Ilenko v Mullen Constr. Co., Inc.

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[*1] Ilenko v Mullen Constr. Co., Inc. 2018 NY Slip Op 51842(U) Decided on December 14, 2018 Supreme Court, Queens County Modica, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 14, 2018
Supreme Court, Queens County

Adam Ilenko and John Sierra, Plaintiffs,


Mullen Construction Company, Inc., et al., Defendants.


For Plaintiff: Law Office of Frank A. Cetero, by Joseph Scalia, 248 Higbie Lane, West Islip, New York 11795

For Defendant: Gambeski & Frum, by George P. Gambeski, Esq., 565 Taxter Road, Elmsford, New York 10523
Salvatore J. Modica, J.

The following papers numbered 1 to 8 were read on this motion by Mullen Construction Company, Inc., ("Mullen"), for summary judgment in its favor dismissing the complaint and all cross claims, insofar as asserted against it, pursuant to CPLR 3212.

Papers Numbered

Notice of Motion - Affidavits - Exhibits 1-15

Answering Affidavits - Exhibits 16-17

Reply Affidavits 18-19

Plaintiffs in this negligence/labor law action seek damages for personal injuries which they sustained when they fell from an elevated height while performing construction work. The accident occurred at the Mary Gate of Heaven Mausoleum located at 172-00 Booth Memorial Avenue, in Flushing, Queens County, New York. Plaintiffs allege that they were caused to fall from a height while working on a scissor lift. Plaintiffs further allege that Mullen was negligent and careless in causing and permitting a mausoleum owned by Mary Gate of Heaven Mausoleum, to be defectively designed, constructed and to remain in a dangerous/defective condition. Mullen, upon the foregoing papers, moves for summary judgment in its favor on [*2]several grounds as discussed below. Plaintiffs oppose the motion.

The Facts

Plaintiff Ilenko testified in an examination before trial, as follows: he had been employed by Catholic Cemeteries since March 2003 and was responsible for burials and entombments. Ilenko mainly worked at the Mt. St. Mary's Cemetery ("MSMC"), location at 172-00 Booth Memorial Avenue, in Flushing, Queens County, which provides for in-ground burials and entombment in mausoleums. MSMC has two mausoleums, the Mother Mary of God and the Mary Gate of Heaven Mausoleums.

The subject accident occurred on November 16, 2013, in the Mary Gate of Heaven Mausoleum which was built in 2006. The Mary Gate of Heaven Mausoleum has somewhere between 125 and 200 crypts, organized in rows. The crypts in the Mausoleum can go up to 7 crypts high and each crypt is designated a number and letter. Each row is assigned a letter starting with "A" on the bottom to "G" as the top row. At the time of his accident, Ilenko was in the process of placing a casket in a crypt located between rows 68 to 71 G. In order to place a casket in row G, a lift was necessary.

At the time of the accident, MSMC had one scissor lift on site. The scissor lift was powered by a battery and equipped with four wheels and four stabilizers located at the base of the lift, which was approximately 5-6 feet long and consisted of a platform for the placement of caskets. The lift was equipped with one set of controls located at the floor level that allowed the operator to drive the lift like a motor vehicle and move the lift up and down. The lift was capable of being extended about 25-30 feet in height. A second set of controls was located in the upper box of the lift and allowed the lift to move up and down but not back and forth. The only way to move the lift back and forth was from the lower controls. Once the lift was extended, it was not supposed to be moved back and forth. The lift also had two cages, one on each side of the lift platform. Plaintiff and another worker would typically stand inside the cages to install the caskets into the crypts.

On the date of the accident, plaintiffs, their supervisor, Mr. Frank, and two field workers— Rodriguez and Shaikh— were present inside the mausoleum to assist in placing the casket inside the crypt. The crypt in which the casket was to be placed was located directly above a statute. The statute was approximately 8 feet tall and 2 ½ feet wide and extended approximately 3 to 3 ½ feet from the wall. Prior to this accident, plaintiff never had any experience installing a casked into a crypt above the statute. On the date in question, as plaintiffs and the other field workers were placing the casket on the lift platform, someone moved the lift closer to the crypt so that the lift was approximately one foot away from the statute.

At his deposition, plaintiff did not specifically recall whether or not the stabilizers were in place before he entered the lift. He testified that he and plaintiff Sierra got into the cages that were on either side of the lift platform. Although Ilenko was wearing a harness, he was not tied off to anything. The plaintiffs' supervisor, Frank, who controlled the lift, extended it, bringing plaintiffs up "20-something feet" before lowering the platform a couple of feet. At this time, Ilenko told Frank that they were too far from the crypt and requested him not to move the lift again. Ilenko next asked Frank to bring the lift down so that they could "figure out a way to do it safely." Instead, Frank moved the lift forward and back, causing the lift to tip and the accident to occur. According to Ilenko, Frank raised the lift and then, "he moved it, which he wasn't [*3]supposed to." Ilenko testified that "[Frank] brought it down a little bit but then he moved it again, without us knowing, he moved it forward and then the accident happened. . ."

James Mullen, who testified on behalf of defendant Mullen, stated that he is the director of operations, a position he has held for 14 years. His responsibilities include overseeing jobs, meeting with clients and architects and conducting the day-to-day operations of the job. Defendant Mullen constructed the subject mausoleum for Catholic Cemeteries. Prior to the construction of the mausoleum, defendant Mullen had been involved in the construction of at least fifty mausoleums; 95% of its business involved the construction of mausoleums. Mullen entered into a construction contract with Catholic Cemeteries for the construction of the subject mausoleum. Mullen did not prepare any drawings, and was not involved in the preparation of any drawings for the mausoleum. Mullen's involvement was limited to building the base and placing the statute on the base. Prior to the placement of the statute, Mr. Mullen spoke with Randy Vanyahres, the director of Planning and Development for Catholic Cemeteries, about the size of the statute selected by the owner and given to defendant Mullen to install. Defendant Mullen was not involved in the design of the statute or the base on which the statute was placed. According to Mr. Mullen, an architect designed the plans for the mausoleum and the base on which the Virgin Mary statute was to be placed. Prior to the placement of the statute, Catholic Cemeteries sent a fax to Mullen indicating the size of the subject statute.

Mr. Vanyahres, who has been employed by Catholic Cemeteries for over 27 years, testified that he is responsible for organizing the development of grave sites and crypt spaces at MSMC, which is part of Catholic Cemeteries organizations. According to Vanyahres, sometime between 2004 and 2007, two mausoleums were constructed at MSMC— Mary Mother of God and Mary Gate of Heaven. Vanyahres hired an architect named Aveinash Prahdhan to design the Mary Gate of Heaven Mausoleum. The architect submitted the plans to Catholic Cemeteries, which, in turn, requested some changes. Eventually, a final version was agreed upon between the parties. The design requested of Mr. Prahdhan by Catholic Cemeteries, in part, called for one interior statue to be placed in the mausoleum. At the request of Catholic Cemeteries, the architect's final design included placing the statute on a pedestal that was four feet in height. These designs were done to the satisfaction of Catholic Cemeteries.

Vanyahres testified as to the September 8, 2006 fax that was sent from him to Mullen, regarding the dimensions of the statute, in order to confirm that the base being built would accommodate the base of the statute. Vanyahres supervised the job site. When the construction was completed, the architect and the City of New York signed off on the construction and Catholic Cemeteries was given a Certificate of Occupancy from the City. The instant accident took place approximately six years after the mausoleum in question was constructed. According to Vanyahres, the construction of the mausoleum and crypts was done in accordance with the plan and designs of the architect and to the approval and satisfaction of Catholic Cemeteries.

Legal Discussion

The only remaining defendant in the case is Mullen. A stipulation of discontinuance was filed against defendants Saint John's Cemetery Corporation and Mount St. Mary Cemetery. The Court now grants Mullen's motion for summary judgment dismissing the complaint.

Mullen, as an initial matter, demonstrated that the plans and specifications it followed were prepared by the owner and the architect. "A builder or contractor is justified in relying [*4]upon the plans and specifications which he has contracted to follow unless they are so apparently defective that an ordinary builder of ordinary prudence would be put upon notice that the work was dangerous and likely to cause injury" (Gee v City of New York, 304 AD2d 615, 616 [2d Dept 2003], quoting Ryan v Feeney & Sheehan Bldg. Co., 239 NY 43, 46 [1924]; see also Horowitz v Marel Elec. Servs., 271 AD2d 572 [2000]; Morriseau v Rifenburg Constr., 223 AD2d 981 [1996]). Both the owner, Catholic Cemeteries, and the City of New York approved Mullen's completed work, and Catholic Cemeteries was given a Certificate of occupancy for the subject mausoleum. Mullen thereby established its entitlement to judgment as a matter of law (see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]).

Plaintiffs, in opposition, plaintiffs did not raise a triable issue of fact as to whether Mullen failed to conform to the plans and specifications of the contract, or whether the plans and specifications themselves were defective. Unsubstantiated allegations and mere conclusions are inadequate to warrant the denial of summary judgment (see Zuckerman v City of New York, supra; Guzman v Lundy, 285 AD2d 626 [2001]).

Mullen also established its prima facie entitlement to judgment as a matter of law on the ground that it did not owe a duty to the plaintiffs (see Stiver v Good & Fair Carting & Moving, Inc., 9 NY3d 253 [2007]; Church v Callanan Indus., 99 NY2d 104 [2002]; Espinal v Melville Snow Contrs., 98 NY2d 136 [2002]). "Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party" (Espinal v Melville Snow Contrs., 98 NY2d 136, 138 [2002]). " '[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party' " (Stiver v Good & Fair Carting & Moving, Inc., 9 NY3d 253, 257 [2007], quoting Espinal v Melville Snow Contrs., 98 NY2d at 138; Bono v Halben's Tire City, Inc., 84 AD3d 1137, 1139 [2d Dept 2011]; see Church v Callanan Indus., 99 NY2d 104, 111 [2002]; Moch Co. v Rensselaer Water Co., 247 NY 160 [1928]).

Exceptions to this general rule are: "(1) where the contracting party, in failing to exercise reasonable care in the performance of [its] duties, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties; and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely" (Stiver v Good & Fair Carting & Moving, Inc., 9 NY3d at 257 [internal quotation marks, brackets and citations omitted]; see Espinal v Melville Snow Contrs., 98 NY2d at 140; Farrell v City of New York, 85 AD3d 655, 655 [2d Dept 2011]).

In the case at bar, no evidence exists that Mullen "launched a force or instrument of harm" by constructing the mausoleum and the base on which the interior statue was placed. As previously noted, Mullen's work was done in accordance with the plans and specifications prepared by the architect and provided to them by the owner. Mullen's work was also inspected and approved by the City of New York and Catholic Cemeteries was issued a Certificate of Occupancy for the construction.

Finally, there is no evidence that Mullen proximately caused plaintiffs' accident. In order to set forth a prima facie case of negligence, the plaintiffs' evidence must establish (1) the existence of a duty on defendant's part as to plaintiff; (2) a breach of this duty; and (3) that such breach was a substantial cause of the resulting injury (Solomon v. City of New York, 66 NY2d [*5]1026, 1027 [1985]; Akins v Glens Falls City School Dist., 53 NY2d 325, 333 [1981]; Johnson v Grand Union Co., 158 AD2d 517, 518 [2d Dept 1990]; Febesh v Elcejay Inn Corp., 157 AD2d 102, 104 [1st Dept 1990], appeal denied 77 NY2d 801 [1991]; Prosser and Keeton, Torts § 30, at 164—165 [5th ed.]).

As succinctly stated by Professor Ernest Edward Badway, Esq., in his excellent treatise Encyclopedia of New York Causes of Action: Elements & Defenses section 15-6:19 (N.Y.L.J. pub. 2017):

To establish a common law claim for negligence, a plaintiff must demonstrate:

1) duty owed;

2) by the defendant to the plaintiff;

3) breach of that duty; and

4) the breach of that duty constituted a proximate cause of the injury.

Id., § 15-6:19, at 197.

Therefore, even if Mullen owed plaintiffs a duty of care and breached the duty, Mullen still cannot be held liable as the alleged breach was not a "substantial cause" of plaintiffs' accident. By plaintiff Ilenko's own testimony, the proximate cause of the accident was the negligent operation of the lift by Frank, plaintiff's supervisor. The record clearly establishes that Frank moved the lift back and forth while the lift was raised; Frank moved that lift while the lift was raised 20 feet causing it to tip over.

Further, according to Vanyahres, plaintiffs and Frank did not follow standard accepted procedure in attempting to place the coffin in the crypt. Accepted procedure required the lift to be raised by the long side of the coffin, parallel to the wall and crypt. Once it was at the appropriate height, the platform holding the coffin would then have been turned so the short side was facing the crypt and the coffin would haven then been pushed into the crypt. Thus, plaintiffs' allegation that the accident would not have happened had Mullen not built the base for the interior statute is pure speculation. "[P]roximate cause may be inferred from the facts and circumstances underlying the injury" only when the evidence is "sufficient to permit a finding based on logical inferences from the record and not upon speculation alone" (Thompson v Commack Multiplex Cinemas, 83 AD3d 929, 930 [2d Dept 2011], quoting Hartman v Mountain Val. Brew Pub, 301 AD2d 570, 570 [2d Dept 2003]).

Accordingly, the motion for summary judgment dismissing the claims and cross claims insofar as asserted Mullen, is granted. The complaint is dismissed.

The foregoing constitutes the decision and order of the Court.

Dated: December 14, 2018

Jamaica, New York

Honorable Salvatore J. Modica