Summary
granting summary judgment to plaintiff injured in accident, even though his accident was unwitnessed, because defendant presented no evidence as to plaintiff's prima facie case or his credibility
Summary of this case from Keeney v. BrinkmanOpinion
00 Civ. 5280 (LLS)
July 12, 2001
Opinion and Order
Plaintiff moves for partial summary judgment on the issue of liability, relying on sections 240(1) and 241(6) of the New York Labor Law.
Plaintiff's Claims
In April 2000, Hendrickson's employer agreed with the defendants, who own the New York Marriott Marquis hotel, to remove from the ceiling of the O'Neill meeting room a supporting steel beam that held a retractable dividing wall in place.
By the time of the accident, part of the ceiling had been removed, exposing the steel supports between the fourth and fifth floors. The height of the ceiling in the O'Neill room is at least eight feet.
On April 17, 2000, at approximately 8:30 A.M., Hendrickson was working alone in the O'Neill room. He used his employer's aluminum extension ladder, comprising two ten-foot extensions, which could be fully extended to seventeen feet. He placed the ladder on the clean and level floor, extended it and rested its top on a steel support beam in the ceiling. He had used the ladder in the past without any problem, and had checked it for defects.
Hendrickson climbed the ladder to the tenth or eleventh rung. The ladder was not secured by any device, and there was nobody in the room to steady the ladder on the floor. He used both hands to remove steel studding with a crow bar and did not wear a safety harness.
Hendrickson suddenly felt the ladder shift to the right and both he and the ladder fell to the ground. He suffered lacerations on his back and left hand, and his left ankle was broken.
DISCUSSION
Summary judgment should be granted only when, after reviewing the evidence in the light most favorable to the nonmoving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party must demonstrate the absence of a disputed issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To avoid summary judgment, the nonmovant must set forth specific facts showing that there is a genuine issue for trial. Id. at 324.
Hendrickson sues under New York Labor Law § 240(1) which reads in part:
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.
Section 240(1) imposes absolute liability on owners and general contractors to provide safety devices to workers engaged in certain activities. As stated by the Court of Appeals in Felker v. Corning Inc., 660 N.Y.S.2d 349, 351 (Ct.App. 1997) (citations omitted):
Section 240(1) of the Labor Law was designed to place the responsibility for a worker's safety squarely upon the owner and contractor rather than on the worker. Section 240(1) is to be liberally construed to achieve its objectives. The record indicates that plaintiff fell as he reached from a ladder, over an elevated, open area in order to paint an area of an alcove. ... ... It is the contractor's complete failure to provide any safety device to plaintiff to protect him from this second risk of falling over the alcove wall and through the suspended ceiling to the floor below that leads to liability under Labor Law § 240(1) in this case.
The work performed by Chris Hendrickson in the O'Neill room is covered by the statute. Marriott owned the premises. Hendrickson's work was an alteration since it "constituted a significant physical change to the configuration or composition of the building." Joblon v. Solow, 672 N.Y.S.2d 286, 288 (Ct.App. 1998). Working at an elevated height on a ladder is clearly work encompassed by the statute. See Felker at 351;Rocovich v. Consolidated Edison Co., 577 N.Y.S.2d 219, 222 (Ct.App. 1991) ("The contemplated hazards are those related to the effects of gravity. . . .")
Hendrickson must also prove that he was not given a safety device and that the absence of a device was the proximate cause of his injuries. See Felker, at 351. Hendrickson's uncontested deposition testimony is that he fell while working on the ladder and that he was not given any safety device. If a scaffold or a brace had been provided, the accident probably would not have occurred. Hendrickson's fall from the ladder was foreseeable. It is the type of accident that the statute was designed to prevent.
Thus, Hendrickson has established a prima facie case under Labor Law Section 240(1).
Defendants' Opposition
Marriott's sole argument in opposition to plaintiff's motion is that summary judgment should not be granted because the accident was unwitnessed. Summary judgment is appropriate, however, when the defendant has not "presented any evidence of a triable issue of fact relating to the prima facie case or to plaintiff's credibility" even when the plaintiff is the sole witness to the accident. Klein v. City of New York, 652 N.Y.S.2d 723, 724 (Ct.App. 1996); see also McCann v. Central Synagogue, 720 N.Y.S.2d 459, 460 (A.D. 1st Dep't 2001) (plaintiff entitled to summary judgment since his testimony was "consistent and uncontradicted" despite the accident being unwitnessed); Smith v. Pergament Enter. of S.I., 271 A.D.2d 870, 872 (A.D. 3rd Dep't 2000) ("Notably, the fact that there were no eyewitnesses to plaintiff's fall does not preclude summary judgment in plaintiff's favor."). An "uncontested showing is a sufficient basis for the imposition of liability under Labor Law § 240(1)." Cruz v. Turner Constr. Co., 720 N.Y.S.2d 10, 11 (A.D. 1st Dep't 2001)
Defendants' reliance on Carlos v. Rochester General Hospital, 558 N.Y.S.2d 417 (A.D. 4th Dep't 1990), is misplaced because in that case "the record established that defendant's submissions in opposition to the motion sharply contested plaintiff's account of how the accident occurred and, thus, we concluded that `[p]laintiff's testimonial version should be subjected to cross-examination and his credibility assessed by the fact-finder after a trial.'" Walsh v. Baker, 569 N.Y.S.2d 298, 300 (A.D. 4th Dep't 1991) (quoting and distinguishing Carlos). Since Marriott's submission does not "sharply contest plaintiff's account" of how the accident occurred or Hendrickson's credibility, the fact that there were no witnesses to the accident does not prevent summary judgment.
CONCLUSION
Plaintiff is entitled to judgment in his favor under New York Labor Law Section 240(1) on the issue of liability.
A pretrial conference will be held on Friday, August 10, 2001 at noon, unless another date is set on application of counsel, to set a schedule for trial of the issues of damages.
So ordered.