MEJIA v. Avalanche Construction Group, Inc., Defendant, (2025)

Order, Supreme Court, New York County (Francis A. Kahn, J.), entered June 21, 2023, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim, granted the motions of defendants 770 Broadway Owner, LLC (Broadway Owner), Lhotse Contracting Corp. and Lhotse Corp. (collectively Lhotse), New M & M Group, Inc. (M & M), and RB NY Enterprises, Inc., for summary judgment dismissing the Labor Law § 240(1) claim, denied M & M's motion for summary judgment dismissing all claims against it, and granted RB's motion for summary judgment dismissing M & M's cross-claims for common-law indemnity and contribution against it, unanimously modified, on the law, to grant plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim against Broadway Owner and Lhotse, grant M & M's motion for summary judgment dismissing all claims and cross-claims against it, and otherwise affirmed, without costs.

Plaintiff's accident, in which he was struck by a 16–foot–long scaffold pipe that had been left unsecured on its end, is encompassed by Labor Law § 240(1) (see Ruiz v. Phipps Houses, 216 A.D.3d 522, 188 N.Y.S.3d 484 [1st Dept. 2023];  Douglas v. Tishman Constr. Corp., 205 A.D.3d 570, 571, 169 N.Y.S.3d 277 [1st Dept. 2022];  Diaz v. HHC TS Reit LLC, 193 A.D.3d 640, 641, 147 N.Y.S.3d 35 [1st Dept. 2021]).  The weight of the pipe and its descent were not de minimis, nor are there any issues of proximate cause or credibility that would preclude summary judgment on that claim in favor of plaintiff and against Broadway Owner and Lhotse as the owner and general contractor at the construction project.

Regarding defendant M & M, there is no admissible or credible evidence placing it at the project so as to impart liability, whether common-law, statutory, or contractual.  Third-party defendant Rock Group NY Corp.’s principal's unsupported belief that it had subcontracted work to M & M, and that one of M & M's unnamed employees must have left the pipe at that location, is insufficient.  Rock Group failed to proffer any witness testimony placing M & M at the project, nor did it submit any documentary evidence such as invoicing or payment for that work.  The purported purchase order that Rock Group claims triggered the master contract between it and M & M, aside from the fact that M & M's principal denies having executed it, does not satisfy the requirements of the master contract, having no dates, scope of work, project description, price, or location other than “in New York City” (see generally Whitemarsh Indus. v. Sears Roebuck & Co., 192 A.D.2d 331, 595 N.Y.S.2d 763 [1st Dept. 1993]).  Accordingly, M & M is entitled to summary dismissal of all claims against it.