Pereira v City of New York
Annotate this CaseDecided on March 28, 2014
Supreme Court, Queens County
James Pereira, Plaintiff,
against
City of New York, NEW YORK CITY ECONOMIC DEVELOPMENT CORPORATION, TISHMAN SPEYER PROPERTIES, L.P., LIC SITE B2 OWNER, L.L.C., and INTRICATE CONSTRUCTION INC., Defendants.
26927/11
Phyllis Orlikoff Flug, J.
The following papers numbered 1 to 12 read on this motion
Notice of Motion1 - 2
Notice of Cross-Motion3 - 4
Notice of Cross-Motion5 - 6
Affirmation in Opposition/Reply (2)7 - 8
Notice of Motion9 - 10
Affirmation in Opposition11
Reply Affirmation12
Defendants, New York City Economic Development Corporation [*2](hereinafter "NYCEDC"), Tishman Speyer Properties, L.P. (hereinafter "Tishman"), LIC Site B2 Owner, L.L.C. (hereinafter "LIC") and Intricate Construction Inc. (hereinafter "Intricate"), collectively move inter alia for summary judgment, dismissing all claims asserted against them. Defendant, City of New York (hereinafter "City") cross-moves inter alia for summary judgment, dismissing plaintiff's complaint and all cross-claims asserted against it. Plaintiff, James Pereira, cross-moves inter alia for summary judgment against all defendants. Defendants NYCEDC, Tishman, LIC, and Intricate all separately move inter alia for an in-camera inspection.
This is an action to recover damages for personal injuries allegedly sustained by plaintiff on December 1, 2010 as a result of being struck by sections of a plywood fence he was attempting to secure during heavy wind conditions at the construction site located at 42-09 29th Street, in the County of Queens, City and State of New York.
The subject construction site was owned by NYCEDC and leased to LIC, a limited liability company set up by Tishman. At the time of the accident, plaintiff was employed by Bovis Lend Lease LMB, Inc. (hereinafter "Bovis") who had been contracted by Tishman, to provide general construction services. Bovis subsequently contracted with Intricate to maintain and move the plywood fence at the construction site.
On a motion for summary judgment, the proponent "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate an material issues of fact from the case . . ." (Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 852 [1985]). Once the proponent has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which requires a jury trial (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]).
Labor Law § 200 codifies the common law duty of an owner or employer to provide employees with a safe place to work (See Jock v. Fien, 800 NY2d 965, 967 [1992]). Labor Law § 240[1] imposes absolute liability for injuries sustained as a result of an owner or contractor's failure to provide safety devices necessary for the protection of workers subject to the risk inherent in elevated work sites (See id.). Labor Law § 241[6] further requires owners and [*3]contractors to provide reasonable and adequate protection and safety to employees working in and persons lawfully frequenting all areas in which construction, excavation or demolition work is being performed (See id.).
The City of New York has established its prima facie entitlement to judgment and dismissal of all of the Labor Law causes of action asserted against it. It is undisputed that the City of New York is not plaintiff's employer and was not the contractor at the work site. In addition, co-defendant NYCEDC admits that it is the owner of the subject property.
Plaintiff fails to raise a triable issue of fact in opposition. The affirmation by plaintiff's attorney that states that the City is the owner of the property lacks probative value as it is not based on personal knowledge (See McCovey v. Williams, 105 AD3d 819, 820 [2d Dept. 2013]; Sirico v. Beukelaer, 14 AD3d 549 [2d Dept. 2005]).
To the extent plaintiff claims that an October 16, 2008 newspaper article regarding the subject construction raises issues of fact regarding the ownership of the property, it is well settled that a newspaper article constitutes inadmissible hearsay that cannot be used to defeat summary judgment (See Young v. Fleary, 226 A.D2d 454, 455 [2d Dept. 1996]; see also Merkos L'Inyonei Chinuch, Inc. v. Sharf, 59 AD3d 403, 408 [2d Dept. 2009]; P & N Tiffany Props., Inc. v. Maron, 16 AD3d 395, 396 [2d Dept. 2005]).
The remaining defendants also contend they are entitled to dismissal of all of plaintiff's labor law causes of action, while plaintiff maintains he is entitled to judgment in his favor on those same claims.
With respect to plaintiff's § 200 cause of action, there remain issues of fact that prevent granting summary judgment to any of the moving parties.
Defendants admit that plaintiff was informed of and directed to attend to the heavy wind condition by Patrick Shiels, as a representative for Tishman and LIC. In addition, Salvatore Bonello, an Intricate employee working at the construction site at the time of the accident, testified at his deposition that he noticed the plywood fence lifting due to the strong wind and requested [*4]assistance from Bovis employees while plaintiff testified at his deposition that supervisors from Bovis noticed and addressed the wind condition on their own.
This conflicting testimony demonstrates the existence of issues of fact regarding whether defendants had the authority to supervise the work being performed (See Rhodes v. East 81st St, LLC, 81 AD3d 453, 454 [1st Dept. 2011]; Gallagher v. Levien & Co., 72 AD3d 407, 409 [1st Dept. 2010]).
Defendants, however, have established their entitlement to judgment on plaintiff's § 240[1] cause of action. This provision applies to both "falling worker" and "falling objects" cases (Narducci v. Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]; see also Francis v. Foremost Contracting Corp., 47 AD3d 672, 674 [2d Dept. 2009]). Nevertheless, "not every object that falls on a worker gives rise to the extraordinary protection of Labor Law § 240[1]" (Novak v. Del Savio, 64 AD3d 636, 638 [2d Dept. 2009]; see also Francis, 47 AD3d at 674; Atkinson v. State, 20 AD3d 739, 740 [3d Dept. 2005]). Rather, in order to recover under this section, a plaintiff must establish 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, supra, at 268).
Plaintiff fails to demonstrate that the fence was caused to fall while it was being secured because of the absence or inadequacy of a specific safety device (See Flossos v. Waterside Redevelopment Co., L.P., 108 AD3d 647, 649-50 [2d Dept. 2013]). Indeed, plaintiff fails to identify any specific safety device that would have prevented the accident and were not provided to him and plaintiff's bill of particulars admits that the fence was caused to fall due to the strong wind conditions.
With respect to plaintiff's § 241[6] cause of action, in order to sustain a cause of action under this section, a plaintiff must specifically plead and prove a violation of an applicable Industrial Code regulation promulgated under the statute by the Commissioner of Labor (See Messina v. City of New York, 300 AD2d 121, 122 [1st Dept. 2002]; see generally Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494 [1993]). Plaintiffs' bill of particulars specifically alleges violations of the following Industrial Code provisions: §§ 23-1.18, 23-1.7, 23-1.11, 23-1.33, 23-4.1 and 23-33[b][3].
While plaintiff does not appear to oppose dismissal of [*5]plaintiff's § 241[6] on the basis of any of these Industrial Code Provisions, plaintiff asserts that Industrial Code § 23-3.3[b][3], which was mistakenly listed as § 23-33[b][3] in the bill of particulars due to a typing error, is applicable.
Upon service of the bill of particulars, defendants' were immediately made aware that there must be a typographical error because § 23-33[b][3] does not exist. Under these circumstances, defendants would not be prejudiced by plaintiff's belated assertion of § 23-3.3[b][3].
As such, in the interests of justice, the court grants plaintiff leave to amend his bill of particulars to assert Industrial Code § 23-3.3[b][3] as a basis for plaintiff's § 241[6] cause of action. Plaintiff shall serve the amended bill of particulars on defendants no later than May 30, 2014.
Inasmuch as this subsection remains unpleaded, the motions for summary judgment on plaintiff's § 241[6] cause of action are premature.
Accordingly, plaintiff's motion for summary judgment is denied in its entirety.
Defendant, the City of New York's cross-motion for summary judgment is granted, in its entirety, and plaintiff's complaint and all cross-claims are dismissed as asserted against the City of New York.
The remaining defendants' cross-motion is granted to the extent that plaintiff's cause of action pursuant to Labor Law § 240[1] is dismissed as asserted against New York City Economic Development Corporation, Tishman Speyer Properties, L.P., LIC Site B2 Owner, L.L.C. and Intricate Construction Inc., and is denied in all other respects.
The motion by defendants' NYCEDC, Tishman, LIC, and Intricate for an in-camera inspection is denied as moot, the Court having rendered a decision on the in-camera inspection on August 22, 2013. Defendants fail to identify any additional discovery that was not resolved by that decision.
March 28, 2014 ____________________
J.S.C.
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