Fanning v Rockefeller Univ.

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Fanning v Rockefeller Univ. 2012 NY Slip Op 32129(U) August 3, 2012 Supreme Court, New York County Docket Number: 104435/2010 Judge: Saliann Scarpulla 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. NNED ON 811312012 I [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY SALIANN SCARPULLA b PRESENT: PART \.q Index Number : 104435/2010 FANNING, DANIEL INDEX NO. VS. MOTION DATE ROCKEFELLER UNIVERSITY SEQUENCE NUMBER 001 MOTION SEP. NO. PARTIAL SUMMARY JUDGMENT , were read on thle motlon tonor The followlng papen, numbered 1 to Notice of MotionlOrder to Show Cause Anrwsrlng Affldavlta - Affldavlta - Exhlblts IN O W Iw4. IN O W . - Exhibits Replylng Amdavlk Upon the foregoing papers, It 1 ordered that thls motlon 1 s 8 decided per the memorandum decision dated which disposes of motion sequence(s) no. OO\ 9 !&\I1 cbci c3c RECEIVE5 AUG 7 - 2012 AUG 1 3 2012 :?4u '" * " 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: 3. CHECK IF APPROPRIATE: ........................... MOTION IS: ................................................ CASE DISPOSED GRANTED 0DENIED SETTLE ORDER DO NOT POST ?${' &fi"Jki-yjj w $5 NON-FINAL DISPOSITION ~,' .9u GRANTED IN PART 0OTHER 0SUBMIT ORDER 0FIDUCIARY APPOINTMENT (7 REFERENCE [* 2] Plaintiff, Index No.: 104435/2010 Submission Date: 07/25/2012 - against- THE ROCKEFELLER UNIVERSITY and TURNER CONSTRUCTION COMPANY, DECISION AND ORDER FILED AUG 1 3 2012 For Plaintiff Law Office of James J. McCrorie, P.C. 500 N. Broadway, Suite 15 1 Jericho, NY 11753 For Defendants: Cornell Grace, P.C. 225 Broadway, Suite 1400 New York, NY 10007 NEW YORK COUNTY CLERKS OFFICE Papers considered in review of this motion for summary judgment: Notice of Plaintiffs Motion . . . . . . . . . . . . . . . . . . . . . 1 Aff in Opp . . . . . . . . . . . . . . . . . . . 2 Reply . . . . . . . . . . . . . . . . . . . . . . 3 Notice of Defendants 4 Motion . . . . . . . . . . . . . . . . . . . . . . Aff in Opp . . . . . . . . . . . . . . . . . . . 5 Reply. . . . . . . . . . . . . . . . . . . . . . . 6 HON. SALIANN SCARPULLA, J.: In this action to recover damages for personal injuries, plaintiff Daniel Fanning ( Fanning ) moves for partial summary judgment on the issue of liability under Labor Law § 240( 1) (motion sequence no. 1). Defendants The Rockefeller University 1 [* 3] ( Rockefeller ) and Turner Construction Company ( Turner Construction, ) (collectively defendants ) move separately for summary judgment dismissing the complaint (motion sequence no. 2 ) . Motions sequences nos. 1 and 2 are consolidated for disposition. This action arises from injuries Fanning sustained on March 12,2009 while performing pipe installation work on a construction project (the project ) at 1248 York Avenue (the premises ) in Manhattan. Rockefeller was the owner of the premises and Turner Construction the project s general contractor, At the time, Fanning was employed with Infinity Mechanical, a subcontractor on the project. Fanning testified at his deposition that he was injured after falling from the fifth or sixth rung of a ten-foot fiberglass A-frame ladder. According to Fanning, he got about halfway up the ladder, the ladder started to twist and it threw [hiin] to the left and the ladder kicked to the right. Fanning testified that he was unable to look and see if there was a problem with the ladder, but that the ladder appeared to be in good condition before he climbed it. Martin Tobin ( Tobin ), Fanning s co-worker who was with Fanning at the time of the accident, attests that he observed the ladder suddenly move in one direction and throw [Fanning] in the other direction. Tobin also attests that the ladder was a ten-foot orange fiberglass ladder. Diane Raetz ( Raetz ), a Site Safety Manager with Turner Construction, was working at the premises on the morning of the accident. Raetz testified that Fanning told 2 [* 4] her that he fell from the third rung of the ladder. Raetz saw a six-foot, A-frame wood ladder on its side in the area where Fanning was working. Raetz took that ladder to her office, where it remained at the time of the deposition. According to Raetz, the ladder was in good shape and virtually new, though it was too short for the job Fanning was doing. Fanning commenced this action in April, 2010, asserting causes of action for common law negligence and violations of Labor Law $5 200,240(1) and 241(6). Fanning now moves for partial summary judgment on the issue of liability under Labor Law § 240( l), arguing that Fanning s uncontested testimony that the ladder twisted under him establishes aprima facie violation of 8 240( 1). In opposition, and in support of their summary judgment motion, defendants argue that the Labor Law 4 240( 1) claim fails as a matter of law because there is no evidence that the ladder was defective. Defendants maintain that, in any event, Fanning testified that he lost his balance, not that the ladder gave way under him, and that Fanning and Tobin lack credibility as their testimony is inconsistent with Raetz s testimony. Defendants contend that a six-foot ladder was too short for the work he was doing when Fanning was injured, thus there is an issue of fact as to whether he fell because he was using inappropriate equipment. Defendants further argue that the $ 241(6) claim should be dismissed because there is no evidence that they violated any Industrial Code provisions. Lastly, defendants 3 [* 5] maintain that they are entitled to summary judgment on Fanning s Labor Law 5 200 and common law negligence claims because defendants did not supervise or control Fanning s work site, nor did they have notice of any hazard at the work site. Discussion A movant seeking summary judgment must make aprima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to eliminate any material issues of fact. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985). Once a showing has been made, the burden shifts to the opposing party, who must then demonstrate the existence of a triable issue of fact. Alvarez v. Prospect Hosp., 68 N.Y.2d 320,324 (1986); Zuckerman v. Ct ofNew York, 49 N.Y.2d 557 (1980). iy Here, Fanning has made primafacie showing of entitlement to summary judgment on his Labor Law 5 240( 1) claim. Owners and general contractors are required under Labor Law 240( 1) to provide protections against elevation-related hazards for workers engaged in the construction, repair, demolition, painting and alteration of a building or structure. Jamil v. Concourse Enters., 293 A.D.2d 271,273 (Ist Dept. 2002). The parties do not dispute that Rockefeller was the premises owner, or that Turner Construction was the project s general contractor. Further, Fanning testified that the ladder he was working on twisted and threw him to the left, which constitutes aprima facie violation of Labor Law 6 240( 1) regardless of whether there is evidence that the ladder was defective. See Jamil, 293 A.D.2d at 273. 4 [* 6] I . Defendants argue that Fanning testified at three separate times in his deposition that he lost his balance, thus there is no presumption of their liability under Labor Law 5 240(1). However, each time Fanning also stated that he lost his balance as a result of the ladder twisting under him. And, although Raetz s testimony that the ladder was six feet tall conflicts with Fanning s testimony, this question of fact is immaterial as defendants have not presented any evidence that rebuts Fanning s testimony that the ladder twisted under him. See Krejbich v. Schimenti Contr. Co., Inc., 94 A.D.3d 668,668-89 (lSt Dept. 2012); Leconte v 80E. EndOwners Corp., 80 A.D.3d 669, 671-72 (2d Dept. 201 1). Further, defendants contention that Fanning may have fallen because the six-foot ladder was too short for the type of work he was doing is speculative and insufficient to raise a triable issue of fact. See Cill v. Resjefal Corp., 16 A.D.3d 339, 341 (1 Dept. 2005). Accordingly, Fanning is entitled to summary judgment on the issue of defendants Labor Law 5 240( 1) liability. In accordance with the foregoing, it is hereby ORDERED that the motion for partial summary judgment by plaintiff Daniel Fanning on the issue of liability under Labor Law $240( 1) is granted; and it is further Though Raetz testified that Tobin told her that he did not see the accident, which conflicts with his attestation on this motion, Fanning s testimony on its own is sufficient to impose Labor Law 5 240( 1) liability on defendants. See McCafseery v. Wright & Co. Constr., Inc., 71 A.D.3d 842, 843 (lstDept. 2010). 5 . . . . . - [* 7] ORDERED that the motion for summary judgment by defendants The Rockefeller University and Turner Construction Company is denied; and it is further ORDERED that the parties are to proceed to trial on the issue of damages. This constitutes the decision and order of the court. Dated: FILED New York, New York August '$20 12 ENTER: AUG 1 3 2012 NEW YORK TY CLERK'S OFFICE 6

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