Aguilar v New York City Hous. Auth.

[*1] Aguilar v New York City Hous. Auth. 2005 NY Slip Op 51025(U) Decided on May 17, 2005 Supreme Court, New York County Acosta, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 17, 2005
Supreme Court, New York County

Walter Aguilar, Plaintiff,

against

New York City Housing Authority, KOMI Construction, Inc., and ACE Scaffolding Co., Inc., Defendants



101348/03



Edward D. Tantleff, Esq.

Tantleff, Cohen & Tantleff, P.C.

188 Montague Street, 10th Floor

Brooklyn, NY 11201

Attorneys for Plaintiff

Deborah Del Sordo, Esq.

Ahmuty, Demers & McManus, Esqs.

200 I.U. Willets Road

Albertson, NY 11507

Attorneys for NYCHA

Heidi M. Weiss, Esq.

Fiedelman Garfinkel & Lesman

110 Williams Street

New York, NY 10038

Attorneys for KOMI

Susan A. Romano, Esq.

Joseph A. French & Associates, PLLC

20 Exchange Place

New York, NY 10005

Attorneys for ACE

Rolando T. Acosta, J.

This case stems from injuries plaintiff sustained on July 18, 2002, at approximately 10:00 a.m., when he fell off a sidewalk shed when his feet became entangled in the pressurized hose he was using to hose down the shed. The building, at 620 East 6th Street in New York County, is owned by the New York City Housing Authority (NYCHA). KOMI Construction, Inc., is the General Contractor (KOMI), ACE Scaffolding, Co., Inc. (ACE), constructed the shed, and R.Z. Construction Corp. (R.Z.) was the subcontractor hired by KOMI to do masonry work; plaintiff was employed by R.Z.

The shed had a four foot high parapet wall throughout most of the perimeter of the shed not abutting the building. According to John Valerio, an engineer hired by KOMI, the wall was [*2]designed to protect pedestrians from falling debris. There was a 32 foot long section of the shed that did not have a parapet wall because, according to Valerio, it was not required under OSHA regulations since the section was in an area where pedestrians did not have access.

Plaintiff asserts that if there had there been a wall on the edge of the shed at the site of the accident, he would not have fallen. In addition, he testified at his deposition that there were no safety lines, ropes, harnesses, or any other safety devices to protect him from falling.

Valerio, on the other hand, testified, that there were in fact safety lines attached to the suspended scaffolding, and that KOMI made harnesses and lanyards available to all employees including the subcontractor's employees. Specifically, upon examining a photograph (previously marked as respondent's exhibit A from a deposition taken on December 11, 2002), he stated that there were lifelines attached to the suspended scaffold (Valerio Deposition at p. 34). "Those were the lifelines that are secured to the workers. So if they work at any elevation on the building, they are always hooked up to that lifeline" (Valerio Deposition at p. 34).

Valerio also testified that cleaning of the shed was not to be done in the morning because work was being performed using the hanging scaffold. Workers were not supposed to be under the hanging scaffold (Valerio Deposition at p. 48). Valerio would hold weekly safety meetings where he would tell both KOMI and KOMI's subcontractor employees to "stay off the bridge while work was in progress" (Valerio Deposition at p.48-49). "I covered as much as I could [at the meetings], and I am sure that came up at least in a few meetings" (Valerio Deposition at p.49).

At these weekly meetings, Valerio also told the workers that whenever they are on the platform, they need to be connected to a safety line (Valerio Deposition at p. 49). The workers were instructed to use the lines, "[t]hey are certified to work on the platforms and they know how to use them." (Valerio Deposition at p. 49). By platforms, it is clear that Valerio was referring to the hanging scaffold. When specifically asked whether the life lines could have been used by someone working on the shed, Valerio responded, "No" (Valerio Deposition at p. 57). When asked to explain, he stated: A.Because you have to wear a harness with a lanyard that gets hooked up to the life line and you only use that when you do exterior work on the platform. You wouldn't do that - - you shouldn't be on the sidewalk shed wearing that, but OSHA said if you are able to fall six feet or more, you have to be harnessed, lanyard, lifeline.Q.If someone was working on the sidewalk bridge in the area of this open area, would they have used those lifelines to prevent a fall of six feet or more?A.Two things, he wasn't supposed to be working under the suspended platform, but if he was, he needed another line because each worker had to have their own line. You couldn't share one of the other worker's lines.

Q.Was . . . [plaintiff] wearing a harness . . . on the day that he was working? [*3]

A.Not that I know off.

Q.What kind of harnesses were used at that site?

A.[KOMI] supplies all of the equipment to their workers.

Q.During your meetings, were workers instructed that if they were going to work in an area where the fall was more than six feet that they should be using safety lines and harnesses?

A.Maybe the number didn't come up, but for any height they would have to where something.

Q.So workers were told to wear lifelines if there was a risk of a fall?

A.Yes. There were meetings, like I said, every week, very repetitive. If I didn't mention it, I had to have mentioned it a handful of times over the course of two years at that time or a year and a half, whatever it was.

(Valerio Deposition at p. 57-58).

Q.Do you know if [plaintiff] had a certification by New York City to operate the scaffolding.

A.I didn't know if he was certified or not. I didn't know if he was supposed to be on the scaffold. He should have been certified if he was on the scaffold.

* **

Q.Did you ever observe [plaintiff] present at any of your site safety meetings?

A.He would have been.

Q.Do you have a specific recollection today if he was present?

A.No. I still don't know what he looks like.

(Valerio Deposition at p. 62).

George Moniaros, KOMI's Corporate Secretary, testified at his deposition that subcontractors were obligated under contract to use safety means, including harnesses, and that the subcontractor's workers used safety belts (Moniaros Deposition at p. 79).

Plaintiff's Motion for Summary Judgment on his Labor Law § 240(1) claim. [*4]

New York Labor Law § 240(1) affords protection to construction site workers who are exposed to elevation hazards. See generally, Blake v. Neighborhood Housing Services of New York City, Inc., 1 NY3d 280, 287-290 (2003)(liability under § 240(1) is contingent on a statutory violation and proximate cause). Specifically, § 240(1) provides that: All contractors, 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, hoist, 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.

The statute places the ultimate responsibility for work-site safety practices upon the the owner and general contractor, and imposes strict liability for their failure to furnish, erect and insure the operation of safety devices necessary to give protection to the worker against the hazards of his work. Bland v. Manocherian, 66 NY2d 452 (1985); Zimmer v. Chemung County Performing Arts, 65 NY2d 513 (1985). Liability is imposed regardless of the degree of control the contractor and the owner may have over the work performed, Haimes v. New York Telephone, 46 NY2d 132, 136-37 (1978), and irrespective of the injured party's own contributory or comparative negligence or assumption of risk. Brown v. Two Exchange Plaza Partners, 76 NY2d 172 (1990). Where the devices as placed and constructed are inadequate to the task, liability is mandated as a matter of law, provided that the injured party establishes that the statutory violation "was a contributing cause of his fall." Blake v. Neighborhood Housing Services of New York City, Inc., supra, 1 NY3d at 287, citing Duda v. Rouse Contr. Corp, 32 NY2d 405, 410 (1973).

In Cahill v. Triboro Bridge and Tunnel Authority, 4 NY3d 35, 37 (2004), the Court of Appeals held that, "where an employer has made available adequate safety devices and an employee has been instructed to use them, the employee may not recover under Labor Law § 240(1) for injuries caused solely by his violation of those instructions, even though the instructions were given several weeks before the accident occurred." As the Appellate Division, Second Department, recently stated in Palacios v. Lake Carmel Fire Department, Inc., 15 AD3d 461(2nd Dept. 2005), '[h]owever, it is not enough to defeat liability to show "the mere presence of alleged safety devices somewhere on the job site . . ., nor the mere fact that generalized safety instructions were given at some point in the past." Thus, in Cahill, the owner was able to defeat a motion for summary judgment where the employee had received specific instructions to use a safety line and chose to disregard the instructions. Cahill v. Triboro Bridge and Tunnel Authority, supra, 4 NY3d at 39. Likewise, in Palacios, the defendant's proof consisted of deposition testimony that the plaintiff was instructed to use a scaffold rather than a ladder, that he had in fact used the scaffold on a prior occasion to perform the same work on a different section of the building, and that the scaffold was readily available to him. Palacios v. Lake Carmel Fire Department, Inc., supra, 15 AD3d 463.

Here, plaintiff established his prima facie entitlement to summary judgment under Labor Law § 240(1) by showing that he fell from an unsecured shed while engaged in a work-related activity at the elevated work site. Accepting the version of facts most favorable to NYCHA and KOMI, Cahill v. Triboro Bridge and Tunnel Authority, supra, 4 NY3d at 37, defendants have failed raised a triable issue of fact regarding the availability of adequate safety devices. [*5]

At best, defendant have established that safety lines were provided for the workers working on the hanging scaffold. Plaintiff, however, was working on the shed. When specifically asked whether the safety lines in place were adequate protection for a person working on the shed, Valerio stated "No." Indeed, according to Valerio, no one should have been on the shed during the morning while the hanging scaffold were being used because, among other reasons, workers were not allowed to share a life line. Valerio's testimony was supported by Joseph Paladino, ACE's supervisor, who testified that the shed was not built to provide fall protection (Paladino's Deposition at p. 27, Plaintiff's Exhibit J). It also undisputed that the accident occurred at approximately 10:00 a.m., while other workers were on the hanging scaffold doing brick work (see Plaintiff's Affirmation at p. 2).

Defendants also failed to establish that plaintiff was actually instructed and trained on the proper use of harnesses, lanyards and life lines. At most, Valerio could testified that he discussed the importance of using safety lines a "hand full" of times during the course of a year and a half, and that although he assumed that plaintiff was present, he did not know that for sure. In fact, he did not even know what plaintiff looked like.

These facts, unlike the facts in Cahill and Palacios, are insufficient to raise a triable issue of fact as to whether there were adequate life lines available to plaintiff and whether he was trained on how to use a life line but chose to go with out it instead. Indeed, contrary to defendant's assertions, the facts in this case are nothing like Cahill. The Court in Cahill wisely prevented a recalcitrant worker from availing himself of the strict liability nature of Labor Law § 240(1) claims. In this case, however, there is absolutely nothing in the record before this Court to suggest that plaintiff was even remotely recalcitrant.

Defendants' claim that summary judgment should not be granted because of conflicting theories on how the accident took place has no merit. Basically, plaintiff testified that he fell backwards when he got tangled on a pressurized hose. Valerio's double hearsay version that someone told him that a another person saw plaintiff drinking water off the hose and fell as a result thereof is not evidence in admissible form. Accordingly, plaintiff's motion for summary judgment on his Labor Law § 240(1) claim is GRANTED.

NYCHA'S Cross-Motion for an Order Dismissing the Negligence and Labor Law §§ 200 and 241(6) Claims and Granting Contractual Indemnification Against KOMI and ACE, and Common Law Indemnification as Against KOMI.

Negligence, and Labor Law §§ 200 & 241(6) Claims

NYCHA's motion to dismiss plaintiff's Negligence and Labor Law § 200 claim is granted inasmuch as there is no indication in the record that NYCHA was negligent.That part of the motion seeking to dismiss plaintiff's Labor Law § 241(6) claim, however, is DENIED since there are issues of fact as to whether specific Industrial Code sections were violated. Ross v. Cutis-Palmer Hydro-Electric Co., 81 NY2d 494 (1993). Here, at the very least, there are issues of fact as to whether 12 NY ADC 23-1.16, entitled "[s]afety belts, harnesses, tail lines and lifelines," was violated.

Indemnification Against KOMI and ACE

Since NYCHA's liability is premised on Labor Law § 240(1), it is entitled to contractual [*6]indemnification from KOMI and ACE. Santos v. Bre/Swiss, LLC, 9 AD3d 303 (1st Dept. 2004)(in the absence of any proof that the defendant/owner was negligent, "the court should have granted it summary judgment on its claim of contractual indemnification against [its general contractor]"). The issue of common law indemnification is premature at this juncture inasmuch as there are issue of fact as to whether KOMI was actually negligent or whether it had the authority to direct, supervise or control the work giving rise to the injury. Hernandez v. Two East End Avenue Apartment Cooperation, 303 AD2d 556 (2nd Dept. 2003).

ACE's Motion for Summary Judgment Dismissing the Complaint and all Cross-Claims Against ACE.

ACE's motion for summary judgment is DENIED inasmuch as there are triable issues of fact as to whether the shed was properly constructed. Although ACE claims that it built the shed in conformance with the plans provided by KOMI's engineer, an inspection of those plans indicate that the parapet wall was to be constructed on the edge of the shed not abutting the building. Moreover, regardless of what the plans called for, the subcontract between ACE and KOMI provided under paragraph VI that: [a]ll work, labor, services and materials to be furnished, supplied or performed by [ACE] must strictly comply with all Federal, State, Local Municipal, as well as any and all other governing jurisdictions' and authorities' Laws, Rules, Regulations, Statutes, Ordinances, and Directives (hereinafter designated "Laws"). . . . If the subcontractor discovers or should have discovered any variances between the Contract and any governing Laws or legislation, [ACE] shall be responsible to promptly notify the [KOMI], in writing, and to make the necessary changes before proceeding with its work.

As plaintiff notes, there are issues of fact as to whether the plans were in violation of 12 NYCRR 23-5.1(j), which provides for safety railings.

Accordingly, ACE's motion is DENIED.

This constitutes the Decision, Judgment and Order of the Court.

Dated: May 17, 2005______________________________

Rolando T. Acosta, J.S.C.

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