Wolf v Thornwood LDT, LLC

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Wolf v Thornwood LDT, LLC 2017 NY Slip Op 33396(U) September 1, 2017 Supreme Court, Westchester County Docket Number: Index No. 65929/2016 Judge: William J. Giacomo Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: WESTCHESTER COUNTY CLERK 09/01/2017 02:33 PM NYSCEF DOC. NO. 42 INDEX NO. 65929/2016 RECEIVED NYSCEF: 09/01/2017 To commence commence the statutory statutory time time period for appeals appeals as of period for of right right [a]), you advised (CPLR 5513 [al), you are advised to serve serve a copy copy of of this order, with this order, with notice of of entry, entry, upon upon all parties parties... notice SUPREME COURT COURT OF THE STATE STATE OF NEW NEW YORK SUPREME YORK COUNTY OF WESTCHESTER WESTCHESTER COUNTY PRESENT: HON. HON. WILLIAM WILLIAM J. GIACOMO, GIACOMO, J.S.C. J.S.C. PRESENT: _____ - - - - - - -" - ~ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X JOHN A. WOLF, WOLF, Trustee Trustee in Bankruptcy JOHN Bankruptcy for the Bankrupt Bankrupt JORGE FLORES, FLORES, and LORENA LORENA FLORES, FLORES, individually, individually, JORGE Plaintiffs, Plaintiffs, Index No. 65929/2016 Index 65929/2016 DECISION & & ORDER ORDER DECISION - againstagainstTHORNvJooD THORNWOOD RX THORNv./OOD LDT, LLC, THORNWOOD DEVELOPMENT, LLC, DLC MANAGEMENT MANAGEMENT DEVELOPMENT, CORPORATION, CORPORATION, and WALGREEN WALGREEN EASTERN EASTERN CO., INC., Defendants. Defendants. 'x -_______ - - - - - - "~ - - - - - - - - - - - -- - - - - - - - - - - - - - - - -- - - - - --·x action to recover recover damages damages for personal personal injuries, injuries, etc., the plaintiffs plaintiffs move move for In this action summary judgment judgment on the issue 240(1) and 241 (6): summary issue of of liability liability pursuant pursuant to Labor Labor Law 240(1) Papers Considered Considered Papers Notice of of Motion/Affirmation Motion/Affirmation of of Liza Milgrim, Milgrim, Esq./Exhibits Esq.lExhibits A-Q; 1. Notice A-Q; 2. Affirmation Affirmation of Raymond Raymond M. Rufat, Esq. in Opposition; Opposition; Reply Affirmation of Liza Milgrim, Milgrim, Esq. 3. Reply Affirmation of I Factual an,d and Procedural Procedural Background Background Factual Plaintiff commenced commenced this action action against against the defendants defendants with the Plaintiff the filing filing of a summons summons and complaint violations of Labor 240(1) and complaint asserting asserting causes causes of action action for violations Labor Law Law 200, 240(1) 241 (6), as_ as well as common common law negligence. negligence. In support support of his Labor Labor Law Law 241 (6) cause cause of 241(6), 241(6) action, plaintiff plaintiff alleged alleged a violation of Industrial Industrial Code Code Regulations Regulations 23-1.7, 23-1.7, 23.1.21, 23.1.21,23-1.16, action, violation of 23-1.16, 1 1 23-1.24. and 23-1.24. , October 18, 2011, 2011, plaintiff, plaintiff, Jorge Jorge Flores, Flores, alleges alleges that that he fell six feet feet while while On October descending a ladder ladder during construction of a new new building building that going to be descending during the the construction that was was going J decision and order· order" dated October 13, 2016, this Court dismissed dismissed plaintiff's plaintiff's first out of the same same In a decision dated October this Court first action action arising arising out of the accident based upon upon lack of of standing continue the action after after Mr. Mr. Flores had filed bankruptcy and had not not standing to to continue the action filed for for bankruptcy accident listed the the personal personal injury injury action listed action as an asset. 11 [* 1] 1 of 4 FILED: WESTCHESTER COUNTY CLERK 09/01/2017 02:33 PM NYSCEF DOC. NO. 42 INDEX NO. 65929/2016 RECEIVED NYSCEF: 09/01/2017 , Wolf 65929/2016 Wolf v. Thorhwood Thornwood LDT, LDT, LLC, LLC, Index Index No. 65929/2016 occupied Walgreens. The The accident accident occurred Kensico Avenue, Thornwood, New New occupied by Walgreens. occurred at 35 Kensico Avenue, Thornwood, York. At the time accident, plaintiff plaintiff was employed employed by the non-party Nation Nation Roof Roof time of the accident, the non-party defendant Thornwood Thornwood RX Development, who contracted contracted with defendant Development, LLC to install install the roof roof at the . site. • :i :~ the accident, accident, there there were were three Nation Roof Roof employees employees on the job On the day day of of the three Nation job · site. The The main main roof roof to the building building was already already completed. completed. Plaintiff's Plaintiff's foreman foreman instructed instructed of the main him to install shingles on a dormered install shingles dormered roof roof that that was was being being erected erected on top top of main roof, over building. Plaintiff Plaintiff used two scaffolds access the sides over the entrance entrance to the building. scaffolds to access sides of the roof where where he was was performing performing his work. Plaintiff testified testified that scaffolds were roof work. Plaintiff that no scaffolds were of the dormered constructed constructed at the rear of dormered roof roof so he used a 12-foot 12-foot aluminum aluminum ladder. ladder. ,i,; Plaintiff placed placed the ladder ladder himself himself and used the ladder ladder to install install shingles shingles to the rear Plaintiff portion of the the roof. While plaintiff was using the ladder, ladder, it was brackets. After portion While plaintiff was using was tied tied to brackets. After his work was completed, foreman instructed work was completed, plaintiff's plaintiff's foreman instructed him to remove remove the plank plank that that he was install the shingles. shingles. Plaintiff Plaintiff was carrying the plank plank over over his left left shoulder shoulder when using to install was carrying when the ladder ladder slid out from under him and he fell approximately feet to the main main roof. The from under approximately six feet ladder was longer tied at the the time time because because the work work on the roof roof was completed and ladder was no longer was completed everything removed. Although plaintiff was harness with a six-foot everything had to be removed. Although plaintiff was wearing wearing a harness six-foot lanyard at 1he ~he time time of there was place to tie off. of the accident, accident, he testified testified that that there was no place lanyard ,, Plaintiff for summary judgment on the issue of liability Plai~tiff moves moves for summary judgment issue of liability pursuant pursuant to Labor Labor Law 240(1) 241 (6) predicated predicated upon.violations upon violations of 12 NYCRR NYCRR 23-1.16(b) 23-1.16(b) and 1.21(b) 1.21(b) Law 240(1) and 241(6) (4) (iv). ,; In opposition, defendants argue that issues of fact exist as to whether plaintiff's actions were the sole proximate cause of his injuries. Discussion Labor 240(1) imposes owners and general general contractors, Labor Law § 9 240(1) imposes upon owners contractors, and their their agents, a nondelegable nondelegable duty provide safety safety devices necessary to protect protect workers workers from agents, duty to provide devices necessary inherent in elevated work sites McCarthy v Turner Turner Constr., Inc., 17 NY3d 369, risks inherent elevated work sites (see McCarthy [2011]; Esteves-Rivas Esteves-Rivas v W2001Z/15CPW W2001Z115CPW Realty, Realty, LLC, 104 AD3d Dept AD3d 802, 803 [2d Dept 374 [2011]; 2013]). "To.prevail "To prevail on a Labor Labor Law§ Law 9 240(1) 240(1) cause cause of plaintiff must must establish establish that that of action, action, a plaintiff 2013]). statute {i..,as 0as violated violated and that that the violation proximate cause her injuries" injuries" the statute violation was was a proximate cause of his or her (Allan AD3d 828, 833 [2d Dept Alvarez v (Allan v OHL DHL Express Express [USA], Inc., 99 AD3d Dept 2012]; 2012]; see see Alvarez Vingsan AD3d 1177 2017]; Lopez-Dones Assoc., LLC, 98 Vingsan L.P., 150 AD3d 1177 [2d Dept Dept 2017]; Lopez-Dones v 601 W. W. Assoc., AD 3d 476 Dept 2012]). 2012]). AD3d 476 [2d Dept "A fall from from a ladder, ladder, by itself, itself, is not sufficient sufficient to impose impose liability liability under under Labor Labor Law 9 240(1).-There 240(1)."There must must be evidence that the subject ladder was was defective defective or inadequately inadequately § evidence that subject ladder secured and that defect, or the failure to secure ladder, was secure the the -ladder, was a substantial substantial factor factor secured that the the defect, the failure causing the plaintiffs plaintiffs injuries" injuries" (Melchor (Melchor v Singh, Singh, 90 AD3d [citation ·omitted] 'omitted] AD3d 866, 868 [citation in causing Dept 2011]; 2011]; Goodwin Goodwin v Dix Hills Jewish Ctr., 144 AD3d Dept 2016]). [2d Dept Jewish Ctr.i AD3d 744 [2d Dept 2016]). [* 2] 2 4 2 of FILED: WESTCHESTER COUNTY CLERK 09/01/2017 02:33 PM NYSCEF DOC. NO. 42 INDEX NO. 65929/2016 RECEIVED NYSCEF: 09/01/2017 •i" Wolf LDT, LLC, LLC, Index Index No. 65929/2016 Wolf v. Thornwood Thornwood LDT, 65929/2016 of his motion motion for for summary summary judgment issue of of liability cause In s'upport of judgment on the issue liability on the the cause of action action alleging alleging a violation violation of Labor Labor Law Law § S 240(1 240(1),), the plaintiff plaintiff made made a prima prima facie of facie showing of entitlement entitlement to judgment matter of of law by submitting deposition showing of judgment as a matter submitting his deposition testimony when the testimony that that he was standing standing on a rung of an inadequately inadequately secured secured ladder ladder when ladder fell out from under him, causing causing him to fall and sustain sustain injuries Goodwin v Dix ladder from under injuries (see Goodwin AD3d 744, 747; Baugh Auth., 140 Hills Jewish Jewish Ctr., 144 AD3d Baugh v New New York City City Sch. Seh. Constr. Constr. Aufh., AD3d 1104, 1106 [2d Dept 2016]). In opposition, defendants failed to raise an issue AD3d 1106 [2d Dept 2016]). opposition, defendants failed issue of fact that plaintiff's actions actions were sole proximate proximate cause cause of his injuries injuries (see Goodwin Goodwin v fact that plaintiff's were the sole Dix Hills Auth., Hills Jewish Jewish Ctr., 144 AD3d AD3d 744, 747; Baugh Baugh v. v. New New York City City Sch. Seh. Constr. Constr. Auth., 140AD3d1104). 140 AD3d 1104). Plaintiff seeks seeks summary summary judgment cause of of action action pursuant pursuant to Labor Labor Law Plaintiff judgment on its cause 241(6) based (iv). 241(6) based upon violations violations of of Industrial Industrial Code Code Regulations Regulations 1.16 (b) and 1.21 1.21(iv). I In order § 241 (6), a plaintiff order to sustain sustain a cause cause of action action pursuant pursuant to Labor Labor Law Law S plaintiff must demonstrate demonstrate that that his or her injuries injuries were proximately caused caused by a violation of an must were proximately violation of Industrial Code Code regulation regulation that applicable to the circumstances circumstances of of the accident Industrial that is applicable accident (see Comes v New New York State State Elec. Elee. & Gas Corp., 82 NY2d NY2d 876, 878 [1993]; [1993]; Ross CurtisRoss v CurtisComes Palmer Hydro-Elec. Hydro-Elee. Co., 81 81 NY2d NY2d 494,502 [1993]). Plaintiff Plaintiff must must allege Palmer 494, 502 [1993]). allege a violation violation of a specific and applicable applicable provision provision of of the Industrial Industrial Code Code (see Grabowski Grabowski v Board Board of specific of Mgrs. of Avonova, Condominium, Condominium, 147 AD3d AD3d 913 [2d Dept Dept 2017]). 2017]). of The plaintiff plaintiff demonstrated demonstrated his prima prima facie entitlement to judgment matter of facie entitlement judgment as a matter The cause of action action with evidence evidence of of a violation Industrial Code Code 12 NYCRR NYCRR 23law on this cause violation of Industrial that such violation was proximate cause cause of his injuries. injuries. There 1.21 (b) (4) (iv), and that such violation was a proximate There is no dispute that no one was that the the top of dispute that was holding holding the bottom bottom of of the ladder ladder and that of the ladder ladder was not secured secured in any way Melchor v ·Singh, Singh, 90 AD3d opposition, the way ((see see Melchor AD3d 866). In opposition, defendants failed issue of Melchor v Singh, 90 AD3d defendants failed to raise a triable triable issue of fact fact (see Melchor AD3d at 870; Grant v City City of of New New York, 109 AD3d AD3d 961 [2d Dept Dept 2013]). 2013]). Grant Industrial Code Code 12 NYCRR NYCRR 23-1.16(b), 23-1.16(b), applies applies to the proper proper use, instruction, instruction, Industrial maintenance and measurements measurements for safety safety belts, harnesses, harnesses, tail lines lifelines. maintenance lines and life lines. Specifically, NYCRR NYCRR 23-1.16(b) provides: "(b) Attachrnent required. Every Every approved approved Specifically, 2~-1.16(b) provides: Attachment required. safety belt or harness harness provided provided or furnished employee for personal safety safety shall safety belt furnished to an employee for his personal be used by'such whenever required this Part by'such employee employee in the performance performance of his work work whenever required by this (rule) and whenever directed by his employer. employer. At during use such approved (rule) whenever so directed At all times times during approved safety belt belt .or ,or harness harness shall properly attached attached either either to a securely anchored tail line, safety shall be properly securely anchored directly to a securely anchored hanging hanging lifeline lifeline or to a tail line attached securely directly securely anchored attached to a securely anchored hanging hanging lifeline. lifeline. Such Such attachments attachments shall arranged that that if the user user should should anchored shall be so arranged fall such such fall shall shall not exceed Although plaintiff with a safety exceed five five feet". Although plaintiff was was provided provided with safety harness, he was provided with a pr:oper proper place place to tie off harness. Therefore, Therefore, plaintiff plaintiff harness, was not provided off the the harness. is entitled summary judgment judgment as to liability the Labor (6) claim entitled to summary liability on the Labor Law§ Law S 241 241(6) claim predicated predicated on a violation of NYCRR NYCRR 23-1.16{b) 23-1.16(b) (see (see Anderson MSG Holdings, Holdings, L.P., 146 AD3d ·on violation of Anderson v MSG AD3d 401 [1st Dept Dept 2017]). 2011]). [1st 3 [* 3] 3 of 4 FILED: WESTCHESTER COUNTY CLERK 09/01/2017 02:33 PM NYSCEF DOC. NO. 42 INDEX NO. 65929/2016 RECEIVED NYSCEF: 09/01/2017 No. Wolf v. Thornwood Thornwood LDT, 65929/2016 Wolf LDT, LLC, LLC, Index Index No. 65929/2016 Accordingly, Accordingly, plaintiff's plaintiff's motion motion for for partial partial summary summary judgment judgment on the the issue issue of liability liability pursuant to Labor Labor Law 240(1) 240(1) and 241 (6) based based upon upon violations violations of· of Industrial_ Industrial Code Code pursuant Regulations 12 NYCRR 23-1.16(b) and 1.21(b (4) (iv) is GRANTED. Regulations NYCRR 23-1.16(b) 1.21(b GRANTED. ,, :;"~! ,j The parties are directed directed to appear appear in the Compliance Compliance Part Part on September September 28,2017, The parties 28, 2017, 9:30 a.m. as previously previously scheduled. scheduled. at 9:30 Dated: Dated: 1 White Plains, New New York York White Plains, September September 1, 2017 2017 ~ lAM J. GIACOMO, J.S.C. : •· J H: ALPHABETICAL MASTER LIST LIST - WESTCHESTERNVolf LDT ALPHABETICAL MASTER WESTCHESTERJ\Nolf v. Thornwood Thornwood LDT 4 [* 4] 4 of 4

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