Quihzpi v Cliffside Props., LLC

[*1] Quihzpi v Cliffside Props., LLC 2011 NY Slip Op 50007(U) [30 Misc 3d 1207(A)] Decided on January 3, 2011 Supreme Court, Queens County Weiss, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 3, 2011
Supreme Court, Queens County

Vicente Quihzpi, Plaintiff,

against

Cliffside Properties, LLC, ZHL GROUP, INC, and MEGA CONTRACTING, INC., Defendants.



265512008

Allan B. Weiss, J.

The following papers numbered 1 to17read on this motion by plaintiff Vicente Quihzpi (plaintiff) for partial summary judgment on his claim brought under Labor Law § 240 (1); and on the cross motion by defendant/third-party plaintiff ZHL Group, Inc. (ZHL Group), and defendants/second third-party plaintiffs Cliffside Properties, LLC (Cliffside Properties), and Mega Contracting, Inc. (Mega Contracting), for summary judgment on plaintiff's claims brought under Labor Law §§ 240 (1) and 241 (6).

Papers

Numbered

Notice of Motion - Affidavits - Exhibits........................................1-4

Notice of Cross Motion - Affidavits - Exhibits..............................5-8

Answering Affidavits - Exhibits.....................................................9-14

Reply Affidavits.............................................................................15-17

Upon the foregoing papers it is ordered that the motion and cross motion are determined as follows: [*2]

This is an action to recover for personal injuries plaintiff allegedly sustained due to violations of Labor Law §§ 200, 240 (1), 241 (6), and for common-law negligence. Cliffside Properties owned the subject premises and allegedly hired Mega Contracting to perform work at the premises. Mega Contracting subcontracted a portion of the work to ZHL Group and ZHL Group subsequently hired third-party defendant/second third-party defendant MGR Restoration, Inc. (MGR Restoration) to perform some masonry work at the premises. Plaintiff has alleged that, on October 8, 2008, he was an employee of MGR Restoration and was working at the premises when an object fell on his foot.

Plaintiff has moved for partial summary judgment only on his claim brought under Labor Law § 240 (1) and has argued that ZHL Group, Cliffside Properties, and Mega Contracting (collectively referred to as defendants), failed to provide him with adequate safety devices. Labor Law § 240 (1) provides that contractors, owners and their agents "shall furnish or erect, or cause to be furnished or erected . . . scaffolding . . . and other devices which shall be so constructed, placed and operated as to give proper protection" to workers employed on the premises. Falling object liability under Labor Law § 240 (1) applies to objects that are in the process of being hoisted or secured, but may be extended to objects that required securing for purposes of the undertaking (see Quattrocchi v F.J. Sciame Constr. Corp., 11 NY3d 757, 758-59 [2008]; Outar v City of New York, 5 NY3d 731, 732 [2005]; Lucas v Fulton Realty Partners, LLC, 60 AD3d 1004, 1006 [2009]). The plaintiff must demonstrate that the object fell "because of the absence or inadequacy of a safety device of the kind enumerated in" the statute (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 268 [2001]).

In support of his motion, plaintiff has relied upon, among other things, his own deposition testimony and the testimony of Yevgeniy Lvovskiy (Lvovskiy), an employee of ZHL Group. Plaintiff testified that, on the date of the incident, he was standing on a scaffold while performing work on the facade of a structure at the premises. He further testified that his supervisor instructed him to adjust a stone he had just installed on the facade and that, when he did so, the stone, weighing approximately 100 pounds, fell off of the facade of the structure and onto his foot. Plaintiff testified that no devices were used to hold the stones in place while the cement used to install them was drying. Lvovskiy testified that, in general, some type of device was supposed to be used to secure stones to a facade. Under these circumstances, plaintiff has satisfied his prima facie burden (see Lucas v Fulton Realty Partners, LLC, 60 AD3d at 1005-1006).

MGR Restoration and defendants have opposed plaintiff's motion. In opposition, MGR Restoration, plaintiff's employer, has argued that an issue of fact exists as to whether plaintiff was acting as a volunteer at the time of the incident. In support of this argument, MGR Restoration has submitted the deposition testimony of Chaudry Virk (Virk), the owner of MGR Restoration. Virk testified that MGR Restoration was hired by ZHL Group only to perform brick work, that they were not hired to perform any limestone work, that ZHL performed the limestone work, and that, on the date of the incident, an employee of ZHL Group had asked plaintiff to help with limestone installation, which was the proximate cause of plaintiff's injury. Virk further [*3]testified that MGR Restoration's workers were not given permission to perform work on behalf of ZHL Group and that ZHL Group was never given permission to instruct or utilize MGR Restoration's employees. Therefore, based upon this evidence, MGR Restoration has raised an issue of fact, at least, as to whether plaintiff was acting as a volunteer at the time of the incident and, thus, whether plaintiff was entitled to the protections of Labor Law (see e.g. Schroeder v Centro Pariso Tropical, 233 AD2d 314, 315 [1996]; Marks v Morehouse, 222 AD2d 785, 787 [1995]). Therefore, plaintiff is not entitled to the relief sought on his motion for summary judgment.

Defendants have cross-moved for summary judgment on plaintiff's claim brought under Labor Law § 240 (1). However, in light of the above decision, an issue of fact exists, at least, as to whether plaintiff was entitled to the protections of Labor Law. In any event, defendants have failed to satisfy their prima facie burden on this branch of their cross motion. Defendants have argued that plaintiff's motion was premature because discovery is still outstanding. However, they failed to present an evidentiary basis to support their argument and their mere hope or speculation as to what further discovery would uncover is an insufficient basis to deny the motion (see Leeds, Morelli & Brown, P.C. v Hernandez, 55 AD3d 794, 795 [2008], lv denied 12 NY3d 711 [2009]; Conte v Frelen Assoc., LLC, 51 AD3d 620, 621 [2008]).

Additionally, defendants have argued that the incident involved a de minimis height differential that was not within the protection of Labor Law § 240 (1). However, defendants failed to demonstrate that the height differential in the instant case, which plaintiff testified was approximately four to five feet, was insufficient to fall within the protections of Labor Law § 240(1). An elevation differential, such as in the instant case, "cannot be viewed as de minimis, particularly given the weight of the object and the amount of force it was capable of generating, even over the course of a relatively short descent" (Runner v New York Stock Exch., Inc., 13 NY3d 599, 605 [2009]; see Gutman v City of New York, 78 AD3d 886 [2010]).

Defendants further argued that plaintiff's injury was not a foreseeable consequence of the failure to provide a safety device enumerated in the statute. "There must be a foreseeable risk of injury from an elevation-related hazard to impose liability under the statute, as [d]efendants are liable for all normal and foreseeable consequences of their acts'" (Shipkoski v Watch Case Factory Assoc., 292 AD2d 587, 588 [2002], quoting Gordon v Eastern Ry. Supply, 82 NY2d 555, 562 [1993]). In the instant case, an object, such as the stone which was allegedly attached to the structure's facade using cement that was drying at the time of the incident, was not completely secured and required the use of some type of safety device "in the meantime to prevent the special hazard of a gravity-related accident" (Boyle v 42nd St. Dev. Project, Inc., 38 AD3d 404, 408 [2007] [internal quotes and citation omitted]). Defendants have failed to demonstrate that plaintiff's injury was not a foreseeable consequence of the work being performed at the time of the incident. Therefore, defendants have failed to satisfy their initial burden on this branch of their cross motion, and the opposition papers need not be considered (see Vislocky v City of New York, 62 AD3d 785, 786 [2009], lv dismissed 13 NY3d 857 [2009]). [*4]

Defendants have cross-moved for summary judgment on plaintiff's claim brought under Labor Law § 241 (6). "In order to establish liability under Labor Law § 241 (6), a plaintiff must demonstrate that . . . defendant[s'] violation of a specific rule or regulation [promulgated by the Commissioner of the Department of Labor], was a proximate cause of the accident" (Mercado v TPT Brooklyn Assoc., LLC, 38 AD3d 732, 733 [2007]; see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 [1993]). Plaintiff has predicated his section 241 (6) claim upon alleged violations of various sections of the Industrial Code, including 12 NYCRR 23-1.7, 23-2.2, 23-6.1 and 23-6.2.

With regard to plaintiff's claim under 12 NYCRR 23-1.7, defendants have argued that this section in inapplicable to the facts of this case. 12 NYCRR 23-1.7 provides for protection from general hazards and applies to overhead hazards, falling hazards, drowning hazards, slipping hazards, tripping and other hazards, vertical passage, air-contaminated or oxygen deficient work areas, and corrosive substances. Since the evidence has demonstrated that none of these hazards were present in the instant case, defendants have satisfied their initial burden as to this section.

Defendants have also argued that 12 NYCRR 23-6.1 and 23-6.2 are inapplicable to the facts of the instant case because section 23-6.1 refers to the general requirements of material hoisting, while section 23-6.2 refers to the rigging, ropes, and chains to be used for material hoisting, and that plaintiff was not involved in any hoisting at the time of the incident. In light of plaintiff's testimony that he was working on the limestone facade of the structure at the time of the incident, defendants have satisfied their initial burden as to these two sections.

Inasmuch as defendants have satisfied their initial burden with regard to 12 NYCRR 23-1.7, 23-6.1 and 23-6.2, as discussed above, and since plaintiff has failed to oppose the branch of defendants' cross motion relating to these sections, defendants are entitled to the dismissal of these sections (see Kronick v L.P. Thebault Co., Inc., 70 AD3d 648, 649 [2010]).

12 NYCRR 23-2.2 applies to concrete work involving concrete forms, shores and reshores. Defendants have argued that plaintiff was not working with concrete forms, shoring or reshoring at the time of the incident. This section provides, in relevant part, that "[d]esignated persons shall continuously inspect the stability of all forms, shores and reshores including all braces and other supports during the placing of concrete"(12 NYCRR 23-2.2 [a]), and, with regard to stripping, it provides that "[a]fter stripping, forms shall be promptly stockpiled or removed from areas in which persons are required to work or pass. Protruding nails, wire ties and other form accessories not necessary for subsequent work shall be pulled, cut or otherwise made safe" (12 NYCRR 23-2.2 [d]). 12 NYCRR 23-1.4 (b) (48) has defined shoring with respect to concrete as "[a] system of temporary supports, either wood or metal, used to support the weight of forms and uncured concrete." Plaintiff's testimony has reflected that he was not working with concrete forms and was not involved in any shoring or reshoring work at the time of the incident. Thus, defendants have satisfied their initial burden as to this section.

In opposition, plaintiff has failed to point to evidence in the record that would raise an [*5]issue of fact as to whether he was working on concrete forms, shoring, or reshoring at the time of the incident. Therefore, defendants are entitled to the relief sought on the branch of their cross motion relating to plaintiff's claim brought under Labor Law § 241 (6).

While plaintiff has argued that defendants are liable to him pursuant to Labor Law § 200, he has improperly raised this argument for the first time in his reply papers and the court cannot consider it (see e.g. Nationwide Insulation & Sales, Inc. v Nova Cas. Co., 74 AD3d 1297, 1299 [2010]; Belcastro v Hewlett-Woodmere Union Free School Dist. No. 14, 286 AD2d 744, 746 [2001]).

Although defendants' amended notice of cross motion has indicated that they moved for summary judgment on plaintiff's claims brought under Labor Law § 200 and for common-law negligence, defendants have failed to make any arguments with respect to these claims. Therefore, these branches of their cross motion are denied.

Accordingly, plaintiff's motion for partial summary judgment on his claim brought under Labor Law § 240 (1) is denied. The branch of defendants' cross motion for summary judgment on plaintiff's claim brought under Labor Law § 240 (1) is denied. The branch of defendants' cross motion for summary judgment on plaintiff's claim brought under Labor Law § 241 (6) is granted. The branches of defendants' cross motion for summary judgment on plaintiff's claims brought under Labor Law § 200 and for common-law negligence are denied.

Dated: 1/3/11

J.S.C.