Preview
FILED: KINGS COUNTY CLERK 12/27/2022 03:33 PM INDEX NO. 527680/2019
NYSCEF DOC. NO. 211 RECEIVED NYSCEF: 12/27/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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JOSE GOMEZ,
Plaintiff,
-against- Index No. 527680/2019
91-93 FRANKLIN LLC, Y.N.H. CONSTRUCTION
INC., and ALPINE READY MIX INC, REPLY AFFIRMATION
Defendants.
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91-93 FRANKLIN LLC, Y.N.H. CONSTRUCTION
INC.,
Third-Party Plaintiff,
-against-
CAPITAL CONCRETE NY INC.
Third-Party Defendant.
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ROBERT S. MAZZUCHIN, an attorney duly admitted to practice law before the Courts
of the State of New York, hereby affirms the following to be true under the penalties of perjury:
1. I am a member of the law firm of BRAND GLICK & BRAND, attorneys for
defendant ALPINE READY MIX INC., (hereinafter “ALPINE”) and as such I am fully familiar
with the facts and circumstances of this action based on a review of the file maintained by our
office.
2. This affirmation is submitted in further support of ALPINE’s motion for summary
judgment seeking dismissal of the Labor Law §§200, 240(1) and 241(6) and common law causes
of action and in reply to the cross-motion by the plaintiff seeking summary judgment. As will be
discussed more fully herein, the plaintiff’s opposition fails to raise a question of fact as against
ALPINE.
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3. Specifically, the undisputed evidence demonstrates that ALPINE was merely a sub-
contractor that supplied concrete to the construction site wherein plaintiff alleges to have been
injured. ALPINE was not a general contractor or owner.
4. Although the plaintiff claims that ALPINE was a statutory agent of the owner, the
undisputed evidence demonstrates that ALPINE did not have any connection to the owner and had
no authority to direct or control the work of the plaintiff. Therefore, ALPINE is not subject to
statutory liability under the applicable provisions of Labor Law §§200, 240(1) and 241(6).
5. With respect to the general negligence claims, ALPINE was hired to supply
concrete and merely sent the concrete onto the job site when requested by Capital Concrete.
Capital Concrete selected the means and method for which to accept the concrete and the ALPINE
employee merely delivered concrete into the site when it was requested. Only the Capital Concrete
employees were responsible to install the concrete. As a result, the evidence demonstrates that
ALPINE was not negligent in causing this accident. Therefore, the Complaint should be dismissed
as against ALPINE.
COUNTER STATEMENT OF FACTS
6. Plaintiff’s counsel’s statement of facts is improper and is not drafted in accordance
with New York's procedural rules. According to the court rules, each paragraph is supposed to be
a concise statement of a fact that is not in dispute. The statement of facts submitted by plaintiff is
a verbose recitation of disputed facts which would be more appropriately labeled as “Argument”.
7. As noted in the moving papers, there are issues of fact that are contested. However,
the facts are not material to the issues involving this defendant. Specifically, there are questions
of fact as to whether a chute or a concrete pump was used to deliver the concrete into the property.
The plaintiff claims that a chute extended into the job site and was used to pour the concrete. To
the contrary, the ALPINE driver testified, although not definitively, that he never poured concrete
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directly onto the ground and that he used a concrete pump to deliver the concrete into the job site.
testified that a concrete pump was used. See Exhibit “F” at page 59.
8. Your affirmant recognizes that the testimony was not definitive because at times in
his testimony, Mr. Medina appeared to indicate that he could not remember if a pump was used.
However, his answers to these questions appeared to be the product of confusion. Regardless, as
noted in the moving papers, even if this fact is in dispute, it should not affect the outcome of this
motion.
9. The undisputed facts demonstrate the following: At the time of the accident, the
plaintiff was employed by Capital Concrete and was assigned to take photographs of the progress
of his co-employees. See Exhibit “E” at pages 13, 15. The plaintiff’s job was to watch the other
workers to make sure that they were doing the proper work when pouring the concrete. See Exhibit
“E” at page 42. Thus, the plaintiff was not working with concrete at the time of the accident. The
general contractor on the construction was YNH Construction. See Exhibit “E” at page 55.
10. At the time of the accident, a concrete truck from ALPINE was there delivering
concrete. See Exhibit “E” at page 81. There were two employees of Capital that worked inside
the site that took delivery of the concrete. See Exhibit “E” at pages 81–82. Verde and Brazil
advised the driver of the ALPINE truck when to deliver the concrete. See Exhibit “E” at page
171. When the concrete was delivered, Verde and Brazil would use their trowel to distribute the
concrete to the floor of the construction. See Exhibit “E” at page 169.
11. As the concrete was poured, the concrete driver was outside the safety gate. See
Exhibit “E” at pages 148-149. At the time of the accident, the driver was in the truck and plaintiff
was unable to see him. See Exhibit “E” at pages 155-156.
12. Domingo Medina was the driver of the ALPINE truck that made the delivery. See
Exhibit “F” at pages 17-18. He delivered concrete to the property through a request from Capital
Concrete. See Exhibit “F” at pages 17–18. Mr. Medina was outside the site when he delivered
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the concrete and only delivered concrete when requested by employees from Capital. See Exhibit
“F” at pages 52-53, 68.
13. YNH was the general contractor for work performed at 91 Franklin Avenue. See
Exhibit “G” at pages 14, 20–21. The owner of the building was 91–93 Franklin Avenue LLC.
See Exhibit “G” at page 42. YNH hired Capital Concrete to be the construction subcontractor.
See Exhibit “G” at pages 24-25. Capital Concrete hired ALPINE to supply the concrete. See
Exhibit “G” at pages 28–29.
ARGUMENT
A. THE LABOR LAW §240(1) AND §241(6) CAUSES OF ACTION SHOULD
BE DISMISSED SINCE ALPINE WAS NOT AN OWNER OR A GENERAL
CONTRACTOR AND IS NOT A STATUTORY AGENT OF THE OWER
14. In the opposition, plaintiff’s counsel disputes ALPINE’s contention that it was not
a statutory agent of the owner. In the opposition counsel cites several cases that address the general
law of statutory agent but counsel never connects the law to the facts of this case. Counsel’s only
assertion for arguing that ALPINE was a statutory agent is a general statement by counsel that
ALPINE was responsible for the general safety of the activity of delivering concrete. Counsel
does not reference any facts to support this argument.
15. In order for a defendant to be held liable as a statutory agent, there must be a
contractual nexus to the owner of the property and a delegation of authority for the task at hand.
In Lopez v. Strober King Building Supply Centers, Inc., 307 A.D.2d 681 (3rd Dept 2003) the Court
considered facts similar to the facts of this case.
16. In Lopez, the plaintiff, a roofing contractor was injured while removing sheets of
plywood from my boom truck positioned over the roof. The sheets slid causing the plaintiff to fall.
The plaintiff argued that the plywood delivery company was a statutory agent of the owner. In
dismissing the claims against the plywood delivery company, the Court noted that the record failed
to demonstrate any evidence of a nexus between the plywood delivery company and the owner.
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Additionally, the Court further noted that the evidence demonstrated that the operator of the boom
had no control or authority over the matter in which the plaintiff chose to unload the plywood.
Therefore, the Court concluded that the plywood delivery company could not be considered a
statutory agent of the owner. See, Lopez v. Strober King Building Supply Centers, Inc., supra.
17. In the case at bar, the facts unequivocally demonstrate that ALPINE was merely a
vendor that delivered concrete to the job site. Indeed, ALPINE had no connection to the owner of
the property whatsoever.
18. YNH was the general contractor for work performed at 91 Franklin Avenue. See
Exhibit “G” at pages 14, 20–21. The owner of the building was 91–93 Franklin Avenue LLC.
See Exhibit “G” at page 42. YNH hired Capital Concrete to be the construction subcontractor.
See Exhibit “G” at pages 24-25. Capital Concrete hired ALPINE to supply the concrete. See
Exhibit “G” at pages 28–29. Thus, ALPINE did not have a contractual nexus to the owner or the
general contractor.
19. Moreover, the evidence fails to demonstrate that ALPINE had the requisite control
to be considered a statutory agent. In order to demonstrate that a defendant is a statutory agent of
the owner the evidence must demonstrate that the owner delegated the duty to conform to the
requirements of the labor law to the third-party subcontractor. See, Van Berkom v. America
Painting, LLC, 120 A.D.3d 660 (92nd Dept 660). Specifically, there must be a showing that the
party to be charged as a statutory agent had authority to supervise and control the work. See, Van
Berkom v. America Painting, LLC, supra; citing Temperino v. DRA. Inc., 175 A.D.3d 543 (2nd
Dept 2010).
20. This issue was addressed in Walls v. Turner Construction Company, 4 N.Y.3d 861
(2005). In Walls, Turner argued that it was a construction manager and as a result was not
responsible for injuries under the labor law. In reviewing the evidence, the Court of Appeals noted
that the evidence demonstrated that Turner had complete control over the job site. Turner's
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responsibility at the job site was both the coordinator and the overall supervisor of the work
performed at the job site. Therefore, the Court of Appeals ruled that Turner was a statutory agent
of the owner since they had the ability to delegate and control the work performed at the job site.
See, Walls v. Turner Construction Company, supra.
21. In the case at bar, unlike in Walls, ALPINE had no control whatsoever over the
work performed by the plaintiff and his co-workers. The undisputed testimony from the plaintiff
demonstrates that at the time of the accident, there were two employees of Capital that worked
inside the site that took delivery of the concrete. See Exhibit “E” at pages 81–82. These two
employees advised the driver of the ALPINE truck when to deliver the concrete and when it was
delivered, they distributed the concrete. See Exhibit “E” at pages 169, 171. As the concrete was
poured, the concrete driver was outside the safety gate and he only delivered concrete when
requested by employees from Capital. See Exhibit “F” at pages 52-53, 68, 148-149.
22. In the case at bar, the work which gave rise to the plaintiff's injury was not delegated
to ALPINE. Instead, ALPINE was hired for the sole purpose of delivering the concrete to the job
site. For this reason plaintiff’s reliance on McGlynn v. Brooklyn Hosp-Caledonian Hospital, 209
A.D.2d 486 (2nd Dept 1994).
23. In McGlynn, the evidence demonstrated that the work that gave rise to the
plaintiff’s injuries was specifically delegated to the subcontractor. Therefore, the Court noted that
the subcontractor was a statutory agent. In this case ALPINE’s only role was to deliver concrete
into the job site when requested by other contractors. Other than opening and closing the chute, no
portion of this job was delegated to ALPINE. For this reason, ALPINE is not a statutory agent of
the owner or general contractor and cannot be held liable under Labor Law §240 or §241(6).
24. Here, the Capital Concrete employees chose the method for how to receive and
pour the concrete. They called for its delivery when needed and they spread the concrete inside
the job site. Therefore, the Capital Concrete employees had control over the job site and never
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delegated any duties to ALPINE. Additionally, and most importantly, there was no nexus to the
owner and as a result, ALPINE cannot be deemed a statutory agent of the owner. See, Lopez v.
Strober King Building Supply Centers. Inc., supra.
B. THE LABOR LAW §200 AND COMMON LAW NEGLIGENCE CAUSE OF
ACTION SHOULD BE DISMISSED SINCE THE ACCIDENT AROSE OUT
OF THE MEANS AND METHODS EMPLOYED BY THE PLAINITFF AND
HIS CO-WORKERS AND ALPINE DID NOT CAUSE OR CONTRIBUTE
TO THE ACCIDENT
25. In order to establish entitlement to summary judgment on the common law
negligence and Labor Law §200 claims, the defendant must demonstrate that they lacked actual or
constructive notice of the dangerous condition. See, Brown v. Outback Steakhouse, 39 A.D.3d 450
(2nd Dept 2007). Alternatively, if the accident does not arise out of a defective condition, a
defendant can be held liable if the evidence demonstrates that the accident arose out of the means
and methods of the work employed and the defendant had authority to control the means and
methods employed by the plaintiff. See, Garcia v. Market Associates, 123 A.D.3d 601 (2nd Dept
2014).
26. The law with respect to common law negligence and Labor Law §200 presents two
separate theories of liability: 1) a defective condition; and, 2) means and methods. In the
opposition, plaintiff’s counsel is intertwining both arguments. However, the evidence in this case
demonstrates that the plaintiff’s injuries clearly arose out of the means and methods employed by
the plaintiff and his co-worker in performing their work.
27. For this reason, plaintiff’s counsel’s reliance on Murphy v. 80 Pine, LLC, 208
A.D.3d 492 (2nd Dept 2022) and Channer v. ABAX Incorporated, 169 A.D.3d 758 (2nd Dept 2019)
is misplaced. In each of those cases, the plaintiff was injured as a result of a defective condition
which was arguably created by the defendant.
28. Here, the accident arose out of the means and methods of the work performed by
the plaintiff and his co-workers. To the extent that it is argued that the cement splashing into a
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water puddle constituted a defective condition it is submitted that there is simply no evidence that
ALPINE had notice of the alleged condition.
29. Alternatively, every aspect of this job was controlled by the plaintiff and his co-
workers. There is a dispute as to whether the concrete was delivered through a concrete pump or
a chute. However, there is no dispute in the evidence with regard to the ALPINE driver’s role in
the delivery. The ALPINE driver sent concrete into the site when it was requested. As it was
delivered, the plaintiff’s co-workers troweled the cement. See Exhibit “E” at page 169.
Additionally, the plaintiff, who was taking pictures, chose to stand 5 feet from the area where
concrete was delivered. See Exhibit “E” at page 83.
30. This evidence demonstrates that the plaintiff and his co-workers chose the means
and methods as to how to receive the concrete. In the motion, plaintiff’s counsel plays on the
words of the driver and cites to a portion of the testimony of the ALPINE driver wherein he
testified that he was responsible for the height of the chute. This argument is misleading.
31. The specific evidence relevant to this claim demonstrated that the Alpine driver
would position the chute into the concrete pump and the Capital employee would send the concrete
into the work site. See Exhibit “F” at pages 55-56. Plaintiff’s counsel wants this court to make a
leap that this testimony implies that the ALPINE driver positioned the chute so that it splashed
into a puddle. This argument is belied by the testimony.
32. In any event, it is irrelevant. Here, the undisputed evidence, which includes
testimony from the plaintiff demonstrated that there were two employees of Capital that worked
inside the site that took delivery of the concrete. See Exhibit “E” at pages 81–82. These two
employees advised the driver of the ALPINE truck when to deliver the concrete and when it was
delivered, they distributed the concrete. See Exhibit “E” at pages 169, 171. Therefore, these
employees controlled the manner in which the concrete was delivered into the work site.
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33. Aside from sending concrete into the site, ALPINE had no authority to control the
work performed by the plaintiff. Therefore, summary judgment should be granted dismissing the
Labor Law and common law negligence claims. See, Letterese v. A & F Commercial Builders,
180 A.D.3d 495 (1st Dept 2020).
WHEREFORE, it is respectfully requested that this Honorable Court issue an order
granting defendant’s motion in all respects together with such other and further relief as to this
Honorable Court may deem just and proper.
Dated: East Meadow, NY
December 27, 2022
Robert S. Mazzuchin /s/
__________________________________
Robert S. Mazzuchin
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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JOSE GOMEZ,
Plaintiff,
-against- Index No. 527680/2019
91-93 FRANKLIN LLC, Y.N.H. CONSTRUCTION
INC., and ALPINE READY MIX INC, WORD
CERTIFICATION
Defendants.
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91-93 FRANKLIN LLC, Y.N.H. CONSTRUCTION
INC.,
Third-Party Plaintiff,
-against-
CAPITAL CONCRETE NY INC.
Third-Party Defendant.
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ROBERT S. MAZZUCHIN, an attorney duly admitted to practice law in the Courts of the
State of New York, hereby affirms the following, pursuant to the penalties of perjury:
1. I hereby certify pursuant to Rule 202.8-b (Rule 17) of the Uniform Rules for the
Supreme Court and County Court that the total number of words in the foregoing Affirmation,
inclusive of point headings and footnotes and exclusive of the caption, table of contents, table of
authorities, and signature block is 2,717. The document complies with the word-count limit.
2. I have relied on the word count of the word-processing system used to prepare the
document.
Dated: East Meadow, NY
December 27, 2022
Robert S. Mazzuchin /s/
__________________________________
Robert S. Mazzuchin
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Preview
FILED: KINGS COUNTY CLERK 12/27/2022 03:33 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 211 RECEIVED NYSCEF: 12/27/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------------------------------------------------------------X JOSE GOMEZ, Plaintiff, -against- Index No. 527680/2019 91-93 FRANKLIN LLC, Y.N.H. CONSTRUCTION INC., and ALPINE READY MIX INC, REPLY AFFIRMATION Defendants. ---------------------------------------------------------------------X 91-93 FRANKLIN LLC, Y.N.H. CONSTRUCTION INC., Third-Party Plaintiff, -against- CAPITAL CONCRETE NY INC. Third-Party Defendant. ---------------------------------------------------------------------X ROBERT S. MAZZUCHIN, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following to be true under the penalties of perjury: 1. I am a member of the law firm of BRAND GLICK & BRAND, attorneys for defendant ALPINE READY MIX INC., (hereinafter “ALPINE”) and as such I am fully familiar with the facts and circumstances of this action based on a review of the file maintained by our office. 2. This affirmation is submitted in further support of ALPINE’s motion for summary judgment seeking dismissal of the Labor Law §§200, 240(1) and 241(6) and common law causes of action and in reply to the cross-motion by the plaintiff seeking summary judgment. As will be discussed more fully herein, the plaintiff’s opposition fails to raise a question of fact as against ALPINE. 1 of 10 FILED: KINGS COUNTY CLERK 12/27/2022 03:33 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 211 RECEIVED NYSCEF: 12/27/2022 3. Specifically, the undisputed evidence demonstrates that ALPINE was merely a sub- contractor that supplied concrete to the construction site wherein plaintiff alleges to have been injured. ALPINE was not a general contractor or owner. 4. Although the plaintiff claims that ALPINE was a statutory agent of the owner, the undisputed evidence demonstrates that ALPINE did not have any connection to the owner and had no authority to direct or control the work of the plaintiff. Therefore, ALPINE is not subject to statutory liability under the applicable provisions of Labor Law §§200, 240(1) and 241(6). 5. With respect to the general negligence claims, ALPINE was hired to supply concrete and merely sent the concrete onto the job site when requested by Capital Concrete. Capital Concrete selected the means and method for which to accept the concrete and the ALPINE employee merely delivered concrete into the site when it was requested. Only the Capital Concrete employees were responsible to install the concrete. As a result, the evidence demonstrates that ALPINE was not negligent in causing this accident. Therefore, the Complaint should be dismissed as against ALPINE. COUNTER STATEMENT OF FACTS 6. Plaintiff’s counsel’s statement of facts is improper and is not drafted in accordance with New York's procedural rules. According to the court rules, each paragraph is supposed to be a concise statement of a fact that is not in dispute. The statement of facts submitted by plaintiff is a verbose recitation of disputed facts which would be more appropriately labeled as “Argument”. 7. As noted in the moving papers, there are issues of fact that are contested. However, the facts are not material to the issues involving this defendant. Specifically, there are questions of fact as to whether a chute or a concrete pump was used to deliver the concrete into the property. The plaintiff claims that a chute extended into the job site and was used to pour the concrete. To the contrary, the ALPINE driver testified, although not definitively, that he never poured concrete 2 of 10 FILED: KINGS COUNTY CLERK 12/27/2022 03:33 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 211 RECEIVED NYSCEF: 12/27/2022 directly onto the ground and that he used a concrete pump to deliver the concrete into the job site. testified that a concrete pump was used. See Exhibit “F” at page 59. 8. Your affirmant recognizes that the testimony was not definitive because at times in his testimony, Mr. Medina appeared to indicate that he could not remember if a pump was used. However, his answers to these questions appeared to be the product of confusion. Regardless, as noted in the moving papers, even if this fact is in dispute, it should not affect the outcome of this motion. 9. The undisputed facts demonstrate the following: At the time of the accident, the plaintiff was employed by Capital Concrete and was assigned to take photographs of the progress of his co-employees. See Exhibit “E” at pages 13, 15. The plaintiff’s job was to watch the other workers to make sure that they were doing the proper work when pouring the concrete. See Exhibit “E” at page 42. Thus, the plaintiff was not working with concrete at the time of the accident. The general contractor on the construction was YNH Construction. See Exhibit “E” at page 55. 10. At the time of the accident, a concrete truck from ALPINE was there delivering concrete. See Exhibit “E” at page 81. There were two employees of Capital that worked inside the site that took delivery of the concrete. See Exhibit “E” at pages 81–82. Verde and Brazil advised the driver of the ALPINE truck when to deliver the concrete. See Exhibit “E” at page 171. When the concrete was delivered, Verde and Brazil would use their trowel to distribute the concrete to the floor of the construction. See Exhibit “E” at page 169. 11. As the concrete was poured, the concrete driver was outside the safety gate. See Exhibit “E” at pages 148-149. At the time of the accident, the driver was in the truck and plaintiff was unable to see him. See Exhibit “E” at pages 155-156. 12. Domingo Medina was the driver of the ALPINE truck that made the delivery. See Exhibit “F” at pages 17-18. He delivered concrete to the property through a request from Capital Concrete. See Exhibit “F” at pages 17–18. Mr. Medina was outside the site when he delivered 3 of 10 FILED: KINGS COUNTY CLERK 12/27/2022 03:33 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 211 RECEIVED NYSCEF: 12/27/2022 the concrete and only delivered concrete when requested by employees from Capital. See Exhibit “F” at pages 52-53, 68. 13. YNH was the general contractor for work performed at 91 Franklin Avenue. See Exhibit “G” at pages 14, 20–21. The owner of the building was 91–93 Franklin Avenue LLC. See Exhibit “G” at page 42. YNH hired Capital Concrete to be the construction subcontractor. See Exhibit “G” at pages 24-25. Capital Concrete hired ALPINE to supply the concrete. See Exhibit “G” at pages 28–29. ARGUMENT A. THE LABOR LAW §240(1) AND §241(6) CAUSES OF ACTION SHOULD BE DISMISSED SINCE ALPINE WAS NOT AN OWNER OR A GENERAL CONTRACTOR AND IS NOT A STATUTORY AGENT OF THE OWER 14. In the opposition, plaintiff’s counsel disputes ALPINE’s contention that it was not a statutory agent of the owner. In the opposition counsel cites several cases that address the general law of statutory agent but counsel never connects the law to the facts of this case. Counsel’s only assertion for arguing that ALPINE was a statutory agent is a general statement by counsel that ALPINE was responsible for the general safety of the activity of delivering concrete. Counsel does not reference any facts to support this argument. 15. In order for a defendant to be held liable as a statutory agent, there must be a contractual nexus to the owner of the property and a delegation of authority for the task at hand. In Lopez v. Strober King Building Supply Centers, Inc., 307 A.D.2d 681 (3rd Dept 2003) the Court considered facts similar to the facts of this case. 16. In Lopez, the plaintiff, a roofing contractor was injured while removing sheets of plywood from my boom truck positioned over the roof. The sheets slid causing the plaintiff to fall. The plaintiff argued that the plywood delivery company was a statutory agent of the owner. In dismissing the claims against the plywood delivery company, the Court noted that the record failed to demonstrate any evidence of a nexus between the plywood delivery company and the owner. 4 of 10 FILED: KINGS COUNTY CLERK 12/27/2022 03:33 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 211 RECEIVED NYSCEF: 12/27/2022 Additionally, the Court further noted that the evidence demonstrated that the operator of the boom had no control or authority over the matter in which the plaintiff chose to unload the plywood. Therefore, the Court concluded that the plywood delivery company could not be considered a statutory agent of the owner. See, Lopez v. Strober King Building Supply Centers, Inc., supra. 17. In the case at bar, the facts unequivocally demonstrate that ALPINE was merely a vendor that delivered concrete to the job site. Indeed, ALPINE had no connection to the owner of the property whatsoever. 18. YNH was the general contractor for work performed at 91 Franklin Avenue. See Exhibit “G” at pages 14, 20–21. The owner of the building was 91–93 Franklin Avenue LLC. See Exhibit “G” at page 42. YNH hired Capital Concrete to be the construction subcontractor. See Exhibit “G” at pages 24-25. Capital Concrete hired ALPINE to supply the concrete. See Exhibit “G” at pages 28–29. Thus, ALPINE did not have a contractual nexus to the owner or the general contractor. 19. Moreover, the evidence fails to demonstrate that ALPINE had the requisite control to be considered a statutory agent. In order to demonstrate that a defendant is a statutory agent of the owner the evidence must demonstrate that the owner delegated the duty to conform to the requirements of the labor law to the third-party subcontractor. See, Van Berkom v. America Painting, LLC, 120 A.D.3d 660 (92nd Dept 660). Specifically, there must be a showing that the party to be charged as a statutory agent had authority to supervise and control the work. See, Van Berkom v. America Painting, LLC, supra; citing Temperino v. DRA. Inc., 175 A.D.3d 543 (2nd Dept 2010). 20. This issue was addressed in Walls v. Turner Construction Company, 4 N.Y.3d 861 (2005). In Walls, Turner argued that it was a construction manager and as a result was not responsible for injuries under the labor law. In reviewing the evidence, the Court of Appeals noted that the evidence demonstrated that Turner had complete control over the job site. Turner's 5 of 10 FILED: KINGS COUNTY CLERK 12/27/2022 03:33 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 211 RECEIVED NYSCEF: 12/27/2022 responsibility at the job site was both the coordinator and the overall supervisor of the work performed at the job site. Therefore, the Court of Appeals ruled that Turner was a statutory agent of the owner since they had the ability to delegate and control the work performed at the job site. See, Walls v. Turner Construction Company, supra. 21. In the case at bar, unlike in Walls, ALPINE had no control whatsoever over the work performed by the plaintiff and his co-workers. The undisputed testimony from the plaintiff demonstrates that at the time of the accident, there were two employees of Capital that worked inside the site that took delivery of the concrete. See Exhibit “E” at pages 81–82. These two employees advised the driver of the ALPINE truck when to deliver the concrete and when it was delivered, they distributed the concrete. See Exhibit “E” at pages 169, 171. As the concrete was poured, the concrete driver was outside the safety gate and he only delivered concrete when requested by employees from Capital. See Exhibit “F” at pages 52-53, 68, 148-149. 22. In the case at bar, the work which gave rise to the plaintiff's injury was not delegated to ALPINE. Instead, ALPINE was hired for the sole purpose of delivering the concrete to the job site. For this reason plaintiff’s reliance on McGlynn v. Brooklyn Hosp-Caledonian Hospital, 209 A.D.2d 486 (2nd Dept 1994). 23. In McGlynn, the evidence demonstrated that the work that gave rise to the plaintiff’s injuries was specifically delegated to the subcontractor. Therefore, the Court noted that the subcontractor was a statutory agent. In this case ALPINE’s only role was to deliver concrete into the job site when requested by other contractors. Other than opening and closing the chute, no portion of this job was delegated to ALPINE. For this reason, ALPINE is not a statutory agent of the owner or general contractor and cannot be held liable under Labor Law §240 or §241(6). 24. Here, the Capital Concrete employees chose the method for how to receive and pour the concrete. They called for its delivery when needed and they spread the concrete inside the job site. Therefore, the Capital Concrete employees had control over the job site and never 6 of 10 FILED: KINGS COUNTY CLERK 12/27/2022 03:33 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 211 RECEIVED NYSCEF: 12/27/2022 delegated any duties to ALPINE. Additionally, and most importantly, there was no nexus to the owner and as a result, ALPINE cannot be deemed a statutory agent of the owner. See, Lopez v. Strober King Building Supply Centers. Inc., supra. B. THE LABOR LAW §200 AND COMMON LAW NEGLIGENCE CAUSE OF ACTION SHOULD BE DISMISSED SINCE THE ACCIDENT AROSE OUT OF THE MEANS AND METHODS EMPLOYED BY THE PLAINITFF AND HIS CO-WORKERS AND ALPINE DID NOT CAUSE OR CONTRIBUTE TO THE ACCIDENT 25. In order to establish entitlement to summary judgment on the common law negligence and Labor Law §200 claims, the defendant must demonstrate that they lacked actual or constructive notice of the dangerous condition. See, Brown v. Outback Steakhouse, 39 A.D.3d 450 (2nd Dept 2007). Alternatively, if the accident does not arise out of a defective condition, a defendant can be held liable if the evidence demonstrates that the accident arose out of the means and methods of the work employed and the defendant had authority to control the means and methods employed by the plaintiff. See, Garcia v. Market Associates, 123 A.D.3d 601 (2nd Dept 2014). 26. The law with respect to common law negligence and Labor Law §200 presents two separate theories of liability: 1) a defective condition; and, 2) means and methods. In the opposition, plaintiff’s counsel is intertwining both arguments. However, the evidence in this case demonstrates that the plaintiff’s injuries clearly arose out of the means and methods employed by the plaintiff and his co-worker in performing their work. 27. For this reason, plaintiff’s counsel’s reliance on Murphy v. 80 Pine, LLC, 208 A.D.3d 492 (2nd Dept 2022) and Channer v. ABAX Incorporated, 169 A.D.3d 758 (2nd Dept 2019) is misplaced. In each of those cases, the plaintiff was injured as a result of a defective condition which was arguably created by the defendant. 28. Here, the accident arose out of the means and methods of the work performed by the plaintiff and his co-workers. To the extent that it is argued that the cement splashing into a 7 of 10 FILED: KINGS COUNTY CLERK 12/27/2022 03:33 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 211 RECEIVED NYSCEF: 12/27/2022 water puddle constituted a defective condition it is submitted that there is simply no evidence that ALPINE had notice of the alleged condition. 29. Alternatively, every aspect of this job was controlled by the plaintiff and his co- workers. There is a dispute as to whether the concrete was delivered through a concrete pump or a chute. However, there is no dispute in the evidence with regard to the ALPINE driver’s role in the delivery. The ALPINE driver sent concrete into the site when it was requested. As it was delivered, the plaintiff’s co-workers troweled the cement. See Exhibit “E” at page 169. Additionally, the plaintiff, who was taking pictures, chose to stand 5 feet from the area where concrete was delivered. See Exhibit “E” at page 83. 30. This evidence demonstrates that the plaintiff and his co-workers chose the means and methods as to how to receive the concrete. In the motion, plaintiff’s counsel plays on the words of the driver and cites to a portion of the testimony of the ALPINE driver wherein he testified that he was responsible for the height of the chute. This argument is misleading. 31. The specific evidence relevant to this claim demonstrated that the Alpine driver would position the chute into the concrete pump and the Capital employee would send the concrete into the work site. See Exhibit “F” at pages 55-56. Plaintiff’s counsel wants this court to make a leap that this testimony implies that the ALPINE driver positioned the chute so that it splashed into a puddle. This argument is belied by the testimony. 32. In any event, it is irrelevant. Here, the undisputed evidence, which includes testimony from the plaintiff demonstrated that there were two employees of Capital that worked inside the site that took delivery of the concrete. See Exhibit “E” at pages 81–82. These two employees advised the driver of the ALPINE truck when to deliver the concrete and when it was delivered, they distributed the concrete. See Exhibit “E” at pages 169, 171. Therefore, these employees controlled the manner in which the concrete was delivered into the work site. 8 of 10 FILED: KINGS COUNTY CLERK 12/27/2022 03:33 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 211 RECEIVED NYSCEF: 12/27/2022 33. Aside from sending concrete into the site, ALPINE had no authority to control the work performed by the plaintiff. Therefore, summary judgment should be granted dismissing the Labor Law and common law negligence claims. See, Letterese v. A & F Commercial Builders, 180 A.D.3d 495 (1st Dept 2020). WHEREFORE, it is respectfully requested that this Honorable Court issue an order granting defendant’s motion in all respects together with such other and further relief as to this Honorable Court may deem just and proper. Dated: East Meadow, NY December 27, 2022 Robert S. Mazzuchin /s/ __________________________________ Robert S. Mazzuchin 9 of 10 FILED: KINGS COUNTY CLERK 12/27/2022 03:33 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 211 RECEIVED NYSCEF: 12/27/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------------------------------------------------------------X JOSE GOMEZ, Plaintiff, -against- Index No. 527680/2019 91-93 FRANKLIN LLC, Y.N.H. CONSTRUCTION INC., and ALPINE READY MIX INC, WORD CERTIFICATION Defendants. ---------------------------------------------------------------------X 91-93 FRANKLIN LLC, Y.N.H. CONSTRUCTION INC., Third-Party Plaintiff, -against- CAPITAL CONCRETE NY INC. Third-Party Defendant. ---------------------------------------------------------------------X ROBERT S. MAZZUCHIN, an attorney duly admitted to practice law in the Courts of the State of New York, hereby affirms the following, pursuant to the penalties of perjury: 1. I hereby certify pursuant to Rule 202.8-b (Rule 17) of the Uniform Rules for the Supreme Court and County Court that the total number of words in the foregoing Affirmation, inclusive of point headings and footnotes and exclusive of the caption, table of contents, table of authorities, and signature block is 2,717. The document complies with the word-count limit. 2. I have relied on the word count of the word-processing system used to prepare the document. Dated: East Meadow, NY December 27, 2022 Robert S. Mazzuchin /s/ __________________________________ Robert S. Mazzuchin 10 of 10