Williams v Coach, Inc.

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Williams v Coach, Inc. 2019 NY Slip Op 32988(U) October 9, 2019 Supreme Court, New York County Docket Number: 158247/16 Judge: Carol R. Edmead 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 10/09/2019 04:12 PM NYSCEF DOC. NO. 71 INDEX NO. 158247/2016 RECEIVED NYSCEF: 10/09/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 35 ------------------------------------------------------------------)( RHONDA WILLIAMS, Index No. 158247/16 Motion Seq. No. 001 Plaintiff, -against- DECISION AND ORDER COACH, INC., JRM CONSTRUCTION MANAGEMENT LLC., LEGACY YARDS TENANT, LLC and WING PARTNER, LLC, Defendants. ------------------------------------------------------------------)( Hon. Carol R. Edmead In a Labor Law action, defendants Coach, Inc. (Coach), JRM Construction Management LLC (JRM), and Wing Partners, LLC (Wing Partners) (collectively, Moving Defendants) move, pursuant to CPLR 3212, for summary judgment. More specifically, Coach and JRM move for partial summary judgment dismissing Plaintiffs Labor Law§ 241 (6) claim, as well as Plaintiffs Labor Law§ 200 and common-law negligence claims, as against them. Wing Partners seeks dismissal of the complaint as against it. Plaintiff only partially opposes the motion by asking the Court to.make the dismissal's without prejudice. BACKGROUND On March 10, 2016, plaintiff Rhonda Williams (Plaintiff or Williams) was working on a renovation project in a building owned by Coach. JRM was the construction manager on the project. Wing Partners distributed a glass, office system that was installed by nonparty Al-Lee, Plaintiffs employer. Plaintiff alleges that, at the time of her accident, she was standing on an A-frame ladder and removing temporary brackets at the top of a seven-to-eight-foot tall glass partition. Plaintiff further alleges that while this is a job that typically requires several workers, she performed it by 1 2 of 7 [*FILED: 2] NEW YORK COUNTY CLERK 10/09/2019 04:12 PM NYSCEF DOC. NO. 71 INDEX NO. 158247/2016 RECEIVED NYSCEF: 10/09/2019 herself and neither the ladder nor the partition was secured. The glass fell when Plaintiff removed the brackets and toppled Plaintiff off the ladder. Plaintiff alleges that she was directed by Mike Kelty (Kelty), an Al-Lee foreman, to perform the work alone as Al-Lee was shortstaffed and she had to prove herself as a woman. In an affidavit submitted in support of the present motion, Moving Defendants submit an affidavit from Kelty denying that he instructed Plaintiff to perform the subject work alone (NYSCEF doc No. 41) . . Plaintiff filed her complaint on September 29, 2016. I.n it, she alleges that defendants are liable pursuant to Labor Law§ 240 (1) and 241 (6), as well as under Labor Law§ 200 and common-law negligence. DISCUSSION "Summary judgment must be granted if the proponent makes 'a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact,' and the opponent fails to rebut that showing" (Brandy B. v Eden Cent. School Dist., 15 NY3d 297, 302 [2010], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [ 1986]). However, if the moving party fails to make a prima facie showing, the court must deny the motion, '"regardless of the sufficiency of the opposing papers"' (Smalls v AJI Indus., Inc., 10 NY3d 733, 735 [2008], quoting Alvarez, 68 NY2d at 324). I. Claims against Wing Partners Moving Defendants make a prima facie showing, through the deposition transcript of Joseph Mascaro, Wing Partners' director of operations (NYSCEF doc No. 41 ), that Wing Partners are not a proper Labor Law defendant, as they are neither an owner, a general contractor or an agent of either. Moreover, there are no claims that Wing Partners performed its distribution 2 3 of 7 [*FILED: 3] NEW YORK COUNTY CLERK 10/09/2019 04:12 PM NYSCEF DOC. NO. 71 INDEX NO. 158247/2016 RECEIVED NYSCEF: 10/09/2019 work negligently. Accordingly, the branch of Moving Defendants' motion that seeks dismissal of all claims as against ~ing Partners must be granted. II. Labor Law§ 241 (6) Labor Law § 241 (6) provides, in relevant part: "All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places." It is well settled that this statute requires owners and contractors and their agents "to 'provide reasonable and adequate protection and safety' for workers and to comply with the specific safety rules and regulati~ns promulgated by the Commissioner of the Department of Labor" (Ross v Curtis-Palmer Hydro-Elec. Co., 81NY2d494, 501-502 [1993], quoting Labor Law§ 241 [6]). While this duty is nondelegable and exists "even in the absence of control or supervision of the worksite" (Rizzuto v L.A. Wenger Contr. Co., 91NY2d343, 348-349 [1998]), "comparative negligence remain;;} cognizable affirmative defense to a section 241 (6) cause of action" (St. Louis v Town of N. Elba, 16 NY3d 411, 414 [2011]). To maintain a viable claim under Labor Law§ 241 (6), plaintiffs must allege a violation of a provision of the Industrial Code that requires compliance with concrete specifications (Misicki v Caradonna, 12 NY3d 511, 515 [2009]). The Court of Appeals has noted that "[t]he Industrial Code should be sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against hazards in the workplace" (St. Louis, 16 NY3d at 416). Here, Plaintiff alleges that Defendants violated 12 NYCRR 23-1.7 (d), 12 NYCRR 23-1.7 (e) (1) and 12 NYCRR 23-1.7 (e) (2). Here, Moving Defendants argue that JRM and Coach did not violate any Industrial Code violations. Plaintiff abandons her Labor Law§ 241 (6) claims againsrJRM and Coach by failing 3 4 of 7 [*FILED: 4] NEW YORK COUNTY CLERK 10/09/2019 04:12 PM NYSCEF DOC. NO. 71 INDEX NO. 158247/2016 RECEIVED NYSCEF: 10/09/2019 to contend that they violated a specific Industrial Code regulation (Kempisty v.246 Spring St., LLC, 92 AD3d 474, 4(5 [1st Dept 2012]). Accordingly, the branch of Moving Defendants' motion seeking dismissal of Plaintiffs Labor Law§ 241 (6) claims as against JRM and Coach is granted. III. Labor Law § 200 Labor Law§ 200 "is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work" (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]). Cases under Labor Law§ 200 fall into two broad categories: those involving injury caused by a dangerous or defective condition at the worksite, and those caused by the manner or method by which the work is performed (Urban v No. 5 Times Sq. Dev., LLC, 62 AD3d 553, 556 [1st Dept 2009]). Where the alleged failure to provide a safe workplace arises from the methods or materials used by the injured worker, "liability cannot be imposed on [a defendant] unless it is shown that it .exercised some supervisory control over the work" (Hughes v Tishman Constr. Corp., 40 AD3d 305, 306 [I st Dept 2007]). "General supervisory authority is insufficient to constitute supervisory control; it must be demonstrated that the [owner or] contractor controlled the manner in which the plaintiffperformed his or her work, i.e., how the injury-producing work was performed" (id.). Here, Plaintiffs accident was caused by the manner of her work. Thus, Moving Defendants make a prim a facie showing of entitlement to judgment by submitting Plaintiffs I I own deposition testimony that she only received instruction from other Al-Lee employees (NYSCEF doc No. 38 at 33). Thus, the branch of Moving Defendants' motion that seeks 4 5 of 7 [*FILED: 5] NEW YORK COUNTY CLERK 10/09/2019 04:12 PM NYSCEF DOC. NO. 71 INDEX NO. 158247/2016 RECEIVED NYSCEF: 10/09/2019 dismissal of Plaintiffs Labor Law §200 and common-law negligence claims as against JRM and Coach must be granted_. IV. Plaintiff's Partial Opposition Plaintiff argues that the Court should grant the Moving Defendants application without prejudice, as Plaintiff has not had an opportunity to cross-examine Kelty regarding the contents of his affidavit. Plaintiffs application is denied. The Court has not relied on Ketty's affidavit for the disposition of this motion, so Plaintiffs argument is moot. INTENTIONALLY LEFT BLANK 5 6 of 7 [*FILED: 6] NEW YORK COUNTY CLERK 10/09/2019 04:12 PM NYSCEF DOC. NO. 71 INDEX NO. 158247/2016 RECEIVED NYSCEF: 10/09/2019 CONCLUSION Accordingly, it is ORDERED that the branch of Moving Defendants' motion seeking summary judgment dismissing Plaintiffs claims under Labor Law§ 200 and common-law negligence as against defendants Coach, Inc. and JRM Construction Management LLC is granted; and it is further ORDERED that the branch of Moving Defendants' motion seeking summary judgment dismissing Plaintiffs claims under Labor Law§ 241 (6) as against defendants Coach, Inc. and JRM Construction Management LLC is granted; and it is further ORDERED that the branch of Moving Defendants' motion seeking summary judgment dismissing all claims against defendant Wing Partners, LLC is granted ORDERED that the Clerk of the Court is respectfully requested to enter judgment accordingly, and the remaining claims are severed and continue; and it is further ORDERED that the counsel for Moving Defendants is to serve a copy ofthis_decision, along with Notice of Entry, on all parties within IO days of.entry. Dated: October 9, 2019 ENTER: f?k_l{&_O_, Hon. CAROL R. EDMEAD, JSC HON.CAROLR.EDMEAD ;~~~:-~~··'W,,;µ... , ..~. ... I 6 7 of 7 . J.S.C .

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