Harrison v V.R.H. Constr. Corp.

[*1] Harrison v V.R.H. Constr. Corp. 2009 NY Slip Op 51533(U) [24 Misc 3d 1220(A)] Decided on July 8, 2009 Supreme Court, New York County Feinman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 8, 2009
Supreme Court, New York County

Monica Harrison and ANDRIUS COREY GADDIST SR., Plaintiffs,

against

V.R.H. Construction Corp., TORCON, INC., AMERICAN AIRLINES, INC., and THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Defendants.



113568/2006



For the Plaintiffs:

The Feld Law Firms, P.C.

By: David Lewis Feld, Esq.

150 Broadway, Suite 1703

New York NY 10038

(212) 964-4100

For the Defendants:

Lewis, Brisbois, Bisgaard, & Smith

By: Christopher H. Sommer, Esq.

199 Water St., 25th Fl.

New York NY 10038

(212) 2343-1300

Paul G. Feinman, J.

Defendants' motion and plaintiffs' cross-motion are consolidated for purposes of decision.

Defendants V.R.H. Construction Corp., Torcon, Inc., American Airlines, Inc. and the Port Authority of New York and New Jersey move pursuant to CPLR 3212 (e) for summary judgment and dismissal of the complaint in its entirety. Plaintiffs cross-move for partial summary judgment on plaintiff Harrison's cause of action claiming liability under Labor Law § 240 (1). For the reasons which follow, the motion is granted in its entirety and the cross-motion is denied.

Plaintiff Monica Harrison is an apprentice level construction electrician who alleges that on October 14, 2005, she was injured when she fell from a ladder while working for ADCO Electric, a subcontractor employed in the American Airlines terminal at John F. Kennedy International Airport (Cross-Mot. Am. Ver. Compl. ¶ 30; Mot. Ex. C, Bill of Partic. ¶¶ 1-3, 10). Defendant American Airlines admits that on that date, "construction, alteration and/or renovation was being performed" at its airport terminals (Cross-Mot. Ex. A, Am.Ver. Compl. ¶ 13; Ex. A, Am. Airl. Ver. Ans. ¶ 13). American Airlines had retained defendant VRH./Torcon a Joint Venture, as the managing general contractor for the redevelopment of its terminals at the airport (Cross-Mot. Ex. A, Am. Airl. Ver. Ans. to Am. Compl. ¶¶ 14-19). VRH/Torcon a Joint Venture contracted with ADCO Electric Corporation, some of whose employees, including plaintiff Harrison, were performing work at the terminal on October 14, 2005 (Cross-Mot. Ex. A, Am Ver Compl ¶¶ 28, 29;VRH Ver. Ans to Am. Ver Compl. ¶¶ 28, 29).

According to plaintiff Harrison's deposition testimony, on the day in question, she was doing firestopping, which involved putting conduit in the walls (Mot. Ex. E, Harrison EBT [hereinafter Harrison EBT] 28). She was alone when the accident occurred (Harrison EBT 30). The room in which she was working had an unfinished concrete floor which she described as "relatively" flat, as level as a "typical" city sidewalk (Harrison EBT 33, 34). [*2]The floor also had a "chopped out" trench that was a couple of inches wide by a couple inches deep that ran the distance of the room (Harrison EBT 34). At the time of the accident, plaintiff was working on an 8-foot A frame ladder, and standing on about the fourth step (Harrison EBT 36). She was wearing a hard hat and gloves (Harrison EBT 39). She was using a caulking gun and taping knife (Harrison EBT 37, 38).

The ladder was owned by her employer, ADCO (Harrison EBT 41). She had used the same ladder a coup le of days before the accident, in addition to the entire day of her accident (Harrison EBT 40). She had examined the ladder before climbing it (Harrison EBT 40-41). The ladder legs were placed a "couple of inches away from the trench" (Harrison EBT 36). According to plaintiff's own testimony, the ladder was properly secured (Harrison EBT 41). She noted that the ladder was in good condition, the legs were fully extended and none of them were broken, and the steps were fine (Harrison EBT 118). It was "as good as any other ladder," and "wasn't new but it wasn't old. It wasn't broken. It wasn't damaged in any way." (Harrison EBT 40). According to plaintiff, while she was working, the "ladder tipped and fell and caused me to fall" (Harrison EBT 36). She did not believe that the ladder legs moved into the open trench (Harrison EBT 116). She had "no clue" why the ladder became unstable (Harrison EBT 41).

According to Norbert Berger, the VHR project manager for the American Airlines project, VRH/Torcon were responsible for safety at the project, and had full-time safety people on the project (Mot. Ex. F, Berger EBT 6, 22, 23). VRH/Torcon hired the various contractors to work on this union project (Berger EBT 18-19). VRH/Torcon did not provide "fall protection" for the workers; that was the responsibility of the contractors who have the safety equipment (Berger EBT 67). VHR/Torcon provided safety manuals, safety permit briefings, and a safety movie (Berger EBT 27, 28). Berger stated that under OSHA regulations, if a worker was on a ladder higher than six feet, he or she needed fall protection (Berger EBT 66-67). He had no knowledge of plaintiff's accident (Berger EBT 55).

Plaintiffs' amended verified complaint, dated November 15, 2006, alleges as its first cause of action on behalf of Harrison, claims brought under Labor Law sections 200, 240 (1) and 241 (6), as well as violations of the New York City Administrative Code, the Industrial Code of the State of New York, and the Occupational Health & Safety Administrative regulations. The second cause of action brought on behalf of Harrison's husband, plaintiff Andrius Corey Gaddist, Sr., claims a loss of consortium and services. Issue was joined, and following discovery, the note of issue was filed on June 10, 2008. Defendants filed the instant motion on August 8, 2008, and plaintiffs filed their cross-motion on September 19, 2008.

To prevail on a summary judgment motion, the moving party must produce evidentiary proof in admissible form sufficient to warrant the direction of summary judgment in his or her favor (GTF Mtkg, Inc. v Colonial Aluminum Sales, Inc., 66 NY2d 965, 967 [1985]). Once this burden is met, the burden shifts to the opposing party to submit proof in admissible form sufficient to create a question of fact requiring a trial (Kosson v Algaze, 84 NY2d 1019 [1995]).

The evidence will be construed in the light most favorable to the one moved against (Corvino v Mount Pleasant Centr. Sch. Dist., 305 AD2d 364, 364 [2d Dept 2003]; Bielat v Montrose, 272 AD2d 251, 251 [1st Dept. 2000]). Summary judgment is appropriate only when there is no genuine issue as to any material fact and the disposition of the causes of action may be decided as a matter of law (Security Pacific Bus. Credit, Inc. v Peat Marwick Main & Co., 79 NY2d 695, rearg denied 80 NY2d 918 [1992]).

Labor Law § 200codifies the common law duty imposed upon an owner or general contractor to maintain a safe construction site (Rizzuto v L.A. Wenger Contr. Co., Inc., 91 NY2d 343, 352 [1998]). It will hold an owner or general contractor liable if the owner or general contractor is shown to have exercised a certain degree of supervisory control over the worker's activities (Lombardi v Stout, 80 NY2d 290, 295 [1992]). To support a finding of liability under Labor Law § 200, a plaintiff must show "that the defendant supervised and controlled the plaintiff's work, or had actual or constructive knowledge of the alleged unsafe condition in an area over which it had supervision or control, or created the unsafe condition" (Torkel v NYU Hosps. Ctr., __ AD3d ___, 2009 NY Slip Op 5254 [1st Dept. 2009], citations omitted). Defendants argue that there is no factual evidence that plaintiff's work was supervised or controlled by them, or that they knew of any unsafe condition, or created an unsafe condition. Plaintiffs' argument in opposition to the motion, that the "trench" in the floor was a hazard known or created by defendants, does not raise a triable issue of fact because her deposition testimony states that the ladder was not caused to tilt by its legs sliding or falling into the cut in the floor. Accordingly, as there are no questions of material fact as concerns this branch of the complaint, defendants' motion for summary judgment and dismissal of this branch of her complaint is granted.

Labor Law § 240(1), the "Scaffold Law,"requires that where a building or structure is being repaired or altered, the contractors, owners, and their agents must have furnished or erected for the performance of the work, [*3]safety devices such as scaffolding, hoists, stays, ladders, and other devices that give proper protection. Defendants move for summary judgment and dismissal of this branch of the complaint arguing that the complaint does not establish any violation of the statute. Plaintiffs cross-move for a grant of partial summary judgment as to this branch of the complaint arguing that the facts sufficiently establish a violation. The motion and cross-motion are analyzed together.

The purpose of the Scaffold Law is to "protect workers by placing the ultimate responsibility' for worksite safety on the owner and general contractor, instead of the workers themselves" (Gordon v Eastern Railway Supply, Inc., 82 NY2d 555, 559 [1993], citation omitted). The section imposes "absolute liability" on owners, contractors, and their agents for any breach of the statutory duty which proximately caused injury, and is to be interpreted liberally (Id.). Once it is determined that the owner or contractor failed to provide the necessary safety devices required to give a worker "proper protection," absolute liability is "unavoidable" under Labor Law § 240 (1), even if the injured worker contributed to the accident (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 521-522 [1985]). The duty imposed by Labor Law §240(1) is nondelegable and an owner or contractor who breaches that duty may be held liable in damages regardless of whether it actually exercised supervision or control over the work (Ross v Carter-Palmer Hydro-Elec. Co., 81 NY2d 494, 500 [1993]).

The Court of Appeals has held that in cases involving ladders or scaffolds that collapse or malfunction for no apparent reason, there is a presumption that the ladder or scaffolding device was not good enough to afford proper protection (see, Blake v Neighborhood Hous. Servs. of NY City, Inc., 1 NY3d 280, 289, n. 4 [2003], citing among others, Panek v County of Albany, 99 NY2d 452, 458 [2003] [summary judgment appropriate for the plaintiff where it was uncontroverted that a ladder collapsed beneath him, causing the fall]; see also Vega v Rotner Mgmt. Corp., 40 AD3d 473 [1st Dept. 2007] [plaintiff satisfied prima facie burden on the motion with his testimony that he fell to the ground when the unsecured ladder on which he was standing shifted; there was no dispute that the ladder was unsecured, and no other safety devices were provided]). However, it is also established that proof of a plaintiff's fall from a ladder, without more, is insufficient to establish liability under Labor Law § 240 (1) (see, Costello v Hapco Realty, Inc., 305 AD2d 445, 447 [2d Dept. 2003] [citing among others, Weininger v Hagedorn & Co.. 91 NY2d 958, 960 (1998)]).

A defendant will be granted summary judgment where the record establishes "conclusively" that no Labor Law § 240 (1) violation was shown to have been a proximate cause of the accident and that therefore the accident was caused solely by plaintiff's conduct (Blake v Neighborhood Hous. Servs., supra, 1 NY3d at 289, n. 4, citations omitted). Conversely, where a plaintiff moves for summary judgment under Labor Law § 240 (1), and makes a prima facie showing, the burden then shifts to the defendant, who may defeat plaintiff's motion for summary judgment only if it shows there is a fact question as to whether there was a statutory violation and whether the plaintiff's own acts or omissions were the sole cause of the accident (Blake v Neighborhood Hous. Servs., supra, at 289, n. 4). However, a "worker injured by a fall from an elevated worksite must also generally prove that the absence of or defect in a safety device was the proximate cause of his or her injuries" (Felker v Corning, 90 NY2d 219, 224 [1997]).

Here, defendants argue in support of their motion that there was no violation of Labor Law § 240 (1). They point to the testimony by plaintiff Harrison that on the day of the accident the ladder was in good condition and properly secured with the legs whole and fully extended. She testified that the ladder's steps were fine. "It wasn't damaged in any way." She had "no clue" why it inexplicably tipped and fell while she was working. Defendants argue that summary judgment and dismissal of the Labor Law § 240 (1) claim is appropriate because there is no evidence to establish the existence of a defect in the ladder, and nothing to show why she fell.

Plaintiffs' opposition and cross-motion argues that the ladder was not secured and that this is sufficient to establish a statutory violation. This argument ignores the plaintiff's admission at her deposition:

Q:Was the ladder properly secured?

A.It was.

(Harrison EBT 41). Therefore, the instant matter is not controlled by Vega v Rotner Mgmt. Corp., supra, where the testimony by the plaintiff was the that the ladder was unsecured.

Plaintiffs also argue that defendants should have provided additional safety devices that would have prevented Harrison's fall, although there is no evidence proffered to suggest what safety devices should have been provided to her while she was firestopping. As liability is contingent on finding that the statute was violated and that [*4]the violation was the proximate cause of the accident (Blake v Neighborhood Hous. Services, supra, at 292), plaintiffs have not sufficiently raised a question of fact that would cause a denial of defendants' motion for summary judgment, nor have they established entitlement to a grant of summary judgment on their cross-motion.

Labor Law § 241 (6) "imposes a nondelegable duty of reasonable care upon owners and contractors to provide reasonable and adequate protection and safety' to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed." (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348 [1998], emphasis in original, citations omitted). The statute provides that in all areas where there is construction, excavation or demolition work being performed, there shall be reasonable and adequate protection and safety provided to the persons working or frequenting the areas. The New York State Commissioner of Labor is mandated to make rules to carry out the provisions of the statutory section (Labor Law § 241 [6]). For a defendant to be liable under Labor Law § 241 (6), a plaintiff must plead and ultimately prove the violation of rules or regulations of the Industrial Code which give a specific, positive command (Singleton v Cinalta Const. Corp., 291 AD2d 383, 394 [2d Dept. 2002]).

According to the bill of particulars, plaintiffs allege violations of Title 23 of the Industrial Code, specifically §§ 23-1.5, 23-1.7, including 23-1.7 (f), 23-1.16, 23-1.21, including 1.21(a), (b) (1), (b)(3)(i)-(iv), (b)(4)(i)-(v), and 23-2.1, including 23-2.1(a)(1)-(a)(2); as well as OSHA regulations 29 CFR §§ 1926.20, 1926-285, 1926.104, and 1926.450 (Mot. Ex. C, Pl. Ver. Bill of Partic. ¶ 3, unnumbered p. 4). Defendants' motion makes a prima facie case that plaintiffs have failed to establish violations of certain of the regulations either because they are of the type that are too generic to support a claim of liability, or are not pertinent to the facts as alleged. (See Mot. Summer Aff. ¶¶ 34-46). Plaintiffs' opposition focuses on only certain of the regulations, thus conceding that certain of the regulations are not pertinent, but arguing that they have presented competent evidence to raise questions of fact as to whether the ladder loosened, dislodged, or failed, whether it was properly secured, whether it had firm footing, was held properly in place, or whether it was properly footed, thus establishing possible violations of Industrial Code regulations 12 NYCRR 23-1.21(b) (1) (general requirements for ladders); 12 NYCRR 23-1.21 (b )(3) (maintenance and replacement [of ladders]); and12 NYCRR 23-1.21(b)(4) (ii) (installation and use [requiring firm footings]). However, even giving plaintiffs the benefit of every possible favorable inference, these contentions are sheer speculation. There is no testimony or competent evidence to establish that the ladder loosened, or that the footing was poor, or that there were any of the other specific defects which are alleged by plaintiffs. Indeed, the plaintiff's own deposition testimony is to the contrary. Bare conclusory allegations are insufficient to defeat a motion for summary judgment (see, Thanasoulis v National Assn. for the Specialty Foods Trade, Inc., 226 AD2d 227 [1st Dept 1996]; Lee v Weinstein, 116 AD2d 700 [2d Dept], lv denied 68 NY2d 601 [1986]). It is insufficient to offer surmises, or unsubstantiated allegations or assertions (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Accordingly, it is

ORDERED that defendants' motion for summary judgment is granted and the complaint is dismissed with costs and disbursements to defendants as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further

ORDERED that the cross-motion is denied; and it is further

ORDERED that this decision and order supercede anoral decision and order, if any, that may have been placed on the record at the time of oral argument;

ORDERED that the Clerk of the Court is to enter judgment accordingly.

This constitutes the decision and order of the court.

Dated: July 8, 2009____________________________________

New York, New YorkJ.S.C.