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Gonzalez v. Vanguard Construction and Development Co., Inc.

Supreme Court, New York County

October 7, 2013

PHASE 1 REMOVALS, INC., Third-Party Defendant. Index No. 105471/2011, 590002/12

Unpublished Opinion

Motion Date 24/06/2013


Motions with sequence numbers 002 and 003 are consolidated for disposition.

This action arises out of injuries plaintiff Moises Gonzalez suffered when he was struck by a piece of wood as it came out of a chute being used to discard construction debris. In motion sequence number 002, Vanguard Construction and Development Company, Inc. (Vanguard) moves for summary judgment (1) dismissing plaintiff's Labor Law §§ 200 and 241 (6) and common-law negligence claims, and (2) on its third-party claims against Phase 1 Removals, Inc. (Phase 1) . In his motion, motion sequence number 003, plaintiff seeks summary judgment on the issue of Vanguard's liability under Labor Law § 240 (1).


On February 17, 2011, plaintiff was a laborer employed by Phase 1, performing demolition work at 283 West Broadway, a property owned by nonparty Hazeldon/New York. The project was one of conversion of a mixed commercial/residential building to one that was solely residential. Vanguard was the general contractor for the project, and Phase 1 was the interior demolition subcontractor.

As part of the project, Phase 1 employees on the sixth-floor roof used a chute to transport wood and sheetrock to their counterparts on the first floor. The chute was a modified internal trash chute which was round, and approximately 24 inches in diameter (the modification was cutting off the bottom at the first floor). At the bottom of the chute, there was a one-yard dumpster which was surrounded by a plywood barricade. The barricade bore the designation "CAUTION."

There were two different methods used in getting the wood and debris from the sixth-floor laborers to those on the ground. One was that the people at the ground level would yell up to the people on the roof to throw down the wood and other debris, and then the first-floor people would yell up to tell the sixth-floor people to stop. During that stop, the first-floor people would open the barricade and remove the debris. Then the first-floor people would yell up to the roof people to drop down more debris, and the cycle continued.

The second method was that the roof people would send down four pieces of wood at a time, and stop until the ground-floor people emptied the dumpster. Plaintiff was injured when a fifth piece of wood was sent down after plaintiff had begun to empty the dumpster.

Plaintiff alleges that the pieces of wood were eight feet long, two inches thick, and four inches wide. Bobbie Berrios, Phase l's labor foreman, attests that the pieces of wood were small, no greater than two feet long, and that there is no way that an eight-foot-long plank would have been thrown down a chute. Brian Doxey, Phase l's estimator, testifies that Vanguard was charged an additional fee for the use of the pre-existing chute because it required that debris be cut into smaller pieces. Berrios attests that heavier debris was not sent down the chute. Rather, heavier material was carried down the stairs.


Plaintiff s complaint alleges four causes of action, sounding in common-law negligence, and violations of Labor Law § 200, 240, and 241 (6). Vanguard's answer does not assert any counterclaims. Vanguard brings a third-party action against Phase 1, for contractual indemnity and breach of contract by failure to procure insurance. Phase l's third-party answer alleges a cross claim against Vanguard for common-law indemnification or contribution.


The motions will be considered out of sequence.

Summary Judgment

"Since summary judgment is the equivalent of a trial, it has been a cornerstone of New York jurisprudence that the proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law. Once this requirement is met, the burden then shifts to the opposing party 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 [citations omitted]"

(Ostrov v. Rozbruch, 91 A.D.3d 147, 152 [1st Dept 2012]; see also VisionChina Media Inc. v. Shareholder Representative Servs., LLC, 109 A.D.3d 49, 58 [1st Dept 2013] ["Summary judgment must be granted if the proponent makes a prima facie showing of entitlement to judgment as a matter of law . . . and the opponent fails to rebut that showing (internal quotation marks and citation omitted)"]; Ryan v. Trustees of Columbia Univ. in the City of N.Y., Inc., 96 A.D.3d 551, 553 [1st Dept 2012] ["the movant bears the burden to dispel any question of fact that would preclude summary judgment"]). The court must determine whether that standard has been met based "on the evidence before the court and drawing all reasonable inferences in plaintiff's favor" (Melman v. Montefiore Med. Ctr., 98 A.D.3d 107, 137-138 [1st Dept 2012]). However, "[t]he court's function on a motion for summary judgment is merely to determine if any triable issues exist, not to determine the merits of any such issues" (Meridian Mgt. Corp. v. Cristi Cleaning Serv. Corp., 70 A.D.3d 508, 510-511 [1st Dept 2010]).

Plaintiff s Motion for Summary Judgment (motion sequence ...

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