Preview
FILED: KINGS COUNTY CLERK 07/14/2023 12:21 PM INDEX NO. 527680/2019
NYSCEF DOC. NO. 232 RECEIVED NYSCEF: 07/14/2023
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,
AFFIRMATION IN
Defendants. OPPOSITION
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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 opposition to the plaintiff’s motion to reargue this
Court’s April 24, 2023 decision, which granted ALPINE’s motion for summary dismissal of the
plaintiff’s Labor Law 200, 240(1) and 241(6) and common law causes of action.
3. As will be discussed more fully herein, it is respectfully submitted that the plaintiff
has not cited to any facts that this Court overlooked in granting the motion in favor of ALPINE.
Specifically, the Court, based on undisputed evidence, determined that ALPINE was merely a sub-
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contractor that supplied concrete to the construction site wherein plaintiff alleges to have been
injured. ALPINE was not a general contractor or owner at the property. Therefore, ALPINE is not
subject to statutory liability under the applicable provisions of Labor Law 200, 240(1) and 241(6).
4. Additionally, with respect to the general negligence claims, the Court considered
and rejected the plaintiff’s claims that ALPINE was in charge of the instrumentality that caused
the plaintiff’s injuries. Specifically, the Court held that ALPINE merely sent the concrete into the
job site when requested by Capital Concrete (hereinafter “Capital”) and that Capital 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.
Order Granting Summary Judgment
5. Although plaintiff’s counsel wants this Court to believe that ALPINE was deeply
involved in the construction, the undisputed evidence demonstrates that a single driver from
ALPINE delivered a load of concrete to the construction site. The evidence further demonstrated
that the driver of the ALPINE truck remained outside the property and only delivered concrete into
the site when it was called for by the plaintiff’s co-workers. Whether it was delivered through a
chute or pump was used, the undisputed evidence demonstrates that the ALPINE driver simply
sent the concrete into the job site when requested and did not control where it was located.
6. In the motion, the plaintiff asserts that the Court overlooked the fact that the
ALPINE driver was in exclusive control over the delivery of the cement. Plaintiff’s counsel further
argues that the Court overlooked the fact that the ALPINE driver had exclusive control over the
use of the vehicle ahead and had a duty to operate the vehicle safely. Contrary to counsel’s
contention, these arguments were made and rejected by this Honorable Court in deciding the
motion.
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7. Specifically, on page 27 of the decision, the Court meticulously laid out the facts
and the law relevant to this claim. (ECF Doc. No. 218). In the decision, the Court noted that
ALPINE, through a single employee who was the operator of a cement dump truck, delivered
cement to the work site where the plaintiff was working at the time that he allegedly sustained his
injuries. (ECF Doc. No. 218 at pages 8-9). The decision discussed the facts in detail about how
the delivery was made by the ALPINE driver, Domingo Medina. (ECF Doc. No. 218 at pages 8-
9).
8. Your Honor noted that Mr. Medina never even went into the construction site at
any point on the day of the accident and remained on the sidewalk while he made the delivery.
(ECF Doc. No. 218 at pages 8-9). With respect to the statutory agent argument, Your Honor found
that the evidence demonstrated that ALPINE was simply a subcontractor and did not have
authority and control over the work. Therefore, the Labor Law claims against ALPINE were
dismissed. (ECF Doc. No. 218 at pages 16-17).
9. With respect to the common law negligence claim, Your Honor found that the
accident arose out of the means and methods of other work employed by the plaintiff and his co-
workers. Specifically, the Order referenced the plaintiff’s testimony wherein the plaintiff testified
that his supervisors at Capital determined the manner in which he worked. (ECF Doc. No. 218 at
pages 25-26). The Court noted that at best ALPINE had general supervisory control over the work.
Therefore, the Court dismissed this Complaint as against ALPINE.
ARGUMENT
10. A motion for leave to reargue is addressed to the sound discretion of the motion
court. See, Fein v. Fein, 192 AD3d 1083 (2nd Dept 2021). The motion must be ‘based upon matters
of fact or law’ allegedly overlooked or misapprehended by the Court in determining the prior
motion and cannot include any new facts. Id.
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11. In the case at bar, plaintiff’s counsel has not cited to any facts which were not
previously considered by the Court. Here, the plaintiff claims that the Court overlooked the fact
that the ALPINE driver controlled the delivery of concrete into the job site and was therefore a
statutory agent of the owner and the general contractor.
12. This argument was considered and rejected by the Court in its decision of the
original motion. 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.
See, Lopez v. Strober King Building Supply Centers, Inc., 307 A.D.2d 681 (3rd Dept 2003).
13. In the case at bar, the evidence demonstrated that ALPINE was merely a vendor
that delivered concrete to the job site and did not have a connection to the owner of the property
whatsoever. In fact, ALPINE was hired by Capital and did not have any contractual nexus to the
owner or the general contractor.
14. Additionally, ALPINE did not have any control over the plaintiff and his co-worker
had the requisite control to be considered a statutory agent. Here, the Court considered the fact
that the general contractor and owner did not delegate any authority to ALPINE. See, Van Berkom
v. America Painting, LLC, 120 A.D.3d 660 (2nd Dept 2010).
15. Based on the foregoing, it is respectfully submitted that the Court did not overlook
any facts and, as a result, the plaintiff’s motion to reargue should be denied.
16. With respect to the common law negligence claim, the Court fully considered the
evidence and concluded that the plaintiff’s injuries were caused by the means and methods of his
employer.
17. The evidence before the Court on the prior motion included the plaintiff’s testimony
that the ALPINE driver would position the chute into the concrete pump and the Capital employee
would send the concrete into the work site. (ECF Doc. No. 156 (Exhibit “F”) at pages 55-56). On
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the motion to reargue, plaintiff’s counsel ignores most of the recorded evidence and wants this
Court to believe that the ALPINE driver was exclusively in control of this process.
18. Contrary to counsel’s representation, the actual evidence which includes plaintiff’s
counsel’s own client’s testimony demonstrated that there were two employees of Capital that
worked inside the site that took delivery of the concrete. (ECF Doc. No. 156 (Exhibit “F”) 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. (ECF Doc. No. 156 (Exhibit “F”) at pages
169, 171). Therefore, these employees controlled the manner in which the concrete was delivered
into the work site.
19. This testimony was properly considered by the Court in deciding the original
motion and it is submitted that the plaintiff’s motion to re-argue the common law negligence cause
of action should be denied. 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
denying plaintiff’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
July 14, 2023
Robert S. Mazzuchin /s/
__________________________________
Robert S. Mazzuchin
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NYSCEF DOC. NO. 232 RECEIVED NYSCEF: 07/14/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
---------------------------------------------------------------------X
JOSE GOMEZ,
Plaintiff,
-against-
91-93 FRANKLIN LLC, Y.N.H. CONSTRUCTION Index No. 527680/2019
INC., and ALPINE READY MIX INC,
Defendants. WORD
---------------------------------------------------------------------X CERTIFICATION
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 1,357. 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
July 14, 2023
Robert S. Mazzuchin /s/
__________________________________
Robert S. Mazzuchin
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Preview
FILED: KINGS COUNTY CLERK 07/14/2023 12:21 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 232 RECEIVED NYSCEF: 07/14/2023 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, AFFIRMATION IN Defendants. OPPOSITION ---------------------------------------------------------------------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 opposition to the plaintiff’s motion to reargue this Court’s April 24, 2023 decision, which granted ALPINE’s motion for summary dismissal of the plaintiff’s Labor Law 200, 240(1) and 241(6) and common law causes of action. 3. As will be discussed more fully herein, it is respectfully submitted that the plaintiff has not cited to any facts that this Court overlooked in granting the motion in favor of ALPINE. Specifically, the Court, based on undisputed evidence, determined that ALPINE was merely a sub- 1 of 6 FILED: KINGS COUNTY CLERK 07/14/2023 12:21 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 232 RECEIVED NYSCEF: 07/14/2023 contractor that supplied concrete to the construction site wherein plaintiff alleges to have been injured. ALPINE was not a general contractor or owner at the property. Therefore, ALPINE is not subject to statutory liability under the applicable provisions of Labor Law 200, 240(1) and 241(6). 4. Additionally, with respect to the general negligence claims, the Court considered and rejected the plaintiff’s claims that ALPINE was in charge of the instrumentality that caused the plaintiff’s injuries. Specifically, the Court held that ALPINE merely sent the concrete into the job site when requested by Capital Concrete (hereinafter “Capital”) and that Capital 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. Order Granting Summary Judgment 5. Although plaintiff’s counsel wants this Court to believe that ALPINE was deeply involved in the construction, the undisputed evidence demonstrates that a single driver from ALPINE delivered a load of concrete to the construction site. The evidence further demonstrated that the driver of the ALPINE truck remained outside the property and only delivered concrete into the site when it was called for by the plaintiff’s co-workers. Whether it was delivered through a chute or pump was used, the undisputed evidence demonstrates that the ALPINE driver simply sent the concrete into the job site when requested and did not control where it was located. 6. In the motion, the plaintiff asserts that the Court overlooked the fact that the ALPINE driver was in exclusive control over the delivery of the cement. Plaintiff’s counsel further argues that the Court overlooked the fact that the ALPINE driver had exclusive control over the use of the vehicle ahead and had a duty to operate the vehicle safely. Contrary to counsel’s contention, these arguments were made and rejected by this Honorable Court in deciding the motion. 2 of 6 FILED: KINGS COUNTY CLERK 07/14/2023 12:21 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 232 RECEIVED NYSCEF: 07/14/2023 7. Specifically, on page 27 of the decision, the Court meticulously laid out the facts and the law relevant to this claim. (ECF Doc. No. 218). In the decision, the Court noted that ALPINE, through a single employee who was the operator of a cement dump truck, delivered cement to the work site where the plaintiff was working at the time that he allegedly sustained his injuries. (ECF Doc. No. 218 at pages 8-9). The decision discussed the facts in detail about how the delivery was made by the ALPINE driver, Domingo Medina. (ECF Doc. No. 218 at pages 8- 9). 8. Your Honor noted that Mr. Medina never even went into the construction site at any point on the day of the accident and remained on the sidewalk while he made the delivery. (ECF Doc. No. 218 at pages 8-9). With respect to the statutory agent argument, Your Honor found that the evidence demonstrated that ALPINE was simply a subcontractor and did not have authority and control over the work. Therefore, the Labor Law claims against ALPINE were dismissed. (ECF Doc. No. 218 at pages 16-17). 9. With respect to the common law negligence claim, Your Honor found that the accident arose out of the means and methods of other work employed by the plaintiff and his co- workers. Specifically, the Order referenced the plaintiff’s testimony wherein the plaintiff testified that his supervisors at Capital determined the manner in which he worked. (ECF Doc. No. 218 at pages 25-26). The Court noted that at best ALPINE had general supervisory control over the work. Therefore, the Court dismissed this Complaint as against ALPINE. ARGUMENT 10. A motion for leave to reargue is addressed to the sound discretion of the motion court. See, Fein v. Fein, 192 AD3d 1083 (2nd Dept 2021). The motion must be ‘based upon matters of fact or law’ allegedly overlooked or misapprehended by the Court in determining the prior motion and cannot include any new facts. Id. 3 of 6 FILED: KINGS COUNTY CLERK 07/14/2023 12:21 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 232 RECEIVED NYSCEF: 07/14/2023 11. In the case at bar, plaintiff’s counsel has not cited to any facts which were not previously considered by the Court. Here, the plaintiff claims that the Court overlooked the fact that the ALPINE driver controlled the delivery of concrete into the job site and was therefore a statutory agent of the owner and the general contractor. 12. This argument was considered and rejected by the Court in its decision of the original motion. 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. See, Lopez v. Strober King Building Supply Centers, Inc., 307 A.D.2d 681 (3rd Dept 2003). 13. In the case at bar, the evidence demonstrated that ALPINE was merely a vendor that delivered concrete to the job site and did not have a connection to the owner of the property whatsoever. In fact, ALPINE was hired by Capital and did not have any contractual nexus to the owner or the general contractor. 14. Additionally, ALPINE did not have any control over the plaintiff and his co-worker had the requisite control to be considered a statutory agent. Here, the Court considered the fact that the general contractor and owner did not delegate any authority to ALPINE. See, Van Berkom v. America Painting, LLC, 120 A.D.3d 660 (2nd Dept 2010). 15. Based on the foregoing, it is respectfully submitted that the Court did not overlook any facts and, as a result, the plaintiff’s motion to reargue should be denied. 16. With respect to the common law negligence claim, the Court fully considered the evidence and concluded that the plaintiff’s injuries were caused by the means and methods of his employer. 17. The evidence before the Court on the prior motion included the plaintiff’s testimony that the ALPINE driver would position the chute into the concrete pump and the Capital employee would send the concrete into the work site. (ECF Doc. No. 156 (Exhibit “F”) at pages 55-56). On 4 of 6 FILED: KINGS COUNTY CLERK 07/14/2023 12:21 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 232 RECEIVED NYSCEF: 07/14/2023 the motion to reargue, plaintiff’s counsel ignores most of the recorded evidence and wants this Court to believe that the ALPINE driver was exclusively in control of this process. 18. Contrary to counsel’s representation, the actual evidence which includes plaintiff’s counsel’s own client’s testimony demonstrated that there were two employees of Capital that worked inside the site that took delivery of the concrete. (ECF Doc. No. 156 (Exhibit “F”) 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. (ECF Doc. No. 156 (Exhibit “F”) at pages 169, 171). Therefore, these employees controlled the manner in which the concrete was delivered into the work site. 19. This testimony was properly considered by the Court in deciding the original motion and it is submitted that the plaintiff’s motion to re-argue the common law negligence cause of action should be denied. 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 denying plaintiff’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 July 14, 2023 Robert S. Mazzuchin /s/ __________________________________ Robert S. Mazzuchin 5 of 6 FILED: KINGS COUNTY CLERK 07/14/2023 12:21 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 232 RECEIVED NYSCEF: 07/14/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------------------------------------------------------------X JOSE GOMEZ, Plaintiff, -against- 91-93 FRANKLIN LLC, Y.N.H. CONSTRUCTION Index No. 527680/2019 INC., and ALPINE READY MIX INC, Defendants. WORD ---------------------------------------------------------------------X CERTIFICATION 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 1,357. 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 July 14, 2023 Robert S. Mazzuchin /s/ __________________________________ Robert S. Mazzuchin 6 of 6