Pauling v 39 Prince Realty, LLC

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Pauling v 39 Prince Realty, LLC 2016 NY Slip Op 30671(U) March 9, 2016 Supreme Court, Bronx County Docket Number: 306618/13 Judge: Betty Owen Stinson 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] FILED Mar 15 2016 Bronx County Clerk SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ---------------------------------------x DECISION AND ORDER CHRISTIAN PAULING, Plaintiff (s), Index No: ~06618/13 - against 39 PRINCE REALTY, CONSTRUCTION CORP., LLC AND TOP 8 Defendant(s). ----------------------------------------x Stinson, J. In this action for personal injuries arising from, inter alia, violations of Labor Law§§ 200, 240(1), and 241(6), defendants move ( 1) seeking an order granting them summary judgment, thereby, dismissing this action; and (2) striking plaintiff's complaint on grounds that he spoliated evidence. Significantly, defendants aver that summary judgment is warranted because (1) with respect to 1 plaintiff's claim premised on a violation of Labor Law § 200 and common law negligence, his accident was the result of his own independent decision to come into contact with an open and obvious condition, which was not inherently dangerous; (2) with respect to his claim pursuant to Labor Law§ 240(1), the accident did not expose plaintiff to elevation differentials, ~ausing ~uch work that § 240(1) does not apply; and (3) with regard to his claim pursuant to Labor Law§ 241(6), the Industrial Code violations on which he premises his claims are factually inapposite or too general. Page 1 of 25 With [* 2] FILED Mar 15 2016 Bronx County Clerk respect to defendants' motion seeking a spoliation sanction, I defendants aver that despite evidence that a photog:Jfaph of the hazard alleged was created and that a request that the same be preserved and exchanged, plaintiff has failed to provide the photograph; claiming that the same never existed. For the reasons that follow hereinafter, defendant'' motion is ! granted, in part. '1 The instant action is for personal injuries result~ng from the I alleged failure to properly maintain premises and for purported violations of the Labor Law. following. On April 12, located 39-02/38-16 at involved in accident. Plaintiff's complaint alleges the 2013, Prince plaintiff while within premises Street, Queens, ~39-02) NY was Specifically, plaintiff, who was employed by nonparty Tri-Square Construction Corp. (Tri-Square) tripped/slipped over debris within 39-02 and more specifically, which plaintiff was working . owned by defendant defendant therein. TOP 8 39 Plaintiff alleges that 39-02 was PRINCE REALTY, CONSTRUCTION, the area within CORP. LLC (Top (Prince), 8) to i who hired p~rform work Top 8, in turn, hired Tri-Square to perform a portion of the aforementioned work. Based on the foregoing, plaintiff alleges that defendants were negligent in allowing the debris - a dangerous condition - to exist within 39-02 and in failing to same. Plaintiff also alleges that based on defendants - in failing to provide plaintiff with a Page 2 of 25 ame~iorate the the foregoing, rea~onably safe [* 3] FILED Mar 15 2016 Bronx County Clerk place to work - violated Labor Law§§ 200, 240(1), and 241(6). Defendants' Motion for Summary Judgment The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v Prospect Hospital, 68 NY2d Zuckerman v City of New York, 49 NY2d 557, 562 defendant seeking summary judgment must 320, 324 [1980]). [1986]; Thus, a establish J;!lrima facie ! entitlement to such relief as a matter of law by afltirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof (Mondello v Distefano, 16 AD3d 637, 638 [2d Dept 2005]; Peskin v New York City Transit Authority, 304 AD2d 634, 634 [2d Dept 200~]). Once movant meets his initial burden on summary j ~dgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman at 562) . Moreover, when deciding a summary judgment motion 1the role of ! the Court is to make determinations as to the existence 1of bonafide issues of fact credibility. and not to delve into or resolve1 issues of As the Court stated in Knepka v Talman (218 AD2d 811, 811 [4th Dept 2000]), [s]upreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint. Any inconsistencies Page 3 of 25 [* 4] FILED Mar 15 2016 Bronx County Clerk between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial (see also Yaziciyan v Blancato, 267 AD2d 152, 152 [1st Dept 1999); Perez v Bronx Park Associates, 285 AD2d 402, 404 [1st Qept 2001)). Accordingly, the Court's function when determining a, motion for summary judgment is issue finding not issue determinatibn (Sillman v Twentieth Lastly, Century Fox Film because Corp., summary judgment 3 NY2d 395, 4Q4 [1957)). I is such a drastic i remedy, it I i should never be granted when there is any doubt as to tne existence ~6 of a triable issue of fact (Rotuba Extruders v Ceppos, 231 [1978)) . debatable, When the existence of an issue of i falct summary judgment should be denied (Stone i vi NY2d 223, is even Goodson, 8 NY2d 8, 12 [1960)). Conunon Law Negligence and Labor Law § 200 Defendants' motion seeking summary judgment with respect to plaintiff's common law negligence claim and his claim pursuant to Labor law as the § 200 - essentially one in the same - is denied insofar defendants' own evidence establishes that plaintiff's accident was caused, in whole or in part, by a large area of debris within the instant premises - and more specifically, the area where plaintiff was required to work, and that the debris had existed for a substantial period of time prior to the accident alleged. Accordingly, whether the aforementioned debris cons ti tu tied a hazard or an inherently dangerous condition and whether defendants had Page 4 of 25 [* 5] FILED Mar 15 2016 Bronx County Clerk constructive notice of the same are material questions of fact reserved for the jury, and which preclude summary judgment on thi cause of action. Labor Law 200 reads § [a] 11 places to which this chapter applie~ shall be so constructed, equipped, arranged, operated and conducted as to provid~ reasonable and adequate protection to th~ lives, health and safety of all person~ employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons. The board may make rules to carry into effect the provisions of this section. Thus, Labor Law § 200 essentially codifies the common that an owner and general contractor have a duty to ~aw, pro~ide namely workers with a safe place to work (Rizzutto v Wagner Contracting Co., 91 NY2d 343, 353 [1998] ["section 200 is a codification of the common-law duty imposed upon an owner or general com.tractor to maintain a safe construction Electric and Gas Corporation, Picciano, 54 NY2d 311, 317 Corp., 44 NY2d 290, 299 site."] ; 82 NY2d 876, v 877 New York State [1993]; Russin v [1981]; Allen v Cloutier Cbnstruction [1978]). liability pursuant to Labor Law In other words, Comes generally, § The lynchpin for purposes of 200 is supervision and control. the party against whom liability is sought must "have the authority to control the activity bringing about the injury to enable it to Page 5 of avoid or 25 correct an unsafe [* 6] FILED Mar 15 2016 Bronx County Clerk condition" (Rizzutto v Wagner Contracting Co., 91 NY~d 343, 352 [1998]) . Accordingly, under Labor Law § 200, in addition to liability for a dangerous condition arising from the methods employed by a subcontractor, over which the owner or general contractqr exercises supervision and/or control (Comes at 877; Allen at 299 ;: Dalanna at 400), liability can also arise when the accident is ¢aused by a dangerous condition at the worksite that was either cr~ated owner or general contractor or about which they had p~ior by the notice (see Mitchell v New York Univ., 12 AD3d 200, 201 [2004]; Ortega v Puccia, 57 AD3d 54, 61-62 [2008]); Paladino v Soci~ty of N. Y. Hosp., 307 AD2d 343, 345 [2003]). Accordingly, under the common law, no liability lies absent proof that a defendant created the dangerous condition alleged to have caused a plaintiff's accident or unless the defendant has prior actual or constructive notice of Recine Realty Corp., Co., 24 NY2d 936, 84 NY2d 967, 937 969 the same (P.f.acquadio v u [1994]; Bogart [1969]; Armstrong v Ogden Alli Mgt. Corp., 281 AD2d 317, 318 [2001]; Wasserstrom v Ne Tr. Auth., 267 AD2d 36, 37 [1999], lv denied 94 NY2d A defendant is Woolworth charged with having constructive ! 7~1 York City [2000]). n<:>tice of a defective condition when the condition is visible, apparent, and exists for a sufficient length of time prior to the happening of an accident to permit the defendant to discover and Page 6 of 25 reme~y the same [* 7] FILED Mar 15 2016 Bronx County Clerk (Gordon v American Museum of Natural History, 67 NYjd 836, 837 The notice required must be more than genera;l notice of [1986]). any defective condition (id. at 838; Piacquadio at 969)1. Instead, ! the law requires notice of the specific condition alleged to have caused an accident and at the specific location alleged (Gordon at 838) . In support plaintiff's of the deposition pertinent part, as instant motion, transcript, follows. defendants wherein On April 12, submit tes~ified, he 2013, in plaintiff was injured within 39-02, at which time he was employed by Tri-Square and had been so employed since October 2, 2012. 39-02 Upon arriving at in October, plaintiff noted that a new buildins was being built thereat and that erected. five levels had already been Plaintiff reported to Mr. Chang who along employee - plaintiff another the first Guy - neither employee plaintiff. w~th gave him work-related instructions1. understood nor would translate spoke any much Because English, instructions, another Basilio, given to Essentially, plaintiff was helper at the site, doing things such as mixing cement and debris removal. On the date of his accident, at SAM, he was told to help Astacio - another worker unload a truck construction site. that had delivered ceramic Specifically, Astacio was to to unload the pallets plaintiff was to on which tiles direct the forklift, Page 7 of 25 sat operat~ from using tiles a the 1 to the a forklift truck and fl~g, to the [* 8] FILED Mar 15 2016 Bronx County Clerk basement, where the tiles were to be stored. At some 8oint, after almost all of the pallets had been transported to the basement, where they were laid side by side, one of the pallets fell off the forklift at or near the basement. As a result, several boxes of tiles also fell off the pallet, to the ground, causing the tiles to break. Plaintiff was then directed to sort through the tiles on the pallet that had fallen and separate the broken tiles from those still intact. He was told to do this by Mr. Chen, who indicated that he wanted the broken tiles back on an incoming truck as soon as possible. While in the basement, plaintiff proceeded to remove the broken tiles, which were in boxes, from the pall$t on which they sat and transport them to another pallet, 10 feet' away. basement, was a very large space. At some point, The after he had moved four boxes of broken tiles to the other pallet and as he carried a fifth box of broken tiles, plaintiff tripped over an accumulation of plastic and metal cables located in the basement. Plaintiff indicated that the cables had been there for several weeks. The cables were tangled together, exceeded five in number, and occupied an area exceeding five feet on the basement's floor. Plaintiff testified that slipped/tripped and went upon stepping forward, falling on the cables, to the g:r;ound. he The cables were the kind used to bind materials brought to the site. 1 Based on the foregoing, material questions of i fact with respect to whether the condition alleged - a tangle of metal and Page 8 of 25 [* 9] FILED Mar 15 2016 Bronx County Clerk plastic cables constituted an inherently dangerous condition about which defendants had constructive notice - preclude summary judgment with respect to plaintiff's Labor Law§ 200 cl4ims and his claims premised on common law negligence. Specif ic$.lly, here, wi~hin 39-02, plaintiff's testimony establishes that as he worked he tripped/slipped and fell on a large pile of tangled plastic and metal cables which had existed for accident. Contrary to several weeks prior to his defendants' assertion, the evidence does militate in favor of summary judgment. defendants' only arguments foregoing To be sure, in support of summary j wftgment with respect to plaintiff's claim pursuant to Labor Law§ 200 and claims of common law negligence are that the condition alleged was - as a matter of law - both open and obvious and not inherently dangerous and that the instant accident was solely the result of plaintiff's mistake in that he came into contact with the debris alleged. As noted above, liability under Labor Law § 200 a~ises when, inter alia, the accident is caused by a dangerous condition at the worksite that was either created by the owner or general contractor or about which they had prior notice 61-62; Paladino at defendant cannot be (Mitchell at 201; Ortega at Similarly, 345). liable for under the negligent the comtnon law, a mainteinance of a premises unless it is established that it created the dangerous condition alleged to have caused a plaintiff's accident or unless the defendant has prior actual or constructive notice of the same Page 9 of 25 [* 10] FILED Mar 15 2016 Bronx County Clerk (Piacquadio at 969; Bogart at 937; Armstrong at 318; Wasserstrom at 37). Constructive notice exists when a defective condition is visible, apparent, and exists for a sufficient length of time prior to the happening of an accident so as to permit the discover and remedy the same (Gordon at 837) . d~fendant to Here, plaintiff's ' testimony - if credited - establishes that he tripped! on debris; the same constituting a dangerous condition as a maUter of law (Lane v Fratello Constr. Co., 52 AD3d 575, 576 [2d Dept 2014); Aguilera v Pistilli Constr. & Dev. Corp., 63 AD3d 763, 164 [2d Dept 2009), and that because it existed for weeks prior to his accident, defendants had constructive notice of the same (Gordon! at 837) . Defendants argument that summary judgment is warranted because the condition alleged was both open and obvious and not inherently dangerous in unavailing. First, generally, a hazardous condition, which is both open and obvious, obviates a defendant's quty to warn ! of the condition's existence (Garrido v City of New Yprk, 9 AD3d that~ condition 267, 267-268 [1st Dept 2004)) However, the fact is both open and obvious and, thus, readily observable does not negate a defendant's liability for failing to keep a premises in a reasonably safe condition (id. at 268; Delia v 1586 Northen Blvd. Co., LLC, 27 AD3d 269, 269 [1st Dept 2006); DeJesus v r.J. Sciame Construction Co., Inc., 20 AD3d 354, 354 [1st Dept 200~]; Sanchez ' v Lehrer McGovern Bovis, Inc., 303 AD2d 244, 245 [1st Oept 2003)). Instead, evidence that a condition was both open and obvious merely Page 10 of 25 [* 11] FILED Mar 15 2016 Bronx County Clerk raises an issue of fact as to a plaintiffs comparative negligence (Sanchez at 354; Hogan v Baker, Accordingly, 29 AD3d 740, 740 (2d Dept 2006]). evidence of an open and obvious condition does not form the basis for awarding summary judgment in a defendant's favor v (Marrone 2006]). South Shore Properties, 2 9 AD3d 96~ 961, [2d Dept Notwithstanding the foregoing, however, it is well settled that when a condition is both open and obvious and not inherently dangerous, a defendant is generally not liable for am accident arising therefrom (Cupo v Karfunkel, 1 AD3d 48, 52 [1st Dept 2003]; see also Burke v Canyon Rd. Rest, 60 AD3d 558, 559: 2009]). [1st Dept I ! Second, here, while the condition alleged - the l~rge debris I pile consisting of cables - was arguably open and obvioJs, as noted above, such condition - a pile of construction related debris like the one about which plaintiff testified - has been deemed a hazard I ' sufficient to preclude summary judgment (Lane at 576; ~guilera at 764) . Accordingly, requiring both that cases like Cupo and Burke, a condition be open and are inapposite obvious and not inherently dangerous - and do not avail defendants. Similarly, Haus. Auth. defendants' reliance on Haynie v Net.<( York City (95 AD3d 594 [1st Dept 2012]) and Smith v turtis Lbr. i I Co. (183 AD2d 1018 [3d Dept 1992]) is also unavailing. i In Haynie, ' plaintiff tripped and fell as he entered defendant's backyard to perform work therein (id. at 594-595) . Page 11 of 25 Plaintiff sued and the [* 12] FILED Mar 15 2016 Bronx County Clerk court granted summary judgment in defendant's favor, holding that kne~ "[h]ere, by contrast, plaintiff testified that he he had to I step on the concrete chunks in order to enter the backydrd" (id. at 594-595). The court so held, citing Smith and, therefote, adopting the rationale promulgated in Smith, namely, that "[a] defendant is not required to protect a plaintiff from his own folly" 594-595). Significantly, in Smith, the court gran~ed (id. at summary judgment in favor of defendant holding [t]he complaint does not allege the usual slip and fall situation where a plaintiff is caught by surprise when confronted by a dangerous condition which results in a fall and injury. Rather, here, plaintiff was fully aware of the stacked wood pile on which, for some inexplicable reason, he elected to stand to accommodate himself in taking down wooden planks. The danger in standing on loose wood was apparent. There is no duty to warn against a condition which is readily observable (id. at 1019). It is clear that the holdings in Smith and Haynie were that the plaintiffs therein caused their own accidents by engaging in work despite the clear dangers associateq therewith; hence the use of the term folly. control the outcome. Here, however, these ¢ases do not At best, plaintiff's testimony is: that he had seen the pile of debris which caused his fall for several weeks prior to his accident and that he inadvertently trippied thereon. This is markedly different wherein plaintiffs' than the facts work was in Hayni(f and Smith inextricably intertwined with the Page 12 of 25 [* 13] FILED Mar 15 2016 Bronx County Clerk hazards that caused their accidents. his testimony, plaintiff was able To be sure, as evinced from to work safely •around foregoing debris insofar as he had substantially perfo~med the work in and round the debris prior to his fall. In light of the foregoing, defendants fail to establish prima facie entitlement to summary judgment on plaintiff's pursuant to Labor Law § 200 and common law negligence. claims Thus, the I Court need not address the sufficiency of plaintiff's! opposition papers on this issue (Winegrad v New York Univ. Med. Ctir., 64 NY2d 851, 853 [1985) ["The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, issues tendering sufficient evidence to eliminate apy material of fact from the case. Failure to make s4ch showing requires denial of the motion, regardless of the suff ic~ency of the opposing papers" (internal citation and quotation marks omitted)]; 6014 Eleventh Ave. Realty, LLC v 6014 AH, LLC, 114 AD3d 661, 661 [2d Dept 2014)) . Labor Law § 241(6) Defendants' motion seeking summary judgment with: respect to plaintiff's cause of action pursuant to Labor Law § 241 (6) is granted to the extent of precluding plaintiff from asserting all but 12 NYCRR § 23-1.7(e) (2) as a predicate for his cause of action pursuant to Labor Law §241(6). With the exception of the forgoing section of the Industrial Code, plaintiff's version of the events Page 13 of 25 [* 14] FILED Mar 15 2016 Bronx County Clerk fails to establish a violation of all other portions of the Industrial Code alleged. Labor Law§ 241 states that "[a]ll contractors anq owners and their agents when constructing or demolishing buildings" shall comply with, inter alia, the requirements under Labor Law § 241(6), which require that [a] 11 areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith. Thus, Labor Law § 241(6) imposes a duty of reasonabl$ care upon owners, their contractors contractors and protection to and their agents agents, those employed in all that owners, reasonable provide requiring and adequate areas where excavation, or demolition is being conducted Contracting Co., 91 NY2d 343, Hydro-Electric Company, 348 [1998); 81 NY2d 494, (Rizzut¢o v Wagner Ross v 501-502 construction, Cu~tis-Palmer (1993)) . The duty imposed by the this section of the labor law is nondelegable, meaning that an owner, contractor or agent can be held. liable for the breach of the statute absent supervision or Page 14 of 25 con~rol of the [* 15] FILED Mar 15 2016 Bronx County Clerk particular work site at issue (Rizzutto at 348-349; Ross at 502. A violation of Labor Law §241(6) necessarily requires a failure to comply or adhere to external rules and statutes (Ros$ at 503). More specifically, in order to establish a violation of Labor Law § 241 (6) f it must be shown that applicable section of a Commissioner of Labor, specifications Corp, 227 violation of 959, Labor defendant which mandates 959 Law also violated an rule or regulation promulga,ted by the (Ross at 501-502; AD2d a Basile v [4th Dept § compliance with concrete 241(6) ICF Kaiser Engineers 1996]). requires Accqrdingly, a viola¢ion of a an underlying statute or rule and such statute or rule must be one that prescribes a concrete and (Rizzutto at 350; Ross at 503). be tantamount to a violation specific standard ,of conduct Moreover, the facts alleged must of the Industrial Cqde section asserted (Buckley v Columbia Grammar and Preparatory, 414 AD3d 263, I I 271 [1st Dept 2007]) . Unlike a violation of Labor L~w § 240(1) which establishes conclusive negligence, a violation of Labor Law § 241(6) does not conclusively establish negligence and is instead "merely some evidence of negligence which the jury may .consider on the question of defendant's negligence" (Rizzutto at 34!9 [internal quotation marks omitted)]; see also Long v Forest-Feplhaber, NY2d 154, 159 [1982]; Teller v Prospect Hgts. Hosp., 55 280 NY 456, 460 [1939]). Moreover, unlike Labor Law§ 240(1), contributory and comparative negligence are valid Page 15 of defenses 25 to any allegation [* 16] FILED Mar 15 2016 Bronx County Clerk pursuant to Labor Law §241(6) (Rizzutto at 350; Unlike a violation of Labor Law§ 240(1) which establishes conclusive negligence, a violation of Labor Law § 241(6) does not conclusively establish negligence and is instead "merely some evidence of negl~gence which ~egligence" the jury may consider on the question of defendant's (Rizzutto at 349 [internal quotation marks omitted)]; s$e also Long at 159; Teller v Prospect Hgts. Hosp., 280 NY 456, 460 [1939]). Thus, a party may not be liable under Labor Law§ 241(6), even if it is established that said applicable predicate statute. party failed to comply Moreover, unlike Labor L~w with an § 240(1), contributory and comparative negligence are valid deferses to any I allegation pursuant to Labor Law §241(6) (Rizzutto at 3150; Long at 161). at 161) . I Prima facie entitlement to summary judgment, when plaintiff demonstrates that Labor Law § is established 241 (6) has been violated insofar as defendant has violated a rule or regulation promulgated by the Commissioner of Labor, which mandate~ compliance with concrete specifications (Ross at 501-502; Basile at 959). Within defendants his bill violated 12 of particulars, NYCRR §§ plaintiff 23-l.5(a) (e) (1) and (2), and 23-2 .1 (a) and (b). and alleges (c), that 23-l.7(d), To establish a V'iolation of Labor Law§ 241(6), it must be shown that a defendant ~iolated an applicable rule or regulation promulgated by the Commissioner of Labor, which prescribes a concrete standard of conduct Page 16 of 25 (Ross at [* 17] FILED Mar 15 2016 Bronx County Clerk 501-502; Basile at 959) . But for 12 NYCRR § 23-1. 7 (e) (2), all sections of the Industrial Code alleged are insufficient predicates for a violation of Labor Law§ 241(6) as a matter of law. 12 NYCRR § 23-1.5(a) and (c), which require that worksites be constructed so as to provide adequate protection to those working therein and that all equipment used by the employees be maintained in good repair, it is well settled that the foregoing sections "are generic directives that are insufficient as predicates 1for section ' 241 (6) liability" Partnership, (Maldonado v 294 AD2d 207, 208 Townsend Ave. Enti;ers., Ltd. [1st Dept 2002]; Sihly v New York City Tr. Auth., 282 AD2d 337, 337 [1st Dept 2001]). Similarly, 12 NYCRR §§ 23-2.1(a) and (b), which generally prescribe the manner in which materials at a worksite ought to be stored and how debris should be disposed are likewise insufficient predicates as a matter of law (Canning v Barneys N.Y., 289 AD2d 32, 33-34 [1st Dept 2001]; Lynch v Abax, Inc., 268 AD2d 366, 367 [1st Dept 2000]). 12 NYCRR § 23-1.7(d), mandates that no floors construction site be allowed to become slippery with water, grease and any other foreign slippery footing," is concrete violation under§ 241(6) 214, 215 [1st Dept 1998]). ~ice, at a snow, substance which may cause enough to form the basis of a (Boss v Integral Constr. Corp., 249 AD2d I However, it is factually inapplicable, as required by prevailing law (Buckley at 271) . Specifically, the cables alleged to have caused the accident do not constitute a Page 17 of 25 [* 18] FILED Mar 15 2016 Bronx County Clerk slippery condition so as fall within the ambit of 12 NYCRR §231. 7 (d) (Boss at 215) . The same is true with respect to 12 NYCRR § 23-1.7(e)(l), mandating that passageways be kept free of tripping hazards. To be sure, here, plaintiff testified that his accident was aaused by an accumulation of metal and plastic cables on the floor of a large room, namely the basement. Accordingly, here, not fall within the ambit of 12 NYCRR § the basement does 23-l.7(e) (1) b~cause it is a room not a passageway (Rajkumar v Budd Contr. Corp., 77 AD3d 595, 595 [1st Dept 2010]; Boss at 215). Contrary to defendant Is assertion, however I the version of the events as described by plaintiff do establish a viola~ion of NYCRR 12 ! § 23-l.7(e) (2), requiring that platforms and flobrs in work areas be kept free of debris. 12 NYCRR § Significantly, it has been held that 23-1.7(e) (2) is not violated when the debris alleged to have caused an accident is an integral part of the floor (Viera v Tishman Constr. Corp., 255 AD2d 235, 236 [1st Dept 199~]). however, there is little merit to defendants' argument ~hat Here, merely because plaintiff had performed a substantial portion bf his work prior to his accident, the cables herein were not within the area where he was told to work. This argument skews reality because it seeks to have the Court disregard plaintiff's clear and µnequivocal testimony that the cables were in fact within plaintiff was working, namely the two pallets Page 18 of 25 the ! area where (see Samiani v New [* 19] FILED Mar 15 2016 Bronx County Clerk York State Elec. & Gas Corp. Defendants, have (199 AD2d 796 [3d Dept 1993]). established prima ent~tlement facie to summary judgment with respect plaintiff's claim pursuaµt to Labor Law § 241(6) Industrial Accordingly to Code the extent violations, defendants' of dismissing 12 except motion is all NYCRR granted § to precluding plaintiff from asserting the foregoing violations - except 12 NYCRR § the predicate 23-l.7(e) (2). the extent Indu~trial of Code 23-l.7(e) (2) - as predicqtes for his claim pursuant to Labor Law§ 241(6). Labor Law §240(1) Defendants' motion seeking summary judgment with respect to plaintiff's cause of action pursuant to Labor Law §i 240 (1) granted without opposition. It is clear that when pl~intiff is was involved in the instant accident he was not engaged in any work that exposed him to any risks related to elevation differentials. Labor Law§ 240(1), applies where the work being performed subjects those involved to risks related to elevation differentials (Gordon v Eastern Ry. Supply, 82 NY2d 555, 561 [1993] ; Rocovich v 1 Consolidated Edison Co., 78 NY2d 509, 514 [1991]). Specifically, the hazards contemplated by the statute uare those related to the effects of gravity where protective devices are called for . because of a difference between the elevation level of the required work and a lower level" omitted]). Since Labor (Gordon at 561 Law § 24 0 ( 1) Page 19 of 25 [internal is quot~tion intended to marks prevent [* 20] FILED Mar 15 2016 Bronx County Clerk accidents where ladders, scaffolds, or other provided to a worker prove inadequate so as to related to the forces of gravity (id.), saf~ty preven~ devices an injury it applies i equally to injuries caused by falling objects and falling workers (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267-268 [2001]). Here, plaintiff testified that his job was to move boxes of broken tiles and in the course thereof, cables. he tripped 4nd fell on It is clear that insofar as plaintiff's assignment did not require him to work at a height or exposed him to the risk caused by a falling Defendants' object, motion Labor seeking Law summary § 240(1) judgement does not apply. with ,respect to plaintiff's claim pursuant to Labor Law§ 240(1) is her~by granted. I I Defendants' Motion for Spoliation Sanctions[ Defendant's motion seeking a spoliation sanction on grounds 1 that plaintiff destroyed a photograph of the condition[ alleged to have caused his accident is granted to the extent of ordering that at trial the jury be given an adverse inference charge with respect to the photograph. Spoliation is the intentional or accidental destruction of evidence (Kirkland v New York City Housing Authority, 236 AD2d 170, 173 [1st Dept 1997] ) ["Although originally defined as the intentional destruction of evidence arising out of a party's bad faith, the law concerning spoliation has been extended to the nonintentional destruction of evidence"]; Squittieri v The City of Page 20 of 25 [* 21] FILED Mar 15 2016 Bronx County Clerk New York, 248 AD2d 201, 203 [1st Dept 1998]). Sanctions for spoliation are thus appropriate "where a litigant, inteqtionally or negligently, disposes of crucial items of evidence invblved in an accident before the adversary has an opportunity to inspect them" (Kirkland at 1 73) . Dismissal of an action or the striking of pleadings, while severe, is an appropriate remedy when the evidence spoiled is a "key piece of evidence," (emphasis destruction precludes inspection by an adverse party Mudge, Rose, Conditioning, Guthrie, Corp., Alexander 221 AD2d & 243, Ferdon v [1st 243 added) (~d. whose at 173; Penguin Dept Air 1995]; Lichtenstein v Fantastic Mdse. Corp., 46 AD3d 762, 763-764 [2d Dept 2007]; Gray v Jaeger, 17 AD3d 286, 287 [1st Dept 2005~; Standard i Fire Ins. Co. v Federal Pac. Elec. Co., 14 AD3d 213, 2115 [1st Dept I I 2004]; Herrera vMatlin, 303 AD2d 198, 198 [1st Dept 2od3J; Goldman v Gateway Toyota, 383 AD2d 457, 457 [2d Dept 2001]). Conversely, in cases where the spoiled evidence is not crucial 1 to a litigant's case, such that its absence does not prevent the outright prosecution or defense of a case, preclusion qf evidence, or having the jury draw an adverse inference, rather t~an outright dismissal of pleadings, is the preferred remedy (Strong v City of New York, Auth. 112 AD3d 15, v Pro Quest Sec., 24 [1st Dept 2013]; Inc., 108 AD3d 47, New York City Haus. 473 [1st Dept 2013]; Tommy Hillfiger, USA, Inc. v Commonwealth Trucking, 300 AD2d 58, 60 [1st Dept. 2002]; Longo v Armor Elevator Co., Page 21 of 25 278 AD2d 127, 128 [* 22] FILED Mar 15 2016 Bronx County Clerk [1st Dept 2000]; Strelov v Hertz Corporation, 171 AD2d 420, 421 [1st Dept 1991]; Gallo v Bay Ridge Lincoln Mercury, Inc., 262 AD2d 450, 451 [2d Dept 1999]) . It is clear, mind, the that irrespective of the spoliator 1 s state of dispositive inquiry for purposes of faishioning a spoliation sanction is the prejudice caused to the opposing party by an opponent's spoliation of evidence (Alleva v United Parcel Serv., Inc., 102 AD3d 573, 574 [1st Dept 2013]; Giuliano v 666 Old Country Rd., LLC, 100 AD3d 960, 962 [2d Dept 2012]; Schqntz v Fish, 79 AD3d 4481, 481 [1st Dept 2010]. At accident, his deposition, plaintiff testified that he used his cell phone to photograph the caused his fall. after ~ables his that He further testified that he provided the cell I phone to his attorney, who created a paper copy of thei photograph I that plaintiff took of the cables. Defendants, by counsel, then, requested a copy of the aforementioned photograph and fulrther asked that plaintiff preserve his cell phone. On July 14, 2014, defendants served a notice of preservation upon plaintiff, asking that he preserve his cell phone. Thereafter, on July 16, 2014, defendants served a discovery demand upon plaintiff asking that all photographs relevant to this action be provided. the foregoing On August 14, 2014, plaintiff provided a response to demand, providing 15 photographs, none of depicted the cables alleged to have caused this accident. Page 22 of 25 which On [* 23] FILED Mar 15 2016 Bronx County Clerk August 25, 2014, inasmuch as defendants were not provided with the photograph of the condition alleged, and to which plaintiff testified, defendants sent a letter seeking said photograph from plaintiff. On September 4, 2014, plaintiff, by counsel, responded by letter, indicating that he did not and never did ~ossess the photograph about which plaintiff testified. In opposition to the instant motion, plaintiff argues that no spoliation sanction is warranted and that if the Court deems it fit to levy a sanction, the striking of his complaint is unwarranted. Additionally, plaintiff submits an affidavit whereinj he merely asserts that any photographs in his possession and ' rel~ted to this i accident were provided to his attorney. Plaintiff futther avers that sometime thereafter, he dropped his phone, the sam~ broke, but I that he nevertheless provided the same to his attorney Plaintiff also submits an affidavit from Al~n (Boshnack), a Senior Network Engineer with Netsolvers, provides technology related services. request by plaintiff's counsel, ~n May 2015. Boshnack a firm which Boshnack states that upon a he attempted to retrieve photographs from plaintiff's telephone to no avail. Based on the foregoing, it is clear that plaintif;f spoliated evidence, namely, the photograph he testified he took of the cables that caused his fall. Contrary to plaintiff's assertion, he unequivocally testified that he took a photograph of the cables that caused his fall. He further testified that he provided the Page 23 of 25 [* 24] FILED Mar 15 2016 Bronx County Clerk same to his attorneys. seek to deny the That now both plaintiff and his attorney foregoing is troubling, insufficient to preclude a spoliation sanction. that attempts to recover photographs telephone does not avail him. from but nevertheless Moreover, the fact plaintiff's broken Simply stated, plaintifif testified I to the existence of a relevant photograph, unequivocallf, and under oath. Despite being asked that he and his attorney's pfreserve and exchange the same, they failed to do so. Since, evidence that has been spoliated is merely a however, photog~aph the of the I I condition alleged to have caused his fall - a conditionlabout which 1 he testified to - it cannot be credibly asserted that h1 absence of such photograph has left defendants' without the abili y to defend I this action. Defendant's, however, have certainly been prejudiced since such photograph could have conceivably shown that the defect was either more prominent than testified so as Ito augment comparative negligence or more de minimis than asserted so as to negate causation. Whether the photograph was lost by design or through inadvertence is irrelevant where, as here, there is clear prejudice to the defendants (Alleva at 574; Giuliano at 962; Sch~ntz at 481; Lichtenstein at 763; Standard Fire Ins. Co. at 218; seie also Gray at 287; Herrera at 198; Goldman at 457) Nevertheless, the appropriate remedy is an adverse inference at trial (Strong at 24; New York City Haus. Auth. at 473; Tommy Hillfiger, USA, Inc. at 60; Page 24 of 25 [* 25] FILED Mar 15 2016 Bronx County Clerk Longo at 128; Strelov at 421; Gallo at 451). ORDERED that with respect It is he1reby to plaintiff's pursuant to Labor Law§ 241(6), he be precluded cause: of premis~ng action the same on violations of 12 NYCRR §§ 23-1.5(a) and (c), 23-l.7(d), and 232.l(a) and (b). It is further ORDERED that plaintiff's cause of action pursuant to Labor Law § 240(1) be hereby dismissed with prejudice. ORDERED that with respect It is to plaintiff's photogiaph of the condition alleged, at trial, the jury be read an charge. fu~ther advers~ inference It is further ORDERED that defendants serve a copy of this Decision and Order with Notice of Entry upon all parties within thir~y hereof. This constitutes this Court's decision and Order. Dated : March 9, 2016 Bronx, New York Page 25 of 25 (30) days

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