Pertillar v Amsterdam House Continuing Care Retirement Community, Inc.

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Pertillar v Amsterdam House Continuing Care Retirement Community, Inc. 2012 NY Slip Op 30422(U) February 8, 2012 Supreme Court, Nassau County Docket Number: 022391/09 Judge: Thomas P. Phelan 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] SCAAI SHORT FORM ORDER STATE OF NEW YORK SUPREME COURT Present: HON. THOMAS P. PHELA. Justice. TRIALIIAS PART 2 NASSAU COUNTY ALBERT L. PERTILLAR Plaintiff Index No. 022691/09 -against - ORIGINAL AMSTERDAM HOUSE CONTINUING CARE RETIREMENT COMMUNITY, INC. , NASSAU COUNTY INDUSTRIAL DEVELOPMENT AGENCY, PIKE CONSTRUCTION COMPANY INC. and MCGLONE TRUCKING, INC., SUBMISSION DATE: RE DATE: 11/15/11 12/12/12 MOTION SEQUENCE ## 001 002 003 Defendants. The following papers read on this motion: Notice of Motion Order to Show Cause....................... 1 Notice of Cross Motion .................................................. 3 Reply Affinnation and Opposition ................................ 4 Plaintiffs Memorandum oflaw...................................... 5 Defendants, Amsterdam House Continuing Care Retirement Community, Inc. (" Amsterdam House ), Nassau County Industrial Development Agency (" NCIDA" ) and Pike Constrction Company, LLC (" Pike move pursuant to CPLR 3212 , for an order dismissing plaintiff s complaint, together with any and all cross claims asserted against them. Defendant, McGlone Trucking, Inc. (" McGlone ), moves pursuant to CPLR 3212, for an order granting sumary judgment dismissing plaintiff s complaint , together with any and all cross- claims asserted against it. Plaintiff moves partial summary judgment against defendants. , pursuant to CPLR 3212 and Labor Law 240(1), for an order granting ). [* 2] RE: PERTILLAR v. AMSTERDAM HOUSE, et al. Page 2 On May 26, 2009 , plaintiff, was allegedly injured while he was working at the site upon which Amsterdam House was being constrcted (Ex. K p. 48). Defendant Pike was the general contractor on the project, which in turn hired Petilo, Inc. (" Petrilo ), plaintiffs employer and nonpart (id. As recited in the deposition transcript , on the day of his accident, plaintiff was in the process of unloading cylindrical precast concrete cesspools thee to four feet in height pp. 57 , 61). The trailer was operated by defendant, McGlone pp. 59, 60). In performing his assigned task, plaintiff utilized a 24- foot alumnum extension ladder, which he pulled up and onto the flatbed , and thereafter would " pull" it apart to get two equal sections , each pp. 72 , 73, 74). Plaintiff stated that he would place the lower portion of the ladder " against the cesspool " ascend same and " when (he) got halfway up, " would grab the upper portion of the ladder, place it over and inside the precast cesspool and climb pp. 74 , 82 , 123). After accessing the interior of the cesspool , the plaintiff would use his hamer to " knock holes on the inside " and then " grab (a hook), stick it though the hole that (he) made, " after which the operator of the flatbed would use the boom to " move the cesspool toward the edge of the pp. 82, 87, 115 , 116). herein (id. , from a flatbed trailer (id. , and was equipped with a boom with 12 rungs in (id. (id. trck" (id. As to the particular circumstances surrounding his accident , plaintiff states that as he was descending that porton of the ladder positioned with the interior of the cesspool " the ladder shifted" to the left by " four inches " and as a consequence " he was scared" and intead of falling with the ladder pp. 124 , 133, 138 , 140). After jumping off the ladder , plaintiff landed on his left foot and thereafter fell , whereupon his pp. 142 , 143). Plaintiff p. 141). Plaintiff alleges in his Bil of Particulars that he sustained the following injuries: tear of the gastrocnemius muscle with resultant hematoma left calf and lower extremity; left anke sprain; left knee sprain; and synovitis of the left ane and foot." ( Ex. F " 13, 14). , (he) jumped off' buttocks and (his) back hit * * * the inside of the cesspool" further testified that after he let go of the ladder, it did not fall at all (id. (id. (id. The complaint sets forth causes of action predicated upon negligence, as well as upon Labor Law ~~ 200, 240 and 241(6), the latter of which is based upon alleged violations NYCRR ~~ 23- 1.5, 23- 1.7 , 23- 1.21 , 23- 1.8, 23- , 23- 1 and 23- 2 (Ex. A). of 12 In support of the instant application , counsel for defendants , Amsterdam House , NCIDA and Pike inter alia that inasmuch as plaintiff was unloading materials from a flatbed trck at the time of his accident, said accident was not gravity related and accordingly his claims predicated upon Labor Law ~240 must be dismissed. Counsel furter asserts that the record establishes that plaintiff was caused to fall as a result of his jumping off the ladder and not because the ladder provided was defective. , contends, [* 3] RE: PERTILLAR v. AMSTERDAM HOUSE, et al. Page 3 As to those claims predicated upon Labor Law ~200 , counsel posits that the record herein establishes neither NCIDA , Amsterdam House or Pike directed , supervised or controlled the work in which plaintiff was engaged and , as such , said claims must be dismissed. Counsel relies, in part, upon the deposition testimony of plaintiff, who testified that it was Roy Stuber , an employee of Petilo, who instrcted him on how to offoad the cesspools from the flatbed (Ex. K pp. 57 , 62 , 69, 70). Finally, as to those claims predicated upon Labor Law ~ 241 (6), counsel argues that the sections of the industrial code cited by plaintiff are either too general or inapplicable to the subject accident. In support of the application submitted by McGlone , counsel for said defendant argues that the unloading operation in which plaintiff was involved when he sustained his injuries is not the tye of elevation related hazzard contemplated by Labor Law ~ 240 and accordingly the plaintiffs claims predicated thereon must be dismissed. Additionally, counsel contends that McGlone was neither an owner , a contractor nor an agent thereof and accordingly sumary judgment should be awarded in its favor. With particular respect to plaintiffs claims based upon Labor Law ~ 241(6), counsel posits that same should be dismissed as the industrial regulations cited by plaintiff are inapplicable 63, 66, 67- 76). Finally, with respect to plaintiffs claims predicated upon common law negligence and Labor Law ~ 200, counsel argues that McGlone neither directed, controlled nor supervised the work in which plaintiff was engaged when he was injured and accordingly plaintiffs claims must be dismissed. to the subject accident (id. The applications interposed by all of the defendants are opposed by plaintiff, who also cross-moves for an order granting partial sumary judgment as to the issue of liabilty on those claims based upon Labor Law ~ 240(1). In both opposing defendants ' respective applications and in support of the cross motion for sumary judgment , counsel initially argues that the unloading activities in which plaintiff was engaged were both necessary and integral to the overall constrction project and, as such , plaintiff was a covered person within the purview of both Labor Law ~ 240(1) and ~ 241(6). Counsel furter argues that in failng to provide plaintiff with any safety devices beyond that of an unsecured aluminum extension ladder , defendants exposed plaintiff to a dangerous condition , the existence of which proxiately caused him to fall at least thee pp. 35, 36). To this point , counsel particularly posits that defendants have violated the provisions of Labor Law ~ 240(1) in failng to provide a " precast" lifter , which would have enabled plaintiff to safely remove the cesspools from the flatbed. Further , and with feet (id. [* 4] RE: PERTILLAR v. AMSTERDAM HOUSE, et ale Page 4 paricular respect to defendant NCIDA , counsel asserts that said defendant was in fact the title owner of the subject premises and thus fully liable to plaintiff for the injuries counsel contends there are questions of fact as to whether or not plaintiffs injuries were proximately caused by violations of the New York State Industrial sustained. Finlly, Code 12 NYCRR ~ 23- 1.21(b)(4) (ii), (iv) and (v) and, accordingly, those branches of. defendants ' applications seeking dismissal of plaintiff s claims based upon Labor Law ~ 241(6) should be denied. In reply, counsel for Amsterdam House , NCIDA and Pike contends that the precast lifter referred to by plaintiff s counsel is not a safety device enumerated in the New York State Industrial Code and as such any arguments based thereon are without merit. Counsel for McClone argues that even assumng a precast lifter is a piece of safety equipment which is statutorily required , the responsibilty for providing same would have resided with Amsterdam House , NCIDA and Pike. It is well settled that a motion for summary judgment is a drastic remedy that should not be granted where there is any doubt as the existence of a triable issue of fact 3 NY2d 395 Twentieth Century Fox, (1957); (Silman Bhatti Roche, 140 AD2d 660 (2d Dept 1998)). To obtain sumary judgment , the moving party must establish its claim or defense by tendering sufficient evidentiary proof, in admissible form , sufficient to warrant the (Friends of Animals, Court, as a matter of law, to direct judgment in the movant's favor Associated Fur Mfrs., Inc. 46 NY2d 1065 (1979)). Such evidence may include deposition transcripts as well as other proof annexed to an attorney s affirmation(CPLR 64 NY2d 1092 (1985)). Inc. 3212 (b); Olan If a sufficient Farrell Lines, prima facie showing is demonstrated, the burden then shifts to the non- moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact , the existence of which necessarily precludes the granting of sumary City of New York 49 NY3d 557 (1980)). It is incumbent upon the non-moving party to lay bare all of the facts which bear 141 AD2d 513 (2d Dept 1988)). When considering a motion for summary judgment, the function of the court is not to resolve factual issues but rather to determne if any (Barr 50 NY2d 247(1980)). judgment and necessitates a trial on the issues raised in the motion (Zuckerman (Mgrditchian Donato, such material issues of fact exist County of Albany, Labor Law ~ 200 and the provisions therein embodied are a codification of the common law and impose upon owners, contractors and agents thereof a duty to provide workers Stout, 80 with a safe environment in which to perform their assigned duties (Lombardi [* 5] RE: PERTILLAR v. AMSTERDAM HOUSE, et ale Page 5 Nozkowski, Everitt 81 NY2d 494(1993); Curtis-Palmer Hydro- Electric Company, Ross NY2d 290 (1992); W Shin Realty Kwang Ho Kim 285 AD2d 442 (2d Dept 2001); 47 AD3d 616 (2d Dept 2008)). " It is well setted that an implicit precondition to ths duty is that the part to be charged with that obligation ' have the authority to control Corp., the activity bringing about the injury to enable it to avoid or correct an unsafe condition Picciano & 91 NY2d 343 (Rizzuto Son, Russin (1998) quoting Wenger Contracting Co., 54 NY2d 311, 317 (1981)). The Court has reviewed the record and finds that the moving defendants have established 3 NY2d their entitlement to judgment as a matter New York University Med. Center 64 NY2d 851 (1985)). In the intant matter , the record establishes that neither of the moving defendants exercised any supervision or control over the work in which plaintiff was engaged when he was injured Wenger Contracting Co. 91 NY2d 343 (1998)). Here, plaintiff specifically testified that the procedures he utilized in offloading the cesspools were given to him Wenger Contracting Co., 91 directly from Roy Stuber NY2d 343 (1998)). In opposition , plaintiff s counsel does not address the claims predicated upon Labor Law ~200 and concedes that Mr. Pertllar took direction from Mr. Stuber. Thus, in opposing defendants ' application , plaintiff has failed to raise a triable issue of fact 49 NY3d 557 (1980)). oflaw (Silman Twentieth Century Fox, (1957); Winegrad (Rizzuto , an employee of Petilo (Zuckermn (Rizzuto City of New York, Therefore , based upon the foregoing, those branches of the applications respectively interposed by defendants Amsterdam House , NCIDA and Pike, as well as by defendant McGlone, which seek an order granting sumary judgment dismissing the plaintiff s claims predicated upon common law negligence and Labor Law ~ 200, are hereby granted. Labor ~ 240(1) provides in relevant part that " (a)ll contractors and owners * * * shall fush or erect , or cause to be furnshed or erected * * * scaffolding, hoists, stays ladders, slings , hangers, blocks , pulleys , braces, irons, ropes and other devices which shall to give proper protection. . . " to constrction workers who are employed on the subject premises. The duty imposed by the statutory provisions is nondelegable in natue, and an owner or contractor who breaches the duty may be held liable in damages caused thereby, irespective of whether it has actually be so constrcted, placed and operated as exercised supervision or control over the work 78 NY2d 509 (1991); Ross (Rocovich Consolidated Edison Company, Curtis-Palmer Hydro-Electric Company, 81 NY2d 494 (1993)). In opinng as to the scope of hazards which fall within the purview of the statute and which are therefore compensable thereunder , the Court of Appeals has held Labor Law ~240(1) such specific gravity-related accidents as fallng from a height is applicable to " [* 6] PERTILLAR v. AMSTERDAM HOUSE, et ale RE: Page 6 (Ross being strck by a 81 NY2d 494 (1993)). While the statute is to Curtis-Palmer Hydro-Electric be liberally constred so as to give effect to the purposes for which it was promulgated falling object that was improperly hoisted or inadequately secured" Company, in consideration of the strict liabilty imposed thereby, the statutory language therein contained should not be so contorted as to bring within its sphere that which the legislature 202 AD2d 657 (2d Dept 1994)). (Schreiner did not intend to include In the matter Cremosa Cheese Corp., the Court has carefully reviewed the record and , upon said sub judice, review , finds that plaintiff is accident was not gravity related as contemplated by the statute 81 NY2d 494 (1993)). Initially, plaintiff Curtis-Palmer Hydrotestified that he jumped off the ladder and not that he fell therefrom. Additionally, plaintiff repeatedly testified that he used the very same ladder at issue herein on multiple occasions Electric Company, (Ross without incident and just prior to sturdy . Moreover , when his accident reinspected the ladder and found it to be asked if the ladder ended up fallng at all , plaintiff unequivocally answered " applications interposed by defendants, Amsterdam House , NCIDA and Pike, as well as by defendant , McGlone, which seek an order granting summary judgment dismissing plaintiff s claims based upon Labor Law ~240(1), are hereby granted. In accordance therewith, plaintiffs cross motion for an order granting sumary judgment as to the issue of liabilty against all of defendants herein as to those claims predicated upon Labor Law ~240(1), is accordingly denied as moot. Thus, based upon the foregoing, those branches of the Labor Law ~241(6) imposes a nondelegable duty upon owners, general contractors and the agents thereof to " provide reasonable and adequate protection and safety" for workers employed in areas where constrction, excavation or demolition work is being conducted and to comport with the safety rules and regulations issued by the Commssioner of the 91 NY2d 343 (1998); Departent of 81 NY2d 494(1993)). A violation of a Ross Curtis-Palmer Hydro-Electric regulation is merely some evidence of negligence; and , therefore , once a violation of a relevant concrete specification has been established, " it is for the jury to determne whether the negligence of some part to, or participant in , the construction project caused Wegner 91 NY2d 343, 350 (1998)). If negligence is the plaintiffs injury (id. proven Labor (Rizzuto Wenger Contracting Company, Inc. Company, (Rizzuto , the general contractor or owner is vicariously liable without regard to fault To prevail under the statutory scheme , plaintiff must demonstrate that the regulation or regulations alleged to have been breached set forth a " specific , positive command" and do Lowen Development not merely contain a " reiteration of common- law standards (Parisi [* 7] RE: PERTILLAR v. AMSTERDAM HOUSE, et al. Page 7 Ross Curtis-Palmer Hydro-Electric of Wappinger Falls, LP 81 NY2d 494 (1993)). As noted above , plaintiff alleges that there exists material issues of fact as to whether either of the moving defendant , violated the following regulations 5 AD3d 648 (2d Dept 2004); Company, 12 NYCRR ~ 23- 1.21(b)(4)(ii) which provides: " All ladder footings shall be firm. Slippery surfaces and insecure objects such as bricks and boxes shall not be used as ladder footings. 12 NYCRR ~ 23- 1.21 (b)(4)(iv) , which states the following, in relevant part: When work is being performed from ladder rungs between six and 10 feet above the ladder footing, a leaning ladder shall be held in place by a person stationed at the foot of such ladder unless the upper end of such ladder is secured against side 12 NYCRR ~ 23- 1.21(b)(4)(v), which provides the following: " The upper end of any ladder which is leaning against a slippery surface shall be mechanically secured against side slip while work is being performed from such ladder. " Having reviewed the record, including plaintiff s deposition testimony, the Court finds that , as to the claims based upon12 NYCRR ~ 23- 1.21(b)(4)(ii), there is an absence of evidence with respect to the existence of any slippery surfaces present at the time of Wegner 91 NY2d 343 (1998)). Moreover , plaintiff herein repeatedly testified that the ladder he utilized to carry out his assigned task was in good condition and was in fact " sturdy . As to those claims based upon 12 NYCRR ~ 23- plaintiff s accident (Rizzuto that said section is inapplicable to the facts as adduced herein. Here, plaintiff testified that prior to his accident , he was " four feet" from the 1.21 (b) (4) (iv) , ths Court fmds bottom of the flatbed trailer. Thus , the record herein does not support the proposition that at the time of his accident he was working on ladder rungs, which were 6 to 10 feet above the ladder footing. Finally, as to those claims predicated upon 12 NYCRR ~ 2321(b)(4)(v), the record establishes that the " upper end" of the subject ladder was leaning against the precast cesspool , which was comprised of cement. There is no evidence to even suggest that the upper portion of the ladder was leaning against a slippery surface. *The Court notes tlt while plaintiff alleges numerous violations of the New York State Industrial Code, he (see Plaintiffs Memorandum of 23- 1.21(b)(4) (ii), (iv) and (v) nonetheless confined his opposition arguments to 12 NYCRR Law). ---- [* 8] RE: --- --- PERTILLAR v. AMSTERDAM HOUSE, et ale Page 8 suggest that the upper portion of the ladder was leaning against a slippery surface. Based upon the foregoing, those branches of the applications interposed by defendants, Amsterdam House, NCIDA and Pike , as well as by defendant, McGlone , which seek an order granting summary judgment dismissing plaintiff s claims based upon Labor Law 241(6), are hereby granted. In accordance with the foregoing, those branches of defendants ' respective applications , which seek an order dismissing the cross- claims asserted against them , are granted. All applications not specifically addressed herein are deemed denied. This decision constitutes the order of the Court. HON THOMAS P. PHELAN Dated: \L c. "f;r-- THOMAS P. PHELAN, J. ENTERED FEB 1 0 2012 NASSAU COUNTY COUNTY CLERK' S OFFtCE [* 9] RE: PERTILLAR v. AMSTERDAM HOUSE, et al. Page 9 Attorneys of Record Siben & Siben, LLP Attorneys for Plaintiff 90 East Main Street Bay Shore, NY 11706 Fumuso Kelly Devern, et al. Attorneys for Defendants Amsterdam House and Nassau County Industrial Development Agency 110 Marcus Blvd. Hauppauge, NY 11788 Fiedelman & McGaw, Esqs. Attorneys for Defendant Pike Construction Co. Two Jericho Plaza Jericho , NY 11753 Carman Callahgan & Ingham, LLP Attorneys for Defendant McGlone Trucking 266 Main Street Farmngdale, NY 11753

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