Turner v ISR Solutions

[*1] Turner v ISR Solutions 2005 NY Slip Op 51302(U) Decided on August 9, 2005 Supreme Court, New York County York, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 9, 2005
Supreme Court, New York County

Sylvan Turner and Pearline Turner, Plaintiffs,

against

ISR Solutions and KW Technology Corp., Defendants.



104775/04

Louis B. York, J.

On September 22, 2003, while installing wiring for a security camera system in the Social Services Administration Building in Jamaica, New York, plaintiff Sylvan Turner ("Turner") allegedly fell from off of a defective ladder and sustained serious injuries. There were no witnesses. According to Turner, he was standing on the second rung from the top of a twelve foot aluminum A-frame ladder which lacked safety feet or any kind of an anchor; the ladder swayed and Turner toppled sixteen feet to the floor, losing consciousness. Plaintiffs allege that as a result of this fall Turner has suffered traumatic injuries.

The Verified Complaint claims a violation of Labor Law Section 200 and Section 240(1 5) and Section 241(6). The Complaint alleges that the general contractor, ISR Solutions, Inc. ("ISR") and KW Technology Corp. ("KW"), the sub-contractor who retained Turner's employer, Brown & Simpson Electrical Contracting, are strictly liable under the Labor Law based on a failure to provide adequate safety equipment. Turner's wife, Pearline Turner, alleges [*2]loss of consortium. Currently, plaintiffs move for partial summary judgment on the issue of Labor Law Section 240 liability. Defendants oppose.

DISCUSSION

Plaintiffs argue that they have made out a prima facie case under Labor Law Section 240 and therefore shifted the evidentiary burden to defendants. Plaintiffs further contend that because defendants have failed to raise a triable issue of fact, summary judgment is appropriate. Defendants respond that plaintiffs' claim is not within the orbit of Labor Law Section 240 and that, even if it is, plaintiffs' bare affidavit provides an insufficient basis for summary judgment. Defendants also argue that the motion should be denied as premature because defendants have not had a reasonable opportunity to conduct discovery and no depositions have taken place.

Labor Law Section 240(1) affords protection to construction site workers who are exposed to the risks of working at elevated heights. See Blake v. Neighborhood Housing Services of New York City, Inc., 1 NY3d 280, 287, 771 N.Y.S.2d 484, 487 (2003). The statute was designed to prevent gravity-related accidents by imposing strict liability upon owners, contractors and their agents upon proof that inadequate safety precautions proximately caused the injury. See Rocovich v. Consolidated Edison Co., 78 NY2d 509, 513, 577 N.Y.S.2d 219, 221 (1991). Liability is imposed regardless of the degree of control over the work performed, Haimes v. New York Telephone, 46 NY2d 132, 136-37, 412 N.Y.S.2d 863, 865 (1978), and regardless of the injured party's own comparative negligence or assumption of risk. Zimmer v. Chemung County Performing Arts, 65 NY2d 513, 521 493 N.Y.S.2d 102, 105 (1985).

Defendants assert that plaintiffs' claim is not covered by Labor Law Section 240 because Turner was engaged in routine maintenance and was not "altering, erecting, demolishing, repairing, painting, cleaning, or pointing a building or structure" as required by the statute. Defendants' assertion is without merit. At the time of his injury, Turner was standing on a ladder and running cable through the ceiling to install a security camera system. This installation process was not a matter of routine maintenance but part of a large-scale alteration to the building, which encompassed the running of conduit, wire and junction boxes throughout every level of the building. The United States of America contracted with ISR to install the system for a total project cost of $675,000; ISR sub-contracted with KW to install the cameras for a cost of $285,000; and KW retained plaintiff's employer, Brown & Simpson Electrical Contracting to run the cables and install the junction boxes over the course of months for costs exceeding $75,000. Thus, Turner's labor involved "making a significant physical change to the configuration or composition of the building." Joblon v. Solow, 91 NY2d 457, 465, 672 N.Y.S.2d 286, 290 (1998). Courts have consistently held that the kind of work performed by Turner is within the statute. See, e.g., Weinberger v. Hagedorn & Co., 91 NY2d 958, 672 N.Y.S.2d 840 (1998) rearg. denied 92 NY2d 875, 677 N.Y.S.2d 777 (1998) (running of telephone and computer wires through ceiling); Guzman v. Gumley-Haft, Inc., 274 AD2d 555, 712 N.Y.S.2d 45 (2nd Dept. 2000) (removal and reinstallation of security camera system); Tate v. Clancy-Cullen Storage Co., Inc., 171 AD2d 292, 575 N.Y.S.2d 832 (1st Dept 1991) (installation of fire alarm system). Therefore, Labor Law Section 240 applies to the labor that defendant was engaged in at the time of the accident.

Next, defendants contend that in relying solely on Turner's affidavit, plaintiffs have provided insufficient proof that the ladder was defective or improperly placed. Defendants argue that, as in Parsolano v. County of Nassau, the court should deny summary judgment because plaintiff is the only witness to the accident. 93 AD2d 815, 460 N.Y.S.2d 823 (2nd Dept 1983). However, as plaintiffs point out, where there is no substantiated challenge to plaintiff's credibility, "[t]he fact that plaintiff may have been the sole witness to his accident [*3]does not preclude summary judgment on his behalf" under Labor Law Section 240. Perrone v. Tishman Speyer Properties, L.P., 13 AD3d 146, 147, 787 N.Y.S.2d 230, 231 (1st Dept. 2004). Defendants have presented no evidence that there is an "issue of fact relating to plaintiff's credibility" or that there are "materially different versions of how the accident occurred." Nieves v. Five Borough Air-Conditioning, 256 AD2d 106, 109, 603 N.Y.S.2d 204 (1st Dept 1998). Moreover, Parsolano, is distinguishable because there, the record did not indicate that the ladder was defective or that the defect was the proximate cause of the fall. Parsolano, supra, at 817. In contrast, Turner's uncontradicted affidavit, that the ladder lacked safety feet and any anchor, provides a sufficient evidentiary basis for the purposes of summary judgment. See CPLR 3212(b). Therefore, plaintiff has made out a prima facie case sufficient to establish liability under Labor Law Section 240 (1). See Zuckerman v. City of New York, 49 NY2d 557, 562, 427 N.Y.S.2d 595, 598 (1980).

Finally, defendants contend that, even if plaintiffs have made out a prima facie case, summary judgment should be denied as premature because defendants have not had a reasonable opportunity to conduct discovery and no depositions have taken place. Pursuant to the December 8, 2004 Preliminary Conference Order and the February 23, 2005 Compliance Conference Order, defendants had scheduled the depositions of all parties to take place on April 12 and April 13, 2005, six weeks before the Note of Issue deadline. However, plaintiffs filed the instant motion three weeks before depositions were to occur. Defendants assert that without the opportunity to depose witnesses they will be denied a fair opportunity to establish various defenses. Specifically, defendants claim that the depositions are necessary to prove that they may have provided adequate safety precautions; that plaintiff may have been a recalcitrant worker warned not to use the defective ladder; that plaintiff may lack credibility; or that plaintiff may present contradictory versions of the facts.

Defendants' argument is not persuasive. Where the movant makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate the existence of a factual issue or to tender an acceptable excuse for the failure to do so. Klein v. New York, 89 NY2d 833, 834, 652 N.Y.S.2d 723, 724 (1996). The defendant can defeat summary judgment by demonstrating that facts essential to oppose the motion are in plaintiff's exclusive knowledge and possession and may be obtained by discovery. CPLR 3212(f); see Bingham v. Wells, Rich, Greene, Inc., 311 N.Y.S.2d 508, 509, 34 AD2d 924, 925 (1st Dept. 1970). However, the "mere hope" that essential evidence may be uncovered is not enough. Jones v. Gameray, 153 AD2d 550, 551, 544 N.Y.S.2d 209, 210 (2nd Dept. 1989). Defendants are bound to show there is a likelihood of discovery leading to such evidence. Frierson v. Concourse Plaza Associates, 189 AD2d 609, 610, 592 N.Y.S.2d 309, 311 (1st Dept. 1993). Absent this showing, the mere fact that defendants have not completed discovery does not preclude the grant of summary judgment to plaintiffs. See, e.g., Chemical Bank v. PIC Motors Corp., 58 NY2d 1023, 1026, 462 N.Y.S.2d 438 (1983).

Here, defendants have not satisfied this burden. More than one year after issue has been joined, defendants have not argued or brought forward any proof that the ladder, which is in their possession and control, was in fact safe. Similarly, defendants have not argued or presented any proof that plaintiff had been warned against using the defective ladder. The recalcitrant worker defense requires proof that a plaintiff disobeyed "an immediate and active direction not to use a particular unsafe piece of equipment, and refused to use adequate safety devices" that were provided. Balthazar v. Full Circle Construction Corp., et al., 268 AD2d 96, 707 N.Y.S.2d 70 (1st Dept 2000). Defendants' affidavits recite legal precepts but do not allege that the ladder was in fact adequately safe or that Turner was in fact ordered not to use the defective ladder. These are facts that are not within plaintiffs' exclusive control; therefore, defendants' invocation of CPLR 3212(f) is [*4]unpersuasive.

Finally, defendants suggest that depositions may raise an issue of fact regarding proximate cause. This, too, is speculative and unpersuasive. Turner was found unconscious with a broken skull ten feet away from the defective ladder. Considering these circumstances and the evidence of Turner's affidavit, proximate cause is fairly to be inferred. See Zimmer v. Chemung County Performing Arts, 65 NY2d 513, 524, 493 N.Y.S.2d 102, 107 (1985). (in the absence of "proper protection", absolute liability under Section 240(1) is "unavoidable"). Because Labor Law Section 240(1) is an absolute liability statute which precludes comparative negligence and assumption of the risk defenses, and because defendants have failed to raise an issue of fact regarding recalcitrance, the credibility of the plaintiff is not in issue.

Defendants have not raised a triable issue of fact and have not shown that material facts may exist that cannot be stated at that time.

Accordingly, it is

ORDERED that plaintiffs' motion is granted and summary judgment is granted on the issue of liability under Labor Law Section 240(1).

Dated: August 9, 2005

Enter: ______________________________________

Louis B. York, J.S.C.