Barreto v Metropolitan Transp. Auth.

Annotate this Case

Download PDF

Barreto v Metropolitan Transp. Auth. 2012 NY Slip Op 30858(U) March 30, 2012 Sup Ct, NY County Docket Number: 108233/05 Judge: Michael D. Stallman 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: MICHAEL D. STALLMAN Hon. PART 21 Justice - Index Number : 108233/2005 INDEX NO. BARRETO, RAUL vs. METROPOLITAN TRANSPORTATION SEQUENCE NUMBER : 011 108233105 MOTION DATE 1110411I MOTION SEQ. NO. 011 SUMMARY JUDGMENT The Collowlng papem, numbered I to 5 were read on thle motlon for summary Judgment INo(fJ). INo(s). INo(s). INo(fJ)- Notlee of Modon- Afflrmatlon - Exhlblts A-M Affirmation In Opposition - Exhlblts A-E Supplemental Affimatlon In Further Support Atnrmatlon In Opposltlon and In Further Support 1-2 3 4 5 Upon the foregolng papers, it is ordered that this motion are decided in accordance with the annexed memorandum decision and order, L W Dated: New York, New York I Check one: ................................................................ . 2. Check If appropriate: ............................ MOTION IS: 3. Check If spproprlate: ................................................ CASE DISPOSED u NON-FINAL DISPOSITION GRANTED 0DENIED GRANTED IN PART n OTHER 0SElTLEORDER 0SUBMIT ORDER 0DO NOT POST uFIDUCIARY APPOINTMENT 0REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 21 X RAUL BARRETO and DERLIM BARRETO, Plaintiffs, -againstIndex No. 1 0 8 2 3 3 / 0 5 METROPOLITAN TRANSPORTATION AUTHORITY, NEW YORK CITY TRANSIT AUTHORITY, THE CITY OF NEW YORK and IMS SAFETY, INC., IMS SAFETY, INC., Third-party Plaintiff, Third-party Index -againstANDRES SERVICES CORPORATION, No. Third-party Defendant. X _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ l _ _ _ _ _ _ _ _ l _ _ _ _ _ _ _ _ _ _ METROPOLITAN TRANSPORTATION AUTHORITY and NEW YORK CITY TRANSIT AUTHORITY, '''P'R E D APR 05 2072 NEW YORK COUNW CLERK'S OFFICE Second Third-party Plaintiffs, Second Third-party Index No. 5 9 0 4 4 0 / 0 7 -against- DECISION AND ORDER P.A.L. ENVIRONMENTAL SAFETY CORP., Second Third-party Defendant. X Hon. Michael D. Stallman, J . S . C . : Motions with sequence numbers 011 and 012 a r e h e r e b y consolidated for disposition. On January 9, 2005, plaintiff Raul Barreto, then an asbestos laborer employed by second third-party defendant P . A . L . 1 [* 3] Environmental-Safety Corp. (PAL), fell through an uncovered manhole in the street in front of the Family Court courthouse at 60 Lafayette Street in Manhattan, and allegedly suffered injuries as a result of his fall. This action for damages for personal injuries ensued. In motion sequence number 011, defendant/third-party plaintiff IMS Safety, Inc. (IMS) moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint and all cross In motion sequence number 012, claims asserted as against it. defendants/second third-party plaintiffs Metropolitan Transportation Authority (MTA) and the New Y o r k City Transit Authority (TA; together, defendants) move f o r summary judgment dismissing plaintiff s Labor Law 5 5 240 (1) and 2 0 0 causes of action, as ,well as the OSHA and Industrial Code sections that plaintiff a.llieges defendants violated.2 Defendant the City of New Y o r k (City) cross-moves for the dismissal of all causes of action as they relate to the City s alleged negligent maintenance of the premises, as well as 1 There are no cross claims asserted against IMS. Because violation of Industrial Code sections is not a proper cause of action, as the regulations only serve as support for Labor Law 0 241 ( 6 ) causes of action, the court deems this part of defendants motion to be a motion for the dismissal of plaintiffs section 241 (6) cause of action. Of course, as OSHA regulations do not provide a basis for liability under Labor Law 0 241 (6),any cause of action grounded in alleged violations of OSHA provisions is dismissed (see Shaw v RPA Assoc., LLC, 75 AD3d 634,636-637 [2d Dept 20103). 2 [* 4] the dismissal of the complaint and cross claims as a l l e g e d against it. Plaintiff cross-moves for summary judgment on his complaint. Plaintiff has discontinued his Labor Law § 200 and common-law negligence causes of action as against the City (Edwards 10/7/11 Affirm. in Opp. to City's Cross Motion, ¶ 3). THE PLEADINGS Plaintiff's amended complaint alleges causes of action sounding in common-law negligence and violations of Labor Law 55 200, 240 (1) and 241 (6). Plaintiff's wife's cause of action for loss of services has been discontinued per this court's Order dated September 20, 2011 (motion sequence number 009). The City's answer to the amended complaint asserts cross claims against defendants for contribution and contractual indemnification. - Defendants' answers bring cross clai-m*s against the City for contribution or common-law indemnification, and contractual indemnification. IMS has not asserted cross claims against defendants or the City, and defendants and the City have not asserted cross claims against IMS. Third-party defendant Andres Services Corporation is in default. The second third-party action has been discontinued. BACKGROUND The City owns the street in front of 60 Lafayette Street, the New Y o r k County Family Court courthouse. 3 By lease [* 5] dated June I, 1953, as amended several times since then, the City leased that area to the TA (Colt 10/3/11 Affirm., Ex. E). On December 16, 2002, the MTA, acting by t h e TA, entered into an agreement with PAL whereby PAL would perform environmental remediation services within the five boroughs of New York (Bass 6/15/11 Affirm., Ex. L). Pursuant to the agreement, PAL acted as the general contractor for the project of asbestos removal in manholes (Bass 6/15/11 Affirm., ¶ 2; Plaintiff's January 9, 2009 Depo. [Plaintiff's J a n . Depo.], at 7 2 ) . By subcontract dated June 17, 2003, PAL retained IMS a s t h e s i t e safety consultant (Bass 6/15/11 Affirm., ¶ 2 ; id., Ex. I). IMS's responsibilities included enforcing safety and making sure that everyone worked in compliance with OSHA rules and regulations. The IMS supervisor also had the authority-to stop work if he saw an unsafe or hazardous condition (Mazzurco Depo., at 2 7 - 2 8 , 8/8/11 Aff., ¶ 38, 101; T o r r e s 8; Plaintiff's Jan. Depo., at 81-82; but see Mazzurco Depo., at 53-54 [if there was a dangerous condition, IMS would tell PAL supervisor]; i d . at 117-118 [IMS itself directly stopped work only when serious injuries or death could occur]). In addition, it was IMS's responsibility to monitor the levels of carbon dioxide, oxygen and methane in t e subterranean work area before and during the asbestos removal 0' Loughlin Depo., at 13- 14). IMS is no longer in business 4 Mazzurco Depo., at 19). [* 6] At one p o i n t in h i s testimony, Mazzurco, who was IMS s president at the time, averred that IMS subcontracted its work on this project to Andres Inc. There is nothing in writing that evidences the subcontract or that PAL or the defendants were apprised of the change in safety contractor. However, Mazzurco identified two men, Manuel Fiallos and Diego Maldonado, who are elsewhere identified as IMS Supervisors, as Andre3 employees, one of which, Diego, was on site at the time of plaintiff s accident (id. at 61-65, 98). According to Mazzurco, IMS had no employees on site on the day of plaintiff s accident (id. at 62). Earlier in his deposition, Mazzurco attested that IMS did perform w o r k on this particular project and t h a t one IMS employee would be present at the site every day, performing the duties set forth above (id. at 37-38). The PAL supervisor for the project, Rafael Torres, identified the IMS employee that was present on site on the day of plaintiff s accident as Diego (Torres 8/8/11 Aff., ¶¶ Plaintiff identified Manuel as 7, 10). the IMS supervisor that was present on the day of plaintiff s accident (Plaintiff s Jan, Depo., at 79-80). Defendants were present at the site in the person of Brian O Loughlin, defendants asbestos handler supervisor, whose j o b it was to monitor contractors and consultants on asbestos removal j o b s , and to protect the public (O Loughlin Depo., at 7 8). He showed contractors which hole to work in, but he d i d not 5 [* 7] direct the work of the contractors or-consultants (id. at 8). If O Loughlin saw that a contractor was n o t working properly, he told the consultant, and the consultant would tell the contractor. The consultant acted as a liaison between defendants and the contractors (id. at 8-9). Before asbestos removal could begin, a protective shelter, made of wood and plastic, had to be constructed around the manhole (Bass 6/15/11 Affirm., ¶ 12; Plaintiff s Jan. Depo., at 61-68; Plaintiff s November 22, 2010 Depo. [Plaintiff s Nov. D e p o . ] , at 66-67). A f t e r the containment shelter was built, an MTA inspector would check that all electricity was turned off before the asbestos workers were allowed to go underground (Plaintiff s Jan. Depo., at 69-70; O Loughlin D e p o . , at 13-14 [MTA checked to make sure there were no high tension positive feeders in the hole, i.e., nothing rtlore than 600 volts]), and IMS checked the air quality in the hole (O Loughlin Depo., at 18-19). Only a f t e r the MTA and IMS inspectors gave permission were PAL workers allowed to remove the manhole cover, which they placed outside the enclosed work area (id. at 70-71; b u t see O Loughlin Depo., at 18-19 [IMS supervisor would give the OK to open and close the hole]; but also see id. at 49 [IMS representative did not have to OK closure of manhole]). At the end of the shift, once everyone and all the equipment were o u t of the hole, the MTA supervisor would give the OK to cover the manhole, after which 6 [* 8] the PAT workers would begin to deconstruct the protective Containment area (Plaintiff s Nov. Depo., at 26-28; but see Plaintiff s Jan. Depo., at 96-97 [PAL, IMS and MTA supervisors were supposed to make sure the manhole was covered3]; O Loughlin Depo., at 73-76 [PAL had to wait for IMS to remove a i r monitoring equipment; the hole was usually closed immediately thereafter; it was IMS s duty to give the OK to cover the manhole]; id. at 22 [at end of the day, IMS went into the containment area, and the hole was closed before the p l a s t i c was removed]; id. at 4 8 [IMS made sure manhole was closed before deconstruction began]; but also see Mazzurco Depo., at 4 0 [if containment barriers were up, IMS had no responsibility to ensure t h a t t h e manhole was covered] ) . On the day of his a c c i d e n t , the manhole was not covered -. before the deconstruction began, and when plaintiff w a l k e d toward the left back corner of the containment area to begin its dismantling, he fell into the open manhole (Plaintiff s Nov. Depo., at 62-70). Plaintiff attested that only his PAL supervisor, Rafael Torres, told him what to do (Plaintiff s Jan. Depo., at 98). At the beginning of the project, Torres specifically told plaintiff not to work around the manhole if it was not covered, and again, 30nly plaintiff has testified that all three inspectors, PAL, IMS and MTA, had this responsibility, but he has not indicated his basis for making this statement. 7 [* 9] on the day of the accident, Torres told him that the manhole had to be covered before deconstruction could begin (Torres 8/8/11 Aff., ¶ 9; Plaintiff's Nov. Depo., at 80). However, at the time of the accident, plaintiff "just did not notice" that the manhole was uncovered. "I just started to make the break down. At no time did I really p a y attention to see if the cover was on or off, because the supervisor is supposed to do that" (Plaintiff's Jan. Depo., at 128; Plaintiff's Nov. Depo., at 125-127 [plaintiff did not check to s e e if the manhole was covered]). When asked how long he waited between the time he exited the manhole and the time he began taking down the plastic, plaintiff responded, "I d i d it right there. You come out and you begin taking it off" (Plaintiff's Nov. Depo., at 41-42). Between the time that plaintiff exited the manhole with his co-workers Charlie and Julio, and the start of their deconstruction woYk, no one but the shop steward entered the containment area (id. at 42-43). Thus, none of the supervisors who had the responsibility to cover the manhole had entered the containment area to cover the manhole before plaintiff's accident. DISCUSSION The Summary Judgment Standard '"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 8 [* 10] issues of fact fr6fn the case"' (Shapiro v 350 E. 78th St. T e n a n t s Corp., 85 AD3d 601, 608 [ l s t Dept 20111, quoting W i n e g r a d v N e w Y o r k U n i v . Med. Ctr., 64 NY2d 851, 853 [1985]). "If this burden is not met, summary judgment must be denied, regardless of the sufficiency of the opposition papers" (O'Halloran v C i t y of N e w York, 78 AD3d 536, 537 [lst Dept ZOlO]). However, \\[o]ncethis showing is made, the burden shifts to the o p p o s i n g party to produce evidentiary p r o o f in admissible f o r m sufficient to establish the existence of triable issues of f a c t " (Melendez v Parkchester Med. Servs., P . C . , 76 AD3d 927, 927 [lst Dept 20101 ) . "The court's function on a motion f o r summary judgment is merely to determine if any triable issues exist, not to determine the merits of a n y such issues" (Meridian Mgt. Corp. v Cristi C l e a n i n g S e r v . C o r p . , 70 AD3d 508, 510-511 [lst Dept 20101). ". IMS'a Motion for Summary Judgment Dismissing them Complaint As Against It (motion aequsnce number 011) L a b o r Law §§ 2 4 0 (1) Labor Law § 240 (1) provides, in pertinent part: All contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or e r e c t , or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, s t a y s , ladders, slings, hangers, b l o c k s , 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. 9 [* 11] "The statute imposes absolute liability on building owners a n d contractors whose failure to 'provide proper protection to workers employed on a construction site' proximately causes injury to a worker" (Wilinski v 334 E . 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 7 [2011], quoting Misseritti v M a r k IV C o n s t r . Co., 86 N Y 2 d 487, 490 [1995]). In order " [ t l o establish liability on a Labor Law 5 240 (1) cause of action, a plaintiff must demonstrate that the statute was violated a n d t h a t the violation was a proximate cause of his os her injuries" (Herrera v Union Mech. of NY Corp., 8 0 A D 3 d 564, 564-565 [2d Dept 20111). In addition, "[lliability u n d e r Labor L a w 5 240 (1) depends on whether the injured worker's 'task creates an elevation-related risk of the k i n d that the safety devices listed in section 240 (1) protect against"' ( S a l a z a r v Novalex C o n t r . Corp., 18 NY3d 1 3 4 , 139 [2011], q u o t i n g B r o g g y v Rockefeller Group, Inc., .8 NY3d 675, 681 [2007]). While the statute ' ' s 'i to be construed as liberally as may be for the accomplishment of t h e purpose for which it was thus framed"' ( S a n a t a s s v Consolidated Inv. Co., Inc., 10 NY3d 333, 339 [ 2 0 0 8 ] , quoting Panek v C o u n t y of Albany, 9 9 N Y 2 d 452, 457 [ 2 0 0 3 ] ) , it "should be construed with a commonsense approach to the realities of the workplace" ( S a l a z a r v Novalex C o n t r . C o r p . , 18 NY3d at 140). In considering a section 2 4 0 (1) claim, "the single decisive question is whether plaintiff's injuries were the direct consequence of a failure to 10 [* 12] provide adequate protection against a risk arising from a physically significant elevation differential ( R u n n e r v N e w York Stock E x c h . , Inc., 13 NY3d 599, 603 [ 2 0 0 9 ] ) . The first issue to be considered is whether the plaintiff s work at street level, in close proximity to the open manhole, posed an elevation-related risk. The standard in determining this issue appears to be that whenever the work that a plaintiff is doing is related to an elevation-related hazard, it falls within section 240 (1) (see e . g . S a l a z a r , 18 NY3d at 139 [liability depends on whether worker s task creates elevationrelated risk] ) . Each of the Appellate Divisions has weighed in on this issue. In the Second Department, the C o u r t has determined that work does not fall within section 240 (1) when the work in which the injured plaintiff was inbolved was wholly unrelated to an elevation-related hazard (Masullo v C i t y of New York, 2 5 3 A D 2 d 541, 542 [ 2 d Dept 19981 [plaintiff fell into a manhole: While the manhole may have been negligently left uncovered, this is not one of the gravity-related hazards or perils subject to the safeguards prescribed by Labor Law 5 2 4 0 (1) (Rocovich v Consolidated E d i s o n Co., 7 8 NY2d 5 0 9 [1991]). To the c o n t r a r y , the fall was the t y p e of ordinary and usual peril a worker is commonly exposed to at a construction site, quoting Misseritti, 86 N Y 2 d at 4891). 11 [* 13] In Plotnick v Wok's K i t c h e n Inc. (21 AD3d 358 [2d Dept 2005]), the plaintiff was performing roofing work when he was sent inside a restaurant to see whether a space heater that had been installed in the ceiling should be removed. While he was in the restaurant, l o o k i n g upward at the heater, he f e l l into an unguarded and uncovered stairwell opening. The Second Department concluded that "[wlhile the staircase may have been negligently left uncovered, this was not a gravity-related hazard or peril subject to the safeguards prescribed b y Labor Law 5 240 (1) [citing Rocovich, 78 N Y 2 d 509, s u p r a , and M a s u l l o , 253 AD2d at 5421 ... . [Tlhe work in which the plaintiff was involved at the time of the occurrence was wholly unrelated to an elevation- related hazard" ( P l o t n i c k , 21 A D 3 d at 359). In E d w a r d s v C .. & D U n l i m i t e d (289 A D 2 d 3 7 0 [2d Dept 2001]), the plaintiff, who was working entirely on the ground outside an excavation and who was not required to travel over or to climb into or out of the excavation, was standing near the edge of the excavation when the ground beneath him gave way, and he f e l l into the excavation and hit the bottom. The Second Department found that the plaintiff could not recover under section 240 (1) because "plaintiff's work was wholly unrelated to an elevation-related hazard" (id. at 372, citing M a s u l l o , 253 AD2d 541, s u p r a , among other cases). However, when the work d i d expose a plaintiff to an 12 .. [* 14] elevation-related risk, the Second Department has found that a claim under section 240 (1) does lie. In V a l e n s i s i v Greens at H a l f H o l l o w , LLC (33 AD3d 693 [2d Dept 2006]), two 3 6 - by 42-inch openings were cut into a grating on the ground floor of a structure which covered an equalization tank. The decedent s supervisor, who did n o t know that the unsecured plywood sheets covered the openings, t o l d the decedent to use the plywood for another purpose. When the decedent moved the plywood, he fell approximately 22 feet through one of the openings. The Second Department concluded that the decedent was performing work at a building under construction in close proximity to two openings covered only with unsecured plywood boards, which had been cut into the grating in order to provide access to an equalization tank more than 20 feet below ground. . . . [Tlhe decedent s w o r k exposed him to an elevation-related risk within the scope of Labor Law § 2 4 0 (1) (id. at 6 9 5 ) . In D Egidio v Frontier I n s . Co. ( 2 7 0 AD2d 763 [3d Dept 2000]), the Third Department applied a different test, and decided that the plaintiff s accident was not the result of an elevation-related hazard contemplated by Ldbor Law § 2 4 0 (1). While standing on a raised computer f l o o r and working on wiring in the ceiling, the plaintiff stepped through an opening where f l o o r tiles were missing and f e l l 15 to 24 inches to the subfloor below. The Third Department concluded that 13 [* 15] as a matter of law, the accident at issue was not the result of an elevation-related hazard contemplated by that statute. . . . [A] work site is elevated within t h e meaning of the statute where the required work itself must be performed at an elevation, i.e., at the upper elevation differential, such that one of the devices enumerated in the statute will safely allow the worker to perform the task. Here, plaintiff s work site was the nonelevated permanent floor and there is no evidence in the record indicating that plaintiff s work in proximity to the floor openings warranted the use of the type of safety devices contemplated by Labor Law 5 240 (1) (id. at 765-766). The Third Department was not persuaded by the First Department s decision in C a r p i 0 v T i s h m a n C o n s t r . Corp. (240 A D 2 d 234 [lst Dept 1997]), saying that, . [i]n o u r view, ruling that an elevation differential exists on such facts w o u l d render owners and contractors liable for: virtually any fall by a construction worker into a hole of any measurable elevation, regardless of its location at the work site, a holding which we believe is plainly at odds with the decision in Rocovich v Consolidated E d i s o n C o . ( [ 7 8 NY2d 509 (1991)l) ( i d . at 7 6 6 ) . The Third Department has cited and followed this reasoning in several recent decisions ( s e e e . g . Coleman v C r u m b Rubber Mfrs., 92 A D 3 d 1 1 2 8 , 2012 NY Slip Op 01174 [ 3 d Dept 20121; Bonse v K a t r i n e A p t . ASSOC., 2 8 AD3d 990, 9 9 0 [3d Dept 20061; Wells v B r i t i s h Am. Dev. C o r p . , 2 AD3d 1 1 4 1 , 20031). 14 1142-1143 [3d Dept [* 16] .. The Fourth Department, in Ames v N o r s t a r Elm. Corp. (19 AD3d 1016, 1017 [4th Dept 2 0 0 5 ] ) , denied summary judgment in a case in which the plaintiff had fallen while entering the threshold of a building under construction. The Fourth Department f o u n d that "the first f l o o r of the house is not an elevated work site," using the definition of an "elevated" w o r k site found in D'Egidio. However, in A l l e n v C i t y of Buffalo (161 AD2d 1134 [4th Dept 1990]), the Fourth Department found otherwise. There, the decedent, who labored in a subterranean work area, had to traverse a field with approximately 50 manholes until he reached the particular manhole through which he was to descend to perform his work. A heavy snow had fallen, so that the manholes could not be seen from the surface. "Under these circumstances, the uncovered manhole through which decedent fell was an elevated worksite" (id. at 1134). .. The First Department h a s concluded that section 240 (1) applies when the task itself is related to an elevation-related peril. In C a x p i o v T i s h m a n C o n s t x . Corp. of N . Y . (240 A D 2 d 234, s u p r a ) , the plaintiff, while painting a ceiling and looking u p , walked backward and fell into an uncovered hole which had been created to allow for piping to extend to the f l o o r below. The First Department concluded that "the plaintiff's work herein subjected him to an elevation-related r i s k covered by the statute" and that he "was entitled under the statute to 15 [* 17] protection 'against thE known hazards of the occupation' [citation omitted]" (id. at 235). The Court further expounded that, [wlhile roof work may appear moie elevationrelated because a roof is usually the top portion of a structure a n d is unenclosed, in fact, the risks associated with working on a roof are no greater than those of working on a third floor with large holes in it. This plaintiff . . . fell into a hole with a threefoot elevation differential, and such a r i s k would fall within the statute even if it existed at ground level (id. at 236). More recently, the First Department quoted C a r p i o in saying that '"[the statute] does not apply merely because work is performed at elevated heights, but rather, applies only where the work itself involves risks related to differences in elevation'" ( J o n e s v 4 1 4 E q u i t i e s LLC, 57 AD3d 65, 77 [lst Dept 20081, qu0tin.g C a r p i- ,. 240 AD2d at 235). o The standard of whether the w o r k itself was related to an elevation-related hazard was also addressed by this court in Cunha v C i t y of N e w York (18 Misc 3d 1104[A], 2007 NY Slip Op 52404[U] [Sup Ct, NY County 2 0 0 7 1 ) . In Cunha, the plaintiff was walking backward, directing a Bobcat in moving material from one area of the site to another, when he fell into .a manhole that had been left open to accommodate Con Ed workers. The court concluded that the plaintiff's task involved transferring piping materials along the street from one area of the work site to another. Walking along a street does 16 [* 18] not put a worker at risk of falling from an elevated work site, such that safety devices of the type enumerated in Labor Law § 240 (1) are required. ... [Clovered or uncovered, the presence of this particular manhole was unrelated to the performance of plaintiff's work (id. at *4). As a result, the court concluded that the plaintiff's accident "was the result of an ordinary hazard of the workplace, and his injuries are not covered by Labor Law 5 2 4 0 (1)" (ibid. . ) The circumstances of the instant c a s e are clearly distinguishable from those in C u n h a . Here, the manhole was situated within an enclosed work area which had been constructed specifically to contain the asbestos materials which plaintiff and his co-workers removed through the manhole. The manhole was the aperture through which the lights, ladder, tools and air quality monitors were lowered and removed, without which the w o r k could not have been conducted. Covering the manhole was an essential part of the process of deconstructing the containment area, as evidenced by the fact that no deconstruction was to be performed unless the hole was covered. W i t h o u t the cover on the manhole, the risk of someone falling through the hole while deconstructing the area was apparent. Here, unlike in C u n h a , "covered or uncovered, the presence of this particular manhole was [very much related] to the performance of plaintiff's w o r k . " (see C u n h d , 18 Misc 3d 1104(A), 2007 NY Slip O p 52404[U], at *4.) 17 [* 19] Applying the standard that Labor Law 5 240 (1) is applicable when the task creates an elevation-related risk of the kind that the safety devices listed in section 240 (I) protect against [internal quotation marks and citation omitted] ( S a l a z a r v Novalex C o n t r . C o r p . , 18 N Y 3 d at 139), the court finds that plaintiff s w o r k was related to an elevation-related hazard, and thus, that his accident f a l l s within Labor Law § 2 4 0 (1). Reaslaitrant Workor/Sole Proximate Cause The court must now consider whether a n y of the defendants may be exempt from liability under the Labor Law on the basis that plaintiff was a recalcitrant w o r k e r or the sole proximate cause of his injuries. It is well settled that while Labor Law 5 240 (1) imposes nondelegable, absolute liability upon an owner and/or contractor for any breach thereof which was proximately responsible f o r the pl a intiff sinjury, liability does not attach where a plaintiff s actions are the sole proximate cause of his injuries. Specifically, if adequate s a f e t y devices are provided and the w o r k e r e i t h e r chooses f o r no good reason not to use them, or misuses them, then liability under section 240 (1) does not attach [internal citations omitted ] ( P a z v C i t y of N e w Yosk, 85 AD3d 519, 519 [lst Dept 20111). Under Labor Law 5 240 (1) it is conceptually impossible for a statutory violation (which serves as a proximate cause for a plaintiff s injury) to occupy the same ground as a plaintiff s sole proximate cause for the injury. Thus, if a statutory violation is a proximate cause of an injury, the plaintiff 18 [* 20] .. - cannot be solely to blame for it. Conversely, if the plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation (Blake v Neighborhood Hous. S e r v s . of N . Y . [2003] ) C i t y , 1 NY3d 280, 290 . [Wlhere a plaintiff s own actions are the sole proximate cause of the accident, there can be no liability under Labor Law 5 240 (see Cahill v T r i b o r o u g h B r i d g e & Tunnel A u t h . , 4 NY3d 35, 3 9 [2004]). However, to raise an issue of fact regarding plaintiff s recalcitrance, the owners were required to show that: (a) plaintiff had adequate safety devices at his disposal; (b) he both knew about them and that he was expected to use them; (c) for no good reason he chose not to use them; and (d) had he used them, he would not have been injured (see Auriemma [v Biltmore T h e a t r e , L L C ] , 8 2 AD3d [l], 10 [lst Dept 20111) ( T. z i c v Kasampas, - AD3d Dept 20121 ) , 2012 NY Slip Op 01632, * 2 [lst . Here, it is uncontested that after the containment area was built and the MTA and IMS supervisors gave permission to PAL workers to remove the manhole cover, the cover was placed outside the enclosed work area (O Loughlin Depo., a t 70-71). There were three PAL asbestos removers present that day (plaintiff, Charlie, and J u l i o [Plaintiff s Jan. Depo., at 89, 114]), and a t least two of them removed the cover (id. at 68 [ We did it ourselves ; alone it s impossible, it s very heavy. 19 It has to be done by [* 21] several people together"; but plaintiff could not remember if he was one of the men who removed the cover]). According to plaintiff, at the end of the shift, one or more of the supervisors on site were responsible to give permission to cover the manhole, after which the PAL workers would begin to deconstruct the containment area (Plaintiff's Nov. Depo., at 26- 28; Plaintiff's Jan. Depo., at 96-97). Thus, plaintiff had an adequate safety d e v i c e readily available t o him, and he knew where it was (see Cherry v T i m e Warner, Inc., 66 AD3d 233, 237238 [lst Dept 20091). Plaintiff knew that he was expected to deconstruct the containment area only after the manhole was covered because his supervisor, Rafael T o r r e s , specifically told him, both at the beginning of the p r o j e c t and on the day of the accident itself, that the manhole had to be covered before de.cbnstruction could b e g i n (Torres 8/8/11 Aff., ¶ 9; Plaintiff's Nov. Depo., at 80). Thus, he knew that he was expected to wait to begin deconstruction until after the cover was on the manhole. Plaintiff h a s alleged "no good reason'' for his failure to wait until the manhole was covered. On the contrary, he attests that he was n o t paying attention, and did not notice that the cover was missing (Plaintiff's Jan. Depo., at 128; Plaintiff's Nov. Depo., at 125-127). Indeed, he began deconstruction as soon as he came out of the hole (Plaintiff's 20 [* 22] Nov. Depo., at-41-42), even t h o u g h he was aware that none of the supervisors who had the authority to direct that the hole be covered had entered the containment area (id. at 42-43). In fact, since the supervisors only gave permission to open and close the hole, and it was t h e PAL w o r k e r s who muscled the heavy cover on and off (Plaintiff's Jan. Depo., at 68 ["We did it ourselves"]), it appears that plaintiff must have known that the manhole was not covered, because he and his fellow PAL w o r k e r s had not covered it. Yet, he went ahead and started deconstructing the work area anyway. Lastly, without a doubt, had plaintiff waited until the manhole was covered, he would not have fallen through it and been injured. Accordingly, the court finds that plaintiff was the .. sole proximate cause of his injuries. As such, no claim of violation of Labor Law 5 s 200, 240 (1) or 241 ( 6 ) , o r of commonlaw negligence lies against the defendants, IMS or the City. Ths City'a Cross Motion The City does not deny that its cross motion for summary judgment is untimely, and that it does not seek relief "nearly identical" to that sought by the timely summary judgment motions (see F i l a n n i n o v T r i b o r o u g h B r i d g e A D 3 d 280, 281 [lst Dept 20061). & Tunnel Auth., 3 4 However, in light of the court's 21 [* 23] ._ determination that plaintiff was the sole proximate cause ef his injuries, the court searches the record, and grants the City reverse summary judgment dismissing the complaint as against it. CONCLUSION Accordingly, it is ORDERED that the motion of defendant IMS Safety, Inc. (motion sequence number 011) f o r summary judgment dismissing the complaint as against it is granted; and it is further ORDERED that the motion of defendants t h e Metropolitan Transportation Authority and the New Y o r k City Transit Authority (motion sequence number 012) for summary judgment dismissing t h e complaint and all cross claims asserted as against them is granted; and it is further ORDERED that the cross motion of defendant the * C i t y of N e w York for summary judgment dismissing the complaint and all dross claims asserted as against it is granted; and it i s further ORDERED that the cross motion of plaintiff for summary judgment on his complaint is denied; and it is further 22 [* 24] ORDERED t h a t t h e complaint i s dismissed w i t h costs and d i s b u r s e m e n t s t o a l l d e f e n d a n t s a s t a x e d b y the C l e r k upon t h e submission of a n appropriate bill of costs; and i t i s f u r t h e r ORDERED t h a t t h e C l e r k i s d i r e c t e d to e n t e r judgment accordingly. Dated: March ?b ,2012 New York, NY NEW YORK COUNTy CLERK'S OFFICE 23

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.