Ingenito v City of New York

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Ingenito v City of New York 2011 NY Slip Op 33382(U) December 13, 2011 Sup Ct, NY County Docket Number: 106525/2008 Judge: Jane S. Solomon 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. NNED ON 121221201 [* 1] - NEW YORK SUPREME COURT OF THE STATE OF NEW YORK COUNTY Justice INDEX NO, MOTION DATE -vMOTION SEQ. NO. MOTION CAL. NO. The following papers, numbered 1 to 5-T were rend on this motion tolfor PAPERS NIJMBERCD Notice of Motion/ Order to Show Cause - Affidavits - Exhlblta Answering Affidavits - p r .., Exhibits Replying Affidavits Cross-Motion: U Yes &! No I , Upon the foregoing papers, It Is ordered that this motion FILED DEC 14 2011 NEW YORK COUNJY CLERK'S OFFICE Check one: @ , FINAL DISPOSITION Check if appropriate: 11 1 I 1 NON-FINAL DISPOSITION DO NOT POST 0 REFERENCE [* 2] SUPREME C O b T OF TH@ ;STAkE OF N E W YORK' 1 COUNTY OF NXW YORK:' P p T ;5 1 5 ............................. 1 X Index No. 106525/2008 JOSEPH INGENITO and q&BBIE JNGENITO, I 1 1 FILED SOLOMON, NEW YORK COUNTY CLERKS OFFICE Thi@ is a personal injury ectJQn brought under t h e New J. : I I I Y o r k L a b o r Law: P l a i n t i f f Joseph Ingenitb (Ihgenito), a I construction w o r k e r , ana. his W i f e Debbie Ingenito (Debbie) sue the C i t y of New York ( C j t y ) and the New York City Department of Transportation (DOT; t o g e t h e r Defendants) for damages from an injury at a construction s i t e in Manhattan. J He alleges claims . under L a b o r Law S S 200, 240(1) and 241(6) , as well a3 aommon law negligence, and Debbie alleges a loss of consortium claim. PROCEDURAL HISGORY I In' Motion Sdq&nce 002 , Defendantd moved for summary judgment dismissing the'complaint on t h e ground that t h e y have no liability to I n g a n i t o . It w a s submitted without oppoaition, and granted on d e f a u l t by deciaion and order dated July 28, 2011. Plaintiffs, represented by new counsel, now move to vacate the decision on the ground t h a t t h e i r default was due t o t h e i r change of counsel. They seek to argue t h e prior motion on the merits. Plaintiffs submitted adequate proof t h a t t h e i r failure to reapond [* 3] wa8 due to the delay that oacurred whilst changing attorneys, and by Jnterirn O r d e r , , dated Septsmbsr 26, 2911, the decision and order in Motion Sequenqe 002 was vacatedb the motion, yhich is n& fully submitted. FACTS I 1 Plaintiffa now oppose ' 1 I X n g e n i t o wqb dmbloy&d by ScbiavQne Construction Co. Schiavone was h i r e d by *he Transit Authority ( n o t a (Schiavone). party to this a c t i o n ) for the South Ferry subway project in Manhattan. On April 3 , , 2 0 0 7 ,Tngenito was removing debris when I , he tripped and fall, s u f f e r i n g injurieip. He signed an Employee Report of Injury (dttached ta G r e e n b h t t A f f - , Ex, 7 ) whioh s t a t e d : "Shoveling'debtks. Trippkd on H beam flange/vert section backwards fell/aat on H beam flange/vert s e a t i o n " (Ingenito EBT, attached to Greenblatt A f t . , Ek. 4, p w 68). His Workers' Compensation C2 injury r e p o r t s t a t e d "Tripped on flange of perimeter I-Beam/wale" (Id.).' Both report9 ( t h e Reports) were filled out and signgd by Michael Voudouris (Voudouris), a safety supervisor subcontractor hired by Schiavone (Voudouris Affidavit, attached to Greenblatt A f f . , Ex. 6). I A flange is the horizontal portion of an I-Beam, or the vertical portion of an H-Beam. An H-Beam id an I-Beam turned sideways. A w u l e , or waler, is a component of the bracing s t r u c t u r e placed around t h e perimeter of an excavation s i t e . It is made of I-Beams laid on their sides. It is used to h o l d up the site's walls until the a t r u c t u d e is complete and t h e ground is backfilled. [* 4] I ' I NotwithsqanBing his signed Employee Report, Ingenito testified at his $ 0 - H hearing, and at a deposition here, that he tripped ovgr debris, including wood, lumber, s t e e l , conarate pieces, bricks, b o t t l e ? , and w i r e s (50-H hear4 attaahed to Chakmakian Aff,, Ex. A , p. 167 Pngenito t$e$osition, attached to Chakmakian Aff., Ex. B, I Defendants move f o r summary judgment dismissing the complaint. c. They Sirat argue that the City and the DOT are not the owners of the property; rather the Transit Authority is. support, they r&er In to the deposition teikirnony of Frank Hrubes, DOT' s directoi: of construction (Greenblatt'Aff. Ex. 5) . , Hrubes stated that the South Ferry projeat was a Transit Authority project, ana to h i s knohledge, the City and DOT did n o t own the property and had not leased it to the Transit Authority. D e f e n d a n t s afgua that this ia proof that t h e Defendants are not the Owners of t h e property, did not contract far the work, and caanot'be l i a b l e under the L a b o r Law (see, Mbrton v . S t a t e of New y o r k , 15 NY3d 50, 56 [2010][there muat be a o m e nexus between the Owner and t h e work&r, such as a lease agreement or o t h e r property agreament]) . However, the Defendants do n o t submit any actual proof of ownership (lease, deed, construction ebntract). That Hrubea, the construction manager, w a s unaware of who owned the property, 3 [* 5] I I I e s t a b l i s h a lack of n e x u g . Accordingly, lack of o w n e r s h i p is n o t established. A . Section 2 4 0 ( 1 ) Liahilitv LabO$ Law 5 240(1) i s known aa the scaffold law. It p r o t e c t s d g a i n 8 t hazards \'rela$ed to the e f f e a t s of gravity whore 1, p r o t e c t i v e d e v i c e s are c a l h d fdr e i t h e r because of a d i f f e r e n c e between t h e elevation'level of the required work and a l o w e r level or a difference b e t w e e n t h e elevation l e v e l where the worker i s positioned and t h e h i g h e r level of tho m a t e r i a l s or load being h o i s t e d or secured" (Rocovich v . C o n s o l i d a t e d E d i s o n Co., 78 NY2d 509, 514 [1991]). I n a f o o t n o t e , the Defenaants argue t h a t there is no evidence t h a t this acci'dent i n v o l v e d an elevation differential o r a f a l l i n g 'abjecb. The Reports ( a t k h e d t o G r e e n b l a t t Aff. , E x . 7 ) explicitly note a \ ' f a l l to same level." Ingenito does not oppose d i s m i s s a l o f this claim, and it is dismissed. B . S q c t i o n 241(6) L i a b i l i t y L a b b r Law S e c t i o n 241(6) p r o v i d e s , as relevant: "All areas in which construction, excavation or demoiition work is b e i n g performed shall be so constructed, shored, equipped, guakded, arranged, operated and c o n d u a t s d as to provide reasonable and adequate p r o t e i t i o n and dafety t o persons t h e r e i n o r la,wfully frpqusnting s u a h places." employed I t places a nondelegable duty upon owners and c o n t r a c t o r s t o comply w i t h the specific safety rules s e t forth i n t h e Industrial Code (Ross v . Curtis-Palmar Hydro-Elec. Co., 81 N Y 2 d 4 9 4 , 501-502 4 [* 6] . [1993]) In order ' o support a cause of a c t i o n under this t s e c t i o n , a p l a i n t i f f must demonstrate that his or her injuries r w e r e proximately caused by a violation of an Industrial Code I provision that sets f o r t l i a concrete standakd of conduct (Id., at 502). In seeking $4 establish his claim, Ingbnito relies upon 12 I NYCRR 23-1.7(e) ( 2 ) , which s e t s f o r t h such a Section 23-1.7 is entitled "protection from general hazards. Subsectiofi (e) states , as relevant: (e) Tripping And other hazgrds. * * * (2) Working area$. The parts of floors, platforms and similar areas where persons work or pass s h a l l be kept free from aacumulations of dirt and debris and f r g m scattered tools and materials a n d from sharp prdjections i n a o f a r aa m a y be consistent w i t h t h e work being perforped. Defendants argue that this section does n o t apply where a worker trips over something integral to his work (see, O'Sullivan v . IDI Construction Co., Inc. , 7 NY3d 8 0 5 [2006] [ s e c t i o n 2 3 - 1 . 7 ( e ) did n o t apply to w o r k e r w h o tripped over electrical conduit he was installing]) I They claim that Ingenito's j o b , specifically, w a s to clean up debris on the wale, and that the 'wale itself, and any d e b r i s on it, w e r e i n t e g r a l parts of his work. In supp'brt, they cite to C a b r e r a v . Sea Cliff 2 In his complaint and bill of particulars, Ingenito lists several other industrial code sections. The only one he discusererr in opppsition to the motion i s 23-1.7(e). A l l others are deemed abandoned. ' 5 ' [* 7] 1 I W a t e r Co. , 6 AD3d 315 (lEte p t . D , 2004) , which held \\[w]here plaintiff w a s in the very process of s w e e p i n g up the dust be and h i s fellow w o r k e r s had j u s t created, t h e r e i s no basis f o r imposing l i a b i l i t y a g a i n s t defendants f o r his s l i p and fall." Tn opposition, I n g e n i t o a t t e m p t s t o create a question I I , o f fact t h e t t h e ' r e i s n o l e v i d e r h c e that t h e flenge t h a t the R e p o r t s say he t r i p p e d o v e r w a s part of t h e s t r u c t u r e of the wale, r a t h e r t h a n just a random p i e c e of I-Beam debris unconnected t o t h e w a l e . X sbpport he h s t a t e s that only I-Beams that a r e filled w i t h concrete can be c o n s i d e r e d part o f t h e s t r u c t u r e , and a n y t h i n g else is d e b r i h . He argues that Hrubas t e s t i f i e d t h a t ' \ c e r t a i n b e & s , h a d been made part of t h e s t r u c t u r e as t h e y w e r e embedded i n t o t h e s t r u c t u r e with c o n c r e t e " ( O p p o s i t i o b memorandum of l a w , p . 7), but c i t e s no such s t a t e m e n t , no2 any o t h e r evidence t o s u p p o r t t h i s argument. There is no w e s t i o n t h a t h'e s l i p p e d on t h e be&n o r debria i n t h e w a l e he was c h a r g e d with a l e a n i n g . Sec'tion 200 of t h k Labor L a w is a c o d i f i c a t i o n of t h e common-law d u t y t o p r o v i d e workers with a reasonably safe work place. T o be l i a b l e uhder this s e c t i o n , the parties sued must have e x e r c i s e d c o n t r o l over t h e work t h a t brought a b o u t t h e i n j u r y ( s e e , Rizzuto v. L . A . 'Wengex C o n t r a c t i n g Co., I n c . , 91 N Y 2 d 343 , 3 5 2 [19981). T h e ' exercise of g e n e r a l supervisory I I I 6 [* 8] a u t h o r i t y i s , insufficient t o eatablish supervision and control for the purpose of Sectioq 200 (Buckley y. Columbia Grammar and I Preparatory, 44 AD3d 263, 272, [2007]) ' Hrqoa the means OF . testified that th& Dafendants did not control methods of the contractor or i t s employees (Greenblatt &ff.', Ex. 5, p.' 34). In redponae, Ingenito argues3 1 I that Voudouris, t h r o u g h his presence at t h e work site, gave t h e Defendants notice of the hazards. This argument is insufficient I to raise a question of faat. Voudouris w a s t h e safety supervisor I subcontractor, hired and employebd by Schiavone. There is no j evidence that the Defendants exercikQd control over t h e worksits I through Voudouria. In light of the foregoing, it hereby is ORDERED that the motion for summary judgment dismissing the complaint is granted, and the complaint is dismissed, and the Clerk of the Cdurt is directed to entear judgment aacordingly, I with c o s t ? and di&butsemah& Dated: as taxed. FILED DEC 14 2Jm , 2oii Enter : 7 NEW YORK

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