JARA v. CITY OF NEW YORK

Docket No. 520546/2017.

2019 NY Slip Op 31718(U)

LUIS O. JARA, Plaintiff, v. THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF EDUCATION and NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY Defendants.

Supreme Court, Kings County.

May 29, 2019.


DECISION AND ORDER

The Decision/Order on this Motion is as follows: This Court denies Plaintiff Luis O. Jara's motion pursuant to CPLR 3212 for partial summary judgment on liability against Defendants City of New York, New York City Department of Education and New York City School Construction Authority pursuant to Labor Law Section 240(1) because it is premature [Plaintiff 1, Exhs. A-P; Plaintiff 2 Memorandum of Law; Defendants Opposition 3, Exhs. A-D; Plaintiff Reply Affirmation 4, Exhs. A-B].

BACKGROUND, PROCEDURAL HISTORY AND ARGUMENTS

This action is for personal injuries sustained by Plaintiff Luis O. Jara ("Jara") on December 27, 2016 at P.S. 77, 62 Park Place, Brooklyn, New York when bricks were allegedly improperly secured as they were hoisted to an elevated scaffold. The bricks fell, causing injuries to Plaintiff. The City of New York ("City") and New York City Department of Education ("NYCDOE") owned and operated the property located at 62 Park Place, Brooklyn, New York. The New York City School Construction Authority ("NYCSCA"), a public benefit corporation organized under the laws of the State of New York awarded a contract to Plaintiff Jara's employer, Cinalta Construction Corp., ("Cinalta"). Cinalta was to perform exterior masonry, flood elimination as well as window, parapet and roof work at that location [Plaintiff 1, Exhs. A-P; Plaintiff 2 Memorandum of Law; Defendants Opposition 3, Exhs. A-D; Plaintiff Reply Affirmation 4, Exhs. A-B].

Plaintiff served a Notice of Claim on March 23, 2017 upon the City, NYCDOE and NYCSCA (collectively "Defendants") [Plaintiff 1, Exhs. A-P; Plaintiff 2 Memorandum of Law; Defendants Opposition 3, Exhs. A-D; Plaintiff Reply Affirmation 4, Exhs. A-B].

The action was commenced with the filing and service of a Summons and Complaint on October 24, 2017. Issue was joined by the service of Verified Answers on behalf of Defendant NYCSCA on November 21, 2017 and Defendants City and NYCDOE on May 18, 2018 [Plaintiff 1, Exhs. A-P; Plaintiff 2 Memorandum of Law; Defendants Opposition 3, Exhs. A-D; Plaintiff Reply Affirmation 4, Exhs. A-B].

Plaintiff testified at a 50-h hearing on May 26, 2017 [Plaintiff 1, Exhs. A-P; Plaintiff 2 Memorandum of Law; Defendants Opposition 3, Exhs. A-D; Plaintiff Reply Affirmation 4, Exhs. A-B].

Terrier Claims Services ("Terrier Claims") performed an investigation of the accident scene on behalf of Defendants on December 28, 2016, one day after the accident. Its report, dated January 11, 2017 detailed the investigators' inspection of the accident scene, including the canvas basket lifting mechanism. There were also interviews with five (5) Cinalta employees, including Plaintiff, two eyewitnesses, Joseph Nieto ("Nieto") and Jesus Tapia ("Tapia"). Terrier Claims also interviewed three additional Cinalta employees who did not witness the accident but were involved in the post-accident events. Those Cinalta employees were Cinalta Project Labor Foreman Roger Bowan ("Bowan"), Cinalta's Project Supervisor Frank Arcuri, Jr. ("Arcuri"), and Cinalta's Local 79 Labor Shop Steward Luis Paucay Naula ("Naula") [Plaintiff 1, Exhs. A-P; Plaintiff 2 Memorandum of Law; Defendants Opposition 3, Exhs. A-D; Plaintiff Reply Affirmation 4, Exhs. A-B].

Cinalta's Project Supervisor Frank Arcuri, Jr. prepared a Workers' Compensation Employer's Report of Work-Related Injury, dated December 27, 2016, the date of the injury [Plaintiff 1, Exhs. A-P; Plaintiff 2 Memorandum of Law; Defendants Opposition 3, Exhs. A-D; Plaintiff Reply Affirmation 4, Exhs. A-B].

Plaintiff Jara filed a Workers' Compensation Employee Claim Report, dated January 3, 2017 [Plaintiff 1, Exhs. A-P; Plaintiff 2 Memorandum of Law; Defendants Opposition 3, Exhs. A-D; Plaintiff Reply Affirmation 4, Exhs. A-B].

In his Notice of Summary Judgment Motion pursuant to CPLR 3212 for Partial Summary Judgment on Liability, dated October 5, 2018, Plaintiff argues that his motion should be granted based upon his Labor Law Section 240(1) claims against all Defendants due to their failure to follow the statute. He insists that the breach of Labor Law Section 240(1) was the proximate cause of the accident. He contends that his motion is not premature because of the futility of further discovery uncovering any evidence inconsistent with the manner in which the accident occurred. See Sanatass v. Consolidated Investing Co., Inc., 10 N.Y.3d 333, 858 N.Y.S.2d 67 (2008); Ross v. Curtis-Palmer Hydro-Elec., Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49, 618 N.E.2d 82 (1993); DeHaen v. Rockwood Sprinkler Co., 258 N.Y. 350, 179 NE 764; Rocovich v. Consolidated Edison, Co., 78 N.Y.2d 509, 577 N.Y.S.2d 219 (1991); DelVecchio v. State of New York 246 A.D.2d 498, 667 N.Y.S.2d 401 (2nd Dept., 1998); Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487, 634 N.Y.S.2d 35 (1995); Paredes v. 1668 Realty Associates, LLC, 110 A.D.3d 700, 972 N.Y.S.2d 304 (2nd Dept., 2013); Mendoza v. Bayridge Parkway Associates, LLC, 38 A.D.3d 505, 831 N.Y.S.2d 485 (2nd Dept., 2007); Baker v. Barron Educational Service Corp., 248 A.D.2d 655, 670 N.Y.S.2d 587 (2nd Dept., 1998); Narducci v. Manhasset Bay Associates, 96 N.Y.2d 259, 727 N.Y.S.2d 37 (2001); Rudnik v. Brogor Realty Corp., 45 A.D.3d 828, 847 N.Y.S.2d 141 (2nd Dept., 2007); Blake v. Neighborhood Housing Services of New York City, 1 N.Y.3d 280, 771 N.Y.S.2d 484 (2003); Sung Kyu-To v. Triangle Equities, LLC, 84 A.D.3d 1058, 923 N.Y.S.2d 628 (2nd Dept., 2011); Laquidara v. HRH Const. Corp., 283 A.D.2d 169, 724 N.Y.S.2d 53 (1st Dept., 2001); Parisi v. Leppard, 237 A.D.2d 419, 655 N.Y.S.2d 546 (2nd Dept., 1997); Avant v. Cepin Livery, 74 A.D.3d 533, 904 N.Y.S.2d 381 (2nd Dept., 2010); Garcia v. Lenox Hill Florist III, Inc., 120 A.D.3d 1296 (2nd Dept., 2014); Norero v. 99-105 Third Avenue Realty, LLC, 96 A.D.3d 727, 945 N.Y.S.2d 720 (2nd Dept., 2012) [Plaintiff 1, Exhs. A-P; Plaintiff 2 Memorandum of Law; Defendants Opposition 3, Exhs. A-D; Plaintiff Reply Affirmation 4, Exhs. A-B].

In their Affirmation in Opposition, dated November 15, 2018, Defendants City, NYCDOE and NYCSCA emphasize that Court of Appeals and Second Department decisions require the denial of Plaintiff's motion as premature because it is a Labor Law Section 240(1) case. In particular, they take issue with the fact that the depositions of five non-party witnesses, Jesus Tapia, Joseph Nieto, Frank Arcuri, Roger Bowan and Luis Paucay Naula have not yet occurred. They claim that the inconsistencies of Mr. Tapia's and Mr. Nieto's statements with Plaintiff's version of the accident require denial of the motion. Moreover, Defendants argue that Plaintiff failed to prove that they are subject to Labor Law Section 240(1) liability1. See Hawana v. Carbuccia, 164 A.D.3d 563 (2nd Dept., 2018); Ingram v. Bay Ridge Automotive Management Corp., 145 A.D.3d 672 (2nd Dept., 2016); Brea v. Salvatore, 130 A.D.3d 956 (2nd Dept., 2015); Chandler v. Eagle Sanitation, Inc., 153 A.D.3d 658 (2nd Dept., 2017); Ryo v. Minerva, 290 A.D.2d 434 (2nd Dept., 2002); In re Fasciglione, 73 A.D.3d 769 (2nd Dept., 2010); Somereve v. Plaza Construction Corp., 31 N.Y.3d 936 (2018); Groves v. Land's End Housing Co., Inc., 80 N.Y.2d 978 (1992); Antonyshyn v. Tishman Const. Corp., 153 A.D.3d 1308 (2nd Dept., 2017); Churaman v. C&B Elec., Plumbing & Heating, Inc., 142 A.D.3d 485 (2nd Dept., 2016); Schlicting v. Elliquence Realty, LLC, 116 A.D.3d 689 (2nd Dept., 2014); Harvey v. Nealis, 61 A.D.3d 935 (2nd Dept., 2009); Afzal v. Board of Fire Commissioners of Bellmore Fire Dist., 23 A.D.3d 507 (2nd Dept., 2005); Heath v. County of Orange, 273 A.D.2d 274 (2nd Dept., 2000); Hoxha v. City of New York, 265 A.D.2d 379 (2nd Dept., 1999); Seales v. Trident Structural Corp., 142 A.D.3d 1153 (2nd Dept., 2016); Fabrizi v. 1095 Ave. Of Americas, LLC, 22 N.Y.3d 658 (2014); Moncayo v. Curtis Partition Corp., 106 A.D.3d 963 (2nd Dept., 2013); Podobedov v. East Coast Construction Group, Inc., 133 A.D.3d 733 (2nd Dept., 2015); Wysk v. New York City School Construction Authority, 87 A.D.3d 1131 (2nd Dept., 2011); Pazmino v. 41-50 78th Street Corp., 139 A.D.3d 1029 (2nd Dept., 2016); Gonzalez v. TJM Construction Corp., 87 A.D.3d 610 (2nd Dept., 2011); Harinarain v. Walker, 73 A.D.3d 701 (2nd Dept., 2010); Roberts v. General Electric Co., 97 N.Y.2d 737, 742 N.Y.S.2d 188, 768 N.E.2d 1127; Donnelly v. City of Niagara Falls, 5 A.D.3d 1103, 773 N.Y.S.2d 631 (4th Dept., 2004); Fried v. Always Green, LLC, 77 A.D.3d 788 (2nd Dept., 2010); Galvin v. Triborough Bridge and Tunnel Authority, 29 A.D.3d 517 (2nd Dept., 2006); Carlton v. City of New York, 161 A.D.3d 930 (2nd Dept., 2018); Garbett v. Wappinger Central School District, 160 A.D.3d 812 (2nd Dept., 2018); Robinson v. National Grid Energy Management LLC, 150 A.D.3d 910 (2nd Dept., 2017); Lodato v. Greyhawk North America LLC, 39 A.D.3d 491 (2nd Dept., 2007); Nienajadio v. Infomart New York LLC, 19 A.D.3d 384 (2nd Dept., 2005); Russin v. Picciano & Son, 54 N.Y.2d 311 (1981); Paris v. Reiss, 251 A.D.2d 1016 (4th Dept., 1998) [Plaintiff 1, Exhs. A-P; Plaintiff 2 Memorandum of Law; Defendants Opposition 3, Exhs. A-D; Plaintiff Reply Affirmation 4, Exhs. A-B].

Defendants emphasize that Plaintiff has no proof of any Labor Law Section 240(1) violation because Plaintiff simply relies upon his counsel's unsupported and conclusory statements which are inadmissible hearsay. The non-party witnesses' unsworn statements as well as the Terrier Claims report which Plaintiff submits are inadmissible evidence. Since the Workers Compensation Accident Report is uncertified, they argue that it is inadmissible. Consequently, Defendants claim that Plaintiff's counsel's conclusory statements about no provision of safety devices does not establish that Labor Law Section 240(1) was violated. As a result, they contend that there is no admissible evidence about how the accident happened since the affidavits of Mr. Arcuri and Defendants' Construction Safety Expert, Martin R. Bruno ("Bruno") present questions of fact. Because any deficiencies in Plaintiff's proof cannot be cured in his reply papers, they argue that any new proof or arguments in the reply should be disregarded. See Morales v. Coram Materials Corp., 51 A.D.3d 86 (2nd Dept., 2008); Warrington v. Ryder Truck Rental, Inc., 35 A.D.3d 455 (2nd Dept., 2006); Rengifo v. City of New York, 7 A.D.3d 773 (2nd Dept., 2004); Salmon v. Wendell Terrace Owners Corp., 5 A.D.3d 372 (2nd Dept., 2004); Guanopatin v. Flushing Acquisition Holdings, LLC, 127 A.D.3d 812 (2nd Dept., 2015); Roldan v. New York University, 81 A.D.3d 625 (2nd Dept., 2011); Allstate Ins. Co., v. Persampire, 45 A.D.3d 706 (2nd Dept., 2007); Rupp v. City of Port Jervis, 10 A.D.3d 391 (2nd Dept., 2004); Flowers v. Harborcenter Development, LLC, 155 A.D.3d 1633 (4th Dept., 2017); Diaz v. Tumbiolo, 111 A.D.3d 877 (2nd Dept., 2013); Ulster County v. CSI, Inc., 95 A.D.3d 1634 (3rd Dept., 2012); Stock v. Otis Elevator Co., 52 A.D.3d 816 (2nd Dept., 2008); Madalinski v. Structure-Tone, Inc., 47 A.D.3d 687 (2nd Dept., 2008); Taylor v. One Bryant Partk, LLC, 94 A.D.3d 415 (1st Dept., 2012); Taylor v. New York City Transit Authority, 130 A.D.3d 712 (2nd Dept., 2015); Diaz v. Tumbiolo, 111 A.D.3d 877 (2nd Dept., 2013); Santos v. ACA Waste Services, Inc., 103 A.D.3d 788 (2nd Dept., 2013); Town of Fishkill v. Timothy J. Turner, 60 A.D.3d 932 (2nd Dept., 2009); Kramer v. Oil Services, Inc., 56 A.D.3d 730 (2nd Dept., 2008); Pastoriza v. State, 108 A.D.2d 605 (1st Dept., 1985); Curtis v. Wilhouski, 93 A.D.3d 816 (2nd Dept., 2012); Wilinski v. 334 East 92nd Housing Development Fund Corp., 18 N.Y.3d 1 (2011); Rodriguez v. DRLD Development Corp., 109 A.D.3d 409 (1st Dept., 2013); Rosado v. Briarwoods Farm, Inc., 19 A.D.3d 396 (2nd Dept., 2005); Romero v. 2200 Northern Street, LLC, 148 A.D.3d 1066 (2nd Dept., 2017); Salazar v. Novalex Contracting Corp., 18 N.Y.3d 134 (2011); Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 727 N.Y.S.2d 37, 750 N.E.2d 1085; Maldonado v. AMMM Properties Co., 107 A.D.3d 954 (2nd Dept., 2013); Mendez v. Jackson Development Group, Ltd., 99 A.D.3d 677 (2nd Dept., 2012); Simmons v. City of New York, 165 A.D.3d 725 (2nd Dept., 2018); Portalatin v. Tully Construction Co.—EE Cruz & Co., 155 A.D.3d 799 (2nd Dept., 2017) [Plaintiff 1, Exhs. A-P; Plaintiff 2 Memorandum of Law; Defendants Opposition 3, Exhs. A-D; Plaintiff Reply Affirmation 4, Exhs. A-B].

In his Reply Affirmation, dated December 17, 2018, Plaintiff reiterates that his injuries are due to Defendants' failure to properly protect him against a falling object pursuant to Labor Law Section 240(1) because they did not utilize adequate safety devices. Since further discovery would be fruitless, he repeats that summary judgment is not premature. See CPLR 4518(a); People v. Foster, 27 N.Y.2d 47, 313 N.Y.S.2d 384 (1970); People v. Kennedy, 68 N.Y.2d 569, 510 N.Y.S.2d 853 (1986); Bishin v. New York Cent. R. Co., 20 A.D.2d 921, 249 N.Y.S.2d 778 (2nd Dept., 1964); Toll v. State, 32 A.D.2d 47, 299 N.Y.S.2d 589 (3rd Dept., 1969); Narducci v. Manhasset Bay Assoc., supra; Outar v. City of New York, 5 N.Y.3d 731, 799 N.Y.S.2d 770 (2005); Koenig v. Patrick Constr. Corp., 298 N.Y. 313, 83 N.E.2d 133 (1948); Seales v. Trident Structural Corp., 142 A.D.3d 1153, 38 N.Y.S.3d 49 (2nd Dept., 2016); Paltrow v. Town of Lewisboro, 199 A.D.2d 372 (2nd Dept., 1993); MRI Broadway Rental, Inc., v. United States Mineral Products Co., 242 A.D.2d 440 (2nd Dept., 1997), aff'd 92 N.Y.2d 421 (1998); DiSabato v. Soffee, 9 A.D.2d 297 (1st Dept., 1959); Haidhaqi v. Metropolitan Transit Auth., 153 A.D.3d 1328, 62 N.Y.S.3d 408 (2nd Dept., 2017); Reynolds v. Avon Grove Props., 129 A.D.3d 932, 12 N.Y.S.3d 199 (2nd Dept., 2015); Burlington Ins. Co., v. Casur Corp., 123 A.D.3d 965, 1 N.Y.S.3d 150 (2nd Dept., 2014); Ruttura & Sons Constr., v. Petrocelli Constr. Co., 257 A.D.2d 614, 684 N.Y.S.2d 286 (2nd Dept., 1999); Norero v. 99-105 Third Ave. Realty LLC, 96 A.D.3d 727, 945 N.Y.S.2d 720 (2nd Dept., 2012); Friedman v. Ocean Dreams, LLC, 56 A.D.3d 719, 868 N.Y.S.2d 131 (2nd Dept., 2008); Marchese v. Skenderi, 51 A.D.3d 642, 856 N.Y.S.2d 680 (2nd Dept., 2008); Zhu v. Triple L Group, LLC. 64 A.D.3d 590, 881 N.Y.S.2d 324 (2nd Dept., 2009); Rivera v. Dafna Construction Co., Ltd., 27 A.D.3d 545, 813 N.Y.S.2d 109 (2nd Dept., 2006); Pineda v. Kechek Realty Corp., 285 A.D.2d 496, 727 N.Y.S.2d 175 (2nd Dept., 2001); Rosario v. Sebcom I. Associates, LP, 305 A.D.2d 307, 761 N.Y.S.2d 607 (1st Dept., 2003); Garcia v. Lenox Hill Florist III, Inc., 120 A.D.3d 1296 (2nd Dept., 2014); Medina v. Rodriguez, 92 A.D.3d 850, 939 N.Y.S.2d 514 (2nd Dept., 2012); Hanover Ins. Co., v. Prakin, 81 A.D.3d 778, 916 N.Y.S.2d 615 (2nd Dept., 2011); Essex Ins. Co., v. Michael Cunningham Carpentry, 74 A.D.3d 733, 904 N.Y.S.2d 78 (2nd Dept., 2010); Peerless Ins. Co., v. Micro Fibertek, Inc., 67 A.D.3d 978, 890 N.Y.S.2d 560 (2nd Dept., 2009); Gross v. Marc, 2 A.D.3d 681, 768 N.Y.S.2d 627 (2nd Dept., 2003) [Plaintiff 1, Exhs. A-P; Plaintiff 2 Memorandum of Law; Defendants Opposition 3, Exhs. A-D; Plaintiff Reply Affirmation 4, Exhs. A-B].

Plaintiff vehemently challenges Defendants' denial of ownership of the property in question. He submits a public document search from New York City Property Statements List of New York City Buildings which reveals the property as owned by the New York City Department of Education. See Rotuba Extruders v. Ceppos, 46 N.Y.2d 223, 413 N.Y.S.2d 141 (1978); Mallad Constr. Corp., v. County Fed Sav. & Loan Ass'n, 32 N.Y.2d 285, 344 N.Y.S.2d 925 (1973); V. Savino Oil and Heating Co., Inc., v. Rana Management Corp., 161 A.D.2d 635, 555 N.Y.S.2d 413 (2nd Dept., 1982) [Plaintiff 1, Exhs. A-P; Plaintiff 2 Memorandum of Law; Defendants Opposition 3, Exhs. A-D; Plaintiff Reply Affirmation 4, Exhs. A-B].

COURT RULINGS

This Court denies Plaintiff Luis O. Jara's motion pursuant to CPLR 3212 for partial summary judgment on liability against Defendants City of New York, New York City Department of Education and New York City School Construction Authority pursuant to Labor Law Section 240(1) because it is premature [Plaintiff 1, Exhs. A-P; Plaintiff 2 Memorandum of Law; Defendants Opposition 3, Exhs. A-D; Plaintiff Reply Affirmation 4, Exhs. A-B].

In order to establish entitlement to summary judgment on a Labor Law Section 240(1) claim involving a falling object, a plaintiff shoulders the burden of showing that more than an object fell. A plaintiff must demonstrate that the object fell because of the absence or inadequacy of a safety device of the kind enumerated in the statute. See Seales v. Trident Structural Corp., 142 A.D.3d 1153 (2nd Dept., 2016); Fabrizi v. 1095 Avenue of Americas, LLC, 22 N.Y.3d 658 (2014); Moncayo v. Curtis Partition Corp., 106 A.D.3d 963 (2nd Dept., 2013); Rosado v. Briarwoods Farm, Inc., supra; Romero v. 2200 Northern Steel, LLC, supra; Narducci v. Manhasset Bay Associates, supra; Maldonado v. AMMM Properties Company, supra; Mendez v. Jackson Development Group, Ltd., supra; Simmons v. City of New York, supra; Portalatin v. Tully Construction Co. — EE Cruz & Company, supra [Plaintiff 1, Exhs. A-P; Plaintiff 2 Memorandum of Law; Defendants Opposition 3, Exhs. A-D; Plaintiff Reply Affirmation 4, Exhs. A-B].

However, as proof for his liability claim pursuant to Labor Law Section 240(1), Plaintiff only submits: 1) the unsworn statements of Mr. Tapia, Mr. Nieto, Mr. Arcuri, Mr. Bowan and Mr. Naula2; 2) the uncertified Terrier Claims Services Report, dated January 11, 2017; 3) Plaintiff's uncertified HIPPA Release Form, dated December 28, 2016 as well as Plaintiff's unsworn statement3; 4) the unsworn Employer's Report of Work-Related Injury/Illness, dated December 27, 2016; and 5) New York State Workers Compensation Board Employee Claim, dated January 3, 2017. Since none of these documents are sworn and/or certified, this Court cannot use them in its determination. See Warrington v. Ryder Truck Rental, Inc., supra; Salmon v. Wendell Terrace Owners Corp., supra; Guanopatin v. Flushing Acquisition Holdings, LLC, supra; Roldan v. New York University, supra; Allstate Insurance Company v. Persampire, supra; Rupp v. City of Port Jervis, supra; Flowers v. Harborcenter Development, LLC, supra; Diaz v. Tumbiolo, supra; Ulster County v. CSI, Inc., supra; Stock v. Otis Elevator Company, supra; Madalinski v. Structure-Tone, Inc., supra; Taylor v. One Bryant Park, LLC, supra; Taylor v. New York City Transit Authority, supra; Santos v. ACA Waste Services, Inc., supra; Kramer v. Oil Services, Inc., supra; Carrie v. Wilhouski, supra [Plaintiff 1, Exhs. A-P; Plaintiff 2 Memorandum of Law; Defendants Opposition 3, Exhs. A-D; Plaintiff Reply Affirmation 4, Exhs. A-B].

Because Plaintiff has not provided sufficient proof, this Court notes the Second Department's clear rulings about a reasonable opportunity for a party to conduct discovery prior to the determination of a motion for summary judgment pursuant to CPLR Section 3212. See Hawana v. Carbuccia, supra; Ingram v. Bay Ridge Automotive Management Corp., supra; Brea v. Salvatore, supra; Chandler v. Eagle Sanitation, Inc., supra; Ryo v. Minerva, supra; In the Matter of Fasciglione, supra; Somereve v. Plaza Construction Corp., supra; Antonyshyn v. Tishman Construction Corporation, supra; Churaman v. C&B Electric Plumbing & Heating, Inc., supra; Schlicting v. Elliquence Realty, LLC, supra; Harvey v. Nealis, supra; Afzal v. Board of Fire Commissioners of Bellmore Fire District, supra; Heath v. County of Orange, supra; Hoxha v. City of New York, supra; Rengifo v. City of New York, supra [Plaintiff 1, Exhs. A-P; Plaintiff 2 Memorandum of Law; Defendants Opposition 3, Exhs. A-D; Plaintiff Reply Affirmation 4, Exhs. A-B].

Therefore, due to the insufficient evidence in this case about how the accident occurred, Plaintiff's motion is premature. Only Plaintiff has testified at a 50-h hearing. The depositions of five (5) non-party witnesses from Cinalta Construction Corp., Jesus Tapia, Joseph Nieto, Frank Arcuri, Roger Bowan and Luis Paucay Naula have not yet occurred. In particular, Mr. Nieto and Mr. Tapia were eyewitnesses to the accident. Mr. Bowan was Cinalta Project Labor Foreman. Mr. Arcuri was Cinalta Project Supervisor. Mr. Naula was Cinalta's Local 79 Labor Shop Steward. Thus, those depositions would be of assistance in determining this motion for summary judgment because there are questions of fact about: 1) how or why the brick fell; 2) whether the object fell while being hoisted or secured; 3) whether it required securing and 4) whether there was an absence or inadequacy of a safety device of the kind enumerated in Labor Law Section 240(1). See Hawana v. Carbuccia, supra; Ingram v. Bay Ridge Automotive Management Corp., supra; Brea v. Salvatore, supra; Chandler v. Eagle Sanitation, Inc., supra; Ryo v. Minerva, supra; In the Matter of Fasciglione, supra; Somereve v. Plaza Construction Corp., supra; Antonyshyn v. Tishman Construction Corporation, supra; Churaman v. C&B Electric Plumbing & Heating, Inc., supra; Schlicting v. Elliquence Realty. LLC., supra; Harvey v. Nealis, supra; Afzal v. Board of Fire Commissioners of Bellmore Fire District, supra; Heath v. County of Orange, supra; Hoxha v. City of New York, supra; Rengifo v. City of New York, supra; Podobedov v. East Coast Construction Group, Inc., supra; Wysk v. New York City School Construction Authority, supra; Pazmino v. 41-50 78th Street Corp., supra; Gonzalez v. TJM Construction Corp., supra; Harinarain v. Walker, supra; Roberts v. General Electric Co., supra; Narducci v. Manhasset Bay Assoc., supra; Donnelly v. City of Niagara Falls, supra; Fried v. Always Green, supra; Galvin v. Triborough Bridge and Tunnel Authority, supra; Rosado v. Briarwoods Farm, Inc., supra; Wilinski v. 334 East 92nd Housing Development Fund Corp., supra; Rodriguez v. DRLD Development Corp., supra; Carlton v. City of New York, supra; Garbett v. Wappingers Central School District, supra [Plaintiff 1, Exhs. A-P; Plaintiff 2 Memorandum of Law; Defendants Opposition 3, Exhs. A-D; Plaintiff Reply Affirmation 4, Exhs. A-B].

This Court finds unavailing Defendants City, NYCDOE and NYCSCA's argument that they are not defendants pursuant to Labor Law Section 240(1). It notes that the BID and Contract Agreement for Exterior Masonry/ Flood Elimination/ Windows/Parapets/ Roofs [sic] for PS 77/IS 266 (Brooklyn) for Contract #000013946 for Solicitation #SCA15-14166D-1 for $33,792,000.00 (Thirty-Three Million Seven Hundred Ninety-Two Thousand Dollars) is between the New York City School Construction Authority and Cinalta Construction Corp. The contract was awarded on July 6, 2015. It bears the signature of the New York City Schools Construction Authority President and CEO Lorraine Grillo. See Labor Law Section 240(1); Rotuba Extruders v. Ceppos, supra; Mallad Constr. Corp., v. County Fed Sav. & Loan, Ass'n, supra; V. Savino Oil and Heating Col, Inc., v. Rana Management Corp., supra [Plaintiff 1, Exhs. A-P; Plaintiff 2 Memorandum of Law; Defendants Opposition 3, Exhs. A-D; Plaintiff Reply Affirmation 4, Exhs. A-B].

Based on the foregoing, it is hereby ORDERED as follows:

Plaintiff Luis O. Jara's motion pursuant to CPLR 3212 for partial summary judgment on liability against Defendants City of New York, New York City Department of Education and New York City School Construction Authority pursuant to Labor Law Section 240(1) is DENIED.

This constitutes the Decision and Order of the Court.

FootNotes


1. This Court notes that Defendants did not independently move to strike the Labor Law Section 240(1) claims against them [Plaintiff 1, Exhs. A-P; Plaintiff 2 Memorandum of Law; Defendants Opposition 3, Exhs. A-D; Plaintiff Reply Affirmation 4, Exhs. A-B].
2. This Court observes that the handwriting in the statements by Messrs. Tapia, Nieto, Arcuri, Bowan and Naula appear identical. Only their signatures differ [Plaintiff I, Exhs. A-P; Plaintiff 2 Memorandum of Law; Defendants Opposition 3, Exhs. A-D; Plaintiff Reply Affirmation 4, Exhs. A-B].
3. This Court observes that the handwriting in the statement by Plaintiff Jara appears identical to the handwriting in the statements by Messrs. Tapia, Nieto, Arcuri, Bowen and Naula. Only Plaintiff's signature differs [Plaintiff 1, Exhs. A-P; Plaintiff 2 Memorandum of Law; Defendants Opposition 3, Exhs. A-D; Plaintiff Reply Affirmation 4, Exhs. A-B].

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