Rivera v Fairway Equities LLC

[*1] Rivera v Fairway Equities LLC 2012 NY Slip Op 51676(U) Decided on August 28, 2012 Supreme Court, Kings County Schmidt, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 28, 2012
Supreme Court, Kings County

Silvano Rivera, Plaintiff,

against

Fairway Equities LLC, Ramon Building and Construction Corp., United Homes of New York Inc., Monroe Funding LLC, Miron Building Supply LLC, Forrest Panel & Lumber Home Center, Inc., and Forest Panel & Lumber Home Center, Inc., d/b/a Miron building Supply, Defendants.



32655/05



Plaintiff Attorney: Sullivan Papain Block McGrath & Cannavo, P.C., 120 Broadway, New York, NY 10271

Defendant Attorney: Jacobson & Schwartz, 99 Jericho Tpke., Ste. 200, Jericho, NY 11753

David I. Schmidt, J.

The following papers numbered 1 to 9 read herein:

Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1-3, 4-6

Opposing Affidavits (Affirmations)7

Reply Affidavits (Affirmations)8-9

Affidavit (Affirmation)

Other Papers

Upon the foregoing papers and by way of separate motions, plaintiff Silvano Rivera moves, pursuant to CPLR 3212, for an order granting him partial summary judgment in his favor against defendants Forest Panel & Lumber Home Center, Inc. (Forest) and Miron Building Supply LLC (Miron) with respect to his claims premised on Labor Law §§ 240(1) and 241(6).[FN1] [*2]

Plaintiff's motions are denied.

Plaintiff was injured on December 22, 2007 when he was struck by a metal hamper filled with sand that fell off of a forklift. This accident occurred during the construction of a three story building located at 1350 College Avenue, Bronx, New York. The premises under construction was owned by defendant Fairway Equities LLC (Fairway), and the general contractor and/or construction managers on the project were Ramon Building and Construction Corp. (Ramon), United Homes of New York, Inc. (United) and Monroe Funding LLC (Monroe). Miron supplied and delivered construction materials to the jobsite.[FN2] Plaintiff was employed by non-party Bolinet Construction (Bolinet), apparently a sub-contractor hired to erect the building's cinder block walls.

At approximately 9:00 A.M. on the morning of the accident, Miron's driver, Felix Gomez, arrived at the jobsite with a flatbed truck loaded with pallets of concrete blocks and two hampers (also referred to as hoppers) loaded with sand. After using a three wheeled forklift (also referred to as a "Spider" by Gomez) to unload the pallets of blocks onto the ground, Gomez used the forklift to lift one of the hampers off of the back of the truck. The frame of the hamper sat on top of the forks of the forklift, but the hamper frame did not have a slot or bar that fit under the forks. In his own deposition testimony, plaintiff stated that his supervisor wanted this sand unloaded from the hamper into a large plastic bag. In order to do so, the supervisor requested that plaintiff and two other co-workers to stand next to the hamper and hold the bag under the hamper while the sand was poured into it. It is undisputed that the hamper was three to four feet tall, and that the forklift held the hamper's bottom approximately three to our feet above the ground. Neither of the witnesses testified how much the hamper weighed when loaded with sand. Nevertheless, it is evident that the hamper must have been very heavy in light of the photographs of the hamper provided by plaintiff as an exhibit to his reply affidavit, the testimony that regarding the hamper's size, and Gomez's testimony that it took four to five men to lift the hamper off of plaintiff after it fell. Although the testimony of plaintiff and Gomez differs as to the exact cause of the hamper's fall, it is undisputed that, after one of plaintiff's co-workers opened the bottom of the hamper, the sand did not properly pour out, and the hamper tilted over and fell onto plaintiff.

According to plaintiff's deposition testimony, when the sand did not pour out from the hamper, one of his co-worker's banged on the side of the hamper in order to unloosen the sand. This banging did not loosen any of the sand, and the operator of the forklift then moved a lever of the forklift to shake the hamper. Plaintiff asserted that it was this shaking of the hamper by the operator that caused the hamper to tilt towards plaintiff and fall onto him.

At his deposition, Gomez testified that he had initially told workers at the worksite that it was very dangerous to unload the hamper into a bag while they were standing next to it because the hamper could tip over. After the workers at site repeated their request that he help them by holding hamper up on the forklift so they could unload the sand the into bag, Gomez ultimately agreed to do so. In contrast to plaintiff's testimony, Gomez stated that [*3]some sand did in fact pour out of one side of the hamper when its bottom was opened, but did not pour out of the side of the hamper near plaintiff. Gomez asserted that this uneven release of sand rendered the hamper unstable and caused the hamper to fall onto plaintiff. Gomez specifically denied moving the forks of the forklift to help shake the sand loose, but asserted that he did try to lower the forks and the hamper after it had started falling in an attempt to keep the hamper from falling on plaintiff.

Plaintiff thereafter commenced this action alleging causes of action based on common-law negligence and violations of Labor Law §§ 200, 240(1) and 241(6). Fairway, Ramon, United and Monroe did not appear in the action, and the court granted plaintiff's motion for a default judgment against them in an order (Spodek, J.) dated June 1, 2009. In October 2009, plaintiff commenced the separate action under Index No. 25013/09 in order to add Forest as a defendant. In a February 10, 2010 stipulation (which was so ordered on January 17, 2012), the parties agreed that this action and the action under Index No. 25013/09 should be consolidated. After plaintiff filed a note of issue, this court, in a February 10, 2011 order, stayed the action in light of bankruptcy proceedings involving Forest and Miron. In this order, the court noted that plaintiff would have 60 days from the lifting of the bankruptcy stay to move for summary judgment. The federal bankruptcy court, in an order dated July 27, 2011, lifted the bankruptcy stay with respect to this action based on plaintiff's agreement to limit his recovery to the available insurance. As is evident from this court's computer records, however, this action remained stayed and off of this court's calender until this court issued its December 14, 2011 order. Plaintiff made the instant motions on January 9, 2012.

Initially, Miron contends that plaintiff's motion is untimely because it was made more than 60 days after the bankruptcy stay was lifted by the bankruptcy court in July 2011. In issuing its February 10, 2011 order, this court intended that plaintiff's time to move for summary judgment would begin when the stay in this court was lifted and the action was restored to the calender in this court, which did not occur until December 15, 2011. Miron, however, is correct that the actual language used in the February 10, 2011 order could be read as providing that the 60 days began to run when the bankruptcy court issued its order. Nevertheless, the understanding of plaintiff's counsel that the time to move would begin when the action was restored to the calender in this court is not unreasonable, and provides good cause for consideration of plaintiff's motions even if they are deemed untimely under the terms of the February 10, 2011 order.

In moving, plaintiff contends that he is entitled to partial summary judgment against Miron on his Labor Law §§ 240(1) and 241(6) claims. Turning first to plaintiff's claim under Labor Law § 240(1), section 240(1) imposes absolute liability on owners and contractors or their agents when their failure to provide proper protection to workers employed on a construction site' proximately causes injury to a worker (see Wilinski v 334 East 92nd Housing Dev. Fund Corp., 18 NY3d 1, 3 [2011] [quoting Misseritti v Mark IV Constr. Co., 86 NY2d 487, 490 [1995]). In opposing plaintiff's motion, defendant contends, among other things, that the fall of the hamper from the forklift simply did not involve a fall from a height to sufficient to warrant the special protections provided under Labor Law § 240(1).

In a case involving a falling object, "a plaintiff must show more than simply that an object fell causing injury to a worker. A plaintiff must show that the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute" (Narducci v Manhasset Bay Assocs., 96 NY2d 259, 268 [*4][2001][emphasis in the original]).[FN3] In addition, the elevation differential between the falling object and the worker must be more than de minimis before section 240(1) will be found to apply (Capparelli v Zausmer Frisch Assocs., Inc., 96 NY2d 259, 270 [2001][companion case to Narducci]; Oakes v Wal-Mart Real Estate Business Trust, ___ AD3d ___, 2012 NY Slip Op 05694 [2012]). Courts, however, have not set a bright-line distinction between a differential to which section 240(1) applies and differential that is de minimis and not covered (see Thompson v St. Charles Condominiums, 303 AD3d 152, 154 [2003], lv dismissed 100 NY2d 556 [2003]). Rather, they consider the elevation differential in the context of the weight of the object to be secured, the force the object could generate in the distance at issue, and the safety device at issue (see Runner v New York Stock Exchange, Inc., 13 NY3d 599, 605 [2009]; Gutman v City of New York, 78 AD3d 886, 886-887 [2010]; Luongo v City of New York, 72 AD3d 609, 610-611 [2010]; Salinas v Barney Skanska Constr. Co., 2 AD3d 619, 621-622 [2003]; Heidelmark v State of New York, 1 AD3d 748, 749 [2003]; Thompson, 303 AD2d at 154).

In applying these principles to the facts here, this court finds that, in light of the heavy weight of the sand-filled hamper, the obvious force it generated in the three to four foot fall from the forks of the forklift, and the absence of any brace or other Labor Law § 240 device securing the hamper to the forklift, plaintiff has demonstrated, as a matter of law, that Labor Law § 240(1) was violated (see Brown v VJB Constr. Corp., 50 AD3d 373, 376-377 [2008]; see also McCallister v 200 Park L.P., 92 AD3d 927, 928-929 [2012]; DiPalma v State of New York, 90 AD3d 1659 [2011]; Pritchard v Tully Constr. Co., Inc., 82 AD3d 730, 730-731 [2011]; Gutman, 78 AD3d at 886-887 [2010]; cf. Oakes, 2012 NY Slip Op 05694). In opposition, Miron has failed to demonstrate the existence of a factual issue with respect to whether section 240(1) was violated. This finding, however, does not end the inquiry, as Miron also asserts that it may not be held liable because it was not an owner, contractor or agent under section 240(1).

Only owners, general contractors and their agents may be held liable under Labor Law § 240(1) (Russin v Louis N. Picciano & Son, 54 NY2d 311, 317-318 [1981]; Decotes v Merritt Meridian Corp., 245 AD2d 864, 865 [1997]). "A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done at the location a plaintiff is injured, and [it has] the authority to control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition" (see Perez v 347 Lorimer, LLC, 84 AD3d 911, 912 [2011][internal quotations and citations omitted]; see also Russin, 54 NY2d at 318; Linkowski v City of New York, 33 AD3d 971, 974-975 [2006]). Plaintiff's proof in the record here fails to demonstrate as a matter of law that Miron exercised such authority or control over the unloading of the sand from the hamper.

In this regard, plaintiff has failed to submit the contract or work order relating to Miron's delivery. In his own testimony, plaintiff stated that it was his employer, not the owner or general contractor, who ordered the delivery from Miron. The absence of proof of [*5]a direct contractual connection with the owner or general contractor weighs against finding that Miron was delegated any authority by the owner or general contractor (see Gonzalez v Glenwood Mason Supply Co., Inc., 41 AD3d 338, 339 [2007][subcontractor purchased blocks from supply company that hired delivery company that operated fork boom];[FN4] Lopez v Strober King Bldg. Supply Ctrs., 307 AD2d 681 [2003][defendant delivery company had no connection with owner]). Plaintiff also testified that he was supervised by a Bolinet supervisor, and it was this Bolinet supervisor who directed plaintiff and his co-workers to unload the sand into the bag. Similarly, although he testified that he had initially refused to use the forklift to lift the sand hamper over the bag, Gomez, Miron's driver, conceded that he ultimately agreed to do so at the request of Bolinet's employees. This evidence, suggests that it was Bolinet that supervised or controlled the unloading of the hamper, and, at the very least, demonstrates that there are factual issues relating to whether Miron supervised or controlled the unloading of the sand (see Perez, 84 AD3d at 912-913; Lopez, 307 AD2d at 681; Rice v City of Cortland, 262 AD2d 770, 772 [1999]; Van Nostrand v Race & Rally Constr. Co., Inc., 34 Misc 3d 1213 [A], 2012 NY Slip Op 50066 [U] [Sup Ct, Suffolk County 2012]; cf. Domino v Professional Consulting, Inc., 57 AD3d 713, 715 [2008][factual issue relating to liability of crane operator]).

The cases relied upon by plaintiff, Medina v MSDW 140 Broadway Prop., L.L.C. (13 AD3d 67 [2004]), Everitt v Nozkowski (285 AD2d 442 [2001]) and Marin v City of New York (5 Misc 3d 1003 [A], 2004 NY Slip Op 51164 [U] [Sup Ct, Kings County 2004]) do not support his argument that he has demonstrated Miron's agency as a matter of law. In Medina, the court found that a rigging company hired by the owner to inspect and maintain a window washing rig was the owner's statutory agent with respect to an accident arising from a defect with the rig (Medina, 13 AD3d at 67). In Everitt, the court found that Shuback, a subcontractor hired by the general contractor to install drywall was a statutory agent of the general contractor with respect to the work of plaintiff's employer, which had been hired by Shuback to actually perform the drywall work delegated to Shuback by the general contractor (Everitt, 285 AD2d at 443-444). Here, in contrast, plaintiff has provided no similar direct evidence of delegation of authority by the owner or general contractor and the record suggests that it was Bolinet that directed the unloading of the hamper. While Marin bears some factual similarities to the case here (Marin, 2004 NY Slip Op 51164 at 2-3), the Marin court's finding that the defendant delivery company there failed to demonstrate its entitlement to summary judgment as a matter of law does not support plaintiff's current contention that he is entitled to judgment against Miron as a matter of law.

Accordingly, the portion of plaintiff's motion for partial summary judgment with respect to his Labor Law § 240(1) claim must be denied.

Plaintiff's failure to demonstrate that Mironwas a statutory agent as a matter of law also requires denial of plaintiff's motion with respect to his Labor Law § 241(6) claim, which, like Labor Law § 240(1), applies to owners, general contractors, and their agents (see Russin, 54 NY2d at 317-318; Perez, 84 AD3d at 912). Moreover, given Gomez's testimony that he had placed the forklift's front supports on wood pieces and that the forklift and the forks did not move when the hamper tipped over, plaintiff has failed to demonstrate, as a [*6]matter of law, that any issue with respect to the repair of the forklift (12 NYCRR 23-9.2[a]) or unevenness of the ground (12 NYCRR 23-9.8[e]), was a proximate cause of the accident. Further, Industrial Code section 12 NYCRR 23-9.2(b)(1) is insufficiently specific to serve as a basis for a Labor Law §241(6) claim (see Scott v Westmore Fuel Co., Inc., 96 AD3d 520, 521 [2012]; Hricus v Aurora Contractors, Inc., 63 AD3d 1004, 1005 [2009]). As such, plaintiff has likewise failed to demonstrate his entitlement to summary judgement on his Labor Law § 241(6) claim.

This constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1: Plaintiff motions were made in what where then separate actions (Index Numbers 32655/08 and 25013/09). These actions have since been consolidated by way of a so ordered stipulation signed by this court on January 17, 2012.

Footnote 2: Forest and Miron were apparently separate companies that had merged or were operating as a single entity as of the date of plaintiff's accident. For ease of reference, the court will refer to this entity as Miron.

Footnote 3: Labor Law § 240(1), provides, in relevant part, that: "All contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed, and operated as to give proper protection to a person so employed."

Footnote 4: Although the decision in Gonzalez does not state who operated the boom that hoisted the cinder blocks that fell on plaintiff, the parties represent in their briefs on appeal state that it was the delivery truck driver who operated the boom (Plaintiff's Brief on Appeal, 2007 WL 5071814; Ferguson's Brief on Appeal, 2007 WL 5071817).