Yulfo v Bovis Lend Lease, Inc.

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Yulfo v Bovis Lend Lease, Inc. 2011 NY Slip Op 32087(U) July 27, 2011 Supreme Court, New York County Docket Number: 112866/08 Judge: Barbara Jaffe Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: ~FFEBARBARA JAFFE PART .-P* 5 Ji 7 i3 k - Index Number 11286612008 INDEX NO. YULFO, MARIA MOTION DATE VS. MOTION SEQ. NO. BOWS LEND LEASE MOTION CAL. NO. SEQUENCE NUMBER : 001 II SUMMARY JUDGMENT I .- .. . . Notice of Motion/ uraer to this motion to/for I pApEqB I II snow Lause - nTriaavlrs - Exhibits ... NUMBERED Answering Affidavits - Exhlblts Replying Affldavits Cross-Motion: 0 Yes ,!$ Upon the foregoing papers, it NO I ordered that this motion s FILED NEW YORK COUNTY CLERK'S OFFICE Check one: FINAL DISPOSITION Check if appropriate: 0 DO NOT POST 0 SUBMIT ORDER/ JUDG. NO@NAL O(ISFOSITION 0 REFERENCE SETTLE ORDER/ JUDG. [* 2] Plaintiff, "against- Index No. 112866/08 Motion Date: 12/6/10 001 Motion Seq. No.: Calendar No.: 124 DECISION & ORDER BOVIS LEND LEASE, INC., BOVIS LEND LEASE LMB, lNC, LOWER MANHATTAN DEVELOPMENT COWOMTION, NEW YORK STATE URl3AN DEVELOPMENT CORPORATION d/b/a EMPIRE STATE DEVELOPMENT CORP., and THE CITY OF NEW Y O U , FILED Third-party Plaintiffs, -against- NEW YORK COUNTY CLERKS OFFICE THE JOHN GALT CORP., BARBARA JAFFE, JSC: For plaintiff Larry Dorman, Esq. Larry Dorman, P.C. 25-28 Broadway Astoria, NY 1 1 106 7 18-274-2700 For Bods, LMDC, NYSUDC: Erica P. Anderson, Esq. Newman Myers Kreines, et al. 14 Wall Street 22"d Floor New York, NY 10005-2101 212-619-4350 By notice of motion dated December 6,2010, plaintiff moves pursuant to CPLR 3212 for an order granting her summary judgment on liability pursuant to Labor Law 6 240( 1) as against Bovis Lend Lease, Inc., Bovis Lead Lease LMB, Inc. (collectively, Bovis), Lower Manhattan [* 3] Development Corporation (LMDC), and the New York State Urban Development Corporation d/b/a Empire State Development Corp. (NYSUDC) (collectively, defendants), who oppose. I. BACKGROUND On July 17,2007, while working on the fifth floor of 130 Liberty Street, plaintiff allegedly sustained serious physical injuries when a scaffold collapsed and struck her on the back. Each scaffold had three ten-feet high levels. (Affirmation of Larry Dorman, Esq., dated Nov. 23 , 20 10 [Dorman Aff.]). On or about September 16,2008, plaintiff served on defendants a summons and complaint, alleging that she was seriously injured as a result of their negligence, recklessness, and carelessness. (Id., Exh. A). On or about November 21,2008, defendants served their answer. (Id., Exh. B). On or about June 12, 2009, plaintiff served defendants with a bill of particulars, and on or about May 6,2010, a supplemental bill of particulars. (Id., Exh. D). At a deposition held on November 23,2010, plaintiff testified that while working on the fifth floor, she was struck on her back, left hand, and left shoulder when a scaffold collapsed on her. (Id., Exh. E). 11. CONTENTIONS Plaintiff contends that defendants were negligent in the care and maintenance of the premises and failed to provide safe work conditions, thereby leading to her injuries. (Dorman Aff.). In opposition, defendants argue that plaintiff was not subjected to an elevated risk, as the scaffold was not being hoisted or secured at the time of the accident. (Affirmation of Erica P. Anderson, Esq., dated Jan. 21,201 1 [Anderson Aff.]). 2 [* 4] In reply, plaintiff maintains that the collapse of scaffolding is prima facie evidence that defendants are liable for her injuries and that they violated Labor Law 5 240(1). She also argues that they fail to raise any issue of fact. (Reply Affirmation, dated Feb. 9, 201 1). 111. ANALYSI$ The proponent of a summary judgment motion must demonstrate, prima facie, 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 85 1, 853 [1985]; Zuckerman v City ofNew York, 49 NY2d 557,562 [1980]). If this burden is not met, summary judgment must be denied, regardless of the sufficiency of the opposition papers. (Winegrad, 64 NY2d 851,853). When the moving party has demonstrated entitlement to summary judgment, the burden of proof shifts to the opposing party, which must demonstrate by admissible evidence the existence of a factual issue requiring trial. (Alvarez v Prospect Hosp., 68 NY2d 320,324 [1986]; Zuckerman, 49 NY2d 557, 562). The opposing party must lay bare its evidence (Silbertstein, Awad & Miklos v Carson, 304 AD2d 8 17, 8 18 [ 1 Dept 20031); unsubstantiated allegations or assertions are insufficient. (Zuckerman, 49 NY2d 557,562). Pursuant to Labor Law 8 240(1): All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repair, 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, hangars, 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. The statute, which is liberally construed (Koenig v Patrick Constr. Corp., 298 NY 3 13, 3 19 [ 19481; Quigley v Thatcher, 207 NY 66,68 [ 1912]), imposes absolute liability on building [* 5] owners and their agents for injuries occurring at the workplace (Ross v Curtis-Palmer Hydro- Elec. Cu., 8 1 NY2d 494 [ 19931; Zimmer v Chemung County Performing Arts, Inc.,65 NY2d 5 13 [ 19851). The policy purpose underlying Labor Law Section Q 240 is to impose a flat and unvarying duty upon the owner and contractor despite any contributing culpability on the part of the worker. (Bland v Munocherian, 66 NY2d 452,461 [1985]; Zimmer, 65 NY2d 513,521). Moreover, Labor Law 5 240( 1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person. (Runner v New York Stock Exch.,lnc., 13 NY3d 599, 604 [2009], quoting Ross, 8 1 NY2d at 50 1; see also Arnaud v 140 Edgecomb LLC, 83 AD3d 507,508 [1st Dept 201 11). Additionally, there is no minimum height differential for a violation to occur, nor does it matter whether the injured party was on or under the device that caused the injury. (Thompson v St. Charles Condominium, 303 AD2d 152, 154 [lEt Dept 20031). In order to establish defendants liability, whether or not the owner or general contractor was present or controlled the worksite, plaintiff need only prove that her injuries resulted from a statutory violation (Rocovich v Consol. Edison Co., 78 NY2d 509 [1991]), and the collapse of a scaffold constitutes primafacie evidence of a violation of Labor Law 5 240( 1) (Schron v New York Univ., AD3d 468 [ lSt 14 Dept 20051; Thompson, 303 AD2d at 154; Aragon v 233 West 21 St., Inc., 201 AD2d 353 [l *Dept 19941). Here, it is undisputed that plaintiffs injury was a direct result of the collapsed scaffold. That plaintiff stood on the same level upon which the scaffold sat when it collapsed is immaterial, as it fell due to the force of gravity. (Thompson, 303 AD2d at 154). 4 [* 6] rV. CONCLUSXON Accordingly, it is hereby ORDERED, that plaintiffs motion for summary judgment against Bovis Lend Lease, Inc., Bovis Lend Lease LMB, Inc., Lower Manhattan Development Corporation, and the New York State Urban Development Corporation d/b/a Empire State Development C o p . is granted as to liability only; and it is further ORDERED, that an assessment of damages against defendants is directed to be held at the time of trial. ENTER: July 27,201 1 BAf!fW JhFFE New York, New York 'c.s.J DATED: I= I L E D N E W YORK COUNT\( CLERK'S OFFICE 5

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