Avila v City of New York

[*1] Avila v City of New York 2009 NY Slip Op 51975(U) [25 Misc 3d 1205(A)] Decided on September 18, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 18, 2009
Supreme Court, Kings County

Cesar Avila and Piedad Castillo, Plaintiffs,

against

City of New York, New York City Board of Education and New York City Housing Authority, Defendants.



8119/2003



Attorney for the Plaintiffs

Cesar Avila and Piedad Castillo

Schwartz Goldstone & Campisi

90 Broad Street, Ste. 403

New York, New York 10004

212-962-2800

Attorneys for Defendant

New York City Housing Authority

Lester, Schwab, Katz & Dwyer

120 Broadway - Thirty Eighth Floor

New York, New York 10271-0071

212-964-6611

Martin Schneier, J.

In this work related-personal injury action plaintiff, Cesar Avila, (Avila), moves pursuant to CPLR § 3212 for an Order granting him summary judgment on his Labor Law [*2]Section 240(1) claim.

Background

On May 20, 2002 Avila was employed performing construction work at defendant New York City Housing Authority's building located at 370 Blake Avenue, Brooklyn, New York. It is undisputed that Avila was injured when he fell from what is alternatively described as a scaffold or sidewalk bridge.

The circumstances which led to his fall and injury are sharply disputed.

Avila testified at his deposition and at his 50-H hearing, where he described the accident. He was working on top of the sidewalk bridge helping to disassemble it and had requested to use a safety harness but was refused. He was directed by his supervisor to walk on to a section of the sidewalk bridge where the planks had been removed and only sheet metal remained. When he stepped onto the sheet metal it collapsed and he fell to the ground, sustaining injury.

Goren Popovski, plaintiff's supervisor, averred in his affidavit sworn to on June 10, 2009 that: "One of the men assigned to the sidewalk area "sticking" the material was Cesar Avila. For some reason, Mr. Avila commented to me that he wanted to go up onto the scaffold to talk with one of the workers working on the top of the scaffold. I told him no, that I needed him to stay on the sidewalk and stick the material. Mr. Avila didn't listen to me. Then even though we had an extension ladder next to the area, Mr. Avila climbed up the outside of the scaffold frame. As he stepped on top of the scaffold, he immediately fell through the corrugated steel panels that were still in place, landing on the sidewalk

... Cesar Avila had worked on my crew for about a year before this incident, and had only worked as a "sidewalk man" sticking material. He had never worked on top of the scaffold, and was not authorized to do so on the date of the incident. I always felt he was better suited to stick the materials, as he was not OSHA certified to work on top of the scaffold and hadn't received the 10 hours of required training."

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 Kirchoff, 14 AD3d 493 [2nd Dept 2005]). "Issue finding, rather than issue determination is the court's 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]).

A plaintiff moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact. (Alverez v Prospect Hosp., 68 NY2d 320 [1986]); Napolitano v. Suffolk County Dept. of Public Works, 65 AD3d 676 [2d Dept 2009]). Once the plaintiff has satisfied this obligation, the burden shifts and the defendant in opposing the motion must now demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action (Alvarez v. Prospect Hosp., supra; Zuckerman v. City of New York, 49 NY2d 557, 560 [1980]).

In order "to recover on a cause of action pursuant to Labor Law § 240(1), a plaintiff must demonstrate that there was a violation of the statute, and that the violation was a proximate cause [*3]of the accident" (Blake v. Neighborhood House. Servs. of NY City, 1 NY3d 280 [2003] Gittleson v. Cool Wind Ventilation Corp.,46 AD3d 855, 856 [2nd Dept 2007]). As a general rule, the contributory negligence of the worker is not a defense (Moniuszko v. Chatham Green, Inc., 24 AD3d 638, 639 [2nd Dept 2005]). However, there is no liability pursuant to Labor Law section 240(1), if the plaintiff's actions are the sole proximate cause of his injuries (Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998]; Rudnik v. Brogor Realty Corp.,45 AD3d 828 [2nd Dept 2007]).

Plaintiff submits in support of the motion his deposition testimony and his 50-H hearing testimony which are sufficient to met his initial prima facie burden of establishing that he is entitled to summary judgment as a matter of law as there are no triable issues of fact.

Defendant submits in opposition the affidavit of Avila's supervisor, Goren Popovski, which is sufficient to raise a triable issue of fact as to whether Avila's actions were the sole proximate cause of his injuries, and consequently that liability under Labor Law Section 240(1) did not attach.

Plaintiff argues that the affidavit of Goren Popovski should not be considered by the Court because it was not submitted in conformity with CPLR § 2214.

Popovski's affidavit was submitted in defense counsel's self-entitled "Affirmation in Further Opposition to Plaintiff's Motion for Summary Judgment." Plaintiff argues, correctly, that this is in fact a sur-reply, which is not permitted by CPLR § 2214. However, it is, nonetheless, within the Court's discretion to consider sur-reply papers (Gastaldi v. Chen, 56 AD3d 420 [2nd Dept 2008]). Furthermore, the plaintiff was afforded the opportunity to respond to the sur-reply and did so. Accordingly, the affidavit of Goren Popovski will be considered by the Court.

Conclusion

Based on the foregoing, the plaintiff's motion for summary judgment is denied.

This Constitutes the Decision and Order of the Court.

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J.S.C.