Kircher v City of New York

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Kircher v City of New York 2014 NY Slip Op 30424(U) February 18, 2014 Sup Ct, New York County Docket Number: 100527/09 Judge: Jeffrey K. Oing 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. [* 1] ·SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY ft PART PRESENT: Justice · Index Number: 100527/2009 KIRCHER, TIMOTHY INDEXNO. _ _ _ __ vs. MOTION DATE _ _ __ CITY OF NEW YORK SEQUENCE NUMBER : 003 PARTIAL SUMMARY JUDGMENT MOTION SEQ. NO. - - - The following papera, numbered i to _ _. , were read on this m0tion to/for _ _ _ _ _ _ _ _ _ _ _ __ Notice of Motion/Order to Show Cause -Affidavits - Exhibits Answering Affidavits - Exhibits _ _ _ _ ___...___ _ _ _ _ _ _ __ Replying Affidavits _ _ _ _ _ _ _ _ _ _ __.;..._ __.;..._ _.;..._ __ I No(s) ¢._ _ _ __ I No(s). - - - - 1No(s). - - - - - Upon the foregoing papers, It ts ordered that this motion is w ~ ..., g Q w. f\\..EO IE w ~ >..:.:. !?. ..J z => o· ..J u.. <( I- "' 0 w ~a::: wz "' " i a::: ·~ . w 0 ..J "' 0 _, . <( ' 0 Lt. 0 I- - :z: z w I=' a::: ,,o 0 '·.:& Lt. ~ Dated: 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: ...........................MOTION IS: 3. CHECK IF APPROPRIATE: ................................................ . - K OINS . ~;EffREY 0 0 D DENIED SETTLE ORDER OooNOTPOST . ,J.s.c. ~ ~=·[MSPOSITION CASE DISPOSED GRANTED · 0 GRANTED IN PART 0 ~OTHER SUBMIT ORDER D FIDUCIARY APPOINTMENT . D REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 48 - ------ - ----------x TIMOTHY KIRCHER, Pla Index No.: 100527/09 iff' Mtn Seq. No. 003 - against THE CITY OF NEW YORK ISLAND OPERATING CORP., DECISION AND ORDER ROOSEVELT Defendants. ----------------_f;..-J--l,;--J:--[)-x JEFFREY K. OING I J. : FEB 2 4 2014 Plaintiff, Timothy Kir<tJewy~Kes, pursuant to CPLR 3212, COUNTY C ¢ f=FH< ¢c· ~t:t-r for an order granting him parc'1'1'.!l "'sufttrA-a~ judgment against defendant Roosevelt Island Operat Co ("RIOC") on the issue of statutory liability pursuant to Labor Law§ 240[1]. Background Plaintiff allegedly sustained injuries as a result of an accident that occurred on or about January 19, 2008 on the Manhattan side of the Roosevelt Island Tram, a tramway that connects Roosevelt Island to Manhattan (the "tram") . owned by de RIOC for n City of New York, and The tram is sed to defendant t On the date of the alleged accident, nonparty Doppelmayer, a contractor hired by defendant RIOC to inspect, service, and r the tramway, employed plaintiff as a c. Pl ntif f had been working as a mechanic on the tram since September 2007. As a mechanic, pla iff's duties luded inspecting the tram [* 3] 2 of Index No. 100527/09 Mtn Seq. No. 003 and performing necessa 11 repairs on bearings as and emergen P"mong those i terns that needed occas onal repair were the bearings located in the roller chain assembly area. The four "track ropes," wire ropes that the tram cabins move to move along with the tram, on the proper tracks. s EBT testified at maintenance the order r the tram to run The two s of glass rin Pla y iff re regular although they do not rfect working condition in arings must be in 40-43). ls whenever that consist of a rolling cha ar r (Kir 10/5/10 EBT at pp. are located between two cement walls and at p. 43). To access this enclosed area to make repairs, employees would have to use a ladder to climb an at pp. 40-43). roximately eight-foot tall cement wa Once at top, emplo es would slide down the other si wall and land on a wooden plat Beneath the wooden an approximate basement. The p at p. 42). atform where the accident occurred is seven-story high open space that leads to the form consisted of removable wooden planks, approximately eight-inch wide, twolong. level of the ick, a twelve-foot The removable planks are twenty feet above the street rcher 5/15/09 50-h ne <T at pp . 4 3 - 4 4 ) . Armando Cordova, Doppelmayer's manager at the t According to of the all dent, mechanics had to stand on these planks in order to replace a bearing (Cordova 2/14/11 EBT a~ p. 28). Cordova [* 4] Page 3 of Index No. 100527/09 Mtn Seq. No. 003 11 testified at his EBT that as a general rule workers wear a harness for safety all over the tram "just in case" 29). No harness, however, (Id. at p. could be attached in the enclosed area with the bearings because there was no place to tie it on. According to Cordova's EBT testimony, "because it's enclosed there is no need to [use the harness]" when changing a bearing (Id.). Plaintiff testified at his EBT that he was "told to wear" the harness, but that there was nowhere to tie it 10/5/10 EBT at pp. (Kircher 61-62). On or about January 19, 2008, after receiving an emergency repair work order for a bearing, plaintiff retrieved his safety harness, hard hat, and a new bearing from the tool room, took the tram over to the Manhattan side, and, when on the other side, made his way over to the bearing area (Kircher 10/5/10 EBT at pp. 50-52). Plaintiff then testified that, wearing his safety harness, he climbed up the ladder, got onto the cement wall, slid down on his back, got down on the platform and started walking around to look for the bad bearing (Id. at pp. 55-56, p. 64). To locate the part of the chain with the defective bearing, he had to walk on the wooden platform while looking up at the chain assembly area above him (Id. at p. 74) While walking on the platform in the enclosed bearing area, plaintiff's right foot fell through a hole between the planks and then through safety netting that was located directly underneath the planks (Id., pp. [* 5] Page 4 of Index No. 100527/09 Mtn Seq. No. 003 72-33). 11 Plaintiff further testified that as he was walking he ght foot and right-side his fell through the netting, and lower half of his body, up to his waist, fell through and was hanging below the plan , and his left side was on top of the planks 78, 80). (Id. at pp. 73, Plaintiff testified that he had with both hands to keep from ece of track to hold on to a at pp. 78, lling further as he called for help 82). He alleges he remained fteen minutes that posit (Id. at p. 82). er fifteen minutes, the tram started to take off and the ropes started moving, pulling track rope pulled plainti platform, his Plaintiff testi As the out of the hole and onto the ck hit the planks surrounding the planks at p. 83). iff up a glass his head hit ). ed that after he regained his composure he climbed back over the wall, down the ladder, and made his way over to the tram's cabin attendant, Greg Paravati 84). Pla iff testif i ( at pp. 83-· t he told Paravati about the accident, and Paravati accompanied him back to Roosevelt Island on the tram where Paravati called an ambulance at 85). Discussion Labor Law § 240[1] places an obli owners to de ion on contractors and oyees working in elevat areas with quate protectio~ from gravity-related risks, such as fall [* 6] Page 5 of Index No. 100527/09 Mtn Seq. No. 003 workers and 259, 268 96 NY2d objec~s [2001]). 11 In that regard, section 240[1] holds s contractors, owners, and their ctly liable if they violate the statute and the violation was a proximate ca~se of the plaintiff's l wor NY3d 280, 284 [2003)). 's contributory negligence is immater the duty to provide 1 (Rocovich v ely for and protect employees from falling risks is nondelegable ownership An injured (Id.). This duty rests upon imposes liability on all owners "without regard to encumbrances, and that the duty to provide safe working conditions is nondelegable regardless of control" (Gordon v Eastern Railway Supply, 82 NY2d 555, 559 [1993]). That is, the statute imposes strict liability whether or not the owner or lessor directly contracted with the ured y (Id.). Section 240[1] does not, however, extend this duty to other occupational hazards that do not invo wor rs to suora). related risks For example, tasks that expose (Rocovich, 78 NY2d at 513, if, while in an elevated position, aintiff punctured his foot because of a carelessly placed nail floorboard, 240(1]. Pla he would not ed Gnder section iff must show that "(t]he hazard posed by working at an elevation is that, absence of adequate devices (~, [* 7] Page 6 of Index No. 100527/09 Mtn Seq. No. 003 ladders), a worker mi scaf 11 a fall" t I. Plaintiff's alleged testimonial inconsistencies Defendant RIOC's argues that plaintiff's summary judgment motion should denied. In that rega there are several inconsistencies in pl concerning the events on RIOC asserts that June 11, 2008 affidavit. RIOC points out that ntiff's own Lestimony day of the accident. e first version of events is plaintiff's There, p indicated that he inti arrived and inspected the accident area because he "noticed that parts of the bearing chain had broken off" ~ 2). (Kircher 6/11/08 Aff., RIOC also notes that in this affidavit plaint f failed to mention if or why he was sent to the location to perf orrn an inspection. RIOC aims that aintiff illust the accident at the 50-h Hearing. a second version of RIOC points out that plaintiff's claim in his summary judgment motion is that he was sent to the Manhattan side to make an emergency repair ( 10/5/10 EBT at pp. 47- ). rcher According to RIOC, that conflicts with his 50-h testimony wherein he denied he was performing any type of in ion (Kir er 50-h that plaintiff suggested at the 50-h he previously at p. 37). RIOC notes ng that someone else cted and identified an issue with the bearings. ¢ [* 8] Index No. 100527/09 Mtn Seq. No. 003 RIOC cl 7 of third vers October 5, 2010 sworn EBT. is found in plaintiff's There, pl fell because there was a hole at p. 73). hole (Ki iff testified that he anks the (Kircher 10/5/10 EBT Yet, RIOC notes that plaintiff testified at t hearing fell because the planks shi r 11 50-h to create the 50-h Hearing at pp. 46-47). The fourth inconsistency is in plaintiff's February 27, 2012 affidavit submitted in support of his summary judgment motion. There, p if f states he was inspecting the area, but does not mention that he was sent to inspect the area by his supervisor, is purportedly inconsistent with s 50-h hearing statements. Additionally, RIOC argues that non-party witness testimony con icts with plaintiff's testimony. EBT that a repair of the kind pla Cordova testifi if f descr ires d shutting down the tram (Cordova 2/14/11 EBT at p. 30). aimed that shutdown is never performed during only permitted at night ( ). (Id. at pp. 40-41). Cordova day, and is RIOC contends that Cordova testified that no record of a shutdown 2008 exists at his morning of January 19, RIOC also points out that Tony Zhao, plaintiff's supervisor, testif that he did not provide intiff with a work order for an emergency repair and that he was unaware that plaintiff was working on the Manhattan side of the tram (Zhao 12/21/11 EBT at p. 17). [* 9] A t 1 rs different ..L 1. s not necessari y exist when a able issue of fact pla ' .., 8 of Index No. 100527/09 Mtn Seq. No. 003 vers~ons of the ace 86 AD3d 189, 195 [1st Dept 2011]). In rtment the First granted a p intiff's motion section 240[1] even though the acci judgment pursuant to sum1na parties disagreed on some facts 's details d 460, (194 461 [1st Dept Appellate Court held that when no factual 1993]}. inconsistencies exist as to whe and the accident occu under either version the motion may at461). the fendant would still be li granted plaintif , as re, is the sole unrebutted contention is SS at 462 ["Plaintiff's ( top of the 11 from and gave unsecured ladder when it sl plain ti true even if t is was willing to stand on and "[t]he fact ladder wi it being adequately supported does not diminish defendants' Here, p intiff's four allegedly not alter RIOC's liability. in an e was war which There is no dis that pla ff position, that there were no areas in could secure his safety known hole istent versions do en two planks, rness, and that there was a SL.SJ_,_, Cordova testif at his EBT that "there was maybe a hole [t]here, but that was covered with mesh to keep pigeons out" (Cordova 2/14/11 EBT at p. 24), thus [* 10] Page 9 of Index No. 100527/09 Mtn Seq. No. 003 resulting in his fall. wi~nesses' The non-party testimony conflicts with plaintiff's testimony only as to whether autho zation to be on t he may have negli 11 had Manhattan side of the tram or whether s duties. ly carried out from the record is any Further, absent proof to raise a fact issue e cause of h that plaintiff was the sole prox injuries (Blake, 1 NY3d at 290, II. Labor Law§ 240[1] lding RIOC's also argues that wooden planks are nots under section 240[1]. Instead, RIOC claims that the wooden planks' purpose is to be room. There rmanent re, RIOC contends ooring within a permanent is not liable under section 240[1] if the wooden planks caused plaintiff's injuries. argument is RIOC's ling. In suora, a pla defendant was li under se iff alleged that the on 240[1] because a wooden led platform was used as a makeshift scaffold, and to provide any sa 116). The First explaining y devices, such as a safety belt rtment held that the de (281 AD2d at t was liable section 240[1]'s principle is to protect employees from elevation-related risks The fact that the plaintiff was injured as a result of a "permanent concrete floor," as opposed to a temporary wooden platform, does not [* 11] Page 10 of Index No. 100527/09 Mtn Seq. No. 003 11 ured party's risk from working at an elevated change the height (Id.). r the wooden planking is considered Like in a permanent floor or a scaffold is of no material re the instant action. 240[1] is to ensure The purpose of sect ded with the appropriate protective that employees are instruments to guard them from gravity-related risks while working at elevated levels, not to de work platforms ( As the First Department observed, "[t]he list of safety d ces enumerated in Labor Law§ 240(1) refers to tasks that 'entail a significant risk inherent in t rel at particular task because of elevation at which the task must be performed or at which materials or loads must be pos ions or secured'" and "'[t]he contemplated hazards are those related to the effects of ective devices are called for ... because of a gravity where en the e difference lower level.'" (Id. ion level of the required work and a at 117-118 auoting 78 NY2d at 514). Accordingly, it is ORDERED that plaintiff's motion for st:mmary j issue of li lity on his Labor Law§ 240[1] aim is on the ed; and it is further ORDERED that a trial on the issue fort th; it is further danages shall be held ..·-- ~~---------------- [* 12] Index No. 100527/09 Mtn Seq. No. 003 ORDERED that Page 11 of 11 aintiff serve a copy of this order notice of entry upon counsel for defendant and upon the Clerk of the l Support Office, and shall serve file with said Clerk a note of issue and statement of readiness, and shall pay any appropriate fee t refor, and said Clerk is re fully directed to place this matter on the Part 40 calendar for such t This memorandum opinion constitutes the decision and order of the Court. Dated: )/l9./' 1·" A _, { HON. JEFFREY K. OING, J.S.C. FILED FEB 2 4 2014 -NE,WVORK COUKfY CLERK'S O~

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