Proano v Kesser Realty Corp.

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[*1] Proano v Kesser Realty Corp. 2018 NY Slip Op 28076 Decided on March 13, 2018 Supreme Court, Kings County Walker, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on March 13, 2018
Supreme Court, Kings County

Miguel Angel Proano and ERIKA SANTANA, Plaintiffs,

against

Kesser Realty Corp., Defendants.



16773/14



Plaintiff's Attorney:

Gorayeb & Associate, P.C.

100 William Street, Ste. 1900

New York, New York 10038

(212)267-9222

Mark H. Edwards, Esq.

Defendant's Attorney:

Marshall Conway & Bradley, P.C.

45 Broadway, Suite 740

New York, New York 10006

(212)619-4444

Thomas H. Straub, Esq.
Edgar G. Walker, J.

The portion of the defendant's motion seeking summary judgment and dismissal of Proano's, (hereinafter "the plaintiff"), Labor Law § 240(1) cause of action is denied. The portions of the defendant's motion seeking summary judgment and dismissal of the plaintiff's Labor Law §§ 241(6), 200 and common law negligence causes of action are granted. The plaintiff's cross motion is denied.

This case arises out of an accident that occurred on November 13, 2014 near the premises located at 219 Manhattan Avenue, Kings County, New York, (hereinafter "the premises"), which is owned by the defendant. The plaintiff was employed as a welding assistant by Barzel, Inc., (hereinafter "Barzel"), a metal fabrication company when the accident occurred. At his deposition the plaintiff testified that Barzel was hired to create a waste disposal container and install it at the premises. The plaintiff further testified that at the time of the accident he and two other workers had already lowered the container from a flatbed truck onto a dolly and were in the process of moving it toward the premises when the container fell onto his right ankle, causing him to sustain injuries.

With respect to the portion of the defendant's motion regarding Labor Law §240(1), the [*2]defendant fails to make out a prima facie defense. Although the defendant alleges that at the time of the accident the plaintiff was merely delivering and installing the container, the deposition testimony included in the moving papers demonstrates that, in preparation for the placement of the container, four holes were drilled into a concrete pad, one for each corner of the container, and bolts were welded to the container which were inserted into the holes to hold it in place.

The defendant makes the blanket assertion that installation is more akin to "cosmetic maintenance or decorative modification" rather than alteration, citing Munoz v. DJZ Realty, LLC, 5 NY3d 747, 748 (2005). However, the Court of Appeals in Munoz merely ruled that the specific activity in that case—applying a new advertisement to the face of a billboard without changing the billboard's structure—did not constitute alteration. The facts in this case more closely resemble the facts in Saint v. Syracuse Supply Co., 25 NY3d 117 (2015), which also involved installation of a new billboard advertisement. In Saint the fact that the installation necessitated the attachment of additions to the existing frame, just as in this case the installation required the welding of bolts to the bottom of the container, led the Court of Appeals to conclude that the activity did constitute alteration. The fact that the plaintiff is a welder lends further support to the same conclusion in this case.

The defendant also contends that the plaintiff was delivering the container at the time of his injury and delivery is not covered under the statute. The Court of Appeals has rejected this narrow construction of the statute's application because "it is neither pragmatic nor consistent with the spirit of the statute to isolate the moment of injury and ignore the general context of the work" Prats v. Port Auth. of N.Y. & N.J., 100 NY2d 878, 882 (2003). Again, it is significant that the plaintiff is a welder and not merely a deliveryman.

The defendant also argues that the accident did not involve a significant elevation differential. Whether the differential was 20 to 25 inches, as the plaintiff claims, or 5 to 6 inches, as the defendant claims, it cannot be viewed as de minimus, "given the weight of the object and the amount of force it was capable of generating, even over the course of a relatively short descent." Runner v. New York Stock Exchange, 13 NY3d 599, 605 (2009). As such, the defendant fails to make a prima facie showing that the elevation differential was not significant.

The defendant's original motion papers do not address the issue of whether the container constituted a structure within the meaning of the statute and the Court will not consider the argument raised for the first time in reply. As such, the portion of the defendant's motion seeking summary judgment and dismissal of the plaintiff's Labor Law § 240(1) cause of action is denied, regardless of the sufficiency of the opposing papers. Alvarez v. Prospect Hosp., 68 NY2d 320 (1986).

With respect to the portion of the defendant's motion regarding Labor Law §241(6), the defendant makes a prima facie showing of entitlement to summary judgment. The plaintiff relies upon Industrial Code §23-2.1(a)(1), which applies to storage of materials and not to materials actually in use at the time of the accident. Miles v. Buffalo State Alumni Assn., Inc., 121 AD3d 1573 (4th Dept. 2014). In opposition, the plaintiff fails to raise a question of fact as he fails to demonstrate how the aforementioned Industrial Code provision is applicable. As such, the portion of the defendant's motion seeking summary judgment and dismissal of the plaintiff's Labor Law § 241(6) cause of action is granted.

With respect to the portions of the defendant's motion regarding Labor Law §200 and common law negligence, the defendant makes a prima facie showing that it did not exercise supervision or control over the work. The defendant additionally makes a prima facie showing that it did not have notice of any defect, as there is no defect alleged by the plaintiff. In opposition the plaintiff fails to raise a question of fact with respect to these issues. As such, the portions of the defendant's motion seeking summary judgment and dismissal of the plaintiff's Labor Law §200 and common law negligence causes of action are also granted.

With respect to the plaintiff's cross motion, he fails to make a prima facie showing of entitlement to summary judgment with respect to whether the container constituted a structure under Labor Law §240(1).

"Whether an item is or is not a 'structure' is fact-specific and must be determined on a case-by-case basis. In determining each case, courts may consider a number of relevant factors. These factors should include, but are not necessarily limited to, the item's size, purpose, design, composition, and degree of complexity; the ease or difficulty of its assembly and disassembly; the tools required to create it and dismantle it; the manner and degree of its interconnecting parts; and the amount of time the item is to exist. However, no one factor should be controlling." McCoy v. Abigail Kirsch at Tappan Hill, Inc., 99 AD3d 13, 16-17, (2'd Dept. 2012).

In this case the plaintiff fails to provide sufficient facts to determine whether or not the container constituted a structure. As such the plaintiff's motion for summary judgment on his Labor Law § 240(1) cause of action is denied regardless of the sufficiency of the opposing papers. Alvarez, supra.

This constitutes the Decision and Order of the Court.



Dated : March 13, 2018

____________________________________

Hon. Edgar G. Walker, J.S.C.