Nogueira v Alshe Corp.

[*1] Nogueira v Alshe Corp. 2008 NY Slip Op 52092(U) [21 Misc 3d 1118(A)] Decided on October 21, 2008 Supreme Court, Rockland County Weiner, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 21, 2008
Supreme Court, Rockland County

Alcino Nogueira and Maria Nogueira, Plaintiffs,

against

Alshe Corp. and Bridge View Custom Home Builders Corp. Formerly Known as Opus Contracting Corp., Defendants.



6228/06



Murtagh Cohen & Byrne Esqs.

Attorneys for Plaintiffs

Lustig & Brown, LLP

Attorneys for Defendants

Alfred J. Weiner, J.

It is ORDERED that these motions are disposed of as follows:

Plaintiff Alcino Nogueira sustained injuries on November 17, 2005 when he fell from a roof while performing carpentry work as an employee of Atlantic Master Carpentry. The work site was owned by Defendant Alshe Corp. Plaintiff's complaint alleges that defendants are liable for Plaintiff's injuries under theories of common law negligence as well as statutory violations of sections 200, 240 and 241 of the New York State Labor Law. Plaintiff claims that his attention was focused on [*2]checking the level in the front of the dormers [FN1] at the time he fell and that he doesn't know what caused him to fall.[FN2] He also claims he didn't get a chance to do anything to protect himself from falling from the roof.[FN3]

laintiff now seeks summary judgment pursuant to Labor Law §240 contending that defendants failed to furnish and/or ensure the use of safe, suitable and adequate equipment, scaffolding, protective devices and/or apparatus.

Labor Law §240(1) imposes absolute liability upon contractors or owners for injuries proximately caused by a failure to provide proper protection to a worker performing certain types of work. Bland v Manocherian, 66 NY2d 452; Zimmer v Chemung County Performing Arts, 65 NY2d 513. The statute requires owners and contractors to furnish or cause to be furnished "...scaffolding, hoists, stays, ladders, slings, hangers, blocks, braces, irons, ropes and other devices which shall be constructed, placed and operated as to give the proper protection". Labor Law §240(1). Responsibility for safety practices is thereby placed with the owners and contractors and to this end courts have held that the section is to be construed liberally in order to accomplish "...the purpose for which it was framed." Rocovich v Consolidated Edison Co., 78 NY2d 509, (citing Quigley v. Thatcher, 207 NY 66); Carpio v Tishman Construction Corp. of New York, 240 AD2d 234.

In order to impose absolute liability upon an owner or contractor for failing to provide the necessary safety devices to give proper protection to a worker who is injured on the job, plaintiff must prove a violation of Labor Law §240(1) and that the violation was the proximate cause of his injuries. Smith v Hooker Chemicals, 70 NY2d 994. Proximate cause is demonstrated where the plaintiff generally shows that the defendant's failure to comply with the statutory mandates was a substantial cause of the events that produced the injury. Gordon v Eastern Railway Supply, Inc., 82 NY2d 555. However, a plaintiff cannot prevail on a motion for summary judgment on the issue of liability under Labor Law §240(1) if there is any view of the evidence which would permit a finding that defendant's violation of that provision might not have been a proximate cause of plaintiff's accident. Zimmer v Chemung County Performing Arts, 65 NY2d 513; Aslam v Weiss, 308 AD2d 426; Mejia v African Methodist Episcopal Allen Church, 271 AD2d 583.

In opposition to the motion, Defendants claim there is a view of the evidence that would permit a finding that defendants' alleged Labor Law violation might not have been the proximate cause of Plaintiff's accident. Defendants contend that Plaintiff was a recalcitrant worker and that his supervisor, Mario Rosa, told him not to go onto the roof from which he fell. Affidavits in opposition to the motion have been submitted by defendants from two [*3]people present at the time of the accident.[FN4] Each witness states that after the accident they heard Mario Rosa say that he told Plaintiff not to go onto the roof.

The affidavits of the two people present at the time of the accident cleary constitute hearsay and although hearsay evidence may be considered in opposition to a motion for summary judgment, it is insufficient to bar summary judgment if it is the only evidence submitted. Stock v Otis Elevator Company, 52 AD3d 816, 2nd Dept., 2008; Rodriguez v Sixth President, 4 AD3d 406, quoting Arnold v New York City Hous. Auth., 296 AD2d 355. Since it is, in fact, the only evidence submitted to support Defendants' claim that there is another view of the evidence that could permit a finding that defendants' Labor Law violation might not have been the proximate cause of plaintiff's accident, it cannot bar Plaintiff's motion for summary judgment.

Accordingly, the Court finds that Plaintiff,was entitled under the statute to protection "...against the known hazards of the occupation", (Koenig v Patrick Constr. Corp., 298 NY 313), in this case, the hazard of falling from the roof. Accordingly, Plaintiff's motion is granted.

In view of the foregoing, Defendants' cross-motion for an order dismissing Plaintiff's complaint or precluding Plaintiff from introducing evidence at trial as a consequence of Plaintiff's failure to comply with discovery demands is denied.

That branch of Defendants' cross-motion for an order dismissing all causes of action against Defendants Bridge View Custom Home Builders Corp. and Opus Contracting Corp., must be denied. Defendants' have failed to demonstrate that they are entitled to the relief requested.

The parties are advised that this matter has been scheduled for a Trial on the issue of damages on March 9, 2009 at 9:00 am.

Dated:New City, New York

October 21, 2008

E n t e r :

________________________

HON. ALFRED J. WEINER JSC

To:

Footnotes

Footnote 1: July 20, 2007 deposition, page 43 / line 13

Footnote 2: July 20, 2007 deposition, page 43 / line 10

Footnote 3: July 20, 2007 deposition, page 46 / line 12

Footnote 4: Wilson Vila and Joseph Massi