Velez-Tejada v 4525-4555 Apts. Corp.

[*1] Velez-Tejada v 4525-4555 Apts. Corp. 2018 NY Slip Op 50132(U) Decided on January 19, 2018 Supreme Court, Bronx County Brigantti, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 19, 2018
Supreme Court, Bronx County

Luis Velez-Tejada, Plaintiff,

against

4525-4555 Apartments Corp., et al., Defendants.



24467/2013E



Counsel for Plaintiff: Block, O'Toole, & Murphy, LLP (Michael J. Hurwitz, Esq.)

Counsel for Defendants Spring Scaffolding, LL" target="_blank">Vega v. Restani Constr. Corp., 18 NY3d 499 [2012]). If the trial judge is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied. (Bush v. Saint Claire's Hospital, 82 NY2d 738 [1993]).

III. Applicable Law and Analysis

Plaintiff's Summary Judgment Motion

Labor Law §240(1) imposes a duty of protection of employees upon owners, contractors and their agents "in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure." The duty consists in providing "scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices." The foregoing devices are to be furnished in a manner sufficient to give "proper protection" to the workers. Labor Law §240 (1) is to be construed as liberally as possible for the accomplishment of the purpose for which it was framed (Blake v. Neighborhood Housing Services of New York City, Inc., 1 NY3d 280, Zimmer v. Chemung County Performing Arts, Inc., 65 NY2d 513), and it was designed to prevent accidents that occur where a safety device "proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person" (see Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 501 [1993]). Specifically, the statute imposes liability in situations where a worker is exposed to the risk of falling from an elevated work site or being hit by an object falling from an elevated work site (Rocovich v. Consolidated Edison Co., 78 NY2d 509 [1991]). The two elements of a 240(1) cause of action are that the statute was violated and that the violation was a proximate cause of the injury (Blake, supra; Bland v. Manocherian, 66 NY2d 452 [1985]; Chacha v. Glickenhaus Doynow Sutton Farm Development, LLC, 69 AD3d 896 [2nd Dept. 2010]).

In the context of a "falling object" claim, a plaintiff must "demonstrate the existence of a hazard contemplated under that statute and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" (Narducci v. Manhasset Bay Assoc., 96 NY2d 259, 267 [2001], citing Ross v. Curtis—Palmer Hydro—Elec. Co., 81 NY2d 494, 501 [1993] ). The plaintiff must essentially demonstrate that at the time the object fell, it either was being "hoisted or secured," or "required securing for the purposes of the [plaintiff's] undertaking" (Fabrizi v. 1095 Ave. of the Americas LLC., 22 NY3d 658, 662-63 [2014], citing Outar v. City of New York, 5 NY3d 731, 732 [2005]). The Court of Appeals in Fabrizi stressed that liability under Labor Law §240(1) does not attach merely because an object fell and injured a worker. Rather, "[a] plaintiff must show that the object fell ... because of the absence or inadequacy of a safety device of the kind enumerated in the statute" (5 NY3d at 663, citing Narducci, 96 NY2d at 268 [emphasis supplied]). (see also Fontaine v. Juniper Assoc., 26 Misc 3d 493 [Sup. Ct., Bx. Cty., 2009], aff'd, 67 AD3d 608 [1st Dept. 2009], citing, inter alia, Quattrocchi v. F.J. Sciame Constr. Corp., 11 NY3d 757 [2008]).

To prevail on a motion for partial summary judgment on a cause of action under Labor Law §240(1), the plaintiff must show both that the statute was violated and that the violation was a proximate cause of his injuries. (Auriemma v. Biltmore Theatre, LLC., 82 AD3d 1 [1st Dept. 2011][internal citations omitted]).

In this matter, Plaintiff has demonstrated his prima facie entitlement to judgment as a matter of law against defendants Spring, Apartments, and Skyline. First, contrary to Defendants' [*5]contentions, Plaintiff was engaged in a covered activity under Labor Law 240(1) (see, e.g., Ford v. HRH Constr. Corp., 41 AD3d 639 [2nd Dept. 2007]). The delivery of construction-related materials to the work site is a covered activity where, as here, it is necessary and incidental to a construction project (see Curley v. Gateway Communications Inc., 250 AD2d 888, 890 [3rd Dept. 1998]; see generally Fontaine v. Juniper Assoc., 26 Misc 3d 493 [Sup.Ct., Bx. Cty., 2009], aff'd, 67 AD3d 608 [1st Dept. 2009]; cf. Haines v. Dick's Concrete Co., Inc., 84 AD3d 732, 734 [2nd Dept. 2011]). In DeRosa v. Bovis Lend Lease LMB, Inc., cited by defendant Apartments, the plaintiff's Labor Law §240(1) claim was dismissed because the accident did not involve an elevation-related risk that required the use of safety devices (see DeRosa v. Bovis Lend Lease LMB, Inc., 96 AD3d 652, 654 [1st Dept. 2012]), not because the plaintiff-deliveryperson was not engaged in a protected activity. The plaintiff boom truck operator in Hargobin v. K.A.F.C.I. Corp., another case cited by Defendants, was not engaged in activity that involved a significant physical change to the configuration or composition of a building or structure (282 AD2d 31, 35 [1st Dept. 2001]), unlike Plaintiff in the instant matter.

Next, this incident involved an elevation-related risk for Labor Law purposes. The metal scaffolding bundles that burst and fell onto Plaintiff were objects that "required securing for the purposes of [Plaintiff's] undertaking" (Outar v. City of New York, 5 NY3d 731, 732; see also Grant v. Solomon R. Guggenheim Museum, 139 AD3d 583 [1st Dept. 2016]), as Plaintiff was preparing to unload the bundles in order to deliver the material to workers on a nearby sidewalk bridge. Contrary to Defendants' contentions, the fact that the metal scaffolding bundles that fell were on the same level as Plaintiff does not remove this incident from the ambit of Labor Law. Each piece of scaffolding weighed approximately 50 pounds and each bundle consisted of about 50-60 pieces, totaling some 2,500-3,000 pounds per bundle. The scaffolding was secured by metal bands and the bundles were taller than Plaintiff. Because his truck was parked on an incline, when Plaintiff removed two of the metal bands, two other bands suddenly popped open due to the pressure and the scaffolding frames fell over and struck Plaintiff. Under these facts, Plaintiff was exposed to an elevation-related risk, because the bundles of metal scaffolding that toppled over were capable of generating a significant amount of force, and Plaintiff was injured due to the application of the force of gravity on those bundles (see Marrero v. 2075 Holding Co., LLC., 106 AD3d 408, 409 [1st Dept. 2013]; Willinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y. 1, 7 [2011]; Grant v. Solomon R. Guggenheim Museum, 139 AD3d at 584; see also Natoli v. City of New York, 148 AD3d 489 [1st Dept. 2017]). With respect to this issue, Apartments and Spring mostly rely on pre-Wilinski decisions or decisions from other Judicial Departments, however this Court is bound by the apposite decisions of the First Department (see D'Alessandro v. Carro, 123 AD3d 1, 6 [1st Dept. 2014]). In the matter Guido v. Dormitory Authority of State of New York, cited by Spring, there was no indication that the ladders that fell onto the plaintiff from the flatbed truck were capable of generating a significant amount of force, and moreover, the court noted that the tilt of the truck was de minimis since plaintiff himself did not notice the tilt prior to the accident (145 AD3d 591, 592 [1st Dept. 2016]). Spring argues that the scaffold frames were only 40-50 pounds each, but Plaintiff testified that multiple "frames" came down and knocked him over, and he could not hold them back due to their weight (Pl. EBT at 53). Plaintiff's description of the accident, including the number of scaffold pieces that fell and their combined weight, and the manner in which they fell onto him as a result of the positioning of the [*6]truck, is sufficient to establish that this accident resulted from an elevation-related risk (cf. Wright v. Ellsworth Partners, LLC., 143 AD3d 1116 [3rd Dept. 2016]).

Plaintiff further established that this accident occurred in part due to the absence of a safety device, as his professional engineer noted that Plaintiff was not provided with a proper device such as slings, ropes, chains, to maintain the bundle in a safe position, or canvas straps which would have enabled the worker to slowly release the tension of the strap in a controlled manner.

In opposition to the motion, aside from arguing that this incident does not fall within the ambit of Labor Law §240(1) (as discussed supra), the defendants contend that Plaintiff was the sole proximate cause of the accident. If, if fact, a plaintiff's own conduct solely causes his injuries, there can be no liability under the Labor Law (see Cahill v. Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39 [2004]). In order to raise an issue of fact as to whether a plaintiff was the sole proximate cause of an accident, a defendant must generally produce evidence that adequate safety devices were available, that plaintiff knew they were available, and he was expected to use them, but he or she unreasonably chose not to do so (id. at 40; Gallagher v. New York Post, 14 NY3d 83 [2010]). A defendant may also establish a "recalcitrant worker defense" by showing that the plaintiff disobeyed an "immediate and active direction" to avoid an unsafe practice, and refused to use the adequate safety devices that were provided (see Balthazar v. Full Circle Const. Corp., 268 AD2d 96 [1st Dept. 2000]). Here, Defendants argue that it was Plaintiff's sole decision to park the truck on the incline, citing his testimony (Pl. EBT at page 42:21-25), and his foreman Jimmy 's testimony (Jimmy EBT at pages 82, 84, 85). Defendants also note that Plaintiff inspected the metal straps to ensure that they were secured, and moreover, Plaintiff himself removed the metal straps and caused the remaining two metal bands to pop open (citing Pl. EBT at 53). Jimmy also noted that Plaintiff was not paying attention when he unloaded the bundles. Defendant-Apartments argues that there are issues of fact as to whether Plaintiff's conduct in parking the vehicle on an incline and in cutting the straps without paying the appropriate attention constitute the sole proximate cause of this accident.

Defendants' contentions are unavailing. First, there is no evidence that Plaintiff himself decided where to park the flatbed truck. Plaintiff testified that Jimmy told him to park the truck in a spot behind the building (Pl. EBT at 39-40). Plaintiff later testified that his other boss "Danny" or Jimmy did not have to tell him "not to back up to the location" where he was unloading (id at 42), but he did not testify that it was his sole decision where to park. Furthermore, Jimmy confirmed that he told Plaintiff where to park the truck (Jimmy EBT at 84:22-25; 85:1-4), and after the first day, plaintiff "[knew] where [to park]. He put it in the same place" (id). Jimmy never stated that it was Plaintiff's sole decision where to park. Next, even assuming that Plaintiff was not paying attention and cut the metal straps himself, his conduct cannot be the sole proximate cause of the accident because defendants did not prove that adequate safety devices such as additional canvas straps were provided or available to allow Plaintiff to carry out his task safely (see Grant v. Solomon R. Guggenheim Museum, 139 AD3d at 584). Therefore, this accident was at least in part caused by the absence of a proper safety device, and a plaintiff's comparative negligence is no defense to summary judgment (see Bonaerge v. Leighton House Condominium, 134 AD3d 648, 649 [1st Dept. 2015]).

Spring argues that the deposition testimony presents contradictory statements that raise [*7]issues of fact. Plaintiff said that Jimmy told him to pull straight into the location where he was going to unload, however Jimmy said he only instructed Plaintiff to park as close as possible to the sidewalk bridge. Spring also argues that Plaintiff has provided contradictory testimony concerning whether it was possible to pull straight into the parking spot or reverse into the spot, and notes that Jimmy denied that Plaintiff ever complained about parking on an incline. This allegedly conflicting testimony, however, is not material for purposes of defendants' Labor Law §240 liability, as Spring presents no evidence that Plaintiff was provided with proper safety devices to carry out his task. Furthermore, Plaintiff's testimony concerning parking on the job-site cannot be discredited merely because it is self-serving, and defendants have failed to present bona fide issues as to his credibility (see Anderson v. International House, 222 AD2d 237 [1st Dept. 1995]).

Spring asserts that the metal bands did not fail, but were purposely cut by Plaintiff. However, none of the testimony cited by Spring directly contradicts Plaintiff's contention that after removing two of the bands, two other bands popped open on their own. The testimony from Spring's Yard Manager Stephan Mirauti concerning the usual practice in securing the scaffolding materials, and his contention that it would be "impossible" for a metal strap to fail on its own, does not raise an issue of fact. Mr. Mirauti had no personal recollection regarding the particulars of this project. The fact that there were additional straps securing the load to the vehicle itself is irrelevant, as Plaintiff is alleging that the straps securing the scaffold bundle - not the straps that secured the bundle to the vehicle - popped open and caused this accident to occur. Spring also argues that a canvas strap as suggested by Plaintiff's expert would have been contrary to the objective of the work. However, Spring provides no admissible evidence supporting this argument aside from the contention of its counsel. Spring therefore failed to adequately refute Plaintiff's expert's opinion regarding this issue (see, e.g., Pipia v. Turner Constr. Co., 114 AD3d 424, 427 [1st Dept. 2014]).

Spring alleges that there is no evidence that the truck was actually parked on an incline "other than Plaintiff's self-serving testimony." However, as noted supra, a court may accept a plaintiff's own testimony in support of a summary judgment motion. Furthermore, the motion is also supported by the affidavit of nonparty Francisco Nunez, who stated that Plaintiff was directed to park the flatbed truck on an inclined area of the work site (Nunez Aff., at Par. 5). Spring asserts that a photograph of the truck after the accident demonstrates that it was not parked on an incline. Spring, however, points to no testimony authenticating the photograph and in any event, the photograph itself does not conclusively show that the flatbed was not parked on an incline. The defendants offer no evidence refuting Plaintiff's contention regarding the positioning of the vehicle, as Jimmy did not know if the truck was on an incline at the time of the accident (Jimmy EBT at 103, 104).

In opposition to Plaintiff's motion, and in support of its own summary judgment motion, Spring argues that Plaintiff failed to show that it is subject to liability under Labor Law §240(1) or 241(6), as it was not an owner, general contractor, or statutory agent of the owner or general contractor on this project. However, a subcontractor such as Spring is subject to vicarious Labor Law liability as an agent of another contractor where the subcontractor chooses the entity who did the work, enters into contracts with them, and has the authority to exercise supervisory control over the work (see Weber v. Baccarat, Inc., 70 AD3d 487, 488 [1st Dept. 2010], citing [*8]inter alia Williams v. Dover Home Improvement, 276 AD2d 626, 626-27 [2nd Dept. 2000]; Walls v. Turner Construction Co., 4 NY3d 861, 864 [2005]). The fact that the subcontractor did not actually supervise or direct the work at the time of the accident is irrelevant (Weber v. Baccarat, Inc., 70 AD3d 487, 488).

In this case, Plaintiff supported its summary judgment motion with testimonial evidence that general contractor Skyline retained Spring to deliver, erect, and dismantle scaffolding at the construction site. Spring's president confirmed that Spring contracted with Plaintiff's employer, Dynamic, to perform this work. Plaintiff also submitted the contract between Spring and Skyline which states that Spring was responsible for, among other things, supervising and directing its work (Contract at Par. 4.1.1). Spring, accordingly, was a statutory agent of the general contractor and thus subject to liability under Labor Law, even though it did not actually direct, control, or supervise Plaintiff's work (Weber v. Baccarat, Inc., 70 AD3d 487, 488; Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500 [1993]; see generally Russin v. Louis N. Picciano & Son, 54 NY2d 311 [1981]). The matter Keenan v. Simon Prop. Group, Inc., 106 AD3d 586 (1st Dept. 2013), is distinguishable because in that case, the subcontract there did not "state, or even reasonably imply, that the general contractor was delegating its responsibilities for supervising and controlling the work" to the subcontractor. Here, however, the subcontract specifically provides that Spring "shall supervise and direct the Subcontractor's work." That Spring may have subsequently delegated its authority to Plaintiff's employer Dynamic does not remove Spring's status as a statutory agent of the general contractor (see Nascimento v. Bridgehampton Constr. Corp., 86 AD3d 189, 195 [1st Dept. 2011]).

In light of the foregoing, defendants Apartments, Skyline, and Spring failed to raise an issue of fact with respect to their liability on Plaintiff's Labor Law §240(1) claims. Plaintiff's motion for summary judgment is therefore granted, and that branch of Spring's motion seeking dismissal of Plaintiff's Labor Law §240(1) claims is denied.

Spring's Motion for Summary Judgment

Spring also moves for summary judgment with respect to Plaintiff's Labor Law §200 and §241(6) claims. In order to be subject to liability for Labor Law §200, a defendant must not only have the general authority to control the injury-producing work, but must actually control and/or supervise the work (see Bajor v. 75 E. End Owners Inc., 89 AD3d 458 [1st Dept. 2011], citing Hughes v. Tishman Constr. Corp., 40 AD3d 305, 306 [1st Dept. 2007]). Here, Spring has demonstrated that it did not actually exercise supervision or control over Plaintiff's work. Plaintiff, moreover, does not oppose summary judgment regarding his Labor Law §200 claims against Spring, therefore those claims are dismissed. Spring has also demonstrated without opposition that Plaintiff's Labor Law §241(6) claims are inapplicable to these facts. Accordingly, those claims are dismissed with respect to all defendants, as abandoned (see Rodriguez v. Dormitory Authority of State, 104 AD3d 529, 530-31 [1st Dept. 2013]).

Those branches of Spring's motion for summary judgment dismissing Dynamic's counter-claim for contribution and cross-claims for common law and contractual indemnification are granted without opposition. Spring offers no argument with respect to any other cross-claims or counter-claims, and therefore summary judgment on any unaddressed claims is denied.

IV. Conclusion

Accordingly, it is hereby

ORDERED, that Plaintiff's motion for summary judgment on the issue of liability with respect to his Labor Law §240(1) claims asserted against Apartments, Skyline, and Spring, is granted, and it is further,

ORDERED, that the branch of Spring's cross-motion for summary judgment seeking dismissal of Plaintiff's Labor Law §240(1) claim asserted against it is denied, and it is further,

ORDERED, that the branch of Spring's cross-motion for summary judgment seeking dismissal of Plaintiff's Labor Law §200 claims asserted against it is granted, and those claims as asserted against Spring only are dismissed with prejudice, and it is further,

ORDERED, that the branch of Spring's cross-motion for summary judgment seeking dismissal of Plaintiff's Labor Law §241(6) claims is granted, and those claims as asserted against all defendants are dismissed with prejudice, and it is further,

ORDERED, that the branches of Spring's cross-motion for summary judgment seeking dismissal of Dynamic's counter-claims and cross-claims for contribution and indemnification are granted, and those claims are dismissed with prejudice, and it is further,

ORDERED, that any relief sought but not granted herein is specifically denied.

This constitutes the Decision and Order of this Court.

Dated: January 19, 2018

Hon. Mary Ann Brigantti, J.S.C.