Hernandez v 42/43 Realty LLC
Annotate this CaseDecided on July 15, 2009
Supreme Court, Bronx County
Melissa Hernandez, Plaintiff,
against
42/43 Realty LLC, BRF Construction Corp., and Bovis Lend Lease, Inc., Defendants.
22179/05
Mark Friedlander, J.
Plaintiff moves this Court for an order amending the caption to delete the name of defendant Bovis Lend Lease, Inc. ("Bovis") on the ground that Bovis is no longer a party to this action; and for a further order granting plaintiff summary judgment on the issue of the liability of defendants 42/43 Realty LLC ("RLLC") and BRF Construction Corp. ("BRF") under Labor Law Section 240(1).
Defendants RLLC and BRF cross-move for an order dismissing plaintiff's causes of action under Labor Law Sections 240(1), 241(6), 200 and 241-a. For the reasons set forth hereinafter, plaintiff's motion is granted in all respects, and defendants' cross-motion is granted only to the extent of dismissing claims arising under Labor Law 200 and 241-a.
This action arises out of plaintiff's fall from a ladder, on October 7, 2002, at a construction site at 350 West 43rd Street, New York, New York. At the time, plaintiff was a [*2]laborer installing fiber optic cable for her employer Verizon Avenue Corp. ("Verizon"). Plaintiff was working in a room below ground level, in a new building under construction. Plaintiff testified at her deposition that she had mounted to the fourth step of her ladder in order to pull down cable being fed to her from a floor above by a co-worker, when the ladder shifted, causing her to fall and sustain injuries.
Plaintiff initiated the instant action on October 3, 2005, seeking damages from the owner of the property, RLLC, and the general contractor on the site, BRF. RLLC and BRF thereafter impleaded plaintiff's employer, Verizon. Verizon has submitted no papers with regard to the motion and cross-motion now before the Court. Plaintiff initially named Bovis as a defendant, but was later persuaded that Bovis had no involvement with the premises at which plaintiff was injured. At this point, all remaining parties have agreed to a discontinuance with regard to Bovis. Plaintiff now moves, inter alia, to delete Bovis from the caption hereof, and no party has opposed this portion of the relief requested.
Therefore, such portion of plaintiff's motion as seeks to remove defendant Bovis from the caption is hereby granted, without opposition. The new caption of this action shall read as follows:
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
-x
MELISSA HERNANDEZ,
Plaintiff,
-against-Index No. : 22179/2005
42/43 REALTY, LLC, and BRF CONSTRUCTION
CORP.,
Defendants. -
x
42/43 REALTY, LLC, and BRF CONSTRUCTION
CORP.,
Third Party Plaintiffs,
-against- [*3]
VERIZON AVENUE CORP.
Third Party Defendant. -
x
Plaintiff shall serve a copy of this Order on the Clerk of the Court (Room 118) and upon the court's Motion Support Office, who shall amend their records accordingly.
The main point of contention between the parties is the possible liability of defendants under Labor Law 240(1). As to this cause of action, plaintiff moves, seeking summary judgment granting her claim, and defendants cross-move, seeking summary judgment dismissing the claim. Each points to statements made by plaintiff at deposition, as the basis for the relief sought.
Plaintiff points to her testimony that the floor of the sub-basement where her ladder was set up had crevices in it, with pieces of cement either on the floor or in the crevices, or both. When she tried to grab a length of wire being fed down to her, her ladder "gave," or "tipped over to the left," causing both the ladder and her to fall. The reason for the event was "the crevices, the gouges on the floor," or "the far left foot of the ladder was on a crevice, a gouge." Plaintiff attributed the irregularities in the floor to the fact that freshly poured cement had not sufficiently hardened when heavy machinery was rolled over it. She also stated that the holes in the floor were of varying shape, some running three inches across and two inches deep. (EBT, pp. 55-57, 65-66).
Defendants point to plaintiff's testimony that she had personally set up the ladder, and that the ladder was not defective; that the legs of the ladder were locked and that the ladder was stable. Plaintiff also said that the floor was level, where it did not contain holes or debris. Additionally, plaintiff admitted that she had not looked to see whether the ladder was standing on any debris, and that she did not request any safety devices, such as harnesses. (EBT, pp. 51, 57-59, 60-63).
Neither party challenges the assertions that this event occurred at a construction site which falls within the ambit of Labor Law 240(1) or that plaintiff was a laborer who sustained an elevation related injury. Nor is there any question that defendants' cross-motion relies entirely on plaintiff's own words, as spoken at her deposition. Defendants have not been deposed, and no affidavit by any defendant is submitted in support of the cross-motion or on opposition to the motion.
Based on plaintiff's testimony, she now urges that there is no issue of fact that she sustained an injury of the type covered under Labor law 240(1), because of the failure of defendants to provide a safe and level surface for her ladder. By contrast, defendants argue that plaintiff's own culpable conduct was the sole proximate cause of her accident and injury, because of her inattention to assuring that she chose a safe place to open her ladder.
It must be recalled, however, that a showing of comparative negligence on the part of the injured employee is insufficient to eliminate the liability of property owners and general contractors under Labor law 240(1). Here, so long as the uneven flooring contributed to the fall of the ladder, a failure on the part of plaintiff to exercise sufficient care in choosing a level spot would constitute only comparative negligence, and not "the sole proximate cause" of the event.
Further, defendants' characterization of plaintiff's testimony is often taken out of context [*4]and therefore inaccurate. Although plaintiff is said to have described the ladder as "stable," this statement follows a string of statements, which defendants do not quote (apparently hoping that the Court would not read the deposition transcript). Plaintiff in fact stated that the ladder was as "stable as I was going to get it on that floor." She also testified that she shook, or tried to move, the ladder after setting it up, to ensure that it was firmly planted. (EBT, pp.58-59). This testimony has the effect of establishing that plaintiff took measures to assure the steadiness of the ladder, and that the defects in the floor made it difficult to assure stability, regardless of her efforts.
The Court thus finds that the efforts of defendants to characterize plaintiff's conduct as the sole proximate cause of the accident constitute blatant overreaching. This situation does not resemble the seminal case of Blake v. Neighborhood Housing Services, 1 NY3d 280, so heavily relied upon by defendants, in that here the plaintiff has identified a cause of her fall other than her own conduct. By contrast, the cases cited by plaintiff, Scotti v. Federation Development Corp., 289 AD2d 322, and Handley v. J.N. White Associates, 288 AD2d 855, seem to be on point (although no two cases are exactly alike) and support the relief plaintiff seeks. Defendants have not sought to distinguish these cases in their final submission.
It must be recalled that plaintiff was the sole witness to her own accident, and that the account she provides cannot be contradicted by other witnesses. Further, defendants have not sought to elicit testimony, or to submit affidavits, from persons with knowledge of the facts, challenging plaintiff's description of the allegedly dangerous condition of the floor. To the extent that plaintiff maintains that the ladder was as secure as she could get it to be on that surface, there is no effective counter-evidence marshaled by defendants.
For the above reasons, plaintiff's motion for summary judgement in her favor on the issue of liability under Labor law 240(1) is granted. Correspondingly, defendants' motion for summary judgment dismissing the Labor Law 240(1) claim is denied.
Defendants next seek, in their cross-motion, dismissal of plaintiff's claims under Labor Law 241(6). This claim depends on plaintiff identifying violations of specific Industrial Code regulations. In her Supplemental Bill of Particulars, plaintiff identified three regulations, the purported violations of which contributed to her accident. One of these, OSHA Regulation 1926.1053(b)(6), is asserted by defendants to be inapplicable here because it relates only to employer/employee relations, and plaintiff here was an employee of Verizon, not of defendants.
The Court agrees. See Pelescki v. City of Rochester, 198 AD2d 762. Plaintiff, in reply, does not contest this claim of defendants. Thus, plaintiff's contention that her Labor Law 241(6) claim can be premised on the purported violation of an OSHA regulation is untenable.
However, plaintiff also cites violations of New York Industrial Code Sections 23-1.21(b)(4)(ii) And 23-1.21(e)(3). These sections require, respectively, that "all ladder footings shall be firm" and that "Standing stepladders shall be used only on firm, level footings." Defendants argue that additional language in each section renders these regulations inapplicable here, but the Court disagrees. Such additional language as is contained in each regulation may provide illustrative examples (in the case of the first) or provide for additional scenarios (in the case of the second), but such language in each case does not in any way appear to be intended to detract from the direct, declarative sentence with which the regulation opens. The Court thus finds these regulations to be relevant and applicable here. Sprague v. Peckham, 240 AD2d 392; [*5]Losurdo v. Skyline Associates, 24 AD3d 1235.
Defendants also contend (in their final submission) that the regulations are inapplicable based upon plaintiff's admissions at deposition that the floor was level and the ladder steady, etc. Here, once again, defendants quote only those selective portions of the deposition testimony with which they sought to undermine plaintiff's 240(1) claim. Considering all of plaintiff's testimony, as well as the selective quotes in their proper context, it is clear that the two cited regulations are indeed relevant here.
By reason of the above, plaintiff may assert her claims under Labor law 241(6) to the extent that they are premised on Industrial Code Sections 23-1.21(b)(4)(ii) and 23-1.21(e)(3). Defendants' cross-motion to dismiss plaintiff's claims under Labor Law 241(6) is granted solely to the extent that such claims are based on purported violation of OSHA regulations, and is otherwise denied.
Defendants also seek dismissal of plaintiff's claims under Labor Law 200. This section is a codification of common law liability for negligent acts, and can only be maintained against an owner or contractor who directed the work of the injured employee. There is no indication here that these defendants had any role whatsoever in directing plaintiff's work. Plaintiff attempts to oppose this prong of defendants' cross-motion, but the effort is so weak and unpersuasive as to convince the Court that it is merely pro forma. There is apparently no real basis for opposing this part of the cross-motion. Plaintiff's claims under Labor Law Section 200 are therefore dismissed.
Finally, defendants seek dismissal of plaintiff's claims under Labor Law Section 241-a, on the ground that this section applies only to persons working in an elevator shaftway, hatchway or stairwell. Plaintiff's own account of the accident indicates that she was not working in any of these. Nor has plaintiff opposed this branch of the cross-motion in her reply papers. By consequence, plaintiff's claims under Labor Law Section 241-a are dismissed.
In summary, Plaintiff's motion to amend the caption is granted without opposition. Plaintiff's motion for summary judgment as to liability on her Labor Law 240(1) claim is also granted. Such part of defendants' cross-motion as sought to dismiss plaintiff's Labor Law 240(1) claim is denied in all respects. Such parts of defendants' cross-motion as sought to dismiss plaintiff's claims under Labor Law 200, and Labor Law 241-a, are granted in all respects. Such part of defendants' cross-motion as sought to dismiss plaintiff's claims under Labor Law 241(6) is denied, except that it is granted to the extent that such claims relied on a purported violation of OSHA regulations.
This constitutes the Decision and Order of the Court.
7/15/09/s/
Dated: ______________________________________
MARK FRIEDLANDER, J.S.C.
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