Portorreal v 2165 Bolton Assoc.

[*1] Portorreal v 2165 Bolton Assoc. 2007 NY Slip Op 52539(U) [18 Misc 3d 1132(A)] Decided on October 16, 2007 Supreme Court, Bronx County Billings, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2007
Supreme Court, Bronx County

Felix D. Portorreal, Plaintiff

against

2165 Bolton Associates and 2165 Bolton LLC, Defendants



21216/2005



For Plaintiff

Joseph Vozza Esq.

910 East Boston Post Road, Mamaroneck, NY 10543

For Defendants

Carol Morell Esq.

Margaret G. Klein & Associates

200 Madison Avenue, New York, NY 10016

Lucy Billings, J.

Plaintiff sues to recover for personal injuries sustained October 28, 2004, in a fall from a ladder while he was employed by nonparty N. Kofsky & Sons, which was hired to perform plumbing work on premises owned and managed by defendants. Plaintiff moves for summary judgment on his New York Labor Law § 240(1) claim against defendants. C.P.L.R. § 3212(b) and (e). For the reasons explained below, the court denies plaintiff's motion.

II.APPLICABLE STANDARDS

To obtain summary judgment, plaintiff must make a prima facie showing of entitlement to judgment as a matter of

law, through admissible evidence eliminating all material issues of fact. C.P.L.R. § 3212(b); JMD Holding Corp. v. Congress Fin. Corp., 4 NY3d 373, 384 (2005); Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 315 (2004); Giuffrida v. Citibank Corp., 100 NY2d 72, 81 (2003). If plaintiff satisfies this standard, the burden shifts to defendants to rebut that prima facie showing, by producing evidence, in admissible form, sufficient to require a trial of material factual issues. Hyman v. Queens County Bancorp, Inc., 3 NY3d 743, 744 (2004); Forrest v. Jewish Guild for the Blind, 3 NY3d at 315. In evaluating the evidence for purposes of plaintiff's motion, the court must accept defendants' version of the facts as true and construe the evidence in the light most favorable to defendants. Cahill v. Triborough Bridge & Tunnel Auth., 4 NY3d 35, 37 (2004); Forrest v. Jewish Guild for the Blind, 3 NY3d at 315. The court must deny summary judgment if plaintiff fails to meet his initial burden, despite any insufficiency in the opposition. Roman v. Hudson Tel. Assoc., 15 AD3d 227, 228 (1st Dep't 2005); Potter v. NYC Partnership Hous. Dev. Fund Co., Inc., 13 AD3d 83, 85 (1st Dep't 2004). [*2]

A failure to provide adequate safety devices to protect against elevation related hazards, as required by Labor Law § 240(1), imposes absolute liability on defendant owner of the worksite and on defendant's managing agent, if that failure proximately caused plaintiff's injury. Albanese v. City of New York, 5 NY3d 217, 219 (2005); Abbatiello v. Lancaster Studio Assoc., 3 NY3d 46, 50 (2004); Blake v. Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 287 (2003); Striegel v. Hillcrest Hgts. Dev. Corp., 100 NY2d 974, 977 (2003). Defendants thus are liable under Labor Law § 240(1) despite any lack of supervision or control over the worksite. Balbuena v. IDR Realty LLC, 6 NY3d 338, 361 n.8 (2006); Gordon v. Eastern Ry. Supply, 82 NY2d 555, 560 (1993); Dhillon v. Bryant Assocs., 306 AD2d 40 (1st Dep't 2003).

III.PLAINTIFF'S EVIDENCE

Plaintiff's fall from a wooden ladder, which broke as he stood on it to plaster gaps in a basement ceiling, resulted from an elevation related risk, against which the ladder failed to protect. Gordon v. Eastern Ry. Supply, 82 NY2d at 561; Potter v. NYC Partnership Hous. Dev. Fund Co., Inc., 13 AD3d at 84; Priestly v. Montefiore Med. Center/Einstein Med. Ctr., 10 AD3d 493, 494-95 (1st Dep't 2004); Crimi v. Neves Assoc., 306 AD2d 152, 153 (1st Dep't 2003). Plaintiff's deposition testimony, that defendants furnished the six foot A-frame ladder that broke, and the absence of evidence that any other safety devices were provided, in conjunction with the ladder, or that anyone was assigned to hold the ladder to prevent it from falling establish defendants' violation of Labor Law § 240(1). Perrone v. Tishman Speyer Props.,L.P., 13 AD3d 146, 147 (1st Dep't 2004); Pabon v. Alexander Bldg. Corp., 273 AD2d 130, 131 (1st Dep't 2000); Santamaria v. 1125 Park Ave. Corp., 249 AD2d 16, 17 (1st Dep't 1998); Rivera v. Dafna Constr. Co., Ltd., 27 AD3d 545 (2d Dep't 2006).

The fact that plaintiff was the only witness to his fall does not bar summary judgment in his favor on his Labor Law § 240(1) claim. Klein v. City of New York, 89 NY2d 833, 834-35 (1996); Perrone v. Tishman Speyer Props.,L.P., 13 AD3d at 147; Yurkovich v. Kvarner Woodworking, 289 AD2d 183, 184 (1st Dep't 2001); Cruz v. Turner Constr. Co., 279 AD2d 322, 323 (1st Dep't 2001). Questions regarding his credibility, whether the fall or injury occurred, or whether the fall proximately caused his injury do preclude summary judgment. Jones v. West 56th St. Assoc., 33 AD3d 551, 552 (1st Dep't 2006); Macchia v. Nastasi White, Inc., 26 AD3d 225, 226 (1st Dep't 2006); Potter v. NYC Partnership Hous. Dev. Fund Co., Inc., 13 AD3d at 85; Manna v. New York City Hous. Auth., 215 AD2d 335, 336 (1st Dep't 1995). The deposition testimony of Izzy Blitz, defendants' property manager, that their building superintendent possessed only an aluminum ladder, and defendants furnished neither the ladder plaintiff used nor any other equipment to plaintiff, however, does not raise material factual issues, as the ownership of the ladder from which he fell is inconsequential.

Plaintiff also urges the court to take judicial notice of the Workers' Compensation Board's determination that he sustained a work related injury to his right foot at least partially disabling him as of October 29, 2004. Yet plaintiff first raises this claim only in reply, which the court ordinarily may not consider. McNair v. Lee, 24 AD3d 159, 160 (1st Dep't 2005); Morris v. Solow Mgt. Corp., 8 AD3d 126, 127 (1st Dep't 2004); Jackson v. Bronx Lebanon Hosp. Ctr., 7 AD3d 356, 357 (1st Dep't 2004); Leeds v. Lenox Hill Hosp., 6 AD3d 232 (1st Dep't 2004). Even were the court to consider the Workers' Compensation Board's determination, it does not collaterally estop this court from reaching a different conclusion, since defendants were not parties to the Board's proceedings. Falsitta v. Metropolitan Life Ins. Co., 279 AD2d 879, 880 (3d Dep't 2001); Caiola v. Allcity Ins. Co., 257 AD2d 586, 587-88 (2d Dep't 1999). See Vogel v. Herk El. Co., 229 AD2d 331, 332-33 (1st Dep't 1996); McRae v. Sears, Roebuck & Co., 2 AD3d 419 (2d Dep't 2003); Singh v. Congregation Bais Avrohom K'Krula, 300 AD2d 567, 568 (2d Dep't 2002); Rigopolous v. American Museum of Natural History, 297 AD2d 728, 729 (2d Dep't 2002).

IV.DEFENDANTS' REBUTTAL A.Whether Plaintiff's Fall or Injury Occurred or the Fall Caused His Injury[*3]

Although plaintiff testified at his deposition that he reported his fall to his employer's job foreman, Ramon Morales, affidavits by both Morales and Victor Rivera, the employer's plumbing foreman, deny that plaintiff ever reported to them that he fell from a ladder. This evidence of plaintiff's failure to report his fall from the ladder to his supervisors raises issues as to his credibility, see Holt v. Welding Servs., 264 AD2d 562, 563 (1st Dep't 1999); Barber v. Kennedy Gen. Contrs., 302 AD2d 718, 719 (3d Dep't 2003), and whether the alleged fall, the basis for his Labor Law § 240(1) claim, was the proximate cause of his alleged injury. Antenucci v. Three Dogs, LLC, 41 AD3d 205, 206 (1st Dep't 2007); Jones v. West 56th St. Assoc., 33 AD3d at 552. Upon a summary judgment motion, the court may not resolve the credibility issues raised by the inconsistencies between plaintiff's account and the accounts by Rivera and Morales. Macchia v. Nastasi White, Inc., 26 AD3d at 225-26; Woszczyna v. BJW Assoc., 31 AD3d 754, 755 (2d Dep't 2006). See Rivera v. Dafna Constr. Co., Ltd., 27 AD3d at 546; Barber v. Kennedy Gen. Contrs., 302 AD2d at 719.

Morales and Rivera also observed no breakage, debris or clutter on the floor where plaintiff claims he fell, or other indication of a mishap, raising further factual issues whether the fall occurred. Manna v. New York City Hous. Auth., 215 AD2d at 336; Antunes v. 950 Park Ave. Corp., 149 AD2d 332, 333 (1st Dep't 1989). See Perrone v. Tishman Speyer Props., L.P., 13 AD3d at 147. In fact plaintiff admitted at his deposition that he continued working after he fell and did not seek medical treatment until two months afterward. Faced with this accumulation of evidence raising these factual issues, plaintiff's lone account of his fall as the only witness to it fails to gain him summary judgment on his § 240(1) claim. Jones v. West 56th St. Assoc., 33 AD3d at 551-52; Macchia v. Nastasi White, Inc., 26 AD3d at 225-26; Manna v. New York City Hous. Auth., 215 AD2d at 335-36; Antunes v. 950 Park Ave. Corp., 149 AD2d at 333. B.Whether Plaintiff Was a Recalcitrant Worker

Defendants further urge that plaintiff was a recalcitrant worker in failing to use the ladders N. Kofsky & Sons provided. Disobedience of a specific directive ordinarily is required to support a recalcitrant worker defense to a Labor Law § 240(1) claim. Cahill v. Triborough Bridge & Tunnel Auth., 4 NY3d at 40. Absent disobedience to a specific directive, defendants must establish that plaintiff's failure to use necessary, safe equipment that plaintiff knew was available and necessary was the sole proximate cause of his injury. Robinson v. East Med. Ctr., L.P., 6 NY3d 550, 554-55 (2006); Montgomery v. Federal Express Corp., 4 NY3d 805, 806 (2005); Miro v. Plaza Constr. Corp., 38 AD3d 454, 455 (1st Dep't 2007).

Defendants present evidence that only N. Kofsky & Sons furnished the ladders for the work, which were metal framed, and that plaintiff knew his employer furnished those ladders. Defendants fail, however, to present any evidence that anyone instructed plaintiff to use the ladders N. Kofsky & Sons provided or forbear from using ladders other than the ones it provided or that plaintiff even knew where his employer's ladders were. Walls v. Turner Constr. Co., 10 AD3d 261, 262 (1st Dep't 2004), aff'd, 4 NY3d 861 (2005); Beamon v. Agar Truck Sales, Inc., 24 AD3d 481, 483 (2d Dep't 2005). Nor have defendants shown that he knew the ladder he used, which was the only one in his work area, was inadequate or unsafe for his assigned task, such that his failure to use other equipment constituted the sole proximate cause of his injury. See Robinson v. East Med. Ctr., L.P., 6 NY3d at 553; Montgomery v. Federal Express Corp., 4 NY3d at 806; Miro v. Plaza Constr. Corp., 38 AD3d at 455.

V.CONCLUSION

Nonetheless, since defendants have presented evidence raising factual issues to rebut plaintiff's showing of entitlement to summary judgment on his Labor Law § 240(1) claim, the court denies his motion for that relief. C.P.L.R. § 3212(b).

DATED: October 16, 2007

_____________________________ [*4]

Lucy Billings, J.S.C.