Zylberberg v Tishman Contr. Corp.

Annotate this Case

Download PDF

Zylberberg v Tishman Contr. Corp. 2012 NY Slip Op 32062(U) July 13, 2012 Supreme Court, New York County Docket Number: 102291/2007 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. SCANNED ON 81612012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK CQUNTY PRESENT: HON. PAUL WOQTEN 7 PART I Justlcg L MICHAEL ZYL;BERBER@and-I;ISA ZYLBERBERG, --- . -- - - . ~ INqEX NO. 102291107 Plalntlff, -against- MOTION SEQ. NO. OF MANHATTAN TISHMAN C PORATION OF M A ~ H A urq, behind a staine 'Fkhdapt Congregati ted at 1 East 65'h Street, New Yo nt Fernenella & f 1 Rlgiptiff files oppositi I [* 2] Labor Law 55 ZOO and 241(6). Alss before the Court is plaintiff's cross-m&ion, pursuant to CBLR 3212, for- partial summary jwdgnlent on the issue of liabili~y-under--labQr §-24Q(l-).Law -- All the remaining defendants file in opposition to plaintiffs' cross-motion for partial summary judgment and the plaintiff files a reply. BACKGROUND Emanu-el contracted with Tistymay Conytruction Corpgration (Tishman Constructibn) for major renovation and reStoration project of the Temple. Tishrnan Cwx$rudion subcontracted with Tishman Interior Contractors (Tishrnan Interigrs), a TisKm;rr;l company that specializes in interior building renovations, as the general cpntractor to ren e_ . interior of the Temple. Ti3hman Iqtsriors, in turn, qslh ows6 at the'rem t with plaintiff's ernplb rical installation r n Prior to the aacident, plaintiff had worked as an qlwtrician for sixteen years. At against Mazzeo was subsequeetly discontinupd, 1 [* 3] the stained glass window. Plaintiff testified that he moved up to the fourtw T u I I - ladder and made multiple attempts toapen the window. - He had a pair screwdriver with him Different witnesses give varying accounts of what hgppened next. According to plaintiff, he used his left hand, pulled on the handle to open the window while keeping his right hand on the ladder (id. at first attempt plaiqtiff told Muscente, who was standing behind him, that the win nded by telling him to be chrbful and not to A e Second time to open the window I "Bga irfst defendants Issue has been filed. , [* 4] Summary judgment is a drastic remedy that should be granted only if no triable issues af fact exist and the movant is entitled to judgment as 9 matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Andrq v Pomemy, 35 N'/2d $1 , 364 [I 9741). The party moving for summary judgment must make a pri matter of law, tendering qufficient evidence in a material issues of fact (see rad NY2d 625,626 [1985]),If there is any doubt as to the ekistence of a triable ,.,.. ,, , issue, wmmary . . . . ... , . . . . [* 5] Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]). The statute provides in pertieent part ._. .. __ ~ ..- .. All contractors and owners and their agents . . . in the erection, demolition, repairing, alterihg, painting, cleaning or pointing of a building or structure shall furnish or erect, or ciluse to be furnished or erected for the performance of such labor, scaffolding, hQists, stays, ladders, slings, hmgers, blocks, pulleys, braces, irons, ropes, and other devices which st~pll sa constructed, placed and be pperated as to give proper protection to a perspn so employed. To establish liability under Labor Law 5 240(1), the injured plaintiff must demonstrate (1) a violation of the statute, and (2) that such her injuries (see Blake v Neighborhood Hous, Sew., 1 NY3d 280, 287 [2003]: Cherry v Time . . l.. < Warner, lnc., 66 AD3d 233, 236 [I st device is proijid Once a plaihtiff probes the tws el8t-n tbey did not supervise or exercise c and comparative negligence may not be asserted qs a defense (see Sharp v Sqandic Wall Ltd. Partnership, 306 AD2d 39, 40 [ l s t bept 20931). No I, n laintiff s actidns were th I I Traditionally; Latj or Law 8 240(1) has begn co nstrued to apply to elevatiori-relat&d risks involving falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured (Ross, 81 NY26 at I , I * - I [* 6] inadequate to shield the injured worker from harm direpfly flowiri-g from the application of the force of g w i t y t o - 0-n&&_c?rpe , I" (id. [quoting.Rm.,81.NYaat 5Qj3): DISCUSSION Fernenella's Motloh far Summarv Judgment The Court is cpgnizant of the fact that 3 non-owner, as in this case a subcontractor, may be held liable as an owner's agent, where it has obtai wprk (see Labor Law § 240(1); Russin v. Lbuis thy authority to superviqe pr control the 4. Picciana & Sari-,54 NY2d 31 1, 31 8 [196.1] I i-itlgr dees ["Only upon obtai class of those having nondelegable liability as sections 240 and 241"l; see r Taylor v Lehr Cons ., 2006 N.Y. Slip 0 In the I work performs as an agent of the qw half of Femene11 I [* 7] Labor Law 5 240( I). Specifically, defendants' point to inconsistencies in plaihtiff's depositim . testimony, such a s when-askedLwhaJLh-eA was he was going to fix a light fixture (Plaintiff's EBT at 22), and at a later point when asked the same question, responds that he was directed to open the stained glass window to see if the light bulbs were out (id. at 24-25) Defendants maintain that if plaiqtiff was told to check whether the florescent light bulbs were out, this type of activity cqnstitufes mere rputiee rnaintenancg I I which is not a protected activity. bjl the According to plaintiff's ddp defendants' witnesses testimopy, the accident could have occurre and thus there are triable is cause of the accident. Spe and whether plaintiff had ybm as well (See Notice of Mbtion, .gxhibit GI Notice of Motion, EBT, exhibit I). 1 ctioning catjle box, which did rk Industries Develop FBT, exhibit F; Notice of Motiorl * I d ldr,*V# [* 8] I The Court notes that plaintiff does hot opposd'the portion of Fernenell Femenella's motion are granted without opposition. CONCLUSION For these reawns and upon the foteglping pagers, it is, I ORDERED that the pslrt;ionof Fern plaintiff's Labor Law 3 200, Common-law negligence, a without opposition; an CPLR 3212, dismissing $gainst it is granted; aridkit 1 tl for summary judgment dismissing I + Labpr Law 5 241(6) clqim? i$ grqnted

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.