Mrockowski v City of New York

[*1] Mrockowski v City of New York 2009 NY Slip Op 50450(U) [22 Misc 3d 1135(A)] Decided on March 16, 2009 Supreme Court, Kings County Schneier, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2009
Supreme Court, Kings County

Jozef Mrockowski, Plaintiff,

against

The City of New York, THE BOARD OF EDUCATION OF THE CITY OF NEW YORK, NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, and J.A. JONES CONSTRUCTION CORP., Defendants,



42435/03



ATTORNEYS FOR PLAINTIFF

JOZEF MROCZKOWSKI

PERECMAN & FANNING, P.L.L.C.

250 WEST 57TH STREET, SUITE 401

NEW YORK, NEW YORK 10107

212-977-7033

ATTORNEYS FOR DEFENDANTS

THE CITY OF NEW YORK, THE BOARD OF EDUCATION

OF THE CITY OF NEW YORK, NEW YORK CITY SCHOOL

CONSTRUCTION AUTHORITY AND J.A. JONES CONSTRUCTION CORP.

WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP

3 GANNETT DRIVE,

WHITE PLAINS, NEW YORK 10604-3407

914-323-7000

Martin Schneier, J.

Plaintiff Jozef Mrockowski (Plaintiff), commenced this personal injury action alleging violations of the Labor Law and common-law negligence by the defendants.Defendants moved for summary judgment and the plaintiff cross-moved to amend the bill of particulars. By Order dated November 14, 2008, the motion to dismiss was granted to the extent that the causes of action alleging a violation of Labor Law section 200 and common-law negligence were dismissed. The cross-motion to amend the bill of particulars was also granted.

Decision was reserved on the defendant's motion for summary judgment on the plaintiff's Labor Law section 240(1) violation claim and, that motion is now decided herein.

Background

On December 11, 2002, plaintiff was employed as a bricklayer on a school being constructed on Farrugut Road in Brooklyn. On the day of the accident, plaintiff was laying brick from a Fraco scaffold that was elevated three and one half stories off the ground. Plaintiff entered the scaffold that morning by using a plank that extended from a window opening of the building under construction onto the scaffold. There was no ladder or other means to enter or exit the scaffold. The accident occurred when plaintiff was attempting to exit onto the scaffold for his coffee break. Since there was no plank available, plaintiff attempted to step from the scaffold onto the top of the brick wall that was being constructed. When plaintiff placed his foot on the top of the brick wall, the brick twisted because it had not yet set, and this caused him to fall back, onto the scaffold, causing his injury.

Discussion

Summary judgment is a drastic remedy that should only be employed when there is no doubt as to the absence of any triable issues of a material fact. (Kolivas v Kirch,14 AD2d 493 [2nd Dept. 2005]) "Issue finding, rather than issue determination is the courts function. If there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied." (Celardo v Bell 222 AD2d 547 [2nd Dept. 1995])

Labor Law Section 240(1) provides, in pertinent part, that: "All contractors and owners.....who contract for

but do not direct or control the work, in the erection, demolition.....of a building or structureshall furnish or erect, or cause to be furnished orerected for the performance of such labor, scaffolding,hoists, stays, ladders, slings, hangers, blocks, pulleys,[*2]irons, ropes and other devices which shall be so constructed,placed and operated as to give protection to a person soemployed."

Defendants' first argument is that the plaintiff's accident does not fall within the ambit of Labor Law Section 240(1). Defendants rely on the Court of Appeals decision in Nieves v. Five Boro Air Conditioning & Refrigeration Corp., (93 NY2d 914 [1999]), where the Court stated: "[t]he extraordinary protections of Labor Law § 240 (1) extend only to a narrow class of special hazards, and do "not encompass any and all perils that may be connected in some tangential way with the effects of gravity" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [emphasis in original]). The core objective of the statute in requiring protective devices for those working at heights is to allow them to complete their work safely and prevent them from falling. Where an injury results from a separate hazard wholly unrelated to the risk which brought about the need for the safety device in the first instance, no section 240 (1) liability exists (see, id.; see also, Melber v 6333 Main St., 91 NY2d 759, 763-764).

(Nieves at 915-916).

In this case, the plaintiff's accident occurred when he was attempting to exit the scaffold that had been erected for the protection of plaintiff and other workers. In no manner can this action be construed as "tangential" or wholly unrelated" to his duties as a bricklayer. Furthermore, a scaffold that does not provide a safe means of returning to the ground level does not provide the protection required by Labor Law section 240(1) (Musselman v. Charles A. Gaetano Const. Corp., 277 AD2d 691, 692-93 [3d Dept 2000]).

Defendants also argue that the Labor Law section 240(1) is inapplicable because, they allege, the plaintiff's actions were the sole proximate cause of accident (Weininger v Hagedorn & Co. (91 NY2d 958, 960 [1998]). In making this argument, defendants rely on Montgomery v. Federal Express Corp., 4 NY3d 805 [2005]). In Montgomery, the plaintiff was assigned to do work in an elevator "motor room" located some four feet above the roof level of a building. Although there was no ladder in the immediate vicinity, ladders were available at the job site. Rather than go and retrieve a ladder, plaintiff climbed to the motor room by standing on an inverted bucket. When he left the motor room, plaintiff jumped down to the roof, injuring his knee in the process. The Court of Appeals ruled that plaintiff's actions were the sole proximate cause of his accident. Montgomery, [*3]however, is readily distinguishable from the case at bar because there was a safe means entering and exiting the elevated workspace available. In the case at bar there was not.

Conclusion

Based on the foregoing, the defendants motion for summary judgment with respect to the claim alleging a violation of Labor Law section 240(1) is denied.

This constitutes the Decision and Order of the Court.

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J.S.C.