Opinion
No. 11526/09.
11-07-2014
Antonio MORENO, Plaintiff, v. FRAME WORKS GROUP, L.L.C., et al.,, Defendants.
Opinion
| The following papers numbered 1 to 5 read on this motion: | Papers Numbered |
|---|---|
| Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed | 1–3 |
| Opposing Affidavits (Affirmations) | 4 |
| Reply Affidavits (Affirmations) | 5 |
Other Papers
Upon the foregoing papers, in motion sequence number 12, defendants Frame Works Group, L.L.C. (Frame Works) and Shore Front Developers of Rockaway Park, L.L.C. (Shore Front) (collectively referred to as defendants), move for an order, pursuant to CPLR 3212, granting them summary judgment dismissing the action of Antonio Moreno premised upon alleged violations of Labor Law §§ 200, 240, 241 and 241–a.
Facts and Procedural Background
Plaintiff commenced the instant action seeking to recover damages for personal injuries allegedly sustained on November 3, 2008 at Beach 100th and Beach 101st Street (the Property), where the Belle Shores Condominium Complex (the Complex) was being built. Plaintiff claims that while he working, he entered a completed unit in Phase 4 of the Project, looking for material necessary for the performance of his work. While he was leaving the building, he stepped onto an uncovered stairway, it collapsed under his weight and he fell.
The Property upon which the Project was being constructed was owned by defendants. Complete Interiors, Inc., was the general contractor and plaintiff's employer.
Defendants' Motion
In support of their motion, defendants argue that plaintiff's claims, as they are predicated upon violations of the Labor Law, should be dismissed on the ground that the site where plaintiff was injured was not a “place of work” entitling him to the protection of the Labor Law, nor was plaintiff acting as an employee at the time. More specifically, defendants explain that the Complex consists of six clusters of four to six attached buildings, with each building having four floors and three units. Unit A consists of a ground floor and basement; Unit B is on the second floor; and Unit C is on the third and fourth floors and has an open outdoor patio on the fourth floor. The Complex was built in six phases.
On the day of the accident, Phase 4, where plaintiff was injured, had been substantially completed, although none of the exterior stairs leading to the B and C units had been completed. In his affidavit, Phillip Sansone, the managing member of Frameworks, explains that in September 2008, as a result of a downturn in the economy, defendants decided to cease construction on Phases 3 and 4 of the Complex and complete the more marketable waterfront units in Phase 6. Accordingly, defendants allege that weeks before plaintiff's accident, Shore Front had directed Complete Interiors to lock and secure the buildings in Phases 3 and 4.
Moreover, defendants emphasize that when he was injured, plaintiff was supposed to be working on Phase 6. After working there for a short period of time, plaintiff, on his own accord and without being directed to do so, walked to Phase 4, allegedly looking for materials. Plaintiff claims that he gained access to the second floor of the building through a locked door, using a temporary stairway located at the back of the building. He then climbed to the upper floor, crossed over the patio wall to another unit and fell when he tried to descend a staircase between the third and fourth floors of a C unit. There were no witnesses to plaintiff's accident. Also, it is uncontroverted that no work was taking place at Phase 4 of the Complex on the day that plaintiff was injured.
Procedural Objections
Plaintiff's Contentions
Plaintiff first argues that he filed his note of issue on November 22, 2013. He therefore contends that since defendants did not make the instant motion until March 11, 2014, the motion was made 109 days after he filed his note of issue, instead of within 60 days as required by the rules of this court.
Plaintiff goes on to argue that the instant motion should be denied because it is defendants' second motion for summary judgment and the court does not favor successive motions seeking such relief.
Defendants' Contentions
In opposition, defendants assert that the instant motion is not untimely, since the note of issue and statement of readiness was not properly filed on November 22, 2013 because discovery was not yet complete as was stated by plaintiff therein. Defendants accordingly filed a motion to strike the note of issue on December 2, 2013, which was returnable on December 24, 2013. That motion was ultimately determined by a stipulation entered into on March 26, 2014, which provided for the completion of plaintiff's deposition. The instant motion was originally made returnable on April 11, 2014, but was adjourned at the request of plaintiff's counsel to June 13, 2014. Plaintiff's continued deposition was completed on May 7, 2014. Thus, the motion was made before discovery was completed. Defendants further argue that their motion should not be dismissed on this ground because counsel was unaware of the local court rule requiring a motion for summary judgment to be made within 60 days of filing a note of issue.
Defendants also assert that this motion should not be barred by its previous motion for summary judgment. In this regard, defendants allege that the earlier motion sought dismissal of the complaint on the ground that some of named defendants owed no duty to plaintiff that could subject them to liability. Thus, the issue of whether the protections of the Labor Law are applicable to the facts herein was not addressed or decided in the previous motion. Moreover, Shorefront was not a party to the earlier motion. Finally, the earlier motion expressly reserved the issue of whether the alleged location of the injury was a place of work to which the Labor Law was applicable.
Discussion
It has been held that a motion for summary judgment is untimely under the rules of the Supreme Court, Civil Term, Kings County, if it is made more than 60 days after the filing of the note of issue when the moving party fails to establish good cause for the delay (see e.g. Miceli v. State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726 [2004] ; Goldin v. New York & Presbyt. Hosp., 112 AD3d 578, 579 [2013] ; Polanco v. Creston Ave. Props., 84 AD3d 1337, 1341 [2011] ). Accordingly, the court declines to accept counsel's statement that he was unaware of this court rule to establish good cause for making the motion after the expiration of the 60 day period.
The court further finds, however, that in this case, defendants moved to strike the note of issue because discovery had not been completed. Thus, as argued by defendants, the note of issue filed on November 22, 2013 was a ity because the certificate of readiness and affirmation of compliance filed therewith incorrectly stated that discovery was complete (see e.g. Hochberg v. Maimonides Med. Ctr., 37 AD3d 660 [2007] [internal citations omitted] ). Moreover, the instant motion was made returnable on April 11, 2014 and was adjourned to June 13, 2014; plaintiff was deposed on Mary 7, 2014. Under these circumstances, it is therefore clear that discovery was not completed until after this motion was filed. From this it follows that the motion will not be denied as untimely.
The court also notes that “[i]t is well established that multiple summary judgment motions in the same action should be discouraged in the absence of a showing of newly discovered evidence or other sufficient cause” (Flomenhaft v. Fine Arts Museum, 255 A.D.2d 290 [1998] [internal citations omitted] ). In this case, defendants' previous motion for summary judgment addressed the issue of whether some of the named defendants were proper parties to the action and the instant motion addresses the issue of whether the proper defendants can be held liable to plaintiff. Further, Shorefront, as owner of the property, was not a party to the previous motion. Thus, since different issues were raised by different parties in the earlier motion, the instant motion will not be denied as a duplicative successive motion (see generally NYP Holdings v. McClier Corp., 83 AD3d 426, 427 [2011] ). The court will accordingly decide the instant motion on the merits.
Summary Judgment
It is well established that summary judgment may be granted only when it is clear that no triable issues of fact exist (Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986] ). The party moving for summary judgment “bears the initial burden of making a prima facie showing of its entitlement to judgment as a matter of law” (Holtz v. Niagara Mohawk Power, 147 A.D.2d 857, 858 [1989] ). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see e.g. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985] ; District Attorney v. City of New York, 271 A.D.2d 635, 635 [2000] ).
Once such a showing has been established, “the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” (Alvarez, 68 N.Y.2d at 324, citing Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980] ). It is equally well settled that in making the determination of whether a movant has satisfied the requisite burden of proof, the nonmovant is entitled to the benefit of every favorable inference (see e.g. Negri v. Stop & Shop, 65 N.Y.2d 625 [1985] ; Louniakov v. M.R.O.D. Realty, 282 A.D.2d 657 [2001] ). Further, “the motion should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility” (Scott v. Long Is. Power Auth., 294 A.D.2d 348, 348 [2002], citing Dolitsky v. Bay Isle Oil Co., 111 A.D.2d 366 [1985] ). On such a motion, the court is not to determine credibility, but whether a factual issue exists (Capelin Assoc. v. Globe Mfg., 34 N.Y.2d 338 [1973] ).
Violations of the Labor Law
Defendants' Contentions
Defendants argue that they are entitled to summary judgment dismissing the complaint on the ground that at the time that plaintiff was injured, he was not at a place were construction work was being done, so that he was not engaged in activities covered by Labor Law §§ 201, 241 and 241–a. In support of this conclusion, defendants further aver that plaintiff was not asked or directed to go to the location where he was injured, so that he was there without their knowledge or authorization.
Plaintiff's Contentions
In opposition, plaintiff argues that he is entitled to the protection of the Labor Law because he was injured while on the construction site, looking for materials to complete the job that was assigned to him. Plaintiff further asserts that he was told to go into the building in which he fell by an employee of defendants, who gave him a key.
The Law
As is relevant herein, it is recognized that:
“[A] claimed breach of Labor Law § 200(1)... codifies landowners' and general contractors' common-law duty to maintain a safe workplace.... [W]here such a claim arises out of alleged defects or dangers arising from a subcontractor's methods or materials, recovery against the owner or general contractor cannot be had unless it is shown that the party to be charged exercised some supervisory control over the operation (e.g., Lombardi v. Stout, 80 N.Y.2d 290, 295 [1992] ; Kappel v. Fisher Bros., 6th Ave. Corp., 39 N.Y.2d 1039, 1041 [1976] ).
(Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 499–501 [1993] ). In this regard, it is well established that:
“ ‘A landowner must act as a reasonable [entity] in maintaining [its] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury’ “ (Basso v. Miller, 40 N.Y.2d 233, 241 [1976], quoting Smith v. Arbaugh's Rest. Inc., 469 F.2d 97, 100 [DC Cir1972], cert denied 412 U.S. 939 [1973] ). In addition, both an owner and a general contractor have a duty to furnish a safe place to work (see e.g. Monroe v. City of New York, 67 A.D.2d 89, 96 [1979] ; Employers Mut. Liab. Ins. Co. of Wis. v. Di Cesare & Monaco Concrete Constr. Corp., 9 A.D.2d 379, 383 [1959] ).”
(Urban v. No. 5 Times Sq. Dev., LLC, 62 AD3d 553, 555 [2009] ).
Further, Labor Law § 240(1), the scaffold law, provides that:
“All contractors and owners and their agents ... 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.”
Similarly, Labor Law § 241 provides that:
“All contractors and owners and their agents ... 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 ...”
In addition, Labor Law § 241–a provides that:
“Any men working in or at elevator shaftways, hatchways and stairwells of buildings in course of construction or demolition shall be protected by sound planking at least two inches thick laid across the opening at levels not more than two stories above and not more than one story below such men, or by other means specified in the rules of the board.”
“It is well settled that the liability of an owner or a general contractor is absolute upon proof that a worker's injuries were proximately caused by a violation of the obligations of an owner or general contractor under Labor Law §§ 241–a and 240(1) ” (Santos v.. Sure Iron Works, 166 A.D.2d 571 [1990] [internal citation omitted] ). In addressing defendants' motion, it must also be recognized, however, that it is also well settled that the occurrence of a construction site accident that is directly caused by the force of gravity or by a violation of the Labor Law does not automatically give rise to a viable claim. Rather, the statutes only apply when the injured worker is “within the class of persons entitled to protection” (Morra v. White, 276 A.D.2d 536, 537 [2000] ). In particular, “a plaintiff must demonstrate that he was both permitted or suffered to work on a building or structure and that he was hired by someone, be it owner, contractor or their agent” (Whelen v. Warwick Val. Civic & Social Club, 47 N.Y.2d 970, 971 [1979] ). Further, in explaining this rationale in the recent Court of Appeals decision, Abbatiello v. Lancaster Studio Associates (3 NY3d 46 [2004] ), the court ruled that a worker who is injured without the knowledge or consent of the owner is not an employee for purposes of the Labor Law and therefore is not afforded the protections of that statute against the owner (Abbatiello, 3 NY3d 46 at 51 ; see generally Morton v. State of New York, 15 NY3d 50 [2010).
Discussion
Herein, the court finds that defendants have made a prima facie showing that plaintiff was not within the class of persons entitled to protection under the relied upon provisions of the Labor Law. In this regard, plaintiff does not deny that construction of Phases 3 and 4 of the Complex was stopped by defendants approximately two months before he was injured, at which time plaintiff's employer was instructed by defendants to seal and lock those Phases of the project and work on the construction of Phase 6. To accomplish this, it is not disputed that the doors to the units in Phase 4, where plaintiff was injured, were locked, and that the staircases that would lead to the second, third and fourth story units had not yet been constructed. Further, it not disputed that plaintiff took it upon himself to look for supplies in the units in Phase 4, without being told to do so.
It is also significant to note that when plaintiff was injured, he was alone in the building. Moreover, plaintiff was not engaged “in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building” (see Labor Law § 240[1] ); he was not engaged in “constructing or demolishing buildings or doing any excavating” (see Labor Law § 241 ); and he was not “working in or at elevator shaftways, hatchways and stairwells' (see Labor Law § 241–a ). The court thus concludes that the area in which plaintiff was injured does not qualify as an “area ... in which construction, excavation or demolition work is being performed” (Sprague v. Louis Picciano, 100 A.D.2d 247, 250 [1984] ; cf Campisi v. Epos Contr., 299 A.D.2d 4, 7 [2002] ).
Further, under these circumstances, there was no reason for either plaintiff's employer or defendants to comply with applicable Labor Law provisions because they had no reason to foresee that anyone would seek to enter the units in Phase 4 by accessing the roof. Although plaintiff claims to have obtained a key to enter the premises, he alleges that he was injured after he climbed to the roof, crossed over a wall to the adjoining unit and was injured while descending a staircase that went from the fourth floor to the third floor. That plaintiff asserts that he obtained a key from an employee of Shorefront in support of his claim does not alter this conclusion. Significant in this regard is the fact that the person from whom plaintiff obtained the key was charged with the responsibility of cleaning the premises, so that he clearly did not possess the authority to direct plaintiff's work or to direct plaintiff to go to Phase 4 to obtain materials, nor was that employee charged with the duty of reporting plaintiff's actions to defendants (see generally Paramount Ins. Co. v. Rosedale Gardens, 293 A.D.2d 235, 240 [2002] ). Finally, defendants argue that while some materials had been stored in the units in Phase 4, they were stored on the ground floor, and not on the roof or upper levels of the building. This allegation is not denied by plaintiff, nor could he credibly deny it, since it would be highly impractical to carry materials up several floors of a vacant building to for storage.
Having so held, it is without relevance that plaintiff first reported that he was hurt while trying to climb up a steel stringer running from the third floor to the fourth floor, or that he was injured while climbing down unfinished stairs, as he later claimed.
In so holding, the court also notes that plaintiff's cause of action to recover damages under Labor Law § 240(1) is properly dismissed in view of the fact that the staircase upon which he fell was a normal appurtenance to the building and was not designed as a safety device to protect him from an elevation-related risk (see e .g. Norton v. Park Plaza Owners Corp., 263 A.D.2d 531, 531–532 [1999] [citations omitted], see also Jones v. 414 Equities LLC, 57 AD3d 65, 75 [2008] ; Gelo v. City of New York, 34 AD3d 636, 637 [2006] ).
Accordingly, plaintiff's causes of action as are predicated upon Labor Law §§ 200, 240, 241 and 241–a of the Labor Law are dismissed. Having so held, the court searches the record and also dismisses plaintiff's action as it is premised on common law negligence (see CPLR 3212[b] ). In this regard, since the units in Phase 4 were locked; there was no exterior staircases to access the second, third and fourth floor; and it was not foreseeable that anyone would access the building from the roof and get injured while descending an unfinished staircase to exit, the court concludes that defendants maintained the Property in a reasonably safe condition (see Basso, 40 N.Y.2d at 241 ).
Conclusion
For the above dismissed reasons, the motion for summary judgment by Frameworks and Shore Front is granted and the complaint is dismissed as against them.
The foregoing constitutes the order, decision and judgment of the court.