Klewinowski v City of New York

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Klewinowski v City of New York 2012 NY Slip Op 30180(U) January 19, 2012 Sup Ct, NY County Docket Number: 110740-2008 Judge: Judith J. Gische 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 PRESENT: - NEW YORK COUNTY PART C 3 / 5 C H L Justice &7 E A L . MOTION DATE -vMOTION SEQ. NO. ETPL ,/& MOTION CAL. NO. were read on this motion to/for The following papers, numbered 1 to Notice of Motlonl Order to Show Cause - Affidavits - Exhibits ... Answering Affldavits - Exhibits Replying Affidavits Cross-Motion: Upon the foregoing U JAN 26 2m2 COUNTY NEW YORK CLERK'S OFFICE JAN 1 9 2012 Check one: 0 FINAL DISPOSITION Check if appropriate: 0 DO NOT POST 0 SUBMIT ORDER/ JUDG. 0 REFERENCE 0 SETTLE ORDER/ JUDG. [* 2] SUPREME COURT OF THE STATE OF NEW YORK C O U N N OF NEWYORK: PART 10 Zenon Klewinowski and Magorzata Klewinowski, P ~ECISIOFI/ORDER Index No.: I 10740-2008 Seq. No.: IO Plaintiff (s), -against- City of New York, Amman & Whitney Consulting Engineers, P.C., Welsbach Electric Corp., and Consolidated Edison Company of New York, Inc., PRESENT: Hon. Judith J. Gische J.S. C. FILED JAN 26 2of2 NEW YORK COUNTY CLERK'S OFFICE Welsbach OSC (RR) w/AMK affid, exhs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A&W x/m (RR) w/RHP affirm, exhs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Klewinowski amended x/m (RR) w/BEO affid, exhs . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Klewinowski opp to Welsbach w/BEO amd, exhs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Klewinowski partial opp to A&W w/BEO affid, exhs . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Welsbach opp to Klewinowski w/AMK amd . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Welsbach opp to A&W w/AMK amd, exh . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 A&W opp to Klewinowski (amend BOP) w/RHP affirm . . . . . . . . . . . . . . . . . . . . . . . . 8 A&W partial opp to Klewinowski ("Runner" args) w/RHP affirm . . . . . . . . . . . . . . . . . . 9 A&W further supportlreply to Welsbach w/RHP affirm, exhs . . . . . . . . . . . . . . . . . . . 10 Klewinowskifurther supportlopp to Welsbach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Welsbach further supporVreply to A&W and Klewinowski w/AMK affirm . . . . . . . . . . 12 City opp to Welsbach, A&W, Klewinowskiw/TAP affirm . . . . . . . . . . . . . . . . . . . . . . 13 -----_______-___r_____________________I_--------"--------------------------"-------------------------------------- Upon the foregoing papers, the decision and order of the court is as follows: G Ische J .; Plaintiff and defendants the City of New York ("City"), Amman & Whitney Consulting Engineers, P.C. ("A&W'), and Welsbach Electric Corp. ("Welsbach") each -Page 1 of 8- [* 3] brought prior motions for summary judgment. In the court s prior decision and order dated September 13, 201 I( prior order ) those motions were decided. The court: I) 0 decided that Welsbach is not a statutory defendant under the Labor Laws; 2) dismissed 241 the Labor Law $5 240 [I], [a] and 200 claims against Welsbach but allowed the common law negligence claims against Welsbach to continue to trial; 2) dismissed Klewinowski s Labor Law § 240 [I] claim in its entirety; 3) allowed Klewinowski sLabor Law 5 241 [6] claim to proceed to trial, only insofar as it is based upon alleged violations of sections 23-8.1 (9 et seq and 23-8.2 (d) of the Industrial Code, but otherwise dismissed his Labor Law 5 241 [6] claim; 4) dismissed Klewinowki s Labor Law § 200 and common law negligence claims against the City but; 5) allowed Klewinowski s claims under Labor Law 3 200 and for common law negligence to proceed to trial against A&W. All the cross claims among the defendants remain to be decided at trial. Presently, Welsbach moves to reargue its motion for summary judgment. A&W and Klewinowski have each cross moved to reargue their own motions for summary judgment. The court denied Welsbach s application for an order temporarily staying jury selection and the trial of this action. Consequently this case is scheduled for trial on February 7 , 2012. Each of the defendants opposes the other defendants motions either in whole or in part. Thus, Welsbach and A&W oppose each other s motions, but are united in seeking the dismissal of any of the plaintiffs remaining claims against them. In its cross motion, A&W seeks to have the claims against the City reinstated. The City opposes all the motions on the basis that the court did not misapprehend the facts or misapply the law. -Page 2 of 8- [* 4] A motion for leave to reargue pursuant to CPLR 5 2221 is addressed to the court's discretion (Folev v. Roche, 68 A.D.2d 558 [IBt19791). It may be granted Dept. * only upon a showing that the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision (William P. Pahl Enuipment Core. v. Kassis, 182 A.D.2d 22 [lat 19921). It is not a vehicle to permit a patty to Dept argue again the very questions previously decided (Folev v. Roche, 68 A.D.2d 558 [Ist Dept. 19791; see also Frisenda v. X Lame Et4emrises Inc., 280 A.D.2d 514 [ZM Dept. 20011 and Rodney v. New York Pvrotechnic Products Co,. Inc., 112 A.D.2d 410 [2d Dept. 19851) or to offer an unsuccessful party successive opportunities to present arguments not previously advanced (Giovannielb v. -0 lina Wholesale Office MachA Co., InC,, 29 A.D.3d 737 [2"dDept. 20061). Although the court will allow each movant to reargue aspects of their motion, upon reargument the court adheres to its original decision because none of the movants have proved the court misapprehended any of the facts or misapplied the law. Welsbach's Motion Welsbach contends the court misapplied the law because it gave equal weight to the sworn affidavit of plaintiffs expert, Herbert Heller, Jr., an engineer, and the sworn affidavit by Welsbach's employee, lead man/electrician, Peter Tuozzolo. According to Welsbach, Heller does not have personal knowledge about how the wire was attached to the temporary pole and cannot opine it was improperly connected. On the other hand, Welsbach claims that Tuouolo knows how the installation was done because he did it himself. -Page 3 of 8- [* 5] In support of plaintiffs underlying motion, Heller opined that the temporary light pole was improperly wired. He stated that the wire between the temporary light pole 0 and the permanent pole should have been, but was not attached by, an insulator. He expressed the opinion that the wire been properly attached, the temporary pole would have not toppled over as it did when the overhead wire was struck. Heller's opinion was based on his review of various documents, including the EBT testimony of various witnesses. He also stated that he examined photographs of the accident scene taken soon after the accident occurred. Tuouolo was not deposed, but provided his sworn affidavit. In his affidavit, Tuouolo stated that he personally installed a temporary traffic pole and overhead cable at the intersection of Houston and Crosby on January 12, 2008. According to Tuouolo, "porcelain insulators built into metal clevis" were, in fact, used in that installation. In preparing his statement, Tuouolo contends he examined the same photographs that Heller did. The photographs both men refer to are very dark, black and white photocopies of a photograph of the accident scene. They photographs show what appears to be a light pole lying flat on the street. According to Tuozzolo the insulator would otherwise be visible in the photograph had it not been for "a man standing i the way." Tuozollo also n stated that "I know from my own personal recollection that all ofthe installations I performed at the jobsite used the insulator and clevis to attach the cable to both poles." I The party seeking summary judgment has the burden of tendering evidentiary proof in a form admissible at trial to show that it is entitled to summary judgment as a -Page 4 of 8- [* 6] matter of law (Friends of Animals v. Association of Fur Manufacturer$, 46 NY2d 1085 (I 979). Upon establishing a prima facie entitlement to summary judgment, the burden then shifts to the opposing party to demonstrate by evidentiary facts that genuine issues of fact exist to preclude summary judgment (Alvqras v. Prosnect Hospital, 68 NY2d 320 [1986]); Zuckerman v. City of New York, 49 NY2d 557 [1980]).Generally, negligence actions do not lend themselves to disposition by summary judgment because the issue of whether a defendant was negligent is essentially one of fact, not of law (Haidar v. G&G Moderns, Inc,, 13 AD2d 651 [Iat 19611). Dept. Welsbach did not meet its burden of proving, as a matter of law, there was an insulator on the pole. Even if did, there are disputed issues of fact. The photograph is inconclusive and although Tuouolo recalled installing an insulator, this fact is contradicted by Heller who opines that had the wire been attached in the manner described by Tuouolo the pole would not have fallen over. Tuouolo stated that other poles were installed the same way and Heller points out that there had been other incidents of temporary light poles toppling over at this project, prior to the date of the accident. An expert's affidavit which contains bare conclusory allegations is insufficient to defeat summary judgment {Amatulli bv A m t uIli v. Delhi Const. Corn * I 77 N.Y.2d 525 [1991]) and an expert cannot assume material facts that are not supported by the evidence to sustain his conclusions (Cillo v. Resiefal Corp.16 A.D.3d 339 [la' Dept 20051). Heller's opinion is based upon fact that are in the record, including the photograph which Tuozollo admits does not clearly depict an insulator. Tuozollo's -Page 5 of 8- [* 7] factual statement and Heller s expert opinion are irreconcilable. Therefore, it is for the jury to decide what the correct facts are and to disregard the expert s opinion, if that is . what the jury chooses to do. The court neither misapprehended the relevant facts nor misapplied the law in denying Welsbach s motion for summary judgment dismissing the common law negligence claims, and related cross claim, against it. The court adheres to its prior decision denying this branch of Welsbach s motion. A & W s Cross Motion A&W seeks to reargue that part of the court s decision which denied its motion for summary judgment dismissing plaintiffs Labor Law 5 200 and negligence claims against it, as well as its cross motion for summary judgment dismissing the cross claims against it for indemnification. The motion is predicated on A&W s claim that the accident was proximately caused by the defective designs and specifications provided by the City, not any negligence on A&Ws part. Specifically, A&W now maintains that the City did not require the wires to be strung at a proper height or that the temporary light poles be secured to the ground. This is a new argument, improperly raised for the first time in this motion for reargument. In any event, A&W has not identified the allegedly defective designs it relied on or in what ways the designs were defective. As evident in section 6.1.2 and other sections of its contract, A&W had a wide range of responsibilitiesfor this project, encompassing the review and approval all shop drawings for the project, including temporary and permanent structures (6.3.1,A&W contract). Having failed to identify any facts the court misapprehended,A&W s motion for -Page 6 of 8- [* 8] reargument must be and hereby is denied. Klewinowski s Motion Klewinowski contends that the recent Court of Appeals decision in Wilinksi v. 334 East 9Zd Street HouSinq Development Fund Corp., 18 N.Y.3d I [2011] ( Wilinski ) requires that this court reconsider its decision, denying him summary judgment and granting the defendants motion for summary judgment instead, dismissing his Labor claim. The court disagrees. Law 5 240 [l] Wilinsb involved a plaintiff who, while demolishing brick walls at a vacant warehouse, was struck by two unsecured metal, vertical plumbing pipes that fell onto him. On appeal, the Appellate Division, First Department, in dismissing Wilinski s Labor Law 5 240 [Iclaim, stated it did so [slince both the pipes and plaintiff were at J the same level at the time of the collapse the incident was not sufficiently attributable to elevation differentials to warrant imposition of liability (Wilinski v. 334 E. 92nd Holrs. Dev. Fund Corp,, 71 AD3d 538,539 [IE 20101). The Court of Appeals reversed Dept the appellate court, holding that plaintiff was not precluded from recovery under Labor Law 5 240 (1) simply because he and the pipes that struck him were on the same level. (Wilinksi v. 334 East 92nd Street Housinq Development Fund Corp., 18 N.Y.3d at 1-2). Thus, in Wilinksi the Court of Appeals clarified an area of the law which it perceived had been improperly dealt with by the appellate courts in the four departments. This court did not dismiss plaintiffs Labor Law 5 240 [ l ] claim based upon the location of the temporary pole relative to where Klewinowski was standing when the -Page 7 of 8- [* 9] accident occurred. The court denied Klewinowski s motion and granted defendants motion for summary judgment because the work Klewinowski was performing when the 0 incident occurred was wholly unrelated to an elevation-related hazard and, therefore, not within the purview of Labor Law 5 240 [l] (See prior order pp 9-12}. Significantly, Klewinowski failed to identify any safety device that defendants failed to provide him with that would have prevented his accident. The decision in Wilinski is not a change in the law affecting this court s prior decision, nor did this court misapply the law in dismissing plaintiffs Labor Law 5 240 [Iclaim. Therefore, Klewinowski s motion for J reargument of its motion and the defendants motion for summary judgment on his Labor Law 5 240 [I] claim is denied. Concluslon Although allowing the parties to reargue certain aspects of their underlying motions (or opposition thereto), the court adheres to its prior order in all respects because none of the movants have shown the court misapprehended the facts, misapplied the law or now raise arguments that were previously raised (or could have been raised), but were not considered by the court. Any arguments not specifically addressed herein have nonetheless been considered. Any relief requested but not specifically addressed supra is hereby denied. This constitutes the decision and order of the court. Dated: New York, New 8 k I L E D January 19,2012 So Ordered: JAN 28 2012 NEW YORK COUNTY CLERKS OFFICEHon. Judi -Page 8 of 8-

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