Jermaine Johnson, Plaintiff, v. FORWARD MECHANICAL CORP (2026)

The following papers efiled on NYSCEF were used on this motion: 186-207.

Upon the foregoing papers, having heard oral argument  ¹ , and due deliberation having been had, the within motion is determined as follows.

Background

This is Defendant DHS Fraco LLC ("DHS Fraco")'s motion for summary judgment against all parties on the issue of liability, asserting that neither Labor Law § 240 (1), § 240 (2) nor § 240 (3) apply to the facts and circumstances in the present action; (2) none of the alleged predicates for Labor Law § 241 (6) liability were violated or apply to the instant facts and circumstances; and (3) there was no defective condition and DHS Fraco did not oversee the means and methods of anyone's work.

Plaintiff Jermaine Johnson ("Plaintiff" or "Johnson") commenced this action under various provisions of the Labor Law for injuries sustained on October 10, 2019, as a junior mechanic while on the roof of 199 2nd Street in Mineola, Nassau County, New York. On that date, Johnson attempted to interlock a pipe into position next to a cooling tower on the roof and his left hand became wedged between the pipe and cooling tower. The bill of particulars indicates that Johnson underwent multiple surgeries to his left hand and experiences complex regional pain syndrome in his upper left and right arms. (See NY St Ct Elec Filing [NYSCEF] Doc No. 195.)

On the date of the accident, Plaintiff was employed by the site's plumbing sub-contractor, Third-Party Defendant Forward Mechanical Inc. ("Forward"). The Property Owner, Mineola Metro LLC ("Mineola"), was also the project's general manager; the Court granted summary judgment to Mineola on the basis that Plaintiff controlled the means and methods of his work and it was not responsible for the accident (see NYSCEF Doc No. 161). DHS Fraco, the movant herein, only supplied sidewalk bridges as overhead protection for pedestrians around the base of the construction site.

Movant's Contentions

Movant Defendant DHS Fraco argues that it is not liable to Plaintiff as a matter of law on the basis that there are no issues of fact which could impute liability onto it. DHS Fraco avers that Plaintiff's deposition transcript confirms that on the day of the accident, Plaintiff was given instructions as to what he was going to do by his foreman, Derrick, a Forward employee, and no one at DHS Fraco oversaw or directed the means and methods of anyone's work, including Plaintiff's. Additionally, DHS Fraco was not involved in the plumbing work nor was a sidewalk bridge located on the roof where the accident happened.

In support of its motion for summary judgment, DHS Fraco provides an affidavit from Daniel Chirila, the Field Operations Manager of DHS Fraco at the time of the accident (see NYSCEF Doc No. 188). Chirila states that Plaintiff was not an employee of DHS Fraco nor did DHS Fraco supervise or control Plaintiff. In support of DHS Fraco's contention it was a sub-contractor, Chirila provides the revised proposal between Mineola Metro and DHS Fraco (see id.). Chirila also provides their revised proposal to Mineola Metro to erect, maintain, and dismantle sidewalk bridges to prove that DHS Fraco was not a general contractor on the project.

Labor Law § 240 (1) is Not Applicable:

DHS Fraco argues that § 240 (1) does not impute strict liability to them because Plaintiff was not working at a height and the accident had nothing to do with a gravity-related risk or an alleged lack or failure of an enumerated safety device under the statute. Although located on the roof at the time of the accident, Plaintiff was not injured as a result of an elevation risk, and the pipe did not fall on Plaintiff's left hand. Instead, Plaintiff's left hand became wedged between a pipe and a cooling tower (see NYSCEF Doc No. 187 at 8). "Whether a plaintiff is entitled to recovery under Labor Law 240 (1) requires a determination of whether the injury sustained is the type of elevation-related hazard to which the statute applies" (Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 7 [2011], citing Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]).

Labor Law § 240 (2) and § 240 (3) are Not Applicable:

Labor Law § 240 (2) and § 240 (3) are both part of the broader Labor Law § 240, which protects construction workers from falls and other gravity-related accidents. § 240 (2) focuses on the specific duties of owners and contractors to provide protective equipment, while Section 240 (3) outlines the type of devices that must be provided. The injury sustained by Plaintiff is not the type of elevation-related hazard to which § 240 (1) applies, Plaintiff's accident constitutes a routine workplace risk which is not covered by the statute, and § 240 (3) devices do not apply.

Labor Law § 241 (6) is Not Applicable:

Plaintiff's § 241 (6) claim should be dismissed as no violation of the Industrial Code provisions cited by Plaintiff was the proximate cause of his accident. Section 23 of the Industrial Code applies to protection in construction, demolition, and excavation operations, and each of the Industrial Code provisions claimed by Plaintiff to have been violated herein are either inapplicable to this matter or have been held by the Appellate Divisions to constitute generalized safety standards that cannot support a cause of action under § 241(6) (see Kowalik v Lipschutz, 81 AD3d 782 [2d Dept 2011], citing Ross v Curtis Palmer Hydro-Elec. Co., 81 NY2d 494 [1993] [plaintiff's failure to identify a violation of any specific provision of the State Industrial Code precludes liability under Labor Law § 241(6)]).

Labor Law § 200 and Common Law Negligence Claims Are Not Applicable:

Labor Law § 200 is a codification of the common law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work. Liability under § 200 falls into two broad categories: liability for a dangerous condition or liability for the means and methods of the injury-producing work (see Carranza v JCL Homes, Inc., 210 AD3d 858, 860 [2d Dept 2022]). Defendant DHS Fraco did not supervise or control the means and methods of Plaintiff's work nor did not create or have notice of any dangerous condition.

DHS Fraco contends that where there is a claim which stems from alleged defects or dangers arising from a subcontractor's methods or materials, recovery against the owner or general contractor cannot be had unless it is shown that the party to be charged exercised some supervisory control over the operation (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 505 [1993]). DHS Fraco did not provide any instructions to or supervision of Plaintiff. Further, Plaintiff testified that on the day of the accident, he was given instructions as to what he was going to do this day by his foreman Derrick, who worked for Forward. Plaintiff's own deposition testimony established that after returning from lunch, Plaintiff and Richard inquired from Derrick how to maneuver the pipes to get them up on the roof and Derrick suggested using the dolly.

Finally, DHS Fraco avers that there has been no evidence of any dangerous conditions at the jobsite and, therefore, this Court should also dismiss Plaintiff's common law negligence and § 200 claims against DHS Fraco. DHS Fraco only provided certain sidewalk protections on the ground floor. The contract for DHS Fraco did not require DHS Fraco to perform any construction work on the building and no supervision was required by DHS Fraco of other employees. Similarly, DHS Fraco did not owe a duty to Plaintiff.

Opposition

Johnson relies heavily on the Court's order in Motion Sequence No. 3, which denied summary judgment to DHS Fraco on the basis that the Chirila affidavit did not dispose of all triable issues of fact as to whether DHS Fraco was considered a sub-contractor on the site (see NYSCEF Doc No. 129). Plaintiff further contends that the revised Chirila affidavit remains deficient as it does not sufficiently authenticate the signature of Paul Weschler, the Project Manager for DHS Fraco, nor does the revised affidavit explain why it was deficient in the first instance.

Finally, Plaintiff argues that this motion should be denied on procedural grounds, as it is a successive motion for summary judgment without newly discovered evidence nor sufficient cause. DHS Fraco offers the contract between Mineola Metro and DHS Fraco; however, it was not properly authenticated; Chirila fails to provide any evidence to substantiate how Chirila is familiar with the signatures on the contract.

Discussion

This action presents a relatively straightforward dispute under the Scaffold Law, as Labor Law § 240 is known as. Here, Plaintiff was working on the roof of a newly constructed commercial building, attempting to interlock pipes together. Plaintiff attempts to argue that § 240 (1) is applicable by the mere fact that Plaintiff was injured on a roof as he was injured whilst at an elevated level. However, there is no evidence to suggest that Plaintiff's injuries were proximately caused by gravity. In a scenario where plaintiff did not fall from a height, and no object fell from a height striking him, Labor Law § 240 (1) does not apply; proper interpretation of legislative intent and stare decisis dictates rejection of plaintiff's efforts to expand the scope of Labor Law § 240 (1) to encompass a type of hazard never contemplated for inclusion in the statutory strict liability provided for uniquely height-related hazards (see Runner v New York Stock Exch., Inc., 13 NY3d 599, 601 [2009]). For the reasons articulated above, Plaintiff's causes of action, predicated upon Labor Law § 240 (2) and § (3) are similarly dismissed. It is noted that no scaffold or need for a scaffold is at issue.

There is no liability on the part of DHS Fraco under Labor Law § 241 (6). Plaintiff has not made a cogent argument that any specifically applicable Industrial Code provision governed the instant accident.

Plaintiff's causes of action predicated upon common law negligence and Labor Law § 200 are similarly dismissed on the basis that DHS Fraco did not owe Plaintiff a duty nor is there evidence of any alleged defect or dangerous condition at the site attributable to DHS Fraco. There is no nexus between Plaintiff and Defendant DHS Fraco, absent the mere fact that they happened to contribute work at the construction site.

Plaintiff's argument for denial because this is a successive motion for summary judgment is denied, as providing relief to DHS Fraco "further[s] the ends of justice and eliminate[s] an unnecessary burden on the resources of the courts" (Verizon NY, Inc. v Supervisors of Town of N. Hempstead, 169 AD3d 740, 744 [2d Dept 2019]). At oral argument, the Court inquired of Plaintiff how it intended to prove liability against DHS Fraco. There was no responsive answer.

Plaintiff contends that the revised proposal should be deemed inadmissible because the Chirila affidavit purportedly fails to authenticate the signature of the Project Manager, Paul Waschler. The Court finds, however, that the affirmation sufficiently authenticates the signature. Chirila states: "The contract attached hereto was signed by Edmund Kirsch, the Vice President of DHS Fraco LLC overseeing operations. The contract is kept in the files of DHS Fraco LLC. I am familiar with Mr. Kirsch's signature which appears on the contract. I had discussed the execution of the contract and the terms for service to be provided under the contract with Mr. Kirsch. I am also familiar with the equipment provided under this contract and the work required to be provided to Mineola Metro LLC." (NYSCEF Doc No. 188.)

Moreover, the Court rejects Plaintiff's argument that the Chirila affidavit is practically a repeat of the prior one. There were sufficient additions made post-discovery, and support from Mineola Metro confirmed DHS Fraco's lack of supervision of Plaintiff's work. There is simply no valid line of reasoning by which DHS Fraco should be compelled to remain as a Defendant in this action.

Conclusion

Accordingly, Defendant DHS Fraco's motion for summary judgment is GRANTED. The complaint is dismissed insofar as causes of action are asserted against Defendant DHS Fraco.

THE FOREGOING CONSTITUTES THE DECISION AND ORDER OF THIS COURT.

FOOTNOTES

1.   Transcripts may be procured from the court reporter (see Matter of Lewandowski v Office of Ct. Admin., 173 Misc 2d 335 [Sup Ct, Albany County 1997]).

Aaron D. Maslow, J.