### Zuniga v Trinity NYC Hotel, LLC 2024 NY Slip Op 32293(U) July 8, 2024 Supreme Court, New York County Docket Number: Index No. 150513/2021 Judge: Paul A. Goetz 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. 72 INDEX NO. 150513/2021 RECEIVED NYSCEF: 07/08/2024 

### SUPREME COURT OF THE STATE OF NEWYORK NEWYORK COUNTY PRESENT: HON. PAUL A. GOETZ Justice

---------------------------------------------------------------------------------X

CARLOS FABIAN TAMAY ZUNIGA, Plaintiff,

- V - TRINITY NYC HOTEL, LLC,CAULDWELL-WINGATE COMPANY, LLC, Defendants.

---------------------------------------------------------------------------------X PART INDEX NO. 150513/2021 MOTION DATE 12/01/2023 MOTION SEQ. NO. 002 DECISION + ORDER ON MOTION 47

The following e-filed documents, listed by NYSCEF document number (Motion 002) 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71 were read on this motion to/for JUDGMENT-SUMMARY Upon the foregoing documents, itis In this personal injury Labor Law action, plaintiffmoves pursuant to CPLR § 3212 for summaryjudgment on his LaborLaw§ 240(1) claim as against defendants Trinity NYC Hotel ("Trinity") and Cauldwell-Wingate Company ("Cauldwell"). 

### BACKGROUND Trinity was the owner ofaproperty located at 50 Trinity Place, New York, New York, 10006, where a new building was being constructed (NYSCEF Doc No 61 ,i 5
- 6). Cauldwell was the general contractor ofthe construction project (id. at ,i 7). Cauldwell hired subcontractor Moore Group ("Moore") to pour concrete andbuildthe raw floors for the project (id. at ,i 8
- 9). Plaintiffwas a Moore employee who was performing carpentry and framing work at the construction site on December 8, 2020 (id. at ,i 9). On December 8, 2020 plaintiffwas tasked with removing pins from a temporary frame which needed to be removed after the concrete it was forming was set (Zuniga EBT; NYSCEF

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### Doc No 65 at 61 :24
- 62: 8). Plaintiffalleges that while he was on a 6-foot A-frame ladder, he reached up above his head to remove apin seven feet offthe groundusing a hammer (id. 

### at 73:5

- 73: 11, 81 :5
- 81 :7). Plaintiffalleges that the ladder quickly moved side to side causing him to fall to the ground and hit the floor (id. 

### at 81:25
- 83:9). Plaintiffalleges injuries to his back, shoulder, and neck as a result ofhis fall from the ladder (id. 

### at 98: 18
- 98:22). DISCUSSION SummaryJudgment Standard "It

### is well settled that 'the proponent ofa summaryjudgmentmotion must make a prima facie showing ofentitlement tojudgment as amatter oflaw, tendering sufficient evidence to demonstrate the absence ofany material issues offact."' (Pullman v Silverman, 

### 28 NY3d 1060, 1062 [2016], quotingAlvarezv ProspectHosp., 

### 68 NY2d 320,324 [1986]). "Failureto make such showing requires denial ofthe motion, regardless ofthe sufficiency ofthe opposing papers." (Winegrad v New York Univ. Med. Ctr., 

### 64 NY2d 851, 853 [1985] [internal citations omitted]). "Once such a prima facie showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proofin admissible form sufficient to raise material issues offact which require a trial ofthe action." (Cabrera v Rodriguez, 

### 72 AD3d 553, 553-554 [1st Dept 2010], citingAlvarez, 

### 68 NY2d at 342). "The court's function on a motion for summaryjudgment is merely to determine if any triable issues exist, not to determine the merits of any such issues or to assess credibility." (Meridian Mgmt. Corp. v Cristi Cleaning Serv. Corp., 

### 70 AD3d 508, 510-511 [1st Dept 2010] [internal citations omitted]). The evidence presented in a summary judgment motion must be examined "in the light most favorable to the non-moving party" (Schmidt v OneNew YorkPlaza Co., 

### 153 AD3d427,428 [2017], quoting Ortizv VarsityHoldings, LLC, 

### 18 NY3d 335,339 [2011])

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### and bare allegations or conclusory assertions are insufficient to create genuine issues of fact (Rotuba Extruders v Ceppos, 

### 46 NY2d 223,231 [1978]). If

### there is any doubt as to the existence ofa triable fact, the motion for summaryjudgmentmust be denied (id.). LaborLaw § 240(1) ' 

### Plaintiffargues that he is entitled to summaryjudgment on his Labor Law § 240(1) claim because he has submittedundisputedproofthat the ladderhe was standing on suddenly slipped which caused his injuries. Defendants argue that there is a triable issue offact as to whether the ladderwas defective and thus a violation ofLabor Law§ 240(1). They also argue that there is a triable issue offact as to whether the ladderwas the proximate cause ofplaintiff's injury. Labor Law § 240(1) states: All contractors and owners and their agents, except owners ofone and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning orpointing ofabuilding or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed. "[T]he LaborLaw imposes absolute liability on owners and general contractors for injuries that are proximately causedby the failure to provide appropriate safety devices to workers subject to gravity-related risks" (Ladd v Thor 680MadisonAveLLC, 

### 212 AD3d 107, 111 [1st Dept 2022]). "In order to prevail on a Labor Law § 240(1) cause ofaction, a plaintiff must establish that the statute was violated and that the violation was aproximate cause ofhis or her injuries" (Rudnik vBrogorRealty Corp., 

### 45 AD3d 828, 829 [2d Dept 2007]). "[A]n accident alone does not establish a Labor Law§ 240(1) violation or causation" (Blake v Neighborhood Haus. Services of New York City, Inc., 

### 1NY3d 280,289 [2003]). "[T]he single decisive question

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is whether plaintiff's injuries were the direct consequence ofa failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Runner v New YorkStockExch., Inc., 13 NY3d 599, 603 [2009]). "Plaintiff[can] establish[] his prima facie entitlement to summaryjudgment on the issue ofliability on his Labor Law§ 240(1) claim

... testimony that the ladder on which he was standing at the time ofhis accidentmoved from underhim for no apparentreason" (Pinzon vRoyal CharterProperties, Inc., 211 AD3d442,443 [1st Dept 2022]). Here, plaintiffsubmits his deposition testimony which when asked ifthe laddermoved immediatelybefore he fell, he states that "Itmoved from side to side, itwas quickly when it moved and then I fell" (Zuniga EBT; NYSCEF Doc No 65 at 83:4
- 83:5). As inPinzon this testimony establishesprima facie entitlement to summaryjudgment on liability and the burden shifts to defendants to raise a triable issue offact. Defendants' opposition focuses on a section of plaintiff's deposition immediately preceding the above section in which when asked, "What caused the ladderto move?" he replies, "ThatI fell, I fell" (id. at 82: 16
- 82: 17). Defendants argue that this raises a triable issue offact as to whether the plaintifflosing his balance caused the ladder to shift, or ifthe shifting ladder caused the plaintiffto lose his balance. However, when plaintiff's testimony is read as a whole, he is unequivocal that the ladder shifted first which causedhis fall. Unlike in Cordova v 653 EleventhAve. LLC., defendants here have not submitted any evidence which refutes plaintiff's claim that the ladder moved priorto his fall (Cordova v 653 EleventhAve. LLC., 190 AD3d 637 [1st Dept 2021] [dismissing a LaborLaw§ 240(1) claim when defendant submitted surveillance footage showing that the ladderplaintiffwas standing on did notmove and was secured to the scaffolding structure above]). Therefore, defendants have

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failed to raise a triable issue offact to refute plaintiffsprima facie showing and summary judgmentwill be grantedto plaintiff. Accordingly it is, ORDERED thatplaintiffsmotion for summaryjudgment onhis Labor Law§ 240(1) claim as against Trinity and Cauldwell is granted.

7/8/2024

DATE PAUL A. GOETZ, J.S.C. CHECK ONE: 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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