Nevins v Nth Degree, Inc.

[*1] Nevins v Nth Degree, Inc. 2009 NY Slip Op 50640(U) [23 Misc 3d 1108(A)] Decided on March 27, 2009 Supreme Court, Nassau County Brandveen, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2009
Supreme Court, Nassau County

Timothy Nevins, Plaintiff,

against

Nth Degree, Inc., Defendant.



5882/06

Antonio I. Brandveen, J.

The defendant moves for an order to amend the answer to include the Workers' Compensation affirmative defense, and for summary judgment, and to dismiss the verified complaint. The plaintiff cross moves for summary judgment. Both parties oppose the other party's motion. The underlying personal injury action arises from a January 19, 2004 incident at the Javits Center, in Manhattan, while the plaintiff was in the process of constructing a booth for a company known as ADS. This Court has carefully reviewed and considered all of the parties' papers submitted with respect to these motions.

The defense counsel states, in an affirmation dated August 25, 2008, the nature of the action, provides the pleadings and proceedings with respect to this action, and sets forth the defense contentions regarding the motion. The defense counsel points out amendments to pleadings are freely given, and here, following the discovery phase, the defense ascertained the plaintiff received wages from the defendant, and took direction and instruction from the defendant. The defense counsel asserts, under the exclusive remedy provision of the Workers' Compensation Law § 11, the plaintiff is barred from bringing a negligence action against his employer, and the plaintiff qualifies as a special employee of the defendant from the evidence presented by the defense, including the plaintiff's September 19, 2007 deposition testimony and payroll records. The defense counsel maintains the plaintiff cannot recover under Labor Law § 200 or under common law negligence because it attaches only if it can be shown the owner or general contractor had either actual or constructive notice of a defect that allegedly contributed to the happening, and the defendant here is not the owner nor general contractor.

The plaintiff's attorney points, in an affirmation dated October 7, 2008, to a [*2]preliminary conference order dated September 25, 2006, requiring any amendments within 30 days after examinations before trial. The plaintiff's attorney states the depositions were held on September 19, 2007, so a party had to amend by October 19, 2007. The plaintiff's attorney asserts the defense provides no excuse for the lateness, and no justification where this case is now on the trial calendar. The plaintiff's attorney asserts the plaintiff took directions from ADS, and not from the defendant, so the defendant is not entitled to the benefit of the special employee defense. The plaintiff's attorney notes it may be helpful to consider a number of factors, including the payment of wages, the right to hire or discharge, and the right to direct the servant where to go, in an attempt to decide the question of whether an employee is a special employee of another. The plaintiff's attorney avers the plaintiff should be granted summary judgment under Labor Law § 240 (1) since it is clear the incident occurred at an elevated height where a ladder was required, and the plaintiff's testimony is clear the defendant did not provide a ladder to assist the plaintiff in climbing to this elevated height, thus creating the collapse of the crate where the plaintiff stood, and resulted in injuries from the fall. The plaintiff's attorney notes Labor Law § 240 (1) imposes absolute liability for failing to provide safety devices for the Workers' protection, and this section is liberally construed to accomplish its purpose. The plaintiff's attorney maintains the defense motion should be denied, the plaintiff's cross motion granted, and the matter set for trial on damages only.

The plaintiff, a member of Carpenter's Union Local 608, provides commentary, in an affidavit dated October 6, 2008, for the circumstances of the subject incident. The plaintiff states, in the performance of the assembly operation at the work site, he "felt it was necessary to have a ladder taller than 6 feet. There was no ladder of that size that was to be found." The plaintiff proceeds in the narration, to wit: In the assembly operation I was required to go up onto the crate. I got up onto a wooden crate to attempt to assemble what I would call the roof of this display. In order to do this I had to take a step up from the crate on to what I would call the base of the display which would be about 30 inches high. I stepped on that crate and while I was on the crate it collapsed and that's how I was injured.

The defense counsel states, in a reply affirmation dated December 3, 2008, a response to the plaintiff's opposition, and indicates there are no triable issues of fact. The defense counsel asserts the plaintiff, who was assigned to construct a trade display booth for an upcoming event, voluntarily stood on a wooden crate that collapsed under his weight. The defense counsel avers the plaintiff testified he worked for the defendant at the time of the occurrence which testimony necessitated this defense motion seeking leave to amend the defense answer to include the Workers' Compensation affirmative defense because the plaintiff worked as a special employee of the defendant at the time of the happening. The defense counsel notes the plaintiff makes a feign argument of untimeliness against the defense motion for amendment, and cites no authority to preclude this relief. The defense counsel contends leave to amend a pleading should be freely granted absent a showing of [*3]prejudice. The defense counsel points out, in an attempt to circumvent the special employee designation, the plaintiff submitted an affidavit contradicting his September 19, 2007 deposition testimony regarding instruction and direction on how to assemble the contents of the crates, and the provision of such by an unidentified individual for ADS. The defense counsel points out the September 19, 2007 deposition testimony of Todd Amodeo, the defendant's New York City manager, shows Amodeo oversaw the project with respect to the defendant's function to insure the booth or exhibit was assembled and erected. The defense counsel notes Amodeo testified Javits Center had union carpenters that were assigned to perform such tasks, and the defendant kept on-site tools and equipment, including ladders of varying sizes for the purpose of erecting display booths. The defense counsel observes Amodeo testified the ladders were kept approximately 250 to 300 feet from where the plaintiff worked, and there were more than 60 ladders in the building. The defense counsel remarks the plaintiff never informed Amodeo he could not find a ladder, and the plaintiff opted to stand on the plywood crate while another unidentified person with whom the plaintiff worked used a six-foot ladder. The defense counsel contends Labor Law § 240 (1) does not apply here since the plaintiff was only 20 inches off the ground, and he did not fall. The defense counsel asserts the plaintiff's contention the defendant failed to provide a ladder is not supported by testimonial evidence, rather there were available ladders, and others used ladders at the site.

CPLR 3025 (b) provides: "A party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances." The Second Department holds: Leave to amend a pleading should be freely granted absent prejudice or surprise resulting directly from the delay in seeking the amendment (see CPLR 3025 [b]; Rosicki, Rosicki & Assocs., P.C. v Cochems, AD3d , 2009 Slip Op 01097 [2d Dept 2009]; Sheila Props., Inc. v A Real Good Plumber, Inc., AD3d , 2009 Slip Op 00672 [2d Dept 2009]; MacKenzie v Croce, 54 AD3d 825, 826; Bennett v Long Is. Jewish Med. Ctr., 51 AD3d 959). The court should not examine the merits or legal sufficiency of the proposed amendment unless it is palpably insufficient or patently devoid of merit on its face (see Rosicki, Rosicki & Assocs., P.C. v Cochems, AD3d , 2009 Slip Op 01097 [2d Dept 2009]; MacKenzie v Croce, 54 AD3d 825, 826)

Vista Properties, LLC v. Rockland Ear, Nose & Throat Associates, P.C., respondent, et al., - NYS2d , 2009 WL 708536, 2009 NY Slip Op. 01977 (2nd Dept., 2009); see also Fidelity Holdings, Inc. v. Marom, 276 AD2d 468, 713 NYS2d 703 [2nd Dept., 2000]. This Court gives the defense leave to amend the answer as requested. There is not prejudice shown by the plaintiff with respect to this request.

Labor Law § 200 (1) provides:

All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health [*4]and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons. The board may make rules to carry into effect the provisions of this section.

The Second Department holds: "[f]or an owner to be held liable under Labor Law § 200, the plaintiff must show that the owner supervised or controlled the work, or had actual or constructive notice of the unsafe condition causing the accident (see Garcia v Petrakis, 306 AD2d 315 [2003]; Duarte v East Hills Constr. Corp., 274 AD2d 493 [2000]; Charles v City of New York, 227 AD2d 429 [1996])" (Lioce v. Theatre Row Studios, 7 AD3d 493, 493-494, 776 NYS2d 89 [2nd Dept., 2004]). An owner of premises cannot be held liable for injuries caused by an allegedly defective condition unless the plaintiff establishes that the owner either created or had actual or constructive notice of the condition (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]). To constitute constructive notice, the defect must be visible and apparent, and it must exist for a sufficient length of time before the accident to permit the defendant an opportunity to discover and remedy it (see Gordon v American Museum of Natural History, supra ; Lee v Bethel First Pentecostal Church of Am., 304 AD2d 798, 799 [2003]). Moreover, constructive notice will not be imputed where a defect is latent and would not be discoverable upon reasonable inspection (see Lee v Bethel First Pentecostal Church of Am., supra ; Rapino v City of New York, 299 AD2d 470 [2002]; Ferris v County of Suffolk, 174 AD2d 70, 76 [1992])

Curiale v. Sharrotts Woods, Inc., 9 AD3d 473, 474-475, 781 NYS2d 47 (2nd Dept., 2004).

Here, the alleged defect was neither visible nor apparent, and the plaintiff voluntarily chose a wood crate rather than a ladder for the performance of his work. The defendant neither created nor had actual or constructive notice of the condition, and in opposition, the plaintiff fails to raise a triable issue of fact as to a Labor Law § 200 violation (see Lal v. Ching Po Ng, 33 AD3d 668, 823 NYS2d 429 [2nd Dept., 2006]; see also Loreto v. 376 St. Johns Condominium, Inc., 15 AD3d 454, 790 NYS2d 190 [2nd Dept.,2005]).

"In order to prevail on a Labor Law § 240(1) claim, a plaintiff must establish that the statute was violated, and that the violation was a proximate cause of his or her injuries (see Blake v. Neighborhood Hous. Servs. of NY City, Inc., 1 NY3d 280, 771 NYS2d 484, 803 NE2d 757; Rudnik v. Brogor Realty Corp., 45 AD3d 828, 829, 847 NYS2d 141; Gardner v. New York City Tr. Auth., 282 AD2d 430, 723 NYS2d 204)" Labor Law § 240 (1), often called the "scaffold law," provides that "[a]ll contractors and owners ... shall furnish or erect, or cause to be furnished or erected ... 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 [construction workers employed [*5]on the premises]."FN3 The purpose of this statute is to protect workers and to impose the responsibility for safety practices on those best situated to bear that responsibility (see, Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520; 1969 NY Legis Ann, at 407). It is by now well established that the duty imposed by Labor Law § 240 (1) is nondelegable and that an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work (see, e.g., Haimes v New York Tel. Co., 46 NY2d 132, 136-137).

Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 499-500, 601 NYS2d 49 (1993).

This State's highest Court proceeded further on the issue of elevation risks, and stated: We recently had occasion to consider the nature of the occupational hazards to which Labor Law § 240 (1) was addressed. Noting that the statute " 'is to be construed as liberally as may be for the accomplishment of the purpose for which it was ... framed' " (Koenig v Patrick Constr. Corp., 298 NY 313, 319, quoting Quigley v Thatcher, 207 NY 66, 68), we held in Rocovich v Consolidated Edison Co. (supra ) that Labor Law § 240 (1) was aimed only at elevation-related hazards and that, accordingly, injuries resulting from other types of hazards are not compensable under that statute even if proximately caused by the absence of an adequate scaffold or other required safety device

Ross v. Curtis-Palmer Hydro-Electric Co., supra , at 500.

So, the Court of Appeals stated: As we observed in that case, Labor Law § 240 (1)'s list of required safety devices (e.g., "scaffolding," "hoists," "braces," "irons" and "stays"), all of which are used in connection with elevation differentials, evinces a clear legislative intent to provide "exceptional *501 protection" for workers against the "special hazards" that arise when the work site either is itself elevated or is positioned below the level where "materials or load [are] hoisted or secured" (78 NY2d, at 514). The "special hazards" to which we referred in Rocovich, however, do not encompass any and all perils that may be connected in some tangential way with the effects of gravity. Rather, the "special hazards" referred to are 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 (see, DeHaen v Rockwood Sprinkler Co., 258 NY 350). In other words, Labor Law § 240 (1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity [*6]to an object or person. The right of recovery afforded by the statute does not extend to other types of harm, even if the harm in question was caused by an inadequate, malfunctioning or defectively designed scaffold, stay or hoist

Ross v. Curtis-Palmer Hydro-Electric Co., supra , at 500-501.

"The Second reiterated the proposition by acknowledging: "[t]he protections of Labor Law § 240(1) are not implicated simply because the injury is caused by the effects of gravity upon an object" (Melo v. Consolidated Edison Co. of NY, 92 NY2d 909, 911, 680 NYS2d 47, 702 NE2d 832; see Ross v. Curtis-Palmer Hydro-Elec. Co., supra at 501, 601 NYS2d 49, 618 NE2d 82)" (Aloi v. Structure-Tone, Inc., 2 AD3d 375, 375-376, 767 NYS2d 832 (2nd Dept., 2003). Here, the plaintiff has not presented, in opposition, any evidence there was a fall as occasioned by the statutory requirements of Labor Law § 240 (1). Where a "plaintiff's actions [are] the sole proximate cause of his injuries, . . liability under Labor Law § 240 (1) [does] not attach" (Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998]; see also Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35 [2004]; Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d 280 [2003]). Instead, the owner or contractor must breach the statutory duty under section 240 (1) to provide a worker with adequate safety devices, and this breach must proximately cause the worker's injuries. These prerequisites do not exist if adequate safety devices are available at the job site, but the worker either does not use or misuses them

Robinson v. East Medical Center, LP, 6 NY3d 550, 554, 814 NYS2d 589 (2006).

Here, the defense establishes prima facie entitlement to judgment as a matter of law by submitting proof that had been available for the plaintiff's use when he began working that day, and the plaintiff fails to raise a triable issue of fact in opposition. It is well settled that one who is in the general employ of one party may be in the special employ of another despite the fact that the general employer is responsible for the payment of wages, has the power to hire and fire, has an interest in the work performed by the employee, maintains workers' compensation for the employee, and provides some, if not all, of the employee's equipment (Stone v. Bigley Bros., 309 NY 132, 127 NE2d 913; Irwin v. Klein, 271 NY 477, 3 NE2d 601; Brooks v. Chemical Leaman Tank Lines, 71 AD2d 405, 422 NYS2d 695). While there are many factors to consider in determining whether a special employment relationship exists, the key factor is the right to direct the work and the degree of control exercised over the employee (see, Irwin v. Klein, supra ; Poppenberg v. Reliable Maintenance Corp., 89 AD2d 791, 453 NYS2d 519; O'Brien v. Garden Way Mfg., 72 AD2d 860, 421 NYS2d 729)

Cameli v. Pace University, 131 AD2d 419, 516 NYS2d 228 (2nd Dept., 1987). [W]hile the issue of special employment is often a question of fact for the jury (see, Abramson v. Long Beach Mem. Hosp., 103 AD2d 866, 478 NYS2d [*7]105; Brooks v. Chemical Leaman Tank Lines, supra ; Hill v. Erdle Perforating Co., 53 AD2d 1008, 386 NYS2d 265), the indicia of special employment in the instant case are so strong that, in the absence of a triable issue, the court properly determined it as a matter of law (see, Doboshinski v. Fuji Bank, 78 AD2d 537, 432 NYS2d 99)

Doboshinski v. Fuji Bank Ltd., 78 AD2d 537, 432 NYS2d 99 (2nd Dept., 1980).

The plaintiff's testimony and the Javits Convention Center payroll statement show the plaintiff had a special employment relationship with the defendant. The opposing papers here are legally insufficient to raise a question of fact as with respect to this issue, the only inference which may be reasonably drawn is that the plaintiff was then a special employee of the defendant (Doboshinski v. Fuji Bank Ltd., supra ).

Accordingly, the defense motion is granted, and the plaintiff's cross motion is denied. So ordered.

Dated: March 27, 2009

ENTER:

______________________________

J. S. C.