Cervera v Queens Ballpark Co., LLC
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Cervera v Queens Ballpark Co., LLC 2011 NY Slip Op 32169(U) August 8, 2011 Sup Ct, NY County Docket Number: 105397/08 Judge: Martin Shulman 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. SCANNED ON 81912011 [* 1] I 1, !M@mii Id,&& *STATE OF NEW YORK Index Number : 105397/2008 CERVERA,ROBERTO V8 QUEENS BALLPARK Sequence Number : 001 SUMMARY JUDGMENT - NEW YQ*Rf( [* 2] Plaintiffs, Index No.: 105397/08 Plaintiffs move, pursuant to CPLR 3212, for partial summary judgment on the Issue of liability on their Labor Law 5 240 (1) cause of action. Defendants Queens Ballpark Company, LLC ( Queens Ballpark ) and HuntlBovis Lend Lease Alliance II, a joint venture, i/s/h/a Hunt-Bovis, a joint venture ( Hunt/Bovis ) oppose the motion. Plalntiff Roberto Cervera ( Cervera ) was a bridge painter employed by nonparty Capco Steel working on a project at premises located at the subway and commuter rail enhancements to CitiField Stadium in Queens, New York. Queens Ballpark owns the project, co-defendant HuntBovis was the general contractohonstruction manager and Capco Steel was a subcontractor HuntlBovis hired. This action arises from an accident that occurred at the project on April 6, 2008. Motion, Exs. 1 & 2. On the morning of the accident, Cervera and his partner proceeded to the staircase that connected the CitiField parking lot with the MTA subway, the location where they had left off work the day before. Cervera was working at the bottom of the staircase applying a primer coat of paint on the structural frame that supports the steps [* 3] while his partner was working at the top of the staircase. Steelworkers were installing the stair treads above Cervera. Cervera EBT, at 70-81, 84, 102-104. One of the steelworkers who was installing the stair treads was Mark Kelly ( Kelly ), a Capco Steel employee, who submits an affidavit regarding the occurrence. Kelly averred that the normal procedure when installing stair treads is to use pins to hold the tread in place temporarily until the connection is made. However, according to Kelly, at the time of the accident, no pins were available to secure the tread and, as a result, the tread that he was installing fell approximately four or five feet, striking Cervara. Kelly Aff. Cervera testified that he did not see what hit him or know what hit him, but that it felt as though a sledgehammer had hit him on the side of his head. He immediately lost consciousness and did not regain consciousness until he was in the hospital. Cervera EBT, at 106. William T. Ferraro ( Ferraro ), a job steward working for Capco Steel at the time of the accident, was deposed in this matter and testified that he arrived at the scene of the accident shortly after Cervera was struck and saw Cervera lying underneath the stairway. Ferraro EBT, at 45-48. Ferraro stated that the tread that struck Cervera weighed approximately 60-80 pounds. Id. at 37. According to Ferraro, the process used to install stair treads involves lowering the riser into place by hand, using a bolt pin to fit it into a hole in the riser while guiding the riser into place, and that two workers would work in tandem to place each riser, one worker on top to guide the riser into place with the pin, and one worker below to secure the bolt with a nut. Id, at 35-39,41- 42, 61-62. 2 [* 4] Leonard Kelleher ( Kelleher ),a senior superintendent working for defendant Bovis Lend Lease LMB, Inc. ( Bovis ),was also deposed In this matter, and authenticated the contract between Queens Ballpark and HunVBovis, identifying HuntIBovis as the general contractor for the project. Motion, Ex. 5; Kelleher EBT, at 69- 70. Kelleher stated that he recelved a telephone call reporting the accident the morning of its occurrence and that he then drove over to the project site from his off-site location. By the, time he arrived at the scene of the accident, Cervera had already been removed by ambulance. Id. at 50-52. Kelleher did not speak to anyone who could give a first-hand account of the accident and has no personal knowledge as to what actually occurred. ld. at 67. Plaintiffs contend it is undisputed that the tread was unsecured, which caused it to fall, injuring plaintiff. In opposition, defendants urge the court not to consider Kelly s affidavit since he was not properly disclosed to defendants and plaintiffs submit no other evidence suppottlng their claim that they are entitled to summary judgment on their Labor Law 9 240 (1) cause of action. Defendants insist that, despite plaintiffs knowing Kelly s proper address and defendants repeated demands for same, plaintiffs never disclosed Kelly s address to them. In support of this assertion, defendants provide: (I)copy of their discovery a demands (Opp., Ex. B); (2) plaintiffs response, in which Kelly is Identified but with an incorrect address (Opp., Ex. C); (3) the parties preliminary conference order requiring each side to provide the names and addresses of all witnesses (Opp., Ex. D); (4) the affidavit of defendants investigator attesting to the fact that he tried on several occasions to contact Kelly at the address plaintiffs gave defendants but was unable to 3 [* 5] locate Kelly (Opp., Ex. E); (5) a letter from defendants counsel to plalntiffs counsel, dated November 30, 2009, requesting an updated address for Kelly (Opp., Ex. F); and (6) plaintiffs further response to defendants demands, dated March 4, 2010, again giving an incorrect address for Kelly (Opp., Ex. G). Defendants assert that, since a different address appears on Kelly s affidavit submitted in support of plaintiffs motion, plaintiffs were aware of Kelly s correct address and failed in their continuing obligation to provide them with updated information. It is defendants position that, absent Kelly s affidavit, plaintiffs have provided no evidence that proper protection was not provided to plaintiff at the job site. Moreover, according to Cervera s MRI report, Cervera indicated that a ladder fell on him, not a stair tread. Hence, argue defendants, a question of fact remains as to the cause of Cervera s injuries. In reply, plaintiffs submit a supplemental affidavit from Kelly, in which he states that he resided at the address appearing In his affidavit in January of 2009, when the affidavit was taken, but that, previously, he resided at the address that plaintiffs provided to defendants. Further, plaintiffs contend that defendants have provided no evidence that the address that they gave for Kelly was incorrect at the time that it was provided, except for the affidavit of an investigator who attempted to serve Kelly, unsuccessfully, with a subpoena, which is not evidence that Kelly did not reside at that address on the dates indicated. In addition, plaintiffs point to the fact that many of the cases defendants cite to support the position that Kelly s affidavit should be disregarded involve situations in which the affiant was not disclosed until after the note of issue was filed. Conversely, in the instant matter, Kelly s name and address, correct as of the 4 [* 6] time that the address was provided, were correct and turned over well before the note of issue was filed. Finally, plaintiffs aver that the MRI report included with the opposition papers is not authenticated, is hearsay and should not be considered. DISCUSSION The 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 eliminate any material issues of fact from the case [internal quotation marks and citation omitted]. Santlago v Filstein, 35 AD3d 184, 185-186 (Iat 2006). The burden then Dept shifts to the motion s opponent to present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact. Mazurek v Metropolitan Museum of Ad, 27 AD3d 227,228 (lBt 2006); see Zuckennan v City ofNew York, 49 NY2d 557,562 Dept (1980). If there I any doubt as to the existence of a triable fact, t h e motion for s summary judgment must be denied. See Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223,231 (1978). Section 240 (1) of the New York Labor Law states, in pertinent part: 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, 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. As stated in Rocovich v Consolidated Edison Co., 78 NY2d 509,513 (1991): It is settled that section 240 (1) is to be construed as liberally a3 may be for the accomplishment of the purpose for which it was thus framed. Thus, we have interpreted the section as imposing absolute liabllify for a 5 [* 7] I breach which has proximately caused an injury. ... In furtherance of this same legislative purpose of protecting workers against the known hazards of the occupation, we have determined that the duty under section 240 (1) is nondelegable and that an owner is liable for a violation of the section even though the job was performed by an independent contractor over which it exercised no supervision or control [internal quotation marks and citations omitted]. Labor Law 5 240 (1) was designed to protect workers against elevation-related a plaintiff must risks, In order to prevail upon a clalm pursuant to Labor Law 5 240 (I), I establish that the statute was violated, and that this violation was a proximate cause o f his injuries. i goba v Easy Shopping Corp., 246 AD2d 539,541 (2d Dept 1998). For section 240 (I) the Labor Law to apply: of a plaintiff must show more than simply that an object fell causing injury to a worker. A plaintiff must show that the object fell, while being hoisted or secured, because ofthe absence or inadequacy of a safety device of the kind enumerated in the statute. Narducci v Manhasset Bay Assocs., 86 NY2d 259,268 (2001). Plaintiffs motion is denied. The evidence defendants submit clearly establishes that they requested Kelly s address on numerous occasions. Even though plaintiffs have provided the supplemental affidavit from Kelly stating that the address for him given to defendants prior to January, 2009 was correct, it 1 undisputed that, in January s of 2009, when Kelly provided the affidavit, that address was no longer accurate. In November of 2009, defendants specifically requested a correct address for Kelly, 10 months after the affidavit was prepared, but plaintiffs never divulged the new address for the two intervening years, right up to the time that the instant motion was filed, Under these circumstances, in the exercise of judicial discretion, the court declines to consider Kelly s affidavit in support of plaintiffs motion. Perez v New Yo& City Housing 6 I I [* 8] I Auth., 75 AD3d 629 (2d Dept 2010); Rodriguez v New Yo& City Housing Auth., 304 AD2d 468 (IBt 2003); Andujar v Benenson Inv. Co., AD2d 503 (2d Dept 2002). Dept 299 Without Kelly s affidavit, plaintiffs fail to meet their burden of establishing their right to summary judgment. The only other individual with personal knowledge of the occurrence whose testimony plaintiffs provided is Cervera, who affirmatively states that he does not know what caused his accident, that he did not see what happened and that he only felt somethlng hit his head that knocked hlm out. Under these circumstances, a triable issue of fact remains as to whether the object that hit Cervera fell under circumstances giving rise to the protections afforded pursuant to Labor Law 240 (I). Based on the foregoing, it is hereby ORDERED that plaintiffs motion for partial summary judgment on the issue of liability on their cause of action based on a violation of Labor Law 5 240 (I)denied. i s s The foregoing I this court s decision and order. Courtesy copies of this decision and order have been sent to counsel for the parties. Dated: New York, New York August 8,201 I FILED A 6 09 2011 U NEW YORK COUNTY CLERKS OFFICE 7 I
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