Montalvo v Mumpus Restorations, Inc.

[*1] Montalvo v Mumpus Restorations, Inc. 2008 NY Slip Op 52472(U) [21 Misc 3d 1141(A)] Decided on December 4, 2008 Supreme Court, Queens County Hart, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 4, 2008
Supreme Court, Queens County

Albert Guilbe Montalvo,

against

Mumpus Restorations, Inc.



6139 2006

Duane A. Hart, J.

It is alleged that on May 10, 2003, plaintiff was injured when he was struck by a falling bucket of flashing cement as he took out the garbage at 98-45 57th Avenue, Corona, New York (known as the "Ohio" building). At the time, plaintiff was employed as a porter by Sherwood Village Owners Corp. (Sherwood), the owner and manager of the Ohio building. Plaintiff interposed claims alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6), against defendant Mumpus Restorations Inc. (Mumpus), a contractor hired by Sherwood to perform roofing work at the Ohio building. Plaintiff alleged that the bucket fell because it had been negligently left on the roof of the Ohio building by Mumpus workers.

In support of the motion, Mumpus submitted the deposition testimony of plaintiff and Satnam S. Parhar, president and owner of Mumpus; a photograph marked at plaintiff's deposition; and a Mumpus invoice to Sherwood for work performed at the Ohio building. In opposition, plaintiff submitted the affidavits of Lindell P. Lewis, Anthony Diaz, and Jesus Polonia; and a reservation of rights letter from Mumpus's insurance carrier.

Plaintiff testified that at the time of the accident, he was taking garbage out of the Ohio building, and as he stepped outside he felt something strike the top of his right shoulder and right arm; that the falling object then made contact with plaintiff's waist and right leg as plaintiff fell to the ground; that plaintiff did not see what struck him at the time of the accident; that immediately following the accident, plaintiff had "something sticky on [his] clothing" which he described, based on his work experience, as a black "sticky substance from the roof;" and that "quite a bit" of the substance was on the ground of the area where the accident occurred; and that witnesses later told plaintiff that he was struck by a bucket of flashing cement. [*2]

Plaintiff further testified that, at the time of the accident, he was performing the work of a porter, "cleaning and maintenance," which included "cleaning the floor, polishing it with machines, taking out the garbage, sweeping outside and keeping an eye on the compacting room, check [sic] the stairs every hour"; and that he was "never" involved in any construction for Sherwood. This testimony shows that at the time of his accident plaintiff was taking out the garbage as part of Sherwood's routine maintenance of the Ohio building, rather than as a participant in construction or renovation, and thus Labor Law §§ 240 and 241 do not apply and the claims under those provisions must be dismissed (Phillips v City of New York, 228 AD2d 570, 571-572 [1996]; Edwards v Twenty-Four Twenty-Six Main St. Assoc., 195 AD2d 592, 592-593 [1993]).

Labor Law § 200, the codification of the common-law duty to provide workers with a safe work environment (Lombardi v Stout, 80 NY2d 290, 294 [1992]), applies to owners and contractors who exercise control or supervision over the injury-producing work (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]; Zervos v City of New York, 8 AD3d 477, 480-481 [2004]), or who have either created a dangerous condition or had actual or constructive notice of such a condition (Zaher v Shopwell, 18 AD3d 339, 341 [2005]; Murphy v Columbia Univ., 4 AD3d 200, 201-202 [2004]).

Mr. Parhar, on Mumpus's behalf, testified that Mumpus had performed roofing work on the Ohio building for Sherwood prior to the accident; that he supervised this work; that Mumpus's practice was to send out an invoice within one to two weeks after the work was performed; that, consistent with this practice, Mumpus sent the invoice to Sherwood, dated May 2, 2003 (eight days before plaintiff's accident), for work performed on the Ohio building within the immediately preceding one or two weeks. The photograph submitted by Mumpus shows a dented orange and white bucket, resting beside a building, containing what appears to be a black sticky substance. Plaintiff testified that this photograph was given to him by a co-worker two days after the accident, and that it showed the bucket that caused his injury.

Mr. Parhar's testimony is evidence that Mumpus supervised and had the authority to control the roofing work that was performed on the Ohio building prior to plaintiff's accident (see Rizzuto, 91 NY2d at 352-353). In addition, Mr. Parhar's testimony that the type of flashing cement in the photograph was not used on the job covered by the May 2, 2003 invoice is undermined by his testimony (1) that he had no specific recollection of seeing the work of Mumpus employees while it was being performed or of checking that no materials were left on the roof, (2) that Mumpus did at times use such flashing cement on the roof of the Ohio building in 2003, and (3) that this flashing cement sometimes came in an orange and white bucket. Coupled with plaintiff's testimony that the black sticky substance on him and the accident site was, based on his experience, the type of flashing cement used on roofs, there is an issue of fact as to whether Mumpus employees left the bucket on the roof, creating the allegedly dangerous condition that caused plaintiff's injury (see Cruz v New York City Hous. Auth., 291 AD2d 223, 224 [2002]). [*3]

Although plaintiff did not see the bucket fall and hit him, a plaintiff "need not positively exclude every other possible cause of the accident" but "need only prove that it was more likely or more reasonable that the alleged injury was caused by the defendant's negligence than by some other agency," drawing logical inferences from the evidence (Gayle v City of New York, 92 NY2d 936, 937 [1998] [internal quotations and citations omitted]).In addition, the hearsay offered by plaintiff at his deposition may be considered in opposition to this motion because there is other evidence connecting Mumpus to the orange and white bucket in the photograph (see Phillips v Joseph Kantor & Co., 31 NY2d 307, 311-312 [1972]).

The affidavits of Messrs. Lewis, Diaz, and Polonia are further evidence that plaintiff's injury was caused by a falling orange and white bucket of flashing cement. Mr. Lewis states that he was walking in front of the Ohio building "when [he] saw an orange and white bucket fall from the roof of the Ohio building and strike [plaintiff]" and that the bucket and location were the ones identified in the photograph at plaintiff's deposition. Mr. Diaz states he was employed by Sherwood as a porter at the Ohio building at the time of plaintiff's accident; that prior to the day of plaintiff's accident he had observed Mumpus employees leave their buckets, rolls, brushes, and bags of supplies on the roof of the Ohio building; that Mumpus did not begin to remove these objects and materials until after the day of plaintiff's accident; that the bucket in the photograph was one of the buckets left behind on the roof by defendant; that the area where the bucket fell after striking plaintiff was stained with "tar;" and that on the day of plaintiff's accident, Mr. Diaz saw tar from the bucket on plaintiff's arm and clothing. Lastly, Mr. Polonia states that he was working as a porter with plaintiff on the day of the accident; that as he walked in front of plaintiff, Mr. Polonia heard a loud noise and scream; and, turning immediately around, saw plaintiff lying on the ground next to a dented orange and white bucket of "black tar."

Although plaintiff did not plead a theory of res ipsa loquitur in his complaint, he may still recover under that theory (Weeden v Armor Elevator Co., 97 AD2d 197, 201-202 [1983]). In New York, "the theory of res ipsa loquitur is warranted only when the plaintiff can establish the following elements: (1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff" (Dermatossian v New York City Transit Auth., 67 NY2d 219, 226-227 [1986] [internal quotation marks omitted]).

Here, the evidence that a bucket of flashing cement fell from the roof of the Ohio building onto plaintiff creates triable issues of fact as to the first and third elements (see Corcoran v Banner Super Market, 19 NY2d 425, 430 [1967]). As to the second element, the exclusive control requirement does not necessitate such control at the time of the accident, and "the fact that the accident occurs some time after the defendant relinquishes control of the instrumentality which causes the accident does not preclude application of the doctrine provided there is evidence that the instrumentality had not been improperly handled by the plaintiff or some third person, or its condition otherwise changed, after control was relinquished by the defendant" (id. at 431 [internal quotation marks omitted]). Plaintiff here need not have shown that Mumpus [*4]employees were the only ones in control of the buckets of flashing cement, but just that Mumpus's control was of " sufficient exclusivity to fairly rule out the chance that any purported defect' was caused by some other agency" (Bonventre v August Max, 229 AD2d 557, 558 [1996], quoting Raimondi v New York Racing Assn., 213 AD2d 708, 709 [1995]; see Allen v Thompson Overhead Door Co., 3 AD3d 462, 465 [2004]).

The evidence that plaintiff was struck by falling bucket of flashing cement as he exited the Ohio building and that Mumpus worked with flashing cement on the roof within weeks of plaintiff's accident connects Mumpus to the accident-causing instrumentality, there is no evidence that plaintiff or the public had access to the roof, and even Sherwood's presumed access (by virtue of its ownership of the Ohio building) is not enough to make Mumpus's leaving the bucket on the roof the lesser probability (see Corcoran, 19 NY2d at 431 n 1). Thus, there are issues of fact necessitating trial on the theory of res ipsa loquitur (see Morejon v Rais Constr. Co., 7 NY3d 203, 206, 212 [2006] [proof that roll of roofing material fell on decedent's head created triable issues of fact]; Fields v King Kullen Grocery Co., 28 AD3d 513, 514 [2006]).

Accordingly, the motion is granted only to the extent of dismissing plaintiff's claims asserted under Labor Law §§ 240(1) and 241(6). In all other respects, the motion is denied.

Dated: December 4, 2008

J.S.C.