Jenkins v Verizon Communications, Inc.

[*1] Jenkins v Verizon Communications, Inc. 2009 NY Slip Op 52775(U) [28 Misc 3d 1217(A)] Decided on December 16, 2009 Supreme Court, Ulster County Zwack, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2009
Supreme Court, Ulster County

James Jenkins, Plaintiff,

against

Verizon Communications, Inc., and John David Principe, as Trustee of Croton Falls Building Trust, Defendants.



08-4324



Mainetti, Mainetti & O'Connor, P.C.

Attorneys For Plaintiff

Joseph E. O'Connor, Esq., of counsel

303 Clinton Avenue

P.O. Box 3058

Kingston, New York 12402

Whiteman & Frum

Attorneys For Defendant Verizon Communications, Inc.

Donald L. Frum, Esq., of counsel

565 Taxter Road

Suite 150

Elmsford, New York 10523

Henry F. Zwack, J.

In this personal injury action, defendant Verizon Communications, Inc. (Verizon) moves for summary judgment dismissing the complaint and cross-claims against Verizon. Plaintiff opposes the motion.

On December 18, 2007 plaintiff was injured while working on behalf of Darmstadt Overhead Doors at a location leased by Verizon in North Salem, New York. Plaintiff was on a ladder attempting to loosen tension on springs on an overhead garage door when he fell to the ground and was injured. Plaintiff commenced the present action and alleges violations of Labor Law Sections 200, 240(1) and 241(6).

Verizon now moves for summary judgment, arguing that the Labor Law Sections upon which plaintiff's complaint is based do not have applicability to this case based upon the circumstances of this case. Verizon notes that plaintiff was replacing a part in an overhead garage door, that there is no claim that the ladder plaintiff used was broken or defective, and that Verizon did not control or direct the work.

Plaintiff opposes the motion, arguing that plaintiff was not performing routine maintenance on the garage door at issue but was performing work in conjunction with installation of a new overhead door. Plaintiff argues that the work constitutes an alteration and/or construction under Labor Law § 240. Plaintiff also argues that there is a question of fact as to whether the ladder at issue provided appropriate protection to plaintiff, despite the fact there is no claim that the ladder was defective. Plaintiff does not directly address Verizon's motion to the extent that it seeks dismissal of Labor Law § 200 and § 241 claims.

In reply, Verizon argues that the work plaintiff was performing was routine maintenance according to plaintiff's own deposition testimony. Verizon argues that the expert affidavit submitted by plaintiff consists of unsupported and conclusory speculation.

Verizon argues that plaintiff has failed to raise a triable issue of fact in opposition to the motion.

Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact (Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The focus should be on issue identification rather than issue determination (Sternbach v Cornell University, 162 AD2d 922, 923 [3d Dept 1990]). "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see also Ayotte v Gervasio, 81 NY2d 1062 [1993]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Once the movant has established a right to judgment as a matter of law, the burden shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact (see Alvarez, supra; Zuckerman, supra). The evidence must be viewed in [*2]the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference, in order to determine whether there is any triable issue of fact outstanding (see Suffolk Co. Dept. of Soc. Servs. v James M., 83 NY2d 178, 182 [1994]; Boyce v Vazquez, 249 AD2d 724, 725 [3d Dept 1998]).

The Court has reviewed plaintiff's deposition testimony carefully in light of the dispute between counsel as to the nature of plaintiff's work at the property. It appears clear from the deposition testimony of plaintiff that the work being performed on the date of the accident was finishing work related to installation of new overhead doors, and was not in the nature of a general repair or routine maintenance. Plaintiff testified that he had been present at the same location three or four days prior to the accident. He was one of four workers at that time and his job was to assemble the doors that were being installed. He testified that he and another worker later went back to replace a part that had been ordered, which is the day that plaintiff's accident occurred. Plaintiff testified that in the course of loosening tension on a spring, one of the tension rods he was holding began moving, lifting plaintiff off the ladder and causing him to fall onto the ground. Plaintiff also testified that he had been told by the company he worked for not to let go of tension rods because they could cause damage.

The Court also notes that plaintiff's coworker on the day of the accident has submitted an affidavit in which he affirms that "[t]he work we were performing was part of an entire installation of a brand new door".

Regarding plaintiff's Labor Law § 240(1) claim, the Court finds that defendant failed to set forth prima facie entitlement to judgment as a matter of law. The deposition testimony of plaintiff establishes that plaintiff was involved with the installation of new overhead doors at the property and that the work done by plaintiff on the day of the accident was finishing work relating to that installation. Based upon this, the nature of the work would fall under Labor Law § 240(1) (see, Prats v Port Authority of New York & New Jersey, 100 NY2d 878, 882 [2003]; Belding v Verizon New York, Inc., 65 AD3d 414 [1st 2009]; Brown v Concord Nurseries, Inc., 37 AD3d 1076 [4th Dept 2007]).

Even if Verizon had established prima facie entitlement to judgment as a matter of law, the Court finds that the submissions of plaintiff would raise triable issues of fact. Plaintiff's coworker confirms in an affidavit that the work on the day of the accident was part of the new overhead door installation. Additionally, the expert affidavit submitted by plaintiff raises questions of fact as to whether the ladder plaintiff was using was sufficient to protect him given the nature of the work being performed, which required him to be using both his hands.

The Court does not find that plaintiff is required to establish that the ladder was defective (see, e.g., Trippi v Main-Huron, LLC, 28 AD3d 1069 [4th Dept 2006]; Bonanno v Port Authority of New York and New Jersey, 298 AD2d 269, 270 [1st Dept 2002]; Labor Law § 240(1)). Under the circumstances, and considering plaintiff's testimony that his employer had informed him not to let go of tension rods, the Court finds that there is a [*3]question of fact as to whether the ladder provided proper protection to plaintiff.

Regarding plaintiff's Labor Law § 241(6) claim, Verizon argues that the industrial code sections cited by plaintiff in his bill of particulars are either inapplicable or nonspecific. The Court notes however that at least portions of Industrial Code section 23-1.21, dealing with ladders, has been held to be sufficiently specific to support a Labor Law §241(6) claim (see, e.g., Losurdo v Skyline Associates, L.P., 24 AD3d 1235, 1237 [4th Dept 2005]; 12 NYCRR 23-1.21[e][3]). The Court notes that two sections of the Industrial Code regarding ladders are cited by plaintiff's expert as being violated in this case based upon the circumstances. These sections are substantially similar to this section held sufficiently specific to support the Labor Law § 241(6) claim in Losurdo. The Court therefore declines to dismiss the plaintiff's Labor Law § 241(6) claim to the extent that Industrial Code Section 23-1.21 violations are claimed.

Regarding plaintiff's common law negligence and Labor Law § 200 claims, Verizon argues that it did not supervise or control the work of plaintiff or his employer, as required for such claims (Lombardi v Stout, 80 NY2d 290, 294-95 [1992]). Plaintiff does not directly oppose this assertion and the Court does not find any evidence in the deposition testimony or other documents submitted that refutes Verizon's argument in this regard. Therefore, the Court grants Verizon's motion to dismiss plaintiff's claims under the common law and Labor Law § 200.

The Court also notes that Verizon had moved to dismiss all cross-claims against it. However, no pleading containing cross-claims was submitted with the motion and therefore the Court denies this portion of the motion, without prejudice.

Accordingly, it is

ORDERED, that defendant Verizon Communications, Inc.'s motion for summary judgment is granted to the extent set forth above.

This constitutes the Decision and Order of the Court. This Decision and Order is returned to the attorneys for Verizon Communications, Inc. All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk. The signing of this Decision, Order and Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

Dated:December16, 2009

Troy, New York

________________________________________

Henry F. Zwack

Acting Supreme Court Justice