Opinion
Index No. 517525/2020 Mot. Seq. No. 3
12-05-2023
OMAR BATIS, Plaintiff, v. 85 JAY STREET (BROOKLYN), LLC, LTF LEASE COMPANY, LLC and NEW LINE STRUCTURES &DEVELOPMENT, LLC, Defendants.
Unpublished Opinion
PRESENT: HON DEBRA SILBER, Justice.
DECISION/ORDER
DEBRA SILBER, JUDGE.
The following e-filed papers read herein: NYSCEF Doc Nos.:
Notice of Motion, Affidavits (Affirmations) and Exhibits Annexed 43-57
Opposing Affidavits (Affirmations) 59-65
Affidavits/Affirmations in Reply 67
Plaintiff moves (in motion sequence number three) for an order, pursuant to CPLR 3212 (a), granting him partial summary judgment on the issue of liability under Labor Law § 240(1) against defendants 85 JAY STREET (BROOKLYN), LLC and NEW LINE STRUCTURES &DEVELOPMENT, LLC, the property owner and the general contractor, respectively. This action was discontinued as against defendant LTF Lease Company, LLC and a stipulation of discontinuance was filed [Doc 48],
BACKGROUND
On September 2, 2020, the day of plaintiffs accident, defendant 85 Jay Street (Brooklyn) LLC (hereafter "85 Jay") was the owner of the property located at 85 Jay Street in Brooklyn, New York (hereinafter "the premises"). The owner purchased the property in 2016 and filed plans to construct a new mixed-use building with apartments and commercial space. The plans were approved in 2018 under Job No. 321188415. The property is now known as The Front and York Condominium (Block 54, Lots 1001-1411 [formerly known as Lot 1]). Defendant New Line Structures &Development, LLC (hereafter "New Line") was the general contractor hired to oversee the construction project. The building permit was issued to this company.
Plaintiff was employed by non-party USA Interiors LLC, and he testified that at the time of the accident, he was working with a crew that was tasked with installing sheetrock. He was working with a co-worker, who was handing the pieces of sheetrock to him, while plaintiff stood on an A-frame ladder. Plaintiff was using an electric drill to screw in the sheetrock screws. In the course of doing this work, plaintiff claims the ladder moved and he fell, injuring his right shoulder. Plaintiff was deposed on April 12, 2022. He testified that he came to the United States from Honduras approximately four years ago and has had a succession of jobs, all of which involved installing sheetrock. The job for USA Interiors LLC at 85 Jay Sheet started about six weeks before the accident [Doc 50 Page 23], USA Interiors LLC paid him half in cash and half by check. His foreman was a man named Edwin, who gave him all of his instructions. He used a ladder on a daily basis, but not the same ladder each day. All were A-frame, and all were the same size. Edwin gave him the ladders, but he did not know who owned the ladders [Page 31], He did not know what they were made of. He did not know what size they were. They were not all of the same color.
On the day of his accident, he was assigned by Edwin to work at a specific apartment when he arrived, and he and his co-worker Hugo went to that apartment to work. He had not worked with Hugo before that day [Page 35], He had not worked in this particular apartment before. They were working in the kitchen. The floor was level and free of debris [Page 46], He was measuring, and Hugo was cutting the sheetrock. He was using his own drill to screw in the screws. He is right-handed. He held the sheetrock in place with his left hand. He could not say which rung of the ladder he was standing on. [Page 44], He had set the ladder in place and locked the cross braces [Page 46], He checked that it was stable before he climbed onto it. He did not know what caused it to move. Plaintiff was shown a photo at his deposition [Doc 54] and he identified it as a photo of him lying on the ground after the accident and the ladder. The photo was taken by Victor, a co-worker who had been working in another apartment. In the photo, plaintiff is wearing a hardhat and a toolbelt. He is lying on his right side and holding the drill in his right hand.
Plaintiff commenced this action by filing a summons and verified complaint on September 17, 2020, and issue was joined shortly thereafter. Plaintiff filed his note of issue on March 3, 2023, and this motion timely followed. It is noted that on some of the papers, plaintiffs name is Omar Batis Martinez.
Plaintiffs Motion
Plaintiff moves for partial summary judgment on the issue of liability under Labor Law § 240(1). He supports his motion with copies of the pleadings, an affirmation of counsel, a memo of law, EBT transcripts for all three parties, and a copy of the contract between the defendants.
Michael Bird was deposed on October 20, 2022 as the witness for New Line, the general contractor. He testified that he started in March of 2020 at the 85 Jay Street site as a project superintendent and has been employed at New Line for four years. He has completed high school. He has an OSHA 40 certificate. He described the subject project as "four different buildings that tie together in city square block" [Doc 52 Page 8], He was not familiar with the contract with the owner, or any of the subcontracts. His supervisors were Drew Pollard and Richard Coughlan, the general superintendents. Mr. Bird said there were two different sheetrock contractors, one for the rental apartments in the two smaller buildings, and one for the condo buildings, which are larger buildings. USA Interiors was hired for the smaller rental buildings [Page 11]. On a daily basis, USA Interiors had "somewhere about 40 to 50" workers on site [Page 43], Mr. Bird testified that he was on site daily. There was a site safety company with a trailer office, but he could not remember the name of the company. By September of 2020, the concrete superstructure was finished, and they were installing sheetrock and windows. The superintendents did the daily logs, not him. Mr. Bird was shown the daily log for the day of plaintiffs accident. He identified the signature as that of Matt Finn another project superintendent.
Mr. Bird testified that on the day of the plaintiffs accident, he was doing a walk through and happened to be on the floor the plaintiff was working [Page 19], It was the third floor of building D. The apartment was unit DZZ. He walked in and plaintiff was "on the floor on his side and he seemed like he was in pain" [Doc 52 Page 21], There was a co-worker of plaintiffs there too, whose name he did not know. Plaintiff s foreman was a man named Harold Choque [Page 22], Mr. Bird called him on the phone [Page 51] and he arrived a few minutes later and was able to translate for plaintiff, as plaintiff s coworker could not. Mr. Bird testified that the plaintiff told him, through plaintiffs foreman, that he was installing the drywall on the kitchen soffit and he "lost his balance and fell off the ladder onto his side" [Page 23], The ladder he saw was a six-foot A-frame ladder, which was red. He told plaintiff not to move, and called for Jackie, the USA Interiors' medic [Page 26], She came in five minutes and spoke to plaintiff with Harold translating. Plaintiff said he could not move, and could not stand up, so she called for an ambulance [Page 27], The ambulance came in about ten minutes and took plaintiff to the hospital. He said the site safety guy, Chis, came to the accident location, but Mr. Bird had left by then.
Mr. Bird said that the ladder belonged to USA Interiors. He knew this because New Line does not supply any equipment to the subcontractors [Page 32]. He "looked over the ladder to make sure it was a secure ladder. I stepped up on it. Everything seemed to be in check" [id.]. He said the rental apartments had eight-foot ceilings, so plaintiff would have been installing the sheetrock six to eight feet from the ground. New Line did not have any policies with regard to using ladders or other devices for sheetrock installation [Page 34], Mr. Bird testified that he had seen USA Interiors using baker scaffolds at the site, and when asked what purpose they were used for, he said "sometimes drywall repair and finish work" [Page 46], Presumably, he meant taping and the application of joint compound.
Mr. Bird was then shown the accident report he had prepared [Doc 60], He had listed Hugo Matias as the co-worker who witnessed the accident. He spoke to him with Harold's help interpreting. Mr. Bird was then shown a document identified as the Safety Professional Field Log for the day of the plaintiffs accident. He said he had not seen it before [Page 39], He could not identify the signature. He said he had seen a report from the medic. He was shown another document and said it was not the medic's report. He did not know who had filled it out and said he had never seen it before [Page 42], In addition to plaintiff's EBT transcript and Mr. Bird's EBT transcript, plaintiff also provides the EBT transcript for the witness provided by the property owner, Jason Lifton. He said he is a Vice President of Development for CIM Group, a real estate development firm. He said he was appearing as the owner's representative. The owner LLC is owned by a "fund" that he could not identify, which he said was either owned or managed by CIM Group. He was working on six different projects in September of 2020. CIM Group had one or two people who "were making somewhat regular visits to the site" [Doc 51 Page 18], He said the owner had contracted with New Line as general contractor [Page 21], New Line hired all the subcontractors. He had no information about the plaintiff's accident. The attorneys did not ask him any further questions.
Plaintiffs memo of law argues that plaintiff is entitled to summary judgment on his Labor Law § 240 (1) claim because the ladder failed to protect him from the elevation-related hazards of his work.
Counsel avers that "[a] plaintiff moving for summary judgment on a Labor Law § 240(1) claim satisfies his initial burden by establishing, among other things, that the ladder from which he fell did not provide adequate protection pursuant to Labor Law § 240(1). This burden can be satisfied by demonstrating that the device collapsed, slipped, tipped, or otherwise failed to perform its function of supporting the workers. Raynor v. Quality Plaza Realty, LLC, 84 A,D.3d 774, 775 (2d Dep't 2011); Ordonez v. C.G. Plumbing Supply Corp., 83 A.D.3d 1021, 1022 (2d Dep't 2011); Woods v. Design Center LLC, 42 A.D.3d 876 (4th Dep't 2007). If a safety device suddenly shifts and moves, a prima facie violation of the statute has been established without, arguendo, an additional showing that the device was "inherently defective." Montalvo v. J. Petrocelli Construction, Inc., 8 A.D.3d 173 (1st Dep't 2004); Orellano v. 29 East 37th Street Realty Corp., 292 A.D.2d 289 (1st Dep't 2002); See also, Panek v. County of Albany, 99 N.Y.2d 452 (2003)."
Defendants' Opposition to Plaintiffs Motion
In opposition, defendants submit an affirmation of counsel, an affidavit from plaintiffs co-worker Hugo, and a number of documents. Hugo's affidavit is translated from Spanish, with a proper certification from the translator. He essentially states that plaintiff had not complained about the ladder, that it was a four-foot ladder, and that it was in good working order. He also states that he did not in fact witness the accident, but instead "I had my back to him, and when I turned around I saw him lying on the floor" [Doc 64 ¶10], He also notes that the ladder did not fall over and was still standing after plaintiff fell [¶ll].
Document 60 is the New Line accident report Mr. Bird prepared and authenticated at his EBT. Document 61 is the medic's report, which Mr Bird was not shown, and which is not in admissible form. It could not be considered, although it does not seem to contain any different information than Mr. Bird's report. Document 82 is described as the USA Interiors' accident report, but it too is not in admissible form and could not be considered. Document 63 is described as the safety professional field log. When it was shown to Mr. Bird, he said he had not seen it before, and he could not identify the signature. It too is not in admissible form and could not be considered.
Defendants' counsel argues that "Contrary to plaintiff s arguments, plaintiff s alleged fall from a ladder does not automatically mean that there was a violation of Labor Law §240(1). Plaintiff has failed to submit any evidence that the subject ladder was defective, or that any such defect caused the subject accident. Plaintiff s accident was caused solely by him losing his balance, and therefore, Labor Law §240(1) was not violated, and plaintiffs motion should be denied" [Doc 59 ¶5]. Defendants also argue that New Line was not the general contractor and thus is not a proper Labor Law defendant, but provides no evidence that it was not in fact the general contractor.
Discussion
Plaintiff moves for partial summary judgment on the issue of liability under Labor Law § 240(1), which provides, in pertinent part, as follows:
"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, [or] altering ... 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 purpose of Labor Law §240(1) is to protect construction workers "from the pronounced risks arising from construction work site elevation differentials" (Runner v. New York Stock Exch., Inc., 13 N.Y.3d599, 603 [2009]; see also Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514 [1991]; Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501 [1993]). Therefore, Labor Law §240(1) is implicated in an injury that directly flows from the application of the force of gravity to an object or to the injured worker performing a protected task (Gasques v. State of New York, 15 N.Y.3d 869 [2010]; Vislocky v. City of New York, 62 A.D.3d 785, 786 [2d Dept 2009], Iv dismissed 13 N.Y.3d 857 [2009]; see also lenco v. RFD Second Ave., LLC, 41 A.D.3d 537 [2d Dept 2007]; Ortiz v. Turner Constr. Co., 28 A.D.3d 627 [2d Dept 2006]; Lacey v. Turner Constr. Co., 275 A.D.2d 734, 735 [2d Dept 2000]; Smith v. Artco Indus. Laundries, 222 A.D.2d 1028 [4th Dept 1995]). The duty to provide "proper protection" against elevation-related risks is nondelegable; therefore, owners, contractors and their agents are liable for violations even if they have not exercised supervision and control over either the subject work or the injured worker (Zimmer v. Chemung County Performing Arts, Inc., 65 N.Y.2d 513, 521 [1985] [owner or contractor is liable for Labor Law §240(1) violation "without regard to . . . care or lack of it"]).
However, Labor Law §240(1) does not apply to "any and all perils that may be connected in some tangential way with the effects of gravity" (Ross v. Curtis-Palmer Hydro-Elec. Co, 81 N.Y.2d 494 at 501 [1993]). Instead, "Labor Law §240(1) should be construed with a commonsense approach to the realities of the workplace at issue" (Salazar v. Novalex Contr. Corp., 18 N.Y.3d 134, 140 [2011]). "Not every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law §240(1). Rather, liability is contingent upon the existence of a hazard contemplated in section 240(1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" (Harrison v. State of New York, 88 A.D.3d 951, 952 [2d Dept 2011], quoting Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267 [2d Dept 2001]; see also Gutman v. City of New York, 78 A.D.3d 886, 887 [2d Dept 2010]). A successful cause of action pursuant to Labor Law § 240(1) requires that the plaintiff establishes both "a violation of the statute and that the violation was a proximate cause of his injuries" (Skalko v. Marshall's Inc., 229 A.D.2d 569, 570 [2d Dept 1996], citing Bland v. Manocherian, 66 N.Y.2d 452 [1985]; Keane v. Sin Hang Lee, 188 A.D.2d 636 [2d Dept 1992]; see also Rakowicz v. Fashion Inst, of Tech., 56 A.D.3d 747 [2d Dept 2008]; Zimmer, 65 N.Y.2d 513 at 524).
This statute "is to be construed as liberally as may be" to protect workers from injury (Zimmer, 65 N.Y.2d at 520-521 [1985]; see also Wilinski v. 334 E. 92ndHous. Dev. Fund Corp. 18 N.Y.3d 1, 7 [2011] ["a defendant's failure to provide workers with adequate protection from reasonably preventable, gravity-related accidents will result in liability"]). Nevertheless, an accident alone does not establish a Labor Law § 240 (1) violation. Rather, the plaintiff is required to show that the violation was a contributing cause of the accident and consequent injury (see e.g, Blake v. Neighborhood Hous. Servs. of NY City, Inc., 1 N.Y.3d 280 [2003]). Indeed, a successful cause of action under Labor Law § 240 (1) requires that the plaintiff establish both "a violation of the statute and that the violation was a proximate cause of his injuries" (Skalko v. Marshall's Inc., 229 A.D.2d 569, 570 [1996], citing Bland v. Manocherian, 66 N.Y.2d 452 [1985]; Keane v. Sin Hang Lee, 188 A.D.2d 636 [1992]; see also Rakowicz v. Fashion Inst, of Tech., 56 A.D.3d 747 [2008]; Zimmer, 65 N.Y.2d at 524). A plaintiff alleging that the provided safety devices were inadequate must show that it was that inadequacy which proximately caused the allegedinjuries (Wilinski, 18N.Y.3d 1 [2011]).
Generally, the issue whether a particular safety device provided proper protection is a question of fact for the jury (see generally Nazario v. 222 Broadway, LLC, 28 N.Y.3d 1054 [2016]). However, exceptions exist, and in certain situations an injured worker may demonstrate prima face entitlement to judgment as a matter of law with respect to Labor Law § 240 (1) (see e.g. Melchor v. Singh, 90 A.D.3d 866, 868 [2011] [issue of "proper protection" under Labor Law § 240 (1) is question of fact except when safety device "collapses, moves, falls, or otherwise fails"]; Nelson v. Ciba-Geigy, 268 A.D.2d 570, 572 [2000] [liability pursuant to Labor Law § 240 (1) is a question of fact except when the device collapses, moves, falls]). Here, as the ladder was not defective, and did not collapse, move, or fall, the issue of whether defendants provided plaintiff with proper protection for his work remains a question of fact for the jury. The court notes that the plaintiff has not obtained an expert's report following an examination of the ladder, and that there is no evidence that the ladder was defective.
Plaintiff cites several cases for his conclusion that the accident constituted a violation of Labor Law § 240(1). However, in all of the cases he cites, the ladder was either proven to be defective, or it collapsed, slipped, tipped, or otherwise failed to perform its function of supporting the worker. There is no evidence of a defective ladder here. Further, plaintiff told the foreman and Mr. Bird that he had lost his balance, the photo shows the ladder was upright after he fell, and it was not until his EBT two years after the accident that he said that the ladder had "moved" and that this was what caused him to fall.
In Costello v. Hapco Realty, Inc., 305 A.D.2d 445, 446-447 [2d Dept 2003] the court made it clear that there is no Labor Law § 240 (1) liability if "plaintiff s fall to the ground was the result of his having merely slipped off of a defect-free and properly-secured ladder." Proof of a plaintiffs fall from a ladder, without more, is not sufficient to establish liability under Labor Law § 240 (1).
The court finds that the plaintiff here fails to make a prima facie case for summary judgment on his claim pursuant to Labor Law §240 (1), and thus the motion must be denied. Even if the court had considered plaintiff to have made a prima facie case, solely on his averring that the ladder had somehow moved, the law in this Department would require the coml to find that the defendants have overcome the motion. For example, where a plaintiff stated shortly after the accident that he lost his footing or balance and fell off the ladder, but later testified at his deposition that the foot of the ladder "kicked out, that the ladder had 'walked the floor,'" the court said "the defendants raised a triable issue of fact as to whether the foot of the ladder kicked out and the ladder fell over, as Robinson testified, or whether Robinson's own carelessness or the manner in which he used the ladder was the sole proximate cause of his fall" (Robinson v. Goldman Sachs Headquarters, LLC, 95 A.D.3d 1096, 1097-1098 [2d Dept 2012]).
Similarly, in a recent case, the Second Department found that the "defendants raised a triable issue of fact as to whether the ladder shifted to the right and backwards, as the plaintiff testified, or whether the plaintiffs own actions were the sole proximate cause of the subject accident. The defendants submitted an affidavit from the plaintiffs supervisor, who averred that the plaintiff had told him, just after the accident occurred while he was still on the roof, that he had lost his balance . . . The different versions of the accident given by the plaintiff create triable issues of fact that required denial of the motion, including a triable issue of fact as to the plaintiffs credibility" (Jurski v. City of NY, 204 A.D.3d 983, 984 [2d Dept 2022]).
Accordingly, it is
ORDERED that plaintiff s motion for summary judgment on his Labor Law § 240 (1) claim as against defendants is denied; and it is further
ORDERED that the caption is amended to reflect the discontinuance of the complaint as against defendant LTF Lease Company, LLC, as follows:
The foregoing constitutes the decision and order of the court.