McLeod v City of New York

[*1] McLeod v City of New York 2009 NY Slip Op 50518(U) [22 Misc 3d 1140(A)] Decided on March 26, 2009 Supreme Court, Kings County Miller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 26, 2009
Supreme Court, Kings County

Stephen McLeod and Drucilla McLeod, Plaintiffs,

against

The City of New York and New York City Department of Education, Defendants.



31793/06



The plaintiffs are represented by the law offices of James J. McCrorie, P.C., by James McCrorie, Esq., of counsel, the defendants are represented by the firm of Lester Schwab Katz Dwyer, LLP, by Lauren M. Mazzara, Esq., of counsel.

Robert J. Miller, J.

Upon the foregoing papers, plaintiffs Stephen and Drucilla McLeod move, pursuant to CPLR 3212, for partial summary judgment on the issue of liability under their Labor Law § 240 (1) claim. Defendants the City of New York and the New York City Department of Education cross- move, pursuant to the same statute, for an order granting them summary judgment dismissing plaintiffs' complaint which includes causes of action based upon violation of Labor Law §§ 240 (1); 241 (6) and 200 and common law negligence.

Background

On March 31, 2006, Stephen McLeod (plaintiff) was working for a company known as Tempco Service Industries (Tempco) at New York City Public School 150 (P.S. 150) in Brooklyn. It is undisputed that the City of New York, is the owner of the premises and the Department of Education is its agent in operating the building. The Department of Education entered into a contract with Tempco for "facility management services" at various public schools. Plaintiff had worked for Tempco at P.S. 150 since 1995 performing cleaning, painting and repairs.

On the morning of March 31, 2006, when plaintiff arrived at the school, there was a meeting at which the workers were told that the school had received violations relating to paint peeling in certain classrooms. Plaintiff was instructed to scrape the paint and plaster off of the [*2]ceiling of classroom 202B, so that the ceiling could then be repainted. The record reveals that plaintiff utilized a nine-foot wooden A-frame ladder in order to reach the ceiling which was approximately 15 feet high. Plaintiff testified that before getting on the ladder, he checked to make sure that the safety clip was down and made sure the ladder was level. He further testified that the bottom of the legs of the ladder were made of wood and did not have any clips or rubber on them. Plaintiff was standing on the second highest rung of the ladder and was approximately eight feet off the ground plastering the ceiling when the ladder slipped and shifted to the right causing plaintiff to fall off the ladder and sustain various injuries.

Plaintiffs' Motion

Plaintiffs move for partial summary judgement in their favor on the issue of liability on their Labor Law § 240 (1) claim.

The proponent of a motion for summary judgment carries the initial burden of production of evidence as well as the burden of persuasion (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). Thus, the moving party must tender sufficient evidence to demonstrate as a matter of law the absence of a material issue of fact. Once that initial burden has been satisfied, the "burden of production" shifts to the opponent, who must now go forward and produce sufficient evidence in admissible form to establish the existence of a triable issue of fact. The court's function on this motion for summary judgment is issue finding rather than issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue (Rotuba Extruders v Ceppos, 46 NY2d 223 [1978]). Thus, when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied (Stone v Goodson, 8 NY2d 627 [1960]; Sillman, supra).

Labor Law § 240 (1) imposes absolute liability upon owners and contractors who fail to provide or erect safety devices necessary to give proper protection to workers exposed to elevation-related hazards (see generally Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d 280, 287-290 [2003]; see Misseritti v Mark IV Constr., Co., 86 NY2d 487, 490-491 [1995]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500-501 [1993]; Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]). Specifically, § 240 (1) provides, in pertinent part, that:

"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."

In order to impose liability under the statute, a plaintiff must demonstrate that the statute was violated and that the violation was a proximate cause of his or her injuries (see Blake, 1 NY3d 280, 287 [2003]). The statute is designed to protect workers from gravity-related hazards [*3]such as falling from a height (Ross, 81 NY2d at 501), and must be liberally construed to accomplish the purpose for which it was framed (see Rocovich, 78 NY2d at 513). Although any purported contributory or comparative negligence of the plaintiff is not a defense in an action brought under the statute, a Labor Law Section 240 (1) cause of action will not stand in cases where the plaintiff's own conduct was the sole proximate cause of his injury (see Robinson v East Med. Ctr., 6 NY3d 550 [2006]; Weininger v Hagedorn & Co., 91 NY2d 958 [1998]; Allen v Village of Farmingdale, 282 AD2d 485, 486 [2001]).

The statute is violated when the plaintiff is exposed to an elevation-related risk while engaged in an activity covered by the statute, and the defendant fails to provide a safety device adequate to protect the plaintiff against the elevation-related risk entailed in the activity, or provides an inadequate one (see Broggy v Rockefeller Group, Inc., 8 NY3d 675, 681 [2007]; see also Narducci v Manhasset Bay Assocs., 96 NY2d 259, 267 [2001]; Felker v Corning Inc., 90 NY2d 219, 224 [1997]; Zimmer v Chemung County Performing Arts, 65 NY2d 513, 524 [1985]; see generally Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]). As such, in determining whether Labor Law § 240 (1) applies, the question is whether there is "a significant risk inherent in the particular task because of the relative elevation at which the task must be performed or at which materials or loads must be positioned or secured" (Rocovich, 78 NY2d at 514 [1991]).

In support of their motion for partial summary judgment on their Labor Law § 240 (1) claim, and in opposition to defendants' cross motion for dismissal of said claim, plaintiffs argue that plaintiff was engaged in a statutorily protected activity, was required to perform his work at an elevation and was not provided an adequate safety device to prevent his fall. Plaintiffs point out that plaintiff was required to plaster the ceiling as part of a project to repaint the classroom and, thus, was required to perform this work on a ladder. They further point out that the ladder that he was provided did not have any rubber feet to prevent it from slipping and tipping over.

In opposition, and in support of their cross motion, defendants contend that Labor Law § 240 (1) is not applicable to the instant case arguing that plaintiff was engaged in routine maintenance and not in a statutorily protected activity at the time of his accident. They point to plaintiff's testimony that he had been involved in the maintenance of the plaster and paint at the premises more than seven times in his capacity as a cleaner at the school. Alternatively, they state that even if the court were to find that plaintiff was engaged in a statutorily-protected activity, liability can not be imposed upon them because plaintiff was the sole proximate cause of his accident. Defendants contend that there were other ladders available at the premises which could have been utilized by plaintiff. Finally, defendants argue that plaintiffs' motion for partial summary judgment should be denied because his accident was unwitnessed.

In opposition to defendants' cross motion, plaintiffs argue that the plastering activity in which he was engaged at the time of his accident falls within the scope of painting which is a specifically enumerated activity. In addition, plaintiffs argue that he was not the sole proximate cause of his accident, but rather the accident was caused because he was provided with a defective ladder and was not given an adequate safety device. Finally, plaintiffs point out that the fact that he accident was unwitnessed would not preclude a grant of summary judgment in his favor

Discussion[*4]

The court will first address the arguments raised regarding whether plaintiff was engaged in a covered activity at the time of his accident.

The Second Department in Johnson v Flatbush Presbyt. Church (29 AD3d 862 [2006]) held that a person performing plastering was "engaged in an activity specifically protected by Labor Law § 240 (1)" (see also Camacho v 101 Ellwood Tenants Corp., 289 AD2d 102 [2001]). However, defendants argue that even if the court were to find that plaintiff's plastering was a covered activity, Labor Law § 240 (1) liability still cannot be imposed upon them because plaintiff's work constituted routine maintenance and was not done in the context of construction or renovation activity. The court disagrees. It has been held that "scraping, plastering, skim coating and painting, did not constitute routine maintenance' excluded from the ambit of sections 240 (1) and 241 (6) of the Labor Law" (Aarons v 401 Hotel, L.P., 12 AD3d 293, 294 [2004]; see Artoglou v Gene Scappy Realty Corp., 57 AD3d 460, 461 [2008] [holding that "[p]ainting is a protected activity that "need not [be] incidental to the other listed activities such as construction, repair, or alteration, to be covered" by Labor Law § 240(1)]; Rivers v Sauter, 26 NY2d 260, 262 [1970]; Joblon v Solow, 91 NY2d 457, 464-465 [1998]; Loreto v 376 St. Johns Condominium, Inc., 15 AD3d 454, 454-455 [2005] [holding that scraping and painting were protected activities under Labor Law § 240 (1) and need not have been incidental to the other listed activities, such as construction, repair, or alteration, to be covered]; De Oliveira v Little John's Moving, 289 AD2d 108 [2001]; Cornacchione v Clark Concrete Co., 278 AD2d 800, 801[2000] ). Based upon the foregoing, the court finds that plaintiff was engaged in a covered activity at the time of the accident and is, thus, entitled to the protections afforded workers under Labor Law § 240 (1).

Plaintiffs argue that they are entitled to summary judgment in their favor on their Labor Law § 240 (1) claim because plaintiff was caused to perform his work on a ladder that did not have any rubber feet which slipped and shifted, causing him to fall and that this was the proximate cause of his accident. In support of this argument, plaintiffs point to his plaintiff's deposition testimony, as well as the testimony of his coworkers, Darrian Alonzo Smith and Calvin McQuiller, both of whom testified that they retrieved the ladder for plaintiff from a closet on the second floor where they were working. Smith testified that they chose the ten-foot ladder because it was the tallest and it was the only one that would allow plaintiff to accomplish the task of plastering the ceiling. The court notes that plaintiff testified that it was actually his coworker Delroy and himself who retrieved the ladder from the closet and that it was chosen because it was the only one that would allow him to perform the work he was required to perform. However, the discrepancy regarding who actually retrieved the ladder is irrelevant to the resolution of these motions and does not raise a question of fact. The deposition testimony of all three gentleman reveals that they were all in agreement that the ladder that plaintiff was utilizing was the only one that he could have used to perform his work. Plaintiff has also submitted an affidavit from Smith stating that the ladder plaintiff fell from was the only ladder on site that plaintiff could have used to perform his work. Additionally, plaintiff, McQuiller and Smith all testified that the bottom feet of the ladder were made of wood and that there were no rubber grips. McQuiller further testified that the ladder was worn and Smith also testified that the ladder was worn and that he had experienced it being a little "shifty" one of the times he used it. Finally, plaintiff testified that the ladder slipped and shifted to the right causing plaintiff to fall off the ladder and sustain [*5]various injuries.

As this evidence makes plain, plaintiff has made a prima facie showing of his entitlement to judgment as a matter of law on the issue of liability with respect to the Labor Law § 240 (1) cause of action. Specifically, he demonstrated through his deposition testimony, and that of two of his coworkers, that he was injured when he fell to the floor after the unsecured ladder on which he was working shifted to the right and caused him to fall off the ladder (see Mingo v Lebedowicz, 57 AD3d 491, 493 [2008]; Ricciardi v Bernard Janowitz Constr. Corp., 49 AD3d 624, 625 [2008]; Johnson, 29 AD3d at 863; Chlap v 43rd St.-Second Ave. Corp., 18 AD3d 598 [2005]; Loreto, 15 AD3d at 455; Sztachanski v Morse Diesel Intl., Inc., 9 AD3d 457, 457-458 [2004]; Pineda v Kechek Realty Corp., 285 AD2d 496 [2001]).

In so finding, the court rejects defendants' argument that plaintiff was the sole proximate cause of his accident because there were other ladders available at the school and plaintiff chose to use this one and because plaintiff's own actions in raising his left hand above him to touch the ceiling and holding a shovel in his other hand caused him to lose his balance and fall off the ladder.

The sole proximate cause defense generally applies where a plaintiff misused a safety device, removed a safety device, failed to use an available safety device that would have prevented the accident, or knowingly chose to use an inadequate device despite the availability of an adequate device (see e.g. Robinson v East Med. Ctr., LP, 6 NY3d 550, 555 [2006] [plaintiff's choice to use inadequate ladder, despite proper ladders readily available at site, was sole proximate cause of accident]; Blake, 1 NY3d at 291 [plaintiff's misuse of ladder was sole proximate cause of accident]; Letterese v State of New York, 33 AD3d 593, 593-594 [2006] [plaintiff's decision to use inadequate ladder despite availability of adequate ladders on site was sole proximate cause of accident]; Negron v City of New York, 22 AD3d 546, 547 [2005] [plaintiff's failure to have himself re-tied off was sole proximate cause of accident]).

The court finds that defendants have failed to raise a triable issue of fact as to whether plaintiff's conduct was the sole proximate cause of the accident. First, the court finds that defendants' argument that plaintiff proximately caused his accident by reaching to the ceiling with one arm and holding a tool in the other lacks merit. The work that plaintiff was required to perform, plastering the ceiling, by its nature, required him to lift his hand above his head and touch the ceiling. In fact, this assertion actually supports plaintiff's claim that he was not given an adequate safety device to perform his work and prevent his accident. Moreover, the testimony of plaintiff and his coworkers revealed that although there were other ladders in the building, the metal ladder that was on site was an extension ladder which was not appropriate for the work plaintiff was performing and the ladders stored in the basement were broken. Accordingly, defendants have failed to demonstrate that plaintiff was the sole proximate cause of his accident.

Moreover, the court finds that defendants argument that liability should not be imposed upon it because plaintiff's accident was unwitnessed lacks merit as it is well settled that the fact that the accident was unwitnessed does not preclude granting summary judgment to the plaintiff (Rivera v Dafna Constr. Co., Ltd., 27 AD3d 545 [ 2006]; see Yurkovich v Kvarner Woodworking, 289 AD2d 183, 184 [2001]; Cruz v Turner Constr. Co., 279 AD2d 322, 323 [2001]; Bras v Atlas Constr. Corp., 166 AD2d 401 [1990]). Based upon the foregoing, plaintiffs' motion for partial summary judgment in their favor [*6]on the Labor Law § 240 (1) claim is granted. That branch of defendants' motion seeking summary judgment dismissing plaintiffs' Labor Law § 240 (1) claim is denied.

Having granted plaintiff's motion based upon Labor Law § 240(1), the Court sees no need to consider defendants' argument that they are entitled to summary judgment dismissing the claims based upon the violation of Labor Law §§ 241(6) and 200, and common law negligence. It is clear from the record that plaintiff's damages are the same regardless of the theory of liability, and plaintiff can only recover these damages once. As such, defendants' arguments concerning the lack of merit of the other theories of liability contained in the complaint are academic and defendants'motion is denied in its entirety (see Torino v KAM Const. Co. Inc., 257 AD2d 541 [1999]; Covey v Iroquois Gas Transmission Sys., 218 AD2d 197 [1996]).

The foregoing constitutes the decision, order and judgment of this court.

E N T E R,

____________________

J. S. C.

Robert J. Miller