Tomczyk v 555 Park Ave., Inc.

[*1] Tomczyk v 555 Park Ave., Inc. 2009 NY Slip Op 50510(U) [22 Misc 3d 1139(A)] Decided on March 25, 2009 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 25, 2009
Supreme Court, Kings County

Czeslaw Tomczyk and Halina Tomczyk, Plaintiffs,

against

555 Park Avenue, Inc., Defendant.



555 Park Avenue, Inc., Third-Party Plaintiff, against Third-Party

against

Upgrade Contracting Company, Inc., Third-Party Defendant.



4123/07



For plaintiff:

Brad Nomberg

Brand, Brand, Nomberg, and Rosenbaum

110 Norman Avenue

Brooklyn, NY

For defendant:

Michael O'Malley

Rubin, Fiorella, & Friedman

292 Madison Avenue

New York, NY 10017

Francois A. Rivera, J.

Upon the foregoing papers, Czeslaw Tomczyk (plaintiff) and his wife Halina Tomczyk (collectively, plaintiffs) move for an order, pursuant to CPLR 3212, granting them partial summary judgment on the issue of liability under Labor Law § 240 (1). Plaintiffs further request, pursuant to CPLR 2001, that the caption of the case be amended to remove the references to the third-party action which has been discontinued.

THE PLEADINGS

On February 5, 2007, plaintiffs commenced this action against defendant, 555 Park Avenue, Inc. (defendant), by filing a summons and complaint seeking money damages for personal injuries and loss of consortium based upon claims of common-law negligence as well as violations of Labor Law §§ 200, 240 (1), and 241 (6).[FN1] On March 28, 2007, issue was joined when defendant served its answer on plaintiffs. On or about November 19, 2007, defendant served a third-party summons and complaint adding to the suit plaintiff's employer, Upgrade Contracting Company, Inc. (Upgrade), and pleading claims for common-law indemnity, contractual indemnity, and contribution. On or about February 7, 2008, issue was joined in the third-party action when Upgrade served its answer. On March 24, 2008, the third-party action was discontinued.

THE MOTION PAPERS

Plaintiffs' summary judgment motion consists of an attorney's affirmation and five exhibits. Exhibit A consists of (a) the prior summary judgment motion, which was denied, with leave to renew, by decision and order of this court dated June 8, 2008 (the prior decision),[FN2] (b) defendant's affirmation in opposition to that motion, and (c) Upgrade's affirmation in opposition, in each case, with the exhibits to their respective papers. Exhibit B is the stipulation discontinuing the third-party action. Exhibit C is the court's prior decision in this matter. Exhibit D is a transcript of the deposition of plaintiff's foreman, Tadeusz Konarzewski. Exhibit E is a transcript of the deposition of Upgrade's president, Joseph McCallion.

Defendant's opposition is an attorney's affirmation.

Oral argument was held on November 21, 2008 and the motion was submitted for decision.

BACKGROUND

This personal injury action stems from a December 7, 2006 construction accident in which plaintiff, an Upgrade bricklayer, fell approximately 20 feet[FN3] to the ground below while descending in a material hoist basket made of hard canvas. At his pre-trial deposition,[FN4] plaintiff testified that [*2]shortly before the accident, he was standing on an electric, two-engine scaffold with his foreman, Konarzewski, when he needed to take a bathroom break.[FN5] However, his foreman did not let him lower the scaffold and instead instructed him to get into the material basket which the helper on the ground, Piotr Kiszczak, would then lower down. Plaintiff stated that on prior occasions, the foreman had lowered the scaffold to allow him to go to the bathroom and that he had never used a material hoist basket to descend to the ground. However, according to plaintiff, the foreman directed plaintiff to use the basket at that time because the foreman said it was late in the day and they had to finish pointing the bricks that had been laid. Plaintiff testified that he did not want to use the basket, that the helper called the foreman "crazy" for making plaintiff use the basket, but that he complied nonetheless.

The material basket initially was on the ground. It was raised to the scaffold level and then placed on the scaffold by the helper using a safety line that, according to the foreman, ran through a reel attached to an electric hoist on the roof (Konarzewski Tr. at 25). Plaintiff entered the basket when it was placed on the scaffold and the helper pulled the basket up over the scaffold rail and then started lowering it down to the ground. The helper lowered the basket for approximately half a story when the basket with plaintiff inside it abruptly dropped to the ground, causing injuries to plaintiff.

At the time of the accident, plaintiff was wearing a safety harness connected to a safety line which, in turn, was attached to a beam on the building roof. According to plaintiff, that safety line pulled him up as he fell with the basket. The safety line used to move the basket and the safety line to which plaintiff was attached were two separate safety lines. The basket was not connected to the scaffold in any way (Konarzewski Tr. at 25).

The only eyewitnesses to the accident were plaintiff and the foreman.[FN6] In connection with the instant motion, plaintiff has provided the court with the transcript of the foreman's deposition. The foreman confirmed plaintiff's testimony that at the time of the accident he was wearing a safety harness tied to a safety line which was attached to a beam on the roof (Konarzewski Tr. at 45-47).

However, the foreman denied that he had refused to lower the scaffold for plaintiff. He further denied that he had suggested that plaintiff use the basket to descend to the ground (Konarzewski Tr. at 48-50).[FN7]

[*3]THE PARTIES' CONTENTIONS

Plaintiffs

Plaintiffs contends that they are entitled to summary judgment because plaintiff fell two stories while working at an elevated height, that he fell because he was riding a basket that was not intended to transport people, and that the safety line to which he was attached at the time of the accident did not prevent his fall.

Defendant

Defendant contends that in light of the foreman's testimony, the summary judgment motion should be denied as there is a question of fact as to whether plaintiff's own conduct constituted the sole proximate cause of the accident. Defendant also contends plaintiff was a "recalcitrant worker," i.e., one whose refusal to use the available safety devices resulted in injury.

DISCUSSION

In its prior decision, the court held that plaintiff established a prima facie showing of his entitlement to summary judgment because "the devices provided to plaintiff were inadequate to provide him with the proper protection from a fall while being lowered in the material bucket [basket]" (Prior Decision, at 9). The court further stated that it was incumbent upon defendant to raise a triable issue of fact on liability in order to defeat the summary judgment motion (Prior Decision, at 8). Because of the incomplete record, the court denied plaintiff's summary judgment motion to allow defendant to take an already scheduled deposition of the foreman (Prior Decision, at 11-12).

Now that discovery has been completed, plaintiff's position that a failure of his safety line contributed to the accident has been strengthened. The sworn testimony of plaintiff and now that of the foreman reflects that, at the time of the accident, plaintiff was wearing a safety harness which was attached to a safety line which, in turn, was attached to the building roof (Konarzewski Tr. at 29-30): "Q.And during the time that Mr. Tomczyk was on the scaffold before the accident happened, was he wearing his safety harness?A.When it happened, yes, of course. Yes, he did.Q.Was he hooked on with his harness to the safety line.A.Yes."

(Konarzewski Tr. at 45-46).

To prevail on a Labor Law § 240 (1)[FN8] claim, a plaintiff must establish that the statute was [*4]violated and that the violation was a proximate cause of his or her injuries (see Blake v Neighborhood Hous. Servs. of New York City, Inc., 1 NY3d 280, 287 [2003]). When those elements are established, the defendant's liability is absolute, rendering any alleged negligence on the part of the plaintiff irrelevant (see id.).[FN9]

Here, plaintiff has made a prima facie showing of entitlement to judgment as a matter of law on the issue of liability on so much of the complaint as alleged a violation of Labor Law § 240 (1) through the submission of his and his foreman's deposition testimony which demonstrated that the subject safety line failed to afford him proper protection from an elevation-related risk and that this failure was a proximate cause of his injuries (see Tiernan v County of Monroe, 172 AD2d 1068 [4th Dept 1991] [the owner and general contractor violated Labor Law § 240 (1) where the decedent was employed as a laborer dismantling a bridge when he fell approximately 70 feet from the bridge superstructure, and when he was reached by the other workers after the accident, he was wearing his safety belt and two lanyards which were provided to him to protect against falls]).

The burden thus shifts to defendant to establish that "there was no statutory violation and that plaintiff's own acts and omissions were the sole proximate cause of the accident" (Blake, 1 NY3d at 289, n.8). Defendant argues that plaintiff should have used the scaffold, rather than the material basket, to reach the ground, and that the summary judgment motion should be denied because of the inconsistency between the testimony of plaintiff and that of the foreman as to the reason why plaintiff resorted to the use of the material basket.[FN10] Adopting this litigation strategy, defense counsel contended at oral argument that the scaffold was plaintiff's primary, if not the sole, safety device: "The scaffold is the safety equipment to do his job, not the harness. He is not supposed to be hanging there like Spiderman. He is on the scaffold, worked on it every day, eight hours a day" (Tr. at 34). Defense counsel's argument, however, is rebutted by the foreman's sworn testimony that the safety line/harness was more important than the scaffold itself because plaintiff would not have been allowed to work on the scaffold without putting on a safety harness first: "Q.Were the workers required to use their safety harnesses any time there were on the scaffold?A.It was mandatory.[*5]Q.Did you enforce that as the foreman?A.Of course. You can't work. He wouldn't be able to work.Q.What do you mean by he'?A.I wouldn't allow him to step onto the scaffold if he didn't hook up."

(Konarzewski Tr. at 30-31).

Defendant makes no claim that plaintiff modified or misused the harness. In fact, defense counsel at oral argument professed a complete ignorance of how a safety line/harness operated: "THE COURT: His [plaintiff's] argument is, . . . no matter what, I shouldn't have hit the ground with this safety line. And your [defendant's] response is you should have stayed on the scaffold. But, you're not connecting the scaffold and why this harness permitted him to hit the ground. I guess it's because you don't know how it works.MR. O'MALLEY [defense counsel]: There is no record as to how it works, that's correct, Your Honor.

THE COURT: So, you have no way of showing me why it didn't work in this case; right? MR. O'MALLEY: Assuming he is tied on and why fell to the ground, no, I have no way of showing to you why he ever reached the ground.THE COURT: So, all we have is the failure of a harness to keep him off the ground.

* * * THE COURT: What I have from what I heard is no dispute that he had the harness on and that he had the harness on when hit the ground.MR. O'MALLEY: Yes, Your Honor. That's undisputed testimony.

(Tr. at 39; 41 [emphasis added]).[FN11] Defendant has submitted no expert affidavit as to how a safety line was supposed to operate.[FN12] [*6]

With the proper focus of the inquiry being on the failure of plaintiff's safety line, his concurrent use of the material basket becomes irrelevant. It is clear that a failure of plaintiff's safety line contributed to his fall (see Blake, 1 NY3d at 287 [where a device as placed and constructed is inadequate to the task, liability is mandated as a matter of law, provided that the injured party establishes that the statutory violation "was a contributing cause of his fall"]; Cammon v City of New York, 21 AD3d 196, 201 [1st Dept 2005] ["regardless of the precise manner in which the accident occurred, a defendant is not absolved from liability where . . . a plaintiff's injuries are at least partially attributable to the defendant's failure to provide protection as mandated by the statute"]).

While plaintiff may have been negligent in using the material basket in an attempt to reach the ground, his conduct cannot be considered the sole proximate cause of his injuries (see Chlebowski v Esber, 871 NYS2d 652, 653, 2009 NY Slip Op 00325 [2d Dept 2009]). In other words, the accident was not caused "exclusively" by plaintiff's own acts (see Kyle v City of New York, 268 AD2d 192, 196 [1st Dept 2000]). The Second Department's decision in Kwang Ho Kim v D & W Shin Realty Corp. (47 AD3d 616 [2008]) is illustrative. In Kim, a plaintiff sustained injuries when the ladder he was working on outside of a building slipped out from under him during a rain storm. There was evidence that plaintiff was not holding onto the ladder when he fell and that he disregarded a supervisor's order to stop working because it was raining and plaintiff was working alone. Nevertheless, the Second Department determined that the trial court erred in dismissing plaintiff's Labor Law § 240 (1) claim pursuant to the proximate cause defense. Specifically, the Kim court ruled: "The fact that the plaintiff was not holding onto the ladder when he fell does not obviate the statutory requirement to provide proper protection where plaintiff's work required the use of both hands. Moreover, it cannot be said that the plaintiff was the sole proximate cause of the accident as there is evidence that the failure to secure the ladder contributed to his fall. Likewise, [movant] did not establish, as a matter oflaw, that the plaintiff's failure to heed [his supervisor's] instructions to stop working was the sole proximate cause of his injuries"

(Kwang Ho Kim, 47 AD3d at 616).

Finally, defendant has failed to demonstrate that plaintiff was a "recalcitrant worker" (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39-40 [2004] [the plaintiff was a "recalcitrant worker" when he received specific instructions to use a safety line while climbing, but chose to disregard those instructions]). The Court of Appeals has held that such a "defense is limited to cases in which a worker has been injured as a result of a refusal to use available safety devices provided by the employer or owner" (Hagins v State of New York, 81 NY2d 921, 923 [1993]). In Hagins, "[c]laimant was injured when he fell from the top of an unfinished abutment wall that rose some 15 feet above a road construction site." The asserted defense was that the plaintiff had been instructed not to walk across the abutment, and, indeed, had been told not to do that more than once. The Court of Appeals stated that such instructions were of themselves insufficient to render the [*7]plaintiff a "recalcitrant worker" since there had been no "refusal" to use available safety devices (id., at 921).

In this case, plaintiff was not a recalcitrant worker since he disobeyed no instruction regarding his use of the scaffold. Significantly, the foreman did not testify that he had instructed plaintiff to use only the scaffold to reach the ground. Indeed, it would have impossible for plaintiff, without the foreman's cooperation, to lower the scaffold to the ground because it required two workers (one per electric switch) to operate it.[FN13]

Accordingly, because defendant has failed to raise a triable issue of material fact, plaintiff Czeslaw Tomczyk is entitled to summary judgment on liability on his Labor Law § 240 (1) claim. No evidence is presented, however, in support of the derivative claim of Czeslaw's wife, Halina Tomczyk. Although the court's ruling inures to her benefit, she has made no prima facie showing on her claim for loss of consortium (see Cangialosi v Gotham Const. Co., LLC, 865 NYS2d 892, 902, 2008 NY Slip Op 28413 [Sup Ct, Kings County 2008]).

CONCLUSION

To the extent plaintiffs' motion seeks summary judgment on liability on the Labor Law § 240 (1) claim of Czeslaw Tomczyk, the motion is granted and the Clerk is directed to enter judgment accordingly. To the extent the motion seeks summary judgment on the cause of action alleged by Halina Tomczyk, it is denied.

The caption is as amended to reflect the dismissal of the third-party action, as follows: -

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X

Czeslaw Tomczyk and Halina Tomczyk,

Plaintiffs,

- against -Index No. 4123/07

555 Park Avenue, Inc.,

Defendant. -

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1: The court's short-form order dated March 14, 2008 granted, without opposition, defendants' cross motion for summary judgment dismissing plaintiffs' common-law negligence and Labor Law § 200 claims.

Footnote 2: Reported at 20 Misc 3d 1101 (A), 2008 WL 2414476, 2008 NY Slip Op 51179 (U) (2008).

Footnote 3: Exhibit D, Konarzewski Tr. at 92-93.

Footnote 4: Mr. Tomczyk testified at his deposition through a sworn Polish interpreter, and such testimony will be considered herein. However, Mr. Tomczyk has also submitted a December 27, 2007 affidavit in support of his motion for summary judgment. This affidavit, which was drafted by plaintiffs' counsel, is not accompanied by a translator's affidavit. Therefore, the court will not consider Mr. Tomczyk's affidavit (see CPLR 2101 [b]; see also Baginski v Queen Grand Realty, LLC, 21 Misc 3d 1110 [A], 2008 WL 4531527, *2, 2008 NY Slip Op. 52027 [U] [Sup Ct, Queens County 2008]).

Footnote 5: The court is unable to provide page references to the Tomczyk deposition transcript because its pages are not numbered.

Footnote 6: The third potential witness, the helper who worked on the ground, moved abroad and was not deposed.

Footnote 7: The deposition testimony of Upgrade's president, Joseph McCallion, is irrelevant to the issues at hand because Mr. McCallion was not a witness to the accident. Anything that Mr. McCallion may have been told by the foreman or the helper about the accident is inadmissible hearsay and cannot be used to support a motion for summary judgment (see Madalinski v Structure-Tone, Inc., 47 AD3d 687, 688 [2d Dept 2008]).

Footnote 8: Labor Law § 240 (1) provides, in relevant part:

"All contractors and owners and their agents . . . 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."

Footnote 9: It is undisputed that defendant is an "owner" under Labor Law § 240 (1).

Footnote 10: Defense counsel admitted at oral argument that if the foreman had instructed plaintiff to use the material basket, defendant lost its case (Tr. at 39: "MR. O'MALLEY: "If the argument is we told him to go in the bucket, we lost, there is no argument. If we told him to go use this, that's it, we lost").

Footnote 11: Defense counsel admitted that defendant had no evidence as to whether the safety line would have protected plaintiff had he slipped and fallen off the scaffold (Tr. at 31).

Footnote 12: Defense counsel's affirmation that the safety line failed to stop entirely plaintiff's fall because he was too close to the ground (Cardo Aff. at 14) cannot serve as admissible evidence since counsel lacks personal knowledge of the facts in this case (see Tlatelpa v Yallico, 14 Misc 3d 130 [A], 2007 WL 29055, *1, 2007 NY Slip Op 50015 [U] [App Term, 2d & 11th Jud Dists 2007]).

Footnote 13: See Konarzewski Tr. at 20:

"Q:Is it possible for one person alone on the scaffold to operate the scaffold up and down?

A:No. There is no such possibility because the distance between the two engines is so great it is impossible."