Opinion
7441/07.
Decided August 28, 2009.
Plaintiff's motion for an Order pursuant to CPLR § 3212 granting partial summary judgment on his Labor Law § 240(1) claims as to Defendants WILJOHN ASSOCIATES LLC, BROADWAY MANAGEMENT CO., INC. and M. MELNICK CO., INC.; Defendant's, M. MELNICK CO., INC. ("Melnick"), motion for an Order pursuant to CPLR § 3212 granting summary judgment as to Plaintiff's Labor Law §§ 200, 240(1) and 241(6) claims; Third-Party Defendant's, INNOVATIVE ELECTRIC OF NEW YORK, INC. ("Innovative Electric"), cross-motion for an Order pursuant to CPLR § 3212 granting summary judgment as to Plaintiff's Labor Law §§ 200, 240(1) and 241(6) claims; and Defendants', WILJOHN ASSOCIATES LLC and BROADWAY MANAGEMENT CO., INC. ("Wiljohn Associates/Broadway Management"), cross-motion for an Order pursuant to CPLR § 3212 granting partial summary judgment on Plaintiff's Labor Law § 240(1) claims and dismissing the Complaint and any and all cross-claims are all consolidated for decision herein.
Thomas J. Moverman, Esq., LIPSIG, SHAPEY, MANUS, P.C., Attorney for Plaintiff, SHPETIM HAJDERLLI, New York, New York.
Patrick W. Brophy, Esq., McMAHON, MARTINE GALLAGHER, LLP, Attorney for Defendants/Third-Party Plaintiffs, WILJOHN 59 LLC, WILJOHN ASSOCIATES LLC, BROADWAY MANAGEMENT CO., INC., Brooklyn, New York.
Sacks David Orlasch, Esq., LAW OFFICES OF S. DAVID OLARSCH, P.C., Attorney for Defendant/Third-Party Plaintiff, M. MELNICK CO., INC., New York, New York.
James Burbage, Esq. BARRY, McTIERNAN MOORE, Attorney for Third-Party Defendant, INNOVATIVE ELECTRIC OF NEW YORK, INC., New York, New York.
Plaintiff's motion is denied.
Melnick's motion is granted as to Plaintiff's Labor Law §§ 200, 240(1) and 241(6) actions.
Innovative Electric's cross-motion is denied as moot.
Innovative Electric was brought into this action via the Third-Party Summons and Complaint of WILJOHN 59 LLC, WILJOHN ASSOCIATES LLC, BROADWAY MANAGEMENT CO., INC. and M. MELNICK CO., INC., as such Plaintiff has no causes of action pending as to that party to dismiss. Furthermore, as Plaintiff's purported employer, there would have been no basis for Plaintiff to commence a lawsuit against that entity. See Macchirole v. Giamboi, 97 NY2d 147, 149 (holding that"because plaintiff was an employee' performing work for his employer at the time of the accident, his exclusive remedy was workers' compensation").
Wiljohn Associates/Broadway Management's cross-motion is granted as to Plaintiff's Labor Law §§ 240(1) and 241(6) claims.
PARTIES
Plaintiff was an electrician employed by the contractor, INNOVATIVE ELECTRIC OF NEW YORK, INC., hired by the general contractor, M. MELNICK CO., INC., to perform electrical work at 59 John Street, a building undergoing total renovations, which was owned by WILJOHN ASSOCIATES LLC and managed by BROADWAY MANAGEMENT CO.
FACTS
Plaintiff was an electrical worker, employed by Innovative Electric to do electrical work at a construction site located at 59 John Street, which included installing hallway lights, putting switches and wires through metal studs, and installing boxes. ( Pl. EBT at 24:20-25; 25:2-7.) Prior to the date of the incident that brought about this lawsuit, "[t]he street entrance to this construction project (and the eventual finished lobby design) had a four (4') foot height differential between the street level and the lobby level." ( Pl. Aff. Supp. at ¶ 22.) "During the first few years of this job, there was a wooden ramp at the location where the steps would later be constructed." ( Id.) This ramp was in place on the morning of November 7, 2006, on or about 7:00 am, when Plaintiff and Innovative Electric's foreman, Mr. Adrian Mitulescu, reported for work, entered the building and went to the basement area to prepare for the day. ( Id.) The ramp had been completely removed, by individuals other than Plaintiff and Mr. Mitulescu, by the time they returned to the lobby level from the basement at or about 8:00 am. ( Id. ¶ 24.)
Due to the four (4') foot height differential, Mr. Mitulescu retrieved a six-foot A-frame folding ladder and "put [it] down, in its folded position . . . leaning against the edge of the lobby floor." ( Id. at ¶ 28.) Mr. Mitulescu proceeded to walk down the ladder, and the ladder remained in the folded, leaning position until Plaintiff started to come down the ladder behind him. ( Id.)
According to Plaintiff, the accident occurred like this,
As soon as [Mr. Mitulescu] went down, I started going down behind him. He was talking to the guys at street level, and without looking back at me he pulled the ladder towards him. As I was on the ladder, the ladder slid and fall'd (sic) to the ground carrying me with it and I smashed to the ground with it. My right arm when out to first to break the fall, and I smashed to the ground and broke it. I landed on top of the ladder injuring my back too.
( Id. at Ex. E at 26:16-24.)
According to Mr. Mitulescu, the accident occurred like this,
We came up on the lobby level. I set the ladder myself. I stepped down. I packed the ladder going through, and [Plaintiff] says, "Can I have the ladder back?" I hand him the ladder, and I [walk] in front of the door here (indicating) when I see somebody wanted to talk to me. I don't know what. I [look] over my shoulder, and he says, "The guy fell." I turn back and see him down.
( Id. at Ex. F at 70:23-25; 71:2-7.)
ARGUMENTS
Plaintiff's theorizes that he is entitled to summary judgment on his Labor Law § 240(1) action because the "ladder on which he was performing construction work slip[ped], move[d], collapse[d] or [shook] causing him to fall to the ground." ( Pl. Aff. Supp. at ¶ 45.) Melnick contends that it is entitled to summary judgment on Plaintiff's: § 240(1) claims because "Plaintiff was the sole proximate cause of his accident" ( Def. Aff. Supp. at ¶ 4) or because "Mr. Mitulescu pull[ed] on the ladder, while plaintiff was still on it" ( id. at ¶ 14); § 200 claim because it was neither aware of, nor created, the dangerous condition at issue, nor did it supervise Plaintiff descending the ladder ( id. at ¶ 18); and § 241(6) claims because none of the Industrial Codes Plaintiff cites are applicable ( id. at ¶ 19). Innovative Electric argues that it is entitled to summary judgment on Plaintiff's § 240(1) claim because Plaintiff's accident was not the type of hazard covered by that section ( Def. Aff. Supp. at ¶ 15) or because the Court may consider Mr. Mitulescu's action in pulling the ladder as a proximate cause of Plaintiff's accident ( id.). Innovative Electric's arguments as to Plaintiff's §§ 200 and 241(6) claims mirror Melnick's. Wiljohn Associates/Broadway Management claims that they are entitled to summary judgment on Plaintiff's § 240(1) action because: the four-foot differential is not covered by the statute ( Def. Aff. Supp. at ¶ 23); Plaintiff was the sole proximate cause of his own mishap ( id. at ¶ 24); and there is no evidence that Broadway Management had any delegated authority over the injury-causing work ( id. at ¶ 28).
I.Labor Law § 240(1)
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.
A fall from a ladder by itself is insufficient to impose liability under § 240(1). See, e.g., Artoglou v. Gene Scappy Realty Corp. , 57 AD3d 460 , 461; Xidias v. Morris Park Contr. Corp. , 35 AD3d 850 , 851; Olberding v. Dixie Contr., Inc., 302 AD2d 574. A plaintiff must also show that "the subject ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing the plaintiff's injuries." Artoglou, 57 AD3d at 175; see also Zgoba v. Easy Shopping Corp., 246 AD2d 539, 541 (stating that "a plaintiff must establish that the statute was violated, and that this violation was a proximate cause of his injuries").
Plaintiff's theory of this case rests on a technical application of the statute — the simple fact that he fell from a ladder means that the ladder was insufficient, thus, entitling him to summary judgment — sans an analysis of whether any alleged failure to properly secure the ladder was the proximate cause of his accident. This position undoubtedly relies on the maxim stated in Blake v. Neighborhood Hous. Servs. of NY City, Inc. , 1 NY3d 280 , at FN 8, ( see Pl. Aff. Supp. at ¶ 73), that "[i]n cases involving ladders . . . that collapse or malfunction for no apparent reason, we have continued to aid plaintiff with a presumption that the ladder . . . was not good enough to afford protection." Plaintiff further cites to Orellano v. 29 E. 37th St., 292 AD2d 289, to support his position that regardless of the disparate versions of his accident, "summary judgment should be granted provided that both accounts establish a violation of the statute." ( Pl. Aff. Supp. at ¶ 47.)
The Court finds that the presumption stated in Blake is inapplicable to this case, as is the axiom stated in Orellano, due to the fact that the reason for Plaintiff's fall is apparent and conceded — his foreman pulled the ladder out from underneath him. Additionally, the Court finds that this deliberate, albeit negligent, action also operates as an intervening act that superceded the alleged violation, thus, severing the causal connection between the alleged violation and Plaintiff's accident.
a.Proximate Cause
"The concept of proximate cause, or more appropriately legal cause, has proven to be an elusive one, incapable of being precisely defined to cover all situations. This is, in part, because the concept stems from policy considerations that serve to place manageable limits upon the liability that flows from negligent conduct." Derdiarian v. Felix Contr. Corp., 51 NY2d 308, 314. (citations omitted). "Given the unique nature of the inquiry in each case, it is for the finder of fact to determine legal cause, once the court has been satisfied that a prima facie case has been established." Derdiarian, 51 NY2d at 315.
"The issue of whether a defendant's negligence was a proximate cause of an accident is separate and distinct from the negligence determination. A defendant may act negligently without that negligence constituting a proximate cause of the accident." Ohdan v. City of NY, 268 AD2d 86, 89. "Plaintiff need not demonstrate, however, the precise manner in which the accident happened, or the extent of injuries, was foreseeable." Derdiarian, 51 NY2d at 315. "A plaintiff need only prove that it was more likely' or more reasonable' that the alleged injury was caused by the defendant's negligence than by some other agency." Gayle v. City of NY, 92 NY2d 936, 937. (citations omitted).
b.Intervening Act
Where the acts of a third person intervene between the defendant's conduct and the plaintiff's injury, the causal connection is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence. If the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct, it may well be a superseding act, which breaks the causal nexus.
Cruz v. City of NY, 218 AD2d 546, 548; see also Kriz v. Schum, 75 NY2d 25, 36 (holding that "summary judgment is generally appropriate only in those cases where the intervening acts operate upon but do not flow from the original negligence").
c.Superceding Event
An unforeseeable, superceding event will absolve the defendants of liability. An intervening act is deemed a superceding cause of the injury so as to relieve the defendants of liability if it is of such an extraordinary nature or so attenuates defendants' negligence from the ultimate injury that responsibility may not reasonably be attributed to the defendants.
Perez v. New York Tel. Co., 161 AD2d 191, 192.
Plaintiff is not alleging that the ladder was in any way defective. He is claiming that it was not properly secured and that he did not receive any other safety devices that would have prevented his fall. Nevertheless, Plaintiff testified that his foreman "pulled the ladder towards him," while he was walking down it, just prior to the ladder slipping out from underneath him. As such, this Court finds that the foreman's action was not only unforeseeable, but extraordinary and utterly removed from any alleged violation. See Martucci v. Tirro Constr. Corp., 192 Misc 2d 22, 29 (finding that "[i]n view of the undisputed facts that plaintiff was intentionally pushed by a coworker this court finds that the plaintiff's accident was not caused by a defective or missing safety device"). Moreover, this Court does not find that Mr. Mitulescu's action can reasonably be imputed to any of the Defendants under the rubric of the Labor Law.
Indeed, the Court is unmoved by the oral arguments of Plaintiff's counsel, that the foreman would not have been able to pull the ladder out from under Plaintiff if it was properly secured, given the failure to proffer nothing more than his attorney's inadmissible protestations on the issue. See, e.g., Miglionico v. Bovis Lend Lease, Inc. , 47 AD3d 561 (finding that "plaintiff's expert provided an affidavit stating that defendants' failure to provide plaintiff with safe elevation devices or personal fall protection was a departure from good and accepted construction safety standards and a substantial factor in causing this accident'"); Prairie v. Sacandaga Bible Conf. Camp, 252 AD2d 940 (finding that "plaintiffs' own expert assigns plrimary fault for the accident on the placement of the ladder and the failure to properly secure it"); Young v. Norton, 175 Misc 2d 175 (finding that "plaintiff tendered an expert opinion, in addition to his own affidavit, that an unsafe condition was created by the fact that the ladder was not equipped with base cleats which caused the ladder to kick out"). Furthermore, absent a more informed opinion than Plaintiff's counsel's, this Court cannot envision how or what other safety device would be intended to guard against this type of incident. See Martucci, 192 Misc 2d at 29.
Given the Court's holding, that Mr. Mitulescu's pulling of the ladder from under Plaintiff amounts to an intervening, superceding event that severs the causal connection between any alleged Labor Law § 240(1) violation and Plaintiff's accident, there is no need to address Defendants' remaining arguments. The Court's decision on this issue extends to Wiljohn Associates/Broadway Management.
II.Labor Law § 241(6)
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: . . . 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).
"Labor Law § 241(6) protects only those workers engaged in duties connected to the inherently hazardous work of construction. . . ." Valdivia v. Consol. Resistance Co. of Am., Inc. , 54 AD3d 753 , 754. "To prevail under Labor Law § 241(6), the plaintiff is required to establish a violation of an implementing regulation that sets forth a specific standard of conduct as opposed to a general reiteration of common-law principles." Collucci v. Equit. Life Assur. Socy. of US, 218 AD2d 513, 517.
Plaintiff is alleging violations under Industrial Code, 12 NYCRR §§ 23- 1.7(b), 1.16, 1.17, 1.21(a-f),5.1, 5.1(b), 5.1(c), 5.1(f), 5.1(j), 5.3, 5.4 and 5.5. ( Pl. Ver. Bill Part. at ¶ 6.) The Court finds, however, that none of these sections apply to the facts of this matter. This case does not involve a falling object, so § 23-1.7(b) does not apply. Plaintiff's claims that he was not provided with any other safety devices, so §§ 23-1.16 and 1.17 do not apply. See e.g., Dzerian v. 1800 Boston Rd., LLC, 25 AD3d 337; Rau v. Bagels N Brunch, Inc. , 57 AD3d 866 , 868; Kwang Ho Kim v. D W Shin Realty Corp., 47 AD3d 616, 619; Avendano v. Sazerac, Inc., 248 AD2d 340. The ladder involved was a folding, six-foot long one, so §§ 23-1.21(a), (c), (d) and (e) do not apply. There were no ladderways involved, so § 23-1.21(f) does not apply. Nor were there scaffolds involved, so §§ 23-5.1(b), (c), (f), (j)(1), 5.3, 5.4 and 5.4 do not apply. Given evidence that the ladder was used for the first — and only — time that day to walk from the lobby level down to the street level, and the lack of evidence that this ladder was going to be used for that purpose in the future, § 23-12(b)(4) does not apply.
The inapplicability of these Industrial Codes extends to all Defendants in this matter. Thus, Plaintiff's Labor Law § 241(6) claim is also dismissed as to Wiljohn Associates/Broadway Management.
III.Labor Law § 200
"To establish liability for a violation of Labor Law § 200 and for common-law negligence, a plaintiff must demonstrate that the defendants exercised supervision and control over the work performed, or had actual or constructive notice of an allegedly unsafe condition." Pilch v. Bd. Of Educ., 27 AD3d 711, 713. "General supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability for common-law negligence and under Labor Law § 200." Dos Santos v. STV Engrs., Inc. , 8 AD3d 223 , 224.
Analysis under this section is unnecessary given Plaintiff's failure to offer any arguments in opposition to Melnick's cross-motion for dismissal of this cause of action. See Weldon v. Rivera, 301 AD2d 934, 935 (finding that plaintiff conceded an argument she failed to address). Furthermore, after searching the record, the Court finds no basis to allow this cause of action to survive as to Wiljohn Associates/Broadway Management given there is no evidence that either entity exercised supervision over Plaintiff's electrical work at the construction site. See Friedman v. Carey Press Corp., 117 AD2d 568, 569 (stating that "[o]n a motion for summary judgment, the court may search the record and, if warranted, grant summary relief even in the absence of a cross motion").
The foregoing shall constitute the decision and order of this Court.