Rajkumar v Markham Gardens, L.P.

[*1] Rajkumar v Markham Gardens, L.P. 2013 NY Slip Op 51581(U) Decided on October 1, 2013 Supreme Court, Kings County Battaglia, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 1, 2013
Supreme Court, Kings County

Lester Rajkumar and BELGICIA RAJKUMAR, Plaintiffs,

against

Markham Gardens, L.P., SPIEGEL CONSULTANTS, LLC, and A.D. DIVERSIFIED BUILDERS, LLC, Defendants.



21019/11



Plaintiffs Lester Rajkumar and Belgicia Rajkumar were represented by John Cassisi, Esq. of The Cassisi Law Firm, P.C. Defendants/second third-party plaintiffs Markham Gardens, L.P. and A.D. [or AD] Diversified Builders, LLC were represented by Douglas R. Rosenzweig, Esq. of French & Casey, LLP. Defendant/third-party plaintiff Spiegel Consultants, LLC was represented by Frank Palladino, Esq. of Milber Makris Plousadis & Seiden, LLP. Third-party defendant/second third-party defendant S & S Decorative Corp. was represented by Patricia M. D'Antone, Esq. of the Law Offices of Curtis, Vasile, P.C.

Jack M. Battaglia, J.

On November 6, 2008, plaintiff Lester Rajkumar ("Plaintiff"), a construction worker employed by third-party defendant/ second third-party defendant S & S Decorative Corp. ("S & S"), allegedly sustained personal injuries when, while "carrying building materials", he was "caused to trip, slip and fall on construction materials improperly strewn about the property causing and creating unreasonable hazards to exist." (See Verified Bill of Particulars, ¶ 5-6). Thereafter, Plaintiffs brought the instant action against the purported owner of the property, Markham Gardens, L.P. ("Markham Gardens"), and the general contractor, i.e., defendants/ second third-party plaintiffs A.D. [or AD] Diversified Builders, LLC ("AD Diversified") alleging causes of action for common law negligence and violation of Labor Law §§ 200, 240(1), and 241(6). Defendant/third-plaintiff Spiegel Consultants, LLC ("Spiegel") was the construction manager or owner's representative at the construction site.

S & S's Motion [The Court denies the motion of Plaintiff's employer, S & S Decorative Corp., seeking summary dismissal of all claims for common law or contractual [*2]indemnification, as well as breach of contract for the failure to procure insurance.]

Markham Gardens's and AD Diversified's Motion and Plaintiffs' Cross-Motion [The Court denies the motion of the property owner, Markham Gardens, and the general contractor, A.D. Diversified Builders, seeking summary dismissal of Plaintiffs' Labor Law § 200 and common law negligence claims.]

Markham Gardens and AD Diversified contend that they are entitled to summary dismissal of Plaintiffs' cause of action alleging violation of Labor Law § 240(1) on the grounds that Plaintiffs do "not set forth evidence as to what safety device should have been provided to Plaintiff at the time of the accident", and that the accident was not gravity-related. In their cross-motion, Plaintiffs contend, among other things, that they are entitled to summary judgment on their Labor Law § 240(1) cause of action.

It should be noted that although Plaintiffs' cross-motion is patently untimely, it will be considered since it is based upon the same issues raised in Markham Gardens's and AD Diversified's timely motion. (See McCallister v 200 Park, LP, 92 AD3d 927, 928 [2d Dept 2012]; Whitehead v City of New York, 79 AD3d 858, 860 [2d Dept 2010].)

Labor Law § 240 (1) provides: "All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."

The statute "protects workers from elevation-related hazards when they are injured while involved in [the] enumerated work activities." (Panek v County of Albany, 99 NY2d 452, 455 [2003].) Although the statute imposes "strict" or "absolute" liability of a type (see Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d 280, 286-89 [2003]), "an accident alone does not establish a Labor Law § 240(1) violation or causation" (id. at 289.)

"Liability under Labor Law § 240(1) depends on whether the injured worker's task creates an elevation-related risk of the kind that the safety devices listed in section 240(1) protect against". (Salazar v Novalex Contracting Corp., 18 NY3d 134, 139 [2011].) "The kind of accident triggering section 240(1) coverage is one that will sustain the allegation that an adequate [*3]scaffold, hoist, stay ladder or other protective device would have shielded the injured worker from harm directly flowing from the application of the force of gravity to an object or person." (Id. [internal quotation marks and citations omitted].)

"Labor Law § 240(1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other 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." (Runner v New York Stock Exchange, 13 NY3d 599, 604 [2009] [quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 (1993)].) In determining the applicability of the statute, the "relevant inquiry" is "whether the harm flows directly from the application of the force of gravity to the object." (See Runner v New York Stock Exchange, 13 NY3d at 604.) "The dispositive inquiry . . . does not depend upon the precise characterization of the device employed or upon whether the injury resulted from a fall, either of the worker or of an object upon the worker." (Runner v New York Stock Exchange, 13 NY3d at 603.) "Rather, the single decisive question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential." (Id.)

In determining whether an elevation differential is "physically significant", the Court may consider in the case of a falling object, among other things, "the weight of the object and the amount of force" the object is capable of generating, "even over the course of a relatively short descent". (See id. at 605; see also Willinski v 334 East 92nd Housing Development Fund Corp., 18 NY3d 1, 10 [2011].) Even so, the hazards covered by Labor Law § 240(1) "do not encompass any and all perils that may be connected in some tangential way with the effects of gravity." (See Gasques v State of New York, 59 AD3d 666,667 [2d Dept 2009], affd 15 NY3d 869 [2010][quoting Gonzalez v Turner Constr. Co., 29 AD3d 630, 631 (2d Dept 2006)].) "The purpose of the strict liability statute is to protect construction workers not from routine workplace risks, but from the pronounced risks arising from construction work site elevation differentials, and, accordingly, that there will be no liability under the statute unless the injury producing accident is attributable to the latter sort of risk." (See Runner v New York Stock Exchange, 13 NY3d at 603; see also Davis v Wyeth Pharmaceuticals, Inc., 86 AD3d 907, 909 [3d Dept 2011].)

In support, Markham Gardens and AD Diversified point to the deposition testimony of Plaintiff that he and his coworkers were in the process of erecting balconies; that at the time of the accident, he was attempting to hand channel iron to a coworker who was on a scaffold; that the channel iron was sixteen feet long and weighed 200 pounds; that Plaintiff was holding the channel iron above his right shoulder; that both of his hands were on one end of the iron; that the other end of the iron was resting on the edge of a scaffold where another worker was standing; that there was debris on the floor consisting of pieces of sheet rock, plumbing, brass pieces, electrical pieces, scrap metal, metal studs, and pieces of wood; that plaintiff was standing on top of debris; that after twenty or thirty seconds of holding the iron, his right foot slipped and he was caused to fall on the ground; and that as a result, a portion of the channel iron fell on top of him causing him injury. [*4]

In support of his cross-motion, plaintiff Lester Rajkumar submits his own affidavit in which he avers that he "was involved in an accident while engaged in erecting exterior balconies at two buildings" on Staten Island; that "at the time the accident occurred, [he] was carrying an eight inch wide steel channel beam, approximately (16) feet in length and weighing approximately two hundred (200) pounds"; that his "destination was a scaffold upon which a co-worker was standing, the base of which was approximately 9 feet above ground"; that his "intention was to lift the beam above [his] head in order that it could be grasped by [his] co-worker and placed on the scaffold"; that "while moving into position with the beam lifted above [his] head, [his] foot slipped on construction debris"; that "the weight and bulkiness of the beam prevented [him] from regaining [his] balance and [he] fell to the ground with the beam falling on top of me"; and that he was never provided with any device to assist in lifting the beam onto the scaffold.

Plaintiff also proffers the expert affidavit of Kathleen Hopkins, who avers that she is a "certified site safety manager with over thirty-three years of experience in safety, health and environmental management and site experience in the construction industry"; that based upon her review of, among other things, the pleadings and deposition transcripts, it is her opinion with a reasonable degree of "professional safety certainty", that "the beam was an eight-inch wide steel channel, approximately twelve (12) feet in length, and weighed between one-hundred thirty (130) and one-hundred forty (140) pounds"; that "Plaintiff was not provided with the safety devices to safely hoist the beam"; that "[h]ad the beam been hoisted by powered or manually operated hoisting equipment using stays, slings, hangers, pulleys, braces, irons, ropes, or other devices, the beam would have been moved and elevated under a controlled manner and the Plaintiff's accident would not have occurred"; that the Vermette and Sumner Lifts would have been suitable for Plaintiff's task; that twelve feet long beams are "inherently heavy and bulky"; that "manual hoisting" endangers workers "by subjecting them to the risk of being struck by the beam or suffering other manual handling injuries"; and that Defendants' "violations of Labor Law § 240(1) were direct, substantial and proximate causes of the Plaintiff's accident and injuries."

Markham Gardens and AD Diversified contend that the expert affidavit must not be considered because Plaintiffs failed to serve any expert witness disclosure prior to the filing of the note of issue. However, Markham Gardens and AD Diversified fail to submit any demand or court order calling for the production of Plaintiffs' expert witness disclosure. Indeed, CPLR 3101(d) does not mandate a party to exchange expert witness information prior to the filing of the note of issue.

Markham Gardens and AD Diversified also contend that the Plaintiffs' expert's affidavit must not be considered because it was notarized in New Jersey and there is no certificate of conformity attached to it pursuant to CPLR 2309(c). However, such a defect is not fatal to consideration of the affidavit on summary judgment. (See Fredette v Southampton, 95 AD3d 940, 942 [2d Dept 2012]; Smith v Allstate Ins. Co., 38 AD3d 522, 523 [2d Dept 2007].)

Even so, based upon Plaintiff's own description of how the accident occurred, Defendants [*5]sufficiently establish that there was no physically significant height differential between the beam and Plaintiff, notwithstanding the weight and length of the beam. (See e.g. Oakes v Wal-Mart Real Estate Business Trust, 99 AD3d 31, 39 [3d Dept 2012] ["Notwithstanding the substantial weight of the truss and the significant force generated as it fell due to the force of gravity, however, there was no elevation differential present here, let alone a physically significant elevation differential'".])

In Oakes v Wal-Mart Real Estate Business Trust (99 AD3d at 39), the Third Department in discussing the Court of Appeals's decision in Willinski v 334 E. 92nd Street Hous. Dev. Fund Corp. (18 NY3d at 10), explained that, even though the Court of Appeals has rejected a "same level rule" that automatically precludes liability "where the base of a falling object . . . and the injured worker are on the same level" (see Oakes v Wal-Mart Real Estate Business Trust, 99 AD3d at 38), the Court of Appeals has not abandoned the requirement that there be a physically significant height differential between the plaintiff and the object in order to establish liability under Labor Law § 240(1). Indeed, as noted by the Third Department in Oakes, the Court of Appeals determined in Willinski that there was a four foot differential between the Plaintiff and the pipes that fell on him, and that such differential was physically significant.

In Rodriguez v Margaret Tietz Center for Nursing Care, Inc. (84 NY2d 841, 844 [1994]), the Court of Appeals held that a worker "placing a 120-pound beam onto the ground from seven inches above his head with the assistance of three other co-workers . . . was not faced with the special elevation risks contemplated by the statute." Although Rodriguez preceded both Runner and Willinski, it was recently cited by the Court of Appeals in Ortiz v Varsity Holdings, LLC (18 NY3d 335 [2011]) for the proposition that "[i]t is true that courts must take into account the practical differences between the usual and ordinary dangers of a construction site, and . . . the extraordinary elevation risks envisioned by Labor Law § 240(1)' " (see id. at 339 [quoting Rodriguez v Margaret Tietz Center for Nursing Care, Inc., 84 NY2d at 843)]; see also Oakes v Wal-Mart Real Estate Business Trust, 99 AD3d at 39.) Here, as in Rodriguez, Plaintiff was holding a beam only inches above his shoulder.

In Ghany v BC Tile Contractors, Inc. (95 AD3d 768 [1st Dept 2012]), the plaintiff was "injured when he tripped over a small stone while carrying a stone weighing approximately 100 pounds across an open, grassy area", and "[w]hen plaintiff tripped, the stone he was carrying fell upon his knee and wrist" (see id.) The First Department held that "the protections of section 240(1) [were] not implicated" because "the impetus for the heavy stone's fall was plaintiff's tripping on ground level, rather than the direct consequence of gravity." (See id. at 769.) Here, it is undisputed that the impetus for the heavy beam's fall was Plaintiff slipping on debris, rather than the direct consequence of gravity operating on the beam. (See also generally Whitehead v City of New York, 79 AD3d 858, 859 [2d Dept 2010] [no physically significant height differential where worker struck by rolling steel tubes that dislodged from a load when bindings were being removed]; Garcia v Edgewater Development Company, 61 AD3d 924, 925 [2d Dept 2009] [no physically significant height differential where worker injured his back as he was pulling with his hands a panel of drywall through a second-story window]; Cruz v Neil Hospitality, LLC, 50 [*6]AD3d 619, 620 [2d Dept 2008][no physically significant height differential where worker injured when beam that was 20 feet long and weighed 800 pounds fell on him as he was attempting to move it, along with five other workers by pushing it over another beam atop a 15-foot high dirt mound].)

Accordingly, Markham Gardens's and AD Diversified's motion for summary dismissal of Plaintiffs' Labor Law § 240(1) cause of action is GRANTED.

Markham Gardens and AD Diversified contend that they are entitled to summary dismissal of Plaintiffs' Labor Law § 241(6) cause of action on the ground that Plaintiffs have not alleged a specific Industrial Code provision. In their cross-motion, Plaintiffs seek leave to serve a Supplemental Bill of Particulars to allege violations of 12 NYCRR § 23-1.7(d) and 12 NYCRR § 23-1.7(e)(2) as predicates to their Labor Law § 241(6) cause of action.

"Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon an owner or general contractor to provide reasonable and adequate protection to workers, and a violation of an explicit and concrete provision of the Industrial Code by a participant in the construction project constitutes some evidence of negligence for which the owner or general contractor may be held vicariously liable." (Fusca v A & S Construction, LLC, 84 AD3d 1155, 1156 [2d Dept 2011][internal quotation marks and citations omitted].) "A failure to identify the Industrial Code provision in the complaint or bill of particulars is not fatal to such a claim." (Jara v New York Racing Association, Inc., 85 AD3d 1121, 1123 [2d Dept 2011].) "Rather, leave to amend the pleadings to identify a specific, applicable Industrial Code provision may properly be granted, even after the note of issue has been filed, where the plaintiff makes a showing of merit, and the amendment involves no new factual allegations, raises no new theories of liability, and causes no prejudice to the defendant." (Id.; see also Ramirez v Metropolitan Transportation Authority, 106 AD3d 799, 800-01 [2d Dept 2013].)

In support of the branch of their cross-motion for leave to serve a Supplemental Bill of Particulars, Plaintiffs proffer plaintiff Lester Rajkumar's own affidavit as well as the expert affidavit of Kathleen Hopkins, which sufficiently demonstrates that the proposed amendment does not involve any new factual allegations, raises no new theory of liability, and causes no prejudice to Defendants. With respect to Hopkins's expert affidavit, it should be noted that "the interpretation of an Industrial Code regulation and the determination as to whether a particular condition is within the scope of the regulation generally present questions of law for the court." (See Spence v Island Estates at Mt. Sinai II, LLC, 79 AD3d 936, 938 [2d Dept 2010].) In opposition to Plaintiffs' motion, Defendants contend that neither 12 NYCRR § 23-1.7(d) and 12 NYCRR § 23-1.7(e)(2) are applicable to the facts of the case.

Since Plaintiff testified and avers that he slipped on wet debris, and did not trip, 12 NYCRR § 23-1.7(e)(2) is not applicable. (See e.g. Cook v Orchard Park Estates, Inc., 73 AD3d 1263, 1266 [3d Dept 2010]["Inasmuch as plaintiff alleges that he fell as a result of the slippery condition created by the icy stairway, we conclude that the only regulation that could possibly be applicable is the slipping hazard' provision of 12 NYCRR 23-1.7(d), not the tripping and other [*7]hazards' provision of 12 NYCRR 23-1.7(e)."]; Blysma v County of Saratoga, 296 AD2d 637, 638 [3d Dept 2002]. )

Accordingly, the branch of Markham Gardens's and AD Diversified's motion for summary dismissal of Plaintiffs' Labor Law § 241(6) cause of action premised upon violation of 12 NYCRR 23-1.7(e)(2) is GRANTED, and the branch of Plaintiffs' motion seeking leave to serve a Supplemental Bill of Particulars to include a violation of 12 NYCRR 23-1.7(e)(2) is DENIED.

Defendants contend that 12 NYCRR § 23-1.7(d) is not applicable because the accident occurred in an "outdoor area", and did not occur in a "floor, passageway, walkway, scaffold, platform or other elevated working place" within the purview of 12 NYCRR § 23-1.7(d) (see e.g. Raffa v City of New York, 100 AD3d 558, 559 [1st Dept 2012]; Ghany v BC Tile Contractors, Inc., 95 AD3d at 769). Defendants, however, fail to point to any evidence to support their contention. It is not for the Court to review voluminous exhibits in order to find portions that may support a summary judgment movant's position. Defendants do not point to any authority establishing that the mere fact that the accident occurred in an "outdoor area" takes it out of the purview of 12 NYCRR § 23-1.7(d).

Accordingly, the branch of Markham Gardens's and AD Diversified's motion for summary dismissal of Plaintiffs' Labor Law § 241(6) cause of action premised upon violation of 12 NYCRR 23-1.7(d) is DENIED, and the branch of Plaintiffs' motion seeking leave to serve a Supplemental Bill of Particulars to include a violation of 12 NYCRR 23-1.7(d) is GRANTED.

Markham Gardens and AD Diversified also contend that they are entitled to summary dismissal of Plaintiffs' Verified Complaint on the ground that Plaintiff's conduct in performing work in an area that was wet and filled with debris, even though his supervisor gave him general instructions not to perform work under such conditions, was the sole proximate cause of his accident. Even assuming Plaintiff was so negligent, such conduct was not so "extraordinary or unanticipated" such that it could be considered to be the sole proximate cause of the accident as a matter of law. (See Pichardo v Aurora Contractors, Inc., 29 AD3d 879, 881 [2d Dept 2006]; see also generally Le Conte v 80 East End Owners Corp., 80 AD3d 669, 672 [2d Dept 2011]; Keavey v New York State Dormitory Authority, 24 AD3d 1193, 1195 [4th Dept 2005].) Indeed, as already stated herein, Defendants fail to establish prima facie that they were not negligent, and that their negligence was not a substantial factor in bringing about the accident.

Having failed to demonstrate prima facie that they were free of negligence, the branches of Markham Gardens's and AD Diversified's motion for summary judgment on their claims for common law and contractual indemnification as against Spiegel and S & S are DENIED. (See Mikelatos v Theofilaktidis, 105 AD3d 822, 823-25 [2d Dept 2013]; Belladares v Southgate Owners Corp., 40 AD3d 667, 672 [2d Dept 2007].)

The Court has considered Markham Gardens's and AD Diversified's remaining [*8]contentions and finds them to be without merit.

Spiegel's Motion [The Court denies the motion of the construction manager, Spiegel Consultants, to the extent it sought summary dismissal of Plaintiffs' Labor Law § 200 and common law negligence claims, and the claims of Markham Gardens and A.D. Diversified for common law and contractual indemnification and failure to procure insurance; and denies Spiegel's motion to the extent it sought summary judgment on its claim against S & S Decorative for common law and contractual indemnification, and for failure to procure insurance.]

Summary

[The Court summarizes its rulings on the three motions.]

October 1, 2013___________________

Jack M. BattagliaJustice, Supreme Court