Opinion
111144/2007.
Decided January 11, 2010.
Steven Falkoff, Rosenberg, Minc, Falkoff Wolff, LLP, New York, NY, for Plaintiff.
FlSCHETTl PESCE, LLP, Garden City, NY, for Defendant YORK SCAFFOLD EQUIPMENT CORP.
Jamie T. Packer, Nicoletti Gonson Spinner Owen LLP, New York, New York, for Defendants Elaine Kaufman Cultural Center and Yorke Construction Corporation.
In this Labor Law action, plaintiff sues for damages sustained when he fell off a scaffold while working at a construction site at 129 West 67th Street on June 20, 2007. Plaintiff moves for summary judgment on his Labor Law § 240(1) claim against defendants Elaine Kaufman Cultural Center ("Kaufman") and Yorke Construction Corporation ("Yorke").
The following relevant facts are undisputed: Plaintiff was employed by third-party defendant Stuart Dean Co., Inc. ("Stuart"). At the time of the accident, plaintiff was working on a scaffold approximately 20 feet above a landing. Plaintiff alleges that, while his co-worker handed him a bucket of water, plaintiff tripped on a plank on the floor of the scaffold, and fell off the scaffold into a space between the scaffold and the facade. ( See P.'s Dep. at 47, 51, 53.) At the time of the accident, Kaufman owned the premises and Yorke was the general contractor for the project.
The standards for summary judgment are well settled. The movant must tender evidence, by proof in admissible form, to establish the cause of action "sufficiently to warrant the court as a matter of law in directing judgment." (CPLR 3212[b]; Zuckerman v City of New York, 49 NY2d 557, 562.) "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers." ( Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853.) Once such proof has been offered, to defeat summary judgment "the opposing party must show facts sufficient to require a trial of any issue of fact' (CPLR 3212, subd. [b])." ( Zuckerman, 49 NY2d at 562.)
Labor Law § 240(1) provides:
All contractors and owners and their agents, * * * 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.
"The purpose of the section is to protect workers by placing the ultimate responsibility' for worksite safety on the owner and general contractor, instead of the workers themselves." ( Gordon v Eastern Ry. Supply, Inc., 82 NY2d 555, 559; Rocovich v Consolidated Edison Co., 78 NY2d 509, 513.) "Thus, section 240(1) imposes absolute liability on owners, contractors and their agents for any breach of the statutory duty which has proximately caused injury." ( Gordon, 82 NY2d at 559.)
It is further settled that under Labor Law § 240(1), "liability is contingent upon the existence of a hazard contemplated in [that section] and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein." ( Narducci v Manhasset Bay Assocs., 96 NY2d 259, 267.) Liability is not established based on the mere fact that a plaintiff falls off a scaffold. Rather, it must be shown that proper protection was not provided. ( Blake v Neighborhood Hous. Servs. of New York City, Inc. , 1 NY3d 280 .) Moreover, "violation of the statute is not enough; plaintiff is obligated to show that the violation was a contributing cause of his fall." ( Id. at 287 [internal quotation marks, brackets, and citation omitted].)
In support of his motion, plaintiff submits his deposition testimony that he fell between the scaffold and the facade of the building (P.'s Dep. at 47, 51), and that he was not provided a harness or safety line prior to the accident. ( Id. at 37-38.) He further attests that the scaffold lacked rails or other safeguards. ( See P.'s Aff. at 2.) This testimony is sufficient to demonstrate that defendants failed to provide him with adequate safety devices to provide protection from an elevation related hazard. ( See Vergara v SS 133 West 21, LLC , 21 AD3d 279 [1st Dept 2005].)
In opposition, defendants argue that the testimony in the record raises credibility issues that warrant denial of plaintiff's motion. Defendants' contention is unavailing. Whether plaintiff fell from the third level of the scaffold, as he testified ( see P.'s Dep. at 37), or from the second level, as his supervisor testified ( see Gonzalez Dep. at 13), this discrepancy is immaterial to the question of whether the scaffold was sufficient to protect him from his fall. ( See Vergara, 21 AD3d at 280.) Similarly, as there is no dispute that plaintiff was engaged in a covered action under Labor Law § 240(1), it is also immaterial whether plaintiff was cleaning before he fell, as he apparently testified ( see P.'s Dep. at 40), or was "cleaning up" as his supervisor testified. ( See Gonzalez Dep. at 18, 31.)
Defendants also fail to raise a triable issue of fact as to the manner in which the accident occurred. In disputing plaintiff's claim that he tripped on a plank and then fell off the scaffold, defendants offer the testimony of Yorke's superintendent that he was told that plaintiff "was standing on the cross-bracing [of the scaffold] leaning into the recessed area of the face of the building with the pressure-washer and he slipped and fell" into the gap. (Burke Dep. at 17.) This testimony is not only contradicted by that of plaintiff and his co-worker ( see Gonzalez Dep. at 19-20), but is based on the hearsay statement of an unidentified speaker. This hearsay statement is plainly insufficient to raise a triable issue of fact as to the cause of plaintiff's accident. ( See Van Dina v City of New York, 292 AD2d 267 [1st Dept 2002].)
Even assuming arguendo that plaintiff was standing on the cross-rail of the scaffold, rather than on the platform of the scaffold, defendants fail to raise a triable issue of fact as to whether plaintiff was the sole proximate cause of the accident, given that it is undisputed that no safety lines or other safety devices were provided.
Plaintiff's standing on the cross-rail, as alleged by defendant, at most amounted to comparative negligence, which is not a defense to a section 240(1) claim. ( See Hernandez, 49 AD3d 251, 253 [1st Dept 2008]; Vergara, 21 AD3d at 281; Velasco v Green-Wood Cemetery , 8 AD3d 88 [1st Dept 2004].) In so holding, the court notes that the accident report of Yorke's Sean Burke, stating that "[a]ll rails are in place and [there are] no open areas of any kind" on the scaffold ( see Ds.' Aff. in Opp., Ex. B), does not show that there was a safety rail or other safety device that would have prevented the accident. Moreover, defendants do not dispute that there was a gap between the scaffold and the facade of the building.
Defendants' assertion that plaintiff's employer, Stuart, was responsible for setting up additional planking for the recessed area ( see Burke Dep. at 31) also fails to raise a triable issue of fact. The fact that the inadequate safety device was provided by plaintiff's employer is immaterial to defendants' liability under Labor Law § 240(1). See e.g. Wehmeyer v Port Auth. of New York New Jersey, 248 AD2d 187 [1st Dept 1998]. See also Smith v 499 Fashion Tower, LLC , 38 AD3d 523 , 525 [1st Dept 2007].)
Accordingly, plaintiff's motion is granted to the extent that it is
ORDERED that plaintiff Oscar Cuevas is awarded judgment against defendants Elaine Kaufman Cultural Center and Yorke Construction Corporation as to liability on his Labor Law section 240(1) claim; and it is further
ORDERED that an assessment on damages shall be held at the time of trial, or after any other disposition of the underlying action, upon the filing of a note of issue and payment of the proper fees, if any.
This constitutes the decision and order of the court.