Guaman v 1963 Ryer Realty Corp.
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Guaman v 1963 Ryer Realty Corp. 2014 NY Slip Op 30744(U) February 26, 2014 Supreme Court, Bronx County Docket Number: 307124/2010 Judge: Norma Ruiz 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] FILE~ Feb 27 2014 Bronx County Clerk NEW YORK SUPREME COURT----- COUNTY OF BRONX PART22 SUPREME COURT OP THE STATE OF NEW YORK COUNTY OF BRONX Index No.: 30712412010 NICHOLAS GUAMAN and PAULA MAYANCELA Plaintiff, -against- Present: HON. NORMA RUIZ 1963 RYER REALTY CORP., GAZJVODAREATLY CO. INC., and A SAAD CONTRACTING, INC., Defendants. 1963 RYER REALTY CORP. Third-Party Plaintiff Third-Party Index No.: 84186/10 -against- AP TEK CONSTRUCTION INC., and AP TEK RESTORATION INC., Third-Party Defendants AP TEK CONSTRUCTION INC. and AP TEK RESTORATION INC., Second 'fhird-Party Plaintiff -against- Second Third-Party Index No.: 84186/10 MUSHTAQ AHMAD, DIN CONTRACTING, and J\ SAAD CONTRACTING, INC., Second 'l'hird-Party Defendants A SAAD CONTRACTING, INC., Third Third-Party Plaintiff -against- AP TEK CONSTRUCTION INC. and AP TEK RESTORATION INC., Third Third-Party Defendnnts Third Third-Party Index No.: 84186/10 [* 2] FILED Feb 27 2014 Bronx County Clerk The following papers numbered 1 to Read on this motion SUMMARY JUDGMENT Noticed on_ _ and duly submitted as No. _on the Motion Calendar of~3~/4~/~l~3_ _ __ Recitation, as required by CPLR 2219(a), of the papers considered in the review of this Motion to: Papers Numbered Notice of Motions and Affidavits Annexed............................ . Notice of Cross Motion and Answering Affidavits ................ . Replying Affidavits ............................................................... .. Memorandum of Law .............................................................. . Other: Upon the foregoing papers, the }Oregoing motion(s) [and/or cross·motions(.<ii), as indicated below, are consolidated./Or disposition] and decided as follows: This is a labor law action in which the plaintiffNicolas Guaman ("Guaman") seeks damages for injuries he sustained when he 1e11 otf a scaffold on August 18, 2010 while performing pointing, caulking and lintel work on the brick exterior of the six story multiple dwelling building owned by defendant 1963 Ryer Realty Corp ("1963 Ryer Realty") and managed by defendant Gazivoda Realty Co. ("Gazivoda"). In August of2010, Anthony Gazivoda the President of both corporate defendants Gazivoda Realty and 1963 Ryer Realty, hired defendant A Saad Contracting, Inc. (" Saad") to perform some window lintel replacement on the top floor, spol pointing and caulking. Saad applied for the necessary work permits and then contracted the work to the plaintiil.,s employer, third party defendant AP Tek Restoration Inc. ("Ap Tek"). On the day of the accident, Guaman reported to work, along with his foreman Shafaqat Ali ("Ali"), Santiago Pumaqucza ("Purnaque:ta") and Chico Luis Mayancela ("Mayancela"). Guaman and Pumaqueza were working from a hanging two- point suspension scaffold. It is alleged that they both obtained "Certificates of Fitness" which permitted them to work on scaffolds. The scaffold in question was erected the day before (it was the second day of work) on the right side of the building. The necessary clamps, C-hook, wires and ropes which were needed to support the scaffold were all attached lo the root: The scaffold located parallel to the building had one railing which ran lengthwise. Guaman and Pumaqucza each had a lifeline (rope) which was attached to the root: went over the parapet wall and extended down to the ground. Each lifeline had a rope-grab (metal device). 2 [* 3] FILED Feb 27 2014 Bronx County Clerk In order to secure himself to the lifeline, Guan1an would connect the clip at the end of the three feet long lanyard of his safety harness to the lifeline's rope-grab. Guaman alleges that on August 17, 2010 he and Pumaqueza worked on the scaffold without incident. At the end of the day, the scaffold was lowered and left hanging about 10 feet above the ground level, over an adjacent parking lot. On the day of the accident, Guaman, Pumaqueza, Ali and Mayancela went to the roof to move and reposition the clamps, C-Hooks, wires and ropes to continue working on the next section of the area that needed pointing, caulking and lintel work. Then the scaffold was repositioned and lined up with the C-Hook:s. While on the ground floor, Ali and Mayancela pulled on the scaffold's ropes to hoist it up to the roof level. Once raised to the top, the scaffold's platform was at the parapet level of the roof. Guaman alleges that prior to entering the scaffold, he put on his safety harness with the three foot long lanyard. He then attached the metal clip of the lanyard onto the rope-grab already attached to the lifeline. Guaman contends that Ali attached the rope-grab onto the lifeline. He pulled on the lanyard to test it, to make sure it was snug and felt resistance. He believed he attached to the lifeline correctly. He then climbed over the parapet wall onto the scaffold. He intended to tie o1I the scaffold in order to take control of the scaffold (i.e. switch the control from the persons on ground level, to persons on the scaffold). He walked to his right and tied off the scaffold on its right side. He began walking over to the left side to tie it off. When he reached the middle of the platfOrm, the scaffold suddenly tilted, propelled it into a vertical angle, causing Guaman to fall through the end of the platform which did not have a rail and plummet six floors to the ground level. Guaman alleges he sustained the following injuries as a result of the fall: traumatic brain injury; cognitive impairment; memory loss and impairment; impaired speech and ability to communicate; multiple fractures of the left upper extremity resulting in amputation of the left arm above the elbow; ruptured aorta with surgical repair; multiple spinal fractures; comminuted fracture in the left iliac bone and isehium; bilateral f!acture of the pelvis; comminuted fracture involving the right sacral wing; ruptured spleen with spleeneetomy; kidney insuIT1ciency; pulmonary and respiratory insufficinecy; aortic dessection, CI traverse process fracture; right LS pars fracture; right SI pedicle fracture; left 2-7 rib ffactures; right 3-6 rib fractures; left brachia) artery transaction; left sacral iliac dislocation, left open humerus i!acture; left comminuted distal radius fracture; 3 [* 4] FILED Feb 27 2014 Bronx County Clerk hydrocephalous; rhabdomyolitis; hemoperitoncum; multiple skull fractures; 3cm thoracic aortic injury; malnutrition; bactercmia; and urinary tract infection. Plaintiffs contend that defendants violated 2008 New York City Building Code section 3314.10.1 which requires that the installation, or change of position of any suspended scaffold, be performed under the supervision of a licensed master, or special rigger, or a licensed sign hanger or a designated foreman, who shall ensure the safety of such operation. Shan Bhutta ("Bhutta''), the President of Ap Tek, was a licensed Master Rigger, who only visited the site for approximately one hour on August 17, 2010. There was no other Master Rigger present at the work site. Bhutta testified on behalf of Ap Tek. He admitted that Ali was his employee but denied that he was a foreman. He also admitted that he employed Guaman in 2010. Prior to hiring the plaintiff, he had Guaman demonstrate his knowledge of scaffolds. He also testified that it is the responsibility of the person entering the scaffold to attach the rope grab onto the lifeline. Bhutta learned of this job from Ali. According to Ali, the owners were willing to pay $28,000.00 to$ 30,000.00 for the work. After Ali described the size of the building and the number of windows that needed work, he agreed to do the work and instructed Ali to give his company's name to the building owner. Ile obtained the necessary "c-hook" hook confirmation number from the City and told Ali he would meet him with the crew at the job site. Upon arriving and seeing what work needed to be done, Bhutta decided the agreed upon amount was insufticient and he allegedly told Ali to inform Mr. Waris of Saad that he would complete the work for $45,000.00. Thereafter, he told Ali to remove his workers and equipment and only take the job if the price was increased. He then left the work site. The following day, Ali called Bhutta and infonned him of Guaman' s accident. Bhutta asked why they were working at the subject premises, to which Ali responded that he spoke with Mr. Waris. Ali allegedly told Bhutta that the accident happened because Guaman did not clamp the harness with the lifeline and the guy holding the rope on the other side released it, causing the scaffold to become unbalanced. Subsequently, Ali visited Bhutta at his home and explained that Mr. Waris complained that $45,000.00 was too much money and offered Ali the job under his supervision. Mr. Waris allegedly stated that he would get the C-Hook confirmation and provide a supervisor 4 [* 5] FILED Feb 27 2014 Bronx County Clerk Ali was also produced for a deposition. Ali contends that Bhutta and Waris (the principle of Saad) were related, possibly cousins and are from a village in their native country of Pakistan. According to Ali, Bhutta wanted $60,000.00 to $70,000.00 for the job. After Bhutta left the job site, Ali purportedly communicated the price to Waris and he allegedly told him to forget about Bhutta. Waris allegedly stated he could provide Ali with a supervisor who was a licensed rigger and Ali and the laborers could split the $35,000 to $45,000.00. Ali then agreed. Ali contends that the necessary tools were on the roof and the scaffold was on the ground level on the side of the building adjacent to the parking lot. Since there was no supervisor they did not perfOrm any work onAugustl?,2010 On the day of the accident, a supervising licensed rigger had yet to appear on site. By that time, Ali informed Warris that because the scaffold was blocking the ingress and egress to a parking lot, not only were people complaining, but the owner of the lot was demanding its removal. Warris assured Ali that the supervisor was on the way so they should just raise the scaffold. As a result, Ali decided to move the scaffold despite lhe absence of the supervising licensed rigger. When the scaffold was halfway up, Guaman went up to the roof. Ali saw him putting on the harness belt, but did not see the harness' lanyard clipped onto the rope-grab of the lifeline. Admittedly, his perspective on the ground level did not allow him an opportunity to sec whether the lanyard was clipped to the lifeline or not. The scaffold would be secured once both ends were tied off. Accordingly, after Guaman stepped onto the scaffold, Ali and other laborers held onto the ropes on the ground level awaiting the tie-off, to then release the ropes. After Guaman secured the ropes on the right side of the scaffold, he yelled do'Wll to Ali who was holding the corresponding rope, informing him that the right side was tied - off. At that point Ali released the rope and began to coil it. He then realized that the laborer (Mayancela) who had been holding on to the rope on the left side also let go of the rope before Guanman had tied- ofi'the left rope. Although Ali estimated that a mere second elapsed between the time he let go of his side of the rope and Mayancella released the left - side, Ali was unable to grab that rope. Ali blamed the accident on Mayanccla prematurely letting go of the rope. Guaman landed in front of Ali with 5 [* 6] FILED Feb 27 2014 Bronx County Clerk his safety harness still attached to his body, but not connected to the lifeline. The harness was eventually cut off by emergency responders at the scene. Ali contends that when questioned, Pumaqueza stated that Guaman entered the scaffold without attaching his harness to the lifeline. The court notes that Pumaqueza was never deposed nor did he provide an affidavit. PLAINTIFF'S MOTION Plaintiff Guaman moves for partial summary judgment on the issue of liability. Plaintiff argues that defendants failed to provide adequate fall protection since the scaffold did not have any railings on either side, no one inspected the scaffold connections or plaintiffs connection to his lifeline and the connection to the lifeline was ineffective. Thus, they arc entitled to partial summary judgment on the issue of liability pursuant to Labor Law §240(1). With respect to causation, plaintiff argues that the scaffold tilted hecausc Mayancela prematurely released the rope he was holding before Guaman tied off at the roof level. Tilting into a vertical position the premature release of the rope, coupled with a lack of a guardrail on the sides of the scatlOld and the inadequate fall protection caused Guaman to plummet six stories and land on the ground floor. In addition, plaintiffs contend Guaman's amputation of his left arm resulted in a grave injury, as defined hy Workers Compensation Law§ 11. proper third party de1endant. Thus, his employer Ap Tek is a Additionally, plaintiff contends that based on the Workers's Compensation Board's determination that the plaintiffwas employed by Ap-Tek, Ap-Tek is estopped from denying it was Guaman's employer. In support of the motion, Guaman annexed an affidavit, an affidavit from his expert, excerpts from deposition testimony of various witncssess, photographs, copies ofthe Workers' Compensation Board Decision and records from Occupational Sa1ety and Health Administration ("OSHA") and the New York City Department of Buildings ("NYCDOB"). Plaintiff' s expert Herbert Heller, P .E. stated in his a1lidavit that because a worker's safety or even rue depends, in part, upon the integrity of the hook - up of the rope grab to the safety line, as well as, the worker's hook- up of his clip to the safety line, it is imperative that a licensed rigger be present and actively participate in each phase of the scaffold operation which includes checking 6 [* 7] FILED Feb 27 2014 Bronx County Clerk all attachments. He opined: the defendants violated Labor Law§ 240; 12 NYCRR 23 §23-5. l G)(I) required the open sides of certain scaffold (including the subject scaffold) be provided with safety railings; 2008 New York City Building Code§ 3314.4 required that all suspended scaffold be inspected by a licensed rigger or his foreman before each use; and OSHA Subpart L - Scaffolds § 1926.451(g)(l)(ii) required each employee on a single-point or two-point suspension scaffold be protected by both a personal fall arrest system and guardrail system. He further opined that based upon Guaman' s testimony that he hooked his harness to the lifeline, the Labor Law§ 240 (I) provides as follows: 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 ... Labor Law§ 240(1). The ('ourt of Appeals has held that "the breadth of the statute's protection has ... been construed to be less wide than its text would indicate" (Runner v. New York Stock Exchange, Inc., 13 NY3d 599. 603 (2009); see also Ilarris v. Cily ufNew York, 83 AD3d 104, 111 [!st Dept 2011][Section240[1] must he construed as liberally as may be to accomplish its purpose]). The Court noted that 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 (Id at 604). When the circumstances of a worker's task create a 'risk related to an elevation differential, a basis for the imposition of liability under Labor Law § 240 (1) is established" ((~ruz v. Turner, 279 AD2d 322, 322 [!st Dept 2001]). The ·'single decisive question is whether plaintiff's injuries where the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Runner, supra; Ortega v City of New Yurk, 940 N.Y.S.2d 636[1" Dept 2012]). The court finds that plaintiff Guan1an has met this burden and established that his injuries were a direct 7 [* 8] FILED Feb 27 2014 Bronx County Clerk consequence of the defendants failure to provide adequate protection against falling from the scaffold. He testified that he pltt on his harness and connected it to the lifeline prior to getting onto the scaffold. Notwithstanding, when the scaffold tilted he fell six stories to the ground. The court is unpersuaded by the defendants' arguments raised in their respective opposition papers that the plaintiff was the sole proximate cause of the accident and was a recalcitrant worker. By now it is well settled that contractors and owners have a statutory duty to provide adequate safety devices for their workers. The failure to provide a safety device is a per se violation of the statute for which owners and conti-actors are strictly liable whether or not they supervised or controled the work. Auriemma v. Biltmore Theatre, LLC., 2011 WL 240404, 3 (N. Y.A.D. 1 Dept.). "Where the accident is caused by a violation of the statute, the plaintiff's own negligence does not furnish a defense" (Cahill v. Tri born ugh Bridge and Tunnel Authority, 4 N.Y.3d 35, 39 [2004]). However, ''where a plaintiffs own actions are the sole proximate cause of the accident, there can be no liability" (id emphasis added). The "sole proximate cause detense" requires the defendants to establish that the plaintiIT"had adequate safCty devices available; that he knew both that they were available and that he was expected to use them; that he chose for no good reason not to do so; and that had he not made that choice he would not have been injured'' (Cahill, supra at 40). With respect to the recalcitrant worker, the Court of Appeals stated in Cahill, supra that, ''the controlling question ... is not whether plaintiff was 'recalcitrant,' but whether a jury could have found that his own co11duct, rather than any violation of Labor l,aw § 240 ( 1), was the sole proximate cause of his accident." Id at 39-40. It is undisputed that \\ hen the plaintiff entered the scaffold he had on a safety harness. He 1 testified that he hooked the harness onto the safety line. It is oodisputed that while on the scaffold, one of the suspension ropes \Vas prematurely released and caused the scaffold to tilt into a vertical position. lt is also undisputed that the subject scaffold lacked security side rails. The defendants gloss over Guaman's deposition testimony that he connected the harness to the rope-grab of the lifeline. Instead they argue, in essence, that had Guaman collllectcd lo the lifeline then he would not have fallen. llowever, none of the defendants offered proof sufficient enough to raise an issue of fact with regard to whether or not Guman tied-off to the lifeline. A close reading of Ali's deposition testimony makes it clear that he lacked personal kno¥iledge of these facts. That is, he had 8 [* 9] FILED Feb 27 2014 Bronx County Clerk n6 actual view of the plaintiff's lanyard clip and the fact that he fell is insufficient to prove Guaman failed to attach himself to the lifeline. Moreover, Pumaqueza's are hearsay and is insufficient to raise an issue of fact. On the one hand, the plaintiffs argue that the defendants are liable under Labor Law§ 240(1) because the lifeline malfunctioned and failed to protect Guaman from falling. The proof offered is Guaman's testimony that he hooked onto the lifeline and the fact that he did indeed fall. On the other hand, you have the defendants arguing the exact opposite, if the plaintiff would have attached l1imselfto the rope-grab of the lifeline he would not have fallen. There was no proof submitted from anyone with personal knowledge that Guaman entered the scaffold without cormecting to the lifeline. According to Ali, the only other person on the roof was Pumaqueza. Thus, he is the only individual who could have witnessed whether or not Guaman attached his harness to the lifeline. Yet, defendants did not procure an affidavit from Pumaqueza. Moreover, defendants' theory implies that the subject li!eline and all its components were infallible, something none of the defendants have proven. Defendant Saad's expert Terry Callendrillo ("Callcndrillo") opined that based on the parties deposition transcripts and photographs taken after the accident that the plainti!l''s fall arrest system did not fail. If the plaintiff had clipped the lanyard from his harness onto the rope- grab of the lifeline and tl1e rope failed, the rope-grab would have been foWid on the ground next to the plai11tiffafler the fall. Or, plai11tiff's lanyard, harness or lifeline would have broken the fall. lie further opined that there was no evidence that this occurred. The court notes that Callendrillo did not annex a copy of the photographs he relied on in forming these conclusions. The court further notes that in the photographs annexed to Saad's cross motion at "exhibit 8" there is · a photograph identified as "defendant's exhibit M" dated December 23, 2011 which appears to depict a rope-grab laying on the ground (it is unclear whether this is on the roof or on the street). Neither Callendrillo nor any defendant provided an explanation as to why the rope-grab depicted in the picture is not attached to any of the lifelines. For the foregoing reasons, the court finds that the defendants failed to raise an issue of fact whether or not he was the sole proximate cause of the accident, or a rerecalcitrant worker. Moreover, the court disagrees with defendants contention that Guaman' s affidavit submitted in support of the motion is inconsisent with his prior deposition testimony. After reading through 9 [* 10] FILED Feb 27 2014 Bronx County Clerk the entire three days of deposition testimony (annexed to cross motion), the court finds his affidavit is consistent with Guaman's deposition testimony. Accordingly, the plaintiff's motion is granted to the extent that plaintifl'Nicolas Guaman is granted partial summary judgment on the issue of liability pursuant to Labor Law § 240( I). Defendants' respective cross motions to dismiss the plaintiiT"s Labor Law§ 240(1) claim arc denied. In addition, the Court declines to consider defendants' motions for summary judgment dismissing the plaintiffs remaining claims based on Labor Law §§ 200, 241 (6) and common law negligence. ln granting plaintiffs motion for partial sum1nary judgment based upon Labor Law 240(1 ), The plaintiffs damages are the same regardless of the theory of liability and plaintiff can only recover these damages once. As such, defendant's argument concerning the lack of merit of the other theories of liability contained in the complaint are academic (see, Jal/ow v. Kew Gardens Hills Apartments Owners, 803 N.Y.S.2d 18 [Sup. Ct. Bronx Cty. 2005] citing Torino v. KLM Construction Co. Inc., 257 AIJ2d 541 [!st Dept 1999]). A SAAD'S AMF:NDED CROSS MOTION That portion of defendant Saad's cross \.Vhich seeks to dismiss the claim of plaintiff Paula Mayancela is granted. Plaintiff Paula Myancela is not entitled to make a claim for loss of consortium since it is undisputed that she and Nicolas Guaman are not married. The court denies the re1nai11ing branch ofthe motion in vvhich Saad seeks summary judgment on its third party complaint against the third party defendant Ap Tek for common law indemnification. Movant failed to annex a copy of its second third party complaint and any of the pleadings related to the second third party complaint as required by CPLR § 3212. Accordingly, defendant Saad's amended cross motion is granted only to the extent that the plaintiff Paula Mayancela' s cause of action for loss of consortium is dismissed. Ap Tek Cross Motion The only remaining relief in Ap Tek's cross motion is that portion which seeks summary 10 [* 11] FILED Feb 27 2014 Bronx County Clerk judgment dismissing all third party causes as against it, essentially that it was not Guaman's employer at the time of the accident. Instead, Ap Tek contends that Guaman was working for Saad at the time of the accident. I-lowever, this very issue was litigated at a hearing be1bre the Workers' Compensation Board ("WC Board"). After a hearing in which Ap Tek participated, WC Board determined that Ap Tek was Guaman's employer at the time of the accident. This decision is binding on this court (Vogel v HerkElevator Co. Inc., 229 AD2d 331, 332-333 [1" Dept 1996] citing 0 'Conner v. Midiria, 55 NY2d 538 [ 1982]) and Ap Tck is collaterally estopped from relitigating this issue in the i11stant action (Vogel, supra). Ap Tek's argument that Ali's employment status was not determined at the WC Board hearing and its attempt to litigate such issue now is llllpersuasive. Accordingly, Ap Tek's motion is denied. 1963 Ryer Realty and Gazivoda's Amended Cross Motion Movants' cross motion for summary judgment on their cross-claim for conlractual indemnification asserted against Saad and Ap T ck is denied. It is undisputed that the agreement between 1963 Ryer Realty and Ap Tek was oral, as was the agreement between Ap Tek and Saad. Thus, there is no contractual indemnification clause to substantiate this claim. Movants cross motion for sum1nary judgment on their cross claim for breach of contract for the defendants Saad and AP Tek failure to procure insurance for the benefit of movants is denied for the same reason. There was no written contract between the parties that required said defendants to obtain such insurance coverage. Movants cross motion for summary judgment on their cross-claitn ru1d third party action for conunon law indemnification as against defendant Saad is denied on the grounds that the movant failed to meet its initial burden. The court finds movants failed to establish defendant Saad was actively at fault in bringing about the plaintiff's injury (see Kenerally M<..:('arlhy v. Turner Constr. Inc., 17 NY3d 369, 377-37812011]). That portion of the motion which seeks common law indemnification against defendant Ap Tek, the plaintiffs employer, is granted for the following reasons: (1) it is undisputed the 11 [* 12] FILED Feb 27 2014 Bronx County Clerk plaintiff sustained a grave injury; (2) Ap Tek, having been deemed the plaintiffs employer can not deny control and supervision of its own employee; and (3) movants have shown they were not actively negligent and will be held responsible solely by operation of law (McGarthy, supra). Accordingly, the n1otion is granted only to the extent that 1963 Ryer Realty and Gazivoda's motion for sumn1ary judgment on their cross-claim and third party aclion for conunon law indenmificalion as against Ap Tek is granted. The motion is denied in all other respects. The movants cross claim for contractual indemnification an<l breach of contract for failure to procure insurance is hereby dismissed. This co11stit11tes the decision and order of the court. Dated: a.L{), U //(/ Br , N~VTYork HON. NORMA RUIZ, J.S.C. 12
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