Cocoli v Champion Constr. Corp.

[*1] Cocoli v Champion Constr. Corp. 2009 NY Slip Op 52570(U) [25 Misc 3d 1244(A)] Decided on December 10, 2009 Supreme Court, Kings County Partnow, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 10, 2009
Supreme Court, Kings County

Arthur Cocoli, Plaintiffs,

against

Champion Construction Corp., The City of New York, the New York City School Construction Authority, the New York City Department of Education, Defendants.



45942/07



Plaintiff's Attorney

Block, O'Toole & Murphy

1 Penn Plaza

NY, NY 10119

212-736-5300

Defendant's Attorney

Fabiani, Cohen & Hall

570 Lexington Avenue

NY, NY 10022

212-644-4420

Mark I. Partnow, J.

Upon the foregoing papers, plaintiff Arthur Cocoli moves for an order, pursuant to CPLR 3212, granting partial summary judgment on the issue of liability under Labor Law § 240 (1) against defendants Champion Construction Corp., The City of New York, The New York City School Construction Authority, The New York City Department of Education (collectively, the defendants). Defendants cross-move for an order, pursuant to CPLR 3212, granting summary judgment dismissing plaintiff's complaint in its entirety, or, in the alternative, staying the trial of this matter until the decisions regarding the above-referenced motions have been rendered by the court.

Factual Background

The instant action arises out of an accident which occurred on August 17, 2007, when the plaintiff Arthur Cocoli (plaintiff) sustained injuries after falling from a ladder while [*2]working at the International High School at Prospect Heights, located at 883 Classon Avenue, Brooklyn, New York. At the time of the incident, the City was the owner of the school building and the premises. The school was undergoing renovations. Defendant Champion Construction Corp. (Champion) was the general contractor for the ongoing project at the school. Champion hired Stanco, a contractor, to install light fixtures and computer wiring. Stanco, in turn hired, Urban, a subcontractor, to perform some of the work. At the time of the accident, the plaintiff was employed by Urban as an electrician.

During his deposition, the plaintiff testified that his partner on the date of the accident was Mike Kourkemelis, a fellow Urban employee. On the date of th accident, the plaintiff was performing work, which involved him removing light fixtures located within the drop ceiling in a classroom located on the third floor of the school building. The ceiling was approximately 10 feet high. The plaintiff initially entered the room with his cart of tools and an 8-foot A-frame ladder supplied by Stanco. According to plaintiff, when he realized that the 8-foot ladder was too short for the assigned task, he decided to use a 10-foot ladder that was already open and erected in the room and in the exact location of where he was going to work. Plaintiff believed that the ladder belonged to another trade that was performing work at the site. Plaintiff climbed up the ladder and started to perform his work. As he did so, the ladder wobbled and fell, thereby causing the plaintiff to also fall. As a result of the accident, he allegedly sustained various injuries. The plaintiff was standing on the seventh rung of the ladder just before it fell. After he fell, the plaintiff claimed that he looked at the ladder and noticed that one of the legs was broken, and that the ladder did not have any rubber footing to prevent it from slipping. According to plaintiff, the ladders supplied by Stanco and his employer, Urban, were stored on the third floor of the school. He further stated that Stanco and/or Urban had ladders of all sizes, including two 10-foot ladders. At the time of the accident, plaintiff claims that his co-worker, Mike, was using one of the 10-foot ladders, and that the other one was not in the storage area where the ladders were usually kept. Plaintiff further testified that the ladder was not secured in any way, and that he was not provided with any safety harnesses or life lines while performing his work.

Plaintiff subsequently filed a notice of claim with the City defendants and brought the instant action against the defendants, alleging violations of Labor Law §§ 240(1), 241(6), 200, as well as common-law negligence. After the joinder of issue the parties engaged in discovery. Plaintiff now seeks partial summary judgment as to liability under his Labor Law § 240(1) cause of action. Defendants oppose plaintiff's motion and cross-move for summary judgment dismissing all of plaintiff's Labor Law causes of action, as well as his common-law negligence claim.

Discussion

Labor Law § 240(1)

Plaintiff seeks partial summary judgment on his Labor Law § 240(1) cause of action, arguing that the ladder from which he fell was defective in that it had a broken leg and lacked [*3]rubber footing, and therefore failed to afford him proper protection and that its failure proximately caused the accident. Plaintiff claims that he is, therefore, entitled to summary judgment on the issue of liability given such failure to provide him with a safe and secure ladder on which to work or any required safety devices to protect him from elevation-related work hazards.

In opposition, defendants contend that the plaintiff was a recalcitrant worker, and the sole proximate cause of his accident. In this regard, it is defendants' contention that the plaintiff should have used one of Stanco's 10-foot ladders to perform his work in the drop ceiling rather than use the 10-foot ladder that was already present in the room, which belonged to another trade working at the site. The defendants point to the plaintiff's deposition testimony in which he claimed that he had seen ladders of all sizes, including two 10-foot ladders, that were supplied by Stanco, stored on the third floor of the premises. The defendants therefore assert that the plaintiff failed to use the appropriate protection, one of the two 10-foot ladders that were provided by Stanco, which constituted an adequate safety device that was readily available at the site. Further, defendants claim that the plaintiff should have inspected the ladder involved in the accident prior to using it. Defendants, therefore, assert that plaintiff's failure to use one of Stanco's 10-foot ladders that were available to him at the site, and his failure to inspect the ladder present in the room was the sole proximate cause of the accident. As such, defendants seek the dismissal of plaintiff's Labor Law § 240(1) cause of action.

Summary judgment should only be granted where there are no triable issues of fact (Sillman v Twentieth Century-Fox Film Corp ., 3 NY2d 395, 404 [1957] ). The moving party on a motion for summary judgment has the burden of demonstrating "a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case"(Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852 [1985] ). Once the movant has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which require a trial (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] ). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The evidence presented on summary judgment must be scrutinized in the light most favorable to the party opposing the motion (Goldstein v Monroe County, 77 AD2d 232, 236 [1980]). Accordingly, "[i]f 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, 547 [1995]).

Labor Law § 240(1) affords protection to construction site workers who are exposed to elevation-related hazards (see generally, Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d 280, 287-290 [2003]). Specifically, § 240 (1) provides, in pertinent part, that: [*4]

"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."

Labor Law § 240(1) requires property owners and contractors to furnish or cause to be furnished safety devices, such as ladders and scaffolds, which are "so constructed, placed and operated as to give proper protection" to workers. Moreover, "the duty imposed by Labor Law § 240(1) is nondelegable and ... 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" (Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 500 [1993]; see also Haimes v New York Tel. Co., 46 NY2d 132, 136-137 [1978]). Finally, the statute is to be construed as liberally as possible in order to accomplish its protective goals (see Martinez v City of New York, 93 NY2d 322, 326 [1999]). In order for a plaintiff to demonstrate entitlement to summary judgment on an alleged violation of Labor Law § 240(1), he must establish that there was a violation of the statute, which was the proximate cause of the worker's injuries (see Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 289 [2003]).

Here, the court finds that the 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 deposition testimony, which demonstrated that the subject ladder failed to afford him proper protection for the work being performed, and that this failure was a proximate cause of the accident (see Gilhooly v Dormitory Auth. of State of New York, 51 AD3d 719, 720 [2008]; Ricciardi v Bernard Janowitz Constr. Corp., 49 AD3d 624, 625 [2008]; Jicheng Liu v Sanford Tower Condominium, Inc., 35 AD3d 378 [2006]; Pichardo v Aurora Contrs., Inc., 29 AD3d 879, 880 [2006]). At his deposition, the plaintiff testified that the accident occurred when the ladder wobbled and fell, causing him to also fall. The plaintiff described the ladder as having one broken leg and indicated that there were no rubber feet or anti-skid pads on the bottom of the ladder to stabilize it and prevent it from slipping. Although defendants challenge plaintiff's version of the accident, they fail to submit any evidence which specifically contradicts the facts as alleged by plaintiff. Although Simon Davidson, Champion's senior project manager, testified that the ladder's legs did not appear to be broken, he did not contradict plaintiff's testimony that the ladder lacked rubber footing. As to how the accident actually happened, defendants have offered only speculation by Davidson, who did not personally witness the accident, that the plaintiff's injuries were caused when he leaned on the ceiling grid, which gave way, causing him to lose his balance and fall. Such speculation is insufficient to raise a triable issue of fact under the circumstances (see generally Morgan v New York Telephone, 220 AD2d 728 [1995]). [*5]

The court rejects defendants' contention that the plaintiff was a recalcitrant worker. A recalcitrant worker defense requires proof that a plaintiff disobeyed an immediate specific instruction to use an actually available safety device provided by the employer or to avoid using a particular unsafe device (see Santo v Scro, 43 AD3d 897, 898-899[2007]; Wall v Turner Constr. Co., 10 AD3d 261, 262 [2004], aff'd 4 NY3d 861 [2005; Jastrezebski v North Shore School Distr., 223 AD2d 677 [1996], aff'd 88 NY2d 946 [1996]; Andino v BFC Partners, 303 AD2d 338, 340 [2003]). Here, there is no evidence that plaintiff deliberately refused to use available safety devices after being instructed to use them (see Miraglia v H & L Holding Corp., 36 AD3d 456, 457 [2007]).

Next, defendants' argument that plaintiff's conduct was the sole proximate cause of the accident is unavailing, inasmuch as he neither engaged in unforeseeable, reckless activities nor misused a safety device that was provided to him (see Montgomery v Federal Express Corp., 4 NY3d 805, 806 [2005]; Urias v Orange County Agric. Socy., 7 AD3d 515 [2004]; Weingarten v Windsor Owners Corp., 5 AD3d 674, 677 [2004]). Defendants' claim that the plaintiff used a defective ladder, that was already set up in the room in which he was working, rather than attempt to find another ladder his employer had at the site is insufficient to establish as a matter of law that plaintiff's actions were the sole proximate cause of the accident (compare Robinson v East. Med. Ctr. LP, 6 NY3d 550 [2006][plaintiff's own negligent actions in choosing a ladder he knew was too short for the work to be accomplished, and then standing on the ladder's top cap in order to reach the work, were, as a matter of law, the sole proximate cause of his injuries]; compare also Montgomery v Federal Express Corp., 4 NY3d 805 [2005][rather than get an available ladder, plaintiff chose to use a bucket to get up, and then to jump down from his work area; plaintiff's actions were the sole proximate cause of his injury]).

Defendants' reliance upon Robinson v East. Med. Ctr. LP (6 NY3d 550 [2006]) is misplaced inasmuch as the facts of that case are distinguishable. In Robinson, the Court found that the plaintiff was the sole proximate cause of his accident because he knowingly chose to use a ladder that was too short for the task, despite the availability of taller ladders on site, and because he misused the shorter ladder by standing on its top cap. In Robinson, the plaintiff:

"knew that he needed an eight-foot ladder.... He acknowledge[d] that there were eight-foot ladders on the job site, that he knew where they were stored, and that he routinely helped himself to whatever tools he needed rather than requesting them from the foreman.... Yet [plaintiff] proceeded to stand on the top cap of a six-foot ladder, which he knew was not tall enough for this task, without talking to the foreman again, or looking for an eight-foot ladder beyond his immediate work location. In short, there were adequate safety devices eight foot ladders available for plaintiff's use at the job site."

(Robinson, 6 NY3d at 554-555). Based on these specific facts, the court in Robinson found that plaintiff's choice to use the shorter ladder and stand on its top cap rendered him the sole [*6]proximate cause of his fall (see also Letterese v State of New York, 33 AD3d 593, 593-594 [2006] [plaintiff was the sole proximate cause of the accident when he used an inadequate ladder despite availability of adequate ladders on site]).

In contrast, the plaintiff in the present case was injured when he chose to use a 10-foot ladder that was already set up in the classroom, which was the appropriate ladder height required for the job. Unlike Robinson, there is no evidence in the present case that the plaintiff knowingly used an inadequate ladder. During his deposition, the plaintiff testified that he did not inspect the ladder prior to using it and therefore did not notice that the ladder lacked rubber footing. Nor is there any evidence in the record that he misused the ladder as in Robinson (see Blake, 1 NY3d at 285 [plaintiff failed to engage locking clips on ladder that collapsed]). Most importantly, the court notes that in Robinson, there were adequate eight foot ladders on the site, plaintiff knew where they were, and they were easily obtainable, but he chose not to get one. Here, however, although the plaintiff conceded during is deposition that two other 10-foot ladders were present at the site, at the time of the accident, one of the ladders was being used by his co-worker, Mike, in another room, and the other one was not in the storage area where the ladders were normally kept. Additionally, plaintiff claimed that the trades at the site routinely used each others tools. In this court's view, under the foregoing circumstances, it was entirely reasonably foreseeable that plaintiff would use the 10-foot ladder which was already present at the immediate work area, especially in light of his testimony that the other 10-foot ladders were either in use or not in the storage area where they were usually kept (see Montgomery, 4 NY3d at 806).

Furthermore, plaintiff's use of the ladder without inspecting it first amounted, at most, to comparative negligence, which is not a defense to a section 240(1) claim (see Hernandez v 151 Sullivan Tenant Corp., 307 AD2d 207, 208 [2003]). Based upon the forgoing, the court finds that the plaintiff is entitled to partial summary judgment on his Labor Law § 240(1) cause of action inasmuch as he has submitted evidence which demonstrated that he fell from an unsecured ladder, and that the failure to secure the ladder proximately caused his injuries (see Yin Min Zhu v Triple L. Group, LLC, 64 AD3d 590 [2009]; Barr v 157 5 Ave., LLC, 60 AD3d 796 [2009]). Plaintiff's motion is therefore granted. Consequently, that branch of defendants' cross motion seeking summary judgment dismissing plaintiff's Labor Law § 240(1) cause of action is denied.

Labor Law § 241(6)

Defendants contend that the plaintiff's cause of action pursuant to Labor Law § 241(6) should be dismissed as the Industrial Code provisions cited by the plaintiff in support of that cause of action are either too general to support a section 241(6) cause of action, or not applicable to the facts of this case.

Labor Law § 241 (6) provides in pertinent part that:

"All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide [*7]reasonable and adequate protection and safety to persons employed therein or lawfully frequenting such places."

Labor Law § 241 (6), which was enacted to provide workers engaged in construction, demolition, and excavation work with reasonable and adequate safety protections, places a nondelegable duty upon owners and general contractors, and their agents to comply with the specific safety rules set forth in the Industrial Code (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 [1993]). Accordingly, in order to support a cause of action under Labor Law § 241 (6), a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of an Industrial Code provision that is applicable given the circumstances of the accident, and sets forth a concrete standard of conduct rather than a mere reiteration of common-law principals (Ross, 81 NY2d at 502; Ares v State, 80 NY2d 959, 960 [1992]; see also Adams v Glass Fab, 212 AD2d 972, 973 [1995]).

In support of his verified bill of particulars, plaintiff alleges that defendants have violated various Industrial Code sections including 12 NYCRR 23-1.7, 23-1.15, 23-1.16, 23-1.17 and 23-1.21. Defendants now seek to dismiss plaintiff's Labor Law § 241(6) claim on the grounds that the Industrial Code sections relied upon do not support the cause of action because they are either too general or not applicable to the facts herein. However, in opposition papers, plaintiff relies solely upon 12 NYCRR 23-1.21(b)(3) and (e)(2),and thus has apparently abandoned his claims with respect to the remaining alleged violations.

In any event, the court notes that the regulations set forth in 12 NYCRR 23-1.15, 23-1.16, and 23-1.17, which set forth standards for safety railings, safety belts, and life nets, respectively, are inapplicable here because plaintiff was not provided with any of these devices (see Dzieran v 1800 Boston Rd., LLC., 25 AD3d 336, 337 [2006]; Luckern v Lyonsdale Energy Ltd. Partnership, 281 AD2d 884, 887 [2001]). Additionally, while 12 NYCRR 23-1.7 is sufficiently specific to support a Labor Law § 241(6) claim, it only contemplates injuries occurring in passageways, walkways and/or working areas involving slipping, tripping or overhead hazards, none of which is applicable to this matter (see Jennings v Lefcon Partnership, 250 AD2d 388 [1998]). Thus, that section of the Industrial Code is also inapplicable to the facts herein.

As to 12 NYCRR 23-1.21(e)(2), it has been held that this section merely recites a general safety standard regarding the bracing of ladders and, therefore, is insufficient to sustain a cause of action under Labor Law § 241(6) (see Spenard v Gregware Gen. Contr., 248 AD2d 868, 871 [1998]; cf., Enderlin v Hebert Indus. Insulation, 224 AD2d 1020, 1021 [1996]).

Lastly, the plaintiff relies upon regulation 12 NYCRR 23-1.21(b)(3), which pertains to the maintenance and replacement of ladders, provides as follows:

(3) Maintenance and replacement. All ladders shall be maintained in good condition. A ladder shall not be used if any of the following conditions exist:

(I) If it has a broken member or part. [*8]

(ii) If it has any insecure joints between members or parts.

(iii) If it has any wooden rung or step that is worn down to three-quarters or less of its original thickness.

(iv) If it has any flaw or defect of material that may cause ladder failure.

The court finds that this regulation presents specific standards that could support a Labor Law § 241(6) claim, and that plaintiff' s testimony describing the leg of the ladder involved in his accident raises an issue of fact as to whether the ladder had broken, insecure or worn down members or parts (i.e., missing/broken rubber footing) in violation of 12 NYCRR 23-1.21(b)(3) and proximately caused his injuries (see De Oliveira v Little John's Moving Inc., 289 AD2d 108, 109 [2001]). Therefore, that branch of defendants' cross motion to dismiss plaintiff's Labor Law § 241(6) cause of action is granted only to the extent of dismissing said claim to the extent that it is predicated upon 12 NYCRR 23-1.7, 23-1.15, 23-1.16, 23-1.17 and 23-1.21(e)(2), and is denied regarding the Labor Law § 241(6) claim predicated upon 12 NYCRR 23-1.21(b)(3).

Labor Law § 200 and Common-Law Negligence

As to plaintiff's Labor Law § 200 and common-law negligence causes of action, defendants have made a prima facie showing of entitlement to judgment as a matter of law dismissing said claims insofar as asserted against them. Here, there is no evidence that any of the defendants directed or supervised the plaintiff's work at the site, nor is there any evidence that they had prior notice of any alleged dangerous condition at the site (see Peay v New York City School Constr. Auth., 35 AD3d 566 [2006]; Gonzalez v Pon Lin Realty Corp., 34 AD3d 638, 639 [2006]; Lopez v Port Auth. of NY & NJ, 28 AD3d 430, 431 [2006]). Moreover, the court notes that the plaintiff does not oppose the dismissal of these claims. Accordingly, that branch of the defendants' cross motion seeking to dismiss plaintiffs' Labor Law § 200 and common-law negligence claims is granted.

Conclusion

In sum, the court grants plaintiff's motion for partial summary judgment as to liability under his Labor Law § 240(1) cause of action. That branch of defendants' cross motion to dismiss plaintiff's Labor Law § 240(1) cause of action is denied. That branch of defendants' cross motion to dismiss plaintiff's Labor Law § 241(6) cause of action is granted only to the extent of dismissing said claim to the extent that it is predicated upon 12 NYCRR 23-1.7, 23-1.15, 23-1.16, 23-1.17 and 23-1.21(e)(2), and is denied regarding the Labor Law § 241(6) claim predicated upon 12 NYCRR 23-1.21(b)(3). That branch of defendants' cross motion seeking summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims is granted.

The foregoing constitutes the decision and order of the court.

ENTER,

J.S.C.