Oliveira v Long Is. Home Dev. Corp.

[*1] Oliveira v Long Is. Home Dev. Corp. 2005 NY Slip Op 51751(U) [9 Misc 3d 1122(A)] Decided on September 27, 2005 Supreme Court, Nassau County Feinman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 27, 2005
Supreme Court, Nassau County

Antonio Oliveira, Plaintiff,

against

Long Island Home Development Corp., and HELGA DIETERLE, Defendants.



5192/04

Thomas Feinman, J.

The plaintiff, Antonio Oliveira, (hereinafter referred to as "Oliveira"), moves for an on order (1) pursuant to CPLR §602 consolidating this action with the pending related action in this Court entitled, Antonio Oliveira v. 57 Drohan Road Corp., bearing index number 5152/2005, and an order (2) pursuant to CPLR §3212 granting summary judgment in favor of the plaintiff on the grounds that the defendants violated Labor Law §240(1). The defendant, Long Island Home Development, [*2](hereinafter referred to as "LI Home"), submits opposition. The plaintiff submits a reply affirmation.

Motion to Consolidate

The plaintiff moves to consolidate this action with a pending related action entitled Antonio Oliveira v. 57 Drohan Road Corp., bearing index number 5152/2005. The plaintiff's motion to consolidate is unopposed. The plaintiff has demonstrated the existence of "common questions of law and fact."

Upon the foregoing papers, it is ordered that this unopposed motion for an order pursuant to CPLR §602 consolidating this action with the pending related action is granted under the caption and index number of this action, and therefore, the caption shall read as follows:

X

Antonio Oliveira,

Index No.: 5192/04

Plaintiff,

-against-

Long Island Home Development and

57 Drohan Road Corp.,

Defendants

X

Long Island Home Development,

Third-Party Plaintiff,

-against-

Santa Maria Concrete Corp.,

Defendant.

X

The movant shall serve a copy of this order on the calendar clerk and upon the attorneys for the various parties.

Motion for Summary Judgment

The plaintiff moves for an order granting the plaintiff summary judgment against the [*3]defendants on liability as it applies to plaintiff's claim under §240(1) under the Labor Law. The defendant, LI Home, submits opposition. Notably, while counsel for defendant, LI Home, also represents defendant, 57 Dorhan Road Corp., counsel submits opposition to the motion on behalf of LI Home.

The plaintiff's personal injury action arises out of an incident that occurred on September 24, 2002 at the premises known as 8 Drohan Street, Huntington, New York. The plaintiff was working as an employee of subcontractor, Santa Maria Concrete Corp. The plaintiff was engaged in the construction and the erection of a structure. The plaintiff has demonstrated that the contractor-owner was involved in the building of the structure. The plaintiff has shown that the defendant, LI Home, was the general contractor involved in the building of the structure, and that the defendant, 57 Dorhan Road Corp., owned the premises known as 8 Drohan Street, Huntington, New York. The plaintiff has also demonstrated that Frank Jatlitsch is the President of LI Home and 57 Dorhan Road Corp.

The plaintiff avers that on the date of loss, he was stripping forms off of a foundation which had been poured a day or two earlier, and that while he was in the course of his work, he was standing on top of the foundation wall prying forms off of the wall. Mr. Oliveira states that he was using a 6 foot pry bar to accomplish this task, and that no other equipment was provided to him, including no other safety equipment. Mr. Oliveira testified that at the time of the incident, he was on top of the basement foundation, removing wood forms, and fell backward inside the foundation, approximately 8 feet down.

Section 240(1) of the Labor Law requires that owners and general contractors "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, swings, 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." Violation of Labor Law §240(1) mandates the imposition of liability regardless of negligence and is deemed to create a statutory cause of action unrelated to questions of negligence. "Labor Law §240 imposes absolute liability on owners, contractors and agents for their failure to provide workers with safety devices that properly protect against elevation-related special hazards." (Striegel v. Hillcrest Heights Development Corporation, 100 NY2d 974). "The statute is to be interpreted liberally to accomplish its purpose." (Id, citing Rocovich v. Consolidated Edison Co., 78 NY2d 509).

It is well settled that the "injured's contributory negligence is not a defense to a claim based on Labor Law §240(1) and that the injured's culpability, if any, does not operate to reduce the owner/contractor's liability for failing to provide adequate safety devises." (Stolt v. General Foods Corp., 81 NY2d 918). The so-called "recalcitrant worker" defense cannot be invoked when no safety devises are provided. (Id).

Here, the plaintiff has met his prima facie burden for entitlement to partial summary [*4]judgment on liability against the defendants on the Labor Law §240(1) claim. The plaintiff has demonstrated that he was engaged in the building of a structure at the direction of LI Home, owned by 57 Drohan Road Corp. The plaintiff has averred and testified that he was exposed to a gravity-related risk, in that the basement foundation which he was working a top was uncovered, no safety devices were provided, and that while he was working thereto, he fell backward into the basement, approximately 8 feet down. Accordingly, the plaintiff has demonstrated entitlement to summary judgment as a matter of law against the defendants, owner-contractor, by establishing that he was subject to an elevation-related risk and that the defendants violated Labor Law §240(1) by not providing any safety devices. (Striegel v. Hillcrest Heights Development Corporation, 100 NY2d 974).

The defendant, in its opposition papers, fails to meet its burden of coming forward with evidentiary proof in admissible form to establish the existence of a triable issue of fact, or to demonstrate an acceptable excuse for its failure to do so. To that end, the defendant's opposition consists of only the affirmation of its counsel who has no personal knowledge of the accident, which contains mere speculation and surmise as to fault of the accident. Clearly, such submission is insufficient to defeat the plaintiff's motion for summary judgment. (Freese v. City of New York, 238 AD2d 374).

Nevertheless, and more importantly, the defendant does not dispute that there were no safety devices in place to prevent the plaintiff from falling from the ground floor into the basement. "Once the absolute nondelegable duty set forth in Labor Law §240(1) has been imposed any negligence on the part of the injured worker is of no consequence." (Iannelli v. Olympia & York Battery Park Co., 190 AD2d 775, citing Rocovich v. Consolidated Edison Co., 78 NY2d 509). Therefore, the defendant's argument that the plaintiff's own negligence contributed to the accident is of no merit. Additionally, the defendant has not raised a genuine issue to support the assertion that the plaintiff's own actions were the sole proximate cause of his alleged injuries. Moreover, here, when the statutory violation is the cause of the injury, the plaintiff cannot be solely to blame for it. (Blake v. Neighborhood Housing Services of New York City, 1 NY3d 280).

The defendant also argues or suggests that the plaintiff's fall does not fall within the ambit of Labor Law §240 as the plaintiff was working at ground level and was not suspended in the air at the time of the fall, or working at a height. Labor Law §240(1) applies to the "falling worker" who is working at a gravity- related risk. Gravity-related risks have been held to occur at or near ground level. (In Brandl v. Ram Builders, Inc., 7 AD3d 655, an injured plaintiff stepped backwards into an unprotected opening in the floor of a home he was renovating, and fell from the ground floor to the basement. The Court held that the plaintiffs established their prima facie entitlement to summary judgment on the issue of liability pursuant to Labor Law §240(1) by "submitting evidence that the injured plaintiff fell through an uncovered opening, that no safety device was in place to protect him from the uncovered opening and that this violation was the proximate cause of the injuries he allegedly sustained.") A collapsed floor has been held to constitute prima facie evidence of a violation of Labor Law §240(1). (See, Richardson v. Matarese, 206 AD2d 353 and Clute v. Ellis Hosp., 184 AD2d 942). Gravity-related risks have been found when a painter fell in an uncovered [*5]staircase opening, (Serpe v. Eyris Prods., 243 AD2d 375), when a painter fell into a protected hole in the floor, (Carpio v. Tishman Construction Corp., 240 AD2d 234), and when a plaintiff fell through corrugated metal decking, (Robertti v. Chang, 227 AD2d 542). In Carpio v. Tishman Construction Corp., 240 AD2d 234, the Court stated that while roof work may appear more elevation-related because a roof is usually the top portion of a structure, where a plaintiff fell into a hole with a three-foot elevation differential, such a risk would fall within the statute even if it existed at ground level.

The Court of Appeals defined the covered risks as "those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured." (emphasis added). (Carpio v. Tishman Construction Co., 240 AD2d 234, citing Rocovich v. Consolidated Edison Co., 78 NY2d 509). In the case at bar, a risk of injury existed because of the difference between the elevation level of the required work, (the top of the foundation wall of the basement), and a "lower level", (the basement floor, approximately 8 feet below). Therefore, this accident was gravity-related.

Accordingly, the plaintiff is entitled to an award of partial summary judgment against the defendants on the issue of liability pursuant to Labor Law §240(1). E N T E R :

________________________________

J.S.C

Dated: September 27, 2005

cc: Ginsburg & Misk

Wilson, Elser, Moskowtiz, Edelman & Dicker, LLP

Morenus, Conway, Goren & Brandam