Frankie Guzman, Plaintiff, v. AWISCO NEW YORK CORP (2026)

The following papers numbered 1 to 10 read on this motion.

NOTICE OF MOTION, STATEMENT OF MATERIAL FACTS, AFFIRMATION IN SUPPORT, MEMO OF LAW IN SUPPORT, AND EXHIBITS (Mtn. Seq. 6) No(s). 1, 2, 3, 4, 5

THIRD-PARTY DEFENDANT AWISCO NEW YORK CORP.'s AFFIRMATION IN OPPOSITION, RESPONSE TO STATEMENT OF MATERIAL FACTS (Mtn. Seq. 6) No(s). 6,7

PLAINTIFF'S MEMO OF LAW IN OPPOSITION (Mtn. Seq. 6) No(s). 8

REPLY AFFIRMATION (Mtn. Seq. 6) No(s). 9

THIRD-PARTY DEFENDANT AWISCO NEW YORK CORP.'s REPLY AFFIRMATION (Mtn. Seq. 6) No(s). 10

UPON THE FOREGOING CITED PAPERS, THE DECISION IN THIS MOTION IS AS FOLLOWS:

Motion by defendants/third-party plaintiffs Adesh Seecharan, B & S Iron Works, LLC and B & S Iron Works, Inc., (B & S Iron) for summary judgment (CPLR 3212) and dismissal of: (1) plaintiff's complaint; (2) defendant, Ariana Peralo as Executrix of the Estate of Charles Peralo, M.D.'s (Dr. Peralo) and defendant, Middletown Medical P.C.'s (Middletown) cross-claims; and (3) third-party defendant Awisco New York, Corp.'s (Awisco) counterclaims, is granted in part. Plaintiff's complaint asserts claims against B & S Iron for common law negligence and violations of Labor Law §§ 200, 240 and 241. Dr. Peralo and Middletown respectively assert cross-claims against B & S Iron for contractual indemnity, common law indemnification and contribution. Awisco asserts counterclaims against B & S Iron for contractual indemnity, common law indemnity, contribution, breach of contract and failure to procure insurance. The complaint and bill of particulars essentially allege that on June 6, 2017, plaintiff was delivering eight 50-pound welding rod cans that were on a pallet in the back of an Awisco pickup truck he was driving to B & S Iron's yard. As plaintiff was pulling the pallet towards the rear of the truck bed, the liftgate he was standing on buckled, causing injury to his shoulder.

As the movant, B & S Iron bears the initial prima facie burden of showing an entitlement to summary judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact. (Alvarez v Prospect, 68 NY2d 320 [1986].) If it does, then the burden shifts to plaintiff to produce evidentiary proof in admissible form sufficient to create issues of fact to warrant a trial, (Alvarez, 68 NY2d 320), and denial of summary judgment. Addressing first plaintiff's Labor Law § 200 and common law negligence claims, B & S Iron argues that plaintiff was the sole and proximate cause of the accident. (Kerrigan v TDX, 108 AD3d 468 [1st Dept 2013].) Keeping in mind that Labor Law § 200 is essentially a codification of the common law duty imposed upon an owner or general contractor to maintain a safe construction site, (Rizzuto v L.A. Wenger, 91 NY2d 343 [1998]), plaintiff's must show that B & S Iron was responsible for some defect on the property or that it controlled the manner and means of the injury producing work. (Villanueva v 114 5th Avenue, 162 AD3d 404 [1st Dept 2018].) B & S Iron relies on plaintiff's deposition testimony that B & S Iron did not direct or control how he performed the delivery that led to his injury. It also relies on the deposition testimony of Awisco's Executive Vice President, Felim O'Malley's, who stated that it was plaintiff's responsibility to determine how to arrange and unload the truck. B & S Iron notes that none of the witnesses in this action have testified that B & S Iron directed or controlled plaintiff's injury-producing work, nor have they testified that it was B & S Iron's responsibility to do so. In addition, B & S Iron notes that plaintiff was not injured by a condition on B & S Iron's property since the only cause of the accident was the movement of the liftgate on Awisco's pickup truck, which was parked on the street. And of course, B & S Iron further notes that it was not responsible for the maintenance of Awisco's pickup truck or liftgate.

According to B & S Iron, plaintiff's injury-producing work was not covered under Labor Law §§ 240(1) and 241(6). With respect to the Labor Law § 240(1) claim, B & S Iron argues that Labor Law § 240(1) only applies to specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured. (Ross v Curtis-Palmer, 81 NY2d 494 [1993].) B & S Iron further argues that even if plaintiff was engaged in Labor Law § 240(1) work, his alleged accident was caused by nothing more than ordinary routine work. (Hernandez v 601 West, 172 AD3d 548 [1st Dept 2019].) Since plaintiff's accident did not involve a gravity-related injury and constituted only ordinary routine work, B & S argues that the protections of Labor Law § 240(1) do not apply. With respect to the Labor Law § 241(6) claim, B & S Iron argues that it is inapplicable because plaintiff failed to allege a specific industrial code violation to support his Labor Law § 241(6) claim. (Ross, 81 NY2d 494.) Moreover, B & S Iron claims that Labor Law § 241(6) was not implicated where, as here, plaintiff was engaged in a routine delivery of materials to a location where no "construction, excavation, or demolition" was taking place and where the materials had no direct connection to any such work.

As for Dr. Peralo's and Middletown's cross-claim for contractual indemnity, B & S Iron argues that it must be dismissed as these defendants have not produced an agreement that required B & S Iron to indemnify them, nor have they produced any evidence of an intent to do so. (Hooper v AGS, 74 NY2d 487 [1989].) Likewise, as to Dr. Peralo's and Middletown's cross-claims for common law indemnification and contribution, B & S Iron contends that said cross-claims must also be dismissed because it was not negligent nor did it proximately cause plaintiff's accident. (Astrakan v City of New York, 184 AD3d 444 [1st Dept 2020].) Lastly, B & S Iron contends that Awisco's counterclaims for contractual indemnity, common law indemnity, contribution, breach of contract and failure to procure insurance should be dismissed, as a matter of law, because plaintiff's injury was caused by plaintiff and/or Awisco's negligence. B & S Iron further contends that Awisco's counterclaims for contractual indemnity, breach of contract and failure to procure insurance claims are entirely based on contractual provisions that are inapplicable to the instant facts. Specifically, B & S Iron claims that the indemnity provision Awisco relies on relates to indemnity for accidents involving gas cylinders, an item that Awisco admitted plaintiff was not delivering at the time of his alleged accident. As such, B & S Iron claims that there is no basis for Awisco's contractual indemnity and breach of contract claims. In addition, B & S Iron claims that there was no requirement that B & S Iron purchase additional insured coverage for Awisco, as the language in the invoice/ticket did not mandate the purchase of same.

Based on the aforementioned, the court is satisfied that B & S Iron has met their prima facie burden for summary judgment, (Zuckerman v City of NY, 49 NY2d 557 [1980]; Kaffka v NY Hospital, 228 AD2d 332 [1st Dept 1996]), which now shifts to the other parties to demonstrate triable issues of fact to preclude dismissal. Neither Dr. Peralo nor Middletown submitted opposition to that portion of the motion seeking dismissal of their respective cross-claims for contractual indemnity, common law indemnification and contribution; therefore, said claims are dismissed accordingly. In addition, plaintiff's opposition papers do not address Labor Law §§ 240(1) and 241(6); therefore, these claims are likewise dismissed. Plaintiff opposition relies solely on common law negligence and Labor Law § 200 to argue that he was injured due to B & S Iron's failure to provide expected and appropriate unloading equipment (i.e., a forklift with forks long enough to unload materials from a pickup truck and personnel qualified to operate such equipment). According to plaintiff, upon arrival at B & S Iron's yard, a woman by the name of Stacy Seecharan told him she was going to unload the truck using a forklift. Plaintiff alleges that the accepted and expected practice required that pallets be removed from the truck utilizing a forklift. He alleges that the forklift B & S Iron made available for unloading required extensions (that were available somewhere in the yard that day) in order to reach the pallet at the back of the truck. According to plaintiff, he was injured while moving the pallet closer to the liftgate at the back of the truck so that Ms. Seecharan could easily remove it with the forklift. He alleges that his injuries occurred while Ms. Seecharan was still attempting to start the forklift, and claims that B & S Iron's failure to make a suitable forklift and operator available was a proximate and contributing cause of his injuries. Lastly, plaintiff contends that any alleged failure to utilize a different method of unloading the truck cannot be deemed the sole proximate cause and, at most, was comparative negligence that must be resolved as a question of fact at trial.

Plaintiff's allegations regarding proper delivery procedures are inconsistent with that of his employer, Awisco. According to Awisco's Executive Vice President, Felim O'Malley, Awisco did no require or expect plaintiff or any other driver to manually move a 400-pound pallet. Mr. O'Malley testified that when a forklift is not available, plaintiff should remove the eight welding rod packages, moved them to the back of the truck, placed them on the truck bed, stepped down, picked the welding rod package up from the truck bed and carried it onto the yard. He should not have attempted to move a 400-pound pallet. Here there is no dispute that a forklift was available, and plaintiff testified that while Ms. Seecharan was getting the forklift, he decided on his own to move the entire pallet towards the back of the truck. Plaintiff admits that he never told Ms. Seecharan that she would need an extending forklift to remove the pallet, and concedes that Ms. Seecharan was still attempting to start the forklift while he was moving the pallet. In addition, plaintiff admits that Ms. Seecharan never directed or controlled his work, never directed him to move the pallet, and he alone decided that the forklift in question would not reach the pallet. As B & S Iron correctly noted, when plaintiff was injured he was moving the very pallet he was supposed to deliver in the back of his employer's truck, which B & S Iron had no duty to maintain and was parked in the street at the time of the accident, so there is no basis to claim that this accident was caused by a defect on B & Iron's property. Plaintiff was injured as a result of his sole decision on how to perform his delivery.

As to Awisco's counterclaims, it must be noted that its opposition papers appear to solely address its counterclaim for contractual indemnification against B & S Iron; therefore, the balance of its counterclaims for common law indemnity, contribution, breach of contract and failure to procure insurance are dismissed accordingly. With respect to Awisco's counterclaim for contractual indemnity, Awisco relies on the terms and conditions of its invoice/ticket with B & S Iron, which provided that: "The vendee shall indemnify and save harmless the vendor from and against all loss of damage arising out of injuries to or death of persons and damage to or destruction of property in any manner caused by incident to or connected with the cylinder or the contents thereof furnished by the vendor wherever the same may be during the aforesaid period (the vendee may insure against the foregoing liabilities under standard form of insurance policies. Whenever necessary vendee's policies should be endorsed to provide for coverage and in the event of any loss or damage as aforesaid vendee should promptly report such damage or loss to the insurance company and the vendor)." Awisco contends that regardless of the outcome of the main action, its invoice/ticket with B & S Iron specifically delineates the scope of the indemnification claim in its favor.

Awisco also addressed the truck's liftgate, and notes that before any truck leaves for delivery it is inspected by Awisco. In addition, Awisco notes that plaintiff testified at his deposition that: (1) he never had any prior difficulties with the vehicle in general, either mechanical or anything to do with the liftgate; (2) he had driven this van more than 20 times prior to the date of accident; (3) prior to the accident he had never placed a skid on the extended liftgate; and (4) while loading the vehicle there was no indication that the liftgate was unstable or not sound. Awisco also notes that its Executive Vice President, Felim O'Malley's, testified at his deposition that in June 2017 he did not recall plaintiff complaining about the operation of the vehicle at the time of the accident. Awisco also relied on its Manger of Dock and Delivery, Richard Wolyiec's, deposition testimony that there was nothing to indicate that there was a problem with any equipment that was used or any problem with the truck itself. Mr. Wolyiec also testified that plaintiff would have been given safety instructions on how to handle merchandise in conjunction with forklift operations. Therefore, Awisco claims that the record is devoid of any defects of the liftgate, but rather it contends that the liftgate moved solely because of plaintiff's actions. Lastly, Awisco claims that although the indemnity language contained on the invoice/ticket only applied to the use of cylinders, it contends that the welding rod cans are sufficiently similar (emphasis added) in packaging to trigger the indemnification language on the invoice/ticket.

Even viewing the evidence in a light most favorable to plaintiff, (O'Sullivan v Presbyterian, 217 AD2d 98 [1st Dept 1995]), this court finds that plaintiff failed to raise triable issues of fact as to his common law negligence and Labor Law § 200 claims, and without these underlying claims Awisco cannot seek indemnification against B & S Iron. B & S Iron did not direct or control plaintiff's work, had no right or responsibility to maintain and/or correct any condition that caused the accident, and did not have had notice of any condition on Awisco's truck. Therefore, the instant motion is granted, all claims (including cross-claims and counterclaims) against B & S Iron are dismissed, and the clerk shall enter judgment in favor of B & S Iron accordingly. B & S Iron is directed to serve a copy of this decision with notice of entry upon all sides within 20 days of receipt of copy of same. This constitutes the decision and order of this court.

Dated: 8/7/26

Hon. Joseph E. Capella, J.S.C.

Joseph E. Capella, J.