Neuman v IBM

[*1] Neuman v IBM 2009 NY Slip Op 50499(U) [22 Misc 3d 1138(A)] Decided on March 23, 2009 Supreme Court, Dutchess County Pagones, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 23, 2009
Supreme Court, Dutchess County

Michael Neuman and LARHONDA NEUMAN, Plaintiffs, IBM and WHITING-TURNER CONTRACTING CO., Defendants.



1841/04



BRUCE SCHOENBERG, ESQ.

SCHONBERG LAW OFFICES

Attorneys for Plaintiffs

219 Route 32, Suite 201

P.O. Box 217

Central Valley, New York 10917

ALFRED D'ISERNIA, ESQ.

FORD, MARRIN, ESPOSITO,

WITMEYER & GLESER, LLP

Attorneys for Defendants/

Third-Party Plaintiffs/

Second Third-Party Plaintiffs/

Third Third-Party Plaintiffs

IBM and WHITING-TURNER

CONTRACTING COMPANY

Wall Street Plaza

New York, New York 1005-1875

KENNETH J. PAGANINI, ESQ.

PAGANINI, GAMBESKI, NASHAK,

CIOCI, CUSUMANO & FAROLE, ESQS.

Attorneys for Third-Party Defendant

PERRECA ELECTRIC CO., INC.

1979 Marcus Avenue, Suite 220

Lake Success, New York 11042-1002

JOHN T. BRENNAN, ESQ.

HENDERSON & BRENNAN, ESQS.

Attorneys for Second Third-Party Defendant MALCON, INC.

222 Mamaroneck Avenue

White Plains, New York 10605-1320

Law Offices of HANLON, VELOCE &

WILKINSON

Attorneys for Second Third-Party Defendant

PECK ELECTRIC, INC.

94 New Karner Road, Suite 205

Albany, New York 12203-7300

NICOLETTI, GONSON, SPINNER

& OWEN, LLP

Attorneys for Third

Third-Party Defendant

555 Fifth Avenue, 8th Floor

New York, New York 10017

James D. Pagones, J.

Defendants IBM and Whiting-Turner move for summary judgment dismissing the plaintiffs' complaint and for judgment against defendant Malcon for contractual indemnification. Third-party defendant Peck Electric moves for summary judgment dismissing the plaintiffs' complaint and dismissing the second third-party complaint and all cross-claims against it. The plaintiffs cross-move for summary judgment on the issue of the defendants' liability and, in the alternative, for an order pursuant to CPLR Rule 3126 striking the defendants' answers due to defendants' failure to produce and for spoliation of photographic evidence. The second third-party defendant, Malcon, Inc., moves for summary judgment dismissing the third-party plaintiffs' complaint and all cross-claims against it.

The plaintiffs' complaint alleges that at the time plaintiff Michael Neuman was injured, he was employed by A.J. Eckert on a construction project at defendant IBM's Fishkill plant. The general contractor was defendant Whiting-Turner Contracting Co. Plaintiff Michael Neumann's employer, Eckert, was a subcontractor of defendant Whiting-Turner. Third-party defendants Malcon and Peck Electric were also subcontractors performing electrical work which would have involved the electrical conduit that allegedly caused the plaintiff's fall. Plaintiff Michael Neuman was descending an A-frame ladder when he allegedly caught his foot in some conduit poking through the rungs causing him to trip and fall to the metal grating floor. There is no allegation in the complaint that the ladder itself was defective and it is beyond dispute that the ladder was tied off. The ladder which the plaintiff was using was provided, owned and erected by Eckert employees with plaintiff's supervision.

It is well settled that in order "to obtain summary judgment, it is necessary that the movant establish his or her cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment' in his or her favor (CPLR 3212[b]), and he or she must do so by tender of evidentiary proof in admissible form." (Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 NY2d 1065, 1067 [1979].) Parties opposing a motion for summary judgment are obliged to lay bare their evidentiary proof in admissible form in order to show that their allegations are capable of being established at a trial. (Albouyeh v. County of Suffolk, 96 AD2d 543 [2d Dept. 1983] aff'd 62 NY2d 681 [1984].) Bare conclusory allegations, expressions of hope or unsubstantiated assertions are insufficient. (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980].)

Labor Law §240(1) specifically provides:

"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, 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, slings, 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. [*2]

No liability pursuant to this subdivision for the failure to provide protection to a person so employed shall be imposed on professional engineers as provided for in article on hundred forty-five of the education law, architects as provided for in article one hundred forty-seven of such law or landscape architects as provided for in article one hundred forty-eight of such law who do not direct or control the work for activities other than planning and design. This exception shall not diminish or extinguish any liability of professional engineers or architects or landscape architects arising under the common law or any other provision of law."

It has been held that the application of Labor Law §240(1) is:

"...limited to such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured." (Gonzalez v. Turner Construction Company, 29 AD3d 630, 631 [2d Dept. 2006].)

In order "to establish a prima facie basis case pursuant to Labor Law §240(1), a plaintiff must demonstrate that the risk of injury from an elevation-related hazard was foreseeable, and that an absent or defective protective device of the type enumerated in the statute was a proximate cause of the injuries alleged." (Shipkowski v. Watch Case Factory Associates, 292 AD2d 587, 588 [2d Dept. 2002].)

On this application, the defendants have established, on a prima facie basis, that the ladder in question, erected and secured by a crew which plaintiff Michael Neumann was supervising, was not defective and was secured. (Nieves v. Five Boro Air Conditioning & Refrigeration Corp., 93 NY2d 914 [1999].)

The defendants have submitted plaintiff Michael Neumann's deposition testimony in which he avers that his fall was caused by his foot becoming entangled in a coil of conduit sticking through rungs of the ladder as he descended. The defendants have established, on a prima facie basis, that the plaintiff's accident was not related to any of the extraordinary elevation risks encompassed by Labor Law §240(1) but to the "usual and ordinary dangers of a construction site." (Toefer v. Long Island R.R., 4 NY3d 399, 407 [2005].)

In response, the plaintiffs have failed to submit any evidence which would establish that there are triable issues of fact in this regard. Therefore, it is ordered that the defendants' motion is granted and the plaintiffs' Labor Law §240(1) cause of action is dismissed.

On this application, the defendants have established that they did not supervise the plaintiff's work or control the work area where he was allegedly injured. The plaintiffs, in response, have failed to introduce any evidence which would create a triable issue of fact. Therefore, it is ordered that the defendants' motion is granted and the plaintiffs' common law negligence and Labor Law §200 claims are dismissed.

In light of the court's determination herein, the balance of the applications pending before this court are denied as moot.

The foregoing constitutes the order of the Court.

Dated:Poughkeepsie, New York

March 23, 2009

ENTER

HON. James D. Pagones, A.J.S.C.

TO:

032009 decision & order