Opinion
INDEX NO, 11188S/2011 MOTION SEQ. NO. 003
04-14-2014
AMBROSIO TRIA and AGATA TRIA, Plaintiffs, v. REGIS HIGH SCHOOL, Defendant.
PRESENT:
Justice
The following papers, numbered 1 to 5 were read on this motion for summary judgment.
| PAPERS NUMBERED | |
| Notice of Motion/ Order to Show Cause — Affidavits — Exhibits | 1-2 |
| Answering Affidavits — Exhibits ______ | 3-4 |
| Replying Affidavits __________ | 5 |
Cross-Motion: [X] Yes [] No
Upon a reading of the foregoing cited papers, it is ordered that plaintiff's motion pursuant to CPLR §3212 for an order granting plaintiff's summsry judgment on the issue of liability against defendant on the labor law § 240(1) claim is granted, and the summary judgment on the § 241(6) claim is denied. Defendant's cross-motion for summary judgment dismissing plaintiff's labor law § 240(1) and 241(6) claims is denied. Defendant's cross-motion for summary judgment dismissing plaintiff's labor law §200 claim is granted.
Plaintiff Ambrosio Tria brings this labor law action to recover for injuries he sustained on August 16, 2011, while unloading a tractor trailer of press board panels and stacking them on an A frame dolly. The panels fell and landed on plaintiff's leg. The injuries occurred while plaintiff was on the sidewalk outside of a building owned by Regis Highschool. Plaintiff was employed by Maven Builder's, Inc., a company hired by Regis Highschool to repair the school's gymnasium after a fire.
Plaintiffs commenced an action against Regis Highschool and Maven Builder's Inc. Maven Builders, Inc. moved pursuant to CPLR 3211(a)(1)&(7) to dismiss the causes of action asserted against it in a third-party complaint. On January 9, 2013, this court granted Maven Builders, Inc.'s motion.
Plaintiff moves for partial summary judgment on the issue of liability. Plaintiff claims the accident warrants protection pursuant to Labor Law § 240(1) because the height differential between the panels and the plaintiff was not de minimis due to the total weight of the load hoisted onto the dolly. Plaintiff claims the A frame dolly in question was defective and was not proper equipment because it did not have braces, locking casters, or a lip at the edge to prevent the panels from slipping or tipping off. Plaintiff's Labor Law § 241(6) claim is predicated on a violation of Industrial Code 23-2.1[a][1]&[2] because the panels were not properly secured or braced onto the A frame dolly, were not stored in a safe an orderly manner, and the number of panels and total weight of the panels exceeded the safe carrying capacity of the A frame dolly.
In support of this motion, plaintiff submits his deposition testimony and that of two former co-workers, Mark Cunningham and Joseph Gagliano, who witnessed the accident. In his deposition testimony, plaintiff states that after loading approximately eight panels onto the A frame dolly, the dolly began to move and the panels began to fall towards him. Cunningham stated that he believed the load shifted, and then plaintiff attempted to hold the load back from falling. Gagliano stated that he was on the truck handing off panels to two of the men unloading the panels. Gagliano heard someone yell, and as he turned around, he saw the panels falling off of the A frame dolly and plaintiff attempting to stop the panels, but the panels went right through his hands.
Plaintiff submits an affidavit from Leo DeBobes, a Certified Safety Professional, who states that the dolly was defective because: (1) it lacked a lip at the edge to prevent the panels from sliding or tipping off, (2) it did not contain a locking caster that would have stabilized the dolly, and (3) it did not contain straps or braces to secure the load. DeBobes states that readily available equipment, such as a lumber cart, would have prevented this accident, and that the A frame dolly was not the proper equipment.
Defendant in opposing the motion and supporting its cross-motion, alleges that plaintiffs' motion is procedurally defective for failing to include the pleadings, plaintiff's affidavit, or plaintiff's deposition transcript; plaintiff's accident did not involve a significant elevation differential; plaintiff's accident did not involve a violation of the Industrial Code as required by Labor Law § 241(6); and defendant did not supervise, direct, or control plaintiff's work thereby entitling it to summary judgment dismissing all of plaintiff's common law and Labor Law §200 claims . Defendant submits plaintiff's deposition transcript, the deposition transcript of Donald Allison who is the Vice President of Finance at Regis Highschool, and an affidavit from Walter Konon, a New York State licensed engineer.
Defendant argues that Labor Law § 240(1) does not apply because plaintiff's accident did not involve a significant elevation differential, and de minimus elevation differentials do not give rise to extraordinary protections under Labor Law § 240(1). In his affidavit, Mr. Konon states that the A frame dolly was the proper and appropriate equipment and that the dolly's carrying capacity was not exceeded at the time of the accident. In the alternative, defendant submits that without plaintiff addressing the weight of the object and the potential force of the object, plaintiff cannot sustain his burden entitling him to judgment as a matter of law.
Defendant alleges that the accident did not involve a violation of the Industrial Code as required under Labor Law § 241(6) because Industrial code 23-2.1(a) only applies to materials and equipment being stored, and to passageways, walkways, stairs, or other thoroughfares. Defendant claims that in this case the materials were being loaded and moved, not stored, and that a sidewalk is not a passageway, walkway, or stairway.
Defendant's cross motion asserts that it did not exercise any supervisory control therefore it did not breach the common-law duty to provide construction site workers with a safe place to work. Defendant relies on deposition testimony from Allison establishing that Regis Highschool hired Maven Builders, Inc. to perform certain work in connection with the renovation of the school's gymnasium. Allison testified that Regis Highschool did not discuss the means or methods by which Maven was going to unload the subject panels or who was going to be involved in that work, and that he was unsure as to whether the dolly in question was owned by Regis Highschool or Maven Builders, Inc. Plaintiff's testimony stated it received instructions from Maven supervisors and employees.
In order to prevail on a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence, eliminating all material issues of fact.(Klein V. City of New York, 89 NY2d 833; Ayotte V. Gervasio, 81 NY2d 1062, Alvarez v. Prospect Hospital, 68 NY2d 320). Once the moving party has satisfied these standards, the burden shifts to the opponent to rebut that prima facie showing, by producing contrary evidence, in admissible form, sufficient to require a trial of material factual issues(Kaufman V. Silver, 90 NY2d 204; Amatulli V. Delhi Constr. Corp.,77 NY2d 525; Iselin & Co. V. Mann Judd Landau, 71 NY2d 420). In determining the motion, the court must construe the evidence in the light most favorable to the non-moving party(SSBS Realty Corp. V. Public Service Mut. Ins. Co., 253 AD2d 583; Martin V. Briggs, 235 192).
Labor Law §240(1) imposes strict liability on "owners, contractors, and their agents" when they fail to provide adequate safety equipment and that failure causes a worker's injury in a gravity-related accident (Fabrizi v. 1095 Ave. Of the Ams., L.L.C., 2014 NY Slip Op 1206, 2014 N.Y. Lexis 204 *10 [2014]). Labor Law §240(1) applies when an object upon which the force of gravity is applied is material being hoisted or a load that required securing for the purpose of carrying out plaintiff's undertaking (Garcia v. DPA Wallace Ave. I, LLC, 101 A.D.3d 415, 955 N.Y.S.2d 320 [1st Dept., 2012] citing to Narducci v. Manhasset Bay Assoc., 96 N.Y. 2d 259, 268 -269, 750 N.E. 2d, 1085, 727 N.Y.S. 2d 37 [2001]). Labor Law §240(1) "does not apply simply because an object fell and injured a worker; 'a plaintiff must show that the object fell ... because of the absence or inadequacy of a safety device [emphasis supplied] of the kind enumerated in the statute" (Fabrizi v. 1095 Ave. Of the Ams., L.L.C., 2014 NY Slip Op 1206, 2014 N.Y. Lexis 204 **4 [2014] citing to Narducci v. Manhasset Bay Assoc., 96 N.Y. 2d 259, 750 N.E. 2d, 1085, 727 N.Y.S. 2d 37 [2001]).
The weight of the object and the amount of force it is capable of generating, even over the course of a relatively short distance, can be considered when determining an elevation differential and whether the elevation differential can be viewed as de minimis (Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 605, 922 N.E.2d 865 [2009]). Although the record may not specify the height of the falling object, given the total weight and the force a falling object can generate during its descent, a falling object from the top of an A-frame cart is not de minimis (Marrero v. 2075 Holding Co., LLC, 106 A.D.3d 408, 964 N.Y.S.2d 144 [1st Dept., 2013] citing to, Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d 1, 959 N.E.2d 488 [2011]).
Plaintiff makes a prima facie showing of entitlement to judgment as a matter of law. Three witnesses, including the plaintiff, stated in their deposition testimony that there were approximately eight panels on the A-frame dolly, and the expert witness testimony for both parties establishes that the panels weighted approximately sixty pounds each. The A-frame dolly carried a load of at least four hundred and eighty pounds. Both the witness statements and the expert testimony show that the A-frame dolly in question did not have vertical rails, braces, locking castes, a lip on the edge to hold the load, or any other securing devise. Plaintiff shows that the A-frame dolly lacked a safety device and that at the time the load fell, the total weight of the load was at least four hundred and eighty pounds and therefore not de minimis.
Defendant fails to rebut plaintiffs' prima facie showing. Cunningham and Gagliano testified to an approximate load amount of eight panels, and defendant's expert witness stated that the panels weighed "at most sixty pounds." No admissible evidence was put forward to rebut plaintiffs' showing that safety mechanisms were required to move a load of approximately four hundred and eighty pounds. Defendant makes no showing that the weight and force of the falling object was de minimis.
Labor Law §241(6) "requires owners and contractors to provide reasonable and adequate protection and safety for workers and to comply with specific safety rules and regulations promulgated by the Commissioner of the Department of Labor" (Ross v. Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d 494, 501-502, 601 N.Y.S.2d 49, 618 N.E.2d 82 [1993]). This duty is nondelegable and "to the extent that plaintiff has asserted a viable claim under Labor Law §241(6), he need not show that defendants exercised supervision or control over his worksite in order to establish his right of recovery" (Id. at 502). "§241(6) imposes a nondelegable duty upon an owner or general contractor to respond in damages for injuries sustained due to another party's negligence in failing to conduct their construction, demolition or excavation operations so as to provide for the reasonable and adequate protection of the persons employed therein" (Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 N.Y.2d 343, at 350, 670 N.Y.S.2d 816, 693 N.E.2d 1068 [1998]).
Plaintiffs rest their §241(6) claim on New York Industrial Code §23-2.1 Maintenance and housekeeping, which states: (a) Storage of material or equipment.
(1) All building materials shall be stored in a safe and orderly manner. Material piles shall be stable under all conditions and so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare.
(2) Material and equipment shall not be stored upon any floor, platform or scaffold in such quantity or of such weight as to exceed the safe carrying capacity of such floor, platform or scaffold. Material and equipment shall not be placed or stored so close to any edge of a floor, platform or scaffold as to endanger any person beneath such edge.
In Fontaine v. Juniper Associates, a worker was injured while unloading pieces of a wooden water tank from a truck and brought a Labor Law action. Fontaine asserted a § 241(6) claim resting primarily on violation of Industrial Code §23-2.1(a), and The Supreme Court, Bronx County, held that §23-2.1(a)(2) was sufficiently specific to support a §241(6) claim (See Fontaine v. Juniper Associates 26 Misc. 3d 493, 890 N.Y.S.2d 781 [2009]). The court reasoned that the language in §23-2.1(a)(2) "protects against material 'placed or stored .... close to the edge' of a floor or platform and posing a risk of falling over the edge" (Id. at 494) The Appellate Division, First Department upheld the lower court's decision stating that "issues of fact precluded summary dismissal of the §241(6) claim to the extent it was based on a violation of Industrial Code §23-2.1(a)(2)" [Fontaine v. Juniper Associates, 67 A.D.3d 608, 888 N.Y.S.2d 409, (1st Dept., 2009).
In Fontaine, there were issues of fact as to the placement of the lumber, and whether the lumber had been placed so close to the edge of the platform as to endanger the plaintiff (Id). Here, there are issues of fact as to whether the panels exceeded the A frame dolly's weight capacity, and whether the placement and weight of the panels endangered the plaintiff. Plaintiffs' expert witness claims the A frame dolly was overloaded. Defendant's expert states that the maximum weight capacity on a typical A frame dolly ranges from 1,600 pounds to 3,000 pounds, well above the approximate 480 pounds the A frame dolly had on the date of the accident. Issues of material fact exist as to whether there was a violation of Industrial Code §23-2.1(a)(2). Plaintiffs' motion for summary judgment and defendant's cross motion for summary judgment on this issue are denied.
Defendant's procedural defect argument pursuant to CPLR §3212(b) fails. A motion for summary judgment pursuant to CPLR §3212(b) "shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions." "The record is sufficiently complete when, although the movant had not attached all of the pleadings to the motion, a complete set of the papers is available from the materials submitted" (Washington Realty Owners, LLC v. 260 Wash. St., LLC, 105 A.D.3d 657, 964 N.Y.S. 2d 137 [1st. Dept., 2013]).
In his Notice of Cross Motion, defendant annexed a copy of the pleadings. The record is sufficiently complete from the materials submitted and defendant's application to deny plaintiff's motion for summary judgment as defective is denied.
In order to succeed on a Labor Law §200 claim, plaintiff must prove that defendant owner of the worksite negligently allowed the condition to occur thus violating §200 and that defendant owner supervised or exercised control over the activity causing plaintiff's injuries (Hughes v. Tishman const. Corp., 40 A.D.3d 305, 836 N.Y.S.2d 86 [1st Dept., 2007] citing to, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y. 2d 494, 505, 601 N.Y.S.2d 49, 618 N.E.2d 82 [1993]).
Plaintiff's deposition testimony states that no one who identified themselves as working for or on behalf of Regis Highschool spoke to plaintiff and that no one from Regis Highschool gave plaintiff instructions with regard to moving anything on the day of the accident. Plaintiff's deposition testimony establishes that no one other than Maven Builders, Inc. gave plaintiff instructions on what to do on the date of the accident. Plaintiff does not put forth any evidence to rebut this claim and fails to reply to Defendant's cross motion for summary judgment on this issue. Defendant's cross motion for summary judgment as to plaintiffs' Labor Law §200 claim is granted.
Accordingly, it is ORDERED, that plaintiff's motion for summary judgment on the issue of liability pursuant to Labor Law §240(1) is granted, and it is further
ORDERED, that defendant's cross motion for summary judgment on the Labor Law §240(1) claims is denied, and it is further
ORDERED, that plaintiffs' motion for summary judgment on the issue of liability pursuant to Labor Law §241(6) is denied, and it is further
ORDERED, that defendant's cross motion for summary judgment on the issue of liability pursuant to Labor Law §241(6) is denied, and it is further
ORDERED, that defendant's cross motion for summary judgment on the Labor Law §200 is granted, and it is further
ORDERED, that the Labor Law §200 claim asserted in the Complaint is dismissed, and it is further
ORDERED that the clerk of Court enter judgment accordingly.
________________
MANUEL J. MENDEZ
J.S.C.
Check one: FINAL DISPOSITION [X] NON-FINAL DISPOSITION
Check if appropriate: [] DO NOT POST [] REFERENCE