Figueiredo v New Palace Painters Supply Co., Inc.

[*1] Figueiredo v New Palace Painters Supply Co., Inc. 2006 NY Slip Op 52058(U) [13 Misc 3d 1229(A)] Decided on October 27, 2006 Supreme Court, Bronx County Renwick, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 27, 2006
Supreme Court, Bronx County

Maria B. Figueiredo, as Executrix of the Estate of Antonio Figueiredo, deceased and Maria Figueiredo, Individually, Plaintiffs,

against

New Palace Painters Supply Co., Inc., Fran-Ju, Inc., and Geraldo Marchese, Inc., Defendants.



8151/2004

Dianne T. Renwick, J.

Plaintiff Maria B. Figueiredo commenced this action as Executrix of the Estate of Antonio Figueiredo, seeking to recover money damages for the personal injuries and wrongful death of Figueiredo, stemming from a fall from a hole of a second floor under renovation. The fatal accident occurred while Figueiredo was working at a commercial, two-story building located at 538 East 180th Street, Bronx, New York. At the time of the accident, the building, owned by defendant Fran-Ju, Inc., was under gut renovation. Upon completion, the building was going to serve as an extension of the adjacent paint-supplies store owned by New Palace Painters Supply Co., Inc. As part of the renovation project, the owner hired contractors A.F. General Contracting (operated by Figueiredo) and Geraldo Marchese, Inc., to do various demolition and construction work, including putting in a new second floor.

The complaint asserts causes of action for common law negligence and violation of Labor Law §§200, §241(6) and §240(1), against New Palace Painters Supply, Inc., Co., Fran-Ju, Inc., and Geraldo Marchese, Inc. Defendant Geraldo Marchese, Inc. now moves for summary jugdment dismissing the claims asserted against it. Co-defendant Fran-Ju, Inc. cross moves for partial summary jugdment dismissing the Labor Law §200 and §241(6) claims. By a separate motion, co-defendant New Palace Painters Supply Co., Inc. moves for court leave to amend its answer to assert a cross claim for common law contribution and indemnification. Plaintiff cross moves for partial summary judgment on liability. The Court sua sponte consolidates all motions and cross motions for joint disposition. A dispositive issue raised in this case is whether the construction-site accident falls within the ambit of Labor Law §240(1).

Discussion

A. Plaintiff's Motion For Partial Summary Judgment On Liability

The Court first examines the cross motion by plaintiff seeking partial summary judgment on liability based upon the alleged violation of Labor Law §240(1). A proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Zuckerman v. City of New York, 49 NY2d 557 (1980). Once this showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Romano v. St. Vincent's Medical Center of Richmond, 178 AD2d 467 (1st Dept., 1991).

In order to prevail in an action brought under Labor Law §240(1), a plaintiff [*2]must show that the statute was violated and that the violation was the proximate cause of the injury. See, Sprague v. Peckham Materials Corp., 240 AD2d 392, 393 (2nd Dept. 1997); Wieszchowski v. Skidmore Coll., 147 AD2d 822 (3rd Dept. 1989). Specifically, Section 240(1) of the Labor Law provides that:

"All contractors and owners and their agents . . . 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."

Labor Law §240 (1) is designed to protect employees on construction sites from elevation-related risks. Elevation risks covered by the statute "are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured." Rocovich v. Consolidated Edison Co., 78 NY2d 509, 514 (1991). The duty imposed by Labor Law §240(1) is nondelegable and a contractor, owner, or their agent, is liable for a violation of this section even where he exercises no supervision or control over the work. Rocovich v. Consolidated Edison, supra, at 513. Moreover, Labor Law §240(1) is to be liberally construed so as to accomplish the purpose for which it was enacted, the protection of workers from such gravity-related accidents as falling from a height or being struck by a falling object, improperly hoisted or secured. Misseritti v. Mark IV Constr. Co., 86 NY2d 487, 491 (1995); Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500 (1993); Rocovich v. Consolidated Edison, supra.

In this case, plaintiff has met her burden for partial summary judgment on liability against defendants owner and general contractor on the Labor Law §240(1) claim. Specifically, the testimony, in the form of deposition and affidavits, of the non-party witness, David Balgobin, establishes that Antonio Figueiredo, the deceased plaintiff, was engaged in the renovation/demolition of a building at the direction of defendants owner and general contractor. In addition, Balgobin testified that the accident happened when Figueiredo fell about fifteen feet through a second floor under renovation. A set of stairs from the floor below had been removed and plaintiff was part of a crew that was in the process of installing new [*3]support beams for what was to be a new second floor in the opening where the stairs had been. Plaintiff and another worker fell from an unsecured piece of plywood that had been laid over the beams. The platform shifted and fell between two of the beams, causing plaintiff to fall through the gap between these beams to the surface of the floor below. No safety device was provided to plaintiff to prevent his fall to the floor below. Under the circumstances, plaintiff has established that the deceased plaintiff's fatal injuries were proximately caused by the failure of a safety device to afford him proper protection from an elevation-related risk. See Carpio v. Tishman Constr. Corp., 240 AD2d 234 (1st Dept. 1997); Richardson v. Matarese, 206 AD2d 353 (2nd Dept. 1994).

As plaintiff has established a prima facie entitlement to summary judgment, the burden shifts to defendants, owner and general contractor, to establish by admissible evidence the existence of a triable issue on the Labor Law §240(1) claim. In opposition, defendants argue that the happening of the accident does not fall within the ambit of Labor Law §240(1). In that regard, defendants, in essence, argue that a fall while working on flat surface (2nd floor), to the level below (first floor) does not constitute a gravity-related injury within the purview of Labor Law §240(1). There is no Court of Appeals decision directly on point on the same factual scenario raised herein, and there is a split of authority among the Appellate Divisions.

It is the view of the First Department that a fall from a flat surface to a level below constitutes ipso facto a gravity-related accident within the purview of Labor Law §240(1), irrespective of the specific task that was being performed at the time of the accident. It reasons that the work itself involved tasks related to difference in elevation whenever there is a change in elevation from one part of the site to another. This view was first expressed in the seminal case of Carpio v. Tishman Const. Corp., 240 AD2d 234 (1st Dept. 1997), where the court confronted the issue of whether falling from a flat surface on the third floor of a building to a level below is the type of injury that Labor Law §240(1) was intended to prevent. In Carpio, the plaintiff was employed as a painter on a project at a United States post office facility. His appointed task required that he walk along a concrete floor while painting the ceiling with a roller. While he was focused overhead, he stumbled backward into a hole in the floor, dropping three feet below the surface, up to his groin. The hole, known as a riser or a sleeve, was approximately a foot wide and was uncovered to allow piping to be extended to the floor below. Partial summary judgment on liability was granted to the plaintiff. The Carpio Court held that the plaintiff was a protected person pursuant to Labor Law [*4]§240(1), because the work itself involved risks related to differences in elevation. As the Carpio Court explained, there existed a risk of injury because of the difference in elevation between the level where the work was required (the third floor) and a lower level (the bottom of the piping shaft).

The First Department has consistently adhered to its holding in Carpio v. Tishman Const. Corp., supra. See e.g., John v. Baharestani, 281 AD2d 114 (1st Dept. 2001); Becerra v. City of New York, 261 AD2d 188 (1st Dept. 1999); Buccini v. 1568 Broadway Assocs, 250 AD2d 466 (1st Dept. 1998); Serpe v. Eyris Prods, 243 AD2d 375 (1st Dept. 1997). Similarly, the Second Department has consistently followed the First Department's view on this issue. See e.g., Lardano v. NYC Builders Group, Inc., 271 AD2d 574 (2nd Dept. 2000); Roberti.v. Chang, 227 AD2d 542 (2nd Dept. 1996)(worker was injured when the floor in which he was standing collapsed causing him to fall partially through the floor); Brandl v. Ram Builders, Inc., 7 A.D.3rd 655 (2nd Dept. 2004) (The injured party stepped backwards into an unprotected opening in the floor of a home he was renovating. He fell from the ground floor to the basement). Conversely, the Third and Fourth Departments have explicitly rejected the view of the First Department that Labor Law §240(1) applies whenever there is a change in elevation from one part of the site to another. Instead, the Third and Fourth Departments have held that a gravity-related incident occurs only when a worker falls while performing a task at some height above the flat surface. See e.g., Duke v. Eastman Kodak, 248 AD2d 990 (4th Dept. 1998); Panepinto v. LTV Steel Co., 207 AD2d 1006 (4th Dept. 1994). For example, in D'Egidio v. Frontier, 270 AD2d 763 (3rd Dept. 2000), the worker fell through a hole created by a missing tile in a raised floor of a computer room, which allowed access to piping and wiring on a subfloor. The D'Egidio Court held that the accident did not result from an elevated-related hazard, as would allow recovery under Labor Law §240(1). The D'Egidio Court explicitly rejected the First Department's view that where levels or floors exist below the work surface, the surface is "elevated'" under the statute. Rather, the D'Egidio Court reasoned that the work site is elevated within the meaning of the statute where the required work itself must be performed at an elevation above a flat surface.

In this action, this Court must adhere to the pronouncement of the First Department. The general rule is that inferior courts must follow applicable decisions of the Appellate Division in its department, where the Court of Appeals has not established a precedent on an issue. This concept is founded upon the bedrock principle of stare decisis. Mountain View Coach Lines, Inc. v. Storms, [*5]102 AD2d 663 (2d Dept 1984); People v Brisotti, 169 Misc 2d 672 (App Term, 1st Dept 1996); People v McMurty, 141 Misc 2d 510 (1987), affd 174 AD2d 988 (4th Dept. 1991); Josephson v Josephson, 121 Misc 2d 572 (Sup.Ct. NY County 1983), and "the fact that there is in New York State but one Appellate Division, albeit divided into four Departments." Reyes v. Sanchez-Pena, 191 Misc 2d 600, 606 (Sup Ct, Bronx County 2002).

Moreover, the First and Second Department's broader interpretation of Labor Law §240(1),construing a construction-site fall from a flat surface to the ground below as a gravity-related accident, is, in this Court's view, more consistent with the policy of construing Labor Law §240(1) liberally in order to achieve the purpose of protecting workers on construction sites. Indeed, the special hazards covered by Labor Law §240(1) are not limited to tasks performed at some height above a flat surface. Certain circumstances will trigger Labor Law §240(1) protection despite the fact the tasks are performed on a flat surface. For example, courts have consistently held that work performed at a construction site on a flat surface necessarily subjects a worker to elevation-related risks when the surface is temporary in nature or the equivalent of a scaffold. See e.g., Craft v. Clark Trading Corp., 257 AD2d 886, 888 (3rd Dept. 1999); Tomlins v. Siltone Bldg. Co., 267 AD2d 947 (4th Dept. 1991). Similarly, in this case, the task was performed on a flat surface near a hole which necessarily subjected plaintiff to elevation-related risks, triggering the duty to provide a safety device to avoid a fall. Cf. Limauro v. City of New York Dept. of Envtl. Protection, 202 AD2d 170 (1st Dept. 1994).

Pursuant to Carpio v. Tishman Const. Corp. supra, and its progeny, plaintiff is, therefore, entitled to partial summary judgment on liability based upon the violation of Labor Law §240(1). Having granted plaintiff's motion based upon Labor Law §240(1), the Court sees no need to consider defendant Fran-Ju, Inc.'s argument that it is entitled to summary judgment dismissing the claims based upon the violation of Labor Law §241(6) and §200, and common law negligence. It is clear from the record that plaintiff's damages are the same regardless of the theory of liability, and plaintiff can only recover these damages once. As such, defendant Fran-Ju, Inc.'s argument concerning the lack of merit of the other theories of liability contained in the complaint are academic. See Torino v. KLM Const. Co. Inc., 257 AD2d 541 (1st Dept. 1999); Covey v. Iroqouis Gas Transmission Sys., 218 AD2d 197 (3rd Dept. 1996).

B. Who Is Liable, Besides the Owner, For The Violation of Labor Law 240(1)?

The question remains, however, whether sufficient proof has been presented [*6]as to whether any party, besides the property owner, Fran-Ju, Inc., is a party liable within the meaning of Labor Law §240(1). Labor Law §240(1) imposes liability upon owners regardless of whether the owner contracted for the work or benefitted from it. Gordon v. Eastern Raily Supply, 82 NY2d 555, 560 (1993); Houde v. Barton, 202 AD2d 890, 893 (3rd Dept. 1994). Similarly, the Statute imposes a non-delegable duty upon the general contractor, based upon its overall responsibility for the construction, demolition or repair. Id. A subcontractor may also be liable under Labor Law 240(1). Agents of the owner and general contractor are by statutory wording considered to be liable. The liability of the agent depends upon the extent and level of involvement in the construction, demolition or repair. The involvement must consist of the ability to direct, supervise and control the work being performed by the plaintiff, even if not actually performed. Russin v. Louis N. Picciano & Son, 54 NY2d 311, 318; Currie v. Scott Contracting Corp., 203 AD2d 825, 826, (3d Dept. 1994).

Here, there was sufficient proof presented to establish that defendant New Palace Painters Supply Co., Inc. is a party liable within the meaning of Labor Law §240(1). In fact, Charles Jacobellis, a principal from New Palace Painters Supply Co., Inc, candidly admitted during his deposition that his company was hired by the property owner, Fran-Ju, Inc., to be the general contractor for the renovation project, and that his company hired all the sub-contractors on the site. Moreover, as part of his duties, Jacobellis visited the job site twice a day and had the authority to stop any work upon the observation of a "dangerous" condition or activity. Under the circumstances, defendant New Palace Painters Supply, Inc. must be charged with the statutory duties imposed by Labor Law §240(1). See Russin v. Louis N. Picciano & Son, 54 NY2d 311, 318; Currie v. Scott Contracting Corp., 203 AD2d 825, 826, (3d Dept. 1994).

With regard to co-defendant Geraldo Marchese, Inc. the opposite is true. The evidence presented failed to establish that Geraldo Marchese, Inc. supervised, managed or otherwise controlled the work being done when plaintiff was injured or that it was responsible for the work's safety. For instance, David Jacobellis from New Palace Painters Supply Co., Inc. testified that his company hired Geraldo Marchese, Inc. to do masonry and demolition work, and Figueiredo's company, AF General Contracting, to do the installation of the new beams for the new second floor. In addition, Geraldo Marchese, the principal owner of the company with the same name, testified that his company was involved in the removal of the old beams from the second floor but not with the installation of new beams; that was AF General Contracting's job. Further, at the time of [*7]Figueiredo's accident, his company employees were at the job site, but at a different location from where the accident took place. Under the circumstances, it is undisputed that Gerald Marchese, Inc. and AF General Contracting were two separate sub-contractors performing different work on the project. Thus, since defendant Gerald Marchese, Inc. did not exercise the requisite supervisory control over the injured plaintiff's activities, it cannot be deemed to have been an "agent" of either the owner or general contractor and, therefore, cannot be charged with the statutory duties imposed by Labor Law §240.

C. Defendant New Palace Painter's Motion For Leave to Amend Its Answer

The Court next examines the motion by defendant New Palace Painters Supply Co., Inc. for court leave to assert cross claims for common law indemnification and contribution against defendants Fran-Ju, Inc. and Geraldo Marchese, Inc. In general, leave to amend is to be freely granted absent prejudice or surprise resulting from the delay. C.P.L.R. §3025(b); Edenwald Contracting Co.,Inc. v. City of New York, 60 NY2d 957 (1983). However, it is essential that a party seeking leave to amend a pleading demonstrate the merit of the proposed pleading. East Asiatic Co. v. Corash, 34 AD2d 432, 434 (1st Dept. 1970). As stated in Daniels v. Empire-Orr Inc., 151 AD2d 370, 371 (1st Dept. 1989), "the proponent must allege legally sufficient facts to establish a prima facie cause of action or defense in the proposed amended pleading." See C.P.L.R. §3025 (b); Agri Fin. v. Senter, 105 AD2d 560 (3rd Dept. 1984).

Indemnity theory affords relief to a party who is compelled to pay for a loss caused by another party. Trump Village Section 3, Inc. v. New York State Hous. Fin. Agency, 307 AD2d 891 (1st Dept. 2003). The theory of contribution at common law is that one who is compelled to pay more than his "aliquot share of an obligation upon which several persons are equally liable is entitled to contribution from the others to obtain from them payment of their respective shares." Trump Village Section 3, Inc., 307 AD2d at 896-97. See also Asylum of St. Vincent de Paul v. McGuire, 239 NY 375 (1925).

Applying these principles to the case at bar, this Court finds that the proposed cross claims for common law indemnification and contribution should be disallowed. It is abundantly clear that neither defendant Fran-Ju, Inc. nor defendant Geraldo Marchese, Inc. can be found liable to co-defendant New Palace Painters Supply Co., Inc. under either indemnity or contribution since there is no question of the absence of liability on the part of defendants Fran-Ju, Inc,.and defendant Geraldo Marchese, Inc.; neither was negligent and neither directed nor [*8]supervised the injured plaintiff's work. Defendant Fran-Ju, Inc. is liable to the plaintiffs only because of its status as owner under Labor Law §240(1).

D. Defendant Geraldo Marchese, Inc.'s Motion For Summary Judgment

Given this Court's finding above, that there is no evidence before the Court that defendant Geraldo Marchese, Inc. was actually supervising and controlling the deceased plaintiff's work at the time of the accident, defendant Geraldo Marchese, Inc.'s motion for summary jugdment, seeking dismissal of the Labor Law and common law negligence claims asserted against it, must be granted. Accordingly, the action against defendant Gerald Marchese, Inc. must be dismissed in its entirety.

Conclusion

For the foregoing reasons, it is hereby

ORDERED that the motion by defendant Gerald Marchese, Inc. for summary judgment, seeking a dismissal of the claims under Labor Law §240(1), Labor Law §241(6), Labor Law §200, and common law negligence, asserted against defendant, is granted, such claims asserted against defendant Geraldo Marchese, Inc. are hereby severed and dismissed, and the clerk is directed to enter judgment in favor of defendant Geraldo Marchese, Inc. with regard to such claims; it is further

ORDERED that the motion by defendant New Palace Painters Supply Co. Inc., seeking court leave to amend its answer to assert a cross claim for common law contribution and indemnification against co-defendants Fran-Ju, Inc. and Geraldo Marchese, Inc., is denied in its entirety; and it is further

ORDERED that the motion by plaintiff for partial summary judgment on the issue of liability, based on defendants' violation of Labor Law §240(1), is granted, and the Clerk is directed to enter partial judgment in favor of said plaintiff on the issue of liability and against defendants Fran-Ju, Inc. and New Palace Painters Supply Co., Inc., respectively as owner and general contractor of the construction project.

This constitutes the Decision and Order of the Court.

Dated: October 27, 2006__________________________

Bronx, New YorkHon. Dianne T. Renwick, J.S.C.