Armentano v Broadway Mall Props., Inc.
Annotate this CaseDecided on April 13, 2005
Supreme Court, Nassau County
John Armentano and ARLENE ARMENTANO, Plaintiff,
against
Broadway Mall Properties, Inc., GENERAL GROWTH MANAGEMENT, INC., LEHRER, McGOVERN, BOVIS, INC., and J.C. PENNY COMPANY, INC., Defendants. BROADWAY MALL PROPERTIES, INC. and GENERAL GROWTH MANAGEMENT, INC., Third-Party Plaintiffs, CCM, INC., and GARITO CONTRACTING, INC., Third-Party Defendants.
15126/2001
Burton S. Joseph, J.
Motion (seq. no. 2) by the attorney for the plaintiff for an Order pursuant to CPLR 3212 and Labor Law 240 granting plaintiff summary judgment on the issue of liability is granted. Cross-motion (seq. no. 3) by attorney for the third-party defendant Garito Contracting Inc. ("Garito") for an Order pursuant to CPLR granting Garito summary judgment and dismissing the third-party complaint of the third-party plaintiff, Broadway Mall and General Growth Management, Inc. as against Garito in its entirety and all cross-claims is denied. Cross-motion (seq. no. 4) by the attorney for the plaintiff for an Order pursuant to CPLR 3025 granting plaintiff leave to amend the complaint to include the third-party defendants as first-party defendants in the main action is granted. Cross-motion (seq. no. 5) by the attorney for Bovis Lend Lease LMB, Inc. for an Order granting Bovis leave to serve a cross-claim against third-party defendants CCM, Inc. and Garito Contracting, Inc. is granted.
This is an action based on Labor Law 240 to recover damages for alleged serious personal injuries sustained by the plaintiff. The summons and verified complaint were served upon all defendants on January 25, 2002. An Answer was interposed by defendant, J.C. Penney Company, Inc. ("Penney") dated February 15, 2002. An Answer was interposed by defendants Broadway Mall, Inc. ("Broadway") and General Growth Management, Inc. ("General Growth") dated March 5, 2002. An Answer was interposed by defendant, Lehrer, McGovern, Bovis, Inc., n/k/a Bovis Lend Lease LMB, Inc. ("Bovis") dated March 26, 2002. A third-party action was commenced by defendants Broadway and General Growth dated July 8, 2003. An Answer was interposed by third-party defendant CCM, Inc. ("CCM") dated November 3, 2003, and an Amended Answer was interposed dated November 4, 2003. An Answer was interposed by third-party defendant Garito Contracting, Inc. ("Garito") dated November 4, 2003.
Defendant Broadway was the owner of property in Hicksville, New York, commonly known as the Broadway Mall. In February, 1988, defendant Broadway entered into an agreement with defendant General Growth wherein General Growth was to manage the addition (construction and development) of a J.C. Penney Department Store to Broadway Mall. Pursuant to the terms of the agreement, defendant General Growth was not retained as Contractor for the project, but "to plan, arrange, administer, coordinate and monitor on behalf of Owner all design, development and construction services for the Project." Defendant General Growth retained the services of third-party defendant CCM by agreement dated September 28, 1998 to provide an on-site project manager, Robert Transom, to supervise and coordinate on behalf of the managing agent (General Growth) and owner (Broadway). Under the terms of the September 28, 1998 agreement, Mr. Transom was to "advise and coordinate any differences in conditions [in relation to the plans and specifications] and resolve same in accordance with [General Growth's] and [Broadway's] policy." Defendant Bovis was retained as the contractor for the project. A contract dated December 8, 1998 was entered between defendant Broadway as Owner and Contract ("General Contract"). Although the General Contract is dated after the accident date, date of commencement and actual work on the project (the demolition phase) had started earlier and was ongoing at the time of the accident.
On November 13, 1998 plaintiff John Armentano, a union carpenter, was working [*2]for PAZ Interiors, Inc. at the Broadway Mall. Robert Transom arranged for PAZ Interiors, Inc. to perform work to protect the mall from water damage and heat loss from duct work and a cat walk that were left open as a result of demolition work under the project. The arrangement was made under Field Change Order number 011 within the scope of the General Contract to protect the premises from impending weather.
It is alleged that while John Armentano was performing the work, it became necessary for him to utilize a piece of plywood that was at the job site for that purpose. When Mr. Armentano lifted the piece of plywood from the floor a hole in the floor that had been covered from view by the wood was exposed. Plaintiff alleges the hole was created when the barrier surrounding a defunct garbage chute was removed during demolition by third party defendant Garito. Lifting the 4X8 plywood, Mr. Armentano did not see the hole, and fell through the hole onto the concrete floor of the truck tunnel approximately 18 feet below.
Section 240 of the New York Labor Law imposes absolute liability on the defendants in this action as owners, contractors and/or agents. Section 240(1) of the Labor Law provides as follows:
§ 240. Scaffolding and other devices for use of employees
1. All contractors and owners and their agents...in the erection, demolition, repairing, altering, painting, cleaning or pointing 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.
Absolute liability is imposed for a breach of Section 240(1) which proximately causes an injury. Rocovich v. Consolidated Edison Co., 78 NY2d 509. Labor Law 240(1) applies to the special hazards of gravity-related accidents in connection with elevation differentials such as falling from a height. Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494. Additionally, absolute liability is imposed when there is a failure to provide any safety devices for workers at a worksite, and the absence of such devices is the proximate cause of injury to a worker. Zimmer v. Chemung County Performing Arts, Inc., 65 NY2d 513; Blake v. Neighborhood Housing Services of New York, 1 NY3d 280. It is not disputed that the work performed that created the hole was demolition, and the work being performed at the time of the accident was erection of weather protection.
The New York State Code of Rules and Regulations which governs the requirements for protection at work sites, (12 NYCRR 23-1.7(b)) provides as follows:
Falling hazards.
(1) Hazardous openings.
(i) Every hazardous opening into which a person may step or fall shall be guarded by a substantial [*3]cover fastened in place or by safety railing constructed and installed in compliance with this Part (rule).
(ii) Where free access into such an opening is required by work in progress, a barrier or safety railing constructed and installed in compliance with this Part (rule) shall guard such opening and the means of free access to the opening shall be a substantial gate. Such gate shall swing in a direction away from the opening and shall be kept latched except for entry and exit. (iii) Where employees are required to work close to the edge of such an opening, such employees shall be protected as follows: (a) Two-inch planking, full size, or material of equivalent strength installed not more than one floor or 15 feet, whichever is less, beneath the opening, or (b) An approved life net installed not more than five feet beneath the opening; or ( c) An approved safety belt with attached lifeline which is properly secured to a substantial fixed anchorage.
Federal Law (OSHA) (29C.F.R. Sec. 1926.502(i)) provides the same protection as
state codes.
Holes. (i) Each employee on walking/working surfaces shall be protected from falling through holes more than 6 feet above lower levels, by personal fall arrest systems, covers, or guardrail systems erected around such holes. 29 C.F.R. Sec. 1926.501(b)(4).
Covers. (3) All shall be secured when installed so as to prevent accidental displacement by the wind, equipment, or employees. (4) All covers shall be color coded or they shall be marked with the word "HOLE" or "COVER" to provide warning of the hazard.
If a provided safety device is placed in such a fashion that there is a reasonably foreseeable risk of failure, a violation of Labor Law Sec.240 has been established as a matter of [*4]law. Quinlan v. Eastern Refractories Co., 217 AD2d 819. In the within action there is clearly a reasonably foreseeable risk that the plywood would be moved leaving the hole unprotected. The wood was unmarked, not secured to the ground in any way and, notably, the plaintiff was directed to utilize it for his construction material. The wood was one of many scattered pieces of debris in the area, and, as such, was not distinguishable as "protection" as opposed to any other piece of material or debris. Accordingly, it was reasonably foreseeable that the plywood would not provide proper protection.
Defendants argument that plaintiff has failed to establish that his own actions were not the sole proximate cause of the accident is without merit. In order to avoid Labor Law Section 240 liability on this ground, the defendants must show that there was absolutely no statutory violation. If a statutory violation is a proximate cause for the injury, the plaintiff cannot be solely to blame for it. Blake v Neighborhood Housing Services, 1 NY3d 280. Once it is determined that the owner or contractor failed to provide the necessary safety devices required to give a worker "proper protection", absolute liability is "unavoidable" under Labor Law 240. Bland v. Manocherian, 66 NY2d 452. The statute is one for the protection of workers from injury and is to be construed as liberally as may be for the accomplishment of the purpose for which it was framed. Blake at 282, citing Quigley v. Thatcher, 207 NY 66, 68, 100 N.E. 596, 3 Bradb. 251 (1912). It is undisputed that the plywood was not marked in any way and was not affixed to the floor. The clear violations of the New York State Industrial Code (12 NYCRR 23-1.7(b)) and Federal Occupational Safety & Health Administration regulations (29 C.F.R. §§1926.501(b)(4) and 1926.502(i) are indisputable evidence establishing negligence on the part of defendants. Once any negligence is established against defendants, it cannot be established that plaintiff is solely responsible. Blake, supra.
In addition to being in violation of the State Industrial Code and OSHA, the unmarked, unsecured cover violated accepted practice in the industry. Defendant Bovis (Fico transcript, page 34), defendant CCM (Transom transcript, page 46) and the plaintiff (Armentano transcript, page 104) all agree that proper hole protection is accomplished by affixing plywood to the floor and marking the plywood with bright paint with the word "HOLE." This obviously was not done in this case. See also, Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494.
The defendants failed to submit any evidence suggesting that plaintiff's own conduct was the sole proximate cause of the accident. The conclusory allegations by counsel in their affirmations are not sufficient to defeat summary judgment. In the absence of evidence that plaintiff was the sole proximate cause of the accident, summary judgment on liability in favor of the plaintiff is appropriate under Labor Law Section 240. Smith v. Pergament Enterprises of Staten Island, 271 AD2d 870; Sinzieri v. Expositions, Inc., 270 AD2d 332.
Defendants assert that summary judgment cannot be granted since plaintiff was the only witness to the accident. The fact that an accident is unwitnessed does not preclude summary judgment. Niles v. Shue Roofing Co., 219 AD2d 785. Once a plaintiff establishes a prima facie case (as has been shown herein) to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact. Zuckerman v. City of New York, 49 NY2d 557. If the defendant fails to set forth a conflicting theory of how the accident occurred with supporting evidentiary materials, other than mere speculation, summary judgment must be granted. Wasilewski v. Museum of Modern Art, 260 AD2d 271. Offering no [*5]more than mere speculation and the bare hope that defendant will be able to undermine the plaintiff's credibility at trial on cross-examination is insufficient to defeat summary judgment. Angeles v. Goldhirsch, 268 AD2d 217. In the within action there is no evidence which controverts plaintiff's testimony as to how the accident occurred. All the evidence in the case supports Mr. Armentano's description of the accident. There is substantial independent evidence that an accident occurred, including testimony of defendants who were eye-witnesses immediately after the fall.
The hazardous opening was not guarded by a substantial cover fastened in place, nor was it color coded or marked in any way. The hole was not guarded by any safety railing or guardrail system. The plywood which was laying over the hole was not fastened in place, and was not marked in any way to distinguish it from other plywood scattered around the work site. Initially, the Field Change Order specifically directed Mr. Armentano to "[u]tilize Plywood scattered around the work site" to perform his work. Although Mr. Armentano was required to work close to the edge of the opening, there was not planking installed within 15 feet beneath the opening and there was no life net installed within five feet beneath the opening. Mr. Armentano was not provided with any safety belt with attached lifeline, nor any personal fall arrest system of any kind.
The defendants claim that the piece of plywood laying over the hole through which the plaintiff fell constituted "proper protection" for Labor Law purposes. There is no indication that anyone placed the plywood over the hole for protection or for any other reason. Michael Fico testified on behalf of Bovis and stated that he did not know who put the plywood over the hole. James Garito testified on behalf of Garito and stated that no safety work was performed by Garito (page 15, line 9), and that Garito did not do anything to cover the hole in question (page 23, line 23). Mr. Garito never saw any protection in the area of the hole after the surrounding garbage chute enclosure was removed by Garito. (Page 41, line 21) Robert Transom testified on behalf of CCM and stated that he does not know who put the plywood over the hole (Page 129, line 8) and that he does not know how the plywood actually got to be there (Page 55, line 9). Mr. Transom further testified that in the area "there was a lot of debris still on the floor, and, you know, it was miscellaneous sheetrock and studs from drywall, pieces of plywood that was inside of the drywall, pieces of plywood that was used in the construction of the upper barrel area of the common passageway through the common area, so there was a lot of debris still around." (Page 55, starting at line 11). Scattered plywood, a piece of which happened to conceal a dangerous hole does not constitute "proper protection" for Labor Law purposes. Not only is it not proper protection, but it served to heighten the danger by concealing the dangerous hole and creating a trap-like condition. The plywood was not marked in any way or affixed to the floor (as is mandated by NYCRR and OSHA). There was nothing that distinguished this piece of plywood from any other of the scattered pieces of plywood in the area. In addition, the plaintiff was directed to "[u]tilize Plywood scatted around the work site" to complete the work being done at the time of the accident. (Transom transcript, page 55, line 21). The opening did not become dangerous because plaintiff removed the protection.
Plaintiff's injuries were the result of the type of elevation-related risk that Labor Law 240(1) was intended to guard against. When plaintiff fell through the opening, there was no cover over the opening and no safety device was in place to protect him from the uncovered [*6]opening. These circumstances established as a matter of law that Labor Law 240(1) was violated. See, Clark v. Fox Meadows Builders, 214 AD2d 882; Justyk v. Treibacher Schleifmeifmittel Corp., 4 AD3d 882.
Plaintiff's motion for partial summary judgment only on the issue of liability is granted. The application for an immediate trail on the issue of damages is denied. There are numerous defendants in this action with complex claims sounding both in contract and common law for indemnification, contribution, and failure to procure insurance on behalf of Broadway Mall and General Growth. The issue of damages cannot be tried until the percentage of responsibility for violations of both Federal and State Laws in failing to provide safety precautions is apportioned.
Attorney for plaintiff requests leave to amend the complaint to include the third-party defendants, CCM and Garito, as first-party defendants. The original complaint was brought only against defendants Broadway Mall Properties, Inc., General Growth Management, Inc., Lehrer, McGovern, Bovis, Inc. and J.C. Penney Company, Inc.. After plaintiff made the within motion on November 13, 2004 for summary judgment against Garito, he made the cross-motion dated February 1, 2005 seeking to add Garito as a direct defendant.
At the time when this action was commenced, the plaintiff was not aware of potential claims against CCM and Garito. The plaintiff was not privy to the contract which created the agency between CCM and Broadway, and was not aware of any alleged contract between Garito and Bovis. This information came to light during the discovery process. (In fact, a written contract still has not been produced between Garito and Bovis, although the parties acknowledged their relationship during depositions.)
It is not disputed that when CCM and Garito were brought into this action as third-party defendants, they were provided with all prior pleadings and all documentary discovery. They were aware at that time of the nature of the plaintiff's claims and the potential for direct claims against them by the plaintiff. CCM and Garito took the deposition of the plaintiffs and participated in all depositions of all defendants. They participated in the exchange of all documentary evidence in this matter. There is no prejudice to any party by the Court's granting plaintiff's application to amend the complaint. On the other hand, a substantial right of the plaintiff would be unprotected if the two parties were not included as first-party defendants.
Based upon the evidence before this Court, CCM, Inc. and Garito Contracting, Inc. are united in interests with defendants Broadway, General Management and Bovis for the purposes of the alleged violations of Labor Law 240. It is the determination of this Court that the Amended Complaint relates back to the timely filing of the original Complaint with respect to the plaintiff's claims under Labor Law 240. See, CPLR 203( c) and Hemmings v. St. Marks Housing Assoc., 169 Misc 2d 155 affirmed 242 AD2d 284. The proposed Amended Complaint annexed to the moving papers is deemed served.
In addition, attorney for defendant Bovis shall have ten (10) days from today's date to serve a cross-claim against CCM, Inc. and Garito.
It is not disputed that all parties discontinued all claims and cross-claims against defendant Penney in that Penney, at the time of the accident, did not lease or own the premises and did not direct or control any work at the premises. Penney shall be deleted as a party defendant. For the reasons set forth herein the caption of the with action shall be as follows: [*7]
JOHN ARMENTANO and ARLEEN ARMENTANO,
Plaintiffs,
-against-
BROADWAY MALL PROPERTIES, INC.,
GENERAL GROWTH MANAGEMENT, INC.,
LEHRER, McGOVERN, BOVIS, INC., CCM, INC.,
and GARITO CONTRACTING, INC.,
Defendants.
The attorney for the plaintiff shall serve a copy of t his Order on all counsel.
ENTER:
Dated: Mineola, New York
April 13, 2005J.S.C.
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