Alpirez v WBB Constr., Inc.

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Alpirez v WBB Constr., Inc. 2012 NY Slip Op 31595(U) June 11, 2012 Supreme Court, New York County Docket Number: 106699/08 Judge: Paul Wooten 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. ANNED ON 611812012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON.,PAUL WOOTEN ' r - NEW YORK CQUNTY PART 7 Justice ALEJANDRO ALPIREZ, IO6699108 INDEX NO. Plaintiff, MQTION SEQ.NO. 005 -agal nst- WBB CONSTRUCTION, INC., 1IO7 BROAbWAY LLC,I BROADWAY MEkZ I LLC, I 107 107 BROADWAY MEZZ II LLC, TESSLER DEVELOPMENTS LLC, 200 FIFTH LLC and 200 FIFTH AVENUE ASSOCIATES L.L.C., Defendants. I WBB CONSTRUCTIQN, INC,, 1107 BkoADWAY LLC, 11,07 BROADWAY MEZZ I LLC, 1107 ELOPMENTS, LLC, Third-party Plaindffs, - q a i n st- JJN I8 2072 WASTE INTERIORS, LLC, YU,]t( CmlJl'clTY GLERj.(JS p-j-,bE e follawing papers, numbered I tp 4 were read q r ~ 8 fbh wlptloe by plqlntlff for partial sclrnpary 'RAPERS NUMBLRED Replying Affldavlts (Reply Memq) 1 Cross-MotiQn: u Yes , A , ,4, , No , fdy pattial summary Plaintiff moves, pursuant to CP I I I Labor Law §§ 2,00, zd liability on his causes of action for viol as against defendants WBB Construction, Inc. (WQB), 1107; Broadway ,LLC (1107), 1107 Braadway Mezz I LLC (Mezz I), 1107 Broadway Me& II LLC (collectively, 1107 Brqadway) and Tessler Developments LLC (Tessler) or, in the alternative, pursuant to CPLR 3126, striking the I r- * I . t Page 1 of 13 [* 2] answer of third-party defendant All Waste Interiors, LLC (All Waste) for spoliation of evidence. BACKGROUND According to the complaint, plaintiff, an employee of All Waste, was injured at a job site on February 11, 2008 while performing demolition work inside the premises known as 1107 Broadway, New York, New York. On the date of the accident, the premises were owned by 1107 Broadway and Tessler, and the general contractor/construction manager for the project was WBB (see Notice of Motion, exhibit. A). At the time of the occurrence, plaintiff and a coworker, Gelber Perez (Perez), were performing demolitisn work on the 16'hfloor of the building, cutting a pipe near that floor's ceiling. Plaintiff and Perez were directed to perform this work by Michael Dally (Dally), All Waste's foreman, who instructed them to use a two-level scaffold with 9 height of approximately 12 feet, alopg with an electri andlchain saw in order to cut the pipe. Plaintiff and Perez placed a rope around the pipe in Qrderto secure it, because, according to Perez, they had no other alternative (Pereq EBT, at 35, 39, 40, 4846) As plaintiff was standing on the second level of the scaffold, cutting the pipe, the support that was holding the pipe to the ceiling gave way and the pipe swung down, striking the $caWold. This, in turn, caused the scaffold,to shake andr'move and the pipe struck p(aihtifibn the right side of his head, causing plaintiff to fall off the scaffold (id. at 44-45, 56-57, 63-65, 74). The scaffold that plaintiff and Perez were using was corhposed of metal Bipes and was not attached to the wall, g r w n d or ceiling (id. at 57, 74-76), nor did it have handrails or guArdrails (plaintiff's EBT, at 33). According to ptaintiff and Perez, the scaffold,was not fully planked and one of the two planks on the scaffgld, on the level where plaintiff was starlding, fell when the pipe struck the scaffold which caused the scaffold to shake and move (Perez EBT, at 73-77; plaintiff EBT, at 33). In support of his motion plaintiff attached the gffidavitl of Dally, who averred that: "No entity or individual, includirrg All Wdste, WEB Page2of 13 [* 3] Construction, InC, the owners of 1107 Broadway, and myself, ever provided Alejandro Alpirez or All Waste employees with any safety devices, aside from hard hats and goggl&, prior to or at the time of Mr. Alpirez s fall from the scaffold. Safety harnesses and lanyards were not provided to Alejandro Alpirez or to any other All Waste employees at this job site on 01 orior to February 11, 2010, nor were Alejandro Alpirez or any other All Waste employees required or instructed to wear safety harnesses at this job site. Moreover, even if safety harnesses and lanyards had been provided, there was no safe anchorage point available to tie off a lanyard on the 1gth floor (see NQtice of Motion, exhibit B). lgor Mazler (Mazlw), WBB s corporate representative, testified at his deposition that he was unaware of the training or instructions that All Waste employees received, that W B B w d the premises owners did not have a designated safety ehglneer for the project apd that no I safety meetings were ever keld at the project (Mazler HBT, at 17-21). Further, Matler said that he did not recall seeing arly safety railings on the scaffgld when he inspected the scaffold I immediately after plaintiff s acqident (id. at 41). According to Mazler, it was All Wa9fe s responsibility to provide its wqrkqrs with harnesses, and WBB did not provide any harnesges I 1 (id. at 48). I James Bonagurq (Bonagura), All Wastd s corpotat&representative, bas also depbSed in this matter and stated that he wgs in chargg of everyttiiqg fpr All waste and that he never had I I any safety training (Bondgura EbT, at 31-32). Bonggum said that bally was the project foreman and that he and Dally had weekly safety meetings, wherein he discussed Workers personal protective equipment and basic safqty (id.). BQnagura averred that thew were only eight safety harnesses for at least 20 All Waste ernployeds at the job site, and that the I harnesses were kept in a I ~ c bsx (id. at 28-29), Boqagwra tpstified that on occasions prior tQ k the date of the accident, he saw plaintiff using a hatness whep hE) was on a scaffold and that workers were instructed on using harnesses qt safety meetihgs (id. at 36-37), Page3of 13 [* 4] Bonagura was not sure whether Dally gave the All Waste employees safety instructions (id. at 39). According to Bonagura, prior to the date of plaintiff's accident, there were no safety manuals, safety programs, safety training or safety classes provided to All Waste workers (id. at 58). A few days prior to plaintiffs accident, Bonagura recalled that there had been a safety meeting about torch work, but Bonagura said that he never spoke to plaintiff because plaintiff cannot speak English (id. at 34). Bonagura averred that all safety meetings were held in both English and Spanish with an All Waste bilingual truck driver providing the Spanish translation (id. at 26). However, Bonagura did say that Mazler hgd complained to him three times regarding the failure of All Waste employees to follow safety instructions. Specifically, Mazler complained once regarding a missing fire extinguisher and, twice about All Waste employees . pot wearing hard hats (id. at 24). E)onggpra also said that the height of the 16'h floor of tpe " premises was higher than the o floors in the building and that plaintiff was never given any instructions on how to anchor the pipes on the 16'hfloor. Acdording to Banagura, plaintiff was given general instructions on anchoring pipes, regardless of ceiling height differentials (id. at 69). Immediately following the dGcii;Yent, Manoucherhk Shahba2i (Shahbati) df the I Department of Buildings performed an ihv8Stigation of the site and testified that the $c$ffdld I presented a dangerous situatiop because it Iqcked handrails and guardrails: was not fully planked and was unsecured (Shahbazi ERT, at 16, 19-22, 33-34, 40-42). Based on his I investigation, Shahbazi issued a Notice sf Violatian and Hearing Report, which state thqt WBB violated the Administrative Code in failing to provide a secured, fully planked scaffold with handrails or guardrails (Notice of Mbtion, exhibit 0). Thigtebort was affirmed at an administrative hearing on July 3, 2008' (Notice of Motidh, exhibit P), WBB's project manager, Joseph S. Fernandez (Fernandez), testifikd at his deposition' that he investigated the scene following the accident and he did not notice any anchorage Page 4 of 13 3 [* 5] whereat plaintiff could have tied off a lanyard had he been provided with one, and that he was unaware of any safety meetings having been held at the site or whether the scaffold had guardrails or handrails (Notice of Motion, exhibit Q). Plaintiff also attaches in support of his motion an affidavit of Daniel M. Paine, C.S.E. who opined that, with a reasonable degree of certainty as a Construction Safety and Fall Protection Expert, it is my position that Mr. Alpirez was not afforded proper protection to safeguard him from the elevation risks to which he was exposed on February 11, 2008, and that the absence of such protection was a substantial factor in the bringing about, and the proximate cause, of his injuries (Notice of MotiQn,exhibit R). Plaintiff contends that all of the preceding supports his causes of actign based on violgtions sf Labor Law §$ 200, 240(1) and 241(6). Further, plaintiff maintains that his cause of action allegihg a violation of Labor Law § 241 (6) is 1 5, 23-1.7, 23-1.15, 23-1.16, 23-1.17, supported by his allegations of violations of sections 23-5.1, 23-5.3, 23-5.6 and 23-5.18 of the Industrial Code (see 12 NYCRR Par 23). Lastly, in the alternative plaintiff requests thdt All Waste s answer be stricken because All Waste has failed to produce the minutes Qf the safety meetings which it was ordered to produce as part of the diswvery @odes$ II Waste s r6Sponse to such demands was that th& minutes could not be IocqtCd. I In oppositiori to.the instant rnbtidh, defendants kl$m that plaintiff Was the sold proximate cause of his injuries because he was a recalkitrant worker who failed to use the protective. devices provided for his safety. In support of this argument, defendants point to Bonagura s testimony, which states that there were eight sgfety harnesses at the job site on the day Qf the accident, although there were over 20 worker$ there aS well, and that plaintiff Was not usihg a L l I harness at the time of the Qccurrence(seg Bpnggura EBT, at 93-94). Moreover, Befendbntb assert that there is no evidence that they hhd qny notice or knowledge of the fact that plaintiff failed to follow express instructions to use a safety harhgss. Page5of 13 [* 6] All Waste has also provided opposition to the instant motion, arguing that the evidence indicates that Mazler only had to complain about safety on the job site three times before the date of plaintiff s accident, concerning the use of hard hats and a missing fire extinguisher, and that there was no instance in which he complained about a worker failing to use a harness when necessary. It is All Waste s contention that, since these were the only safety concerns voiced by Mazler, this constitutes proof that the job site was safe and that the workers were provided with all necessary safety equipment. All Waste also avers that the workers were instructed to use harnesses at the safety meetings, that the workers themselves put the scaffolds together when scaffolds had to be used, and that guardrails were available for all scaffolds (Bonagura EBT, at 52-59). In addition, All Waste states that, according to Bonagura, plaintiff could have attached a harness to the I-beam that was next to the pipe (id. at 69). The Court notes that All Waste has not argued against plaidtiffs request that its ankwer be stricken for spoliation of evidence In reply, plaintiff claims that since he was struck by falling object as well as falling off the scarffdd, the use of a harness w ~ u l d have stopped his being struck by the falling pipe. not I Further, plaintiff contends that the scaffgld itself wag not Rroperly secured, as1 evidenced by his expert s opinion, thereby negating defenddnts argurnmts regarding the harness. Mdreover, plaintiff maintains that the administrative determination that the scaffold was deficient is binding on defendants. In his reply plaintiff also claims that contrary to Bonqgura s testimony that he could have tied a harness to the I-beam, plaintiff says that this conjeckure is contradicted by his expert s opinion, who stated that the I-beam was not certified as q proper anchorqge point and tMP scaffold itself was not secure (see Notice of Motiorl, exhibit R). Plgintiff also challenges the oppositions assertions that safety meetings were held in which he was instrllct&l about using harnesses. This assertion is contradicted by Dally s affidavit cited above and defendants have Page6of 13 [* 7] failed to produce any meeting minutes to substantiate their allegations. Plaintiff also says that defendants are liable for his injuries, pursuant to Labor Law 5 200, because they were aware of a dangerous condition at the job site (the unsecured pipe and scaffold), which they failed to correct Lastly, plaintiff argues that All Waste's answer should be stricken because it spoliated evidence, the minutes of the safety meetings, which it was required to produce as part of the discovery process. DISCUSSION Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as 3 matt& of law (see Alvaret v Prospect Hosp., 68 NY2d 320, d 361, 364 [1974]). The party moving for summary j a matter of law, tende material issues of fact (see Wnegrad v York Uhiv. &. CPLR 3212 [b]). A failure ta make such Ctr., 64 NY2d 851 863 [1%5]; denial of the rnption, reg the sufficiency of the op Once a prima facie shohi party to produce evidenti material issues of fact that require a trial 72, 81 [2003]; see also Zuckerrpa [bl). When deciding 21 summqry jud any triable issues exigt, no Century-Fox Film Corp., 3 most favorable to the nonmoving reasonable inferences that can b Pqge7of 13 , ,- [* 8] NY2d 625, 626 [1985]). If there is any doubt as to the existence of a triable issue, summary I judgment should be denied (see Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978]). 1 That branch of plaintiff s motion seeking partial summary judgment on the issue of liability on his causes of action alleging a violation of Labor Law 53 240(1) and 241(6) is granted. Labor Law 6 240(1) Section 240(1) of the New York Labor Law states, in pertinent part: I All contractors and owners and their agents, except owners of one and two-family dwellings who mntr;lct for but do not direct or cbntrol the work, it! the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furhished br erestgd for the performapce of such ladders, slings, hqng ropes, and other ddv placed and operated a6 to givd propel protection tb a person so employed. As stated by the Court of Appeals ih Rocovich v Consolidated Edison Company (78 1 NY2d 509, 513 [1991]), t 1 It is settled that section 240(1) is as liberally as may be for the a purpose for which it was thus fra interpreted the sectiop as irilposr for a breach which has proiirngt In furtherance of this s a h e legis protecting workers against the k occupation, we have dete rmine owner is section 240(1) is nondelegs4k and that q r ~ liable for a violation of the section eyeb though the job was performed by an indeperident contractw ovgr which it exercised rlP swpervi~ quotation marks and citations Labor Law 5 240(1) was de ilgainst elevatioh-relate including instances wherein a Work& falls f f o h a hdighf qr is struck by a falling objhct (Narducci v Manhasset Bay Associates, 96 NY2d 259 l [ ~ O O l ] ) . le o t I I r to prevail upon a claim pursuant [* 9] to Labor Law § 240(1), a plaintiff must establish that the statute was violated, and that this violation was a proximate cause of his injuries (Zgoba v ¬as)/ Shopping Cop., 246 AD2d 539, 541 [2d Dept 19981). A worker s negligence is irrelevant to the absolute liability of the owner and general contractor (see Cosban v New York City Transit Authority, 227 AD2d 160 [I st Dept 19961). Proximate cause is established as a matter of law by the undisputed fact that plaintiff fell off a scaffold without gudrdrails that would have prevented his fall (Crespo v Triad, Inc., 294 AD2d 145, 146 [ I s t Dept 20021). Defendants only opposition to plaintiff s motion rests on their wgument that plaintiff was a recalcitrant worker and that his accident was solely caused by his failure tq use the safety . . ,. equipment that was provided at the job site. MQwever,in order for defendants to escape liqbility II under this theory, they must eviderrce that aafetyidevicds were readily avgilqble at the work site, even though not in plaintiff s immediate tiff knew that he \)vas expe I o (see Cabill v Triborough Bridge use such devices but, for no good reas B, Tunnel Auth , 4 NY3d 35 [2004]). In such instances, phiitiff s own negligence would be the prgximqte cause of his injury (see Galla addition, a safety irstruction given to th worker disobeyed, is a requirement o f t ~, 293 AD@ 271 [ I s t Dept Ihdus., 5 AD3d 119 [I Dept 20041; Ja st 20021). There is no evidence that plainti harness immediately before he started work, which he wilful1 I ny that has been3 provided regarding thg last safety instruct fore his accident qverrsdlthra ! I 4 safety meeting occurred several days pr the n& at whidl the warkers were I giveh a briefing on tdtth safety. I > I I In the instant matter, we find no question that the WAIcitrant Worker defense is hdt I I * n I I I [* 10] applicable since [defendants] failed to demonstrate the plaintiff had disobeyed an immediate instruction to use a harness or other actually available safety device (Vacca v Landau Indus., 5 AD3d at 120 [internal citation omitted]; see Jamil v Concourse ¬nters., 293 AD2d at 271; Sanango v 200 E. 76th St. Hous. Corp., 290 AD2d 228 [Ist Dept 20021). In the case at bar, defendants only make vague conclusory statements that plaintiff had been instructed to use a harness at some time prior to his accident, which is too equivocal to support the recalcitrant worker defense (Vacca v Landau Indus., 5 AD3d at 119). Plaintiff also contends that his accident was caused by a falling object, the pipe, I because there was no place for him to secure it except by means of the rope, which failed. This testimony of plaintiff and his co-worker is uncontradicted, and the Court finds that these testimonies are sufficient to support plaintiffs Labor La& 4% (1) cayye of action (see I Kosavick v Tishman Constr. Corp. Of N. Y., 50 AD3d 19951). Based on the foregoing, the Court finds that plaintiff is entitled to sumhary judgment an the issue of liability Q his Labor Law 5 240(1) claim bilsed on both a fall fr0rn.a height and a falling object (see n lRzyms,k/ v Metropolitan Tower Life Ins. Co.,,94 AD3d 629 [Ist Dept 20121). Labor Law 5 241 (6) Labor Law 5 241 (6) states: Construction, excavatioh and demdlition work. contrwtors and owners hnd their agents, excep of one and two-family dwellings who Gdntract for- but do not direct or control the hork, demolishing buildings or doing a therewith, shall comply with the *** All areas in which coestruction, e work is being perf-f6~rrred stiall bel equipped, guarded, arranged, ope provide reasonable and adequate the persons employed therein o such places. The comnlissiqne into effect fhg provisions of this owners and contractors and their agent$, fbPtswchwark, I [* 11] I I except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith." 1 , I To prevail on a cause of action based on Labor Law 5 241(6), a plaintiff must establish a violation of an applicable Industrial Code provision which sets forth a specific standard of conduct (see Rizzuto v L.A. Wenger Cmtr. Co., 91 NY2d 343 [I 9981). Howevqr, whilg proQf of 1 a violation of a specific Industrial Code regulation is required to sustain an action under Labor Law 5 241 (6), such proof does not establish liability, and is merelytevidence of negligence (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]). In the case at bar, Industrial Code section 23-1.5 cited by plaiqtiff has been found insufficient to support a cause of action based on a vi0 of Labor Law § 241(6) (see Sihly v New York City Tr. A u h , 282 AD2d 337 [lst,bept 2001 &ever, other lndlustrial Coda I 1 1 > A of action: 23-1. I (See aced do v ' 5 provisiQns cited by plaintiff are sufficient to sust t J.D. Posi//ic~, 68 AD3d 508 [ l s t Dept 20091; 23-1.7 (seg Whalen v City of New York, 270 lnc., , LLc;r35 Misc 3d AD2d 340 [2d Dept 20001; 23-1.16 (see Femandez v 1204[A], 2012 NY Slip Op 50553[W][Sup Ct, NY COY 0321; 23-1.17 (see Olshewitz v City of I Naw Yo&, 59 AD3d 309 [ l s t Dept 20091; 2q-5.3 (sed a v CpwbuSfian 91 1 [4th Dept 19991; and 23-5 1 (see Vergara v SS 133-W 21, 'LLC, 21 AD3d 279 [lst Deljt I 20051); 23-5.18 (see Parrhles v Wonder Works (?,on1st I ., 55 A43d" 1 Since neither defbndants nor All Waste oppose the'applichbility of th plaintiff's Labor Law $ 241 (6) claim, but rest their oppositibns on the recalcit I defense, which has been found insufficient, the Court grants plaintiffs motion with respect td 1 I 11 , this cause of action, except as to lndustiial Fade Sectid I I Labor Law 5 200 1 , The court denies th8 remainder bf plqintiff's hotion. Labop Law Fj 200 is the codificatlibn I 1 1 Qf the common-law duty tb provide workers with a safe work environment, dnd its provisions Page 11 of 13 . . [* 12] apply to owners, general contr?ctorS, and their agents (see Ross v Curtis-Palmer Hydro-Elec, Co., 81 NY2d at 494). There are two distinct standards applicdble to Labor Law 3 200 cases, depending upon whether the accident is the result of a dangerous condition or whether the accident is the result of the means and methods used by the.cQntractorto perform its work (see e.g. McLeod v Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Sts., 41 AD3d 796 [2d Dept 20071). When the acaidsnt arises from a dangerous conditiw, t~ sustain a cause of action for violation of Labor Law 5 200, the injured wqker must demonstrate that the defendant had actual or constructive knowledge of the unsafe condition that caused the accident and, under such theory, the defendant's supervision and control over the work being r r performed is irrelevant (see Murphy v Columbia Univ., 4 AD3d 200 [Ist bept 20041). 1% In the case at bar, plaintiff contends that his injuries were the re$u(toftan unsah condition at the job site, to wit, hold' contractor liable for allowing a dangerous copditiorl to exist at 3 job site, the wdrker must produce evidence that the owner qr gener created the dantjerqua conditliqn or had actual or constructive nqtice of quch gndition, onp a sonable amount ~t timq imvqhich to remedy the conditio0 prior tb AD3d 645 [2d Dept 201 11). t Plaintiff has failed tg de hhich h& nowlcomp I either created by defendatits or.'that deknddnts argument, consisting of one paragraph that is unsuppg best, and insufficient to supp uch conditiods. Plai by any case law, is conclusbry qt tion based qn a violation of Labor L (see Winegwd v New York 51). Hence, the Court branch of plaintiff's motion. Lastly, since the Go elief sought by plaintiff on his causes of actiori I based 9n violations of Labor Law §§ 24d(1) and 241(6), the Court denies as moot plaintiff's [* 13] request for alternate relief. I CONCLUSIQN 1 Based on the foregoing, it is hereby ORDERED that the portion of plaintiff's motion seeking partial summary judgment on the issue of liability for his causes of aotion based an violations of Labor Law 33 240 (I) and 241 (6) is granted, with the amount of damaggs tQ be determined qt trial; and it is further, ORDERED that the remainder of plaintiff's motion is denied; and it is further, ORDEREQ that all parties are directed to appear on July 25, 2012 at 9:30 a.m. at New York County Supreme Court, Part 40, for jury .selection; and it is further, . ORDERED that the plaintiff is upon all parties and the Clerk This constitutes th , %

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