Garzon v Metropolitan Transp. Auth.

[*1] Garzon v Metropolitan Transp. Auth. 2009 NY Slip Op 50448(U) [22 Misc 3d 1135(A)] Decided on March 10, 2009 Supreme Court, New York County Mills, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 10, 2009
Supreme Court, New York County

Jose L. Garzon and Daisy J. Garzon, Plaintiffs,

against

Metropolitan Transportation Authority and Metro North Commuter Railroad, Defendants.



115860/06

Donna M. Mills, J.

BACKGROUND

Plaintiff, Jose L. Garzon, is a construction worker who was injured while working on a job site. He was employed by a non-party subcontractor, and is suing Metro North Commuter Railroad (Metro North), the owner of the job site, and the Metropolitan Transportation Authority (MTA), the entity that was funding the project. Plaintiff's wife, Daisy J. Garzon, is also suing for derivative damages. Defendants have moved, pursuant to CPLR 3212, for summary judgment dismissing the complaint, and plaintiffs have cross-moved for partial summary judgment on the issue of defendants' liability under Labor Law § 240 (1).

On the day of the accident, plaintiff was re-glazing windows on a pedestrian overpass at the Fleetwood Station of the Harlem River line. Plaintiff, in his EBT, described the overpass as approximately 25-35 feet above the ground and eight to 10 feet high with windows on each side (Plaintiff's EBTat 45). To reach the window, plaintiff obtained a 40-foot fiberglass extension ladder from another subcontractor at the job site. Prior to the date of the accident, plaintiff and another employee, Ivan Pellot (Pellot), had been working with this ladder with no problems (id. at 59).

On the day of the accident, plaintiff placed the ladder against the overpass at a very steep angle in order to access the window (id. at 45). The ladder was held in place by a rope (id. at 103). He stated that, prior to the day of the accident, there had been some discussion about using a two-foot scaffold to access the windows, but none were erected (id. at 44). Plaintiff climbed the ladder, carrying a caulking gun and painter's tape. After approximately five minutes, Pellot called up to him to tell him that their supervisor was approaching. Plaintiff put the painter's tape on the window ledge, and put the handle of the caulking gun on one of the ladder rungs, hanging so that the nozzle of the gun was pointing down to the ground (id. at 90-92). Plaintiff then went down the ladder to meet with the supervisor. [*2]

Plaintiff testified that he did not know why he left the caulking gun on the ladder, and that it was not standard construction practice to leave tools on an extension ladder (id. at 91-92). He further stated that he did not discuss the angle at which the ladder was placed with his supervisor (id. at 95).

After a few minutes, plaintiff started to ascend the ladder, and after climbing approximately five rungs, he extended his hands above his head to push up the top portion of the ladder, in an attempt to shorten the extension ladder (id. at 100-102). Plaintiff was not wearing the construction hat or protective goggles that he had been issued, and stated that he forgot to wear the helmet, but thought that it would not be necessary for the type of work he was doing that day (id. at 81).

Pellot called out to plaintiff to "look out" (id. at 107), and plaintiff turned his head and was struck on his cheekbone by the caulking gun as it fell from the rung of the ladder where he had placed it. Plaintiff further testified that it was not his intention to move the ladder with the caulking gun on it, but he forgot to remove the caulking gun from the ladder (id. at 97).

Paul Kiernan, plaintiff's supervisor, testified that all employees were issued hard hats and safety glasses, and that they were required to wear them (Kiernan EBT at 101-102).

Edward Valieri, the Metro North project manager, testified that MTA only funded the project, and that no MTA personnel were ever at the project site (Valieri EBT at 13-14).

Plaintiff claims that defendants were negligent under the common law, and violated Labor Law §§ 200, 240 (1), 241 (6), as well as Industrial Code Regulations §§ 23-1.7 (a), 23-1.8 (a) and (c), and 23-1.21 (b) (4) (i) and (iv).

DISCUSSION

Summary judgment is appropriate when the movant establishes a prima facie entitlement to judgment as a matter of law by the submission of competent evidence. See Zuckerman v City of New York, 49 NY2d 557, 562 (1980). Summary judgment is warranted where there are no genuine issues of material fact and, therefore, the moving party is entitled to judgment as a matter of law. Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986). Therefore, summary judgment must be precluded if, upon the papers submitted, there remains a question in the mind of the court.

That portion of defendants' motion seeking summary judgment dismissing plaintiff's claims of common-law negligence and a violation of Labor Law § 200 is granted.

Labor Law § 200 is a codification of duties imposed under a theory of common-law negligence (O'Sullivan v IDI Construction Company, Inc., 28 AD3d 225 [1st Dept], affd 7 NY3d 805 [2006]), and, therefore, the same standards of proof apply to both theories.

"Where a claim under Labor Law § 200 is based upon

alleged defects or dangers arising from a subcontractor's

methods or materials, liability cannot be imposed on

an owner or general contractor unless it is shown

that it exercised supervisory control over the work."

Hughes v Tishman Construction Corporation, 40 AD3d 305, 306 (1st [*3]

Dept 2007). "In order to prevail on such a claim, plaintiff must demonstrate that defendant had the authority to control the activity bringing about the injury to enable it to

avoid or correct an unsafe condition. Accordingly, liability can only be imposed ifdefendant exercised control or supervision over the work and had actual or

constructive notice of the purportedly unsafe condition [internal quotation marks andcitations omitted]." Singh v Black Diamonds LLC, 24 AD3d 138, 139-140 (1st Dept2005).

No argument has been presented that the work area presented an unsafe condition. Rather, plaintiff asserts that the cause of his accident was the failure of defendants to provide scaffolding or other such device for him to reach the overpass. In the instant matter, the cause of the accident was plaintiff's act of leaving his caulking gun unsecured on the ladder, and the caulking gun then falling and hitting him when he attempted to adjust the ladder.

Plaintiff asserts that it was negligence on the part of defendants not to erect scaffolding, rather than using an extension ladder, to reach the overpass, but provides nothing other than his opinion to support this contention. Although scaffolding was used on the project the day after this incident, it is plaintiff's unsubstantiated opinion that the ladder caused his injury, not the fact that he left the caulking gun on the ladder's rung, which he admits is not usual practice. Plaintiff's conclusory assertions that the use of a ladder rather than scaffolding caused his injuries are insufficient to raise a triable issue of fact. See Batista v Santiago, 25 AD3d 326 (1st Dept 2006).

That portion of defendants' motion seeking summary judgment dismissing plaintiff's claim of violations of Labor Law § 240 (1) is also granted.

As the Court stated in Blake v Neighborhood Housing Services of New York City, Inc. (1 NY3d 280 [2003]):

"Throughout our section 240 (1) jurisprudence we have

stressed two points in applying the doctrine of strict

(or absolute) liability. First, that liability is

contingent on a statutory violation and proximate cause.

... [v]iolation of the statute alone is not enough;

plaintiff [is] obligated to show that the violation

was a contributing cause of [the injury], and second,

that when those elements are established, contributory

negligence cannot defeat the plaintiff's claim [internal

quotation marks and citations omitted]."

...

"On the other hand, defendant may be granted summary

judgment if the record establishes conclusively that

no Labor Law § 240 (1) violation was shown to have been

a proximate cause of the accident and that the accident

was therefore caused solely by plaintiff's conduct."

[*4]Id. at 297, 293 n 8.

Labor Law § 240 (1) requires that contractors and owners provide "scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes and other devices" so as to give proper protection to persons employed in the "erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure."

Plaintiff cannot prevail on his claim of a violation of this section of the Labor Law as it applies to falling objects.

"With respect to falling objects, Labor Law § 240 (1)

applies where the falling of an object is related to

a significant risk inherent in ... the relative

elevation ... at which materials or loads must be

positioned or secured. Thus, for section 240 (1) to

apply, a plaintiff must show more than simply that

an object fell causing injury to a worker. A plaintiff

must show that the object fell, while being hoisted or

secured, because of the absence or inadequacy of a

safety device of the kind enumerated in the statute

[internal quotation marks and citations omitted]."

Narducci v Manhasset Bay Associates, 96 NY2d 259, 267-268 (2001).

"Absolute liability for falling objects under Labor

Law § 240 (1) arises only when there is a failure

to use necessary and adequate hoisting or securing

devices. The absence of a necessary hoisting or

securing device of the kind enumerated in Labor

Law § 240 (1) did not cause the falling [caulking

gun] here."

Id. at 268-269.

Plaintiff alleges, as did the plaintiff in Narducci, that he should have been given a scaffold instead of a ladder to perform his work. However, just as in Narducci, the ladder had no legally sufficient causal connection to this injury. The injury was caused by plaintiff placing the caulking gun on a rung of the ladder, which he admits was not customary industry practice, rather than taking the gun with him as he meant to do, but forgot, and his failure to secure it properly.

Plaintiff argues that because Labor Law § 240 (1) imposes strict liability on owners and contractors, his negligence is not a bar to this cause of action. Lopez v Boston Properties, Inc., 41 AD3d 259 (1st Dept 2007); Morales v Spring Scaffolding, Inc., 24 AD3d 42 (1st Dept 2005). However, this is only true if a violation of the statute was, in whole or in part, responsible for causing the accident. "[W]here, [as here], a plaintiff's own actions are the sole proximate cause of the accident, there can be no liability." Cahill v Triborough Bridge and Tunnel Authority, 4 NY3d 35, 39 (2004).

"Since plaintiff's accident was not due to the

failure to provide scaffolding, hoists, stays, ladders [*5]

or any functionally similar or related device, ...

Labor Law § 240 (1) [is] inapplicable to the case at

bar."

Simon v Schenectady North Congregation of Jehovah's Witnesses, Congregation No. 76802 of Watchtower Bible Tract Society, Inc., 132 AD2d 313, 316 (3d Dept 1987).

The cases cited by plaintiff in opposition to defendants' motion and in support of his own cross motion are distinguishable from the facts of the case at bar.

In Outar v City of New York (5 NY3d 731 [2005]), the plaintiff was struck by an unsecured dolly, which is a direct violation of Labor Law § 240 (1). In the instant matter, plaintiff placed the caulking gun where it was not supposed to be, and the only one who would conceivably be responsible for securing it would be plaintiff himself.

In Metus v Ladies Mile Inc. (51 AD3d 537 [1st Dept 2008]), a beam provided by defendant became dislodged, causing a sheet of corrugated tin to injure the plaintiff. In the instant case, the injury was caused by a caulking gun left by plaintiff, who had failed to secure it himself.

Finally, in Boyle v 42nd Street Development Project, Inc. (38 AD3d 404 [1st Dept 2007]), a metal rod fell while it was being hoisted, injuring the worker. In this case, the caulking gun was not being hoisted at the time that it fell.

Consequently, plaintiff has failed to establish a violation of Labor Law § 240 (1) entitling him to recover for his injuries.

Lastly, that portion of defendants' motion seeking summary judgment dismissing plaintiff's claims based on a violation of Labor Law § 241 (6) is also granted.

Plaintiff's theory for defendants' liability must fail because the sections of the Industrial Code (12 NYCRR Part 23) that he cites as the basis for the Labor Law § 241 (6) violation are inapplicable to the instant matter.

Industrial Code § 23-1.7 (a) requires that in "[e]very place where persons are required to work or pass that is normally exposed to falling material or objects shall be provided with suitable overhead protection." Not only was plaintiff provided with a hard hat, but there is no argument that the overpass where plaintiff was working was normally exposed to falling material or objects. Consequently, this section of the Industrial Code does not apply to the instant facts.

Industrial Code § 23-1.8 (a) concerns the use of protective goggles for persons engaged in welding, burning or cutting operations, which was not the case in the instant matter. Further, Industrial Code § 23-1.8 (c) (1) involves the use of protective head gear under circumstances which are also inapplicable to the case at bar.

Lastly, Industrial Code §§ 23-1.21 (b) (4) (i) involves the use of a portable ladder used as a regular means of access between floors or other levels in a structure being worked at, and requires certain methods of securing that ladder to prevent the ladder from moving or falling. Subsection (b) (4) (iv) pertains to moving such ladders. In the instant case, not only was the ladder not used as the regular means of access to the overpass, but the ladder did not cause the accident; the falling of the caulking gun that plaintiff himself placed on a rung of the ladder was the cause of plaintiff's injury.

Defendants have argued that plaintiffs' cross motion for summary judgment should be [*6]denied because it was submitted late; however, by granting defendants' motion for summary judgment dismissing the complaint, plaintiffs' cross motion has become moot.

CONCLUSION

Based on the foregoing, it is hereby

ORDERED that defendants' motion for summary judgment is granted and the complaint is hereby dismissed with costs and disbursements to defendants as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further

ORDERED that plaintiffs' cross motion for partial summary judgment is denied as moot; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

Dated: ______

ENTER:

_________________________

Donna Mills, J.S.C.