Opinion
38841/05
03-26-2010
Manuel Perez, Plaintiff, v. 347 Lorimer LLC, et ano., Defendants. EFI Construction, LLC, Third-Party Plaintiff Precision Elevator Corp., Third-Party Defendant.
Counsel for plaintiff Grandinette & Serio, P.C. Counsel for defendant 347 Lorimer LLC Goldberg Rimberg & Friendlander Wilson, Elser, Moskowitz, Edelman & Dicker, LLP for defendant Precision Elevator Corp. Harris Beach for defendant EFI Constr. LLC
Counsel for plaintiff
Grandinette & Serio, P.C.
Counsel for defendant 347 Lorimer LLC
Goldberg Rimberg & Friendlander
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP for defendant Precision Elevator Corp.
Harris Beach for defendant EFI Constr. LLC
, J.
The following papers numbered 1 to 14 read on these motions:
Papers Numbered
Notice of Motion/Order to Show Cause/
Petition/Cross Motion and
Affidavits (Affirmations) Annexed1-2, 3-4, 5-6
Opposing Affidavits (Affirmations)7, 8, 9, 10, 11
Reply Affidavits (Affirmations)12, 13, 14
Affidavit (Affirmation)
Other Papers
Upon the foregoing papers, plaintiff Manuel Perez moves, pursuant to CPLR 602 (a), for an order consolidating the instant matter with the action entitled Manuel Perez v Precision Elevator Corp. pending in this court under Kings County Index No. 22876/08 (the second action). Upon consolidation, plaintiff moves, pursuant CPLR 3212, for summary judgment against defendants 347 Lorimer, LLC (347), defendant/third-party plaintiff EFI Construction LLC (EFI), and defendant/third-party defendant Precision Elevator Corp. (Precision) under his Labor Law §§ 240(1), 241 (6), and 200 causes of action. 347 cross-moves for summary judgment dismissing plaintiff's Labor Law § 200 cause of action. Precision moves for summary judgment dismissing plaintiff's claims as well as EFI's third-party claims against it.
Background Facts and Procedural History
On August 12, 2005, plaintiff was injured in a scaffold-collapse accident that took place in a partially completed elevator shaft in a six-story building located at 347 Lorimer Street in Brooklyn, New York and owned by 347 (the building or the premises). Prior to the accident, 347 hired EFI to serve as the general contractor on a renovation project whereby the building would be converted from commercial to residential use. Thereafter, EFI hired Precision to install a new elevator in the building. Under the terms of this agreement, EFI was responsible for constructing the walls of the elevator. The walls were comprised of concrete blocks on three sides, with the fourth side being left open for the eventual placement of the elevator doors. Once the walls were completed, Precision would install the elevator machinery including cables, counterweights, hoist motors, electrical wiring and elevator cabs inside the shaft.
At the time of the accident, plaintiff was employed by EFI as a mason on the renovation project. Prior to the accident date, plaintiff was instructed by his EFI supervisor, Chaim "Charlie" Blumenkranc to construct the walls for the elevator shaft from the basement to the top floor of the building through pre-existing holes that had been cut on each floor of the premises. Thereafter, plaintiff set about his work without incident. When plaintiff completed the walls, the work was inspected by Leon Feldman, a supervisor employed by Precision. Upon examination, Mr. Feldman determined that EFI had failed to install certain brackets inside the shaft that would hold rails for the elevator cab and counterweight. This work involved knocking out sections of the concrete blocks inside the shaft at each floor, and filling in these sections with bricks to which the brackets were attached. Thereafter, Mr. Blumenkranc directed plaintiff to install the brackets.
Mr. Blumenkranc was of the opinion that Precision was responsible for installing the brackets. However, after discussing the matter with his EFI supervisor, he was told to install the brackets.
In this regard, the concrete blocks were not strong enough to support the brackets.
In order to allow plaintiff to reach the inside wall of the elevator shaft so as to install the brackets, it was necessary to construct a makeshift work platform/scaffold inside the elevator shaft on the second floor level of the building. There is conflicting evidence regarding how this platform came to be built. Specifically, Mr. Feldman testified that he played no role in constructing the platform that was involved in plaintiff's accident. Instead, he testified that after the accident, he came to the job site and instructed and assisted EFI in building a safe platform using three 4" x 4" pieces of lumber inserted into holes cut in the shaft wall to support a piece of three-quarter inch-thick plywood. In contrast, Mr. Blumenkranc testified that Mr. Feldman instructed and helped him and plaintiff construct the platform involved in the accident. Further, Mr. Blumenkranc testified that he wanted to use 2" x 10" beams to support the platform but Mr. Feldman insisted that they use weaker 4" x 4" supports. According to Mr. Blumenkranc, he complained to his EFI supervisor about this but his boss instructed him to follow Mr. Feldman's instructions. For his own part, plaintiff testified that he and a co-worker assembled the platform using 4" x 4" beams supplied by EFI for support. Plaintiff further testified that he complained to Mr. Blumenkranc about this wood because it was old but he was told to "[j]ust do it."
Once the device was complete, plaintiff stood on the platform in order to install the bricks and brackets onto the shaft wall. Immediately prior to the accident, plaintiff brought a wheelbarrow containing wet cement onto the platform. Thereafter, one of the support beams broke and the plywood platform "turned over." As a result, plaintiff fell some 20 -25 feet to the bottom of the elevator shaft and sustained various injuries.
Plaintiff testified that plywood was "nailed in a corner, but it couldn't handle it."
By summons and complaint dated December 20, 2005, plaintiff commenced the instant action against 347 alleging violations of Labor Law §§ 240 (1), 241 (6), and 200. On or about May 18, 2006, 347 interposed an answer and "supplemental summons" which contained a cross claim against EFI seeking contractual indemnification. Thus, although EFI appears in the caption as a first-party defendant, plaintiff, who was an EFI employee, did not assert any direct claims against EFI. On or about February 7, 2007, EFI commenced a third-party action against Precision seeking common-law and contractual indemnification based upon EFI's potential liability to 347 as a result of 347's cross claim. In an order dated March 8, 2008, Hon. Michael A. Ambrosio of this court granted 347's motion for summary judgment on its indemnification cross claim against EFI. By summons and complaint dated December 2, 2008, plaintiff commenced the aforementioned second action against Precision alleging violations of Labor Law §§ 240 (1), 241 (6), and 200. The instant motions are now before the court.
It would appear that 347's method of interposing a cross claim against EFI was improper (see CPLR 3011, 3019 [b]). However, EFI never raised an objection in this regard and, as noted, 347 was awarded summary judgment on the cross claim.
Motion to Consolidate
Plaintiff moves, pursuant to CPLR 602 (a), for an order consolidating the instant matter with the second action against Precision. CPLR 602 (a) provides that "[w]hen actions involving a common question of law or fact are pending before a court, the court, upon motion . . . may order the actions consolidated." Here, the second action clearly involves common questions of law and fact with the instant matter. Moreover, none of the parties in this action have demonstrated that they will be prejudiced by consolidation. Indeed, this branch of plaintiff's motion is unopposed. Accordingly, that branch of plaintiff's motion which seeks to consolidate this matter with the second action is granted.
Plaintiff's Claims Against EFI
Prior to reaching the substance of plaintiff's Labor Law claims, the court must address a collateral matter concerning plaintiff's claims against EFI. As was alluded to earlier, although EFI appears in the caption as a first-party defendant, plaintiff's complaint does not allege any direct claims against EFI, nor does it appear that plaintiff has asserted direct claims against EFI in any supplemental pleadings. Thus, in effect, plaintiff is moving for summary judgment against EFI under non-existent claims. Further, given the undisputed fact that EFI was plaintiff's employer and that plaintiff has collected Workers' Compensation benefits, it is clear that, even if plaintiff had properly alleged claims against EFI, they would be barred by the exclusive remedy provisions of the Workers' Compensation Law (see Workers' Compensation Law §§ 11; 29 [6]). Under the circumstances, those branches of plaintiff's motion which seek summary judgment against EFI under his Labor Law §§ 240 (1), 241 (6), and 200 causes of action are denied. Moreover, pursuant to CPLR 3212 (b), the court hereby searches the record and dismisses plaintiff's action against EFI.
The dismissal of plaintiff's claims against EFI does not effect 347's cross claim against EFI. Indeed, Justice Ambrosio has awarded 347 summary judgment under its cross claim. Thus, EFI's third-party claims against Precision remain relevant.
Labor Law § 240 (1) Claim Against 347
Plaintiff moves for summary judgment against 347 under his Labor Law § 240 (1) cause of action. In support of this motion, plaintiff points to the undisputed circumstances of his accident. Specifically, plaintiff notes that he suffered injuries during the course of a construction/renovation project when the scaffold/work platform upon which he was standing collapsed, and thereby caused him to fall some 20-25 feet to the bottom of the elevator shaft. Plaintiff further notes that he was not provided with any safety devices such as a safety net or safety line to prevent his fall. According to plaintiff, this evidence constitutes proof of a Labor Law § 240 (1) violation and, as the owner of the building, 347 is liable for his injuries as a matter of law.
In opposition to this branch of plaintiff's motion, 347 argues that there is an issue of fact as to whether plaintiff's own actions were the sole proximate cause of the accident. In particular, 347 points to the fact that plaintiff built the platform that collapsed. In addition, 347 argues that plaintiff's own actions in overloading the platform is what caused the beam to break. In this regard, 347 notes that the platform collapsed when plaintiff brought a wheelbarrow containing wet cement onto the platform.
Labor Law § 240(1) provides, in pertinent part, that:
"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, [or] altering . . . 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."
Labor Law § 240(1) was enacted to "prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). In order to accomplish this goal, the statute places the responsibility for safety practices and safety devices on owners, general contractors, and their agents who "are best situated to bear that responsibility" (id. at 500; see also Zimmer v Chemung County Perf. Arts, 65 NY2d 513, 520 [1985]). "The duty imposed by Labor Law § 240(1) is nondelegable and . . . an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work" (Ross, 81 NY2d at 500). However, given the exceptional protection offered by Labor Law § 240(1), the statute does not cover accidents merely tangentially related to the effects of gravity. Rather, gravity must be a direct factor in the accident as when a worker falls from a height or is struck by a falling object (Ross, 81 NY2d at 501; Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]).
It is well-settled that the collapse of a scaffold or work platform constitutes prima facie evidence of a Labor Law § 240 (1) violation (DeJara v 44-14 Newtown Rd. Apt. Corp., 307 AD2d 948, 949-950 [2003]; Dos Santos v State, 300 AD2d 434 [2002]; Montour v City of New York, 270 AD2d 236, 238 [2000]). Here, the uncontroverted evidence before the court indicates that plaintiff was injured when the scaffold/work platform upon which he was working collapsed. Accordingly, plaintiff has made a prima facie showing of his entitlement to summary judgment and the burden shifts to 347 to raise a triable issue of fact in this regard.
347 has failed to meet this burden. In particular, although a plaintiff's actions in building a platform/scaffold that ultimately collapses may be enough to support the sole proximate cause defense, this is only true when the defect in the device is attributable to the plaintiff. For example, in a case involving an elevator shaft accident similar to the one that took place here, the Appellate Division, Second Department ruled that the fact that the plaintiffs failed to place plywood on top of support beams raised a question of fact regarding the sole proximate cause defense (Heffernan v Bias Corp., 294 AD2d 301 [2002]). Similarly, evidence that a plaintiff, or workers under his supervision, placed an inadequate wooden plank on a scaffold that collapsed raised triable issues of fact regarding the sole proximate cause defense (Berenson v Jerico Water Dist., 33 AD3d 574 [2006]). Here, however, the blame for using an inadequate support beam on the work platform cannot be placed upon plaintiff. In this regard, plaintiff testified that prior to assembling the work platform, he complained to his supervisor Mr. Blumenkranc about the subject beam but was told to use it anyway. For his own part, Mr. Blumenkranc testified that he wanted to use stronger 2" x 10" support beams but was overruled by Mr. Feldman. Thus, the decision to use the beam that eventually broke was not plaintiff's to make.
Further, although there is evidence that plaintiff may have contributed to the accident by bringing a wheelbarrow containing wet cement onto the platform before it collapsed, this is insufficient to raise a triable issue of fact as to whether plaintiff's own actions were the sole proximate cause of the accident. As noted above, one of the major causes of the accident was EFI and/or Precision's insistence that an inadequate 4" x 4" beam be used to support the platform. Viewed in that light, any overloading of the platform on plaintiff's part amounted to comparative negligence, which is not a defense to a Labor Law § 240 claim (Stolt v General Foods Corp., 81 NY2d 918, 920 [1993]).
Accordingly, plaintiff is entitled to summary judgment on his Labor Law § 240 (1) cause of action against 347.
Labor Law § 241 (6) Claim Against 347
Plaintiff also moves for summary judgment against 347 under his Labor Law § 241 (6) cause of action. In support of this branch of his motion, plaintiff argues that 347 violated New York State Industrial Code regulations 12 NYCRR 23-5.1(c)(1), 5.1(e)(1), 5.11(a), 5.1(h), 5.1(f), 5.1(g), 23-1.16 and 23-1.17. Plaintiff further contends that these violations proximately caused his accident.
In opposition to this branch of plaintiff's motion, 347 contends that the Industrial Code regulations cited by plaintiff are too general to support a Labor Law § 241 (6) claim. 347 also argues that plaintiff's mere recitation of alleged Industrial Code violations is insufficient to demonstrate his entitlement to summary judgment inasmuch as plaintiff has failed to demonstrate how these rules were violated.
Labor Law § 241(6) provides, in pertinent part, that:
"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 persons employed therein or lawfully frequenting such places."
Labor Law § 241(6), which was enacted to provide workers engaged in construction, demolition, and excavation work with reasonable and adequate safety protections, places a nondelegable duty upon owners and general contractors, and their agents to comply with the specific safety rules set forth in the Industrial Code (Ross, 81 NY2d at 501-502). Accordingly, in order to support a cause of action under Labor Law § 241(6), a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of an Industrial Code provision that is applicable given the circumstances of the accident, and sets forth a concrete standard of conduct rather than a mere reiteration of common-law principals (id. at 502; Ares v State, 80 NY2d 959, 960 [1992]; see also Adams v Glass Fab, 212 AD2d 972, 973 [1995]). Further, notwithstanding the nondelegable nature of the duty imposed by the statute, "[c]ontributory and comparative negligence are valid defenses to a section 241 (6) claim; moreover, breach of duty imposed by a rule in the Code is merely some evidence for the factfinder to consider on the question of a defendant's negligence" (Misicki v Caradonna, 12 NY3d 511, 515 [2009]).
Here, although the court has already determined that plaintiff's own actions were not the sole proximate cause of the accident, there is an issue of fact as to whether plaintiff's own negligence contributed to the accident inasmuch as there is evidence that he overloaded the work platform notwithstanding his own reservations regarding the strength of the support beams. Under the circumstances, plaintiff is not entitled to summary judgment under Labor Law § 241 (6) (Riffo-Velozo v Village of Scarsdale, 68 AD3d 839 [2009]).
Labor Law § 200 Claim Against 347
347 cross-moves for partial summary judgment dismissing plaintiff's Labor Law § 200 claim against it. At the same time, plaintiff moves for summary judgment against 347 under this cause of action. In support of this cross motion, 347 maintains that there is no evidence that it had any authority to control or supervise the work that plaintiff was performing at the time of the accident. To the contrary, 347 maintains that the evidence before the court, including plaintiff, Mr. Feldman, and Mr. Blumenkranc's deposition testimony demonstrates that plaintiff's work was supervised solely by EFI and Precision. In addition, 347 points to the testimony of its own witness, Jack Gutteman. In particular, Mr. Gutteman testified that when he visited the job site, it was merely to observe the progress of the work and on no occasion did he direct any of the workers at the site.
In opposition to 347's motion, and in support of its own motion for summary judgment against 347 under Labor Law § 200, plaintiff argues that, although 347 did not actually exercise its authority to supervise and control the work site, it nevertheless had this authority as evidenced by the fact that it hired EFI and by the further fact that Mr. Gutteman inspected the progress of the work on a weekly basis. In addition, plaintiff argues that 347 had the authority to inspect the work site and, had it done so, it would have discovered the unsafe work platform prior to the accident.
Labor Law § 200 is merely a codification of the common-law duty placed upon owners and contractors to provide employees with a safe place to work (Kim v Herbert Constr. Co., 275 AD2d 709, 712 [2000]). Liability for causes of action sounding in common-law negligence and for violations of Labor Law § 200 is limited to those who exercise control or supervision over the plaintiff's work, or who have actual or constructive notice the unsafe condition that caused the underlying accident (Bradley v Morgan Stanley & Co., Inc., 21 AD3d 866, 868 [2005]; Aranda v Park East Constr., 4 AD3d 315 [2004]; Akins v Baker, 247 AD2d 562, 563 [1998]). Specifically, "[w]here a premises condition is at issue, property owners [and contractors] may be held liable for a violation of Labor Law § 200 if the owner either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident" (Ortega v Puccia, 57 AD3d 54, 61 [2008]). On the other hand, "when a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or general contractor cannot be had under Labor Law § 200 unless it is shown that the party to be charged had authority to supervise or control the performance of the work" (id.). Absent such authority, no liability attaches even when the owner or general contractor has notice of the unsafe manner in which the work was performed (id.).
Here, plaintiff's accident was caused by defects in the methods and materials used in building the work platform in the elevator shaft. Specifically, the beams used to support the structure were inadequate. Although, as noted above, there is conflicting evidence regarding whether Precision or EFI was responsible for these methods and materials, there is no evidence that 347 played any role in the construction of the work platform. To the contrary, it is clear that 347 had no authority to control the manner in which the work platform was constructed. Contrary to plaintiff's argument, the fact that a 347 representative inspected the progress of the work from time to time is insufficient to demonstrate such authority (McFadden v Lee, 62 AD3d 966, 967 [2009]). Similarly, the mere fact that 347 hired the general contractor EFI did not vest it with authority to control and supervise the methods and material used by EFI for purposes of Labor Law § 200. Indeed, were courts to adopt such an expansive view of the authority to control and supervise, few if any owners would ever be entitled to summary judgment under Labor Law § 200.
Accordingly, 347's cross motion for summary judgment dismissing plaintiff's Labor Law § 200 claim against it is granted. Plaintiff's motion for summary judgment against 347 under this cause of action is denied.
Labor Law §§ 240 (1), 241 (6) and 200 Claims Against Precision
Plaintiff moves for summary judgment against Precision under its Labor Law §§ 240 (1), 241 (6), and 200 claim alleged in the consolidated second action. At the same time, Precision moves to dismiss these claims. In support of his motion, plaintiff argues that Precision is subject to liability under the Labor Law inasmuch as it qualifies as a statutory agent of the owner and general contractor. Specifically, plaintiff argues that Precision's supervisor, Mr. Feldman, supervised and controlled his work in the elevator shaft.
In opposition to plaintiff's motion, Precision maintains that it does not qualify as a statutory agent under the circumstances of this case. Specifically, Precision argues that there is no authority for the proposition that a subcontractor such as itself may be held to be the statutory agent of one of the general contractor's employees. Precision also notes that plaintiff's own deposition testimony indicates that he was supervised solely by his EFI foreman, Mr. Blumenkranc.
It is undisputed that Precision was not the owner or general contractor on the underlying renovation project. Thus, Precision may only be held liable under Labor Law §§ 240 (1), 241 (6), and or 200 if it qualifies as a statutory agent of the owner or general contractor (Russin v Louis N. Picciano & Son, 54 NY2d 311, 317-318 [1981]). A subcontractor will be deemed a statutory agent when "it had the authority to supervise and control the particular work in which the plaintiff was engaged at the time of the injury" (Inga v EBS North Hills, LLC, 69 AD3d 568, 569-570 [2010]; see also Miller v Gedola, 44 AD3d 1017, 1018 [2007]).
Here, there is conflicting evidence regarding whether or not Precision had the authority to control and supervise plaintiff's work at the time of the accident. Specifically, Mr. Feldman testified that he merely marked the locations in the elevator shaft where the brackets needed to be installed and did not return to the work site until after the accident, when this installation work was completed. Mr. Feldman further testified that he played no role in the design or construction of the work platform involved in the underlying accident. In contrast, Mr. Blumenkranc testified that Mr. Feldman provided specific instructions as to how the brackets were to be installed including knocking out sections of the concrete block walls and replacing them with bricks. Mr. Blumenkranc further testified that Mr. Feldman returned to the job site as this work was progressing to check on the work. Finally, Mr. Blumenkranc testified that Mr. Feldman directed the EFI workers to use 4" x 4" beams to support the work platform rather than 2" x 10" support beams that Mr. Blumenkranc wanted to use. For his own part, when asked who instructed him as to how to install the brackets, plaintiff testified: "They came — well, [Mr. Blumenkranc] showed me how to do it." When asked who "they" were, plaintiff testified: "I think they came from an elevator company, and they told [Mr. Blumenkranc], and he told me."
Given this conflicting evidence, plaintiff's motion for summary judgment under Labor Law §§ 240 (1), 241 (6), and 200 as well as Precision's motion to dismiss these claims is denied.
Even if it were determined that Precision is a statutory agent as a matter of law, plaintiff would not be entitled to summary judgment against Precision under his Labor Law §§ 241 (6) and 200 claims since there are issues of fact regarding plaintiff's comparative negligence.
Third-Party Claims Against Precision
Precision also moves for summary judgment dismissing EFI's third-party claims against it. In support of this branch of its motion, Precision, in effect, relies upon the same argument it advanced in support of its motion to dismiss plaintiff's claims against it. Specifically, Precision maintains that, inasmuch as it did not direct and control plaintiff's work, and was not otherwise responsible for this work, there is no basis for EFI's indemnification claims against it.
Precision's motion to dismiss EFI's third-party action is denied. As previously noted, there is conflicting evidence regarding the extent to which Precision directed and/or controlled the underlying work. There is also conflicting evidence regarding the role Precision played in designing/constructing the work platform that collapsed. These conflicts must be resolved by the trier of fact before any determination can be made regarding Precision's liability to EFI for common-law indemnification/contribution or contractual indemnification.
Summary
In summary, the court rules as follows: (1) that branch of plaintiff's motion which seeks an order consolidating the instant action with the second action entitled Manuel Perez v Precision Elevator Corp. pending in this court under Kings County Index No. 22876/08 is granted; (2) those branches of plaintiff's motion which seeks summary judgment against EFI under his Labor Law §§ 240 (1), 241 (6) and 200 causes of action are denied and, upon searching the record, plaintiff's claims against EFI are dismissed; (3) that branch of plaintiff's motion which seeks summary judgment against 347 under his Labor Law § 240 (1) cause of action is granted; (4) those branches of plaintiff's motion which seek summary judgment against 347 under his Labor Law §§ 241 (6) and 200 causes of action are denied; (5) that branch of plaintiff's motion which seeks summary judgment against Precision under his Labor Law §§ 240 (1), 241 (6) and 200 causes of action is denied; (6) 347's motion for partial summary judgment dismissing plaintiff's Labor Law § 200 cause of action against it
is granted; and (7) Precision's motion for summary judgment dismissing plaintiff's Labor Law §§ 240 (1), 241 (6), and 200 claims, as well as EFI's third party action against it is denied.
This constitutes the decision and order of the court.
ENTER,
J. S. C.