Rodriguez v D & S Bldrs., LLC

[*1] Rodriguez v D & S Bldrs., LLC 2010 NY Slip Op 51855(U) [29 Misc 3d 1217(A)] Decided on October 28, 2010 Supreme Court, Queens County Markey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 28, 2010
Supreme Court, Queens County

Ofelia Rodriguez, et al.

against

D & S Builders, LLC, et al.



4022/2008



For the Plaintiff: O'Dwyer & Bernstein, LLP, by Andrew R. Yarmus and Steven Aripotch, Esqs., 52 Duane St., New York, NY 10007

For Defendants/Third-Party Plaintiffs D & S Builders and DiFiore: Marshall, Conway, Wright & Bradley, P.C., by Amy S. Weissman, Esq., 116 John St., New York, NY 10038

For Third-Party Defendants D-Best: Dillon Horowitz & Goldstein, LLP, by Thomas Dillon, Esq., 11 Hanover Sq., New York, NY 10005

Charles J. Markey, J.

This case raises the issue of whether the collapse of forms used for framing poured concrete foundations, stacked on top of a flatbed truck that killed the decedent, falls within the provisions of sections 200, 240(1), or 241(6) of New York's Labor Law or common law negligence. To this Court's research, no New York case has addressed this fact pattern.

On March 27, 2006, the decedent was fatally injured while standing on a flatbed truck when a bundle of concrete forms lying on the floor of the truck fell on him, causing him to fall to the ground below. The decedent, Eustacio Rojas Vera, was employed by third-party defendant D-Best Equipment Corp. ("D-Best"), which had a subcontract with defendant D & S Builders, LLC (D & S Builders), the owner of the subject premises, to perform demolition, excavation, and foundation work in the construction of houses. Co-defendant DiFiore & Sons Custom Woodworking, Inc. ("DiFiore"), a woodworking manufacturer, was not hired to provide any services on the project.

As an initial matter, the name of the decedent is listed as Eustacio Rojas Vera. In traditional Hispanic name formulation, he had both his father's and mother's last names as part of his name. Rojas represents his father's last name, and Vera represents the mother's last name. Plaintiff's counsel, throughout its papers, properly refers to the decedent as Mr. Rojas. Defense [*2]counsel refers to the decedent as "Arturo" because, as disclosed by a deposition transcript, even his own co-worker Alvaro Hernandez ("Hernandez"), D-Best's machine operator, the last person to see Eustacio Rojas Vera alive, did not know him by his formal name, but knew and referred to him simply as "Arturo."

The Court appreciates the fact that defense counsel, in their motion papers, kept referring to the decedent as "Arturo" as a way to avoid any confusion by this Court when reviewing the several deposition transcripts attached to the motion papers that refer repeatedly to "Arturo." The Court, nevertheless, believes that defense counsel's repeated references to the deceased plaintiff as "Arturo" was improper in briefing the motions and cross motions. Where the titles "plaintiff" and "defendant" are neither available nor proper, as in this case since Eustacio Rojas Vera is not the plaintiff, but the decedent, the defense counsel, in their written submissions to this Court, should have referred to Eustacio Rojas Vera as "the decedent," or, as plaintiffs' counsel has properly done, "Mr. Rojas" or "Rojas" [hereinafter referred to as "Rojas"].[FN1] [*3]

Turning to the facts, this lawsuit arises out of an accident that occurred on March 27, 2006, at 81-17 Caldwell Avenue, in Queens County. The subject property was owned by D & S Builders. The project called for the construction of several three-family and two-family homes. Rojas and Hernandez had been working on the site loading concrete forms onto a flatbed truck. The forms were used in pouring the concrete foundation and were then removed. The forms were then stacked in groups of fifteen, bound together, and lifted by a Caterpillar 320 machine out of the foundation hole and onto the flatbed truck.

There were six bundles of concrete forms that had to be lifted. Each bundle contained 15 concrete forms that were tied with two metal straps on each side. Rojas attached two nylon straps on each bundle and then signaled to Hernandez to release the tension of the arm of the Caterpillar 320 machine. Once the tension was released, Rojas would release the caterpillar arm and remove the nylon straps.

The accident occurred with the fourth bundle. The decedent, Rojas, climbed on the flatbed truck and examined the bundle to make sure it was secure. He then signaled to Hernandez as he had done with the three prior bundles. Hernandez released the tension and was moving the Caterpillar arm away from the flatbed trailer. As Hernandez was moving the arm of the Caterpillar 320 machine and thus was not looking at the flatbed trailer or at Rojas, he heard a noise. He turned around and saw Rojas lying on the ground, with the forms on top of him. Hernandez left the Caterpillar machine to move the forms off Rojas, who was unconscious, and who remained unconscious, until his death later that night, at Elmhurst Hospital Center in Queens County. Hernandez subsequently explained to Marc Cali ("Cali"), D-Best's president, that the bundle of forms was successfully placed on the 2x4s and that Rojas removed the nylon straps.

The two plaintiffs are the co-administrators of the decedent's estate. They subsequently commenced this action against D & S Builders and DiFiore under Labor Law sections 240(1), 241(6), and 200, and common-law negligence. On April 8, 2008, D & S Builders and DiFiore instituted a third-party action against D-Best alleging common-law indemnification and contribution. [*4]

Defendants D & S and DiFiore move for summary judgment dismissing plaintiffs' claims under Labor Law sections 240(1), 241(6), and 200 and common-law negligence asserted against them or, alternatively, for summary judgment on their third-party cause of action for common-law indemnification asserted against third-party defendant D-Best. Plaintiffs seek partial summary judgment on their causes of action, pursuant to Labor Law sections 240(1) and 241(6), asserted against D & S Builders and DiFiore. D-Best cross moves for summary judgment dismissing plaintiffs' Labor Law sections 240(1), 241(6), and 200 and common-law negligence claims and for summary judgment dismissing the third-party complaint asserted against it.

On its motion, DiFiore established its entitlement to judgment as a matter of law that it is not liable to plaintiffs under Labor Law sections 240(1) and 241(6) because it was not an "owner," "contractor," or "agent" of the owner or general contractor at the time of the decedent's accident. In opposition, plaintiffs failed to raise a triable issue of fact. Since it is undisputed that DiFiore was neither the owner nor general contractor on the subject construction project, the only issue remaining is whether it was a statutory agent of the owner or general contractor (see, Russin v Picciano & Son, 54 NY2d 311 [1981]).

An entity is deemed a contractor within the meaning of Labor Law sections 240(1) and 241(6) if it had the power to enforce safety standards and choose responsible subcontractors (see, Williams v Dover Home Improvement, Inc., 276 AD2d 626 [2nd Dept. 2000]). Therefore, to impose liability, the defendant must have the authority to control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition (see, Damiani v Federated Dept. Stores, Inc., 23 AD3d 329, 332 [2nd Dept. 2005]). Only upon obtaining the authority to supervise and control does a third party fall within the class of those having nondelegable liability as an "agent" under Labor Law sections 240(1) and 241(6) (see, Russin, 54 NY2d at 318).

The deposition testimony of Gandolfo DiFiore, an employee of DiFiore, demonstrates that D & S Builders hired all of the subcontractors to perform work on the subject construction project, and DiFiore did not exercise any supervision or control over the work performed by the decedent and had no authority to do so. Moreover, Cali, D-Best's president, testified, at his deposition, that Christopher Deegan, the decedent's foreman and an employee of D-Best, gave the decedent instructions regarding the method and manner in which to perform excavation and foundation work at the site.

D & S Builders, DiFiore, and D-Best established their prima facie entitlement to judgment as a matter of law that the decedent's activities did not fall within the special elevation-related risks encompassed by Labor Law section 240(1) (see, Melo v Consolidated Edison Co. of NY, 246 AD2d 459 [1st Dept.], aff'd, 92 NY2d 909 [1998]). [*5]

To prevail on a Labor Law section 240(1) cause of action, a plaintiff must demonstrate that there was a violation of the statute and that the violation was a proximate cause of the accident (see, Blake v Neighborhood Hous. Servs. of New York City, Inc., 1 NY3d 280 [2003]). Labor Law section 240(1) requires owners, contractors, and their agents to provide workers with appropriate safety devices to protect against "such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured" (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]).

In cases involving falling objects, to establish liability under Labor Law section 240(1), a plaintiff must show more than simply that an object fell, thereby causing injury to a worker (see, Narducci v Manhasset Bay Assocs., 96 NY2d 259 [2001]). Rather, a plaintiff must demonstrate that the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute (see, Narducci, 96 NY2d at 268; Novak v Del Savio, 64 AD3d 636 [2nd Dept. 2009]). The statute also does not impose liability even if the injury is caused by an inadequate or malfunctioning hoist or other enumerated safety device, absent elevation differentials (see, Ross, 81 NY2d at 501).

In Toefer v Long Island Rail Road, 4 NY3d 399 [2005], the worker was injured when he was struck by a wooden pole he was using to unload beams from the trailer of a flatbed truck. The Court of Appeals unanimously held that a four or five foot descent or fall from a flatbed truck was not an elevation-related risk that triggers liability under Labor Law section 240, since safety devices of the kind are normally associated with more dangerous activities. Similarly, in Berg v Albany Ladder Co., 10 NY3d 902 [2008], the plaintiff was injured while on a flatbed truck and unloading steel tresses with the assistance of a forklift operated by a coworker. The Court of Appeals unanimously affirmed the dismissal of the worker's claims under Labor Law section 240 (accord, Lombardo v Park Tower Management Ltd., 76 AD3d 497 [1st Dept. 2010] [3-2 decision] [step did not present elevation-related risk within the meaning of the scaffold law and did not require protective devices]).

This case is markedly different from Runner v. New York Stock Exchange, 13 NY3d 599 [2009], where the Court of Appeals held there was liability under Labor Law section 240 where he used a makeshift pulley to lower a heavy reel of wire down a small stairway separating two levels of a split-level hallway. In Runner, "the harm to plaintiff was the direct consequence of the application of the force of gravity to the reel." 13 NY3d at 604. See discussion in the majority opinion in Lombardo v Park Tower Management Ltd., 76 AD3d 497, supra. The facts of this case are also different from Intelisano v Sam Greco Construction, Inc., 68 AD3d 1321 [3rd Dept. 2009], where, the court, in upholding liability, explained that the plaintiff climbed to the top of bundles of insulation that was ten feet high that were placed on a flatbed trailer that was already four feet above the ground.

In the case at bar, the deposition testimony of Hernandez, the decedent's co-worker, [*6]demonstrates that, after he had hoisted the bundle of concrete forms onto the back of the flatbed truck, Rojas removed the nylon straps to which the excavator's arm was attached and, at the time of the accident, the bundle was completely resting on the bed of the truck, where the decedent was standing. While the force of gravity may have caused the bundle of concrete forms to fall, the load was not elevated above the work site when the incident occurred. Since Rojas was injured when the load slid horizontally along the bottom of the flatbed truck, the special risk of being hit by an object falling from a higher elevation was not implicated in this instance. Thus, it cannot be said that Labor Law section 240(1) is applicable here either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the decedent was positioned and the higher level of the materials or load being hoisted or secured.

The expert affidavit of Andrew R. Yarmus ("Yarmus"), a professional engineer, furthermore, submitted in opposition and in support of plaintiffs' cross motion on the issue of liability under Labor Law section 240(1) is purely speculative and conclusory since it is unsupported by any evidentiary foundation (see, Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]). In his affidavit, Yarmus opined that the decedent's accident occurred during an ongoing hoisting operation and that the bundle of forms fell and struck the decedent because the hoisting procedure failed since the bundle was not properly secured. Although Yarmus did not inspect the bundles of concrete forms, his affidavit is primarily based on the deposition testimony of Hernandez and Cali, as well as a review of photographs of the excavator and concrete forms at the work site. However, there is no evidence in the record to support Yarmus' contention that the bundle was not properly secured because the photographs, which were taken after the subject incident, do not show the forms stored on the flatbed truck or bundled with metal straps, as they were at the time of the decedent's accident. Hernandez also testified at his deposition that, unlike on the date of the accident, the forms as depicted in the photographs were not bundled with metal straps.

Consequently, the branches of D & S Builders and DiFiore's motion and D-Best's cross motion for summary judgment dismissing the Labor Law section 240(1) cause of action are granted, and the branch of plaintiffs' cross motion for partial summary judgment on their claim under Labor Law section 240(1) is denied.

To recover under Labor Law section 241(6), a plaintiff must establish the violation of an Industrial Code provision, which sets forth specific, applicable safety standards, in connection with construction, demolition, or excavation work (see, Ross, 81 NY2d at 502-505). In their bill of particulars, plaintiffs herein allege violations of Industrial Code provisions 12 NYCRR 23-1.5(a)-(c), 23-1.7(a) and (f), 23-1.8(c), 23-2.1(a) and (b), 23-2.2, 23-3.3(k)(1), 23-6.1(b) and (c), 23-9.2(a)-(c), 23-9.4(a)-(h), and 23-9.5(a), (c), and (h).

In support of their respective motion and cross motion, D & S Builders, DiFiore, and [*7]D-Best established, prima facie, that the Industrial Code provisions cited by plaintiffs are either insufficiently specific to support liability under Labor Law section 241(6) or inapplicable to the facts of the instant case. Industrial Code sections 12 NYCRR 23-1.5 (see, Cun-En Lin v Holy Family Monuments, 18 AD3d 800 [2nd Dept. 2005]; Sparkes v Berger, 11 AD3d 601 [2nd Dept. 2004]), and 12 NYCRR 23-2.1(b) (see, Parrales v Wonder Works Constr. Corp., 55 AD3d 579 [2nd Dept. 2008]; Madir v 21-23 Maiden Lane Realty, LLC, 9 AD3d 450, 452 [2nd Dept. 2004]), merely set forth general safety standards and, thus, do not provide a basis for liability under Labor Law section 241(6).

Industrial Code provision 12 NYCRR 23-1.7(a), requiring that every place where persons are required to work or pass that is normally exposed to falling material or objects shall be provided with suitable overhead protection, is inapplicable because, at the time of his accident, the decedent was not working in such an area. Similarly, 12 NYCRR 23-1.7(f), mandating that stairways, ramps, or runways shall be provided as the means of access to working levels above or below ground, does not apply here because the decedent's accident was not caused by or related to any lack of stairways, ramps, or runways.

Cali testified, at his deposition, that the decedent was wearing a hard hat on the day of the accident, but Cali could not recall its color. The Court, in its own reading of the deposition transcripts, has found nothing to refute Cali's observation, other than the Medical Examiner's notation of several fractures to the skull. Even if Cali erred in his testimony on whether or not Rojas was wearing a construction helmet or hard hat, the requirement in 12 NYCRR 23-1.8(c), providing that every person required to work or pass within any area where there is a danger of being struck by falling objects or materials must wear an approved safety hat, is inapplicable in this case. That provision on helmets is inapplicable since the evidence in the record indicates that the decedent was not working below the area from which the bundle of forms fell (see, Spiegler v Gerker Bldg. Corp., 57 AD3d 514, 517 [2nd Dept. 2008]; Modeste v Mega Contr., Inc., 40 AD3d 255, 255-256 [1st Dept. 2007]; Sikorski v Burroughs Dr. Apts., 306 AD2d 844, 845 [4th Dept. 2003]).

Industrial Code provision 12 NYCRR 23-2.2 also does not apply here because the decedent was not engaged in concrete work at the time of his accident. Likewise, 12 NYCRR 23-3.3(k)(1) is inapplicable to the facts of this case because the decedent was not engaged in demolition work and, more specifically, the bundle of concrete forms which fell on him were not being stored in a "building or other structure being demolished" at the time of the accident.

In addition, 12 NYCRR 23-6.1(b), which provides that material hoisting equipment must be maintained in good repair and proper operating condition, and 12 NYCRR 23-6.1(c), which relates to the operation of material hoisting equipment in a safe manner, are inapplicable because the decedent's accident was not caused by a defect in or the improper operation of the excavator. [*8]It has also been held that 12 NYCRR 23-6.1(b) is not sufficiently specific to support a Labor Law section 241(6) cause of action (see, Barrick v Palmark, Inc., 9 AD3d 414 [2nd Dept. 2004]; Schwab v A.J. Martini, Inc., 288 AD2d 654, 656 [3rd Dept. 2001]).

Finally, Industrial Code sections 12 NYCRR 23-9.2(a)-(c), relating to the maintenance, operation, and loading of power-operated equipment, 12 NYCRR 23-9.4(a)-(h), referring to power shovels and backhoes used for material handling, and 12 NYCRR 23-9.5(a), (c), and (h), setting forth requirements for excavating machines, are not implicated here because the decedent's accident did not involve the use of such equipment.

On their cross motion, plaintiffs rely solely upon 12 NYCRR 23-2.1(a)(1) and (2) to support their Labor Law section 241(6) claim. Specifically, 12 NYCRR 23-2.1(a)(1) does not apply under the circumstances of this case because the bundle of forms was located on a flatbed truck, not a "passageway, walkway, stairway, or other thoroughfare." Industrial Code section 12 NYCRR 23-2.1(a)(2), providing that material and equipment must not exceed the carrying capacity of any floor, platform, or scaffold and must not be placed or stored so close to any edge of a floor, platform, or scaffold as to endanger any person beneath such edge, is equally inapplicable here. There is no evidence in the record demonstrating that the bundle of forms exceeded the carrying capacity of the flatbed truck upon which it was stored. Moreover, at the time of the accident, the decedent was not standing at ground level so as to be endangered by the concrete forms being placed close to the edge of the flatbed truck (cf. Fontaine v Juniper Assoc., 67 AD3d 608 [1st Dept. 2009]). In view of the foregoing, plaintiffs' Labor Law section 241(6) claim is hereby dismissed.

D & S Builders, DiFiore, and D-Best established their prima facie entitlement to summary judgment dismissing those claims against D & S Builders and DiFiore alleging a violation of Labor Law section 200 and common-law negligence. The deposition testimony of Mr. DiFiore makes clear that D & S Builders and DiFiore did not supervise, direct, or control the method or manner in which the decedent performed his work (see, Lofaso v J.P. Murphy Assoc., 37 AD3d 769, 771 [2nd Dept. 2007]). As previously discussed, Mr. Cali also testified that the decedent's foreman, Christopher Deegan, was the only person who gave the decedent instructions regarding the method and manner in which to perform excavation and foundation work at the site. In addition, plaintiffs do not oppose dismissal of their Labor Law section 200 and common-law negligence causes of action.

In light of the dismissal of the main action against D & S Builders and DiFiore, their third-party claim for common-law indemnification asserted against D-Best is dismissed as academic (see, e.g. , Payne v 100 Motor Parkway Assoc., LLC, 45 AD3d 550 [2nd Dept. 2007]; Hoover v IBM Corp., 35 AD3d 371 [2nd Dept. 2006]; Cardozo v Mayflower Ctr., Inc., 16 AD3d 536 [2nd Dept. 2005]). [*9]

Accordingly, the motions are decided as follows:

(1.)Those branches of the motion by D & S Builders and DiFiore and the cross motion by D-Best for summary judgment dismissing plaintiffs' causes of action under Labor Law sections 240(1), 241(6), and 200 and common-law negligence are granted.

(2.)Plaintiffs' cross motion for partial summary judgment on their Labor Law §§ 240(1) and 241(6) claims is denied in its entirety.

(3.)The branch of D & S Builders and DiFiore's motion for summary judgment on their third-party cause of action for common-law indemnification asserted against D-Best is dismissed or denied as academic.

(4.)That branch of D-Best's cross motion for summary judgment dismissing the third-party complaint against it is granted.

The foregoing constitutes the decision, opinion, and order of the Court.

Dated: October 28, 2010

J.S.C. Footnotes

Footnote 1: It is generally improper for any counsel to refer to a party, witness, or opposing counsel, in open court, written submissions, or testimony, by their first name, unless constrained to do so to avoid confusion. Although no reported New York case has discussed this improper and inappropriate practice, other courts around the country have criticized it. See, e.g., United States v Penson, 526 F3d 331, 338 & n.3 [6th Cir. 2008] [referring to "a dearth of appreciation for the gravity of sentencing a defendant," the federal appellate court criticized the district court for "repeatedly and inappropriately refer(ring) to the defendant by his first name."]; United States v Salameh, 152 F3d 88, 139 [2nd Cir. 1998] [per curiam] [defense counsel "belittled the prosecutors by referring to them repeatedly by their first name only."]; Dotson v Scotty's Contracting, Inc., 86 F3d 613, 618 [6th Cir. 1996] [appellate court stated that reference by defense counsel to plaintiff's counsel by his first name, at oral argument, was "inappropriate."]; Solles v Israel, 868 F2d 242, 245 [7th Cir. 1989] [state, on appeal, acknowledged error of prosecution in referring to witnesses by their first names]; Pendergrast v United States, 416 F2d 776, 785-786 [D.C. Cir. 1968], cert. denied, 395 U.S. 926 [1969] [appellate court, criticized lower court for permitting government's counsel to refer to the defendant as "Mr. Defendant" or by his proper name or first name; "[W]e find the utterances inexplicable" and calling the district court's permission to be "highly questionable" in light of the presumption of innocence cloaking the accused]; United States v Gray, 1996 WL 228461, slip op. at n.22 [N.D. Fla. 1996] [defense counsel's "use of a first name to refer to a party, a witness, or counsel is completely inappropriate."]; Department of Community Health v Risch, 274 Mich App 365, 377, 733 NW2d 403, 411 [2007] [petitioner's counsel "disparaged counsel for respondent by repeatedly referring to her by her first name."; appellate court called such references "unprofessional."]; People v Baenziger, 97 P3d 271, 276 [Colo. Ct. App.], cert. denied by Colo. Sup. Ct. [2004] [defense counsel referred to his own client by his first name nine times, as an inappropriate means of securing jury sympathy, despite repeated admonishments by the trial court, that finally held counsel in contempt; "On this record, we conclude that the trial court acted appropriately and with remarkable patience."].

Every rule has exceptions, as the saying goes, and the reference to a first name is proper, for example, when a court, writing an opinion, has two or several persons with the same last name and is thus constrained to refer to a particular person or party by his or her first name. See, e.g., Castellani v Castellani, 176 Misc. 763, 763 [NYC Domestic Relations Ct. Bronx County 1941] ["For brevity each party is referred to merely by first name."]; see also, Carnivale v Carnivale, 25 Misc 3d 878 [Sup Ct Queens County 2009] [opinion by the undersigned repeatedly referring to the disputing parties as "father" and "son," and not by their first names].