Opinion
641802
Decided February 15, 2005.
WAXMAN WINCOTT, Woodbury, NY, Plaintiff's/Petitioner's Atty.
AHMUTY DEMERS McMANUS, Albertson, NY, Defendant's/Respondent's Atty.
ORDERED that this motion by the plaintiff, Fernando Ramirez, for summary judgment pursuant to CPLR § 3212 on his complaint alleging violations of Labor Law § 240 as a result of a fall from scaffolding on a job site is, after careful consideration, denied in its entirety as there are present numerous questions of fact which preclude summary disposition.
Plaintiff instituted this lawsuit for personal injuries allegedly sustained in a fall from scaffolding on a job site owned and operated by the defendants in Middle Island, Suffolk County on Long Island, New York. Plaintiff claims that on February 22, 2001 at approximately 10:00 a.m. he was installing insulation in a home being built at 48 Winterberry Drive when he fell off of a makeshift scaffold and injured himself by fracturing his left foot and suffering a disc herniation at L5-S1. Plaintiff claims that the makeshift scaffold consisted of placing a plank of wood between two "A" frame ladders and that no other scaffolding was provided by the sub-contractor J.P. Hunter. Plaintiff thereafter instituted the present lawsuit under the Labor Law.
Plaintiff, Fernando Ramirez, now moves for summary judgment pursuant to CPLR § 3212 arguing that strict liability applies to a violation of Labor Law § 240(1) because no approved scaffolding was provided nor were safety devices provided or in place to prevent the fall. The defendants, Lifetime Development and Park Crystal Associates, oppose the motion arguing that there are numerous questions of fact raised by the circumstances in this case. Defendants claim that the accident was never reported by the plaintiff or by the sub-contractor, J.P. Hunter, to the defendants, it was unwitnessed and unsubstantiated by any witnesses, the record is devoid of any evidence from J.P. Hunter that an accident occurred or was reported and the site manager testified that the insulation work at 48 Wineberry Drive was completed prior to the date of this accident.
For the following reasons, the plaintiff's motion for summary judgment pursuant to CPLR § 3212 on his complaint alleging violations of Labor Law § 240 as a result of a fall from scaffolding on a job site is denied in its entirety.
Section 240, Subdivision (1) of the New York Labor Law provides in pertinent part that
"all contractors and owners and their agents . . . in the erection, demolition, repairing, 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 protection to a person so employed."
A violation of this statute, the so-called "scaffold law" results in absolute liability on the part of the building owner, if the violation is found to be the proximate cause of the injury. Felker v. Corning Inc., 90 NY2d 219, 660 NYS2d 349 (1997); Zimmer v. Chemung County Performing Arts, 65 NY2d 513, 493 NYS2d 102, 482 NE2d 898, rearg. denied 65 NY2d 1054, 494 NYS2d 1033 (1985); Bland v. Manocherian, 55 NY2d 452, 497 NYS2d 880 (1985).
In order for a plaintiff to recover under section 240 of the Labor Law, plaintiff must demonstrate two elements. First, plaintiff must show that the defendant failed to provide proper protection. Second, plaintiff must show that such violation proximately caused his injuries. Avner v. 93rd Street Association, 147 AD2d 414, 538 NYS2d 258 (1st Dept. 1989). Here, in the case at bar, the court recognizes the absolute liability standard imposed by the Labor Law but there are issues of fact as to when, where and how this accident happened and whether the injuries sustained occurred as a result of a fall at the job site. The Court notes that the record is devoid of any proof submitted from either side as to any documentation, clarification or reports from the plaintiff's employer, J.P. Hunter, or even any worker's compensation records or claims to substantiate the time, date and place of the happening of this accident.
The function of the court on a motion for summary judgment is issue finding not issue determination. It is a most drastic remedy which should not be granted where there is any doubt as to the existence of a triable issue or where the issue is even arguable. Elzer v. Nassau County, 111 AD2d 212, 489 NYS2d 246 (2nd Dept. 1985); Steven v. Parker, 99 AD2d 649, 472 NYS2d 225 (2nd Dept. 1984); Gaeta v. New York News, Inc., 95 AD2d 325, 466 NYS2d 321 (1st Dept. 1983). As the New York Court of Appeals noted in Sillman v. Twentieth Century Fox, 3 NY2d 395, 404 (1957):
"To grant summary judgment it must clearly appear that no material and triable issue of fact is presented ( DiMenna Sons v. City of New York, 301 NY 118.). This drastic remedy should not be granted where there is any doubt as to the existence of such issues ( Braun v. Carey, 280 App. Div. 1019), or where the issue is 'arguable' ( Barnett v. Jacobs, 255 NY 520, 522); 'issue finding, rather than issue determination is the key to the procedure' ( Esteve v. Avad, 271 App. Div. 725, 727)."
It is the function of the court on a motion for summary judgment to consider all the facts in a light most favorable to the party opposing the motion, Thomas v. Drake, 145 AD2d 687, 535 NYS2d 229 (3rd Dept. 1988) and to determine whether there are any material and triable issues of fact presented. The key is issue finding, not issue determination, and the court should not attempt to determine questions of credibility. S.J. Capelin Assoc., v. Globe, 34 NY2d 338, 357 NYS2d 478 (1974).
The Court recognizes numerous issues of fact with regard to the happening of this accident and the proximate cause of the injuries. The fact that the accident went unreported to the defendants until the filing of this lawsuit, the lack of documentation of a scaffolding fall, the lack of any witnesses, the hiring practices of J.P. Hunter, lack of evidentiary material of J.P. Hunter and its knowledge or lack thereof of this accident and the testimony of the job site manager, John Walsh, that the insulation job at 48 Winterberry Drive was completed a month or two prior, albeit, his recollection and accuracy of such events is less than stellar, are all issues requiring resolution by a trier of fact. Clearly, a fact finding resolution that the plaintiff was injured on February 22, 2001 by a fall from scaffolding at 48 Winterberry Drive will result in absolute liability but the Court is unable to make that determination as a matter of law. See, Vitti v. Maloney, 109 AD2d 836, 486 NYS2d 361 (2nd Dept. 1985); Parsolano v. County of Nassau, 93 AD2d 815, 460 NYS2d 823 (2nd Dept. 1983).
Accordingly, the plaintiff's motion for summary judgment pursuant to CPLR § 3212 on his complaint alleging violations of Labor Law § 240 as a result of a fall from scaffolding on a job site is denied in its entirety at this time.
The foregoing constitutes the decision of this Court.