Wozyny v 875 Park Ave. Corp.

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Wozyny v 875 Park Ave. Corp. 2013 NY Slip Op 32429(U) October 8, 2013 Sup Ct, New York County Docket Number: 115665/2010 Judge: Barbara Jaffe Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 10/10/2013 1] INDEX NO. 115665/2010 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 10/10/2013 SUPREME COURT THE STATE OF NEW NEW· ORK COUNTY PART PRESENT: Justice Index Number: 115665/2010 LUKASZ WOZNY vs. 875 PARK AVENUE SEQUENCE NUMBER: 003 - INDEX NO. MOnON DATE MOTIONSlQ. SUMMARY JUDGMENT The folloWihg papers. numbered 1 to _ ¢ were on this motion toIfor S Notice of MotiontOrder to Show Cause - Affidavits Answerlng·Affidavits - I No(s). I No(s). Exhibits Replying Affidavits Upon the foregOIng pa.,.,., It Is ordered that this Is 1. CHECK ONE: ......................................_ ¢ ¢ ¢ ¢ ¢ ¢. ¢ ¢ ¢ ¢. ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢.. ¢ ¢. CASE DISPOS7~ 2. CHECK AS A~TE: ...........................MOTION IS: GRANTED -3. -ctleCKw AP~~ ................................................. SETTLE ORDER DO NOT POST ~ DENIED /16 [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK : lAS PART 12 ---------------------------------------------------------------------------)( LUKASZ WOZNY, Plaintiff, Inde)( No. 11566512010 Mot. seq. no. 003 : DECISION AND ORDE* - against- 875 PARK AVENUE CORPORATION, and BROWN HARRIS STEVENS RESIDENTIAL MANAGEMENT, LLC, Defendants. -------------------------------------------------------~-------------------)( BARBARA JAFFE, J.: For defendants: Jan Kevin Myers, Esq. Newman Myers et at. 40 Wall St. New York, NY 10005 212-619-4350 For plaintiff: Marc E. Freund, Esq. Lipsig Shapey et al. 40 Fulton St. New York, NY 10038 212-285-3300 i I Plaintiff moves pursuant to CPLR 3212 for an order granting it summary judgment on ~ts Labor Law § 240(1) claim. Defendants oppose. 1. BACKGROUND I On October 18,2010, plaintiff is alleged to have fallen while climbing onto the platf0rfn of a scaffold in order to perform masonry work at 875 Park Avenue in Manhattan, sustaining dn injury to his foot. (NYSCEF 44). On or about April 1, 2011, plaintiff commenced this action against the building's owner and operator. (NYSCEF 2). At an e)(amination before trial (EBT) held on November 3, 2011, plaintiff testified that , the scaffold was longer than its supports, which created a see-saw effect, and that when he pu~led i ! his leg over a guardrail to access the platform, one side abruptly tipped, causing him to fall onto the platform. (NYSCEF 47). [* 3] By affidavit dated February 17,2012, one of plaintiff s co-workers, Bogdan Antczak, who was on the scaffold with plaintiff, denied that the scaffold had tipped. Rather, he saw plaintiff slip after having climbed over the guardrail and was already standing on the platform. (NYSCEF 59). A week later, by affidavit dated February 25,2012, Antczak stated that he did not see plaintiff fall but heard it happen as he stood on the platform waiting for plaintiff to join him, ~d I did not see him until he had already fallen onto the platform. Thus, Antczak did not see whet~er I i i plaintiff had fallen while climbing over the guardrail, or while standing on the platform. Antczak also acknowledged having told insurance investigators that he did not see plaintiff fall. (NYSCEF 60). At an EBT held later that day, Antczak disavowed the February 25 affidavit, testifying that plaintiffs brothers had visited him on February 25 bringing beer, and that after drinking eight to ten shots of vodka, he agreed to sign, without reading, the affidavit which the brothers: falsely represented to be an insurance document unrelated to plaintiff s personal injury action. I He denied ever meeting the notary or plaintiff counsel's interpreter who allegedly translated t~e I ! affidavit. Anczak also testified that he was approximately six to eight feet away from plaintiff when he saw him fall on the platform, and that he assumed that plaintiff had tripped on a brick, I as brick and mortar were the only objects on the platform. He also denied having heard plaintfff fall. (NYSCEF 51). II. CONTENTIONS Plaintiff relies on the affidavit of an expert who asserts that the instability of the platform, as well as defendants' failure to provide direct access to it, constitute violations of Labor Law § 240(1). (NYSCEF 41). Plaintiff argues that his testimony that he was injured while I 2 [* 4] entering the platform entitles him to summary judgment, and that Antczak's conflicting versio~s I render his testimony not credible. (NYSCEF 39, 64). Defendants reject plaintiffs account of the accident, as such circumstances would havel also caused Antczak to fall. They rely on Antczak's testimony and plaintiffs injury as more consistent with a trip than with an elevation-related trauma. These discrepancies, as well as Antczak's allegations of witness tampering artd the fraudulent February 25 affidavit, in defendants' view, create triable issues. (NYSCEF 57). III. ANALYSIS A party seeking summary judgment must demonstrate prima/acie, that it is entitled to judgment as a matter of law, by presenting sufficient evidence to negate any material issues of fact. (Forrest v Jewish Guild/or the Blind, 3 NY3d 295,314 [2004]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851,853 [1985]). If the movant meets this burden, the opponent must offer admissible evidence to demonstrate the existence of factual issues that require a trial. (Zuckerman v City o/New York, 49 NY2d 557, 562 [1980]). If the movant does not meet this burden, the motion must be denied, regardless of the sufficiency of the opposition. (Winegrad, 64 NY2d at 853). Summary judgment should not be granted where there is any doubt as to tM I' existence of a factual issue or where the existence of a factual issue is arguable. (Forrest, 3 NY3d at 314). Moreover, to sustain its burden, a movant cannot simply reveal gaps in its opponent's case, rather it must "affirmatively demonstrate the merit of its claim or defense." (Mennerich v Esposito, 4 AD3d 399, 400 [2d Dept 2004], quoting George Larkin Trucking Lisbon Tire Mart, Inc., 185 AD2d 614,615 [4th Dept 1992]). cJ. v I I "Credibility determinations, the weighing of the evidence, and the drawing of legitimate I' inferences from the facts are jury functions." (Forrest, 3 NY3d at 315, quoting Anderson v. 3 [* 5] Liberty Lobby, Inc., 477 US 242, 255 [1986]). Thus, a court does not assess credibility on a motion for summary judgment unless it is clearly apparent that the issue raised is feigned. (Ferrante v. American Lung Assn., 90 NY2d 623, 631 [1997]; Glick & Dolleck v Tri-Pac Exp~rt Corp., 22 NY2d 439, 441 [1968]). I I To prevail on a Labor Law § 240(1) claim, a worker must show that he was injured wh¢n an elevation-related safety device failed to perform its function to support and secure him or her from injury. (Ortega v City of New York, 95 AD3d 125 [1 st Dept 2012]). A defendant violates the statute when it fails to provide a worker with adequate protection from a reasonably preventable, gravity-related accident. (Id.). However, a defendant's violation of the statute, by itself, is insufficient to establish liability, as the plaintiff must demonstrate that the violation was ! a contributing cause to his injury. (Blake v Neighborhood Hous. Services of New York City, In~., I 1 NY3d 280,287 [2003]; Panek v County ofAlbany, 99 NY2d 452,457 [2003]). Therefore, a! I plaintiff sets forth, prima facie, entitlement to summary judgment by establishing: 1) a violation of the defendant's duty to provide necessary safety devices for workers at an elevation, and 2) I I that the violation was a proximate cause ofpliaintiffs injury. (See Buckley v Columbia Gramm~r I and Preparatory, 44 AD3d 263, 268 [lst Dept 2007]; Vergara v SS 133 W 21, LLC, 21 AD3d! 279 [1 st Dept 2005]). ! Here, plaintiff has satisfied his prima facie burden by testifying that he fell while tryin$ I to climb over an unstable scaffold, and throu&h his expert's testimony, that these conditions I i I constitute violations of Labor Law § 240(1). (See Ortega, 95 AD3d at 130 [plaintiffs entitled tb summary judgment upon showing through admissible evidence that defendants failed to prote¢t them from gravity-related hazards]). ! I While Antczak contradicted his February 25 affidavit at his EBT, he maintains that thel I 4 [* 6] February 25 affidavit was the result of his having been deceived by plaintiffs brothers. As his: I EBT testimony is not inherently incredible (Cf Espinal v Trezechahn 1065 Ave. ofAmericas, i ! i LLC, 94 AD3d 611,613 [1 st Dept 2012] [party's version of events were "physically impossible", "contrary to experience" and "incredible as a matter of law"]; Pichardo v Urban Renaissance Collaboration Ltd. Partnership, 51 AD3d 472 [1 st Dept 2008] [general contractor's testimony attempting to rebut plaintiffs Labor Law § 240(1) claim was "simply incredible" and insufficient to raise triable issue]), and is consistent with his February 17 affidavit (see Barco ~ Green Bus Lines, Inc., 62 AD3d 923,924 [2d Dept 2009] [plaintiffs affidavit was sufficiently consistent with her prior deposition testimony; did not create feigned factual issue]), it need ndt ! I be disregarded (see Crespo v HRH Const. Corp., 2009 NY Slip Op 51893 [Sup Ct NY Countyl I i 2009] [rejecting contention that non-party eyewitness feigned anything]). Antczak also testifi~d that plaintiff tripped after he was already standing on the platform, evidence that an elevationrelated violation was not a proximate cause of plaintiffs injury. The legal authority cited by plaintiff is distinguishable. For example, in Hernandez v Argo Corp., evidence that the plaintiff had detached himself from a safety rope before he fell was held insufficient to rebut the plaintiff s initial showing that the defendants had violated , Labor Law § 240(1), and that therefore, plaintiff s conduct could not be deemed the accident' J sole proximate cause. (95 AD3d 782, 783 [1 st Dept 2012]). Here, by contrast, Antczak's testimony demonstrates that any defect in the scaffold did not cause plaintiff s injury. In both i Romanczuk v Metropolitan Ins. And Annuity Co., 72 AD3d 592 (1 st Dept 2010), and Vergara, i21 i AD3d at 280, summary judgments were granted the plaintiffs despite conflicting eyewitness i I i testimony, because under either account of the accident, the defendants' violation of Labor Law , § 240(1) proximately caused the accident. Here, however, Anctzak's testimony, ifcredited, 5 [* 7] entirely rebuts plaintiff s position. Consequently, defendants have raised an issue of fact as to the cause of plaintiffs injury sufficient to warrant a trial. IV. CQNCLUSION Accordingly, it is hereby ORDERED, that plaintiffs motion for an order granting it partial summary judgment on its claim pursuant to Labor Law § 240(1) is denied. ENTER: DATED: October 8, 2013 New York, New York 6

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