Cu v The I. Grace Co. Commissioned Private Residences, Inc.

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Cu v The I. Grace Co. Commissioned Private Residences, Inc. 2013 NY Slip Op 30118(U) January 23, 2013 Supreme Court, NY County Docket Number: 105483/2010 Judge: Saliann Scarpulla Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 112412013 [* 1] SUPREME COURT QF THE STATE OF NEW YORK NEW YORK COUNTY The following papers, numbered I to -,were read on this motion to/for - Exhibits Notice of MotionlOrder to Show Cause -Affidavits Answering Affidavits - Exhibits ?kgT 14 L. 5 il IdM 4 p- Y &Ul,FP&PCF w I T W T H E b6 ' r INo(s). IW s ) . IW s ) . Replying Affidavits Upon the foregoing papers, it is ordered that this motion is iJ ~5 E ~ MI p !yLLcp4f&Py\FJh 1 4 1 p%WW / c u x - 7 z FILED JAN 2 4 2013 NEW YORK COUNTY CLERK'S OFFICE I. CHECK ONE: ..................................................................... .. - . .-.--. ..................................................................... rl CASE DISPOSED -__ - __ - 9 ........................... MOTION IS: 0GRANTED @DENIED r]GRANT ¬ IN PART 0OTHER 3. CHECK IF APPROPRIATE: ................................................ SETTLE ORDER 0SUBMIT ORDER 17DO NOT POST /J FIDUCIARY APPOINTMENT REFERENCE 2. CHECK AS APPROPRIATE: [* 2] Index No.: 105483/2010 Submission Date: 10/10/20 12 Plaintiff, -against- DECISION AND ORDER THE I. GRACE COMPANY COMMISSIONED PRIVATE RESIDENCES, INC. and DREFIN INVESTMENTS LIMITED, Defendants. X -"-------1__--________11111_1__1__1_____----~"-------""-------~----- For Plaintiff The Feld Law Firm P.C. 150 Broadway, Suite I703 New York, NY 10038 For Defendant I. Grace Commissioned Private Residences, Inc. Goldberg Segalla LLP 170 Hamilton Avenue, Suite 203 White Plains, NY 10601-1717 Papers considered in review of this motion for summary judgment and cross motion for partial summary judgment: Notice of MotiordAffirm. of Counsel in Supp.................................................... Affirm. of Counsel in Opp. to Motion .......................................................................... Reply Affirm. of Counsel in Supp................................................................................ F-1 L E D 3 JAN 24 2013 HON. SALIANN SCARPULLA, 1.: YORK In this action to recover damages for personal injuries, plaintiff &#%?%@@i?d 0FFlcE moves for partial summary judgment against defendants I. Grace Company Commissioned Private Residences, Inc. ("I. Grace") and Drefin Investments Limited ("Drefin") on the issue of liability based on Labor Law 8 240( 1). Cu is an electrician who worked on a major project to renovate a building at 7 East 72"d Street, New York, NY, on February 16,2010. Drefin was the owner of the project and I. Grace was the general contractor of the project. 1 [* 3] Cu alleges that, on February 16,2010, he was working on the third floor, pulling cables up through the ceiling. To perform his work, Cu stood on an 8-foot wooden, AFrame ladder that belonged to his employer, ASR Electrical. Cu claims that as he descended the ladder, he stepped down to the second rung, which fell apart and broke. At his deposition, Cu testified I was coming off the ladder, the step broke, the ladder slipped forward and caused ine to fall back. Cu commenced this action seeking to recover damages for the injuries he sustained as a result of his fall, He asserted negligence and Labor Law @200,240(1) and 241(6) causes of action. Cu now moves for summary judgment on his Labor Law §240(1) claim asserted against I. Grace and Drefin. Cu argues that defendants violated §240(1) because they failed to provide proper protection to prevent Cu from harm directly flowing fiom the application of the force of gravity. Cu also argues that defendants failed to provide other safety devices to protect him in the event that the ladder failed. In opposition, I. Grace argues that there is a triable issue of fact as to whether Cu was the sole proximate cause of his accident. I. Grace argues that Cu is the sole proximate cause of his accident because he tampered with the ladder. 1. Grace subinits an affidavit froin Dr. George Kyanka ( Dr. Kyanka ), a mechanical engineer, who inspected the ladder on November 18,2010. Dr. Kyanka states that the ladder had a loose second step with a missing truss block and a loose truss rod without a nut or washer. According 2 [* 4] to Dr. Kyanka, the nut on the truss rod at the second step was manually removed at some time prior to my inspection as indicated by the condition of the end of the truss rod. I. Grace also submits the deposition testimony of Aaron Oeser, I. Grace s project manager, who inspected the ladder after the accident. Oeser stated that the way the ladder broke seeined as if it wasn t a mechanical failure, it seemed as if it was tampered with. He also stated that when he inspected the ladder on the day of the accident, [tlhere was one nut missing and washer, all the other ones on that side o f the ladder was still tight. If that one was to fall off the rest of the side should have been loose. Oeser also testified that he inspected the site for unsafe conditions three to four tiines per day. I. Grace also argues that Cu did not fall from the ladder. I. Grace submitted an affidavit from Alvin Antonio ( Antonio ), a laborer who worked on the project with Cu. Antonio stated that he did not hear Cu fall although he was five feet from the accident. I. Grace also submits an affidavit from Luis Lorenzi Ramos ( Ramos ), another laborer who worked with Cu. RaInos stated that two or three weeks before the accident, Cu told him that falling off a ladder would be a quick way to make money. In reply, Cu argues that the affidavits of Antonio and Ramos should be disregarded because I. Grace failed to disclose the identity of these two witnesses until two years after the accident. I. Grace claiins that it conducted a diligent search for witnesses and found Antonio and Ramos shortly before they signed their affidavits. 3 [* 5] Discussion A movant seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law and offer sufficient evidence to eliminate any material issues of fact. Winegrad v. New York Uaiv. Med. Ctr., 64 N.Y.2d 851, 853 (1985). Once a showing has been made, the burden shifts to the opposing party to demonstrate the existence of a triable issue of fact. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986); Zuckerman v. City ofNew York, 49 N.Y.2d 557, 562 (1980). A motion for summary judgment must be denied if there is any doubt as to the existence of a triable issue of fact. See Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223,23 1 (1978). Labor Law 5 240( 1) imposes absolute liability on building owners, construction contractors and their agents with regard to elevation-related risks to workers at construction sites. See Rodriguez v. Forest Ct Jay St. Assocs., 234 A.D.2d 68,68 (1st iy Dep t. 1996). The statute was designed to prevent those types of accidents in which the protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person. See Runner v. New York Stock Exchange, 13 N.Y.3d 599,604 (2009); Luongo v. Ct ofNew York,72 iy A.D.3d 609,610 (1st Dep t. 2010). If a plaintiff makes aprima facie showing that the ladder he was using collapsed, there is a presumption that the ladder was an inadequate safety device. Kosavick v. Tishman Construction Corp., 50 A.D.3d 287,288 (1st Dep t 2008). The burden then 4 [* 6] shifts to the defendant, who may defeat plaintiff s suininaiy judgment motion only if there is a plausible view of the evidence - enough to raise a fact question - that there was no statutory violation and that plaintiff s own acts or omissions were the sole cause of the accident, Blake v. NeighborhoodHous. Servs. o f N Y. City, 1 N.Y.3d 280,289 n. 8 (2003); Kosavick, 50 A.D.3d at 288. Here, I find that Cu made aprima facie showing that the ladder he was using collapsed. Cu testified that one of the ladder rungs broke as he was climbing down from the ladder. However, I. Grace raised a triable issue of fact as to whether Cu tampered with the ladder, which tampering was the sole cause of the accident. I. Grace submitted the testimony of Dr. Kyanka who opined that the nut for the second rung ladder was manually removed, and the nut could not have been displaced by normal use or by Cu s alleged fall. In addition, Oeser testified that although the ladder had one missing nut and washer, all of the other nuts and washers on the same side were tight and in place, which would be inconsistent with a break on the second rung. I. Grace s submission of Dr. Kyanka s affidavit and the deposition testimony of Oeser is sufficient to raise a triable issue of fact to defeat Cu s motion for summary judgment. However, I find that the affidavits of Antonio and Rarnos are also admissible to support the motion for suininary judgment. Although I. Grace failed to identify Antonio and Ramos as witnesses in response to Cu s discovery demands, I. Grace offered an excuse for failing to disclose the two witnesses and there is no evidence that this 5 [* 7] fail ire was willful. Anagnostaros v. 81st Residence Corp., 269 A.D.2d 150, 150 (1st Dep t 2000); Yax v. Development Team, Inc., 67 A.D.3d 1003, 1004 (2d Dep t 2009). Moreover, the record indicates that Cu had knowledge of Antonio and Rarnos because they worked together at the site. Yax, 67 A.D.3d at 1004. In accordance with the foregoing, it is hereby I I ORDERED that plaintiff Mario Cu s motion for partial summary judgment against defendants I. Grace Commissioned Private Residences, Inc. and Drefin Investments Limited on the issue of liability based on Labor Law 0 240( 1) is denied. This constitutes the decision and order of the Court. Dated: New York, NY January 23 , 2 0 13 ENTER: 6

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