly instructed or provided the necessary safety devices (NYSCEF Doc. 62). Moreover, it is uncontroverted that Plaintiffrequested a hoist

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6 of 7 to use but was told by his boss to "go to work." Likewise, The Defendants' expert affidavit does not raise any material issues offact for the purposes ofa Labor Law 240(1) claim as it fails to identify any testimony indicating that Plaintiffwas aware ofa hoist on site and was instructed to
use the hoist and controverts Plaintiffstestimony thathe was instructedto workwithoutthe hoist. While there is some evidence that the proper means to hand the wooden frame balconies would have been to disassemble them prior to moving them, this at most amounts to comparative negligence, whichisno defense to a LaborLaw§ 240(1) claim (Rodas-Garcia v NYC UnitedLLC, 225 AD3d 556 [1st Dept 2024]; Sanchez v MC 19 East Houston LLC, 216 AD3d 443 [1st Dept 2023]). Therefore, Plaintiffs motion for partial summaryjudgment on his Labor Law §240(1) claim is granted. 

### C. Owner's Cross-Motion Owner's cross-motion is nottimely and no good cause has been provided for this Courtto considerthe motion(Brillv Cityof New York, 2NY3d 648 [2004]). Nordoes Ownerseekidentical reliefon its cross-motion (Filannino v Triborough Bridge and Tunnel Auth., 34 AD3d 280 [1st Dept 2006]). The First Department addressed the issue squarely in Filannino, where a crossmovant made an untimely cross-motion seeking adjudication ofPlaintiffs Labor Law § 200 and §241(6) claims while Plaintiff moved on his Labor Law §240(1) claim. The First Department found that because the reliefsought by both parties dealt with distinct sections ofthe Labor Law, the cross-motion did not seek identical relief, nor could the Court search the record related to
causes ofactionwhich werenotthe subjectofthe timely motion (id. at 281 citingDunham vHi/co Constr. Co., Inc., 89 NY2d 425 [1996]). Moreover, Owner seeks summary judgment on its contractual indemnification cross-claims which are wholly unrelated to the reliefPlaintiffseeks.

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7 of 7 Thus, absent any showing of good cause, there is no basis for the Court to consider Owner's untimely cross-motion. Accordingly, it is hereby, ORDERED that PlaintiffIzaias Rocha is granted summaryjudgment as to liability on his Labor Law § 240(1) cause ofaction against Defendants; and it is further ORDERED that Defendant Owner's cross-motion is denied as untimely; and it is further ORDERED that within ten days ofentry, counsel for Plaintiff shall serve a copy ofthis Decision and Order, with notice ofentry, on all parties via NYSCEF; and it is further ORDERED that the Clerk ofthe Court is directed to enterjudgment accordingly.

7/12/2024

DATE
CHECK ONE:

APPLICATION: CHECK IF APPROPRIATE: CASE DISPOSED GRANTED SETTLE ORDER x NON-FINAL DISPOSITION

### □ DENIED x GRANTED IN PART SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT

161153/2020 ROCHA, IZAIAS vs. SKYLINE RESTORATION, INC. Motion No. 001

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