Lopez v New York City Hous. Auth.

[*1] Lopez v New York City Hous. Auth. 2008 NY Slip Op 52094(U) [21 Misc 3d 1118(A)] Decided on October 21, 2008 Supreme Court, Kings County Schneier, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 21, 2008
Supreme Court, Kings County

Juan Lopez, Plaintiff,

against

New York City Housing Authority, and 4-A GENERAL CONTRACTING CORP., Defendants.



48985/03



ATTORNEYS FOR PLAINTIFF

JUAN LOPEZ

PAZER & EPSTEIN, P.C.

20 VESEY STREET, SUITE 700

NEW YORK, NEW YORK 10007

(212) 227-1212

ATTORNEYS FOR DEFENDANTS NEW YORK CITY HOUSING AUTHORITY AND

4-A GENERAL CONTRACTING CORP.

GARTNER, BLOOM & GREIPER, P.C.

ONE DAG HAMMARSKJOLD PLAZA

885 SECOND AVENUE

NEW YORK, NEW YORK 10017

(212) 759-5800

Martin Schneier, J.

This is a personal injury action to recover for workplace injuries sustained by plaintiff Juan Lopez (Lopez). Plaintiff moves, pursuant to CPLR Section 3212, for an Order granting plaintiff partial summary judgment on the grounds that the defendants are liable pursuant to Labor Law Section 240(1).

Background

Plaintiff was employed as a plumber by the third-party defendant, SNA Contracting Corp. (SNA). SNA was engaged in renovation work at 1200 Sutter Avenue, Brooklyn, NY. On January 7, 2003. Lopez was replacing a lead toilet drain at the time of the accident. Plaintiff was standing on an unsecured A-frame ladder using a sawzall to cut through the old drainpipe when, the ladder suddenly shifted and he fell sustaining injuries. Plaintiff commenced this action against the New York City Housing Authority, the owner of the premises and, 4-A General Contracting Corp., the general contractor, alleging, inter alia, violations of Labor Law Section 240 (1).

Discussion

The party moving for summary judgment has the initial burden of coming forward with admissible evidence that establishes the absence of a material issue of fact (CPLR 3212[b]; GTF Marketing, Inc. V. Colonial Aluminu, Sales, Inc., 66 NY2d 965, 968 [1985]). However, once the moving party has satisfied this obligation, the burden shifts; "the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action" (Zuckerman v. City of New York, 49 NY2d 557, 560 [1980]). "Mere conclusory assertions, devoid of evidentiary facts, are insufficient for this purpose, as is reliance upon surmise, conjecture, or speculation" (Morgan v. New York Telephone, 220 AD2d 728, 729 [2d Dept 1995]).

Labor Law Section 240(1) provides, in pertinent part, that: "All contractors and owners....who contract for but do not direct or control the work, in the erection, demolition....of a building or structure shall furnish or erect, or cause to be funished or erected for [*2]the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, irons, ropes and other devices which shall be so constructed, placed and operated as to give protection to a person so employed."

A violation of Labor Law Section 240(1) which proximately causes an employee to sustain an injury makes the owner and general contractor absolutely liable for the employees work-related injury(Sanatass v. Consolidated Investing Co., Inc., 10 NY3d 333 [2008]).

A fall from a ladder, is not, by itself, sufficient to impose liability under Labor Law Section 240(1) (Williams v. Dover Home Improvement, Inc., 276 AD2d 626 [2d Dept 2000]). On the other hand, the failure to secure a ladder to ensure that it remains "steady and erect" while a plaintiff is working on it, constitutes a violation of Labor Law Section 240(1) (Hernandez v Bethel United Methodist, 49 AD3d 251 [1st Dept. 2008], quoting Montalvo v J. Petrocelli Constr., Inc., 8 AD3d 173, 174 [1st Dept 2004]). Thus, a plaintiff may establish a prima facie case pursuant to Labor Law § 240(1) by showing "that he fell from an unsecured ladder, and that the failure to secure the ladder was the proximate cause of his injuries" (Granillo v. Donna Karen Co., 17 AD3d 531 [2d Dept 2005]).

In this case, Lopez has met his prima facie burden by establishing that he fell when the unsecured ladder upon which he was working slipped. The defendants have failed to demonstrate the existence of an issue of fact in their opposition to this motion (Ricciardi v. Janowitz Construction Corp., 49 AD3d 624, 625 [2d Dept. 2008]). Accordingly, the plaintiff's version of the material facts is undisputed.

Conclusion

Based on the foregoing, plaintiff Juan Lopez's motion for partial summary judgment on the issue of defendant's liability pursuant to Labor Law Section 240(1) is granted.

This constitutes the Decision and Order of the Court.

_______________________

J.S.C.



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