Reyes v Archbishop Stepinac High Sch.

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Reyes v Archbishop Stepinac High Sch. 2016 NY Slip Op 33174(U) December 20, 2016 Supreme Court, Westchester County Docket Number: Index No. 70145/14 Judge: William J. Giacomo Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: WESTCHESTER COUNTY CLERK 12/21/2016 12:32 PM NYSCEF DOC. NO. 41 INDEX NO. 70145/2014 RECEIVED NYSCEF: 12/20/2016 statutory To commence commence the statutory time of right right time for for appeals appeals as of 5513[a), (CPLR 551 J[a]), you are advised serve a copy copy advised to serve of this order, with notice of this order, with notice of entry, entry, upon upon all parties. parties. of SUPREME COURT COURT OF THE NEW YORK SUPREME THE STATE STATE OF NEW YORK COUNTY OF WESTCHESTER COUNTY WESTCHESTER PRESENT: WILLIAM J. GIACOMO, J.S.C. PRESENT: HON. HON. WILLIAM GIACOMO, J.S.C. -----------------------------------------------------------------------------x -----------------------------------------------------------------------------x JUAN REYES, JUAN REYES, Plaintiff, Plaintiff, -against-against- Index Index No. 70145/14 70145/14 DECISION & ORDER ORDER DECISION ARCHBISHOP STEPINAC HIGH SCHOOL SCHOOL and CATHOLIC CATHOLIC ARCHBISHOP STEPINAC SCHOOL ASSOCIATION NEW YORK, YORK, HIGH SCHOOL ASSOCIATION OF NEW Defendants. Defendants. ------------------------------------------------------------------------------x ------------------------------------------------------------------------------x The following papers numbered numbered 1 to 6 were defendants' motion motion for for summary The following papers were read on defendants' summary judgment dismissing the complaint. complaint. judgment dismissing PAPERS PAPERS NUMBERED NUMBERED Notice of Motion/Affidavits/Exhibits of Motion/Affidavits/Exhibits 1-3 Notice 4-5 4-5 Affirmation Opposition/Exhibits Affirmation in Opposition/Exhibits Reply Affirmation Reply Affirmation 6 Factual and Procedural Procedural Background Background Factual August 14, 2013, 2013, plaintiff plaintiff was a maintenance maintenance supervisor Janitorial supervisor at ABM ABM Janitorial On August Services ("ABM"). ("ABM"). He was assigned to defendant Stepinac High School School along Services was assigned defendant Archbishop Archbishop Stepinac along with two other other maintenance maintenance workers workers and five custodians. custodians. The The ABM ABM employees employees were were provided with bathroom, and locker locker room in the basement basement of the high provided with an office, office, tool room, bathroom, school. school. [* 1] 1 of 4 In August the boys boys locker locker August 2013, 2013, plaintiff plaintiff was was working working on converting converting the the bathroom bathroom in the perform the the room into a stockroom stockroom at the request request of the high school school principal. principal. In order order to perform conversion, conversion, the toilets, toilets, urinals urinals and sinks sinks had to be removed. removed. On August the tail August 14, 2013, plaintiff plaintiff was removing removing a urinal using using a grinder grinder to cut the pipe. The plaintiff The grinder grinder did not have a blade blade guard guard or handle. handle. At the time time of the accident, accident, plaintiff from the the valve valve had both hands hands on the the body body of the grinder, grinder, and he was cutting cutting the the tail pipe pipe from to the right hand hand and the urinal. The The grinder grinder then then hit a wall tile and kicked back back and stuck stuck his right fingers, fingers, lacerating lacerating them. them. Plaintiff was Plaintiff commenced commenced this personal personal injury injury action action on November November 21, 2014. 2014. Issue Issue was joined on January joined January 22, 2015. 2015. Plaintiff judgment on the issue Plaintiff now moves moves for summary summary judgment issue of liability liability asserting asserting a Labor Labor of New York. In Law §241 9241 (6) claim claim against against defendant defendant Catholic Catholic High School School Association Association of New York. support Winter. In support of his motion motion plaintiff plaintiff submits submits the affidavit affidavit of professional professional engineer engineer Les Winter. his affidavit, guard and a affidavit, Mr. Winter Winter states states that that the grinder grinder used by plaintiff plaintiff comes comes with with a guard the handle handle handle. handle. He states states that that the the guard guard protects protects against against contact contact with the grinder grinder and the stabilizes the time time plaintiff stabilizes the tool to prevent prevent lacerating lacerating injuries. injuries. Mr. Winter Winter notes notes that that at the plaintiff of 22 was using the violation of the grinder grinder it was was missing missing both the guard guard and the handle handle in violation NYCRR and equipment equipment NYCRR 23-1.5(c)(3), 23-1.5(c)(3), which which provides provides that that "all safety safety devices, devices, safeguards safeguards and in use shall be kept sound restored sound and operable, operable, and shall shall be immediately immediately repaired repaired or restored opinion to a or immediately job site if damaged." immediately removed removed from from the job damaged." It is Mr. Winter's Winter's opinion reasonable been present present reasonable degree degree of engineering engineering certainty certainty that that had the handle handle and guard guard been on the grinder grinder at the lime time of the the accident, accident, plaintiff plaintiff would would have not been injured. injured. 2 [* 2] 2 of 4 duty legable duty es a non-de In opposition, Labor Law§ Law S 241 (6) impos imposes non-delegable argue Labor defendants argue opposition, defendants In subcontractors, and subcontractors, contractors and failure of contractors vicarious negligent failure the negligent for the owner for upon an owner liability upon vicarious liability or excavation or "construction, excavation which "construction, areas in which their agents and that all areas ensure that employers to ensure and employers their agents arranged, guarded, arranged, equipped, guarded, demolition is perform performed shall be so constr constructed, stored,, equipped, ucted, stored ed shall work is ition work demol safety and safety tion and ate protec able and adequ operat3ed, and condu conducted providee reason reasonable adequate protection cted as to provid 3ed, and operat frequenting such to personss employed lawfullyy frequenting such places places."." therein or lawfull employed therein the person to the prior three prior on three grinder on Catholic High School plaintifff had used used the grinder that plaintif argues that School argues Catholic High read not read did not he did that he testified that occasions Further,r, at his deposition, plaintiff f testified deposition, plaintif incident. Furthe no incident. with no occasions with handle or handle guard or a guard see a not see that he did not testified that the also testified Plaintiff also grinder. Plaintiff the grinder. label on the warning label the warning never plaintiff never Moreover, plaintiff them. Moreover, ed them. on the the grinde grinderr and and did not know know who who had remov removed on School High School lic High nel. Catho ac person complained about the grinde grinderr to any any ABM Stepinac personnel. Catholic ABM or Stepin ined about compla merely is merely (c)(3) is R§ argues that industrial code such as 22 NYCR NYCRR S 23-1.5 23-1.5(c)(3) ial code violation of an industr the violation that the argues even Therefore, even nce. Therefore, of neglige some negligence. question of consider on the question finder to consider fact finder a fact for a evidence for some evidence accident. this accident. in this negligence in plaintiff's negligence assuming consider plaintiff's free to consider jury is free the jury negligent, the was negligent, assuming itit was Discussion Discussion affirmatively of affirmatively burden of A party seekin seekingg summ summary bears the initial initial burden judgm ent bears ary judgment A party rad vv demonstrating its entitle entitlement summary matter of law. (See (See Wineg Winegrad judgm ent as a matter ary judgment ment to summ strating its demon 68 Hospital, 68 Alvare z v Prospe New York York Univ. Univ. Med. Med. Ctr., 64 NY2d 851, 853 [1985) [1985);; Alvarez Prospectct Hospital, New party the party to the shifts to N.Y.2d 320 [1986)). been made made ... the burden burden shifts showing has been this showing "Once this ). "Once 320 [1986) N.Y.2d form admissible form proof in evidentiary proof produce evidentiary opposing in admissible judgm ent to produce summary judgment for summary motion for the motion opposing the the of the trial of require aa trial which require fact which of fact issues of sufficient material issues of material existence of the existence establish the to establish sufficient to ). action" (see Zucke Zuckerman v. City of of New New York, 49 NY2d NY2d 557 557 [1980) [1980)). rman v. action" 3 [* 3] 3 of 4 judgment on his plaintiff establishe establishedd prim primaa facie entitlemen entitlement t to summary summary judgment his Labor Labor Here, plaintiff the lack that the stated that who stated Winter who expert Les Winter lack affidavit of expert the affidavit submitting the claim by submitting §241 (6) claim Law 9241 of a guard guard and handle handle caused caused plaintiff's plaintiff's injuries. injuries, In opposition opposition defendant defendant Catholic Catholic High High of judgment in plaintiff's School fails fails to raise an issue issue offact offact precluding precluding summary summary judgment plaintiff's favor favor on on this this School issue, issue. judgment is GRANTED summary judgment Accordingly, plaintiff's motion motion for partial summary GRANTED, . for partial Accordingly, plaintiff's The parties parties are directed directed to appear appear in the Settlemen Settlement t Conferenc Conferencee Part Part on January January The gs. 31,2017 1600 at 9:15 a.m. a,m, for further further proceedin proceedings, 2017 room 1600 31, York Plains, New York White Plains, Dated: White Decemberr 20, 2016 2016 Decembe H:'ALPHABETICAL MASTER LIST-WESTCH L1ST-WESTCHESTERIReyes Archbishop Stepinac Stepinac (SJ motion motion Labor Labor Law Law 24t-6).wpd 24t-6).wpd ESTER\Reyes v. Archbishop ICAL MASTER H:'ALPHABET 4 [* 4] 4 of 4

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