Julien v New Greenwich Gardens Assoc., LLC

[*1] Julien v New Greenwich Gardens Assoc., LLC 2008 NY Slip Op 52324(U) [21 Misc 3d 1132(A)] Decided on November 19, 2008 Supreme Court, Kings County Battaglia, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2008
Supreme Court, Kings County

Bellande Julien, Plaintiff,

against

New Greenwich Gardens Associates, LLC, Defendant. NEW GREENWICH GARDENS ASSOCIATES, LLC, Third-Party Plaintiff, JERRICK ASSOCIATES, INC. and GREAT AMERICAN E & S INSURANCE COMPANY, Third-Party Defendants.



27360/06



Plaintiff Bellande Julien was represented by Nussin S. Fogel, Esq. Defendant New Greenwich Gardens Associates, LLC was represented by Christopher B. Hitchcock, Esq. and John W. Hanson, Esq. of Hitchcock and Cummings, LLP. Third-party defendant Jerrick Associates, Inc. was represented by Alison Diamonstein, Esq. of L'Abbate, Balkan, Colavita & Contini.

Jack M. Battaglia, J.

Plaintiff Bellande Julien moves for an order, pursuant to CPLR 3212, granting him summary judgment on a cause of action alleging violation of Labor Law § 240(1), the Scaffold Law. Defendant New Greenwich Gardens Associates, LLC ("New Greenwich") likewise moves pursuant to CPLR 3212, seeking summary judgment dismissal of Plaintiff's Verified Complaint. Third-party defendant Jerrick Associates, Inc. opposes Plaintiff's motion, and supports New Greenwich's motion.

Initially, it should be noted that Plaintiff fails to attach copies of all of the pleadings as required by CPLR 3212(b), which would require denial of his motion. However, since a complete set of pleadings can be assembled from all of the motion papers submitted by all the parties, the Court will overlook the defect pursuant to its discretion under CPLR 2001. (See [*2]Welch v Hauck, 18 AD3d 1096, 1098 [3d Dept 2005].)

On April 24, 2006, plaintiff Bellande Julien, a demolition worker employed by third-party defendant Jerrick Associates, Inc. ("Jerrick"), allegedly sustained personal injuries when a scaffold collapsed outside the sixth floor of a building owned by defendant New Greenwich Garden Associates, LLC ("New Greenwich"). In his motion, Plaintiff contends that he is entitled to summary judgment on the issue of liability against defendant New Greenwich based upon Labor Law § 240(1), which 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."

The statute "protects workers from elevation-related hazards when they are injured while involved in [the] enumerated work activities, including the demolition or alteration of a building or structure." (Panek v County of Albany, 99 NY2d 452, 455 [2003].) The statute "applies to both falling worker' and falling object' cases." (Narducci v Manhasset Bay Associates, 96 NY2d 259, 267 [2001].)

Although the statute imposes "strict" or "absolute" liability of a type (see Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d 280, 286-89 [2003]), "an accident alone does not establish a Labor Law § 240 (1) violation or causation" (id., at 289.) "[A] fall from a scaffold does not establish, in and of itself, that proper protection was not provided, and the issue of whether a particular safety device provided proper protection is generally a question of fact for the jury." (Alava v City of New York, 246 AD2d 614, 615 [2d Dept 1998].) However, Plaintiff may establish prima facie entitlement to summary judgment where "the scaffold collapses, slips or otherwise fails to perform its function of supporting the workers and their materials." (See Beesimer v Albany Avenue/Route 9 Realty, Inc., 216 AD2d 853, 854 [3d Dept 1995]; see also Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d at 289 fn8; Panek v County of Albany, 99 NY2d at 458.) "Proof of a collapse of a safety device constitutes a prima facie showing that the statute was violated and that the violation was a proximate cause of the worker's injury, thereby establishing the claimant's entitlement to judgment as a matter of law on the issue of liability." (Dos Santos v State of New York, 300 AD2d 434, 434 [2d Dept 2002]; see also Denton v Valkenburg, 13 AD3d 931, 931-32 [3d Dept 2004]; Adino v BFC Partners, L.P., 303 AD2d 338, 339 [2d Dept 2003].)

In support of his motion, Plaintiff proffers the pleadings and his own affidavit. Defendant New Greenwich's Answer establishes that New Greenwich owned the building at the time of the [*3]accident.

In his affidavit, Plaintiff avers that, on the day of the accident, he and another worker were on a motorized scaffold, removing windowsills. The scaffold was 34 feet long, and had buckets at each end where each worker was positioned. The "regular routine" was to remove the windowsills from the outside of the building and stack the sills, which were heavy, side by side in the middle of the scaffold's platform. Plaintiff avers that his supervisor at Jerrick instructed him to stack the windowsills side by side in the middle of the scaffold. The accident occurred when Plaintiff and his coworker attempted to lower the scaffold in order to remove the windowsills that had accumulated on the platform. As they began to attempt to lower the scaffold, it became stuck on the wall nearest Plaintiff's coworker. Plaintiff exited his bucket, and walked across the platform to his coworker's bucket. Plaintiff then attempted to kick off the wall in an attempt to release the scaffold, but the scaffold did not move. As Plaintiff walked back to his own bucket on the other side of the platform, he heard a noise and the platform collapsed, "bending in the middle towards the ground." Plaintiff "fell onto the scaffold platform, landing on his back and head, and ending up with [his] feet higher than [his] head."

Since Plaintiff establishes that the scaffold's platform collapsed while he was performing his work, Plaintiff sufficiently demonstrates prima facie that defendant Greenwich Gardens violated Labor Law § 240(1) in that the scaffold was "not so constructed, placed and operated as to give proper protection" to him. (See Labor Law § 240[1]; Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d at 289 fn8; Panek v County of Albany, 99 NY2d at 458; see also Denton v Valkenburg, 13 AD3d at 931-32; Adino v BFC Partners, L.P., 303 AD2d at 339; Dos Santos v State of New York, 300 AD2d at 434; Beesimer v Albany Avenue/Route 9 Realty, Inc., 216 AD2d at 854.)

In opposition to Plaintiff's motion and in support of New Greenwich's motion for summary judgment dismissal of Plaintiff's Complaint, defendant New Greenwich and third-party defendant Jerrick contend, among other things, that Plaintiff's deposition testimony contradicts Plaintiff's affidavit regarding whether the scaffold collapsed; that Plaintiff's conduct with the sole proximate cause of the accident; and that Labor Law § 240(1) is not applicable since Plaintiff did not fall from the scaffold, but rather fell on the scaffold.

Defendant New Greenwich and Jerrick contend that Plaintiff's affidavit and deposition testimony differ in that in his affidavit Plaintiff avers that the scaffold "collapsed", whereas he does not use the word "collapse" in his deposition testimony. At his first deposition, Plaintiff, who testified through a Creole interpreter, stated that the scaffold "bent then I fell on my back." At his second deposition, which was also through a Creole interpreter, Plaintiff testified that "[w]hen I was in on my way to the basket, the scaffold fall" and that "[i]t fall in the middle and I fell." Contrary to New Greenwich's and Jerrick's position, Plaintiff's version of how the accident occurred was consistent at both of his depositions, as well as in his affidavit. In any event, Plaintiff need not use the word "collapse" as long as he demonstrates that the scaffold was "not so constructed, placed and operated as to give [him] proper protection" (see Labor Law § [*4]240[1].)

In opposition to Plaintiff's motion and in support of New Greenwich's motion for an order granting it summary judgment dismissal of Plaintiff's Complaint, New Greenwich and Jerrick contend that Labor Law § 240(1) is inapplicable since Plaintiff fell on the scaffold, and not from the scaffold.

"Labor Law § 240(1), which addresses the need for proper protective scaffolding, is applicable to a situation where the scaffolding prove[s] inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person.' " (Gramigna v Morse Diesel, Inc., 210 AD2d 115, 115 [1st Dept 1994][ quoting Ross v Curtis-Palmer, 81 NY2d 494, 501 (1993)].) "The fact that the injured plaintiff never fell off the platform is of no moment as long as the injury resulted from an elevation-related hazard." (Prekulaj v Terano Realty, Inc., 235 AD2d 201, 202 [1st Dept 1997]; see also Pesca v City of New York, 298 AD2d 292, 293 [1st Dept 2002]; Lacey v Turner Construction Co., 275 AD2d 734, 735 [2d Dept 2000]; Dominguez v Lafayette-Boynton Housing Corp., 240 AD2d 310, 312 [1st Dept 1997].) In determining whether an injury has resulted from an elevation-related hazard, the Court is mindful that Labor Law § 240 is meant to be "construed as liberally as may be for the accomplishment of the purpose for which it was thus framed." (See Gramigna v Morse Diesel, Inc., 210 AD2d at 116 [quoting Quigley v Thatcher, 207 NY 66, 68 [1912]; see also Dominguez v Lafayette-Boynton Housing Corp., 240 AD2d at 312.)

In Franklin v Dormitory Authority of the State of New York (291 AD2d 854, 854 [4th Dept 2002]), for example, the plaintiff was injured after he stepped onto a plank that "went up in the air," and he "fell backward but was prevented from falling to the ground because his left leg became entangled in the scaffolding." The Court held that "Labor Law § 240(1) applies to this accident because it was caused by the failure of a scaffold while plaintiff was working at a height, even though plaintiff did not fall to the ground" (Id. [quoting Adams v North-Star Constr. Co. 949 AD2d 1001, 1002 (4th Dept 1998)]), and that his "injury was proximately caused by the failure of a safety device to afford him proper protection from an elevation-related risk."(Franklin v Dormitory Authority of the State of New York, 291 AD2d at 854.)

In Adams v North-Star Constr. Co.(249 AD2d at 1002), the plaintiff was "standing on the plywood platform of a scaffold six feet above a cement floor when he heard the plywood crack' and felt it give way beneath him." His foot went through the plywood, causing him to lose his balance. His body hit the wall, and he landed on the scaffold. Even though he did not fall to the ground, the plaintiff was granted summary judgment on his Labor Law § 240(1) cause of action because Plaintiff established that the scaffold was not "so constructed, placed and operated as to give proper protection." (See id., quoting Labor Law § 240[1].)

In Lacey v Turner Construction Co. (275 AD2d at 735), the plaintiff injured his back when an unsecured ladder moved and lost contact with the wall. The Court found that it was "irrelevant" that the plaintiff did not actually fall from the ladder since "the harm directly [*5]flow[ed] from the application of the force of gravity to an object or person." (Id. [citations and initial quotations omitted].)

In Dominguez v Lafayette-Boynton Hous. Corp. (240 AD2d at 310-11), a case similar to this one, the plaintiff and a co-worker were working on a motorized scaffold which, for the work to be performed, needed to be raised to the 19th floor. On the 5th floor, an air conditioning unit protruded from the building and obstructed the path of the scaffold. In order to avoid the air conditioner, the plaintiff and his co-worker kicked the scaffold outward three feet, and then used the motor to propel the scaffold around and above the air conditioner. The plaintiff sustained an injury to his wrist when in doing this maneuver, the scaffold swung back and smashed into the air conditioner.

The court granted the plaintiff's summary judgment motion based upon Labor Law § 240(1), finding that the plaintiff's injury resulted from an elevation-related hazard. In this regard, the court found that the effects of gravity caused the scaffold to smash into the air conditioner. (See also generally Gomez v 2355 Eighth Avenue, LLC, 45 AD3d 493, 493 [1st Dept 2007] [Plaintiff granted summary judgment on his Labor Law § 240(1) cause of action "when a temporary platform of plywood pieces laid across floor beams gave way under his weight, dropping him between the beams to shoulder level, with his feet dangling in the air above the basement floor"]; Cordero v Kaiser Organization, Inc., 288 AD2d 424, 425 [2d Dept 2001] [Plaintiff granted summary judgment on his Labor Law § 240(1) cause of action where he was not provided with any type of safety device and lost his balance and fell between beams, but did not fall to the ground]; Bennion v Goodyear Tire & Rubber Co., 229 AD2d 1003, 1003 [4th Dept 1996][ Plaintiff granted summary judgment on his Labor Law § 240(1) cause of action where Plaintiff lost his balance, fell three to four feet from a rafter, his right foot went through a ceiling panel, and he landed straddling the rafter].)

Here, Plaintiff's affidavit sufficiently demonstrates that, once the scaffold platform bent in the middle, clearly from the effects of gravity and creating a height differential on the platform where there once was none, the effects of gravity then caused Plaintiff to fall on his back. In this regard, in opposition to Plaintiff's motion and in support of its own motion, New Greenwich proffers the deposition testimony of its own witness Richard Donnelly, the property manager of the subject building at the time of the accident, who testified that he visited the accident site and observed that the subject scaffold was bowed a considerable amount, approximately 6 to 8 feet, in the center.

The cases cited by New Greenwich and Jerrick, and other similar cases, are inapposite. In those cases, the respective plaintiffs were injured as a result of a risk unrelated to elevation, or the court found there were issues of fact as to whether the accident occurred due to an elevation-related risk. (See Bonaparte v Nigara Mohawk Power Corp, 188 AD2d 853, 853 [3d Dept 1992] [injuries were caused by walking surface on scaffold which was "cluttered with construction equipment, materials and debris, a risk wholly unrelated to elevation"]; Duell v Eastman Kodak Company, 224 AD2d 997, 997 [2d Dept 1996] ["The risk of walking into a low ceiling joist is a [*6]risk wholly unrelated to elevation differentials."]; Smith v County of Nassau, 242 AD2d 380, 381 [2d Dept 1997] [Plaintiff fell against scaffold railing after receiving an electrical shock].) Here, however, Plaintiff established that he was injured as a result of an elevation-related risk.

While in Holt v Welding Services, Inc. (264 AD2d 562 [1st Dept 1999]), the court stated that a fall "on the scaffold platform" would not be "actionable," it found that there were "questions of fact based upon conflicting testimony as to how plaintiff's accident occurred", and there were "questions of fact as to whether the subject incident constituted an elevation-related injury caused by a defect in the statutorily-prescribed safety equipment." (See also Hicks v Montefiore Medical Center, 266 AD2d 14, 14-15 [1st Dept 1999] [summary judgment denied where there were issues of fact as to whether the injury resulted from non-elevation related dangers of a work site].) Here, Plaintiff sufficiently established that his injuries were elevation-related.

It would be anomalous, at best, if a worker, injured when a safety device mandated by the statute failed to provide adequate protection, were denied recovery because the failure was not worse and the injuries more serious.

Finally, New Greenwich and Jerrick also contend that Plaintiff's conduct was the sole proximate cause of the accident. They point to Plaintiff's testimony that he loosened his safety belt, walked across the platform to his coworker's basket on the other side, and kicked the scaffold off the side of the building so that the scaffold could be lowered and emptied of the windowsills. New Greenwich and Jerrick fail to point to any evidence demonstrating that any of Plaintiff's actions was factor in the collapse of the scaffold, or that his performance of his work was not consistent with his supervisor's instructions, or that he did not use or misused any of the safety equipment, including the safety belt, provided to him. (See Pichardo v Aurora Contractors, Inc., 29 AD3d 879, 881 [2d Dept 2006]; see also Dominguez v Lafayette Boynton Housing Corp., 240 AD2d at 310-11 [granting Plaintiff summary judgment on his Labor Law § 240(1) cause of action where Plaintiff was injured after kicking the scaffold off the wall to move it around an air conditioner].) As a result, New Greenwich and Jerrick fail to raise an issue of fact as to whether New Greenwich complied with Labor Law § 240(1), or to demonstrate prima facie that Plaintiff's conduct was the sole proximate cause of the accident.

Accordingly, Plaintiff's motion for an order granting him partial summary judgment on the issue of liability on his Labor Law § 240(1) cause of action as against New Greenwich is GRANTED. Since Plaintiff has been granted summary judgment on the issue of liability as against New Greenwich, the branch of New Greenwich's motion seeking summary judgment dismissal of Plaintiff's Labor Law § 240(1) cause of action is DENIED. The Court need not reach the remaining portions of New Greenwich's motion seeking an order granting it summary judgment dismissal of Plaintiff's Labor Law §§ 200 and 241(6) causes of action.

November 19, 2008___________________

Jack M. Battaglia

Justice, Supreme Court