Opinion
2013-11-26
Bernard VERDON, et al., Plaintiffs–Respondents, v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY, et al., Defendants–Appellants, Bovis Lend Lease, et al., Defendants. The Port Authority of New York and New Jersey, et al., Third–Party Plaintiffs–Respondents, Bovis Lend Lease, et al., Third–Party Plaintiffs, v. U.S. Lumber, Inc., et al., Third–Party Defendants–Appellants. The Port Authority of New York and New Jersey, et al., Second Third–Party Plaintiffs–Respondents, Bovis Lend Lease, et al., Second Third–Party Plaintiffs, v. Louis J. Grasmick Lumber Company, Inc., Second Third–Party Defendant–Appellant.
Segal McCambridge Singer & Mahoney, Ltd., New York (Simon Lee of counsel), for The Port Authority of New York and New Jersey and Tishman Construction Corporation of New York, appellants/respondents. Jacobson & Schwartz, LLP, Jericho (Paul Goodovitch of counsel), for U.S. Lumber, Inc., appellant.
Segal McCambridge Singer & Mahoney, Ltd., New York (Simon Lee of counsel), for The Port Authority of New York and New Jersey and Tishman Construction Corporation of New York, appellants/respondents. Jacobson & Schwartz, LLP, Jericho (Paul Goodovitch of counsel), for U.S. Lumber, Inc., appellant.
Law Office of James J. Toomey, New York (Eric P. Tosca of counsel), for Feldman Lumber Industries, Inc., appellant.
Schenck, Price, Smith & King, LLP, New York (John P. Campbell of counsel), for Louis J. Grasmick Lumber Company, Inc., appellant.
Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for Bernard and Mary Verdon, respondents.
FRIEDMAN, J.P., RENWICK, FREEDMAN, FEINMAN, JJ.
Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered January 22, 2013, which, to the extent appealed from, granted plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim, denied third-party defendants' and second third-party defendant's motions for summary judgment dismissing the third-party and second third-party complaints, unanimously modified, on the law, to grant third-party defendants' and second third-party defendant's motions, and otherwise affirmed, without costs. The Clerk is directed to enter judgment dismissing the third-party and second third-party complaints.
Plaintiff testified that he was injured when the guardrail on the trailing platform on which he was working broke and he fell 14 feet and landed on rebar. This evidence establishes prima facie a violation of Labor Law § 240(1), since the protective device, i.e., the guardrail, “ ‘proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person’ ” ( see Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 604, 895 N.Y.S.2d 279, 922 N.E.2d 865 [2009] [emphasis deleted], quoting Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82 [1993] ). Plaintiff was not required to prove that the guardrail was defective ( see Hamill v. Mutual of Am. Inv. Corp., 79 A.D.3d 478, 479, 913 N.Y.S.2d 62 [1st Dept.2010] ).
Contrary to defendants' contention, the fact that plaintiff's accident was unwitnessed presents no bar to summary judgment in his favor ( see e.g. Marrero v. 2075 Holding Co. LLC, 106 A.D.3d 408, 410, 964 N.Y.S.2d 144 [1st Dept.2013] ). The evidencein the record is sufficient to permit the conclusion that plaintiff fell from an elevated position ( cf. Manna v. New York City Hous. Auth., 215 A.D.2d 335, 627 N.Y.S.2d 43 [1st Dept.1995] [summary judgment denied to plaintiff, sole witness to accident, who testified that falling cinder block cut his head, where no broken pieces of cinder block were found at the scene]).
We reject defendants' argument that the independent intervening act of the contact between the skip box and the mid-rail was a superseding cause that relieves them of liability (Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 562, 606 N.Y.S.2d 127, 626 N.E.2d 912 [1993] ). It was foreseeable that the skip box would strike the wooden mid-rail as it was hoisted by a crane and moved on and off the trailing platform ( see Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666 [1980]; see Harris v. 170 E. End Ave., LLC, 71 A.D.3d 408, 896 N.Y.S.2d 51 [1st Dept.2010], lv. dismissed15 N.Y.3d 911, 913 N.Y.S.2d 124, 939 N.E.2d 141 [2010] ).
Third-party and second third-party defendants (the lumber suppliers) showed that the circumstantial evidence through which defendants sought to prove the identity of the supplier of the lumber used to construct the guardrail was insufficient to establish a “reasonable probability” that one of them was the supplier ( see Healey v. Firestone Tire & Rubber Co., 87 N.Y.2d 596, 603, 640 N.Y.S.2d 860, 663 N.E.2d 901 [1996] ). The evidence establishes that the lumber received at the construction site from each of the lumber suppliers was not stored separately and that the lumber used to build the guardrails on the trailing platform was taken from stockpiles of lumber that were not designated by the supplier. Moreover, while certain markings on the broken lumber would have made identification of the particular supplier possible, defendants apparently discarded the broken lumber before the suppliers were able to inspect it, and the photographs taken of the broken lumber immediately after the accident do not reveal discernible markings. Defendants failed to raise an issue of fact in opposition, since their evidence establishes only that the 2 x 4 lumber used at the construction site was obtained from all three lumber suppliers.
U.S. Lumber's fact-based argument that defendants should be sanctioned for failing to preserve the lumber so the parties could inspect it is unpreserved ( see Ervin v. Consolidated Edison of N.Y., 93 A.D.3d 485, 940 N.Y.S.2d 223 [1st Dept.2012] ).
We have considered the parties' remaining arguments for affirmative relief and find them unavailing.