MEJIA v. LLC (2020)

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered July 10, 2019, which, insofar as appealed from as limited by the briefs, granted plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim, denied defendant Montrose Park, LLC's (Montrose) cross motion for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims, and granted defendant Certified Lumber Corporation d/b/a Certified Lumber & Home Center's (Certified) cross motion for summary judgment dismissing the complaint and all cross claims as against it, unanimously modified, on the law, to reinstate plaintiff's common-law negligence claim as against Certified, and Montrose's cross claims for common-law contribution and indemnification against Certified, and otherwise affirmed, without costs.

Plaintiff sustained injuries when a load of lumber fell from a pallet that was being hoisted onto the roof of a newly constructed five-story apartment building.  While plaintiff was signaling to the boom truck driver where to lower the load, the metal bands securing the lumber “burst,” causing the lumber to fall, and a piece to rebound off the floor and strike plaintiff.  Defendant Montrose owned the building, Unique Developers Holding, Inc. (Unique) was the general contractor, and defendant Certified supplied and delivered the lumber.  Plaintiff was responsible for cleaning debris and receiving deliveries.

The court properly granted plaintiff partial summary judgment on the Labor Law § 240(1) claim.  The record establishes that plaintiff was engaged in an activity enumerated under Labor Law § 240(1).  Notwithstanding plaintiff's testimony that the building had been completed, he also testified that he saw five or six workers still working on the roof at the time of the accident.  Moreover, a manager from Unique testified that the building was “almost done.”  The affidavit of Montrose's principal averring that the building was “already completed,” and that the lumber was used only for furniture and nonstructural fencing, is insufficient to raise a triable issue of fact.  Rather, it was submitted to raise a feigned issue of fact, as it contradicts Unique's manager's testimony that that the building was not yet completed (see Perez v. Pinnacle Group, Inc., 172 A.D.3d 525, 526, 101 N.Y.S.3d 30 [1st Dept. 2019];  Laniox v. City of New York, 170 A.D.3d 519, 520, 96 N.Y.S.3d 202 [1st Dept. 2019], affd 34 N.Y.3d 994, 114 N.Y.S.3d 44, 137 N.E.3d 499 [2019]).  In any event, Montrose's principal's affidavit is deficient for lack of personal knowledge of the construction activities (see Clarke v. American Truck and Trailer, Inc., 171 A.D.3d 405, 406, 97 N.Y.S.3d 105 [1st Dept. 2019];  Castro v. New York Univ., 5 A.D.3d 135, 136, 773 N.Y.S.2d 29 [1st Dept. 2004]), in view of Unique's manager's testimony that nobody from Montrose regularly inspected the site, and that he had never met anybody from Montrose onsite.  Furthermore, plaintiff's job of receiving the delivery of construction material at the time of the accident was a covered activity, as it was “ancillary to” the construction work (Prats v. Port Auth. of N.Y. & N.J., 100 N.Y.2d 878, 882, 768 N.Y.S.2d 178, 800 N.E.2d 351 [2003]).  For the same reason, Montrose was not entitled to dismissal of the Labor Law § 241(6) claim.

The record raises triable issues of fact as to whether Certified was negligent in securing or unloading the lumber, since the deposition testimony of the Certified employee who delivered the lumber was ambiguous and contradictory as to whether he inspected the metal bands before delivering them to the roof (see Cosme v. City of New York, 20 A.D.3d 320, 322, 799 N.Y.S.2d 201 [1st Dept. 2005]).  Accordingly, plaintiff's common-law negligence claim and Montrose's cross claims for common-law contribution and indemnification against Certified are reinstated.