Hamilton v Barr & Barr, Inc.

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Hamilton v Barr & Barr, Inc. 2012 NY Slip Op 32180(U) August 17, 2012 Supreme Court, New York County Docket Number: 111606/10 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] 1 L l 11 SUPREME COURT OF THE STATE OF NEW YORYI- NEW YORK COUNTY PRESENT: HQIJ. JIJJlTH J. GIS&l$ Justlce V T JQm -V- The followlng popem, nmbmsd t to were read on this motion t d o r Motlon ( 8 ) decided in accordance wlth rum deClbl0rl FILED ttre accompanying m m w I , [* 2] YORK SUPREME COURT OF THE STATE OF COUNTY NEW OF YORKE PART 10 IAS ".".".-------- I X -- , -- I Stephen Hamilton, DEC~SION~ORDER Plaintiff (s)~ Index No.: Ssq. No.: 111806-10 001 -againstBarr & Barr, Inc. and Phelps Memorial Hospital Association, ' Recitation, a9 required by CPLR 9 221 9 [a] of fhe papers considered in the review of this (these) motion@): E mi Numbered Papem ........... 1 HarnMon nlm (3212) w/NMB affjnn,SH amd, exhs . . . . . ........... 2 Barr & Barr app w/AMB affirm, exh . . . . . . . . . . . . . . . . . . Phelps Msmorial opp w/HH affirm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 Hamilton reply and second reply w/NMB affirms . . . . . . . .NEW o ~ t ( . . . . . . . . . . 4, 5 y _ _ _ _ _ _ _ _ _ l f l _ _ _ L L - - -l - * - - - lf - ------ i:d --ar---- Upon the foregoing papers, the decision and order of the court is as follows: GISCHE J.: This I 8 negligence actlon in which Stephen Hamitton alleges defendants s violated Labor Law § 240, thereby proximately causing his injuries. Issue was joined by each of the defendants and plaintiff now moves, pre-note of issue, for partial summary judgment in his favor solely on the issue of liability. Each defendant has separately opposed the motion, Plaintiff objects to the court's consideration of Barr & Barr's opposition papers on the basis that they were untimely served. Hamilton has, however, interposed a second reply amrmation in which he addresses the argument8 Barr & Barr raised in its late opposition. Since plaintiff has shown no prejudice, Barr & Ban+ -Page 1 of 8- [* 3] opposition papers will be considered. Having met th@mqubments of CPLR 5 3212, summary judgment relief is available and this motion will be decided on its merits (CPLR 9 3212 [a]; Brill v. Clty of New , 2 N.Y.3d 848 [2004]). The court s decision is as follows: Arguments Presanbd: Hamitton claims that while worklng at a construction project on September 20, 2007,at a hospital owned by defendant Memwial Hospital Association ( Phslps Memorial ), he was injumd when the Baker s scaffold he was working on collapsed, throwing him against the side railings of the scaffold. Phelps Memorial hired Barr & Barr, Inc. (sometimes GC ) its general contractor for the construction work and as Hamilton was employed by non-party Wing, Inc., a subcontractor of the GC, Hamitton provides a sworn affidavit setting forth the details of his accident end describing the scaffold. He describes the scaffold as being comprised of two side frames with planks laid across the frames in a horizontal mannw. The Baker s scaffold had no railings ,nor was he provided with any lines, harnesses, or other safety devices to stop him from falling. According to Hamilton, he wa8 standing at the top of the scaffold demolishing a wall when he descended the scaffold to take his morning break. His descent was without incident. After his break, Hamilton climbed back up to the top level. Hamitton avem that he was careful when climbing back up the scaffold and that he was not instructed to do his job or access the top level in any other manner. When he reached the top platform and stood up, the scaffotd collapsed, causing his body and right ghoulder to strike into the bars of the side of the scaffold, -Page 2 of 8- [* 4] Although the defendants allege that Hamilton may have passed out, then fallen, Hamilton denies being mentally or physically impaired in any way when the accident occurred. Harnitton denies them were any stepladders, scaffolds or other safety devices available to him that would have allowed him to perform his job at the required height safely. He states he had to start demolition of the wall up near the ceiling and the Baker s scaffold was the only thing available to him to do the work. In addition to his swam affidavit, Hamilton relies an the deposition testimony of Barr & Barr s foreman, John Bassani Who testified that the scaffold Hamilton was using is accessed by rungs up the side. He described the scaffold as consisting of two braces that lack together with a wood platform. Although Bassani did not witness the accident, he recounts that someones told him Hamilton had fallen through the scaffold. In opposition to the motion, the GC and the owner present similar arguments. Neither defendant provides sworn amdavit, but rely solely on their attorney srespxflwe affirmations. The defendants contmd that Hamilton s accident did not occur as he claims, and even if it did, the accident does not come within the provisions of Labor Law § 240 because Hamilton neither fell from a height, nor did he fall to the ground. Defendants paint out that there are no witness to Hamilton s accident. Defendants contend that assuming Hamilton fell, he suffered a lateral, not downward fall because the plank shifted and he hit the side of the scaffold. Thus, the defendants contend that the wooden planking may have been dsfwtiva, causing it to shift, but that condition and type of fall - described by the defendants as an incidental contact - is not a elevation relattnd accident, but simply a routine hazard d working at a construction site. Without elaborating, defendants deny any safety devices were -Page 3 of 8- [* 5] necessary for Hamilton to safety do his job. Barr & Barr also provides Hamilton's hospital record, seeking to raise a triable issue of fact about how Hamilton's accident occurred. In particular, defendant highlights a statement in the a haspital record that Mamitton "fellapproximatdy I O ft off a scaffald yesterday aftw p m i n g ut...'^ Law ADD- to for m a w Judamsnt On a motion for summary judgment, it is the movant's burden to set forth evidentiary facts to prow its prima facie case that would entitle it to judgment in its favor, without the need for a trial an v. Citv of New York, 49 N.Y.2d 557,562 [1980]). The, party opposing the motion must damonstrata, by admimible evidence, the erxbtenw of a factual issue requiring a trial of the action, or tend& an acceptable excuse for his/her/its failure so to do (Alvarez w. P r ~ s w cHoqp., 68 N.Y.2d 320 [1086]). t Dliscwsion Labor Law 5 240 [l], commonty known as the "scoffold law,' was enacted to protect workers in construction projects against injury from the expected risks of inherently hazardous work posed by elevation differentials at the work site @~~r;kIey v, j ,44 A.D.3d 263,287[ 'Dept ZOOT] citing Miswrrtfi I v. Mark IV consfr. Go., 86 N.Y.2d 487 [ISSS]). The scaffold law imposes 8 nandelegable duty upon ownm, contractom and their agents to supply necessary security devices for workers at an elevation, to protect them from falling ( 66 N.Y.2d 452, 458459 [1985]). An owner, contractor or agent who breaches that duty may be held fiable in damage$, regardless of whether It has aotually exercised superviaion or control over the work {Rossr v. Curtis-Palmer m - E l e c . Go, , 8 1 NY2d 494,500 [1993]).Therefore, a -Page 4 of 8- [* 6] violation of this duty results in abaoluta liability where the violation was a proximate cause of the accident ( b a d e K. R o c k - M a w . Inca,307A.D.2d 156 [la 20031). To Dept. eetabllah a & & case, the plaintiff must show that there i a Labor Law 9 240 [l # s J violation and that such vlalatlan proximatelycaused the injuries sustained ( Q u a # r c ~ e F.J. Sciames Const. Corn., 44 A.D.3d 377 [PI Dept. 20071). H m v e r , 8 plalntlff is not entitld to the protections of this section unless his o her injuries "werethe direct r consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Runner v New York Stock & # ,$ I t n ~13 .I v, Port Author@ of New York and New J~lrsev,76 NY3d 599,603[2008]; A.D.3d 805 [Ist 20101). Dept. Hamilton has made out his prima facie case far Labor Law 5 240 liability. He has established that the scaffold he w m standing on collapsed, dislodging the wooden plank he wa8 standing on, causing him to tumbldfall sideways, slamming into the side of the scaffold with his body and hls right shoulder. Fortunately, he did not fall ta the ground, some 6 feet below. His further fall, howesvar, was not stopped by a harnesa, lifeline or other safety device, but only because his body impacted and became twisted in the side of the scaffold. The fact that his fall may have been a short distance does not render Labor Law Q 240 inapplicable and la irmlevant (Mwna v. Ti s Gorp, of M a n h m, 306 A.D.2d 163 [ld Dept. 20031). There is no rule regarding a definitive height dtfferential at which the scaffold law begins to apply {Th~mps v, st, on Charles Con&iniums, 303 A.D.2d 152 [I*' Dept. 20031). Where, as here, the Baker's scaffold was being used to elevate Hamitton so he could perform h b assignad tesks, and the scaffold collapses, causing some shift in either the materials or the worker, -Page 5 of 8- [* 7] Labor Law 5 240 applies (Thomnmn v, St, Charlw C ~ n orniniurna, supra). Thus, d plaintiff has established that the harm (his accident) flowed directly from the application of the force of gravity, even though he did not actually fall to the ground below (Reavelv v, M n k m Racwav Pro-ms. Inc 88 A.0.3d 561 [ i Dept. 201I] cifing .I New York Stock Fxch.. Inq, 13 NY3d at 604) The defendants description of how Hamilton s accident may have happened is nothing more than sheer speculation. It i unclear whether the accident was witnessed, s bemuse there may have been one or more workers nearby, but defendants either mutd not locate, those workws or did not depose them. Regardless, an unwitnessed accident presents no bar to summary judgment in favor of plaintiff where, as here, there is no substantiated challenge to credibility (m 280 A.D.2d 409 [l Jesmal, Dept 2001J), Defendants provide no affidavits or other evidence in admissible form materially conflicting with Hamilton s atatamants about how his awldent accurred (Voqel v. Blade Contmctiqa. Inc., 283 AD2d 376 [l Dapt 20021). Defendants seize on a statement in the hospital record about Hamilton passing out before he fell. An entry in a hoapltal record comes within the statutory business records rule, only if it is relevant to the diagnosis or treatment of the patient s ailmept (Del Taro v. Carroll, 33 A.D.2d 160, 165 119891). Any statement made by the patient detailing the Gircurnstances of an accident, where it is immaterial to and was never intended to be relld upon in the treatment of the patient, and which setves no medical purpose, may not be regarded 88 having been made in the regular course of the hospital s b u s i n e s s m s v, A l e e , 309 N.Y. 283,208 [1955]; see also ISEQ, at 185) (Intarnal quotation merks and citetlons omMed). 33 A.D.2d -Paget 6 O f 8- [* 8] Leaving aside the fact that the court is simply directed to look at the "history" section of his hospital record, without any indication what page they are referring to, the court has undertaken a review of thb I00 p4ge long record to locate the reference. On the "triage"page of the hospital record there is a statement that the patient "fell 5 ft from scaffold onto R chest (illegible) ...'I This is the most relevant section of the hospital record becauses it was made soon after Hamilton arrived at the hospital and ostensibly made by Hamitton to receive rndical trtmtmnt. Another awtian of the hospital record indicates that the patient "FELL 5FT ON RT IAT ADB AREA. PT PALE DIAPHORETIC CLUTING SIDE, SENT TO TX AREA IMMEDIATELY." The discharge summary contains similar notations. It is only In a document identiid as "Consuttation"with Dr. Halko that the fallowing statement appears: "Hktory:this is a 41 year old gentlernsn who fell approximately 10 ft of a scaffold yesterday after passing outm." Assuming this atatamsnt about Hamilton having passed out before he fell is admissible because it was provided to ascertain medial treatment, it fails ta raise a factual dispute about the happening of his accident. Although defendants learned of this statement in discovery, they failed to pursue it any further or make any effort to substantiate it The statement is so vague and diacannacted from anything else documented a8 a medical condition that, standing alone, it is Insufficient to defeat plaintiffs motion. A motlan for summary judgment cannot be defeated by the shadowy semblance of an issue, rather the parties must lay bare thefr proof m l i n v, Globe, 34 NY2d 338 [1974]). Hamilton has established that he was provided with the Baker's scaffold to do his job and that B scaffold is a safety device under Labor Law 5 240. He did not set the -Page 7 of 8- [* 9] scaffold up himself and there were no other safety devims available to him, such as B harness or lifeline. The scaffold collapse while he was on it, sending Hamilton slamming into, and becoming Mated in, the side of the rmffold. Though his fall was not from a significant height, the purpose of the scaffold was to hold him aloft, near the ceiling, where he could do his job safely. The scaffold failed and there was no other safety device to prevent his fall. Defendants' statement, that no other safety device was necessary for Hamilton to do his jab, fails to raise a triable issue of fact to defeat Hamitton's motion. Therefore, plaintiff is e n t k l to summary Hamilton has met his burden of proving he is entitled to partial summary judgment in his favor on the issue of liablllty on his Labor Law Q 240 claim. Defendants have faild to raisa isgues of fact. Themfore, Hamilton's motion is granted in all respects. Conolualon Plaintiffs motion for partial summary judgment is granted in all respecta. Since the note of issue has not yet been filed, the discovery deadlines are extended. The court set9 October 25,2012 as a compliance conference data and the time to file the note of issue to October 26, 2012, Any relief requested but not specifically addressed is hereby d e n 1 6 I LED This constitutes the decision and order of the court. Dated: AU6 20Mt2 New York, New York August 77,2012 -Page 8 of 8-

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