Opinion
No. 23321/10.
2013-03-14
CHING KUK YEUNG, Plaintiff, v. Ruby ELLIS a/k/a Ruby Ellis Moses, Defendant.
Steven Louros, Esq., New York, for Plaintiff. Peter S. Bujsluk, Esq., Capehart & Scatchard, New York, for Defendant.
Steven Louros, Esq., New York, for Plaintiff. Peter S. Bujsluk, Esq., Capehart & Scatchard, New York, for Defendant.
FRANCOIS A. RIVERA, J.
By notice of motion filed on August 1, 2012 under motion sequence number two, plaintiff Ching Kuk Yeung (hereinafter “Yeung” or “plaintiff”) has moved pursuant to CPLR 3212 for an order granting summary judgment in his favor on the issue of liability on his causes of action alleging violations of Labor Law §§ 240(1) and 241(6).
Defendant Ruby Ellis (hereinafter “Ellis”) has opposed the motion.
BACKGROUND
On September 22, 2010, Yeung commenced this action for damages for personal injury by filing a summons and verified complaint with the Kings County Clerk's office. Ellis joined issue by verified answer filed on January 20, 2011. Plaintiff's complaint contains eighteen allegations of fact in support of two causes of action. The first cause of action alleges common law negligence and the second cause of action alleges violations of Labor Law §§§ 200, 240 and 241. On July 20, 2012, plaintiff filed the note of issue.
Yeung's complaint and deposition testimony alleges, among other things, that on March 9, 2010, at around 5:30 p.m., while employed by Quality General Construction, Inc. to remove the roof of a building located at 402 Prospect Place, Brooklyn, New York (hereinafter the subject property) and owned by Ellis, he was seriously injured when a wooden surface he was standing on collapsed causing him to fall through and strike the floor of the third floor below. Yeung claims that he was provided a hard hat helmet and no other safety devices contrary to various requirements of the Labor Law.
PLAINTIFF'S MOTION PAPERS
Yeung's motion papers consists of a notice of motion, an affirmation of his counsel, an affidavit of Michael Walsh, a safety engineer, and nine annexed exhibits labeled A through I. Exhibit A is a copy of the instant summons and verified complaint. Exhibit B is a copy of Ellis' verified answer. Exhibit C is a copy of plaintiff's amended verified bill of particulars. Exhibit D is described as a copy of the deed to the subject property. Exhibit E is described as a copy of the certificate of occupancy of the subject property. Exhibit F is described as the construction contract pertaining to the subject property. Exhibit G is described as a photograph of the subject property. Exhibit H is a copy of the transcript of plaintiff's deposition conducted on February 1, 2012. Exhibit I is a copy of the examination before trial transcript of Chi Fai Yeung, plantiff's supervisor, conducted on January 11, 2012.
Ellis' opposition papers consists of an affirmation of his counsel and five annexed exhibits labeled A through E. Exhibit A is a copy of the verified complaint. Exhibit B is a copy of Ellis' verified answer. Exhibit C is the deposition transcript of Eric Lam, a non-party witness. Exhibit D is the deposition transcript of Chi Fai Yeung. Exhibit E is an affidavit of Peter Chen, a professional engineer.
Yeung replied with an affirmation of his counsel and three annexed exhibits labeled A through C. Exhibit A is Ellis' discovery demand. Exhibit B is Yeung's response to Ellis' discovery demand. Exhibit C is a copy of the note of issue filed in the instant action.
LAW AND APPLICATION
A motion for summary judgment may be granted only when there is no doubt as to the absence of any triable issue of material fact (Kolivas v. Kirchoff, 14 A.D.3d 493, 787 N.Y.S.2d 392 [2d Dept 2005] ). “Issue finding, rather than issue determination is the court's function. If there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied” (Celardo v. Bell, 222 A.D.2d 547, 635 N.Y.S.2d 85 [2d Dept 1995] ). A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986];Napolitano v. Suffolk County Dept. Of Public Works, 65 A.D.3d 676, 884 N.Y.S.2d 484 [2d Dept 2009] ).
Once the movant has met this burden, the burden then shifts to the party opposing the motion to demonstrate via admissible evidence the existence of a factual issue requiring a trial of the action ( Alvarez v. Prospect Hosp., supra; Zuckerman v. City of New York, 49 N.Y.2d 557, 560 [1980] ). A party opposing a motion for summary judgment is obligated “to lay bear his proofs” to sufficiently demonstrate, with admissible evidence, that a triable issue of fact will exist (Friends of Animals, Inc. v. Associated For Manufacturers, Inc., 46 N.Y.2d 1065, 416 N.Y.S.2d 790, 390 N.E.2d 298). A genuine issue of fact may not be demonstrated by using mere conclusions, expressions of hope or unsubstantiated allegations or assertions (Amatulli v. Delhi Constr. Corp., 77 N.Y.2d 525 [1991] ).
Labor Law § 240(1) imposes a nondelegable duty upon owners and general contractors to provide safety devices to protect workers from elevation-related risks (Godoy v. Neighborhood Partnership Housing Development Fund Co., Inc., 961 N.Y.S.2d 220, 2013 WL 811859 [2d Dept 2013]citing, Ross v. Curtis—Palmer Hydro—Elec. Co., 81 N.Y.2d 494 [1993]and Barr v. 1575 Ave., LLC, 60 A.D.3d 796, 875 N.Y.S.2d 228 [2d Dept 2009] ). “To impose liability pursuant to Labor Law § 240(1), there must be a violation of the statute and that violation must be a proximate cause of the plaintiff's injuries” (Corchado v. 5030 Broadway Properties, LLC, 103 A.D.3d 768, 962N.Y.S.2d 185, 2013 WL 616902 [2d Dept 2013] ). “Where there is no statutory violation, or where the plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery under Labor Law § 240(1)” ( id.)
Plaintiff's deposition testimony establishes that he was removing the roof of the subject property without a safety harness and without any safety netting around him or below him, even though the work area where he was required to stand contained exposed open spaces revealing the floor of the third floor below. He gained access to the work area by going up three flights of stairs and then climbing a ladder from the third floor to roof area. He was then required to stand on unstable and rotten wooden surfaces, and fell through one of the unstable wooden surfaces.
Plaintiff's deposition testimony demonstrates, prima facie, his entitlement to judgment as a matter of law on the issue of liability pursuant to Labor Law § 240(1) by submitting evidence that despite the elevation related risks involved in the work he was performing, he was provided with a hard helmet, and no other safety devices and as a result was seriously injured ( see Godoy v. Neighborhood Partnership Housing Development Fund Co., Inc., 961 N.Y.S.2d 220, 2013 WL 811859;see also Robertti v. Powers Chang, 227 A.D.2d 542, 543, 642 N.Y.S.2d 715 [2d Dept 1996] ).
The burden now shifts to the defendant to present a triable issue of fact. In an effort to do so, Ellis offered the affirmation of its counsel, the pleadings and three sworn statements. The affirmation of Ellis' counsel demonstrates no personal knowledge of the underlying facts and therefore has no probative value (Zuckerman v. City of New York, 49 N.Y.2d 557 [1980] ). Ellis' answer to the complaint is verified by counsel and may not be used as a affidavit pursuant to CPLR 105(u). The three sworn statements consist of the affidavit of Peter Chen, a professional engineer, and the unsigned, uncertified and incomplete deposition transcripts of Eric Lam and Chi Fai Yeung.
The unsworn, uncertified and incomplete deposition transcripts of Eric Lam are not in admissible form and are disregarded. The affidavit of Peter Chen is also disregarded because he relies on documents that are not included in Ellis' opposition papers and he offers conclusory opinions that are not properly within the realm of his stated area of expertise. Although unsigned, uncertified and incomplete, the excerpts of of Chai Fai Yeung's deposition transcript are admissible because the plaintiff used the complete transcript in support of his own motion, rendering them admissible.
Ellis used Chai Fai Yeung's testimony to demonstrate the following facts: on the date of plaintiff's accident, Chai Fai Yeung was at the accident site in his capacity as the foreman for Quality General Construction, Inc., and as plaintiff's supervisor. He had previously provided a safety harness and 20 feet of rope to the plaintiff. He saw the plaintiff wearing the harness and he saw him anchor the rope to a beam. He then saw the plaintiff step on a piece of pine wood lying across the beams and fall through striking the floor of the third floor approximately eleven feet below.
On a motion for summary judgment, facts must be viewed “in the light most favorable to the non-moving party” (Ortiz v. Varsity Holdings, LLC, 18 N.Y.3d 335, 339 [2011] ). Although Chai Fai Yeung's testimony contradicts plaintiff's claim that he was provided with a hard hat and no other safety devices, it does not raise a triable issue of fact. Taking the proffered admissible evidence in the light most favorable to Ellis, the Court must fully credit Chai Fai Yeung's version of the accident ( Id.). Upon doing so, the Court finds that Ellis has demonstrated the following facts: the plaintiff was removing the roof of the subject property without any safety netting around him or below him although the work area where he was required to stand contained exposed open spaces revealing the floor of the third floor below. Chai Fai Yeung gave the plaintiff a 20 foot rope and harness to anchor himself against the wooden beams by his feet. The plaintiff fell when the wooden surface he was standing on collapsed causing him to fall approximately eleven feet. The available surface that plaintiff was required to stand on was unstable and improperly secured. The 20 foot rope and harness provided to the plaintiff failed to protect the plaintiff from the eleven foot elevation related risk that he was exposed to. Therefore, fully crediting Chai Fai Yeung's testimony, there is no triable issue of fact that plaintiff was injured based on Ellis' failure to provide adequate safety devices to protect him from the elevation related risks of his job.
Yeung also sought summary judgment in his favor on the issue of liability on his cause of action alleging violations of Labor Law § 241(6). Plaintiff stated in his notice of motion that he was seeking summary judgment on his claim that Ellis violated the following specific provisions of the New York Industrial Code: Sections 23–1.5, 23–1.8, 23–1.15, 23–1.16, 23–1.17, 23–1.21, 23–1.22(c)(2), 23–6, 23–6.1, 23–6.2, 23–6.3, 23–1.7(a)(1), 23–1.7(a)(2), 23–1.7(b)(1)(i), 23–1.7(b)(1)(ii), 23–1.7(b)(1)(iii); 12 NYCRR 21.5(a), (d), (e), 12 NYCRR 21.7(d), (g), 12 NYCRR 23–1.21, 12 NYCRR 23–34, 12 NYCRR 23–1.24, 12 NYCRR 23–1.21(e); OSHA Sections 1926.451(h), 1926.451(h)(1), 1926.451(h)(2), 1926.451(h)(2)(i), 1926 .451(h)(2)(ii), 1926.451(h)(2)(iii), 1926.451(h)(2)(iv), 1926.451(h)(2)(v), 1926.501(a)(2), 1926.501(b)(1), 1926.501(b)(4)(i), 1926.501(b)(10), 1926.501(b)(13), 1926.501(b)(15); 1926.502(d)(16)(iii), 1926.502(d)(16)(iv); and (b).
CPLR 2214(a) provides that a notice of motion shall specify the relief demanded and the grounds therefore. The affirmation of Yeung's counsel states generally that there was a violation of the New York State Labor Law § 241(6) but contains no explanation or argument to support the claim. In particular, there is no discussion or explanation of anyone of the specific Industrial Code Sections recited in the notice of motion. In fact, there is no discussion at all of this branch of plaintiff's claim. It is therefore, denied for failure to comply with CPLR 2214(a).
In sum, plaintiff's motion for an order granting summary judgment in his favor on his claim that defendant violated Labor Law § 240(1) is granted.
Plaintiff's motion for an order granting summary judgment in his favor on his claim that defendant violated Labor Law § 241(6) is denied.
The foregoing constitutes the decision and order of this court.