Madden v Gotham Constr. Co., LLC
Annotate this CaseDecided on December 19, 2017
Supreme Court, Queens County
Amanda Madden, Plaintiff,
against
Gotham Construction Company, LLC, THE DURST ORGANIZATION INC., AVENUE OF THE AMERICAS DEVELOPMENT COMPANY, 855 MRU LLC, and GILBANE BUILDING COMPANY, Defendants.
GOTHAM CONSTRUCTION COMPANY, LLC, THE DURST ORGANIZATION INC., AVENUE OF THE AMERICAS DEVELOPMENT COMPANY, and 855 MRU LLC,Third-Party Plaintiffs,
against
ELLIS TRUCKING CO., INC.,Third-Party Defendant.
7521/2015
Robert J. McDonald, J.
The following papers numbered 1 to 12 read on this motion by defendants GOTHAM CONSTRUCTION COMPANY, LLC, THE DURST ORGANIZATION INC., AVENUE OF THE AMERICAS DEVELOPMENT COMPANY, 855 MRU LLC, and GILBANE BUILDING COMPANY (collectively hereinafter defendants) for an Order pursuant to CPLR 3212, granting defendants summary judgment on all of plaintiff's claims; and on this cross-motion by plaintiff [*2]AMANDA MADDEN for an Order granting plaintiff summary judgment under Labor Law § 240(1):
Papers/Numbered
Notice of Motion-Affirmation-Exhibits-Memo. of Law 1 - 5
Notice of Cross-Motion-Affirmation-Exhibits 6 - 10
Memo. of Law in Further Support and in Opposition 11 - 12
This personal injury action arises out of a construction site incident that occurred on March 30, 2015 at the building located at 855 6th Avenue, New York, New York. Plaintiff alleges that she was injured when she was transporting certain construction materials using an A-frame dolly on a loading dock when the A-frame dolly tipped over and fell on her leg.
Plaintiff commenced this action by filing a summons and complaint on January 19, 2015. Defendants joined issue by service of an answer on September 30, 2015. On February 8, 2016, defendants filed a third-party summons and complaint. By Short Form Order filed on September 2, 2016, third-party plaintiffs were granted a default judgment against third-party defendant Ellis Trucking Co, Inc. Plaintiff discontinued all of her claims against defendant Gotham Construction Company, LLC by Stipulation dated April 21, 2017. Defendants now move for summary judgment, dismissing all of plaintiff's claims. Plaintiff does not oppose those portions of defendants' motion which seek dismissal of her claims under general negligence, and Labor Laws §§ 200 and 241(6). Plaintiff cross-moves for summary judgment on her Labor Law § 240(1) claim.
As a preliminary matter, the cross-motion by plaintiff is untimely, and plaintiff did not seek leave of court or give a reasonable excuse for the delay in making the cross motion (see Miceli v State Farm Mut. Ins. Co., 3 NY3d 725 [2004]; Brill v City of New York, 2 NY3d 648 [2004]). However, as the cross-motion is made on nearly identical grounds as the timely motion, it will be considered (see Ellman v Village of Rhinebeck, 41 AD3d 635 [2d Dept. 2007]; Grande v Peteroy, 39 AD3d 590 [2d Dept. 2007]).
Plaintiff appeared for an examination before trial on October 26, 2016. She testified that at the time of the incident, she was a carpenter apprentice through a carpenter union. She was working at the construction project located at 855 6th Avenue in New York, New York. The day of the incident was her first day. She was employed by R & J Construction (R & J) at the time. On the day of the incident, after she and her colleagues completed an orientation, they went into the carpenters' shanty where R & J assigned a project to them. A foreman employed by R & J, John Lewis, gave her instructions with respect to the work to be performed by her and her co-workers. She was instructed to wait on the loading dock for a delivery truck to arrive. She and her crew began unloading the truck approximately ten minutes after the truck arrived with sheetrock. The incident occurred approximately thirty to forty-five minutes after the delivery truck arrived. Prior to the incident, she had unloaded about one load of sheetrock. She was turning around to receive another load when the incident occurred. She was using an A-frame dolly to transport the sheetrock at the direction of the R & J foreman, John Lewis. The A-frames were loaded to full capacity, with each dolly being loaded with approximately twenty sheets of sheetrock. She was not given any instructions about how much sheetrock to load on each A-[*3]frame. No one told her whether there was a capacity limit on the A-frame dollies. It was one worker per A-frame. Prior to the incident, she did not make any complaints about using the dollies to complete the task. The surface of the loading dock consisted of steel and plywood abutted against each other to make a somewhat even surface. She had to maneuver the dolly to have all four wheels aligned to have it move as straight as possible on the surface. She did not complain about the condition of the surface of the loading dock prior to the incident. She and her crew were instructed by the R & J foreman John Lewis to complete the work as soon as possible. Her coworker Candice Brown was pushing a dolly of sheetrock that was overloaded and heavy. She pushed her own dolly loaded up toward the material hoist and turned around to walk back toward the truck to grab another dolly of sheetrock when she saw Candice Brown's dolly tipping over. She tried to jump back out of the way, but the load of sheetrock toppled on top of her. Plaintiff identified a photograph at her deposition which was taken approximately ten minutes after the incident, after people removed much of the sheetrock.
Richard Agresta for defendants appeared for an examination before trial on March 7, 2017 and testified that he was the General Superintendent for Gilbane Construction Company (Gilbane). He testified that the construction project at issue was a 43-story residential concrete structure of approximately 550,000 square feet. Gotham Construction Company, LLC (Gotham) served as the construction manager for the project. Gotham hired R & J as a subcontractor for drywall and carpentry work. He dealt with the foreman John Lewis and the project manager John Neville. Typically, on the days that R & J was performing work on the site, John Lewis was present. On the day of the incident, R & J was working on framing and sheetrocking the apartments on the upper floors of the building. The loading dock where the incident occurred was in the first floor retail area, which was fully enclosed, with the exception of the gate through which delivery trucks would enter. He was unaware of any complaints regarding the surface of the loading dock area prior to the incident. The A-frame dollies were supplied, owned and maintained by R & J. On the day of the incident, R & J was receiving the material, bringing it to the material hoist, and sending it up to the floor where the work was being performed. It was R & J's foreman's responsibility to instruct and explain to the workers how R & J wanted the workers to load and unload the A-frame dollies. Gotham was never involved in supervising R & J's work. Prior to the incident, he was unaware of any complaints regarding the A-frame dollies. The A-frame alone weighs 60 to 70 pounds and could not be lifted by one worker. Each two-ply of sheetrock weighs 120 to 140 pounds. The sheetrock was not secured in any way to the A-frames. An A-frame loaded with unsecured sheetrock should be pushed by two people because it is heavy, very awkward, hard to maneuver, and one person could not do it alone. If he saw one worker trying to push an A-frame heavily loaded with unsecured sheetrock, he would tell a co-worker to help.
Non-party witness Candice Brown appeared for an examination before trial on April 5, 2017. She testified that on the day of the incident, she was employed by R & J and was unloading and transporting the sheetrock on the loading dock with plaintiff. The date of the incident was her first day at the job. She took directions from an R & J employee. At the time of the incident, she and her co-workers were moving A-frames loaded with sheetrock from the beginning of the loading dock to the material hoist that was taking the sheetrock up to different floors. No one explained how much material should be loaded on each A-frame dolly. No one gave the R & J [*4]workers direction as to how to move or use the dollies. The workers figured it out on their own. Regarding the manner in which the incident occurred, she testified that she and plaintiff were working in an assembly line manner in which she would bring the dolly to plaintiff, and plaintiff would take the A-frame dolly closer to the hoist. She dropped off an A-frame dolly and grabbed a new A-frame dolly. As she was bringing the new one towards plaintiff, the A-frame that was closest to plaintiff started to tilt. She tried to grab it and pull it back toward her, but the dolly started to pull her down with it so she let it go. Annexed to the motion is a Witness Statement filled out by Ms. Brown which provides in relevant part: "While moving A-frames closer to the hoist, the A-frame that Amanda was moving started to fall toward her."
The proponent of a summary judgment motion has the initial burden of submitting evidence in admissible form demonstrating the absence of any triable issues of fact and establishing an entitlement to judgment as a matter of law (see Ayotte v Gervasio, 81 NY2d 1062 [1993]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Once the requisite showing has been made, the burden shifts to the opposing party to produce admissible evidence sufficient to establish the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).
Labor Law § 240(1) requires owners, contractors, and their agents to provide workers with appropriate safety devices to protect against "such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). "[T]he single decisive question is whether plaintiff's injuries were the direct consequence of a failure to provide protection against a risk arising from a physically significant elevation differential" (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]). A plaintiff is not precluded from recovery under Labor Law § 240(1) simply because the plaintiff and the object that struck the plaintiff were on the same level (Willinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1 [2011]). The amount of force the falling object may generate must also be considered (Willinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1 [2011]).
Here, defendants established their prima facie case by demonstrating that the plaintiff and the A-frame dolly were on the same ground level, the A-frame dolly was not in the process of being hoisted or secured, and the A-frame dolly did not fall because of a failure to provide a safety device of the kind enumerated in the statute.
Although plaintiff has presented evidence that the sheetrock loaded on the dolly weighed over 1,000 pounds, plaintiff failed to demonstrate that she was injured due to a gravity-related or elevation-related hazard (cf. Kandatyan v 400 Fifth Realty, LLC, 155 AD3d 848 [2d Dept. 2017][finding that defendants failed to establish that Labor Law § 240(1) was inapplicable given the amount of force generated by the loaded dolly rolling down a ramp]). Moreover, the cases cited to by plaintiff in support of her contention that her injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential are readily distinguishable. Here, the dolly was not being moved down a flight of stairs or a ramp, (see Runner v New York Stock Exch., Inc., 13 NY3d 599 [2009]; Landi v SDS William St., LLC, 146 AD3d 33 [1st Dept. 2016]), the dolly was not defective, inadequate or not in working condition, (see McCallister v 200 Park, L.P., 92 AD3d 927 [2d Dept. 2012]), [*5]nor was the dolly being hoisted (see Guanopatin v Flushing Acquisition Holdings, LLC, 127 AD3d 812 [2d Dept. 2015]. Moreover, plaintiff failed to demonstrate that the sheetrock fell because of the absence or inadequacy of a safety device of the kind enumerated in the statute.
Accordingly, for the reasons stated above, it is hereby
ORDERED, that defendants GOTHAM CONSTRUCTION COMPANY, LLC, THE DURST ORGANIZATION INC., AVENUE OF THE AMERICAS DEVELOPMENT COMPANY, 855 MRU LLC, and GILBANE BUILDING COMPANY's motion is granted in its entirety, plaintiff's complaint is dismissed, and the Clerk of the Court is authorized to enter judgment accordingly; and it is further
ORDERED, that plaintiff's cross-motion is denied.
Dated: December 19, 2017
Long Island City, NY
ROBERT J. McDONALD
J.S.C.
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