Suquitana v WCI Communities, Inc.

[*1] Suquitana v WCI Communities, Inc. 2007 NY Slip Op 51136(U) [15 Misc 3d 1144(A)] Decided on June 1, 2007 Supreme Court, Westchester County Smith, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 1, 2007
Supreme Court, Westchester County

Severo Suquitana, Plaintiff,

against

WCI Communities, Inc., Lake Grove Home & Land Company, LLC, FM Home Improvement, Inc. and Prata Construction, LLC, Defendants.



5798/06



Law Offices of Paul I. Marx

Attys. For Pltf.

One North Lexington Avenue

White Plains, New York 10601

Landman Corsi Ballaine & Ford

Attys. For Defts. WCI Communities; Lake Grove Home;

FM Home Improvement

One Gateway Center, 4th fl.

Newark, New Jersey 07104

Barry, McTiernan & Wedinger

Attys. For Deft. Prata Construction

1024 Amboy Avenue

Edison, New Jersey 08837

Mary H. Smith, J.

Upon the foregoing papers, it is Ordered and adjudged that this motion by plaintiff for partial summary judgment on the issue of liability under Labor Law Section 240 is disposed of as follows:

This is an action to recover for personal injuries allegedly sustained by plaintiff sounding in negligence and Labor Law. On November 15, 2005, a construction and/or renovation project known as Encore Lake Grove at premises owned by defendant WCI Communities, Inc. ("WCI"), was underway. WCI [*2]had contracted with defendant FM Home Improvement, Inc. ("FM") for the latter to perform siding and roofing at the work site. FM thereafter had subcontracted approximately 80 percent of the roofing and siding job out to defendant Prata Construction, LLC ("Prata"). Prata further had subcontracted this work to third-party defendants Yuri's Construction ("Yuri"), who in turn further had subcontracted the work to non-party Johan Construction, plaintiff's employer.

According to plaintiff's examination before trial testimony, at the time of his accident, he had been working for Juan Paucar, the owner of Johan Construction, for approximately three to four months, and at the Lake Grove project for approximately two to three weeks prior to his accident. On November 15, 2005, it had been drizzling and he was installing a weather shield on the roof. According to plaintiff, there were two extension ladders available from his employer at the site; one of the ladders was for Mr. Paucar, who was working in a different area from plaintiff; the other extension ladder plaintiff had been divided in half, each half to be used by himself and another employee. Plaintiff had testified that he had placed a scrap piece of the wood on the ground before placing his half of the ladder, unsecured, on top of it, so as to prevent his ladder section from sinking into the dirt. Plaintiff had given conflicting testimony as to whether his ladder, which had extended to just past the roof, had rubber shoes.[FN1] Plaintiff denied that he specifically had been instructed to secure the top of the ladder to the building and not to separate the extension ladder into sections. Plaintiff also had testified that no one had directed him to place wood under the extension ladder section he was using. When plaintiff previously had climbed up using this one-half section of the extension ladder, he had testified that he had not experienced shaking. Immediately prior to his fall, plaintiff had testified that he had moved his ladder section side-to-side to check that it did not move.

As plaintiff was ascending the ladder for the second time that morning, he had testified that the ladder had moved to the side, causing him to fall. There apparently were no eyewitnesses to the fall. Although plaintiff had admitted that [*3]he previously had been instructed "to make sure that [he] was tied up," "secure," and that he had been directed to use safety equipment as well as specifically instructed to put a line on the roof, and that he always would strap himself in when he was on top of the roof, he claims that he was not using safety equipment at the time of this fall because the area where he was working "was simply a small porch."

Plaintiff presently is moving for partial summary judgment on te issue of liability on his cause of action alleging a violation of Section 240, subdivision 1 of the Labor Law. It is plaintiff's contention, supported by the deposition testimony of WCI's Director of Safety and Risk Management, Richard K. Ward, and Fernando Martell, president of Prata, that the ladder that had been used by plaintiff at the time of his fall was unsafe and defective, failing to provide adequate protection against a fall, and violating both OSHA regulations and WCI's Rules and Regulations; specifically, the extension ladder had been too short, it did not have proper footings and it had not been tied off at the top. Plaintiff submits that because he fell from an elevated height at a construction site due to the absence of any safety device that would have prevented or broken his fall, he is entitled as a matter of law to judgment against defendants. Plaintiff seeks "An immediate trial on the issue of damages only ..."

Defendant Prata and defendants WCI, Lake Grove Home & Land Company, LLC and FM Home Improvement, Inc. (collectively "WCI") separately vigorously oppose plaintiff's motion. Firstly, said defendants note that if plaintiff is seeking an immediate trial on his damages, than it would appear that he is waiving all of the other asserted causes of action and an appropriate dismissal Order should be entered with respect thereto.

Defendants Prata and WCI also contend that this motion is premature because their third-party actions against Yuri were only recently commenced, with service having been effected by FM in its third-party action on March 6, 2007.[FN2] Defendants claim that they have the right to proceed with discovery in their respective third-party actions and that Yuri has important evidence regarding the circumstances of plaintiff's accident, specifically with respect to whether plaintiff had jumped from [*4]the roof as opposed to falling off of the ladder, as Fernando Martelo, owner of Prata, had testified had been related to him by "Juan Pauta", who may work for or own Yuri. If indeed plaintiff had jumped off of the roof, for which defendants argue they have a good faith belief, then there is no basis for imposing Section 240 liability, according to defendants.

Further, defendants maintain that issues of fact precluding judgment exist as to whether plaintiff had been provided with a defective safety device whose failure was the proximate cause of his accident, whether plaintiff was a recalcitrant worker who is not entitled to the benefits of Labor Law Section 240 and whether plaintiff's own actions were the sole proximate cause of his fall. In support of these arguments, said defendants argue that the record discloses that plaintiff had been furnished with a ladder, which he himself improperly had separated into two halves, in violation of OSHA rules and regulations, and placed upon scrap pieces of wood, and that he has failed to establish that the ladder itself had any defect which was a substantial factor in causing his fall. According to Prata's attorney, the fact that the extension ladder had been divided in half "had nothing to do with the feet of the ladder or its alleged improper placement." Since there is an issue of fact as to whether plaintiff had been provided with proper protection, defendants maintain that summary judgment must be denied.

Further dictating against a finding of liability, defendants urge, is that WCI's Director of Safety and Risk Management, Mr. Ward, had testified that Juan Pauta, who had been identified to him as being plaintiff's supervisor, had advised Mr. Ward that plaintiff, shortly before his accident, had been advised by Pauta to secure the ladder that he was using and to drive nails on either side of it so as to prevent it from slipping to either side, that plaintiff unilaterally had determined not to do so, and also that plaintiff had opted not to use a harness, as required. Thus, defendants submit, whether plaintiff had jumped from the roof or he had failed to undertake the safety precautions he had been directed to take, Labor Law Section 240 was not violated because the sole proximate cause of plaintiff's accident was his own actions.

Finally, defendant Prata argues that plaintiff has not demonstrated entitlement to judgment against it because plaintiff has failed to establish that Prata was an agent of the owner or contractor, having the requisite authority to control and supervise the work, which renders it liable as a statutory [*5]agent under Section 240. Prata argues that the record supports the finding that it had subcontracted the roofing work to Yuri and that Prata had not been at the work site at the time of plaintiff's accident. Moreover, Prata contends that it did not furnish the equipment, ladders or materials used at the work site and that there is no evidence in the record that it had controlled the work site or had any authority to insist that safety precautions be taken with respect to plaintiff's work. Indeed, Prata notes that the agreement between it and FM expressly states that the relationship is not to be construed as one of principal and agent of the contractor.

Defendants WCI, which have interposed cross-claims against defendant Prata, however, disputes Prata's position that it does not have any liability under Labor Law Section 240 because it was not an agent of the general contractor or owner. Rather, WCI contends that pursuant to Prata's contract with FM and its subcontract with Yuri, Prata had obtained the authority to supervise and control the work that had been performed by plaintiff.

Initially, this Court finds that plaintiff, by the making of this motion, has not waived his other causes of action; since this Court is granting plaintiff's motion for summary judgment on the issue of liability under Labor Law Section 240, see infra, all of the remaining pleaded causes of action which are not otherwise hereinafter dismissed by further Court Order, shall be tried as to liability, followed thereafter by a trial on all damages, including those arising from defendants' violation of Labor Law Section 240.Plaintiff is directed to file his Note of Issue and Certificate of Readiness within thirty (30) days after the date hereof. The parties thereafter shall await notice from the Central Calendar Part as to their scheduled appearance date.

The Court declines at this time to sever the third-party actions. As previously observed, third-party defendant Yuri presently is in default in both the first and second third-party actions. Third-party plaintiffs, for reasons not herein explained, have not moved for entry of default judgments against third-party defendants Yuri.[FN3] In the event that third-party plaintiffs move forthwith for entry of default judgments, and [*6]said motions ultimately are denied and third-party defendant Yuri interposes its answers, third-party plaintiffs are expressly granted the right to renew their requests at that time for severance of the third party actions so as to conduct discovery.

This Court also rejects defendants' arguments that the absence of discovery in the third-party actions warrants denial of plaintiff's instant summary judgment motion as premature. Before a party may resort to CPLR 3212, subdivision (f), the party must demonstrate that the proof is within the exclusive knowledge of the moving party, that the opposing claims are supported by something other than mere conjecture, suspicion or surmise, and that the party has at least made some attempt to discover facts at variance with the moving party's proof. See Chemical Bank v. Pic Motors Corp., 58 NY2d 1023, 1026 (1983); Denkensohn v. Davenport, 130 AD2d 860, 861 (3rd Dept. 1987); Rios v. Metropolitan Transportation Authority, 6 Misc 3d 1006(A) (Sup. Ct. 2004); see, also Davidson v. E.Q.K. Green Acres, LP., 298 AD2d 546 (2nd Dept. 2002).

Here, defendants have done nothing to establish the truthfulness of the critical and potentially dispositive assertion that plaintiff had jumped from the roof. See Chemical Bank v. Pic Motors Corp., supra, 58 NY2d 1023. Notably absent from defendants' opposition papers is a sworn statement from Juan Pauta, the person who allegedly had advised Fernando Martelo, the owner of Prata, that plaintiff had jumped from the roof of the building; nor have defendants proffered any explanation for their failures to have obtained said sworn statement. Defendants also have not explained why this person alternatively had not been subpoenaed to testify, notwithstanding the age of this action and the fact that a number of depositions were conducted between November, 2006 and January, 2007. "Summary judgment may not be defeated on the ground that more discovery is needed where, as here, the side advancing such an argument has failed to ascertain the facts due to its own inaction." Meath v. Mishrick, 68 NY2d 992 (1986). Necessarily then, this Court must conclude that defendants have woefully failed to demonstrate entitlement to the benefit of CPLR 3212, subdivision (f).

Addressing the merits of the motion, Labor Law Section 240, subdivision 1, often referred to as the "scaffold law," provides that:

All contractors and owners and their agents ... in [*7]

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.

This statute was specifically enacted to ensure that employees performing construction-related activities are protected from injuries through the providing of proper safety devices. See Joblon v. Solow, 91 NY2d 457, 463 (1998). It is well-settled that the failure to provide appropriate protective devices for workers at an elevated work site, irrespective of any duty to supervise or control over the work site, establishes an owner or contractor's absolute liability as a matter of law. See Labor Law Section 240, subd. 1; Ross v. Curtis-Palmer Hydro-Electric Co., supra, 81 NY2d 494, 500-501; Rocovich v. Consolidated Edison Co., 78 NY2d 509, 513 (1991); Zimmer v. Chemung County Performing Arts, 65 NY2d 513, 521-523 (1985); Smith v. Xaverian High School, 270 AD2d 246, 247 (2nd Dept. 2000).

It is equally well-settled that absolute liability is imposed only where the failure to provide any safety devices was a proximate cause of plaintiff's injury. See Felker v. Corning Inc., 90 NY2d 219, 225 (1997); Gordon v. Eastern Railway Supply, Inc., 82 NY2d 555, 559-560 (1993); Welsh v. County of Albany, 235 AD2d 820 (3rd Dept. 1997). Proximate cause is demonstrated where the plaintiff generally shows that the defendant's negligence was a substantial cause of the events that produced the injury. See Gordon v. Eastern Railway Supply, Inc., supra. Although any purported contributory or comparative negligence of the plaintiff is not a defense in an action brought under the statute, a Labor Law Section 240, subdivision 1, cause of action will not stand where the plaintiff's own conduct was the sole proximate cause of his injury. See Robinson v. East Med. CTR., 6 NY3d 550 (2006); Weininger. Hagedorn, 91 NY2d 958 (1998), rearg. den., 92 NY2d 875 (1998); Allen v. Village of Farmingdale, 282 AD2d 485, 486 (2nd Dept. 2001).

A defendant owner or contractor also may escape Labor Law Section 240 liability based upon the so-called recalcitrant [*8]worker defense, which is premised on the notion that the statutory protection does not extend to workers who have adequate and safe equipment available to them but refuse to use same, or where the worker had disregarded an "immediate instruction to use a harness or other actually available safety device." However, the safety devices must be immediately available and visibly apparent to the worker, or actually in place, not merely present at the work site, see Zimmer v. Chemung County Performing Arts, Inc., supra, 65 NY2d at 524; McGuire v. State of New York, 273 AD2d 822 (4th Dept. 2000); Powers v. Lino Del Zotto and Son Builders, Inc., 266 AD2d 668 (3rd Dept. 1999), and a worker does not become recalcitrant merely by disobeying a general instruction not to use certain equipment, if safer alternatives are not supplied. See Gordon v. Eastern Ry. Supply, 82 NY2d 555 (1993); Stolt v. General Foods Corp., 81 NY2d 918, 920 (1993). The First Department recently had noted in this regard,

Several recent unanimous decisions of the Court

of Appeals establish that, under this principle, a

plaintiff who knowingly chooses to use defective or

inadequate equipment, notwithstanding being aware

that he or she could request or obtain proper

equipment, has no claim under Labor Law §240(1).

In this case, the uncontroverted evidence establishes

that plaintiff recognized the undesirability

of the fireproofing material on his ladder, knew

full well that he could have requested that

his employer provide him with a new, clean

ladder, and yetfor no apparent good reason

chose not to make such a request. Thus, plaintiff's

decision not to request a new ladder, not any

violation of Labor Law § 240(1), was the sole

proximate cause of his accident.

Miro v. Plaza Const. Corp., 38 AD3d 454 (1st Dept. 2007).

Applying the foregoing principles to the action at bar, the Court grants plaintiff's motion for partial summary judgment on the issue of liability on his claim asserting a violation of Labor Law Section 240, subdivision 1. The Court finds that plaintiff prima facie has demonstrated entitlement to judgment thereon and that defendants have failed to raise any question of fact regarding whether plaintiff had been provided with adequate safety devices or that same were made available to him, absent which the claims that plaintiff was a recalcitrant employee and [*9]that his own actions were the sole proximate cause of his fall are utterly inapplicable and devoid of merit. The sine qua non of a viable recalcitrant worker defense and defense that a worker's own acts were the sole proximate cause of his accident is that the worker had refused to use adequate and available safety device. Inescapable here is the compelling and dispositive fact that an appropriate, intact ladder had not been furnished or made available to plaintiff at the time of his accident. Indeed, there is no proof in the record at bar that other appropriate, intact ladders, or indeed that any other safety device, had been readily available to plaintiff at the time. Cf. Marin v. Levin Props., LP, 28 AD3d 525 (2nd Dept. 2006); Palacios v. Lake Carmel Fire Dept., Inc., 15 AD3d 461 (2nd Dept. 2005). Thus, the fact that plaintiff imprudently had split the only available extension ladder for his and a co-employee's use, and had failed to undertake proper measures to secure same, contrary to instructions given to him, go simply to the issue of his comparative negligence, which is irrelevant to a Labor Law Section 240 claim. See Williams v. 520 Madison Partnership, 38 AD3d 464 (1st Dept. 2007); Miraglia v. H & L Holding Corp., 36 AD3d 456 (1st Dept. 2007).

Moreover, while defendants make much of the additional facts that plaintiff had failed to secure his ladder by driving nails on either side of it and that he had failed to tie it off at the top [FN4], as he allegedly had been instructed to do, defendants' own witnesses had testified that the use of sections of an extension ladder violated OSHA standards and was patently improper, and that same could not be made safe by simply securing same. Notably absent from defendants' submissions is an expert's affidavit opining that the ladder section used by plaintiff constituted a "safety device" within the meaning of the statute. Any instruction by the employer or owner to plaintiff regarding how he was to use the ladder section does not constitute a "safety device in the sense that plaintiff's failure to comply with the instruction is equivalent to refusing to use available, safe and appropriate equipment. (Emphasis supplied)." Gordon v. Eastern Ry. Supply, 82 NY2d 555, 563 (1993). [*10]

Accordingly, since defendants in the first instance had not furnished plaintiff with, or made immediately available to him, a proper safety device to perform his work under Labor Law Section 240, as they were statutorily required to do, they necessarily had breached this absolute liability statute, proximately causing plaintiff's fall, and as a matter of law they are liable therefore.Finally, the Court rejects Prata's contention herein that plaintiff has failed to demonstrate that it was an agent of the owner or contractor subject to liability under Labor Law Section 240. It is well settled that liability under that statute may be imposed not only against contractors and owners but against those persons who have been delegated the authority to supervise and control the work so as to enable them to avoid or correct unsafe conditions, thereby making themselves statutory agents of the owners and contractors. See Russin v. Picciano & Son, 54 NY2d 311, 317-318 (1981); Bopp v. A.M. Rizzo Elec. Contractors, Inc., 19 AD3d 348 (2nd Dept. 2005); Everitt v. Nozkowski, 285 AD2d 442 (2nd Dept. 2001). Thus, the duties of a contractor and owner may be delegated, see Page v. La Buzzetta, 73 AD2d 483 (3rd Dept. 1980), lv. to app. dsmd. 51 NY2d 769 (1980), and "where the work giving rise to these duties has been delegated to a third party, that third party then obtains the concomitant authority to supervise and control that work and becomes a statutory agent' of the owner or general contractor." Russin v. Picciano & Son, supra, 54 NY2d 311. Here, since it is not disputed that Prata had the authority to subcontract out its roofing commitment to FM, and that it in fact had done so, having subcontracted with Yuri, as a matter of law, it had the authority to exercise control over the work, even if it did not actually do so. See Williams v. Dover Home Improvement, 276 AD2d 626 (2nd Dept. 2000); see, also Futo v. Brescia Bldg. Co., Inc., 302 AD2d 813 (3rd Dept. 2003).

Dated: June 1, 2007

White Plains, New York

_________________________________

MARY H. SMITH

J.S.C. Footnotes

Footnote 1:Richard Ward, the witness for defendant WCI, had testified that photographs of the ladder section plaintiff had been using at the time of his fall did not depict its having rubber feet.

Footnote 2:No proof of service relating to Prata's third-party action Yuri appears in the record at bar. No answers to the third-party actions have been interposed by Yuri.

Footnote 3:Plaintiff has asserted in his reply that third-party defendant Yuri's putative insurance carrier has disclaimed coverage and commenced a declaratory judgment action.

Footnote 4:In any event, there is additional evidence at bar that the ladder section that had been used by plaintiff was too short to be properly tied off.