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 NEW YORK 

NEW YORK COUNTY 

PRESENT: HON. PAUL A. GOETZ 

Justice 

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CARLOS FABIAN TAMAY ZUNIGA, 

Plaintiff, 

- V -

TRINITY NYC HOTEL, LLC,CAULDWELL-WINGATE 

COMPANY, LLC, 

Defendants. 

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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, it is 

In this personal injury Labor Law action, plaintiff moves pursuant to CPLR § 3212 for 

summary judgment on his Labor Law§ 240(1) claim as against defendants Trinity NYC Hotel 

("Trinity") and Cauldwell-Wingate Company ("Cauldwell"). 

BACKGROUND 

Trinity was the owner of a property 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 of the construction project (id. at ,i 7). Cauldwell hired subcontractor 

Moore Group ("Moore") to pour concrete and build the raw floors for the project (id. at ,i 8 - 9). 

Plaintiff was 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 plaintiff was 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). Plaintiff alleges that while he was on a 6-foot A-frame ladder, he 

reached up above his head to remove a pin seven feet off the ground using a hammer (id. at 73:5 

- 73: 11, 81 :5 - 81 :7). Plaintiff alleges 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). Plaintiff alleges injuries to his back, 

shoulder, and neck as a result of his fall from the ladder (id. at 98: 18 - 98:22). 

DISCUSSION 

Summary Judgment Standard 

"It is well settled that 'the proponent of a summary judgment motion must make a 

prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence 

to demonstrate the absence of any material issues of fact."' (Pullman v Silverman, 28 NY3d 

1060, 1062 [2016], quoting Alvarez v Prospect Hosp., 68 NY2d 320,324 [1986]). "Failure to 

make such showing requires denial of the motion, regardless of the sufficiency of the 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 proof in admissible form sufficient to raise material 

issues of fact which require a trial of the action." ( Cabrera v Rodriguez, 72 AD3d 553, 553-554 

[1st Dept 2010], citing Alvarez, 68 NY2d at 342). 

"The court's function on a motion for summary judgment 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 One New York Plaza 

Co., 153 AD3d 427,428 [2017], quoting Ortizv Varsity Holdings, 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 

of a triable fact, the motion for summary judgment must be denied (id.). 

Labor Law § 240(1) ' 

Plaintiff argues that he is entitled to summary judgment on his Labor Law § 240(1) claim 

because he has submitted undisputed proof that the ladder he was standing on suddenly slipped 

which caused his injuries. Defendants argue that there is a triable issue of fact as to whether the 

ladder was defective and thus a violation of Labor Law§ 240(1). They also argue that there is a 

triable issue of fact as to whether the ladder was the proximate cause of plaintiff's injury. 

Labor Law § 240(1) states: 

All contractors and owners and their agents, except owners of one 

and two-family dwellings who contract for but do not direct or 

control the work, in the erection, demolition, repairing, altering, 

painting, cleaning or pointing of a building 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 Labor Law imposes absolute liability on owners and general contractors 

for injuries that are proximately caused by the failure to provide appropriate safety devices to 

workers subject to gravity-related risks" (Ladd v Thor 680 Madison Ave LLC, 212 AD3d 107, 

111 [1st Dept 2022]). "In order to prevail on a Labor Law § 240(1) cause of action, a plaintiff 

must establish that the statute was violated and that the violation was a proximate cause of his or 

her injuries" (Rudnik v Brogor Realty 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., 1 NY3d 280,289 [2003]). "[T]he single decisive question 

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is whether plaintiff's injuries were the direct consequence of a failure to provide adequate 

protection against a risk arising from a physically significant elevation differential" (Runner v 

New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]). "Plaintiff [can] establish[] his prima 

facie entitlement to summary judgment on the issue ofliability on his Labor Law§ 240(1) claim 

... testimony that the ladder on which he was standing at the time of his accident moved from 

under him for no apparent reason" (Pinzon v Royal Charter Properties, Inc., 211 AD3d 442,443 

[1st Dept 2022]). 

Here, plaintiff submits his deposition testimony which when asked if the ladder moved 

immediately before he fell, he states that "It moved from side to side, it was quickly when it 

moved and then I fell" (Zuniga EBT; NYSCEF Doc No 65 at 83:4 - 83:5). As in Pinzon this 

testimony establishes prima facie entitlement to summary judgment on liability and the burden 

shifts to defendants to raise a triable issue of fact. Defendants' opposition focuses on a section of 

plaintiff's deposition immediately preceding the above section in which when asked, "What 

caused the ladder to move?" he replies, "That I fell, I fell" (id. at 82: 16 - 82: 17). Defendants 

argue that this raises a triable issue of fact as to whether the plaintiff losing his balance caused 

the ladder to shift, or if the shifting ladder caused the plaintiff to lose his balance. However, 

when plaintiff's testimony is read as a whole, he is unequivocal that the ladder shifted first which 

caused his fall. 

Unlike in Cordova v 653 Eleventh Ave. LLC., defendants here have not submitted any 

evidence which refutes plaintiff's claim that the ladder moved prior to his fall ( Cordova v 653 

Eleventh Ave. LLC., 190 AD3d 637 [1st Dept 2021] [dismissing a Labor Law§ 240(1) claim 

when defendant submitted surveillance footage showing that the ladder plaintiff was standing on 

did not move and was secured to the scaffolding structure above]). Therefore, defendants have 

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failed to raise a triable issue of fact to refute plaintiffs prima facie showing and summary 

judgment will be granted to plaintiff. 

Accordingly it is, 

ORDERED that plaintiffs motion for summary judgment on his 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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Motion No. 002 

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□ OTHER 

□ REFERENCE 

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