Opinion

Gavilanes v. 919 Ground Lease LLC

  • 2025 NY Slip Op 31093(U)
Court
New York Supreme Court, New York County
Filed
Apr 3, 2025
Status
Unpublished
Author
Leticia M. Ramirez
Cited by
0 cases
Authority
More cited than 34.7%

The opinion

Gavilanes v 919 Ground Lease LLC

2025 NY Slip Op 31093(U)

April 3, 2025

Supreme Court, New York County

Docket Number: Index No. 153246/2022

Judge: Leticia M. Ramirez

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.

INDEX NO. 153246/2022

NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 04/03/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY

PRESENT: HON. LETICIA M. RAMIREZ PART 29

Justice

---------------------------------------------------------------------------------X INDEX NO. 153246/2022

LUIS GAVILANES,

Plaintiff, MOTION DATE 02/06/2024

-v-

MOTION SEQ.

919 GROUND LEASE LLC and STRUCTURE TONE, LLC, NO. 001

Defendants. DECISION + ORDER ON MOTION

---------------------------------------------------------------------------------X

919 GROUND LEASE LLC and STRUCTURE TONE, LLC,

Third-Party

Third-Party Plaintiffs, Index No. 595693/2022

-against-

SPRING SCAFFOLDING, LLC,

Third-Party Defendant.

--------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 26, 27, 28, 29, 30, 31, 32, 33,

34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 62, 63, 64, 65,

66, 67, 68, 69, 70, 71, 72, 73, 76, 77, 78, 79, 80

were read on this motion to/for JUDGMENT - SUMMARY .

Plaintiff moves pursuant to CPLR § 3212 for an Order granting him partial summary judgment

on his Labor Law §240(1) claim against defendants, 919 Ground Lease LLC and Structure Tone,

LLC (hereinafter, “919” and “Structure”), as to the issue of liability only. In turn, 919 and Structure

cross-move pursuant to CPLR § 3212 for an Order granting them summary judgment and dismissing

plaintiff’s complaint.

This Labor Law action stems from an April 1, 2022, accident which occurred at 919 3rd

Avenue, New York, NY when plaintiff, during the course of his employment as a construction worker,

was allegedly caused to fall approximately seven feet to the ground. 919 was the owner of the

premises and Structure was the general contractor hired to perform the lobby renovation project at

the premises. At the time of the accident, plaintiff was an employee of Third-Party Defendant Spring

Scaffold, LLC (“Spring”), a subcontractor hired by Structure to construct a wood panel enclosure of

the premises for the renovation project. This enclosure was the work plaintiff was performing at the

time of his accident.

To recover for his injuries, plaintiff commenced this action against 919 and Structure on April

11, 2022, asserting multiple labor law claims. On November 3, 2022, the third-party action against

Spring was discontinued via a Notice of Voluntary Discontinuance (See NYSCEF Doc. #16). After

plaintiff filed his Note of Issue and Certificate of Readiness on December 8, 2023, he moved for

summary judgment on his Labor Law §240(1) claim on the issue of liability only. In turn, 919 and

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Structure cross-moved for summary judgment on February 9, 2024, in opposition to plaintiff’s motion

and to dismiss his complaint.

A. Timeliness of Defendants’ Cross-Motion

Plaintiff contends that defendant’s cross-motion is untimely and must be disregarded. In the

alternative, plaintiff argues that defendants’ motion should only be considered to the extent that it

seeks similar relief. Defendants’ cross-motion does not address plaintiff’s argument of timeliness.

Pursuant to Brill v. City of New York, 2 NY3d 648, 814 N.E.2d 431, 781 N.Y.S.2d 261 (2004),

the movant on an untimely motion for summary judgment must demonstrate "good cause for the delay

in making the motion." However, when a cross-movant seeks "nearly identical" relief, the court may

consider the untimely cross-motion for summary judgment, even in the absence of good cause (See

Filannino v. Triborough Bridge and Tunnel Authority, 34 AD3d 280, 824 N.Y.S.2d 244 [1st Dept

2006]).

Here, this matter’s Preliminary Conference Order established a 60-day deadline for the filing

of dispositive motions. The Note of Issue was filed on December 8, 2023, and thus defendants’ cross-

motion was due on February 6, 2024. Because defendants did not file their cross-motion until

February 9th, their motion is untimely. However, in light of Filannino, supra, this Court will consider

defendants’ cross-motion to the extent that it seeks “nearly identical” relief as plaintiff’s motion (i.e.,

summary judgment on plaintiff’s Labor Law § 240(1) claim).

STANDARD

To prevail on a motion for summary judgment, the moving party must establish its cause of

action or defense sufficiently to warrant the court as a matter of law in directing judgment in its favor

(Winegard v. New York Univ. Med. Ctf., 64 N.Y.2d 861 [1985]; Zuckerman v. City of New York, 49

N.Y.2d 557 [1980]). Absent such prima facie showing, the motion must be denied, regardless of the

sufficiency of the opposing papers (Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 [1984]).

However, “[o]nce the movant makes the required showing, the burden shifts to the party opposing

the motion to produce evidentiary proof in admissible form sufficient to establish the existence of a

material issue of fact that precludes summary judgment and requires a trial” (Dallas-Stephenson v.

Waisman, 39 A.D.3d 303, 306 [1st Dept. 2007], citing Alvarez, 68 N.Y2d. at 324).

“On a motion for summary judgment, the court’s function is issue finding, not issue

determination, and any questions of credibility are best resolved by the trier of fact” (Martin v.

Citibank, N.A., 64 A.D.3d 477, 478 [1st Dept. 2009]; see also Sheehan v. Gong, 2 A.D.3d 166, 168

[1st Dept. 2003]. And “all of the evidence must be viewed in the light most favorable to the opponent

of the motion” (People v. Grasso, 50 A.D.3d 535, 544 [1st Dept. 2008]).

B. Plaintiff’s Motion for Summary Judgment

In order to prevail in a Labor Law Section 240 case, a plaintiff must prove that (1) he is a

member of the class of workers that the statute was designed to protect, (2) the statute was violated,

and (3) the breach of duty was a proximate cause of plaintiff’s injuries (See, Koenig v. Patrick

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Construction Co., 298 N.Y. 313 [1948]; Crawford v. Leimzider, 100 A.D.2d 568, 473 N.Y.S2d 498

[2nd Dept. 1984]).

i. Plaintiff was a Construction Worker

Here, there is no dispute that plaintiff was a Spring construction worker who worked at the

subject premises at the time of his accident. A review of plaintiff’s deposition sufficiently establishes

that he was hired by Spring on or about March 2022 (See, Plaintiff’s Deposition, NYSCEF Doc #30

at pages 14:10-21 and 15:12-14) and was part of a group of construction workers who were assigned

to set up an outside structure at the subject premises (Id. 26:3-27:3).

Plaintiff testified that he had been working on this project for a few days prior to his accident

(Id. 30:2-7) and that, on the date of his accident, he arrived at the premises at 7am and was instructed

by his foreman, Armando, to unload wood panels from the company truck (Id. 47:18-48:9). He

performed this work until it was time to break for lunch at 1pm (Id. 49:6-8). After lunch, he assisted

co-workers in installing wood panels to the structure (Id. 49:19-23). They worked in pairs to place,

screw, and adjust the panels (Id. 50:6-20). The panels were approximately 3x4 feet and green in color

(Id. 52:9-18) and, generally, he would screw the panels in while Armando held them in place, but

they would alternate tasks (Id. 53:4-19). To perform this work, he required a 7-foot-high mobile

scaffolding belonging to Spring (Id. 32:3-25) and described the scaffold as one being able to adjust

to about twice its height (Id. 33:18-21). It had one platform to work on from which two people could

work and wheels that would be locked into place when the scaffold would be moved into the desired

position (Id. 35:3-17). Other than the scaffold, Spring did not provide plaintiff with any safety

trainings or tools; rather, plaintiff testified that he brought all his tools, including harness, hammer,

pouches, screwdriver, hard hat, and ratchets (Id. 18:22-19:25).

Plaintiff described his accident as follows: at approximately 4pm, while he was installing a

wood panel (Id. 52:22-53:3), Armando told him to cross over to the other side of the structure to

screw in the panel, after which plaintiff proceeded to get down from the mobile scaffold to get some

screws before climbing up the inside of the structure to the horizontal pipe where his foot slipped,

and he fell (Id. 61:14-25). During his deposition, plaintiff identified two pictures depicting the

accident scene (Id. 72:22-79:16). In the first picture, he identified the enclosure he was working on,

the green panels he was installing, the mobile scaffold he worked on, the scaffold’s position at the

time of his accident, and Armando’s position on the mobile scaffold prior to his accident (Id. 72:22-

74:23). In the second picture, which depicted the inside of the structure, plaintiff identified the pipe

from which he fell (Id. 74:24-79:16).

On October 27, 2023, James McMullin’s deposition was held. Mr. McMullin was the project

superintendent for Structure in-charge of overseeing the lobby renovation project (See, James

McMullin’s Deposition, NYSCEF Doc. #32, 11:25-12:3; 12:7-10; 21:9-15). He testified that the

project began in March 2021 and entailed “changing the façade, new ceilings, new floors, [and]

exposing the front of the building” (Id. 20:2-10). Mr. McMullin’s responsibilities included “trade

coordination and site management” (Id.12:11-15) and his day-to-day activities were “mak[ing] sure

trades do what they’re supposed to do” (Id. 12:16-20). He testified that he would be on-site daily, and

his typical working hours were from 7am to 4pm or 5pm (Id. 32:13-21).

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Regarding the date of plaintiff’s accident, Mr. McMullin stated that Spring was the only

contractor on-site and it had about 5 or 6 employees working on the shed (Id. 40:17-23). He did not

observe plaintiff’s accident but learned of it via a call he received around 4:30pm from his project

manager (Id. 51:23-54:3). Mr. McMullin was not at the jobsite at the time of the call but returned to

it approximately 10 minutes after the call (Id. 54:15-24). Upon arriving at the jobsite, he observed the

location of the accident (Id. 54:25-55:7), noticed that an ambulance was already on-site (Id. 56:13-

22), and that plaintiff was already on the ambulance’s stretcher (Id. 56:23-57:2).

Given the foregoing, plaintiff has sufficiently established that at the time of his accident he

was a construction worker who fell under the purview of the Labor Laws.

ii. Violation of Labor Law Section 240(1) and Proximate Cause

Section 240(1) of the Labor Law states:

All contractors and owners and their agents … 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.

The Labor Law was enacted to protect workers by placing ultimate responsibility for safety

practices on owners and contractors rather than on workers themselves (See, Panek v. Albany County,

99 N.Y.2d 452, 457 [2003]; Martinez v. NYC, 93 N.Y.2d 322 [1999]). The statute is construed

liberally in favor of construction workers (Rocovich v. Con. Ed., 78 N.Y.2d 509 [1991]), because

such workers “are scarcely in a position to protect themselves from accidents” (Koenig v. Patrick

Constr. Co., 298 N.Y. 313, 319 [1948]; Quigley v. Thatcher, 207 NY 66, 68 [1912]). Violation of the

statute results in absolute liability for injuries proximately caused as a consequence thereof (Zimmer

v. Chemung County Performing Arts, Inc. 65 N.Y.2d 513 [1985]). The duty imposed by the statute is

nondelegable, and when violation of same causes injury to a member of the class for whose benefit

the statute was enacted, the owner, general contractor and their agents are liable (Haimes v. N.Y.

Telephone Co., 46 N.Y.2d 132 [1978]). This remains true even where the owner exercises no

supervision, control or direction of the work (Id.).

Plaintiff contends that defendants failed to provide him with a scaffold with guardrails/safety

railings or an anchorage point to hook a safety harness/line in violation of Labor Law § 240(1) and

that the absence of such devices proximately caused his accident. Plaintiff also argues that he is

entitled to partial summary judgment on the issue of liability because defendants failed to provide

him with proper fall protection in violation of Labor Law § 240(1) and that this violation proximately

caused his fall, resulting in his sustained injuries.

Here, the Court finds that the defendants violated Labor Law § 240(1) when they failed to

provide plaintiff with the adequate safety device to perform his work. Plaintiff testified that he needed

the mobile scaffold to install every wood panel on the date of the accident and that none of the wood

panels could be installed from the ground floor (See Plaintiff’s Deposition, NYSCEF Doc #30, page

56:8-19). He also testified that he used the mobile scaffold every day, including the date of his

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accident, and that, up to the point of his accident, his work required him to go up and come down

from the scaffold (Id. 46:13-47:5). On the other hand, Mr. McMullin admitted that, even though it

was Structure’s responsibility to inspect the work being done on-site to ensure it complied with safety

procedures (See NYSCEF Doc #32, page 48:16-21), Structure did not provide any of the Spring

workers with any safety equipment for the jobsite, including harnesses, lifelines (Id. 50:7-16) and that

it did not inspect the scaffolding that was on-site (Id. 50:17-20; 51:17-22).

Therefore, it is evident that, at the moment plaintiff’s foreman directed plaintiff to cross over

to the other side of the structure and stand on the horizontal pipes to screw the panel they were

working on, plaintiff should have been provided with a mobile scaffold to stand on to complete his

work (as he had been using up to that point). Alternatively, plaintiff should have been provided with

a similar device “so constructed, placed and operated as to give him proper protection” against the

risk of falling from the area where he was directed to perform his work. Mr. McMullin’s testimony

that Structure did not provide Spring workers with any safety equipment constitutes a breach of its

nondelegable duty under Labor Law § 240(1). Therefore, because defendants failed to provide

plaintiff the proper means with which he could safely complete his work or a safety device to guard

him from falling, plaintiff has established his prima facie entitlement to summary judgment as a

matter of law on his Labor Law § 240(1) claim.

C. Defendants’ Cross-Motion and Recalcitrant Employee Defense

Defendants’ cross-motion opposes plaintiff’s request for summary judgment and seeks to

dismiss the complaint in its entirety. As stated above, defendants’ cross-motion is untimely, and thus

will only be considered to the extent it opposes plaintiff’s request for summary judgment. It will also

be reviewed to determine whether summary judgment should be granted in favor of the defendants

on the Labor Law § 240(1) claim.

It is well-settled that “[a] defendant has no liability under Labor Law § 240 (1) when plaintiff:

(1) ‘had adequate safety devices available,’ (2) ‘knew both that’ the safety devices ‘were available

and that [they were] expected to use them,’ (3) ‘chose for no good reason not to do so,’ and (4) would

not have been injured had they ‘not made that choice’ (Biaca-Neto v. Boston Rd. II House. Dev. Fund

Corp, 34 N.Y.3d 1166, 144 N.E.3d 363, 121 N.Y.S.3d 753 [2020] citing Cahill v. Triborough Bridge

& Tunnel Auth., 4 N.Y.3d 35, 40, 823 N.E.2d 439, 790 N.Y.S.2d 74 [2004])

Here, defendants argue that plaintiff was the sole proximate cause of his injuries when he

failed to use the same mobile scaffolding he had been using moments before his accident and decided

instead to climb the inside structure from where he slipped and fell (See Affirmation in Support of

Cross-Motion, NYSCEF Doc #42, page 11, para. 41). Defendants’ argument ignores, however, that

Armando, plaintiff’s foreman, directed plaintiff to cross over to the other side of the structure to screw

the wood panel they were working on (See NYSCEF Doc #30, 64:24-65:8). They also disregard that

Armando had previously directed plaintiff to climb the inside of the structure to “screw some small

bases that needed to be placed with the panel” on a prior date (Id. 65:14-66:9), that plaintiff had been

working for Spring for only a month prior to his accident (Id. 15:12-14; 17:10-12) and that his total

experience working with scaffolds up to the time of his accident only consisted of approximately two

weeks working under Armando (Id. 17:19-22). This demonstrates that plaintiff was an inexperienced

scaffold worker whose minimal experience was limited to what he had acquired over the two weeks

working with Armando and that, up to the time of his accident, it included the expectation that, at

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Armando’s direction, he would have to climb the inside of the structure to perform his work without

the mobile scaffold. Therefore, defendants cannot show that plaintiff knew he was expected to always

use the mobile scaffold, nor that plaintiff chose not to use the mobile scaffold for “no good reason”

because the evidence shows that he was directed by Armando to cross over and climb the inside of

the structure.

Furthermore, plaintiff testified there was only one mobile scaffold available at the jobsite (Id.

64:3-5), and no evidence has been presented to show that another scaffold or another device was

readily available to plaintiff and that plaintiff knew of such other device. To argue that plaintiff could

have used the same mobile scaffold that Armando needed to hold the wood panel from the exterior

while plaintiff screwed it on from the interior is untenable. The evidence shows that either Armando

could use the scaffold on the exterior or that plaintiff could have used it from the interior. When asked

whether the scaffold could have been repositioned so that Armando could hold the panel in place

from the exterior while plaintiff screwed it from the interior, plaintiff testified that he couldn’t say

and that he just followed Armando’s orders (Id. 67:24-68:5). Therefore, when plaintiff was directed

to climb the inside of the structure to screw the panel from the interior, he should have been provided

with his own mobile scaffold or a similar device for him to complete his work and provide him proper

protection against falling.

Next, defendants argue that an A-frame ladder was readily available on-site and that plaintiff

knew that the ladder was available because Armando had told him about it, and thus the normal and

logical response for plaintiff should have been to get it and use it to complete his work. In support of

this argument, defendants have submitted two affidavits by Armando (See NYSCEF Doc #57 and

58). A review of these affidavits shows that one of them was allegedly written on the date of plaintiff’s

accident (on April 1, 2022) and the other was allegedly drafted on February 9, 2024. The Court now

turns to plaintiff’s allegation that the affidavits are inadmissible because they are unaccompanied by

a translator’s affidavit setting forth the translator’s qualifications.

CPLR § 2101(b) states, in relevant part, that “[w]here an affidavit or exhibit annexed to a

paper served or filed is in a foreign language, it shall be accompanied by an English translation and

an affidavit by the translator stating his qualifications and that the translation is accurate.” (See also

Eustaquio v. 860 Cortlandt Holdings, Inc., 95 A.D.3d 548, 944 N.Y.S.2d 78 [1st Dept. 2012]

[statements translated by foreman’s daughter from Greek to English were inadmissible, as the

statements were not accompanied by an attestation setting forth the daughter’s qualifications and the

accuracy of the translation]; Mosquera v. TF Cornerstone Inc., 230 A.D.3d 1065, 217 N.Y.S.3d 94

[1st Dept. 2024] [Worker’s Compensation questionnaire failed to create a question of fact, as it was

not accompanied by a certification from the translator indicating the accuracy of the translation from

Spanish]; Nava-Juarez v. Mosholu Fieldston Realty, LLC, 167 A.D.3d 511, 91 N.Y.S.3d 373 [1st

Dept. 2018] [Defendants failed to show that the translation of information on a C-3 report was

provided by a competent, objective interpreter whose translation was accurate]).

Here, Armando’s affidavits are not accompanied by an attestation setting forth the translator’s

qualifications. Therefore, the court will not entertain the statements contained therein.

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Lastly, defendants argue that a photograph exchanged by plaintiff as part of his “Exchange of

Photographs” dated October 26, 2022, as “copies of photographs depicting the accident location,”

depict an A-frame ladder behind the mobile scaffold (See Affirmation in Support of Cross-Motion,

NYSCEF Doc. #42, page 10, para. 38). Here, even assuming, arguendo, that an A-frame ladder was

present somewhere on the subject premises on the date of plaintiff’s accident, under Biaca-Nieto,

supra, the defendants would have to also show (1) that plaintiff both knew that the ladder was

available on-site and that plaintiff was expected to use it and (2) that plaintiff chose not to use the

ladder for no good reason. As shown above, defendants have failed to make such showing in light of

plaintiff’s testimony that there were no ladders available on-site and that Spring workers did not use

ladders (See Plaintiff’s Deposition, NYSCEF Doc. #30, 64:6-11) and that Armando had directed

plaintiff to climb the inside of the structure on the date of his accident and on a prior occasion (Id.

61:14-25; 65:14-66:9). Just showing that a ladder was available somewhere on-site is insufficient

(See Gallagher v. New York Post, 14 N.Y.3d 83, 923 N.E.2d 1120, 896 N.Y.S.2d 732 [2010] [plaintiff

was permitted to recover because there was "no evidence in the record" that he knew "where to find

the safety devices" or "that he was expected to use them"]).

In light of the foregoing, the defendants have failed to raise a triable issue of fact to defeat

plaintiff’s prima facie showing. Additionally, defendants have failed to provide sufficient admissible

evidence to show that they are entitled to summary judgment on plaintiff’s Labor Law § 240 (1)

claim, and therefore their cross-motion must be denied in its entirety.

Accordingly, it is hereby,

ORDERED: Plaintiff’s motion pursuant to CPLR § 3212 for an Order granting summary

judgment on the issue of liability on his Labor Law § 240 (1) claim is granted; and it is further,

ORDERED: Defendants’ cross-motion is denied in its entirety.

This constitutes the Decision and Order of this Court.

4/3/25

DATE LETICIA M. RAMIREZ, J.S.C.

CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

□

GRANTED DENIED x GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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