Opinion
36132/07.
Decided September 16, 2010.
The plaintiff is represented by Paul G. Gargiulo, Esq., the defendants are represented by the Law Offices of Edward Garfinkel by Michael J. Pearsall, Esq., of counsel.
Upon the foregoing papers, plaintiff Lionel Benjamin moves for an order, granting him partial summary judgment against defendants El-Ad Properties NY, LLC, CPS 1 Realty LP, and Tishman Construction Corporation of New York, on the issue of liability pursuant to Labor Law § 240 (1) and § 241 (6).
Background
The verified complaint alleges that on December 20, 2006, plaintiff suffered injuries as a result of a fall at the construction site located at 768 5th Avenue in Manhattan. The construction project was the renovation of the building known as the Plaza Hotel located at that address. Plaintiff was involved in the renovation of the exterior; specifically, he was renovating part of the roof.
The accident occurred while plaintiff, a sheet metal mechanic, was standing on a plank, which was the working surface of an exterior scaffold approximately 19 floors above the ground. A co-worker would hand plaintiff copper sheets from inside the building through an open window to plaintiff, who would place the sheets on the scaffold. After plaintiff placed one of the sheets on the scaffold, the plank on which he stood slid off the scaffold frame. Consequently, plaintiff fell approximately ten feet and landed within the scaffold frame. Plaintiff suffered injuries as a result.
Thereafter, on September 27, 2007, plaintiff commenced this action to recover damages for his injuries. Plaintiff alleges that defendant CPS 1 Realty LP ("CPS") is the owner of the subject building and that CPS hired defendant Tishman Construction Corporation of New York (Tishman) to renovate the subject building. Tishman hired various subcontractors, including plaintiff's employer, non-party Eagle One Roofing, Inc.
Plaintiff claims that, inter alia, both CPS, the owner of the subject property, and Tishman, either a contractor hired by the owner to perform construction work or an agent of the owner, are subject to absolute vicarious liability under the Labor Law. Plaintiff further claims that defendants and their agents violated, inter alia, sections 240 and 241 of the Labor Law. Lastly, plaintiff argues that the violations of the Labor Law were the proximate cause of the accident, and CPS and Tishman are thus vicariously liable for his injuries.
Defendants interposed an answer, discovery ensued, and on February 2, 2010, plaintiff filed a note of issue, indicating that the instant action is ready for trial. Plaintiff now seeks partial summary judgment against CPS and Tishman on the issues of liability pursuant to Labor Law § 240 (1) and § 241 (6).
Although the notice of motion indicates plaintiff is also seeking summary judgment against defendant El-Ad Properties NY, LLC, there is no indication that this party is an owner, contractor or agent thereof (and, therefore, would not be subject to vicarious liability pursuant to the Labor Law). Indeed, it appears that El-Ad Properties NY, LLC is simply an office address for CPS. Specifically, in the sixth paragraph of defendants' answer, defendants admit that "CPS c/o El-Ad Properties NY, LLC owned the land, the premises and structures located at 768 5th Avenue, New York, New York".
Arguments Advanced by Plaintiff in Support of the Motion
1. General Provisions of the Labor Law
In support of his motion, plaintiff first asserts that he was a construction worker lawfully present on the site and performing renovation work on the subject building. Therefore, reasons plaintiff, he is a protected worker who was injured while performing protected work for Labor Law purposes.
Plaintiff next asserts that CPS and Tishman are vicariously liable for his injuries pursuant to Labor Law § 240 (1) and Labor Law § 241 (6). Plaintiff argues that CPS is an "owner" and that Tishman is a either a "contractor" or "agent" of the owner as those terms are defined in the Labor Law. Plaintiff contends that it is undisputed that CPS owned the subject premises, and further contends that since Tishman had and exercised authority given by CPS to hire subcontractors and oversee the renovation project, Tishman is a either a "contractor" or "agent" of the owner. Plaintiff concludes that CPS and Tishman are thus subject to absolute vicarious liability pursuant to Labor Law § 240 (1) and § 241 (6).
2. Labor Law § 240 (1)
Plaintiff further claims that Labor Law § 240 (1) applies to the subject accident because he was subject to an elevation-related risk that led to the accident. Plaintiff reiterates that the accident occurred while he was working approximately 19 floors above ground level, and that he suffered injuries as a result of a ten-foot fall to a lower part of the scaffold frame. Next, plaintiff contends that Labor Law § 240 (1) requires that he was provided with proper protection against the risk of falling. However, claims plaintiff, the subject scaffold did not constitute proper protection for various reasons.
First, plaintiff contends that the slipped plank on which he stood constitutes a collapse of the scaffold. Alternatively, plaintiff asserts that the lack of guardrails at the level where he was working establishes that he was not furnished with proper protection against falls. Lastly, plaintiff claims that, even assuming the scaffold was properly built and placed, the fact that the scaffold did not prevent the fall demonstrates the existence of a violation of Labor Law § 240 (1).
Plaintiff reasons that these facts establish that he has demonstrated prima facie establishment to judgment as a matter of law against CPS and Tishman on the issue of Labor Law § 240 (1) liability. Plaintiff then asserts that defendants cannot demonstrate the existence of an issue of fact. Plaintiff argues that where, as here, a scaffold fails to prevent a fall, there is no merit to a "sole proximate cause" defense. Also, plaintiff asserts that the type of scaffold used and the type of work performed rendered the use of a safety line impossible. In the alternative, plaintiff claims that there was no available safety line that would have both been adequate to complete his assigned task and prevented the fall. Plaintiff concludes that he is entitled to partial summary judgment against CPS and Tishman on the issue of Labor Law § 240 (1).
3. Labor Law § 241 (6)
Plaintiff also asserts that the instant facts establish, prima facie, a Labor Law § 241 (6) violation. Plaintiff alleges violations of two provisions of the Industrial Code Industrial Code (12 NYCRR ch. 1, subch. A) that contain specific and positive commands: Industrial Code § 23-1.5 (a) and § 23-5.1 (e). Plaintiff asserts that the facts indicate that these two provisions were not complied with, and that these violations proximately caused his injuries. Plaintiff concludes that he is therefore entitled to partial summary judgment against CPS and Tishman on the issue of Labor Law § 241 (6) liability, and asserts that this court should grant the instant motion.
Arguments Advanced by CPS and Tishman in Opposition to the Motion
In opposition to the motion, CPS and Tishman assert that the existence of a triable issue of material fact precludes partial summary judgment on the issue of Labor Law § 240 (1). Specifically, CPS and Tishman assert that the instant facts could convince the trier of fact that plaintiff's failure to use a safety harness that was readily available to plaintiff and would have provided protection against the elevation-related risk. Although CPS and Tishman note that plaintiff testified at his examination before trial that he was directed by both his supervisor and a Tishman agent not to use a harness while performing the roofing work, CPS and Tishman nevertheless characterize this testimony as a "hearsay claim" and conclude that the trier of fact must determine whether plaintiff's failure to use a safety harness was the sole proximate cause of his injuries.
Affirmation in Opposition, ¶ 4.
The opponents of the motion also assert that plaintiff is not entitled to partial summary judgment on the issue of Labor Law § 241 (6) liability. First, CPS and Tishman note that courts have held that Industrial Code § 23-1.5 (a) and § 23-5.1 (e) are general safety provisions that do not contain positive, specific commands and are thus not adequate predicates for Labor Law § 241 (6) liability. Next, CPS and Tishman assert that, contrary to plaintiff's suggestion, the facts do not indicate that Industrial Code § 23-5.1 (e), which contains provisions regulating scaffold planking, was violated. Instead, claim CPS and Tishman, there is no indication that the subject plank did not comply with Industrial Code § 23-5.1 (e). For these reasons, CPS and Tishman conclude that this court should deny the instant motion.
Discussion
1. Standards for Summary Judgment
Summary judgment is a drastic remedy that deprives a litigant of his or her day in court and should thus only be employed when there is no doubt as to the absence of triable issues of material fact ( Kolivas v Kirchoff , 14 AD3d 493 ; see also Andre v Pomeroy, 35 NY2d 361, 364). However, a motion for summary judgment will be granted if, upon all the papers and proof submitted, the cause of action or defense is established sufficiently to warrant directing judgment in favor of any party as a matter of law (CPLR 3212 [b]; Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967; Zuckerman v City of New York, 49 NY2d 557, 562), and the party opposing the motion for summary judgment fails to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact ( Alvarez v Prospect Hosp., 68 NY2d 320, 324, citing Zuckerman, 49 NY2d at 562).
The proponents of a motion for summary judgment must first demonstrate entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact ( Alvarez, 68 NY2d at 324; Zuckerman, 49 NY2d at 562; see also Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). The motion should be granted only when it is clear that no material and triable issue of fact is presented ( Di Menna Sons v City of New York, 301 NY 118). If the existence of an issue of fact is even arguable, summary judgment must be denied ( Museums at Stony Brook v Vil. of Patchogue Fire Dept., 146 AD2d 572). Also, parties opposing a motion for summary judgment are entitled to every favorable inference that may be drawn from the pleadings, affidavits and competing contentions ( Nicklas v Tedlen Realty Corp., 305 AD2d 385; see also Akseizer v Kramer, 265 AD2d 356; Gibson v American Export Isbrandtsen Lines, 125 AD2d 65, 74; Strychalski v Mekus, 54 AD2d 1068, 1069; McLaughlin v Thaima Realty Corp., 161 AD2d 383, 384). Indeed, the trial court is required to accept the opponents' contentions as true and resolve all inferences in the manner most favorable to opponents ( Henderson v City of New York, 178 AD2d 129, 130). Lastly, a party seeking summary judgment has the burden of establishing prima facie entitlement to judgment as a matter of law by affirmatively demonstrating the merit of a claim or defense, rather than by pointing to gaps in the an opponent's proof ( Nationwide Prop. Cas. v Nestor , 6 AD3d 409 , 410; Katz v PRO Form Fitness , 3 AD3d 474 , 475; Kucera v Waldbaums Supermarkets, 304 AD2d 531, 532).
2. Labor Law § 240 (1)
Labor Law § 240 (1) states, in relevant part, that:
"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, altering, painting, cleaning or pointing 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 . . ."
Labor Law § 240 (1) was enacted to "prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of force of gravity to an object or person" ( Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501). Thus, Labor Law § 240 (1) is implicated in "situations in which a worker is exposed to the risk of falling from an elevated worksite or being hit by an object falling from an elevated worksite" ( Thompson v Ludovico, 246 AD2d 642, 642-643, quoting Rocovich v Consolidated Edison Co., 167 AD2d 524, 526, affd 78 NY2d 509). Furthermore, the duties delineated in Labor Law § 240 (1) are nondelegable, and owners and contractors are thus liable for the violations of their agents even if the owners and contractors have not exercised supervision and control of the injured worker or his work ( Rocovich, 78 NY2d at 513).
Here, since plaintiff seeks partial summary judgment against CPS and Tishman with respect to Labor Law § 240 (1), plaintiff must first establish prima facie entitlement to judgment as a matter of law. In order to establish prima facie liability under Labor Law § 240 (1), "a plaintiff must demonstrate a violation of the statute and that such violation was a proximate cause of his or her injuries" ( Reinoso v Ornstein Layton Mgt., Inc. , 19 AD3d 678 , 678, lv dismissed 5 NY3d 849). Here, the examination before trial testimony of plaintiff indicates that he was injured as a result of a fall that occurred when the scaffold plank on which he was standing slipped. This undisputed recitation of the facts demonstrates prima facie entitlement to judgment as a matter of law with respect to Labor Law § 240 (1). "The fact that the planking underneath the plaintiff collapsed established a prima facie case of liability under Labor Law § 240 (1), since a collapse would not have occurred if the safety device had been properly constructed so as to give adequate protection" ( Jablonski v Everest Constr. Trade Corp., 264 AD2d 381, 382, citing Birbilis v Rapp, 205 AD2d 569, 570; Robertti v Chang, 227 AD2d 542; Ageitos v Chatham Towers, 256 AD2d 156). Moreover, "[p]roof of a collapse of a safety device constitutes a prima facie showing that the statute was violated and that the violation was a proximate cause of the worker's injuries, thereby establishing the claimant's entitlement to judgment as a matter of law on the issue of liability" ( Dos Santos v State of New York, 300 AD2d 434, 434; see also Panek v County of Albany, 99 NY2d 452, 458; Saeed v NY/Enterprise City Home Hous. Dev. Fund Corp., 303 AD2d 484; Pineda v Kechek Realty Corp., 285 AD2d 496; Smith v Yonkers Contr. Co., 238 AD2d 501; Cosban v New York City Tr. Auth., 227 AD2d 160; cf. Nelson v Ciba-Geigy, 268 AD2d 570, 572 [liability is a question of fact except when the device collapses, moves, falls or otherwise fails to support the plaintiff and materials]; Romano v Hotel Carlyle Owners Corp., 226 AD2d 441, 442, [1996] [question of fact on liability presented where scaffold did not move or collapse]). In the alternative, since the subject scaffold "did not prevent plaintiff from falling . . . the core' objective of section 240 (1) was not met" and plaintiff has thus demonstrated prima facie entitlement to judgment as a matter of law ( Gordon v E. Ry. Supply, Inc., 82 NY2d 555, 561). Accordingly, plaintiff has demonstrated prima facie entitlement to partial summary judgment on the issue of Labor Law § 240 (1) liability.
The opposition fails to demonstrate the existence of a triable issue of fact. Although CPS and Tishman correctly note that an affirmative defense to Labor Law § 240 (1) liability exists where the plaintiff's actions or omissions are the sole proximate cause of the accident ( Blake v Neighborhood Hous. Servs. of NY City , 1 NY3d 280 , 290; see also Palacios v Lake Carmel Fire Dept., Inc. , 15 AD3d 461 , 463), the opponents of summary judgment with respect to a Labor Law § 240 (1) violation cannot defeat liability simply by demonstrating "the mere presence of alleged safety devices somewhere on the job site" ( Davis v Board of Trustees of Hicksville Pub. Lib. of Hicksville Union Free School Dist., 240 AD2d 461, 463).
Here, it is undisputed that a harness was available for plaintiff to use. However, and contrary to the arguments of CPS and Tishman, the Labor Law § 240 (1) duty requires that the subject harness provide "proper protection" to a worker such as plaintiff ( see e.g. Liverpool v S.P.M. Envtl., Inc., 189 AD2d 645, 646). Moreover, given plaintiff's uncontradicted examination before trial testimony indicating that his supervisor and a Tishman agent advised against using the subject harness, the sole proximate cause defense fails. Indeed, the defense applies only "when the safety devices that plaintiff alleges were absent were readily available at the work site . . . and plaintiff knew he was expected to use them but for no good reason chose not to do so, causing an accident" ( Gallagher v New York Post , 14 NY3d 83 , 88; see also Cahill v Triborough Bridge Tunnel Auth. , 4 NY3d 35 , 39-40). Since, in the instant matter, there is no indication that plaintiff unreasonably chose not to use the subject harness, CPS and Tishman have not raised a question of fact in opposition to plaintiff's prima facie entitlement to judgment as a matter of law on the issue of Labor Law § 240 (1) liability ( Gallagher, 14 NY3d at 89). Therefore, the court grants the motion of plaintiff seeking partial summary judgment against CPS and Tishman on the issue of Labor Law § 240 (1) liability.
Transcript of Examination Before Trial of Plaintiff, p. 37. The court also notes that CPS and Tishman have labeled this testimony a "hearsay claim"; however, this argument lacks merit. Plaintiff did not testify that he was advised not to use the subject harness in order to prove the truth of the out-of-court statement and, therefore, his testimony is not hearsay ( see e.g. Stern v Waldbaum, Inc. 234 AD2d 534, 535 [1996] [out-of-court statement directing supermarket employee to clean spill not hearsay]; see also Provenzo v Sam, 23 NY2d 256, 261 [1968]).
3. Labor Law § 241 (6)
Labor Law § 241 states, in applicable 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, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:"
"6. All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith."
Labor Law § 241 (6) imposes a nondelegable duty on owners and contractors to comply with the specific safety rules and regulations set forth in the Industrial Code in connection with construction, demolition or excavation work ( Ascencio v Briarcrest at Macy Manor, LLC , 60 AD3d 606 , 607, citing Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502; Nagel v D R Realty Corp., 99 NY2d 98, 102; Valdivia v Consolidated Resistance Co. of Am., Inc. , 54 AD3d 753, 754). To establish that an owner or contractor is subject to vicarious liability pursuant Labor Law § 241 (6), the plaintiff must identify the violation of an applicable Industrial Code provision that contains a specific command ( Rizzuto, 91 NY2d at 351; see also Plass v Solotoff , 5 AD3d 365 , 367; Singleton v Citnalta Constr. Corp., 291 AD2d 393, 394; Adams v Glass Fab, 212 AD2d 972, 973; Ares v State, 80 NY2d 959, 960).
However, contrary to plaintiff's contention, the court cannot grant him partial summary judgment on the issue of Labor Law § 241 (6) liability. Assuming arguendo that plaintiff has demonstrated the violation of an applicable Industrial Code provision that contains a positive command, such a violation does not establish negligence as a matter of law, but is instead some evidence of negligence to be considered with other relevant proof ( Long v Forest-Fehlhaber, 55 NY2d 154, 160). Indeed, "where such a violation is established, it does not conclusively establish a defendant's liability as a matter of law, but constitutes some evidence of negligence and thereby reserve[s], for resolution by a jury, the issue of whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances" ( Seaman v Bellmore Fire Dist. , 59 AD3d 515 , 516 [internal quotes omitted], quoting Rizzuto, 91 NY2d at 351; see also Johnson v Flatbush Presbyt. Church , 29 AD3d 862 ; Reinoso v Ornstein Layton Mgt., Inc. , 19 AD3d 678 , 679; Perri v Gilbert Johnson Enters., Ltd. , 14 AD3d 681 , 684; Daniels v Potsdam Cent. School Dist., 256 AD2d 897, 898). Accordingly, the court denies plaintiff partial summary judgment on the issue of Labor Law § 241 (6) liability.
Conclusion
The motion of plaintiff Lionel Benjamin is granted solely to the extent that he is awarded partial summary judgment against defendants CPS 1 Realty LP and Tishman Construction Corporation of New York on the issue of Labor Law § 240 (1) liability, and is otherwise denied.
The foregoing constitutes the decision, order and judgment of the court.