Wright v Ellsworth Partners, LLC

[*1] Wright v Ellsworth Partners, LLC 2017 NY Slip Op 51480(U) Decided on November 2, 2017 Supreme Court, Warren County Muller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 2, 2017
Supreme Court, Warren County

William Wright, Plaintiff,

against

Ellsworth Partners, LLC and A P CONSTRUCTION, LLC, Defendants.



ELLSWORTH PARTNERS, LLC and A P CONSTRUCTION, LLC, Third-Party Plaintiffs,

against

JAG I, LLC, Third-Party Defendant.



56892



Finkelstein & Partners, LLP, Newburgh (Lawrence D. Lissauer of counsel), for plaintiff.

Napierski, VanDenburgh, Napierski & O'Connor, LLP, Albany (Andrew S. Holland of counsel), for defendants/third-party plaintiffs.

Shantz & Belkin, Latham (M. Randolph Belkin of counsel), for third-party defendant.
Robert J. Muller, J.

Plaintiff William Wright was an employee of third-party defendant JAG I, LLC (hereinafter JAG) and was engaged in a construction project on the day of the accident at property owned by defendant/third-party plaintiff Ellsworth Partners, LLC (hereinafter Ellsworth). Defendant/third-party plaintiff AP Construction LLC (hereinafter AP) was the general contractor. Other JAG employees were dismantling and stacking scaffolding that had previously been erected as part of the project. Plaintiff's responsibilities for JAG at the time were [*2]as a truck driver, laborer and mason tender who undertook whatever work his supervisors required of him. At the time of these events he was sweeping the floor in the vicinity of the scaffolding, standing on the same floor and at the same level with a broom in his hand "to make it look like [he] was doing something . . . ." Plaintiff himself was not engaged in the dismantling and stacking of the scaffolding. The scaffolding being stacked ultimately fell on the plaintiff, striking the right side of his head and his left wrist followed by a very brief loss of consciousness.

Plaintiff subsequently brought claims against defendants/third-party plaintiffs (hereinafter defendants) under Labor Law §§ 200, 240(1) and 241(6). On April 30, 2015, this Court issued a decision which, inter alia, granted defendants' motion for summary judgment to dismiss the complaint and JAG's motion for summary judgment to dismiss the complaint and third-party complaint (47 Misc 3d 1217[A] [2015]). The Appellate Division, Third Department thereafter reinstated plaintiff's Labor Law § 240 (1) claim, finding that there were insufficient facts in the record to grant summary judgment on this cause of action (143 AD3d 1116 [2016]). The Third Department stated, in pertinent part:

"[c]ritically absent from the record is any indication as to plaintiff's height or any other evidence shedding light on the height differential between plaintiff and the stacked frames at the time they fell. Further, issues of fact remain with regard to such other relevant factors as the number of scaffolds stacked in the pile that collapsed, the weight of each scaffold and the manner in which the scaffold(s) struck plaintiff" (id. at 1119).

Presently before the Court are defendants' motion for summary judgment to dismiss the Labor Law § 240 (1) cause of action and plaintiff's cross motion for summary judgment to grant this cause of action. The case is returned for this narrow analysis supported by a stipulation of material facts, executed by the parties in an effort to address the Third Department's concerns. The parties have agreed that plaintiff is 5 feet, 7 inches tall; that the scaffold frames were 6 feet tall; that there were 10 frames in total that fell, each weighing approximately 75 pounds; and that the frames toppled over, rather than the feet of the frames sliding out. It remains undisputed that plaintiff and the stacked scaffolding were at the same level.

It is this Court's view that defendants have made a prima facie showing of their entitlement to summary judgment dismissing the Labor Law § 240 (1) cause of action (see Fabrizi v 1095 Ave. of the Ams., L.L.C., 22 NY3d 658, 662-663 [2001]; Narducci v Manhasset Bay Assoc., 96 NY2d 259, 268-269 [2001]). Defendants have demonstrated that the stacked scaffold frames were neither objects being hoisted nor objects that required securing for the purpose of the undertaking. Defendants have further demonstrated that the stacked scaffold frames did not fall because of the absence or inadequacy of an enumerated safety device and that they did not present the extraordinary elevation risks envisioned by Labor Law § 240 (1). In opposition, plaintiff has failed to raise a triable issue of fact.

If a 10,000-pound steel truss vertically positioned on the ground that falls over onto a plaintiff and causes severe injuries does not present a Labor Law § 240 (1) cause of action, then neither do the facts stipulated to herein. Indeed, this Court finds Oakes v Wal-Mart Real Estate Bus. Trust (99 AD3d 31 [2012]) to be particularly instructive. There, plaintiff and a 10,000-pound steel truss "were both at ground level, and . . . were either approximately the same height or plaintiff was slightly taller than the truss" (id. at 40). The Third Department found that "plaintiff was exposed to the usual and ordinary dangers of a construction site, and [not] the [*3]extraordinary elevation risks envisioned by Labor Law § 240 (1)" (id. [citations and internal quotation marks omitted]).

The Court also finds Christiansen v Bonacio Constr., Inc. (129 AD3d 1156 [2015]) to be equally instructive. There, the Third Department found that the crossbar of a scaffolding frame falling from two feet above another 5 foot, 7 inch-tall plaintiff's head did not present a physically significant height differential (see id. at 1158). Specifically, the Third Department found that "plaintiff was exposed to a general workplace hazard, [and] not . . . to an elevation-related risk within the ambit of Labor Law § 240 (1)" (id. at 1158-1159). Indistinguishably, in Hebbard v United Health Servs. Hosps., Inc. (135 AD3d 1150 [2016]), plaintiff was 6 feet tall and moving dismantled scaffold frames from one place on a garage floor to another place on the same floor. The "frames were about the same height as [plaintiff] and they were located on the same level as him" (id. at 1151). "As he picked up one frame, other frames . . . tipped over" (id.). Proceeding "in light of recent precedent" (id.), the Third Department dismissed plaintiff's Labor Law § 240 (1) cause of action.

Finally, while this Court recognizes that a slight elevation differential of inches may not necessarily be de minimis — particularly given the weight of the object and the amount of force it is capable of generating, even over the course of a relatively short descent (see Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 10 [2011]) — defendants' motion answers this jurisprudence with an engineering expert's informed physics discourse. This expert opines that "the total kinetic energy . . . at the time of impact [was] .20 joules" and that this "amount [was] negligible; [22] times less than the energy that would be carried by a 1-pound object if it fell 1 meter." Since it is this Court's perception that 10 panels leaning against a wall — not banded together — will not fall as one object, defendants' engineering expert offers a logical opinion unrebutted by plaintiff's expert architect — or any other evidence — that the force created was indeed negligible. Although the result is contrary here, the judicial determination - in this instance - of a negligible force is guided by the reasoning in Jackson v. Heitman Funds/191 Colonie, LLC (111 AD3d 1208 [2013]), where the Third Department found "a significant elevation differential given [the] substantial weight and the powerful force it generated when it fell, so as to require a safety device as set forth in Labor Law § 240(1)" (id. at 1210, 976 N.Y.S.2d 283 [emphasis added]).

While this Court might appear to deliberate out of its element by musing that actual force depends upon a work-energy theorem — i.e., the bowling ball bouncing off a concrete floor versus onto a stack of pillows — there is no opposing evidence in the record that movant's calculations of force are somehow unreliable. Given the formulae other courts have provided, this Court finds that the particular elevation differential under consideration here is de minimus and the forces generated by the movement of the scaffolding are negligible. Accordingly, and based upon the foregoing, including oral argument, it is hereby

ORDERED that defendants/third-party plaintiffs' motion for summary judgment is granted in its entirety and the complaint dismissed; and it is further

ORDERED that plaintiff's motion for summary judgment, although rendered moot, is nonetheless denied; and it is further

ORDERED that the third-party complaint is dismissed as moot; and it is further

ORDERED that any relief not specifically addressed herein has nonetheless been [*4]considered and is expressly denied.

The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated June 27, 2017, Notice of Cross Motion dated July 28, 2017 and the submissions referenced below. Counsel for defendants/third party plaintiffs is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry in accordance with CPLR 5513.

Dated: November 2, 2017

Lake George, New York

____________________________________

ROBERT J. MULLER, J.S.C.

ENTER:

Papers Reviewed:

1. Affirmation of Andrew S. Holland, Esq. dated June 27, 2017 with Exhibits "A" through "C" and accompanying Memorandum of Law;

2. Stipulation of Material Facts dated May 5, 2017;

3. Affidavit of Ernest J. Gailor, P.E. sworn to June 27, 2017 with Exhibits "A" and "B";

4. Affirmation of Lawrence D. Lissauer, Esq. dated July 31, 2017 with Exhibits "A" through "E" and accompanying Memorandum of Law;

5. Affidavit of Frederick G. Bremer, AIA, NCARB sworn to July 25, 2017 with Exhibits "A" and "B";

6. Affidavit of Francis Wright sworn to July 22, 2017;

7. Affidavit of Frank Santana sworn to July 26, 2017;

8. Reply and Opposition Affirmation of Andrew S. Holland, Esq. dated September 8, 2017 with accompanying Memorandum of Law;

9. Reply and Opposition Affidavit of Ernest J. Gailor, P.E. sworn to September 7, 2017;

10. Reply and Opposition Affirmation of Lawrence D. Lissauer, Esq. dated September 15, 2017 with Exhibit "A" and accompanying Memorandum of Law. and oral argument having been heard on October 30, 2017 with Kenneth B. Fromson, Esq. appearing on behalf of plaintiff and Andrew S. Holland, Esq. appearing on behalf of defendants/third-party plaintiffs.