Obszanski v Koko Contr., Inc.

[*1] Obszanski v Koko Contr., Inc. 2005 NY Slip Op 51925(U) [10 Misc 3d 1053(A)] Decided on November 25, 2005 Supreme Court, Kings County Schack, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 25, 2005
Supreme Court, Kings County

Marcin Obszanski, Plaintiff,

against

Koko Contracting, Inc., Defendant. KOKO CONTRACTING, INC., Third-party Plaintiff, M.J. CONSTRUCTION, Third-party Defendant.



3225/03

Arthur M. Schack, J.

In this action for violations of Labor Law 240 (1), 241 (6) and 200, plaintiff, working as a roofer, suffered severe injuries on October 18, 2002, after he fell from the roof at the Administration Building of Westchester Community College, Valhalla, New York. Defendant [*2]Koko was the general contractor and third-party defendant M.J. Construction, Koko's subcontractor for roof alterations, employed plaintiff. Plaintiff moves, pursuant to CPLR 3212, for: partial summary judgment on liability against defendant on his Labor Law 240 (1) cause of action; severing the third-party action from the main action; and, assigning the case for an immediate trial by jury on the issue of damages.

Plaintiff's accident

According to plaintiff's deposition [exhibit E of motion] and his affidavit, attached to the motion, plaintiff and co-workers had removed the old roof surface and insulation and then installed new insulation and a new roof surface. Before removing the old roof, plaintiff and co-workers had removed the metal flashing around the edge of the roof, storing the flashing until the rest of the roofing work was finished. At the time of the accident, plaintiff was assigned the task of reattaching the old flashing around the edge of the roof at the top of the building, by hammering nails through the flashing to affix it to the edge of the roof at the top of the building. The roof was flat, with no parapets or railings, and no scaffolding was provided to plaintiff or co-workers to stand. Further, no harness and lifeline were provided to prevent plaintiff from falling to the ground from the rooftop.

Plaintiff states, at pp. 2-3, of his affidavit:

The roof was particularly dangerous that morning, because it was covered

with ice as smooth as an ice skating rink.

On the morning, before I had nailed in any flashing, I was near

the edge of the roof and started to kneel down so that I could begin my

work, when I slipped off the edge of the roof and landed on the concrete

two stories below . . .

. . . the conditions of my work compelled me to be kneeling at the

edge of a roof with nothing to prevent me from falling off of the roof.

Summary Judgment Standard

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. See Zuckerman v City of New York, 49 NY2d 557, 562 (1980); Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Matter of Redemption Church of Christ v Williams, 84 AD2d 648, 649 (3d Dept 1981); Greenberg v Manlon Realty, 43 AD2d 968, 969 (2d Dept 1974); Winegrad v New York University Medical Center, 64 NY2d 851 (1985).

CPLR § 3212 (b) requires that for a court to grant summary judgment the court must determine if the movant's papers justify holding as a matter of law, "that the cause of action or defense has no merit." The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant. Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 (2d Dept 1990). Summary judgment shall be granted only when there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. Friends of Animals, Inc., v Associated Fur Mfrs., 46 NY2d 1065 (1979). [*3]



Summary judgment discussion

Labor Law § 240 (1) provides in pertinent part:

All contractors and owners and their agents, except owners of

one and two-family dwellings who contract for but do not direct or control

the work, 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. [Emphasis added]

Plaintiff's accident is one that the Legislature clearly intended to come under the protection of the Labor Law 240 (1).

The Court of Appeals observed in Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d 280, 284-285 (2003) that:

[t]he first scaffold law, an ancestor of our Labor Law 240 (1), was enacted . . .

in response to the Legislature's concern over unsafe conditions that beset

employees who worked at heights (see L. 1885, ch. 314) In promulgating

the statute, the lawmakers reacted to widespread accounts of deaths and

injuries in the construction trades . . . Most tellingly, the lawmakers fashioned

the pioneer legislation to "give proper protection" to the worker. These

words are at the heart of the statute and have endured through every amendment.

Further, at 286, the Court instructed that, "[t]he Legislature looked to employers (and later, contractors and owners) as the entities best able to control the workplace and provide for its safety, casting them in liability for their failure to obey the law. The objective wasand still isto force owners and contractors to provide a safe workplace, under pain of damages."

In Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 (1991) the Court held that "[it] is settled that section 240 (1) 'is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed'. (See Quigley v. Thatcher, 207 NY 66, 68).' (Koenig v Patrick Constr. Corp., 298 NY 313, 319)." The Rocovich Court, at 513, looked at the the nature of those occupational hazards which the Legislature intended should warrant the absolute protection that the statute affords." Further, at 514, the Court finds that "[t]he contemplated hazards are those related to the effects of gravity where protective devices are called for . . . " [Emphasis added]

In a subsequent case, Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494 (1993), the Court held, at 501, that " Labor Law 240 (1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person." In Misseritti v. Mark IV Constr. Co. Inc., 86 NY2d 487, 491 (1995), the Court instructed that, "in recognition of the exceptionally dangerous conditions posed by elevation differentials at work sites that section 240 (1) prescribes safety precautions for workers laboring under unique gravity-related hazards (see Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, at 501 . . . )." In the instant case, no safety precautions whatsoever were provided to [*4]plaintiff.

In Zimmer v Chemung County Performing Arts, Inc., 65 NY2d 513, 523 (1985), the Count held, that "where an owner or contractor fails to provide any safety devices, liability is mandated by the statute without regard to external considerations such as rules and regulations, contracts or custom and usage." See Gontarzewski v City of New York, 257 AD2d 394 (1st Dept 1999). The duty of an owner or contractor to provide safety devices to workers subject to gravity related hazards are nondelegable. The Court instructed, in Buckley v Radovich, 211 AD2d 653-654 (2d Dept 1995), that:

a violation imposes absolute liability upon owners and general contractors

irrespective of whether they exercised supervision or control over the work

(see, Ross v Curtis-Palmer Hydro Elec. Co. Inc., 81 NY2d 494, 502; see

also, Lombardi v Stout, 80 NY2d 290, 295; Haimes v New York Tel. Co.,

46 NY2d 132, 136-137) and without regard for the negligence, if any, of

the injured worker so long as the breach was the proximate cause of the

injury (see, Bland v Manocherian, 66 NY2d 452, 459-461; Zimmer v

Chemung County Performing Arts, supra, 65 NY2d at 521).

In cases similar to the instant action, the Appellate Division, Second Department affirmed summary judgment for plaintiffs under Labor Law 240 (1). Plaintiff, in Smith v Xaverian High School, 270 AD2d 246 (2000), was not provided with any safety equipment and fell from a roof. The Court held, at 247 that:

evidence submitted by the plaintiff established that he was engaged in

construction work on a building and that the appellant . . . was the general

contractor. No safety devices were supplied, and he fell approximately 20

feet from the roof. The plaintiff, therefore, established a prima facie violation

of Labor Law § 240 (1) by [the general contractor].

In Danielewski v Kenyon Realty Co., LLC, 2 AD3d 666 (2003), plaintiff fell 12 feet from a mechanical roof to the main roof surface, while replacing a water tank on a building's roof. The Court observed, at 667, that there "was no rail or barricade at the perimeter of the mechanical room roof, and no lifelines, safety harnesses, or safety nets were present anywhere on the work site." See Gardner v New York City Transit Authority, 282 AD2d 430 (2001); Romero v John's Fruits and Vegetables, Inc., ___ AD3d ___, 2005 NY Slip Op 08301 (November 7, 2005). In opposition to the motion, defendant presents the affidavit of Miroslaw Fadrowski [exhibit A of supplemental affirmation in opposition], plaintiff's employer and owner of third-party defendant M.J. Construction. The Fadrowski affidavit is replete with conclusory statements. In paragraph 12, Mr. Fadrowski claims that: defendant Koko was "100% careless and negligent because, among others, it did not provide certain safety measures as required by pertinent laws and regulations and as reasonable required under the circumstances"; Koko had the exclusive duty to provide a safe construction site; M.J. had no control over the construction site; and, plaintiff was "100% careless and negligent and contributed to the accident by sliding on the roof instead of using a ladder that was available . . ." Mr. Fadrowski ignores the specific holdings of Zimmer and its progeny, namely, that a contractor is liable when there is failure to provide any safety devices to workers faced with gravity related hazards.

Further, this Court is concerned with the duplicitous conduct exhibited by defendant's [*5]counsel with the use of this affidavit. This affidavit was created by Mr. Fadrowski for a previous motion, denied by this Court, to renew and reargue Justice Barasch's denial of his refusal to vacate M.J.'s default in answering the third-party summons and complaint. In opposing M.J.'s motion to renew and reargue the denial of the vacatur of its default, defendant Koko's counsel previously argued, and quite correctly, in paragraphs 4 and 5 of its affirmation in opposition to M.J.'s motion to renew and reargue, that: The Third-Party Defendant already made this application twice . . .

[the first motion was marked off for nonappearance of M.J.'s attorney] . . .

a second motion was made causing unnecessary waste of time and expense

for this Court and my firm in having to once again address the same issues

on a motion for which neither Fadrowski nor his lawyer show any respect

for this Court.

Fadrowski still offers no meritorious defense . . . He offers no

supportive facts that create a questions of fact as to any meritorious defense.

The conclusions are ludicrous . . . [Emphasis added]

To quote the above affirmation, the use of this affidavit, previously held by this Court to lack any merit, to oppose that branch of plaintiff's instant motion for summary judgment on his Labor Law 240 (1) cause of action fails "to show any respect for this Court." In his affidavit, Mr. Fadrowski never claims to have been present at the work site and fails to present any evidence, other than his conclusory statement, that a ladder was available to plaintiff. This bald allegation fails to defeat plaintiff's Labor Law 240 (1) partial summary judgment motion on liability. In Orellana v American Airlines, 300 AD2d 638 (2002), a plaintiff roofer was injured after he fell from the roof of an American Airlines building at La Guardia Airport. Plaintiff testified, in his deposition, that defendants failed to provide him with a ladder or any other safety devices. The Orellana Court held, at 639, that the "mere presence of ladders somewhere at the work site does not establish that such devices were so placed as to give the proper protection required by the statute."

This disingenuous use of Mr. Fadrowski's affidavit is also precluded by collateral estoppel. In denying Mr. Fadrowski's motion to renew and reargue, after all the parties had an opportunity to argue the issue, I found this affidavit devoid of merit. Thus, Mr. Fadrowski's affidavit is precluded from this attempted inconsistent use by defendant Koko. In Ryan v New York Telephone Company, 62 NY2d 494, 500 (1984), the Court of Appeals, held that "[t]he doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same." Two prerequisites must be met before collateral estoppel can be raised. The Court of Appeals, in Buechel v Bain, 97 NY2d 295 (2001), cert denied 535 US 1096 (2002), instructed at 303-304, that:

There must be an identity of issue which has necessarily been decided

in the prior action and is decisive of the present action, and there must

have been a full and fair opportunity to contest the decision now said to

be controlling (see, Gilberg v Barnieri, 53 NY2d 285, 291 [1981]). The [*6]

litigant seeking the benefit of collateral estoppel must demonstrate that the

decisive issue was necessarily decided in the prior action against a party,

or one in privity with a party (see, id.). The party to be precluded from

relitigating the issue bears the burden of demonstrating the absence of a

full and fair opportunity to contest the prior determination.

See Gramatan Home Investors Corp. v Lopez, 46 NY2d 481, 485 (1979); D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664; Davidson v American Bio Medica Corp., 299 AD2d 390 (2d Dept 2002); Luscher v Luscher, 21 AD3d 1005 (2d Dept 2005).

Further, the evidentiary standard to use Mr. Fadrowski's affidavit to oppose summary judgment is the same standard used to establish a meritorious defense. It can't be defective for one purpose and then have probative value for another. Chiaffarano v Winston, 234 AD2d 329 (2d Dept 1996); Luksic v Killmer, 144 AD2d 864 (2d Dept 1988); Innerarity v County of Westchester, 144 AD2d 645 (2d Dept 1988).

Defendant, in paragraph 4 of its supplemental affirmation in opposition, makes a conclusory statement, using the previously described "ludicrous" affidavit of Mr. Fadrowski, to claim a "recalcitrant worker" defense. For the above cited reasons, defendant is collaterally estopped from arguing anything other than Mr. Fabrowski's affidavit is devoid of merit. Defendant has failed to present anything in admissible form that refutes plaintiff's prima facie showing of entitlement to partial summary judgment on liability of his Labor Law 240 (1) cause of action.

Severance of third-party action

Third-party defendant employer is in default as a result of his failure to answer the third-party complaint. Court records indicate that Justice Barasch granted judgment to third-party plaintiff Koko by default against M.J. on February 20, 2004. Three subsequent unsuccessful attempts have been made by M.J. to vacate the default judgment. There is no logical or legal reason to keep the two actions together. By severing the third-party action, Koko can proceed to an inquest against M.J. if plaintiff prevails in getting a final judgment against Koko in the main action. The third-party action will be severed from the main action.

Immediate trial on damages

With respect to plaintiff's request for an immediate trial on damages, CPLR 3212 (c) provides that "[I]f it appears that the only triable issues of fact arising on a motion for summary judgment relate to the amount or extent of damages . . . the court may, when appropriate for the expeditious disposition of the controversy, order an immediate trial of such issues of fact raised by the motion . . ." This case still has outstanding liability issue on the Labor Law 200 and 241 (6) claims. Thus, with unresolved liability issues I cannot grant an immediate trial on damages. However, the reality of Kings County Supreme Court Civil Term is that barring any additional and unforseen motion practice this case will come to trial in only a matter of months. With the filing of a certificate of readiness and note of issue, and the instant case having a standards and goals date of March 2, 2006, it should soon appear on the JCP 1 calendar (Jury Coordinating

Part - Kings County Supreme Court Civil Term's trial assignment part). Professor David Siegel, in his Practice Commentaries (McKinney's Cons Laws of NY, Book 7B, CPLR 3212:25), aptly [*7]observed, "in counties with heavy calendar congestion [Kings County surely qualifies] the word 'immediate' translates into 'reasonably quickly.'"

Conclusion

That branch of plaintiff's motion, pursuant to CPLR 3212, for partial summary judgment on the issue of liability against defendant on plaintiff's Labor Law 240 (1) cause of action is granted.

That branch of plaintiff's motion to sever from the main action the third-party action, Koko Contracting, Inc. v M.J. Construction, is granted.

That branch of plaintiff's motion requesting that the main action be assigned for immediate trial on the issue of damages is denied.

This constitutes the decision and order of the court

__________________________________ HON. ARTHUR M. SCHACK

J.S.C.

Appearances:

Plaintiff:

Martin Edelman, Esq.

Edelman & Edelman, PC

NY NY

Defendant Koho

Ann P. Eccher, Esq.

Smith Mazure Director Wilkins Young & Yagerman, PC

NY NY

Defendant, 3d Party Def MJ Constr

Eugene Chmura, Esq.

Astoria, NY