Opinion
Index No. 500777/2021 Motion Cal. Nos. 55 56 Mot. Seq. Nos. 2 3
03-01-2024
ASIM ZAMMETT, Plaintiff v. BLACK LARK ENTERPRISES LLC, Defendant,
Unpublished Opinion
Motion Date: 11/8/2023
DECISION AND ORDER
Richard J. Montelione Judge
The following papers were read On this motion pursuant to CPLR2219(a):
Papers
Numbered
Plaintiffs Motion for Summary Judgment, Attorney Affirmation in Support of Motion for Summary Judgment affirmed by Timothy Norton, Esq, filed on June 26, 2023, Exhibits............
36, 38-45
Defendant's Cross-Motion for Summary Judgment, Attorney Affirmation in Opposition to Motion and in Support of Cross-Motion affirmed by Adam C. Guzik on August 23, 2023.............
47,48
Plaintiffs Attorney Affirmation in Opposition to Cross-Motion affirmed by Timothy Norton, Esq. filed on October 30, 2023, Plaintiffs Reply Affirmation affirmed by Timothy Norton, Esq. filed on October 30, 2023........
52, 54
Defendant's Reply Affirmation affirmed by Adma C. Guzik, Esq. on November 7, 2023............
55
This is an action for personal injuries, brought under common law negligence, Labor Law §'§ 200, 240(1), and 241 (6), Asim Zammett ("plaintiff') was an electrician employed by non-party Ultimate Electrical Corp. On September 18, 2019, plaintiff was working in the premises located at 450 West IS11' Street, New York, NY, installing electrical conduit and wiring for lighting in an elevator pit Black Lark Enterprises LLC ("defendant") is the -'owner of 450 West 15th Street,. New York, NY. The elevator pit was a 10 foot by 10-foot room with mechanical pull chains and other elevator machinery. The pathway to traverse the area was two to three feet wide. Plaintiff was injured when his left ring finger was caught in a chain attached to elevator machinery, at the end of the workday. On the date of the accident, at least one of the. elevators was running the entire day. It is uncontroverted that there was no solid partition, wire meshing, or other barrier placed between plaintiff and the pull chain and other elevator machinery at the time of the accident.
This action was commenced by plaintiff filing a verified summons and complaint on January 11, 2021. Issue was joined by defendant interposing an answer on February 17, 2021. Plaintiff moves for summary judgment on his Labor Law § 241(6) and Labor Law § 200 claims, pursuant to CPLR 3212 and to dismiss defendant's affirmative defenses sounding in comparative fault (MS #2). Defendant cross-moves for summary judgment in its favor, against plaintiff, pursuant to CPLR 3212 (MS #3).
A motion for summary judgment will be granted if, upon all the papers and proof submitted, the cause of action or defense is established sufficiently to warrant directing judgment in favor of any party as a matter of law, CPLR 3212 (b); Gilbert Frank Gorp, v. Federal Ins. Co., 70 N.Y.2d 966, 967 (1988);: Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (.1980). On such a motion, the evidence will be construed in a light most favorable to the party against whom summary judgment is sought. Spinelli v. Procassini, 258 A.D,2d 577 (2d Dep't 1999); Tassone v. Johannemann, 232 A.D.2d 627, 628 (2d Dep't 1996); Weiss, v. Garfield, 21 A.D.2d 156, 158 (3d Dep't 1964). The movant must therefore offer sufficient evidence in admissible form to eliminate all material questions of fact. Alvarez v. Prospect Hosp, 68 N.Y.2d 320 (1986); Zuckerman v. City of New York, supra at 562; Friends of Animals, Inc. v. Associated Fur Mfrs, Inc., 46 N.Y.2d 1065 (1979).
"Labor Law § 200 is a codification of the common-law duty of owners, contractors, and their agents to provide workers with a safe place to work." Doto v. Astoria Energy II, LLC, 129 A.D.3d 660, 663 (2d Dep't 2015). "Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a worksite, and those involving the manner in which the work is performed." Ortega v. Puccia, 57 A.D.3d 54, 61 (2d Dep't 2008). When a claim arises out of alleged defects or dangers involving the manner in which the work Was performed, an owner or general contractor Will be held liable under Labor Law § 200 only if it possessed the authority to supervise or Control the means and methods of the work." Reyes v. Sligo Construction Corp., 214 A.D.3d 1014, 1017 (2d Dep't 2023). "A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed." Ortega-at 62, In contrast, where the "complaint contains allegations of dangerous or defective conditions at the worksite... those in control of the property will be liable if they either created a dangerous or defective condition, or had actual or constructive notice of such a condition without remedying it Within a reasonable time." Nusio v. Legend Autorama, Ltd., 219 A.D.3d 842, 844 (2d Dep't 2023).
Plaintiffs affirmation in support indicates his theory of liability sounds in a dangerous condition. NYSCEF #38. Assuming the running elevator constitutes a dangerous condition under Labor Law 200, it is unclear which entity had control over the operation of the elevator. Defendant submits the Property Management Agreement between defendant and the non-party property managing entity Jamestown Commercial Management. The agreement is not authenticated. Even if the court considers the agreement, the agreement does not address which entity is responsible for the day-to-day operation of the elevator, and which entity is responsible for powering the elevator down.
Plaintiff further alleges that defendant had actual notice of the running elevator. Specifically, plaintiff argues that defendant had notice of the operable elevator through Fernando Zambrano, a maintenance worker for the entity that manages defendant's building. When asked if working in the elevator pit while the elevator was running was dangerous, Zebrano testified "I can say yes, I mean, not really if you know what you are doing. If you stay away from the cables and other stuff you are good;" Zambrano Deposition, NYSCEF # 45, p. 59. Zambrano also testified that "[e]veryone knew the elevator is on. Even [plaintiff and his coworker] know before they go inside. You Can see the elevator running." Id.-at 51-52. "[K]nowledge acquired by an agent acting within the scope of his or her agency is imputed to the principal and the latter is bound by that knowledge even if the information is never actually communicated," Christopher S. v. Doaglaston Club, 275 A.D.2d 768, 769 (2d Dep't 2000).
Defendant contends that it had no control over the premises and did hot create the condition that caused plaintiffs accident. Elyse Santic, defendant's Real Estate Project executive, testified at her deposition that a non-:party management entity, Jamestown Commercial Management hired Ultimate Electrical Corp. to perform the work. NYS.CEF#43, p. 14. Additionally defendant submits the Property Management Agreement between defendant and the non-party property managing entity Jamestown Commercial Management, The agreement is not authenticated. Santic also testified that defendant's "management team" was responsible for the maintenance of the elevators and the elevator pit of defendant's building. NYSCEF#45p. 14, 15. Assuming non-party Jamestown Commercial Management was responsible for maintaining the elevator in question, the defendant has not demonstrated that Jamestown Commercial Management assumed a duty of care and stands in place of the defendant owner for the purpose of liability. See Martinelli v. Dublin Deck, Inc.,, 198 A.D.3d 635, 637 (2d Dep't 2021), holding a party mat enter a contract to render services absolves the owner of liability only where "(1) the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm, (2) the plaintiff detrimentally relies on the continued performance of the contracting party's duties, or (3) the contracting party has entirely displaced the other party's duty to maintain the premises safely,"
Defendant further argues that plaintiff cannot recover from this accident, because: the running elevator that injured him constitutes an open and obvious condition. However, "[t]he fact that a defect may be open and obvious does not negate a landowner's duty to maintain its premises in a reasonably safe condition, hut may raise an issue of fact as to the plaintiffs comparative negligence." Ruiz v. Hart Elm Corp., 44 AD.3d 842, 843 (2d Dep't 2007). "The issue of whether a dangerous condition is open and obvious is fact specific, and thus usually a question for the jury." Id. Accordingly, even if the Operating elevator was an open and obvious condition, plaintiff may still recover from his injuries. Summary judgment on the issue Of Labor Law § 200 liability is therefore granted in plaintiff s favor.
"Labor Law § 241(6) places on owners, contractors, and their agents a nondelegable duty to keep areas in which construction work is being performed safe for those employed at such places." Kavouras v. Steel-More Contracting Corp., 192 A.D.3d 782, 784 (2d Dep't 2021);quoting Everitt v. Nozkowski, 285 A.D.2d 442, 443 (2d Dep't 2001). "As a predicate to a [Labor Law §] 241(6) cause of action, a plaintiff must allege a violation of a concrete specification promulgated by the Commissioner of the Department of Labor in the Industrial Code." Perez v. 286 Scholes St. Corp., 134 A.D.3d 1085, 1086(2d Dep't 2015). In the present case, plaintiff alleges a violation of 12 NYCRR 23-2.5(b)(3), which states "[w]here any elevator is being: installed, repaired or replaced and persons are working in the shaft, a solid or wire mesh partition shall be provided where necessary to prevent such persons from contacting any adjacent operable elevator or counterweight." In Brownrigg v New York City Hous. Auth, 119 A.D.3d 504 (2d Dep't 2014), the Appellate Division, Second Department held that 12 NYCRR 23-2.5(b)(3) was sufficient to predicate a Labor Law § 241(6) violation, where an elevator mechanic who was working in an elevator shaft was struck in his eye by a falling tool and there was no barrier placed between the elevator mechanic and an elevator that remained operating. It is uncontroverted that while the plaintiff in the present case was working, there was no solid or Wire mesh partition between him and the running elevator.
In opposition to plaintiffs motion, defendant attempts to draw a distinction between an elevator shaft as envisioned by the Industrial Code provision, and the elevator pit where plaintiff was injured. This is a distinction with no difference. In Yaeger v. New York Tel. Co., 148 A.D.2d 308, 309 (1st Dep't 1989), the Appellate Division, First Department described the location of a plaintiff as "at the bottom of the elevator shaft, known as the; 'pit.'" In Matter of Rathscheck v. Brass Rail, Inc., 275 A.D. 882 (1949), the Third Department described a decedent as "lying in the pit of the shaft" when "the elevator door was found open." The McGraw-Hill Dictionary of Architecture and Construction (2003) defines an elevator pit as "[t]hat portion of an elevator shaft or hpistway extending below the level of the bottom landing saddle to provide for bottom over travel and clearance, and for elevator parts that require space below the bottom limit of car travel." Retrieved February 28, 2024 from https://ency.clopedia2;thefreedictionaiy.com/elevator+pit. Moreover, "[t]he Industrial Code should be sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against hazards in the workplace." Bazdaric v. Almah Partners LLC- N.E3d-,2024 WL 674245 (2024) quoting St. Louis v. Town of N: Elba, 16 N.Y.3d 411,416 (2011). The court finds that the elevator pit where the accident occurred is part; of the elevator shaft and is covered by 12 N.Y.C.R.R. 23-2.5(b)(3). Summary judgment on the issue of liability under Labor Law § 241(6) is accordingly granted to plaintiff.
Plaintiff moves to strike defendant's affirmative defenses: sounding in comparative fault. In defendant's answer, defendant's second affirmative defense alleges "all risks, hazards* defects or dangers alleged were open, obvious and apparent, natural and inherent and known, or should have been known to plaintiff herein, and plaintiff voluntarily assumed all such risks, hazards, defects and dangers." "Comparative negligence is a viable defense to a cause of action asserted under either Labor Law §§ 200 or 241(6)." Drago v. New York City Transit Authority, 221 A.D.2d 372 (2d Dep't 1996). Whether a defect or condition is open and obvious, constitutes an issue of fact as to the plaintiff s comparative negligence. Ruiz Supra. Additionally, the Legislature abolished assumption of the risk as an absolute defense when it adopted comparative negligence. Custodi v. Town of Amherst, 20 N.Y.3d 83, 87 (2012); CPLR 1411. The defense of assumption of the risks survives as subsumed within comparative negligence. Bouima v. Dacomi, Inc., 28 Misc.3d65, 70 (Appellate Term, Kings County 2010); Vartabedian v. Hospital for Special Surgery, P.H.O., Inc, 292 A.D.2d 520, 521 (2d Dep't 2002). In the case at bar, defendant submitted evidence that plaintiff may have known the elevator machinery which allegedly injured plaintiff was operating at the time of the accident. Accordingly, the branch of plaintiffs motion to strike affirmative defenses sounding in comparative negligence is denied. For the forgoing reason it is hereby
ORDERED that plaintiffs motion (MS #2) is GRANTED TO THE EXTENT that summary judgment is granted to plaintiff of the issue of Labor Law §§ 200 and 241(6) liability, and denied in all other respects; and it is further
ORDERED that defendant's cross-motion (MS #3) for summary judgment is DENIED in its entirety; and it is further
ORDERED that all other requests for relief are DENIED.
This constitutes the decision and order of the court.