Opinion
Index No. 521177/2017
07-06-2023
MARQUES JENKINS, Plaintiff, v. HALLETTS BUILDING 1 SPE LLC, NEW LINE STRUCTURES INC., NEW LINE STRUCTURES & DEVELOPMENT LLC d/b/a NEW LINE STRUCTURES, PARK AVENUE BUILDING AND ROOFING SUPPIES, LLC, PARK AVENUE BUILDING & ROOFING SUPPLIES, INC., Defendants. HALLETTS BUILDING 1 SPE LLC and NEW LINE STRUCTURES, INC., Third-Party Plaintiffs, v. PARK AVENUE BUILDING AND ROOFING SUPPLIES, LLC, Third-Party Defendant.
Unpublished Opinion
HON. RICHARD VALASQUEZ, JUSTICE.
The following e-filed papers read herein: NYSCEF Doc Nos.:
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed 76, 78, 98
Opposing Affidavits/Answer (Affirmations) 101, 106
Affidavits/ Affirmations in Reply 103, 108
Other Papers: ____
Upon the foregoing papers, plaintiff Marques Jenkins moves for an order, pursuant to CPLR 3212, granting him partial summary judgment in his favor with respect to liability (motion sequence number 4).
Plaintiffs motion (motion sequence number 4) is denied.
In this action premised on common-law negligence and violations of Labor Law §§ 200, 240 (1) and 241 (6), plaintiff alleges that he suffered injuries as the result of an accident that occurred on August 14, 2017, when, while working at a building under construction, a pallet load of track bundles fell off an A-Frame cart and struck the back of plaintiffs left leg. Defendant/third-party plaintiff Halletts Building 1 SPE LLC (Halletts) owned the premises at issue and hired defendant New Line Structures &Development LLC (New Line) to act as the construction manager for building a new mix-use 22-story apartment building. New Line, in turn, hired Schear Construction (Schear) as a carpentry subcontractor to perform layout and framing work as part of the project. Plaintiff was employed by Schear as an apprentice carpenter. Defendant/third-party defendant Park Avenue Building and Roofing Supplies, LLC (Park Avenue) was a building supply company that delivered stud and track and other building supplies to Schear at the construction site.
According to plaintiffs deposition testimony, on the morning of the accident, he was directed to assist in the unloading of a delivery of framing material along with 10 to 12 other Schear coworkers. When receiving deliveries of framing material consisting of track prior to the accident date, the delivery driver would place a pallet of track on the loading dock using a forklift, and plaintiff and his coworkers would take individual bundles of track from the pallet and load them onto A-Frame carts to be transported where they were needed in the building. On the date in question, however, Edgar Tepan, a Schear supervisor, informed plaintiff and his coworkers that they had a limited time to finish the delivery and that, instead of their normal practice, they would take an entire pallet of track straight off of the forklift and place it on the A-Frame cart for distribution to Schear's work areas. After starting work in this manner, approximately five A-Frame carts had been successfully loaded and transported off the loading dock before plaintiff's accident.
Track is metal pieces that are attached to the ceiling and floor in order to hold metal wall studs in position.
Although plaintiff referred to the collection of track bundles at issue as a pallet, it does not appear that they were attached to a wooden pallet or skid, but rather, from his testimony and the photograph submitted by plaintiff, what plaintiff referred to as a pallet was a collection of track bundles held together by metal straps with other material wrapped around the collection of bundles to serve as spacers.
With respect to the load at issue, plaintiff testified that he and Tepan held the A-Frame cart in position, while other Schear workers slid a 1 O-foot-long pallet of track onto the cart from the forklift. Once the pallet was resting on the A-Frame cart, plaintiff and three coworkers began pushing the cart out of the way so another A-Frame cart could be loaded. As they were pushing the cart, they noticed that the pallet was off center, and, after going 8 to 10 feet, they stopped and one of the coworkers, who plaintiff knew as Chaparo, grabbed a pipe and attempted use the pipe to maneuver the pallet of track further onto the A-Frame cart. As Chaparo was doing so, plaintiff stepped around to the front of the cart in order to assist Chaparo. Shortly thereafter, plaintiff noticed that the pallet was starting to fall and tried to jump out of the way but was unable to avoid the pallet, which fell onto the back of his leg.
Jason Davis, who was employed by Park Avenue as a delivery driver, initially testified that he did not specifically recall making deliveries to the address associated with the construction site at issue. However, when he was asked about plaintiffs accident, he testified that, although he did not see the pallet fall onto plaintiff, he heard the accident while he was using the spider/forklift to pick up another load of metal off of the trailer and observed that the A-Frame cart and the track loaded on it had tipped over. In contrast to plaintiffs testimony, however, Davis asserted that he had placed the pallets directly onto the loading dock, and it was the workers receiving the delivery who placed the material on the A-Frame carts. Indeed, Davis denied that he had ever unloaded material directly onto an A-Frame cart, and, with respect to the day of the incident, he denied that anyone had instructed him to unload the bundles of track directly onto the A-Frame carts.
Labor Law § 240 (1)It is in this factual context that this court addresses plaintiffs summary judgment motion. Turning first to the portion of the motion addressed to liability under Labor Law § 240 (I), that section imposes absolute liability on owners and contractors or their agents when they fail to protect workers employed on a construction site from injuries proximately caused by risks associated with falling from a height or those associated with falling objects (see Wilinski v 334 E. 92nd Housing Dev. Fund Corp., 18 N.Y.3d 1, 3 [2011]; Narducci v Manhasset Bay Assoc., 96 N.Y.2d 259, 267-268 [2001]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500 [1993]). For a defendant to be held liable under Labor Law § 240 (1), a plaintiff's injuries must be "the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Runner v New York Stock Exch., Inc., 13 N.Y.3d 599, 603 [2009]; see Wilinski, 18 N.Y.3d at 10). Where the accident involves a falling object, the "plaintiff must show more than simply that an object fell causing injury to a worker" (Narducci, 96 N.Y.2d at 268; see also Fabrizzi v 1095 Ave. of Ams., L.C.C., 22 N.Y.3d 658, 663 [2014]). Rather, a plaintiff must show that, at the time the object fell, it was "being hoisted or secured" (Narducci, 96 N.Y.2d at 268) or "required securing for the purposes of the undertaking" (Outar v City of New York, 5 N.Y.3d 731, 732 [2005]; see Quattrocchi v F.J. Sciame Constr. Corp., 11 N.Y.3d 757, 758 [2008]) and that the object fell "because of the absence or inadequacy of a safety device of the kind enumerated in the statute" (Narducci, 96 N.Y.2d at 268; see Fabrizzi, 22 N.Y.3d at 663).
Although plaintiffs motion papers are not a model of clarity in this respect, it is clear from plaintiffs reply affirmation that plaintiff is only seeking to hold Park Avenue liable under a common-law negligence theory of liability. In any event, this court notes that plaintiff has failed to demonstrate, prima facie, that Park Avenue could be held liable as an owner, general contractor or statutory agent thereof for purposes of liability under Labor Law §§ 200, 240 (1) or 241 (6) (see Ahern v NYU Langone Med. Cir., 147 A.D.3d 537, 538 [1st Dept 2017]; Brownell v Blue Seal Feeds, Inc., 89 A.D.3d 1425, 1427-1428 [4th Dept 2011]; Gonzalez v Glenwood Mason Supply Co., Inc., 41 A.D.3d 338, 339 [1st Dept 2007]; Kocurek v Home Depot, U.S.A.P., 286 A.D.2d 577, 580 [1st Dept 2001]; Brooks v Harris Structural Steel, 242 A.D.2d 653, 653 [2d Dept 1997]; see also Russin v Louis N. Picciano & Son, 54 N.Y.2d 311,317-318 [1981]).
In cases involving similar accidents involving objects falling from carts or pallet jacks, the Appellate Division, Second Department has generally granted defendants summary judgment dismissing the Labor Law § 240 (1) causes of action based on findings that the accidents were not gravity related and/or that they did not involve a failure to provide a section 240 (1) safety device (see Ortega v Fourtrax Contr. Corp., 214 A.D.3d 666, 668 [2d Dept 2023]; Chuqui vAmna, LLC, 203 A.D.3d 1018, 1020-21 [2d Dept 2022]; Simmons v City of New York, 165 A.D.3d 725, 726-727 [2d Dept 2018]; Grygo v 1116 Kings Highway Realty, LLC, 96 A.D.3d 1002, 1003 [2d Dept 2012], Iv denied 20 N.Y.3d 859 [2012]; see also Parrino v Rauert, 208 A.D.3d 672, 674 [2d Dept 2022]; Miles v Buffalo State Alumni Assn., Inc., 121 A.D.3d 1573, 1574 [4th Dept 2014]; Davis v Wyeth Pharmaceuticals, Inc., 86 A.D.3d 907, 907-908 [3d Dept 2011] [cited in Chuqui]). Plaintiff, in moving, has failed to address this line of cases or otherwise show that the facts here warrant a finding that plaintiffs accident was gravity related or that it was caused by the failure of, or the failure to, provide a section 240 (1) safety device. The conclusory assertions of plaintiff's engineer likewise fail to demonstrate that section 240 (1) was violated here (see Parrino, 208 A.D.3d at 674; see also Cutaia v Board of Mgrs. of the Varick St. Condominium, 38 N.Y.3d 1037, 1039 [2021]). Accordingly, this court finds that plaintiff has failed to demonstrate his prima facie entitlement to summary judgment on his section 240 (1) cause of action (see Ortega, 214 A.D.3d at 668; Chuqui, 203 A.D.3d at 1019-1020; cf Desena v North Shore Hebrew Academy, 119 A.D.3d 631, 634 [2d Dept 2014]; McCallister v 200 Park, L.P., 92 A.D.3d 927, 927-928 [2d Dept 2012]; but see Touray v HFZ 11 Beach St. LLC, 180 A.D.3d 507, 507 [1st Dept 2020]; Ali v Sloan-Kettering Inst, for Cancer Research, 176 A.D.3d 561, 561 [1st Dept 2019]; Marrero v 2075 Holding Co. LLC, 106 A.D.3d 408, 409 [1st Dept 2020]), and his motion in this respect must be denied regardless of the sufficiency of defendants' opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]).
Although decisions from the Appellate Division, First Department such as Schoendorf v 589 Fifth TIC I LLC (206 A.D.3d 416, 417 [1st Dept 2022]), Touray (180 A.D.3d at 507), Ali (176 A.D.3d at 561), and Marrero (106 A.D.3d at 409), would require this court to find that plaintiffs accident was gravity related for purposes of Labor Law § 240 (1), this court is bound by the contrary decisions from the Appellate Division, Second Department (see Mountain View Coach Lines v Storms, 102 A.D.2d 663, 664 [2d Dept 1984]).
Under Labor Law § 241 (6), an owner, general contractor or their agent may be held vicariously liable for injuries to a plaintiff where the plaintiff establishes that the accident was proximately caused by a violation of an Industrial Code section stating a specific positive command that is applicable to the facts of the case (Rizzuto v L.A. Wenger Contr. Co., Inc., 91 N.Y.2d 343, 349-350 [1998]; Honeyman v Curiosity Works, Inc., 154 A.D.3d 820, 821 [2d Dept 2017]). Plaintiff, in moving, relies upon Industrial Code (12 NYCRR) §§ 23-1.5 (c) (2), 23-2.1 (a) (1), 23-9.2 (b) (1), and 23-9.8 (h). Both section 23-1.5 (c) (2) and section 23-9.2 (b) (1), however, only state general safety standards and, as such, plaintiff may not rely on them in support of his section 241 (6) cause of action (see Ortega v Trinity Hudson Holding LLC, 176 A.D.3d 625, 626 [1st Dept 2019] [section 23-1.5 (c) (2)]; Fisher v WNY Bus Parts, Inc., 12 A.D.3d 1138, 1140 [4th Dept 2004] [section 23-1.5 (c) (2)]; Vernieri v Empire Realty, 219 A.D.2d 593, 598 [2d Dept 1995] [section 23-1.5 (c) (2)]; see also Shantz v Barry Steel Fabrication, Inc., 207 A.D.3d 1169, 1171 [4th Dept 2022] [section 23-9.2 (b) (1)]; Nicola v United Veterans Mut. Hous. No. 2, Corp., 178 A.D.3d 937, 940 [2d Dept 2019] [section 23-9.2 (b) (1)]). While section 23-2.1 (a) (1), which addresses the storage of material and equipment, states a specific standard, plaintiff has failed to demonstrate that it is applicable here given that the material at issue was not being stored but was being moved at the time of the accident (see Abreu v Frocione Props., LLC, 199 A.D.3d 1452, 1453 [4th Dept 2021]; Zamajtys v Cholewa, 84 A.D.3d 1360, 1362 [2d Dept 2011]; Cody v State of New York, 82 A.D.3d 925, 928 [2d Dept 2011]). Finally, although section 23-9.8 (h), which requires that a loaded pallet on a forklift be maintained level at all times, states a specific standard, plaintiff has failed to demonstrate absence of factual issues connecting the accident to the operation of the forklift in view of Davis' testimony that he had placed the load directly onto the loading dock and plaintiffs testimony that the accident occurred after the pallet had been unloaded onto the A-Frame cart (see Schoendorf v 589 Fifth TIC I LLC, 2021 WL 4494820[U], *2 [Sup Ct, New York County 2021], reversed on other grounds 206 A.D.3d 416 [1st Dept 2022]; cf Kuligowski v One Niagrara, LLC, 177 A.D.3d 1266, 1268 [4th Dept 2019]).
Labor Law § 200 and Common Law Negligence
When common-law negligence and Labor Law § 200 claims arise out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or general contractor cannot be had unless it is shown that the party to be charged with liability had the authority to supervise or control the performance of the work (see Rizzuto, 91 N.Y.2d at 352; Hart v Commack Hotel, LLC, 85 A.D.3d 1117, 1118 [2d Dept 2011]). Where a premises condition is at issue, property owners and general contractors may be held liable under common-law negligence and for a violation of Labor Law § 200 if they either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident (see Abelleira v City of New York, 120 A.D.3d 1163, 1164 [2d Dept 2014]; Bauman v Town of Islip, 120 A.D.3d 603, 605 [2d Dept 2014]; Ortega v Puccia, 57 A.D.3d 54, 61 [2d Dept 2008]).
In moving, plaintiff has failed to present evidence showing that there was a dangerous property condition that was a proximate cause of the accident, let alone submit evidence that Hallets and New Line created or had actual or constructive notice of such a condition. Rather, plaintiff's deposition testimony strongly suggests that the accident occurred as a result of Schear's method and manner of loading the entire pallet of track onto the A-Frame cart (see Giglio v Turner Constr. Co., 190 A.D.3d 829, 830-831 [2d Dept 2021]; Poulin v Ultimate Homes, Inc., 166 A.D.3d 667, 670-673 [2d Dept 2018]). In addition, with respect to the method and manner theory of liability, plaintiff has failed to submit evidence suggesting that Hallets and New Line exercised more than general supervisory authority over the injury producing work (see Abelleira v City of New York, 201 A.D.3d 679, 680 [2d Dept 2022]; Poulin, 166 A.D.3d at 670-673; Goldflen v County of Suffolk, 157 A.D.3d 937, 938 [2d Dept 2018]). Contrary to plaintiff's assertions, the fact that Tepin and other Schear employees had knowledge that the pallets of track were being / loading directly onto the A-Frame carts has no bearing on the liability of Hallets and New Line (see Comes v New York State Elec. &Gas Corp., 82 N.Y.2d 876, 878 [1993]; Guallpa v Canarsie Plaza, LLC, 144 A.D.3d 1088, 1093 [2d Dept 2016]).
Finally, with respect to Park Avenue, plaintiff has failed to demonstrate, as a matter of law, that any negligence by Park Avenue was a proximate cause of plaintiffs injury given Davis's testimony that he placed the pallet directly onto the loading dock and that it was the workers on the loading dock who placed the material on the A-Frame cart (see Sledge v S.M.S. Gen. Contrs., Inc., 151 A.D.3d 782, 783 [2d Dept 2017]). Although, as noted by plaintiff, some of Davis' testimony may have described his usual practice rather than what he did on the day of the accident, during the deposition Davis also directly addressed what he did the date of the accident. Any inconsistencies in Davis' deposition testimony regarding his recollection regarding deliveries to the project site merely present a credibility issue properly left for the trier of fact (see Alvarez v New York City Hous. Auth., 295 A.D.2d 225, 226-227 [1st Dept 2002]; Yaziciyan v Blancato, 267 A.D.2d 152, 152 [1st Dept 1999]; see also Yefet v Shalmoni, 81 A.D.3d 637, 637-638 [2d Dept 2011]). Further, regardless of Davis' testimony, plaintiffs own testimony that it was he and his coworkers who slid the pallet off of the forklift onto the A-Frame cart leaves open the possibility that it was their actions rather than those of the forklift operator that caused the pallet to be unbalanced on the A-Frame cart and led to its tipping over onto plaintiff (see Sledge, 151 A.D.3d at 783).
In sum, plaintiffs motion must be denied regardless of the sufficiency of defendants' opposition papers given that plaintiff has failed to demonstrate his prima facie entitlement to summary judgment on any of his causes of action against defendants (see Winegrad, 64 N.Y.2d at 853).
This constitutes the decision and order of the court.