Opinion
400679/2013
07-28-2015
Miguel Cuevas, Plaintiff, v. West Pierre Associates LLC, RICONDA MAINTENANCE, INC., and EVEREST SCAFFOLDING INC., Defendants.
Plaintiff's attorneys: Shapiro Law Offices, PLLC, by Jason S. Shapiro, Esq., 3205 Grand Concourse, Suite 1, Bronx, New York 10468, 718-295-7000 Defendant's attorneys: Wade Clark Mulcahy, by Bryan Lipsky, Esq., 111 Broadway, 9th Floor, New York, New York 10006, 212-267-1900
Plaintiff's attorneys: Shapiro Law Offices, PLLC, by Jason S. Shapiro, Esq., 3205 Grand Concourse, Suite 1, Bronx, New York 10468, 718-295-7000
Defendant's attorneys: Wade Clark Mulcahy, by Bryan Lipsky, Esq., 111 Broadway, 9th Floor, New York, New York 10006, 212-267-1900
Richard F. Braun, J.
This is a personal injury action arising out of a construction accident. Plaintiff Miguel Cuevas moves, pursuant to CPLR 3212, for partial summary judgment on liability on his Labor Law § 240 (1) claim against defendant West Pierre Associates LLC (defendant). Defendant moves to vacate the note of issue, to compel a medical exam of plaintiff, and for plaintiff to respond to all outstanding discovery demands and to take defendant's deposition or otherwise deem it waived.
Plaintiff, an employee of Everest Scaffolding, Inc. (Everest), was allegedly injured on August 30, 2012 while working at a construction site at 253 West 72nd Street, New York, New York, a property owned by defendant. Riconda Maintenance, Inc. (Riconda), was hired to serve as general contractor for at least a portion of the construction work. Everest supplied scaffolding for work on the building's exterior, specifically a sidewalk bridge that was being taken down at the time of the accident. Plaintiff was injured when he fell 12 feet to the ground from the scaffolding on which he was working. All claims have been discontinued as against Riconda and Everest.
A party moving for summary judgment must demonstrate that there are no disputed issues of fact and that he, she, or it is entitled thereto as a matter of law, pursuant to CPLR 3212 (b) (Smalls v AJI Indus., Inc., 10 NY3d 733, 735 [2008]; Pokoik v Pokoik, 115 AD3d 428 [1st Dept 2014]; see Gammons v City of New York, 24 NY3d 562, 569 [2014]). To defeat summary judgment, the party opposing the motion has to show that there is a material question(s) of fact that requires a trial (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; CitiFinancial Co. (DE) v McKinney, 27 AD3d 224, 226 [1st Dept 2006]; see Hoover v New Holland N. Am., Inc., 23 NY3d 41, 56 [2014]). As the Court of Appeals explained in Blake v Neighborhood Hous. Serv. of NY City, Inc. (1 NY3d 280, 289 n 8 [2003]):
In cases involving ladders or scaffolds that collapse or malfunction for no apparent reason, we have (ever since Steward v. Ferguson, 164 NY at 553, supra ) continued to aid plaintiffs with a presumption that the ladder or scaffolding device was not good enough to afford proper protection. See Panek v. County of Albany (99 NY2d 452, 458 [2003] [summary judgment appropriate for the plaintiff where it was uncontroverted that a ladder collapsed beneath him, causing the fall] ); Styer v. Walter Vita Constr. Corp . (174 AD2d 662 [2d Dept 1991] ); Olson v. Pyramid Crossgates Co. (291 AD2d 706 [3d Dept 2002]). Once the plaintiff makes a prima facie showing the burden then shifts to the defendant, who may defeat plaintiff's motion for summary judgment only if there is a plausible view of the evidence—enough to raise a fact question—that there was no statutory violation and that plaintiff's own acts or omissions were the sole cause of the accident. If defendant's assertions in response fail to raise a fact question as to these issues, the plaintiff must be accorded summary judgment (see Klein v. City of New York (89 NY2d 833, 835 [1996] ). On the other hand, defendant may be granted summary judgment if the record establishes conclusively that no Labor Law § 240(1) violation was shown to have been a proximate cause of the accident and that the accident was therefore caused solely by plaintiff's conduct (see e.g. Stark v. Eastman Kodak Co., 256 AD2d 1134 [4th Dept 1998]; Custer v. Cortland Housing Authority, 266 AD2d 619, 621 [3d Dept 1999]).
Insofar as plaintiff has come forward with evidence that he was injured when the scaffold gave way and he fell through, he has made a prima facie showing of entitlement to partial summary judgment on liability on his Labor Law § 240 (1) cause of action (see Ciardiello v Benenson Capital Co., 273 AD2d 147 [1st Dept 2000]). Plaintiff's foreman stated in his affidavit that, while the sidewalk bridge was being taken down, plaintiff stepped on an unsupported piece of tin laminate that gave way and that the failure of the sidewalk bridge was due to an error in the installation of the bridge through no fault of plaintiff. The foreman further said that there was no way for plaintiff to tie off his safety harness given the lack of provision of a roof line and the need for him to move around on the 160 foot long sidewalk bridge while working on the dismantling of the scaffold (cf. Berenson v Jericho Water Dist., 33 AD3d 574, 576 [2nd Dept 2006] ["Evidence was proffered in opposition to the motion suggesting that the plaintiff, or laborers under his supervision, placed an inadequate wooden plank (i.e., a "joist") on the scaffold causing it to collapse"]; Storms v Dominican College of Blauvelt, 308 AD2d 575, 576 [2nd Dept 2003] ["The plaintiff, employed by Schaeffer, while in the process of dismantling scaffolding, accidentally stepped onto a plank from which he had just removed a bracket, and fell 25 feet from the scaffolding. ... issues of fact exist as to whether the plaintiff's own conduct was the sole proximate cause of his injuries"]; Styer v Walter Vita Constr., 174 AD2d 662, 663 [2nd Dept 1991] ["Given the plaintiff Styer's partial dismantling of the scaffold's support structure, a presumption that Labor Law § 240 (1) was violated does not lie"]). Even accepting co-worker witness Cristian Vargas' version of the event, relied upon by movant, which is contradicted in large part by plaintiff's foreman, plaintiff's actions in walking on an unsupported portion of the laminate or failing to tie off would at most go to comparative fault and not sole proximate cause (see Garzon v Viola, 124 AD3d 715, 717 [2nd Dept 2015]; Portes v New York State Thruway Auth., 112 AD3d 1049, 1050-1051 [3rd Dept 2013]; Morales v Spring Scaffolding, Inc., 24 AD3d 42, 48-49 [1st Dept 2005]).
Defendant has not shown that there is any question of fact requiring a trial as to the issue of liability on the Labor Law § 240 (1) claim. Thus, plaintiff's motion has been granted by this court's separate decision and order.
As to defendant's motion, although, contrary to defendant's contention, plaintiff cannot be compelled to take defendant's deposition and thus was free to waive it, plaintiff filed the note of issue prematurely while a post EBT discovery notice was outstanding and a timely noticed neuropsychological examination had not yet been held, and there is no indication that defendant waived that discovery (see Empire Mut. Ins. Co. v Moore Business Forms, Inc., 88 AD2d 819, 820 [1st Dept 1982]). Plaintiff's attorney improperly claimed in his affirmation of compliance filed with the note of issue that defendant was precluded as to further discovery. Given that the discovery issues arose after January 22, 2014, the end date for disclosure contained in Justice York's June 19, 2013 preliminary conference order, contrary to plaintiff's argument the disclosure that defendant seeks is not waived by Justice York's January 15, 2014 compliance conference additional directives. That required a pre-motion phone call to him or his court attorney before the end date for discovery, or there would be a waiver of further discovery. Such a phone call was not possible due to the disclosure disputes having arisen after the disclosure end date. Thus, there was no waiver (cf. Matter of Hochberg v Davis, 171 AD2d 192, 195-196 [1st Dept 1991] [where the Court held that it was improper for a judge to require prior approval by the judge before a motion could be made]).
While there is no formal affirmation of good faith by defendant, as mandated in 22 NYCRR § 202.7 (a) (2) (see Pezhman v Department of Educ. of the City of NY, 79 AD3d 543, 544 [1st Dept 2010]; Dunlop Dev. Corp. v Spitzer, 26 AD3d 180, 182 [1st Dept 2006]), it is clear that the parties made good faith efforts to resolve the discovery disputes both prior to and at the time of oral argument of the motion (see Espinal v 570 W. 156th Assoc., 276 AD2d 255 [1st Dept 2000]). The reply affirmation substantially complies with 22 NYCRR § 202.7 (a) (2) to the extent that the affirmation alleges that efforts to resolve the outstanding discovery disputes were not fruitful, and thus this court will exercise its discretion under CPLR 2001 to disregard the failure of defendant to submit a separate affirmation of good faith (see Fulton v Allstate Ins. Co., 14 AD3d 380, 382 [1st Dept 2005]; Clarke v Condon, 25 Misc 3d 1201(A), 2007 NY Slip Op 52629(U) [Sup Ct., Dutchess County 2009], affd on other grounds 52 AD3d 764 [2nd Dept 2008]; Gilman & Ciocia, Inc. v Walsh, 21 Misc 3d 1116(A), 2006 NY Slip Op 52644(U) [Sup Ct., Dutchess County 2006], affd 45 AD3d 531 [2nd Dept 2007]).
However, because a motion for summary judgment was pending, which stayed discovery (CPLR 3214 [b]), it was improper for defendant to move to compel discovery, and thus the branch of the motion seeking discovery has not been granted. Therefore, the motion was granted, by separate decision and order of this court, to the extent of vacating the note of issue and striking this action from the trial calendar.
Dated: New York, New York
July 28, 2015RICHARD F. BRAUN, J.S.C.