Gaffney v BFP 300 Madison II LLC
Annotate this CaseDecided on January 5, 2005
Supreme Court, New York County
JOSEPH GAFFNEY and VICKY GAFFNEY, Plaintiffs,
against
BFP 300 MADISON II LLC and TURNER CONSTRUCTION, Defendants.
120554/02
Sacks & Sacks, Esqs.
150 Broadway - Suite 400
New York, NY 10038
Plaintiffs' attorney
Cozen & O'Connor
45 Broadway - Atrium, 16th Floor
New York, NY 10006
Defendant BFP 300 Madison II LLC Attorneys
Fabiani & Cohen, LLP
570 Lexington Avenue, 4th Floor
New York, NY 10022
Defendant Turner Construction Attorneys
Debra A. James, J.
Plaintiff Joseph Gaffney (who shall be referred to as the plaintiff herein) moves for partial summary judgment on its Labor Law 240 (1) and 240 (2) claims. The court shall grant plaintiff's motion for judgment on liability.
Plaintiff was injured in a construction accident on September 5, 2002, while working at premises located at 300 Madison Avenue, New York County.
In support of this motion, plaintiff submits his deposition testimony and the affidavit of two witnesses to his accident: plaintiff's supervisor on the construction site at the time of the [*2]accident, William Zis, and co-worker Walter Donahue. The evidence shows that at the time of the accident plaintiff was a member of William Zis' bolting up crew and that plaintiff was working on a float scaffold on the 25th floor of the building which was under construction. The scaffold was approximately six feet long by four feet wide and had ropes on all four corners which were attached to steel hooks. The hooks were connected to the flanges of the i-beam in order to hold the scaffold in place while the men were working. There were no guardrails or safety rails on the scaffold at the time of the accident. As the crane was being manipulated for plaintiff to land on a jumping beam, the scaffold upon which plaintiff was standing collapsed and tipped downward causing plaintiff to fall about 2 stories. The affidavits state that after the accident it was observed that one of the hooks had come off the scaffold causing it "to collapse like a trap door." The affidavits further state that there were no lifelines or independent cables for plaintiff to tie into at the place where the accident occurred and plaintiff's supervisor states that no instructions were giving for plaintiff to tie-off while perform the assigned task.
As a threshold issue, defendants assert that plaintiff's motion is untimely as it was not filed until August 4, 2004, and plaintiff had filed the note of issue on March 31, 2004. This court's preliminary conference Order of April 4, 2003, originally set forth that dispostive motions were to be brought by January 14, 2004, but a subsequent discovery order dated December 19, 2003, extended plaintiff's time to file a note of issue until March 31, 2004 rendering the earlier dispositive motion deadline inoperative.
CPLR 3212 (a) permits the court to consider late-filed summary judgment motions upon a showing of "good cause." The Court of Appeals has recently reiterated that "'good cause' in CPLR 3212 (a) requires a showing of good cause for the delay in making the motiona satisfactory explanation for the untimelinessrather than simply permitting meritorious, nonprejudicial filings, however tardy." Brill v City of New York, 2 NY3d 648, 652 (2004); Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 (2004). In this case, plaintiff's counsel states that it was unable to take the deposition of defendant Turner Construction until April 19, 2004, after the court-ordered close of discovery, and that the deposition transcript therefrom was not received until the end of June 2004. After receiving the transcript, plaintiff retained an expert witness in connection with the filing of this motion.
Insofar as plaintiff's delay appears to have been caused by the delay in defendant's production of its witness, this court finds it would be inequitable to now allow defendants to bar this motion on the grounds of untimeliness. Defendants have not alleged any prejudice from the delay and plaintiff's motion is meritorious. Therefore the court holds that plaintiff has established "good cause" for the delay in filing its motion and shall consider the motion on its merit. The court notes however that the Court of Appeals twice this year in Brill and Miceli has counseled that the note of issue deadline in CPLR 3212 (a) or as ordered by the court is not to be ignored with impunity and that unless "good cause" for the delay is shown by a movant, the court is required to dismiss late-filed motions. Rather than improperly conducting discovery after the note of issue deadline set by the court, the proper procedure before this court is for the parties to ask for a conference at which the court can set new discovery, note of issue, and dispositive motion filing deadlines.
As to the merits of plaintiff's motion, the court finds that plaintiff has established a prima facie case of liability under Labor Law 240 (1). As stated by the First Department, "plaintiffs established a prima facie showing of a violation of a statutory duty by defendant which was the [*3]proximate cause of the accident. Thus, there was a showing of the collapse of the scaffold without any apparent cause, spilling plaintiff and his co-worker to the roof below. The burden was then upon defendant to submit any evidentiary facts which would raise a factual issue on liability. Defendant, however, submitted only an affirmation by counsel, with no personal knowledge, containing solely speculation and surmise. This was insufficient to defeat plaintiffs' motion for summary judgment." Hauff v CLXXXII Via Magna Corp., 118 AD2d 485, 486 (1st Dept 1986); see Braun v Dormitory Authority of State of NY, 118 AD2d 614 (2d Dept 1986) ("The evidence proffered by the plaintiff establishes a prima facie case of violation of Labor Law § 240 since it is unlikely that the scaffolding would have collapsed if properly constructed. The appellant does not deny the plaintiff's allegations as to the circumstances of the accident. That being so, there are no factual issues as to whether the scaffolding was 'so constructed, placed and operated as to give [Andrew Braun] proper protection'"); Aragon v. 233 West 21st Street, Inc., 201 AD2d 353, 354 (1st Dept 1994) ("collapse of a scaffold is prima facie evidence of a violation of Labor Law § 240 (1)").
Defendant Turner Construction's rebuttal, that it was not the general contractor on the construction site, even if true, does not relieve it of liability as Labor Law § 240 (1) applies to all "contractors and owners and their agents" and pursuant to its June 5, 2000 contract with BFP 300 Madison II LLC Turner Construction at a minimum was an agent of the owner for purposes of the statute. See Kenny v George A. Fuller Co., 87 AD2d 183, 186 (2d Dept 1982) (holding that defendant "as the construction manager, was both a contractor and an agent of the owner within the meaning of" Labor Law 240 and 241). Turner's further argument that the alleged handwritten statements attached as Exhibits D and E to BFP's opposition papers create an issue of fact as to the affidavits of plaintiff's witnesses is meritless as those statements are not sworn and no foundation has been laid to demonstrate they would be admissible at trial. As Turner has failed to submit any affidavits or other evidence in support of its motion, Turner's papers are insufficient to rebut plaintiff's prima facie case.
BFP argues that there are issues of fact precluding summary judgment. Its first argument is that based upon the deposition testimony of Frank Gramarossa of Turner Construction that after the accident his observation was that there appeared to be nothing wrong with the scaffold, there is an issue of fact as to whether the scaffold "collapsed." The court rejects this argument as BFP fails to provide evidence in opposition to the plaintiff's case that would indicate that there was another cause of the accident. This deposition does not contradict the evidence presented by plaintiff that one of the hooks holding the scaffold became dislodged. See Moniusko v Chatham Green, Inc., 3 Misc 3d 1110(A), 2004 NY Slip Op 50543(U) (Sup Ct, Kings County 2004) ("It is also clear that although the plaintiff, by having voluntarily removed his safety harness, may be largely responsible for the resultant sixteen foot fall and the extent of his injuries, the fact remains that the proximate cause of the accident was a broken scaffold hook").
The court further finds that plaintiff is entitled to summary judgment on its Labor Law 240 (2) claim as there is uncontradicted evidence that the scaffolding was more than 20 feet off the ground and that no safety rail was present.
Finally, the court rejects BFP's argument that summary judgment should be denied because there are issue of fact which may establish a recalcitrant worker defense. See Weininger v Hagedorn & Co., 91 NY2d 958, 960 (1998) ("a reasonable jury could have concluded that plaintiff's actions were the sole proximate cause of his injuries, and consequently that liability [*4]under Labor Law § 240 (1) did not attach"). BFP asserts that the plaintiff was provided with a safety harness and did not use it. However, the affidavits adduced by plaintiff state that there was no place for plaintiff to "tie-off" such a harness and that plaintiff's supervisor did not instruct him to "tie-off." Courts have held that "even if plaintiff could be deemed recalcitrant for not having used the harness, no issue exists that the failure to provide proper safety planking was a more proximate cause of the accident." Milewski v Caiola, 236 AD2d 320 (1st Dept 1997); see Aragon v 233 West 21st Street, Inc., 201 AD2d 353, 354 (1st Dept 1994) ("the duty to see that safety devices are furnished and employed rests on the employer in the first instance and the proximate cause of the scaffold's collapse was the breaking of one of the supporting ropes, not the plaintiff's decedent's failure to wear a safety harness.").
Based upon the foregoing, it is
ORDERED and ADJUDGED that plaintiff's motion for summary judgment on the complaint as to defendants' liability under Labor Law 240 (1) and 240 (2) is GRANTED and the Clerk is directed to enter judgment reflecting same.
This is the decision and order of the court.
Dated: January 5, 2005 ENTER:
J.S.C.
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