Ting Zhou Li v Chun Kien Realty Corp.

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Ting Zhou Li v Chun Kien Realty Corp. 2012 NY Slip Op 30867(U) April 4, 2012 Sup Ct, NY County Docket Number: 113263/09 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] vs. CHUN KlEN REALlY SEWENUi NUMBER :001 r P E. [* 2] Supreme Court of the State of New York County of New Yak: Part 10 __ TlNG ZHOU LI, as Administrator of the Gods, Chattels and Cradb of YUN KUI JIANG alwa YUNKUI JlANG deceased, and for the benaflt of the dlstributees, Docf.lon/Orde[ Index No.: 113263109 Seq. No.: 001 Plainttffs, -against- CHUN KlEN REALTY CORP., US PACIFIC ASSOCIATES LLC, doing busina9 US PACIFIC HOTEL and US PACIFIC HOTEL individually, ' Present: JiHon.Judlth J. GIs& J.S.C. Defendants. Recitation, as required by CPLR 2219 [a], of the papers consjddered In the revlew of thb (these) motlon(a): Numbered Papern . ..................................... 9 Defa n/m [3212] w/WAS affirm, exhs. Plfs nlm [3212] & opp. wl AED afflrm, HQL affi, exhs. ....................... Defs opp & reply wl WAS afflrm. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - - I - 2 3 c - Hon. Judith J. Qbcha,J.S.C.: Upon the fomgoing papers, the decision and order of the muit is as follows: Thb la an action arising from a work place accident brought by Ting Zhou Ll, as Admlnistrator of the Goods, Chattnls and Credits of Yun Kui Jiang alwa Yunkui Jlang deceased edecedernt"),and for the benefii:of the distributee8 ("Ziang Estate"or " p l a i n q . Defendants are Chun Kim Realty Corp, ("Chunu) and US Padflc A&-, LLC, doing business as US Pactfk Hotel and US Pacifi Hotel lndivklually ("US Padflc? (collectively udehndants~, Plaintiffs claim that decedent's injuries wem proximately caused by defendants' negligence and violations of Labor Law 5s 200,240( l), 241(6). Plaintiff and Is seeking damages for, among other things, decedent's conscious pain and suffering. [* 3] Mendant has moved for summary judgment dismissing tm complaint. PlaintWs have f cros+moved for summary Judgmenton their Labor Law 55 240(1) and 241(6) claims and they also oppose the defendants motion. Slnce iaeue ha8 k n joined and these motions were timely brought after phlntifF filed hls note of k u e , they will be considered on the merits. CPLR Q 3212, Brill v. C b of New York, 2 N.Y.3d 848 (2004). Summary of the Facta and Arguments The following facts are establlshd or unrefutd: Decedentpassed away as a resuit of injurisri sustained on October 19,2007,at 106 Bowery Stmet, New York County. The InJuneswere sustsined when he fell from a ladder during the course of his amploymentwtthnon-party New York Store Deslgn, Inc (WesiQn~, a storefront sign company. Chun owned a building at 106 Bowery in Manhattan, the top three floors of which it leased to defendant US Paclflc. US P a c k operated a hotel. The hotel hired Design, in July 2007, to install an Illuminated sign on the hotel's facade, which Design warranted for onbyear. In October 2007, the sbn stopped working properly and the Design dispatched decedent and a co-warkor, Heng Qlao Li ("Hen$"), to repair it. US Pacific claims that none of Ita employees instructedthe two workers sent by the sign company on how to perform thelr work. US Pacfic produced Xue Ren LI ("Xuev) for an examlnatlon befort?trial rEBT"). Xue worked at the hotel In 2007 and stated that h h job descrlptlon was to "help them (USPacIflc) purchase stuff." Xue testtfiad that the sign had stopped lighting up, he but did not knowwhy itwas notworking.Xuefurther etatad that decadent and Heng were there to just change a light bulb, but upon further examination, admitted that he was not familiar wlth what they actually did that day. Atthough Xue saw decedent and Heng sefflng up the ladder, he left to make purchases and dId not return 1 [* 4] to until after the addent had owrred. Xue beileved that the ladder s ~ ~ r n e dbe In its original position at the time he returned to 106 Bowery. Chun offered the EBT of DavM Ho ( David?. David is the President of Chun and flrst saw the sign et the hotel sometime before the acddent. David claims Chun had nothing to do with the purchase, installation or maintenance work for the slgn. David daims that he had no knowledge that the sign &toppedillumlnatlng or that mrwone had called the sign company to petform maintenance. Steven Ho, an owner of AAA Trading Corporalion (ground floor tenant) called David to Inft>rrnhim of the accident The wife of decedent, Yue X h Chsn, and plalntZff Tlng Zhou Ll t&tlled at her deposition that the decedent had fallen h u m he was fixing the sign and fell. She, however, had no personal knowledge ofthe circumstances of the accident. Pialntlff, in oppasttion, offera the aildavit of Heng, the decedent s co-worker, who describes the wo& done that day, and the accident. Hang s sworn statement is based upon his personal oknratlons. He states as follows: 75. We want to 104-106 Bowerythat day to do repair work on a broken sign for the US Paciflc Hotel. v6. The sign was located adjacent to the second flmr of the buikling over 20 feat from the ground. In order to reach the sgn to do our repair work we needed to use an extension ladder. v. As we started to work, Mr. Jlang climbed the ladder flrst and I followed on the same ladder behind him. This was neceasaty to do our work. v8. We removed the cover of the sign and started our mpalr work. m. Mr. Jiang examlned the sign with me and we determined that the electbl components o the sign, induding the f [* 5] ballasts which regulate the amount of eltcbidty through the bulbs were blown out and needed replacing and repair. 710. In order to repair the sign all of the, wiring had to ba disconnected and the tbctrlcal boxes and ballasts had to be removed, replaced and then rewired. Thb was much mom signifhnt and complex than changing a llght bulb. 111. While Mr. Jlang was in the process of repairing the aign a3 described above, the ladder s h M and as a m t Mr. ut Jiang lost hla balance and fell. 712. He fell approximately 20 feet and hit his head on the fire hydrant that wa8 on the curb below. 713. We were not provided with any safety devices to do our work. We were not provided with any safety halmats, scaffoIds and/or safety harnesses. v14. The ladder was unsecured and tharb was no one available to hold the ladder." (Pltfs Opp, Exh. A, Heng Afnd.) Defendantsd a h they are antjtkl to summaryjudgment dismissing plaintifPs Labor Law Q 240 (1) and 241(6) claims b=auae the fall occurred durlng a routine rnalntenance call, which is not protected work under the labor (awe. Defendants further argue that plaintiffs' Labor Law 5 241 (6) claims must be dlsmlssed because plaintiff has not plead the spacffic Industrial Code provisions that have allegedly bssn violated. In addition, defendants clalm that plaintiff is not entitled to any damages for cansdous pain and suffering, because decedent was never conscious between the time he fell and he later died. Plaintiffs deny that the workdone was routhe maintenance. Instead they arguethat tt was repair work, whlch b protected work under the Labor Laws. PIalntlh clalm that decedentwas inthe act of replacing and repairing ballasts, in addition to dlsconnedingand - PagS 4 Of 13 - [* 6] raconnectfng wires when he fell. They also argue that the there am Industrial Code provisions, specifically plead, whlch are directly applicable to the facta of this case, especially 12 NYCRR 55 23.1.21 (Laddera and Ladderways). P l a l n t i also argue that defendants have not shown that decedent did not suffer pain and suffering, sufficient to defeat that clalm. Plaintiff has not opposed defendants motion seeking summary judgment on the Labor Law 5 200 (common law negligence) claim. It I, s therefom, granted. a ,Flair nv b v e m Corn,, 60 AD3d 413,413 (1st Dept 2009). Diicusslon In deckling whether a movant is entitled to the grant o summary judgment in its f favor, the court considem whether it has tendered sufficient evldence to eliminate any material issues of Pact from thls case. " EG. 1 WnW Yorlc Unkr. Ctr, 1 8 4 N.Y.2d 851,853 (1985); guckermar, v. Citv of New York , 4 9 N.Y. 26 557,582 (1QSO). If met, the burden shtfts to the opponent, who must then demonstrate the exjstenca of a triable Issue of fact in order to defeat the rnotfon. &re7 v. Pmaect H a , 68 N.Y.2d - of Y , supra. When an 320,324 (1988); 1Issue of law is rabed in connection wlth a motion for summary judgment, the court may and should resolve it without the need for a testimonial hearing. See:m d e8 v. weisg, 303 A.D.2d 459 (2nd Dept. 2003). Since each party ha3 moved for summaryJudgmentIn thelr favor, they each bear ths burden of establishing relief on thelr mpectlve motions. Labor Law 9 240 {I) Labor Law 3 24O( 1) imposes a nondelegable duty upon the owner and oontrador t supply necessary security devices for workers at an elevation, to protect t h m from o [* 7] falling. Bland v. Manocherien, 66 N.Y.2d 452, 458459 (lQ85). An owner or conhctor who breachesthat duty may be held liable In damages regardless of whether i has actually t exerased supervision o control over the work. r pears v. CurtislPelmsr H v m c . CQ.181 NY2d 4W, 500 (1993). Therefore, a violation of this duty result8 in absolute Iiablllty where the violation was the proximate cause of the awldent. M e v. Rock-McGraw, k,307 A.D.2d 156 (lat Dapt. 2003). The a x of the parties dispute I whether at the tlme of the accident decedent w88 s prfarming routine maintenance, as defendants contend, or repair work, as plaintiffs contend. Routlne rnalntenance Is not protected work under the labor law, while repair work is protected. Notwithstandingeach parties charactefizationof the workdone, the only admissible evidenceofwhat actualtyoccurred k mntalned in the affidavtt of decedent s ca-worker,Mr. Hsng. H was the only person who had personal knowledge of the actual work done. e None o defendants witnessaa, including Xua, knew the actual scope of the work. In f deacriblrtg the nature of the work done, Heng sfated: Mr. Jhng examined the sign wlth ma and wa determined that the electrical components of the sign, including the ballasts whlch regulate tha amount of cl&uty through the bulbs were blown out and needed replacing and mpalr. In order to repair the sign all o the wirlng had to be f disconnected and the electrical boxea and ballasts had to be removed, implacad and then rewired. This was much mora signlflcant and complexthan changing a light bulb. (Hew affd. ms, IO). In &&ne v. 1105 Park A v e m (285 AD2d 357 [ l ~ dept. ISSSD the court found that there was liablltty under the labor laws, as a matter of law, when Plaintiff fell and was injuredwhen a ladder on which he -Page 6 of13 - [* 8] was standing while rspaidng a fluorwmant light flxture collapsed. The rspair work mnalsted of replaclng the ballast and sockets, dlscontentlng the wires, stripping and reconnecting them. Such repalm, whlch sntalled more that merely changing a llghtbulb constituted 'repairs' within the meaning of Labor Law 3 240(1)..." , 36 A.D.3d 51 1 (1st Dept. L i k e w k in RiQa Y. WVF-Pamrnount $45 Pmetty. 2007) the court found that changing the wiring for lightingwas a covered activity under the labor law. These m e am factually different from w ss a n v. 540 Investment Land CmRnav LLC (88 AD3d 805 [ld 200431) w h o the same court found that a limited dept task of the rsgular replacement o ballasts in fluoreacent fuctures was routine maintenance. f In dlstingulshlng Plccfone,the court in Monaahan held that the plalnW therein "routlnety replaced the ballasts to the light fixtures, drawlng on the bullding's sugpty of ballasts kept for those purposes." At bar the undisputed faacts establish that the work done on the lighted slgn w s not routine maintenance. It was a onetime -11, made during the warranty period, made after the sign was installd. The work done wa6 in the nature of a repalr and replacement as dascribed in m.Unllke Monaahan. the ballasts were not being r e p l a d in the regular coum of malntafnlngthe sign, they were r e p l a d because there was a reported problem with their operation at a t h e when the sign was atill warranted to be operating correctly. The court, thsrsfore holds, that on the undfsputedfacts, the work done was in the nature of repair work that is covered under the labor laws. Having determlned the work to be covered, the court otherwise determinesthat the plaintlff hers emtablished a pdma hcle a 8 of liabilrty under Labor Law 5 240(1). The 3 -p.gS 7 d 13 - [* 9] improper placement of a ladder and the failure to secure It are violations of Labor Law Q 240 (1). W s v. W,H,P. 19 o 280 A.D.2d 419 (1st Dept. 2001). Here, decedent was "injured in an elevatiowrelated acddent that v a s not prevented by any safety device, and he waa engaged in repalr workwithln the amblt of that statute's protection. 'It b well settled that the Failurer to secure a ladder to ensure that It ramains stable and erect while the [decedent] was working on it constitutes a vfolatlon o Labor Law Q 240(1) as a matter of f law.' C g macho v. 101 El- Tenan@ Corn., 289 A.D.2d 102 (1st Dept. 2001) citing air v, S&rnoa 198 A.D.2d 170, 17l(lst Dopt. 19S3). Although defendants argue the ladder was not defective, this does not present a a triable iasw of fact that defeats plaintiffs motion. It is sufficient for purposea of l-hbiltty under &on 240 (1) that adequate safety d e v h s to prevent the ladder l h n slipping or to protect plaintiff from falling were absent. -Go.. Di H o w Inc,, 13 AD.3d 83 (1st Dept. 2004). Plaintiff has astablbhad that decedent was provided with a ladder that did not allow him to safely perform his job, and that even Ifthe ladder w not defecthre,he was not provided with adequate m sw devices a to prevent his fall. Nor is i a defense that safety devlces may have besn available t somewhara on the job sito, orthat plaintiff may have ignored thesafety instructions he may have been given prior to the date of his accident (MonSson v Crtvof New Yofi ,306 A.D.2d 86 [qat Dapt 2003]), nor c=an defendants point to evidence of the mmrd that decedent explicitly refused to uae adequate safety d e v b to prevent his fall (s<o$avi& v, Tlshrnw Con$t. Cmof New YO&,50 ; , A.D.3d 287 [lst Dept. 20081). Accordingty, plaintiff's cross-motion for summary Judgmenton his Labor Law 240 (1) claims on thfsIssue of liability is granted and defendants' motion for summaryjudgment - Pig, 8 of 13 - [* 10] on that claim 1 danld. s Labor Law 5 241 (6) Labor Law 5 241(6) of the Labor Law imposes "a nondelegable duty upon an owner o general contractor to respond in damages for injuries sustained due to another party's r negligence in failing to conduct their wnstructlon, demolithn or excavation operations" in a manner that provkles for the reasonable and adequate protection of persons working at the site. piauto v, LA. Wemer Contradim Ca.. InG., 91 N.Y.2d 343, 350 (1998). Supervision of the work, control of t h work site or actual or constructive notice of a ~~ violation of the IndustrialCode is not necessary to lmpasevicarious llabiltty against owners and general contractors, so long as someone In the construction chaln was negligent -to v. L.A. Wenaer Col-rtmdna supra: DeStefano v. A W m New York, Inc., 269 A.D.2d 229 (1st Dept. 2000). To support a cause of action, the plaintiff must plead a concrete specification of the Industrial M e , that Itwas violated, and that the violation was a proximate cause of his injuries. v. L A We-, supm. The question of whether the plalnttff has alleged a concrete spedflcation of the Induetrial W e , and whether the condition alleged 1 within the scope of the Industrial s Code regulation, usually presenb a legal issue for the court to decide. Mmslna v. Citv & New Yo&, 300 A.D.2d 121 (1st Dapt 2002). DefeendanEs argue that pla[ntifffailed to cite speciiic Industrial Code aub-provisions under section 23-1.21 In his Bill of Particulars,and that on that basis alone his complaint should be dlsrnissed. The court disagrees. Section 23-1 2 1 b a concrete spectficationthat supports a cause of adon under Labor Law 5 241 (6) and plaintiffs bill of particulars clearly sets forth his claims. See Kun Y m Ke v, -ion. Inc,, 40 A.D.3d 508 (2nd Dept. 2008). Therefom, plaintiff has - Page 9of 13 - [* 11] adequately satbfisd the threshold pleading requirements o B L a b r Law 5 241 (0)cause f of action. v. Frarlpgs Schmrvler. 303 A.D.2d I84 (1st Dept. 2003). In his cro88 matian for summary judgment, plalntm addresses the individual sub- section he claims supp~rts lndusblal Code vlolatbn claim. Plaintltl relies on 12 his N.Y.C.R.R. §23-1.4(b) to establishthat the 'rapair" work performed by decedent ie cavered under Labor Law 5 241{6). Section 23-1.21 (b) (4) (hr) provides that: "When work ia being performedfrom ladder rungs between six and 10 feet above the kidder footlng, a leaning ladder shall be held in plaw by a pareron stationed at the foot of such ladder unless the upper end of such ladder is secured against side slip by Is p l t l o n or by mechanical meanrr. When work I t s being performed from rungs higher than 10 feet above the ladder footlng, mechanlcal means for securing the upper end of such ladder against slde slip are required and the lower end of such ladder shall be held In place by EI pemn unless such lower end is tied to a secure anchorage or safety feet are used. " 12 N.Y.C.R.R5 23-1.21. (Ladders and Ladderwap) The court flnds that thh regulation is applicable to the facts of thla case, and therefore aervm as the predicate bask for plaintiff's Labor Law 5 241(6) claim. In the Court of Appeals stated that: "once It has been alleged that a concrete rrpecifkation ofthe Code has been violated, it is far the jury to determlne whether the negligence, of some party to, or participant In, the construction project mused plalnWs Injury. If proven, the general contractor (or owner, as the case may be) 1 8 vicariously liable without regard to his or her fault . . . An owner or general contractor may, of courae, mlae any valid dafencrs to the lmposltion of vlcarlous Ilablltty under ssctlon 241 (6), including Wntributo~y and cornparathe negllgen& (Fuuuto, 91 N.Y.2d a 350 [internal citations omittedl). t Here, Plalntm has Mentifled a s w c lndustrlal Code provlslon (12 N.Y.C.R.RQ 23-1.21) and asserts facts that eetabllsh a violation of this section of the Industrial Code. The [* 12] defendant8 contentlon that decedent was the c w of hls acddent, because he and Heng a misused the ladder by reckksly golng up the same ladder together, in8taad of one of them using the ladder to perform the work and one of them holding the ladder, r a - man issue of comparative fault, that may be addressed at trial. (See: CPLR § 1411) Therefore, defendant s motion for summary judgment and pla~nMs crossmotion for summary judgment are denied as applied to Labor Law Q 241(6). Labor Law Q 200 Labor Law Q 200 codifles the m m o n law duty impogd upon an owner or general contractor to maintain a safe construction stto. sup. ctin 0. Aa plalnbiff has failed to oppose or otherwise move on this section of the Labor Law, defendants motion is, therefore, granted, and the aectlon 200 (common law negligpnce) claims against the defendants is deemed abandoned and is hereby severed and dismissed. Earv v. Flair RevRme COB , 6 0 AD3d 413,413 (1st Dept 2009). Consclous Patn and Suffering It is bbck letter law that if there is no p m f of consciousness following an accident, there can be no recovery lbr conscious paln and suffering. Cummins v, C o u m f Onondam, 84 NY2d 322 (lgs4). Ferauson v. Citv of New Yo&, 73 AD3d 840 (Y dept. 2010). Defendants rely on the verlfled Bill of Partleulam In whlch phlntMs concede that decedent loat consciousness following the accident. A verifiid 8ill of Particulars has the same evidentiaryweight as a sworn affidavlt. CPLR 55 105,3020. See also: McKinneya Practice Commentary2 53020.The masartionin the Bill of Particulars satisfies defendants burden of prima facie proof on this point In opposttlon, plalntth have failed to come fonmrd wtth any evMence whatswver to establish that decedent was consclous for any [* 13] period of time following the accident that would serve as the pmdicate for pain and suffering. (Publk Adm'r. Kings Courrlyv. U S. Fleet Leasirl~~pf York. InL, 159 A.D.2d New 331,333 [I Dept 19901, Cummina v. County of Qnondap, 84 N.Y.2d 322 [IgW], a f a , 198 AD.2d 875 [4th Dept. 19933). Accordingly, the portion of the defendant's motionfor summaryjudgment dismissing the damages sought for pain and suffering is granted. Conslwlon In amdance with the ibregoing, it is hereby ORDERED that plaintiffs crowtnotion for summary Judgmenton his Labor Law 5 240 (1) i granted and the defendants rnotlon on that claim Is denled. The issue of s damages has to be t i d and it I further re; s ORDERED that the motion and cross-motion for summary judgment on plaintlffs Labor Law §241(6) claim are both denled 88 there are factual disputes that must be decided at trial; and it is further ORDERED that defendants motion for summary judgment dismissing plaintiff's Labor Law 8 200 (common law negligence) claims is granted and severed; and it is further ORDERED defendants motion for summaryjudgment on plalntlff's mnaclous pain and sufFerlng claim la granted; and It Is further ORDERED that thb c m is ready to be bled. Plaintm shall serve a copy of this a decisiordorder on the office of Trial Suppart 80 that the case can be scheduled; and it is further ORDEREDthat any rdlefrequeeted that has not been addrewed has nonetheless been considered and la hereby expressly denled; and it is further [* 14] ORDERED that this constitutes the ddaion and order o the court. f Dated: New York, New York Aprll4,2012 So Ordered: Hon. Judith r A e , JSC

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