Czyz v Murray Hill Mews Owners Corp.

[*1] Czyz v Murray Hill Mews Owners Corp. 2008 NY Slip Op 52519(U) [21 Misc 3d 1146(A)] Decided on December 17, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2008
Supreme Court, Kings County

Jan S. Czyz and MARZENA CZYZ, Plaintiffs,

against

Murray Hill Mews Owners Corp., CAULDWELL-WINGATE COMPANY, LLC, CAULDWELL-WINGATE COMPANY, INC., and CAULDWELL-WINGATE HOLDING COMPANY, INC., Defendants.



26004/06



Plaintiffs were represented by Juan C. Restrepo-Rodriguez, Esq. of Pellegrini & Associates, LLC. Defendant Murray Hill Mews Owners Corp. was represented by Steven Z. Rosenzweig, Esq. of Margaret G. Klein & Associates. Defendants Cauldwell-Wingate Company, LLC, Cauldwell-Wingate Company, Inc. and Cauldwell-Wingate Holding Company, Inc. were represented by Robert P. Fumo, Esq. of the Law Office of James J. Toomey.

Jack M. Battaglia, J.

By Order, dated November 21, 2008, all of the motions, including Plaintiffs' cross-motion, were adjourned to December 12, 2008. On the return date, Plaintiffs failed to appear and Defendants affirmatively waived Plaintiffs' non-appearance only to the extent that they agreed to allow the Court to consider Plaintiffs' papers in opposition to their respective motions. As a result, Plaintiffs' cross-motion (Calendar No. 2) for an order, pursuant to CPLR 3212, granting them summary judgment on their Labor Law § 240(1) cause of action is MARKED OFF. The Court will only consider those portions of Plaintiffs' cross-motion papers that are in opposition to Defendants' respective motions.

On September 18, 2003, plaintiff Jan S. Czyz, a plumber employed by third-party defendant Ashland Plumbing Corp., allegedly sustained personal injuries when he fell off a ladder that wobbled due to debris on the floor in the area where the ladder was placed. Defendant Murray Hill Mews Owners Corp. ("Murray Hill") was the owner of the premises, and defendants Cauldwell-Wingate Company, LLC, Cauldwell-Wingate Company, Inc. and Cauldwell-Wingate Holding Company, Inc. (collectively "Cauldwell") were the general contractor.

In its motion, defendant Murray Hill contends that it is entitled to summary judgment dismissal of Plaintiffs' Labor Law § 200 and common law negligence causes of action against it on the ground that "the defective condition claimed by plaintiff was neither created nor furnished by Murray Hill."

Plaintiffs' Bill of Particulars alleges, among other things, that defendant Murray Hill was negligent in "causing, allowing and/or permitting construction materials or debris to remain at the foot of the ladder which can cause individuals using the ladder, whom of course cannot see the debris, to step awkwardly, trip and fall . . ." At his deposition, Plaintiff testified, among other things, that the ladder he was on began to wobble due to rubble on the floor. In this regard, he testified that he "put in the most safe place this ladder and, you know, but on the floor, there was lots of rubble." When the ladder started to wobble and fall, Plaintiff jumped off the ladder and landed on his right foot.

"Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a worksite, and those involving the manner in which the work is performed." (Ortega v Puccia, __AD3d__, 2008 NY Slip Op 8305, *5 [2d Dept 2008].) "When a premises condition is at issue, property owners may be held liable for a violation of Labor Law § 200 if the owner either created the [*2]dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident." (Id.) "[W]hen a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or general contractor cannot be had under Labor Law § 200 unless it is shown that the party to be charged had the authority to supervise or control the performance of the work." (Id.) "These two categories should be viewed in the disjunctive." (Id.)

This case does not fit neatly into either category, again demonstrating that the real world defies even the most diligent attempts by judges to construct categories that will resolve cases. (See e.g. Chowdhury v Rodriguez, __AD3d__, 2008 NY Slip Op 08441, *6 [2d Dept 2008].)Nonetheless, Murray Hill fails to make an adequate showing as to either category. To the extent that Plaintiff alleges that the accident occurred as a result of a dangerous premises condition, i.e. rubble on the floor, Murray Hill fails to point to any evidence demonstrating that it neither created the condition, nor had actual or constructive notice of it. To the extent that Plaintiff alleges that the claim arises out of defects or dangers in the method of his work or his materials, Murray Hill fails to point to any evidence demonstrating that it did not have the authority to supervise or control the performance of Plaintiff's work. (See Chowdhury v Rodriguez, __AD3d__, 2008 NY Slip Op 08441, at *6.) It is not for the Court to search through voluminous deposition transcripts attached as exhibits to identify portions therein that may support a summary judgment movant's position. As a result, Murray Hill fails to demonstrate prima facie entitlement to summary judgment dismissal of Plaintiffs' Labor Law § 200 and common law negligence causes of action against it.

The branch of Murray Hill's motion for summary judgment for common law indemnification as against defendant Cauldwell is also DENIED. "To establish a claim for common-law indemnification, the one seeking indemnity must prove not only that it was not guilty of any negligence . . . but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident." (See Perri v Gilbert Johnson Enterprises, Ltd., 14 AD3d 681, 684-85 [2d Dept 2003][internal quotation marks and citations omitted].) Murray Hill fails to demonstrate prima facie that it was free of negligence, and does not point to any evidence demonstrating prima facie that Cauldwell was negligent. (See id.)

In its motion, Cauldwell contends that it is entitled to summary judgment dismissal of Plaintiffs' Labor Law § 240(1) cause of action. In this regard, Cauldwell contends the statute was not violated in that the ladder was not defective in any manner, and that the accident was caused solely by Plaintiff in placing the ladder over flooring that he had cleaned with a broom. In support of its motion, Cauldwell proffers, among other things, Plaintiff's testimony that the ladder was "steady" and "in proper working condition"; that he had ascended and descended the ladder 20-30 times prior to the accident; that he moved and placed the ladder himself; that the floor was dirty and covered with debris and containers; that he swept and pushed aside rubble in the area where he placed the ladder; and that the accident was caused by dirt and debris underneath the ladder. [*3]

Labor Law § 240 (1) provides:

"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." (Emphasis added.)

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].) Not every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law 240(1)." (Id.)

To establish absolute liability under Labor Law § 240(1), a plaintiff must establish a violation of the statute and that the violation was a proximate cause of the accident. (Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d 280, 287 [2003]; see also Mingo v Lebedowicz, __AD3d__, 2008 NY Slip Op 09567, *2 [2d Dept 2008].) "[C]omparative negligence is not a defense to absolute liability under the statute" (see Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d at 288), but a defendant will not be liable under Labor Law § 240(1) where the plaintiff's own conduct is the sole proximate cause of the accident. (Id. at 292.)

Where the owner or contractor, rather than the injured worker, is moving for summary judgment, the obverse of a worker's showing is required, i.e., the movant must establish that the worker was provided the protection required by the statute, or that the worker's own conduct was the sole proximate cause of the accident. Here, Cauldwell fails to establish prima facie that the ladder was "placed so as to give [Plaintiff] proper protection" (see Labor Law § 240[1]), or that improper placement was not a proximate cause of the accident. "The failure to secure the ladder on which plaintiff was standing against slippage by any means whatsoever constitutes a violation of Labor Law § 240(1) as a matter of law, for which defendants are absolutely liable." (Urrea v Sedgwick Ave. Associates, 191 AD2d 319, 320 [1st Dept 1993] [quoted by Rodriguez v New York City Housing Authority, 194 AD2d 460, 461 (1st Dept 1993)].)

Although Cauldwell establishes that the ladder was "steady" and "in proper working condition," that does not establish that the ladder was properly placed in the context of Plaintiff's work and the condition of the worksite. (See Bland v Manocherian, 66 NY2d 452, 459-60 [1985] [cited by Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d at 291-92].)For example, in Bland v Manocherian (66 NY2d at 459-60), in considering whether a jury's finding that the ladder was not "so placed as to give proper protection" under Labor Law § [*4]240(1) was supported by the evidence, the court noted testimony that the floor upon which the ladder was placed was bare, highly polished and shiny. Similarly, in Arrigo v Turner Construction Co., Inc. (182 AD2d 482, 484 [1st Dept 1992]), the plaintiff fell off a ladder that slipped underneath him. There, the court held that evidence of water, debris and monocote on the floor at the time of the accident, as well as evidence demonstrating that the defendant was aware of those conditions, supported the conclusion that a violation of Labor Law § 240(1) was a proximate cause of the plaintiff's injuries.

Cauldwell's contention that Plaintiff's actions in placing the ladder in an area where he had swept in an unsuccessful attempt to clear the area of debris was the sole proximate cause of accident is also insufficient. "[T]here was nothing extraordinary or unanticipated" in Plaintiff's conduct in light of the condition of the work site and the job that he was expected to perform. (See Pichardo v Aurora Contractors, Inc., 29 AD3d 879, 881 [2d Dept 2006].) For example, in Argueta v Pomona Panorama Estates, Ltd (39 AD3d 785, 786 [2d Dept 2007]), a case factually on point, the plaintiff "fell while climbing an unsecured ladder that had been placed on uneven dirt, which suddenly slid to the right." There, the court held that the plaintiff was entitled to summary judgment on his Labor Law § 240(1) cause of action, and that the defendant failed to raise a triable issue whether the plaintiff's own actions were the sole proximate cause of the accident. (See also Denis v City of New York, 54 AD3d 803, 804 [2d Dept 2008]; Boe v Gammarati, 26 AD3d 351, 351-52 [2d Dept 2006]; Peter v Nisseli Realty Co., 300 AD2d 289, 290 [2d Dept 2002].)

At most, Cauldwell demonstrates some contributory negligence, which is not a defense to absolute liability under Labor Law § 240(1). (See Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d at 288.). The cases cited by Cauldwell are inapposite in that Cauldwell does not contend, and sets forth no evidence, that Plaintiff misused the ladder. (See e.g. Meade v Rock-McGraw, Inc., 307 AD2d 156, 158 [1st Dept 2003] [using the ladder in the closed position]; Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d at 291 [using the ladder with the extension clips unlocked].)

Accordingly, Cauldwell's cross-motion for an order granting it summary judgment dismissal of Plaintiffs' Labor Law § 240(1) cause of action is DENIED.

In sum, Murray Hill's motion and Cauldwell's cross-motion are both DENIED. Plaintiffs' cross-motion is MARKED OFF.

December 17, 2008____________________

Jack M. Battaglia

Justice, Supreme Court