Thannhauser v Holy Spirit Assn. for the Unification of World Christianity
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Thannhauser v Holy Spirit Assn. for the Unification of World Christianity 2018 NY Slip Op 32244(U) September 12, 2018 Supreme Court, New York County Docket Number: 158725/2015 Judge: Nancy M. Bannon 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: 1] NEW YORK COUNTY CLERK 09/13/2018 12:39 PM NYSCEF DOC. NO. 160 INDEX NO. 158725/2015 RECEIVED NYSCEF: 09/13/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 42 -----------------------------------------x DANIEL THANNHAUSER, Plaintiff Index No. 158725/2015 v DECISION AND ORDER THE HOLY SPIRIT ASSOCIATION FOR THE UNIFICATION OF WORLD CHRISTIANITY, NEW YORKER HOTEL MANAGEMENT COMPANY, and ROSCITI CONSTRUCTION COMPANY, LLC, Defendants. MOT SEQ 005 -----------------------------------------x NANCY M. BANNON, J.: I. INTRODUCTION In this action to recover damages for alleged personal injuries arising from a fall from an A-frame ladder at a construction site in Manhattan, the plaintiff moves pursuant to CPLR 3212 and Labor Law§ 240(1) for summary judgment on the issue liability as against the defendants, The Holy Spirit Association for the Unification of World Christianity, New Yorker Hotel Management Company, and Rosciti Construction Company, LLC. The defendants oppose the motion. The motion is granted. II. BACKGROUND The plaintiff, 2014, Daniel Thannhauser, alleges that, on July 14, he fell from a ladder while installing cabling for a cell phone system at the New Yorker Hotel in· Manhattan. 2 of 10 Thannhauser [*FILED: 2] NEW YORK COUNTY CLERK 09/13/2018 12:39 PM NYSCEF DOC. NO. 160 INDEX NO. 158725/2015 RECEIVED NYSCEF: 09/13/2018 was working as an employee of Starcom Communications Services, Inc. ( Starcom) at the time of the incident. He commenced this action against the defendants, asserting that they violated Labor Law§ 240(1) in failing to supply him with safety devices necessary to provide proper protection to workers from fallrelated injuries, and that his injuries were proximately caused by the absence of such protections. Named as defendants are The Holy Spirit Association for the Unification of World Christianity and New Yorker Hotel Management Company, Inc., owners of the subject premises at the time of the incident, and Rosciti Construction Company, LLC, the general contract that subcontracted with Starcom to perform cabling work at the site. III. DISCUSSION It is well settled that the movant on a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." Winearad v New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985) The motion must be supported by evidence in admissible form (see Zuckerman v City of New York, 49 NY2d 557 [1980]), as well as the pleadings and other proof such as affidavits, depositions, and written admissions. See CPLR 3212. The facts must be viewed in the light most favorable to the non-moving party. 2 3 of 10 See Vega v Restani [*FILED: 3] NEW YORK COUNTY CLERK 09/13/2018 12:39 PM NYSCEF DOC. NO. 160 INDEX NO. 158725/2015 RECEIVED NYSCEF: 09/13/2018 Constr. Corp., 180 AD2d 579 18 NY3d 499 (l~- (2012); Garcia v J.C. Duggan, Dept. 1992). Inc., Once the movant meets his burden, it is incumbent upon the non-moving party to establish the existence of material issues of fact. Corp., See Vega v Restani Constr. supra. Labor Law§ 240(1) provides that "[a]ll contractors and owners and their agents shall furnish or erect, or cause to be furnished or erected 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 [construction workers employed on the premises]." 240(1) The duty created by Labor Law § is nondelegable, and an owner or contractor who breaches that duty may be held liable for damages "regardless of whether it has actually exercised supervision or control over the work." Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, see Cahill v Triborough Bridge and Tunnel Authority, 500 (1993); 4 NY3d 35 Moreover, "where an accident is caused by violation of (2004) . the statute, the plaintiff's own negligence does not furnish a defense." at 39. Cahill v Triborough Bridge and Tunnel Authority, supra However, there can be no liability under Labor Law § 240(1) where there is no violation and the worker's actions are the sole proximate cause of the accident. Id.; see Barreto v Metropolitan Transp. Authority, 25 NY3d 426 (2015); Blake v 3 4 of 10 [*FILED: 4] NEW YORK COUNTY CLERK 09/13/2018 12:39 PM INDEX NO. 158725/2015 NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 09/13/2018 Neighborhood Housing Services of New York City, (2003). The Appellate Division, Inc., 1 NY3d 280 First Department has stated that "[w]here a ladder is offered as a work-site safety device, it must be sufficient to provide proper protection. It is well settled that failure to properly secure a ladder, to ensure that it remain steady and erect while being used, constitutes a violation of Labor Law§ 240(1) ." Kijak v 330 Madison Ave. Corp., 251 AD2d 152, 153 (1st Dept. 1998); see Klein v City of New York, AD3d 543 89 NY2d 833 (1996); Plywacz v 85 Broad Street LLC, 159 (l5t Dept. 2018); Schultze v 585 W 214th St. Owners Corp., 228 AD2d 381 (l5~ Dept. 1996). This is true whenever it is established that an unsecured ladder proximately caused a plaintiff's injuries, regardless of whether that plaintiff's behavior may have also contributed to the incident. Broad Street LLC, Op. 05972 493 (1st Plywacz v 85 supra; Gordon v City of New York, 2018 NY Slip (1st Dept. 2018); Messina v City of New York, Dept. 2017); Hill v City of New York, 148 AD3d 140 AD3d 568 Dept. 2016); Ausby v 365 W End LLC, 135 AD3d 481 (l5t (ls: Dept. 2016); Carino v Webster Place Assoc., LP, 45 AD3d 351 (ls: Dept. 2007) . The plaintiff makes a prima facie showing of entitlement to judgment as a matter of law by submitting proof, in the form of the plaintiff's deposition testimony and the plaintiff's affidavit in support of this motion, that the A-frame ladder from 4 5 of 10 [*FILED: 5] NEW YORK COUNTY CLERK 09/13/2018 12:39 PM NYSCEF DOC. NO. 160 INDEX NO. 158725/2015 RECEIVED NYSCEF: 09/13/2018 which the plaintiff fell while performing his work at the subject premises was not properly secured so as to ensure that it remained steady and erect while being used. Specifically, the plaintiff testified twice at his deposition that immediately before his fall, the ladder "wobbledu and he lost his balance. The plaintiff's affidavit similarly states that the ladder "wobbled, ~ocked and twistedu while he was standing on it, and that he subsequently lost his balance and fell, injuries. sustaining Thus, the plaintiff establishes that the ladder was a proximate cause of his injuries, as is required for a finding of liability under Labor Law§ 240(1). Furthermore; it is undisputed that the defendants The Holy Spirit Association for the Unification of World Christianity and New Yorker Hotel Management Company, the time of the Inc., as owners of the subject premises at incident~ and the defendant Rosciti Construction Company, LLC, as the general contract that subcontracted with Starcom to perform cabling work at the subject premises, are each subject to liability pursuant to the statute. In opposition to the plaintiff's motion, the defendants submit two unsworn accident reports filed by the plaintiff stating that he sustained his injuries when he lost his balance and fell from the ladder. assertions, Contrary to the defendants' these statements do not contradict the plaintiff's consistent deposition and affidavit testimony that he fell after 5 6 of 10 [*FILED: 6] NEW YORK COUNTY CLERK 09/13/2018 12:39 PM NYSCEF DOC. NO. 160 INDEX NO. 158725/2015 RECEIVED NYSCEF: 09/13/2018 the ladder suddenly wobbled and he lost his balance. Eurostruct, New York, Inc., See Rom v 158 AD3d 570 (Pt Dept. 2018); Hill v City of 140 AD3d 568, 570 (1st Dept. 2016). the Appellate Department, In any event, as First Division, has observed, it is "irrelevant whether [the plaintiff] fell because the ladder wobbled" or because he lost his balance; "it is clear that the ladder did not prevent plaintiff from falling and there is no dispute that no safety devices, other than the provided." ladder~ Hill v City of New York, supra at 570 omitted); see Yu Xiu Deng v A.J. Contr. Co., were (quotation Inc., 255 AD2d 202 (1st Dept. 1998). The defendants' argument that the plaintiff was required to demonstrate that the ladder was defective in order to satisfy his burden as to Labor Law§ 240(1) is similarly without merit. Hill v City of New York, supra. See "It is sufficient for purposes of liability under [Labor Law§ 240(1)] that adequate safety devices to prevent the ladder from slipping or to protect plaintiff from falling were absent." Realty Corp., 292 AD2d 289, 291 Orellano v 29 E 37th St. (1sc Dept. 2002). Moreover, in contrast to the cases the defendants cite for the proposition that a plaintiff's failure to utilize safety devices properly does not give rise to liability under Labor Law§ 240(1), there is no evidence here that the plaintiff failed to follow safety 6 7 of 10 [*FILED: 7] NEW YORK COUNTY CLERK 09/13/2018 12:39 PM NYSCEF DOC. NO. 160 INDEX NO. 158725/2015 RECEIVED NYSCEF: 09/13/2018 instructions or used the safety features of the ladder inappropriately. Since the plaintiff has established, prima facie, that his injuries were the direct consequence of using a ladder that did not provide adequate protection from the class of injuries contemplated by Labor Law§ 240(1), and the defendants have not come forward with evidence sufficient to raise a triable issue of fact, the plaintiff is entitled to summary judgment on the issue of liability. IV. CONCLUSION In light of the foregoing, it is ORDERED that the plaintiff's motion for summary judgment on the issue of liability is granted as against the defendants, The Holy Spirit Association for the Unification of World Christianity, New Yorker Hotel Management Company, and Rosciti Construction Company, LLC; and it is further ORDERED that a Judicial Hearing Officer ("JHO") or Special Referee shall be designated to hear and report to this court on the following individual issues of fact, which are hereby submitted to the JHO/Special Referee for such purpose: the issue of the amount of damages that the plaintiff is entitled to; and it is further ORDERED that this matter is hereby referred to the Special Referee Clerk (Room 119, 646-386-3028 or spref@nycourts.gov) 7 8 of 10 for [*FILED: 8] NEW YORK COUNTY CLERK 09/13/2018 12:39 PM NYSCEF DOC. NO. 160 INDEX NO. 158725/2015 RECEIVED NYSCEF: 09/13/2018 placement at the earliest possible date upon the calendar of the Special Referees Part Rules of that Part (Part SRP), which, in accordance with the (which are posted on the website of this court at www.nycourts.gov/supctmanh at the "Referencesu link), shall assign this matter at the initial appearance to an available JHO/Special Referee to hear and report as specified above; and it is further ORDERED that counsel shall immediately consult one another and counsel for plaintiff/petitioner shall, within 15 days from the date of this Order, submit to the Special Referee Clerk by fax (212-401-9186) or e-mail an Information Sheet (accessible at the "Referencesu link on the court's website) containing all the information called for therein and that, as soon as practical thereafter, the Special Referee Clerk shall advise counsel for the parties of the date fixed for the appearance of the matter upon the calendar of the Special Referees Part; and it is further ORDERED that the parties shall appear for the reference hearing, including with all witnesses and evidence they seek to present, and shall be ready to proceed, on the date first fixed by the Special Referee Clerk subject only to any adjournment that may be authorized by the Special Referees Part in accordance with the Rules of that Part; and it is further; and it is further ORDERED that, except as otherwise directed by the assigned JHO/Special Referee for good cause shown, the trial of the 8 9 of 10 [*FILED: 9] NEW YORK COUNTY CLERK 09/13/2018 12:39 PM NYSCEF DOC. NO. 160 INDEX NO. 158725/2015 RECEIVED NYSCEF: 09/13/2018 issue(s) specified above shall proceed from day to day until completion and counsel must arrange theii schedules and those of their witnesses accordingly; and it is further ORDERED that counsel shall file memoranda or other documents directed to the assigned JHO/Special Referee in accordance with the Uniform Rules of the Judicial Hearing Officers and the Special Referees (available at the "Referencesu link on the court's website) by filing same with the New York State Courts Electronic Filing System (see Rule 2 of the Uniform Rules); and it is further ORDERED that any motion to confirm or disaffirm the Report of the JHO/Special Referee shall be made within the time and in the manner specified in CPLR 4403 and Section 202.44 of the Uniform Rules for the Trial Courts; and it is further ORDERED that, unless otherwise directed by this court in any Order that may be issued together with this Order of Reference to Hear and Report, the issues presented in any motion identified in the first paragraph hereof shall be held in abeyance pending submission of the Report of the JHO/Special Referee and the determination of this court thereon. This constitutes the -Decision and Order of the court. Dated: September 12, 2018 ENTER: Y\1149-r---"~. s. c. HON. NANCY M. BANNON 9 10 of 10
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