Opinion
No. 11720/2007.
11-24-2014
Lucino MARTINEZ and Azucena Martinez, Plaintiffs, v. 1955 CENTRAL AVENUE REALTY CORP., Defendant.
Samuel J. Lurie, Esq., Lurie, Ilchert, MacDonnell & Ryan, LLP, New York, Attorneys for plaintiffs. Goldberg Segalla, LLP, New York, Attorneys for defendant.
Samuel J. Lurie, Esq., Lurie, Ilchert, MacDonnell & Ryan, LLP, New York, Attorneys for plaintiffs.
Goldberg Segalla, LLP, New York, Attorneys for defendant.
Opinion
FRANCESCA E. CONNOLLY, J.
The following documents were read in connection with the defendant's motion for summary judgment and the plaintiffs' cross motion for summary judgment:
| Defendant's notice of motion, affirmation in support, exhibits | 1–7 |
| Plaintiffs' affirmation in opposition | 8 |
| Plaintiffs' notice of cross motion, affirmation in support, engineer's affidavit, plaintiff's affidavit, exhibit | 9–13 |
| Defendant's affirmation in reply and in opposition to cross motion, exhibit | 14–15 |
This action was commenced by the plaintiffs to recover damages for personal injuries allegedly sustained by the plaintiff Lucino Martinez (hereinafter referred to as Martinez) on November 28, 2006, when he fell from a ladder while installing crown molding during the course of his employment as a carpenter/laborer for a non-party, Anton Meyer, Ltd., at premises owned by the defendant 1955 Central Avenue Realty Corp. (hereinafter referred to as Central Avenue Realty) located at 1955 Central Park Avenue, Yonkers, New York. The plaintiffs allege causes of action based upon common law negligence and violations of Labor Law §§ 200, 240(1), and 241(6) and for loss of services on behalf of the plaintiff Azucena Martinez.
Although the complaint alleges that the plaintiff was working for Anton Meyer Ltd. at the time of the accident, this appears to be an error, as no proof is submitted on the motions by any party to support this allegation.?
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The defendant moves for summary judgment dismissing the complaint and the plaintiffs cross-move for partial summary judgment on liability under Labor Law § 240. For the reasons set forth below, the branch of the defendant's motion which is for summary judgment dismissing the Labor Law § 241(6) cause of action is granted, and the motion is otherwise denied, and the plaintiffs' motion for partial summary judgment on liability under Labor Law § 240 is denied based upon triable issues of fact.
FACTUAL BACKGROUND/PROCEDURAL HISTORY
The defendant moves for summary judgment dismissing the complaint contending the following: the plaintiff's conduct was the sole proximate cause of the accident and, therefore, there was no violation of Labor Law § 240 ; the plaintiff failed to allege a New York State Industrial Code violation to support the Labor Law § 241(6) cause of action; and the defendant did not supervise, direct, or control the means, methods, and procedures used by the plaintiff at the time of the accident, nor did the defendant have notice of any unsafe practice or condition that caused the accident and therefore, no violation of Labor Law § 200 has been established.
In support of the motion, the defendants submit copies of the pleadings, bill of particulars, deposition transcript of Martinez, and affidavits from Mark Fonte, principal of Central Avenue Realty Corp., and Anton Meyer, president of Anton Meyer, Ltd.
At his deposition, Martinez testified that the accident occurred on November 28, 2006, while he was employed by Trifont as a carpenter/laborer at 1955 Central Park Avenue. Trifont's offices were also located in this building. Martinez had worked at this location installing crown molding on the first floor for four or five days before the date of the accident. His supervisor from Trifont, Mark Fonte, instructed Martinez to install the crown molding throughout the entire first floor. Martinez was given a 10–foot high A-frame ladder, a nail gun, and a compressor. Trifont owned all of the tools provided for the plaintiff and his co-workers to use. They were only provided with a single ladder, which Martinez had used in the past at other job sites. Martinez made no complaints about the ladder before the date of the accident.
On the date of the accident, Martinez was working alone installing crown molding in a room that was eight feet by five feet in dimension, with eight-feet-high ceilings. Martinez never asked anyone for a shorter ladder even though the 10–foot high A-frame ladder was too big to use in the room and he was unable to open it. To use the ladder, Martinez left it closed and placed it in a reclined position with the top of the ladder placed against the wall. The foot of the ladder was positioned about four feet from the base of the wall. Martinez made the decision to use the ladder in this manner on his own and did not receive any instructions from anyone.
Martinez went up and down the ladder two times before the accident occurred. At the time of the accident, Martinez ascended the ladder while carrying an eight to ten feet long piece of crown molding in his right hand and the nail gun in his left hand. Martinez was approximately half way up the ladder when it slipped backwards, causing him to slide down with the ladder, lose control, and shoot a nail from the nail gun into his left knee. The ladder came to rest when its feet came in contact with the opposite wall.
In their affidavits, Mark Fonte and Anton Meyer aver that Central Avenue Realty owned the subject premises and Anton Meyer, Ltd., was the general contractor for the project, which consisted of demolition and renovation of a portion of the first and second floors of the building. Anton Meyer, Ltd., completed its work on the project on October 28, 2006, about one month before the date of the accident, with the exception of punch list items, which included installing door hardware and base molding. Anton Meyer, Ltd., had provided all of the tools, material, equipment, and labor to complete its work.
According to Fonte and Meyer, on the date of the accident, Martinez was no longer working for Anton Meyer, Ltd. Central Avenue Realty had hired Martinez and his brother to install the door hardware and base molding along the floor and to perform general clean-up of the project. Central Avenue did not supervise, direct, or control Martinez's work, nor did it provide him with any tools, materials, or equipment to do the job. On the date of the accident, November 28, 2006, the only work that was supposed to be done was installing base molding along the floor and door hardware, and general clean-up. No crown molding was available at the site on that day for Martinez to install, as it had already been completed. At the time of the accident, Martinez should have been installing base molding along the floor, which did not require the use of a ladder. Martinez chose the manner, method, and equipment to use at the time of the accident and was alone when the accident occurred. Although there was no reason for Martinez to use a ladder at the time of his accident, proper protection and safety equipment were readily available at the site for Martinez to use.
The plaintiffs oppose the defendant's motion and cross-move for partial summary judgment on liability on their Labor Law § 240 cause of action, contending that Martinez's injuries were sustained as the result of an elevation-related risk for which he was not provided an appropriate safety device to prevent his fall. In support of the motion, the plaintiffs submit an affidavit from an engineer, Stanley Fein, P.E., who opines, with a reasonable degree of engineering certainty, that the ladder used by Martinez should have been held in place because Martinez was unable to open the A-frame ladder due to the size of the room. In his opinion, the defendant's failure to provide Martinez with proper protection, by not giving him an adequate ladder, scaffold, or another person to hold the ladder, was the proximate cause of the accident.
The plaintiffs also submit an affidavit from Martinez, who confirms his deposition testimony as to how the accident occurred, and in which he avers that at the time of the accident he was working alone with equipment provided to him and was doing the work he was instructed to do.
In reply, the defendant disputes Martinez's claim that he was installing crown molding using a ladder, as this work had already been completed. Nevertheless, the defendant contends that, even if the Court were to accept Martinez's version of events as being true, Martinez's own actions were the sole proximate cause of the accident, as other ladders were available at the site and he never asked for an appropriate ladder to complete his work. In any event, the defendant contends that if the Court were to deny its motion for summary judgment, questions of fact exist to defeat the plaintiffs' motion for summary judgment.
The defendant also contends that it did not exercise any supervision or control over the manner or method of work being performed by Martinez and, therefore, the Labor Law § 200 and common law negligence causes of action should be dismissed. With regard to the Labor Law § 241(6) cause of action, the defendant contends that it should be dismissed based upon the plaintiffs' failure to allege any specific New York State Industrial Code violation.
In support of this argument in reply, the defendant submits the deposition testimony of Mark Fonte, a principal of Central Avenue Realty and an employee of Trifont Central, who testified that Anton Meyer, Ltd., had completed its work at the premises before the date of the accident and the job was 99% complete. The only work that was left to be done on that date was cosmetic, consisting of painting, floor finishing, installation of base molding, and clean-up. On the morning of the accident, Fonte instructed Martinez as to what work needed to be done, which entailed punch list items of painting a couple of walls, installing base molding, finishing the floors, and installing door locks. The crown molding had already been installed. Although Fonte did not specifically provide Martinez with the tools and equipment he needed to complete the work, Central Avenue Realty had equipment at the site that was available for Martinez to use. According to Fonte, Martinez did not need a ladder, as he was installing base molding. However, if Martinez needed a ladder, there were plenty of ladders available at the site, and all Martinez needed to do was to ask for one. Fonte did not find out about the accident until the evening. Sometime after that, he went to the site and saw loose base molding that needed to be installed, and no ladder.
DISCUSSION/ANALYSIS
I. The defendant's motion for summary judgment dismissing the Labor Law § 240(1) cause of action and the plaintiffs' cross motion for partial summary judgment on liability are denied.
Neither the defendant nor the plaintiff have met their prima facie burden for summary judgment on the Labor Law § 240(1) cause of action insofar as their own submissions raise triable issues of fact as to whether the statute was violated and whether such violation was a proximate cause of the plaintiff's injuries (see Godoy v. Neighborhood Partnership Housing Development Fund Co., Inc., 104 AD3d 646, 647–648 [2d Dept 2013] ).
“Labor Law § 240(1) imposes liability on contractors and owners for the existence of certain elevation-related hazards and the failure to provide an adequate safety device of the kind enumerated in the statute.... To establish a claim under this provision, a plaintiff must show that the statute was violated and that the violation proximately caused his injury” (Keenan v. Simon Prop. Group, Inc., 106 AD3d 586, 588 [1st Dept 2013] [ internal citations and quotations omitted] ). “Where there is no statutory violation, or where the plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery under Labor Law § 240(1) ” (Treu v. Cappelletti, 71 AD3d 994, 997 [2d Dept 2010], citing Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 NY3d280, 290 [2003]; Melchor v. Singh, 90 AD3d 866, 867 [2d Dept 2011] [“Where a violation of Labor Law § 240(1) is a proximate cause of an accident, the plaintiff's conduct, of necessity, cannot be deemed the sole proximate cause.... Conversely, if the plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation” (internal citations omitted) ] ).
“Although [a] fall from a ladder, by itself, is not sufficient to impose liability under Labor Law § 240(1),' liability will be imposed when the evidence shows that the subject ladder was ... inadequately secured and that ... the failure to secure the ladder, was a substantial factor in causing the plaintiff's injuries' “ (Canas v. Harbour at Blue Point Home Owners Ass'n, Inc., 99 AD3d 962, 963 [2d Dept 2012] [internal citation omitted] [“Here, the plaintiff made a prima facie showing of his entitlement to judgment as a matter of law on the issue of liability under that statute by showing that, although he was provided with a ladder, as required by the statute, the ladder was not secured so as to prevent it and him from falling. Further, there was no assistance provided in holding the ladder while the plaintiff painted”] ).
Although the defendant contends that Martinez's conduct was the sole proximate cause of his injury in that he knew the A-frame ladder was inadequate for the alleged task he was performing and he failed to ask for a suitable ladder that was available on site for him to use, the defendant's own submissions, which include the deposition transcript of the plaintiff, raise a triable issue of fact as to whether there was a statutory violation of Labor Law § 240(1). Here, Martinez testified that the ladder he was given was inadequate for the job he was assigned in that it was too tall and could not be opened. In addition, the ladder was unsecured in any manner to prevent it from sliding downward. This testimony is sufficient to raise a triable issue of fact on the Labor Law § 240(1) cause of action to defeat the defendant's motion for summary judgment (see Lipari v. AT Spring, LLC, 92 AD3d 502, 504 [1st Dept 2012] [“A Labor Law § 240(1) violation is considered the proximate cause of an accident [where] plaintiff's fall was caused by an unsecured A-frame ladder that slipped”] ).
Moreover, liability will be imposed where the evidence shows that the plaintiff was given a ladder that was inadequate for the job to be performed, which was a proximate cause of the plaintiff's fall, and another appropriate safety device was not available and in place for the plaintiff to use. Although the defendant claims that other safety devices were available for Martinez to use, the proof submitted in support of this claim is non-specific and conclusory and, in any event, is disputed by Martinez (see Keenan v. Simon Prop. Group, Inc., 106 AD3d at 588 ] [“Contrary to defendants' contention that plaintiff was the sole proximate cause of his accident, the record shows that the ladder was inadequate for the nature of the work performed and the gravity-related risks involved.... Moreover, defendants did not show that another safety device was available, but went unused, that plaintiff failed to heed instructions on how to perform his assigned task ..., or that the cause of plaintiff's injury was unrelated to the ladder's collapse] [internal citation omitted]; Florio v. LLP Realty Corp., 38 AD3d 829, 830 [2d Dept 2007] [The defendant's motion for summary judgment dismissing the Labor Law § 240(1) cause of action was properly denied where “the parties failed to establish, prima facie, whether the injured plaintiff had access to properly placed and adequate safety devices”]; Halkias v. Hamburg Cent. School Dist., 186 A.D.2d 1040, 1041 [4th Dept 1992] [Plaintiff's motion for summary judgment was properly granted where “[t]here [was] no proof in [the] record that adequate safety devices were in place and operational on the site and that plaintiff refused to use them”] ).
Since the defendant has failed to meet its prima facie burden for summary judgment dismissing the plaintiffs' Labor Law § 240(1) cause of action, that branch of the motion is denied without regard to the sufficiency of the opposition papers.
The plaintiffs' cross motion for summary judgment on his Labor Law § 240(1) cause of action is also denied based upon triable issues of fact as to how the accident occurred and whether the statute was violated. Here, Martinez was the only witness to his accident, and the salient facts upon which the cross motion is predicated are exclusively within his knowledge. In opposition to the plaintiff's cross motion, the defendant submits affidavits and deposition testimony that raise credibility issues as to Martinez's version of how the accident occurred. Mark Fonte and Anton Meyer both aver that the crown molding installation had been completed more than one month before the date of the accident, and there was no need for Martinez to use a ladder on that date to install base floor molding. After he learned about the accident, Fonte went to the accident site and found loose base molding that needed to be installed and no ladder (see Carlos v. Rochester Gen. Hosp., 163 A.D.2d 894 [4th Dept 1990] [“Whether plaintiff fell while on the ladder or was injured in some other manner is, therefore, a critical factual issue. Because the manner in which the accident occurred is within the exclusive knowledge of the plaintiff, partial summary judgment is not appropriate.... Plaintiff's testimonial version should be subjected to cross-examination and his credibility assessed by the fact-finder after a trial”] [internal citations omitted] ).
“[I]n granting a motion for judgment as a matter of law, the trial court must determine that by no rational process could the trier of facts find in favor of the nonmoving party on the evidence presented” (Ampolini v. Long Is. Light. Co., 186 A.D.2d 772, 773 [1992] ). Where, as here, “the facts are in dispute, or where different inferences may be drawn or the credibility of witnesses is in question,” the motion should not be granted (id. ). Since a jury could draw conflicting inferences as to how the accident occurred, and the credibility of the witnesses is an issue for the jury to determine, plaintiff's cross motion for partial summary judgment on liability under Labor Law § 240 is denied (Woszczyna v.. BJW Assoc., 31 AD3d 754, 755 [2d Dept 2006] [“Where, as here, the movant was the sole witness to the accident and his credibility has been placed in issue, the granting of partial summary judgment in favor of the plaintiff on his cause of action pursuant to Labor Law § 240(1) was inappropriate”]; Parsolano v. Nassau County, 93 A.D.2d 815, 817 [2d Dept 1983] [“Since Mr. Parsolano was the only person to have witnessed the accident, whether he fell from a ladder or any other device, within the scope of section 240 of the Labor Law, is a triable issue of fact. [S]ummary judgment should not be granted if the facts upon which the motion is predicated are exclusively within the knowledge of the moving party or clearly not within the knowledge of the opponent” '] cf. Halkias v. Hamburg Cent. School Dist., 186 A.D.2d 1040, 1040 [4th Dept 1992] [“Further, there is no merit to third-party defendant's contention that the motion was properly denied because this was an unwitnessed accident.... Although no one saw plaintiff fall, his co-worker was present in the school auditorium at the time he fell and the matter was promptly investigated.... The submissions in opposition to the motion did not contest plaintiff's account of how the accident occurred”][internal citations omitted] ).
Since triable issues of fact exist as to whether Labor Law § 240(1) was violated and whether such violation was a proximate cause of his injuries, both the defendant's motion and the plaintiffs' cross motion for partial summary judgment on this cause of action are denied.
II. The defendant's motion for summary judgment dismissing the Labor Law § 241(6) cause of action is granted.
“Labor Law § 241(6) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide reasonable and adequate protection and safety for workers, and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor” (Norero v. 99–105 Third Ave. Realty, LLC, 96 AD3d at 728, citing Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 878 [1993] ). “To prevail on a cause of action alleging a violation of Labor Law § 241(6), a plaintiff must establish the violation of an Industrial Code provision that sets forth specific, applicable safety standards” (see Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 503–505 [1993] ).
The defendant has met its prima facie burden for summary judgment on the Labor Law § 241(6) cause of action on the ground that the plaintiff has failed to plead or otherwise establish a violation of the New York State Industrial Code as a predicate to liability under the statute. In opposition, the plaintiff has failed to raise an issue of fact to sustain the Labor Law § 241(6) cause of action by not addressing in any manner the failure to plead a specific New York State Industrial Code violation or making any attempt to cure the pleading deficiency. Accordingly, the Labor Law § 241(6) cause of action is dismissed.
III. The defendant's motion for summary judgment dismissing the Labor Law § 200 cause of action is denied.
The defendant's motion for summary judgment dismissing the Labor Law § 200 cause of action is denied based upon triable issues of fact as to whether the defendant, through its principal, Mark Fonte, supervised, directed, or controlled the means, methods, and procedures used by the plaintiff at the time of the accident.
“Labor Law § 200is a codification of the common-law duty of an owner or general contractor to provide workers with a safe place to work (Ortega v. Liberty Holdings, LLC, 111 AD3d 904, 906 [2d Dept 2013] ; see Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 352 [1998] ). “FHowever, there is no liability under the common law or Labor Law § 200 unless the owner or general contractor exercised supervision or control over the work performed ” (Cun–En Lin v. Holy Family Monuments, 18 AD3d 800, 801 [2d Dept 2005] ).
Although the defendant denies that it supervised, directed, or controlled the plaintiff's work, this claim is disputed by Martinez insofar as he testified that Mark Fonte, a principal of the defendant, hired Martinez, supervised his work on the date of the accident, and provided him with his tools, materials, and equipment to complete his work. According to Martinez, the unsecured ladder upon which he claims he was working at the time of his accident was provided to him by Fonte. While the plaintiff testified that he was hired by Trifont and that Fonte was his supervisor, Fonte's deposition testimony establishes that he is a principal of both Trifont and the defendant, Central Avenue Realty. Fonte's affidavit states that it was the defendant that hired Martinez and instructed him as to the work to complete, and that the defendant maintained appropriate safety equipment at the site, which was available for Martinez to use had he simply asked. Based upon the testimony of Martinez and Fonte, triable issues of fact exist as to whether the defendant supervised, directed, or controlled Martinez's work and whether there was a violation of Labor Law § 200.
Based upon the foregoing, it is hereby
ORDERED that the branch of the defendant's motion for summary dismissing the Labor Law § 241(6) cause of action is granted, and the motion is otherwise denied; and it is further
ORDERED that the plaintiff's motion for partial summary judgment on the issue of liability under Labor Law § 240(1) is denied; and it is further
ORDERED that the parties are directed to appear on December 23, 2014, at 9:30 a.m., in courtroom 1600, the Settlement Conference Part at the Westchester County Courthouse, 111 Dr. Martin Luther King, Jr., Boulevard, White Plains, New York 10601; and it is further
ORDERED that all other relief requested and not decided herein is denied.
This constitutes the decision and order of the Court.