Alers v Verizon NY, Inc.

[*1] Alers v Verizon NY, Inc. 2010 NY Slip Op 51435(U) [28 Misc 3d 1222(A)] Decided on June 29, 2010 Supreme Court, Richmond County Aliotta, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 29, 2010
Supreme Court, Richmond County

Paul Alers and CHELSEA GRADY, Plaintiffs,

against

Verizon New York, Inc., CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., ALAN SPITALNIK, THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION and TIME WARNER ENTERTAINMENT COMPANY, L.P., d/b/a STATEN ISLAND CABLE, Defendants.



102339/07

Thomas P. Aliotta, J.

The motions, inter alia, for summary judgment (Nos. 3509 and 134) of defendants Consolidated Edison Company of New York, Inc. and Time Warner Entertainment Company, L.P. s/h/a Time Warner Cable, Inc. and d/b/a Staten Island Cable, respectively, are granted; plaintiffs' cross motion (No. 3973) for partial summary judgment under Labor Law §240(1) is denied.

This action was commenced to recover damages for personal injuries allegedly sustained by plaintiff Paul Alers (hereinafter, "plaintiff") on April 3, 2007 when he fell from his ladder while connecting a cable line onto a utility pole for the purpose of installing cable television service to a residence located across the street at 745 Craig Avenue, Staten Island, New York. At the time, plaintiff and his co-worker were employed by Uptown Communications, a contractor retained by defendant Time Warner Cable, Inc. (hereinafter, "Time Warner") to install cable television service on Staten Island.

At his deposition, Mr. Alers testified that prior to alighting a 28-foot extension ladder which he owned, he placed it in a position "to make sure [that the] hooks [were] connected to the safety line" on the subject utility pole. Mr. Alers further testified that after ascending the ladder and while fastening the cable wire to the main connection, he reached over for a wrench to "put in the last fasten[r]" when he "felt a gyration on the ladder". It is undisputed that plaintiff fell to the ground after his ladder was tipped-over by a truck striking the "slack" portion of the cable located only a few feet above the ground. The vehicle in question was operated by defendant Alan Spitalnik.

As described by defendant Spitalnik at his deposition, the cable wire "draped [down]" and was dangling across the middle of his lane of traffic when it became "caught" on his right front bumper as he motored by. In an affidavit submitted in opposition to Time Warner's motion for summary judgment, plaintiff claims that he was never instructed to use a "bucket truck" for the purpose of affixing a cable, nor provided with a safety harness, warning cones, barricades, a traffic safety "look-out", or any alternate safety device.

In his verified bills of particulars, plaintiff maintains, inter alia, that defendants Consolidated Edison Company of New York (hereinafter, "Con Edison") and Time Warner were negligent in (1) their ownership, operation, supervision, control and/or inspection of the work, (2) failing to provide him with adequate safety devices and proper equipment, and (3) permitting the work to be performed in an unsafe, hazardous and dangerous manner in [*2]violation of Labor Law §§ 200, 240(1), 241(6), as well as New York State Industrial Code provisions 12 NYCRR 23-1.21 (Provisions for Ladders and Ladderways) and 12 NYCRR 23-1.7 (Protection from General Hazards).

Turning first to the motion for summary judgment by the defendant/owner of the subject utility pole, Con Edison argues that notwithstanding the fact that its pole with lines and fixtures attached constitutes a "structure" within the meaning of Labor Law §240(1) (see Lewis-Moors v Contel of NY, 78 NY2d 942, 943; Ackley v New York State Elec. & Gas Corp., 8 AD3d 941, 942), plaintiff's work in no way involved any of the wires, equipment and/or fixtures owned or installed by Con Edison (see Ackley v New York State Electric & Gas Corp., 8 AD3d at 942). It is undisputed that Con Edison was not the owner of the cable attachments, lines and terminal boxes being altered, and was not otherwise involved in the incident in the capacity of an owner (see Sarigul v New York Tel. Co., 4 AD3d 168, 169-170, lv denied 3 NY3d 606; Lacey v Long Is. Light. Co., 293 AD2d 718, 719; Scott v Crystal Constr., 1 AD3d 992, 993; Bonghi v New York Tel. Co., 277 AD2d 893; Gancarz v New York Tel. Co., 257 AD2d 645). It is also uncontroverted that this defendant had no knowledge that plaintiff would be working on the subject utility pole the day in question and, in any event, had no authority to supervise or control the manner in which the work was performed (see McKee v Great Atl. & Pac. Tea Co., __ AD3d __, 2010 NY Slip Op 4153 at 4-5; Ortega v Puccia, AD3d 54, 61; Ackley v New York State Elec. & Gas Corp., 8 AD3d at 942). Finally, the record is devoid of any evidence that the utility pole itself was in a dangerous or defective condition, e.g., that it was structurally unsound or otherwise contributed to plaintiff's accident (id.; cf. Campbell v City of New York, 32 AD3d 703, 705). In this regard, any contention that certain "illegal" or unauthorized cable attachments had been installed on the pole by Staten Island Cable are of no probative value since these conditions did not contribute to plaintiff's accident.

Consonant with the foregoing, the claims against defendant Con Edison for common-law negligence and violations of Labor Law §§200 and 240(1) must be dismissed. Similarly, any claims against this defendant or any of the other defendants (including Time Warner) for their alleged violations of Labor Law §241(6) and the New York State Industrial Code must also be dismissed, since the activity in which plaintiff was engaged, i.e., adding a line to the existing cable terminal box, was not part of the construction, demolition or excavation of a structure within the meaning of that statute (see Campbell v City of New York, 32 AD3d at 705; Sarigul v New York Tel. Co., 4 AD3d at 170; see generally Nagel v D & R Realty Corp., 99 NY2d 98).

In moving for summary judgment on the remaining causes of action, defendant Time Warner maintains that the record is devoid of any evidence that it (1) had the authority to direct, control or supervise the work plaintiff was performing at the time of his accident, and/or (2) had actual or constructive notice of the presence of any dangerous condition at the subject location or the utilization of any unsafe method of operation. It is further argued that Mr. Alers' own actions in laying the cable wire across the roadway and permitting it to dangle into the path of oncoming traffic was the sole proximate cause of his injuries. In this regard, the moving defendant also relies on plaintiff's admission at his deposition that he was aware that Time Warner provided bucket trucks to assist its cable installing subcontractors upon request.

It is well established that "[w]hen a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against a general contractor [such as Time Warner] 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" (Ortega v Puccia, 57 AD3d at 61). Moreover, it has been held that it is the worker who "has the authority to supervise or control the work for purposes of Labor Law §200 when [he or she] bears the responsibility for the manner in which the work is performed" (id. at 62). [*3]

In the case at bar, Time Warner has demonstrated, prima facie, that it lacked the authority to supervise or control the work of its subcontractor, Uptown Communications. In fact, as evidenced by a certain "Cable Television System Installation Agreement" dated July 24, 2003 between Time Warner and Uptown Communications, the latter is identified as an "independent contractor, solely responsible for the performance of the work in an effective, safe and lawful manner." The agreement further provides, inter alia, that Uptown Communications (1) "shall be solely responsible for the supervision and conduct of its representatives, agents and employees and for compliance with all federal, state and local statutes, rules, regulations and ordinances...concerning contractor's employees and the performance of the work", (2) "shall be responsible for initiating, maintaining and supervising all appropriate safety precautions and programs in connection with the work and shall observe the requirements of the Occupational Safety and Health Act of 1970" and (3) "shall take all necessary precautions for the safety of, and shall take all necessary steps to prevent damage, injury or loss to all persons performing the work and all other persons who may be affected thereby."

In opposition, plaintiffs have failed to raise a triable issue of fact as to so much of Time Warner's motion as is for summary judgment dismissing the claims of common-law negligence and the violation of Labor Law §200 against it.

With respect to the remaining branch of Time Warner's motion, it is well established that Labor Law §240(1) "imposes a nondelegable duty upon owners and contractors to provide or cause to be furnished certain safety devices for workers on an elevated work site, and the absence of appropriate safety devices constitutes a violation of the statute as a matter of law" (Herrnsdorf v Bernard Janowitz Constr. Corp., 67 AD3d 640, 642 [internal citations omitted). Stated otherwise, this statutory duty imposes absolute liability on all contractors and owners whether or not they supervise, direct or control the work, even, as in the case at bar, the job was performed by an independent contractor (see Rocovich v Consolidated Edison Co., 78 NY2d 509, 513; Sanatass v Consolidated Inv. Co., Inc., 10 NY3d 333, 339).

As a general rule, in order to establish a prima facie violation of section 240(1), a plaintiff must demonstrate that the statute was violated and that this violation was a proximate cause of his or her injuries (see Herrnsdorf v Bernard Janowitz Constr. Corp., 67 AD3d at 642). However, there can be no liability under section 240(1) when there is no violation and the worker's actions are the "sole proximate cause" of the accident (see Robinson v East Med. Ctr., LP, 6 NY3d 550, 554; Weininger v Hagedorn & Co., 91 NY2d 958, 960).

Here, plaintiff indicated in his deposition testimony that Time Warner "would send out" a bucket truck when "techs...couldn't do the job" without one. "If we couldn't reach with our ladder they would have to use a bucket truck." According to plaintiff, the height of the pole at issue was not within the "normal range" and was taller than usual. Nevertheless, it was he alone who formed the opinion that he could "get the job done" rather than "rebook" it "until Time Warner decided to send a bucket truck" to the location. Plaintiff also testified that had he reached a contrary conclusion, he would have advised the customer that he "didn't feel safe at that height" and would have so-informed his supervisor. He, in turn, would have informed Time Warner. At that point, the installation would have been re-scheduled when a bucket truck was available.

In view of the foregoing, it is the opinion of this Court that Time Warner has demonstrated prima facie that the sole proximate cause of Alers accident was his independent decision to proceed with the installation using the equipment at hand, much like the plaintiff in Montgomery v Federal Express Corp., (4 NY3d 805), who knew that a ladder was required for a job and would be made available for his use, but decided to proceed without one. Here, the same is true of the bucket truck, whose use plaintiff disdained in favor of using his own ladder rather than revisiting the location on another [*4]occasion (see Robinson v East Med. Ctr., LP, 6 NY3d at 554-555; cf. Gallagher v The New York Post, 14 NY3d 83, 88-89).[FN1] Furthermore, although the degree of negligence, if any, on the part of the truck driver has yet to be determined, it is clear as between plaintiff and Time Warner that plaintiff's decision to proceed with the installation without the use of an available safety device, i.e., a bucket truck, was the sole proximate cause of his accident for the purposes of Labor Law §240(1).

Finally, it should be noted that Mr. Alers' affidavit in opposition to Time Warner's summary judgment motion is materially at variance with his deposition testimony to the extent that he now claims to never have been instructed "by anyone" on the use of a bucket truck for running a cable wire across a street, and never been provided with the use of a bucket truck for that express purpose. Accordingly, these statements in his affidavit must be disregarded as tailored to avoid the consequences of plaintiff's earlier deposition testimony (see Morales v Morales, 55 AD3d 306, 307; Israel v Fairharbor Owners, Inc., 20 AD3d 392, 392). Our courts have consistently rejected the use of affidavits to create feigned issues of fact in order to defeat summary judgment (see Gomez v Rodriguez, 31 AD3d 497, 498).

Accordingly, it is

ORDERED, that the motions of defendants Consolidated Edison Company of New York, Inc. and Time Warner Entertainment Company, L.P. s/h/a Time Warner Cable, Inc. and d/b/a Staten Island Cable, for summary judgment dismissing the complaint and all cross claims against them are granted, and the complaint and any cross claims as against these defendants are hereby severed and dismissed; and it is further

ORDERED, that plaintiffs' cross motion for partial summary judgment under Labor Law 240(1) as against these defendants is denied; and it is further

ORDERED, that the Clerk shall mark his records and enter judgment accordingly.

E N T E R,

Dated: June 29, 2010_________________________

Thomas P. Aliotta

J.S.C. Footnotes

Footnote 1: Although the Gallagher case contains several elements which may be seen as pointing to a different result on this issue, the Court believes that the decision in Montgomery, which was not overruled in Gallagher, is closer on its facts.