Walker v Poko-St Anns, L. P.

Annotate this Case

Download PDF

Walker v Poko-St Anns, L. P. 2019 NY Slip Op 34845(U) February 13, 2019 Supreme Court, Westchester County Docket Number: Index No. 61494/15 Judge: Lewis J. Lubell 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. INDEX NO. 61494/2015 FILED: WESTCHESTER COUNTY CLERK 02/15/2019 10:25 AM NYSCEF DOC. NO. 220 RECEIVED NYSCEF: 02/13/2019 3/19/19 @ 9:15 a.m. SCP 3/19/19@ commence the 30 day day statutory statutory To commence right time appeal.s as of right period for appeals time period (CPLR 5513[a]), 5513[a]), you you are advised advised to {CPLR with, serve aa copy copy of this order, with, this order, serve parties upon all parties notice entry, upon notice of entry, YORK NEW YORK STATE of NEW SUPREME THE STATE COURT OF THE SUPREME COURT -,, ER WESTCHEST COUNTY OF WESTCHESTER", COUNTY ~-------------------------------------X ---------- ---------- ---------- -------x RAYMOND WALKER, WALKER, RAYMOND J DECISION ORDER & ORDER DECISION & Plaintiff, Plaintiff, Index 61494/15. Index No. 61494/15 -against -against Sequence No. 5 .sequence FUEL HOFFMAN FUEL POKO P . , HOFFMAN L. P., ST ANNS, L. POKO--ST COMPANY OF DANBURY DANBURY and GUS & & G COMPANY CONSTRUCTION, ION, INC., CONSTRUCT \ \ Defendants. Defendant s. _____________________________________ X ---------- ---------- ---------- -------x POKO~ST ANNS, L.P. and HOFFMAN HOFFMAN FUEL FUEL POKO-ST DANBURY, COMPANY OF DANBURY, COMPANY Third-Party Plaintiff,, ty Plaintiff Third-Par against -- against ION, G CONSTRUCT CONSTRUCTION, GUS && G INC., INC., Defendant . X Third-Party Third-Par ty Defendant. _____________________________________ ---------- ---------- ---------- -------x J. LUBELL, J. this with this connectio n with The following following papers consideredd in connection were considere papers were The granting CPLR .motion by defendants for an Order pursuant to CPLR 3212 granting pursuant Order ,motion by defendant s and claims and all claims summary judgment dismissingg all defendant s and dismissin judgment to the defendants summary ms against cross-claims against them: cross-clai PAPERS PAPERS A-L NOTICE MOTION/AFF:CRMATION/EXHIBITS A-L NOTICE OF MOTTON/AFF1RMATION/EXHIBITS A-C S N/EXHIBIT A-C AFFIRMATION OPPOSITION/EXHIBITS ON IN OPPOSITIO -AFFIRMATI REPLY AFFIRMATION REPLY AFFIRMATION SUPPLEMENTAL REPLY-AFFIRMATION TAL REPLY.AFFIRMATION SUPPLEMEN NYSCEF NYSCEF 192-208 192-208 211-215 211-215 216 217,218 217,218 brings Construct ion, Inc., brings G Construction, & G Plaintiff, an\employee ee of Gus & Plaintiff, an\employ and 200 and this action action urder Law §§240, ~~240, 241(6) and and common common law law Labor Law under Labor this when aa negligence connection injuries allegedly allegedly sustained sustained when with injuries tion with in'connec negligence in [* 1] 1 of 6 FILED: WESTCHESTER COUNTY CLERK 02/15/2019 10:25 AM NYSCEF DOC. NO. 220 INDEX NO. 61494/2015 RECEIVED NYSCEF: 02/13/2019 he was (the 500 ,to ,to 700 700 pound· pound sect.ion section of of aa boiler boiler (the "Boilerl') "Boiler") was moving 500 tipped over over onto onto him ... . Defendant Defendant ,, Poko-St. Poko- St. Anns, is is sued sued as as the the tipped being removed, 510 Boiler was the Boiler owner of of the the premises premises from which the was being th Hoffman "). Defendant Street, NY (the (the "Premises "Premises"). Defendant, , E. 139 139th Bronx, NY Street, E. boiler Anns St. as · sued is "), Fuel Company of Danbury ("Hoffman"), is sued 'as St. Anns boiler (."Hoffman Fuel Company of moved being _If/a~ Boiler contractor r in in whose whose flatbed flatbed truck truck the the Boiler was being moved and in in contracto Both defendant the incident incident took p'lace. defendants s. now now move move for for p·lace. . took which the defendant All summary judgment in their their faVor. All other other defendants s are are no fa\ror. judgment in· summary longer in in the the case. case. longer \ More parti"cula particularly"rly, -~the ~the occurrenc occurrence e· took took plgce plg.ce when, when, after after More the of :basement the from having successfully moved the Boiler the basement of the Boiler the moved· !-Y having successfuL truck flatbed a of lift the onto Premises," up a flight of stairs, onto the lift of a flatbed truck stairs, a flight· Premises," the owned by Hoffman, and then then into into the the back back of of th~ th~ truck, truck, the Boiler Boiler owned back the from, it mo,,ing were fell over over as plaintiff co-worker moving it from_the back plaintiff and aa co-·worker fell use by uck the flatbed flatbed truck to to the the front front of of the the flatbed.tr flatbed truck use of of aa truck of the truck. hand truck. In aa v Simmons v Simmons reminds us reminds nces, the strikingly similar set of circumsta circumstances, the Court Court in in set similar strikingly 2018]), Dept [2d 726 · 725, City of New York (165 AD3d 725,' 726 2018]), AD3d (165 York New of' City the fo~lowing following: : of the \ "The ext'raordi extraordinary protections s of· of Labor Labor Law Law nary protection "The of ~240 (],.). (J,.) extend only only to to aa narrow narrow class class of extend §240 special hazards, and do 'not 'not encompass any any and hazards, ·and special some _in all ·'perils that' may may he· b'e' connected connected in some perils '.~hat: all of tangential l way the effects effects of gravity' gravity'" II with the way with tangentia Corp., (Nieves v. v, Five A.C,' & & Refrig. Refrig. Corp., 93 93 Five Boro A.C.· (Nieves v. Ross guoting , [1999] NY2d [1999], quoting .. v. 915-916 -. 914, NY2d NY2d.494, 81 Curtis - Palmer Co" 81 NY2d 494, Hydroc-Ele c. Co., mer Hydro,-Elee. Curtis-Pal aa whether g 501 determining whether determinin [1993J) ..In -In 501 nary plaintiff is entitled entitled to the the .extraordi extraordinary to plaintiff is protections is o~ o~ Labor Law Law §240(1), ~240(1), the the "sin~le "single protectior plaintiff 's decisive question [is] whether plaintiff's whether [is] question decisive ce of consequen inj uries the direct direct consequence of aa were . the injuries failure to provide provide adequate adequate protectio protection n against against to failure physicall y significa arising significant nt from aa physically risk arising aa risk v. . (Runner ial" elevation differential" v . New New York elevation different 603 Stock Exch.i Exch., Inc., Inc., 13 NY3d [2009]). NY3d 599, 603 [2009]). 13 Stock different "Without a~ significa significant nt elevation elevation differential,ial, "Without Law §240(1) ~240(1) does does not not apply, apply, even even if if the the Labor Law injury is is caused caused by the application n· of of gravity gravity the applicatio injury Bonacio v. sen obj ect", (Christiansen Bonacio (Christian object"• an on . [2015']) · 1158 1156, AD3d Constr., Inc., 129AD3d1156, 1158 [2015J). 129 Inc., tr.. . Cons Labor obj ectsJ respect to falling falling ects, Labor Law Law to "With re~pect .of '~240(1) applies applies where the falling of an an object object the falling '§240.(1) in is related related to _'a 'a significa significant nt risk risk inherent inherent in to is 2 [* 2] ff 2 of 6 FILED: WESTCHESTER COUNTY CLERK 02/15/2019 \ 10:25 AM NYSCEF DOC. NO. 220 -' INDEX NO. 61494/2015 RECEIVED NYSCEF: 02/13/2019 which . at which the relative elevationn .. relative elevatio or ed position -be materials loads must be positioned tnust loads or materia ls Assoc., Bay et• secured'u (Narducci v. Manhasset Bay Assoc., Manhass v. i .secured ''' (Narducc 96 NY2d 259, 267~268 267-268 [20011, [20011, quoting quoting Rocovic Rocovichh NY2d 259, 96 514 509, NY2d 78 v. Edison Co., NY2d Consoli dated Edison v. Consolidated show must ff must show [1991] ). Therefo Therefore, plaintiff re, "a plainti [1991]). thereby more than simply that an object object fell, fell, thereby than simply more ski v. (Turczyn caus ing injury injury to aa worker" workeru (Turc zynski v. causing 4:51 [20.05]). City of. of. New York, 17. AD3d 450, 451 [2005]). k, 17_-AD3d New·Yor ·. City pl~intiff must show show that, at the time time the f f must [A] pl.qinti ""[A1 secured, or hoisted object fell, was being hoisted secured, being it object fell, or that the falling falling object object required required securing securing or (Bansche ing''·· undertak the purposes of, of undertaking (Banscherr for the purposes AD3d v. Actus Actus Lend Lend Lea·se. Lease, LLC, LLC, 103 AD3d 823, 824. 824 v. that "the ). A A p.lainti plaintiff also show show that must also ff must [2013]). ·.[2013] object fell because of the absence absence or because· object kind ce of·. inadequacy safety devf devlce of the kind cy of aa safety inadequa v. ci (Narduc statute" enumerated statute (Narducci v. the in ted enumera see 268; at NY2d 96 Manhasset Bay Assoc. i NY2d 268 i Assoc., Bay Manhass et Fabrizi v. v. 1095 Ave. ~of of the Ams. Ams.,1 1..L.C., L.L.C., 22 22 Fabrizi 6 5 8, 663 6 6 3 [201'4]} [2 0 14] ) . NY3d 658, i ' L U ,Here, (!ls as i.p i.!1 Simmons Simmons v. v.. City Ci tv of New New York York ,, supra, movants movants 'Here, judgmen t in ent to judgment established their prima entitlement in their their prima facie entitlem hed their establis injuries ff's. plainti that favor as a matter upon a showing plaintiff's injuries showing a upon law of matter a favor .as -related risks "were not not caused caused by the elevatio ~levationn or gravity gravity-related risks by-"were York, New of City v. (Simmo'ns encompassed by Labor Law ~240(l)U (Simm6ns v. City New York, §240(1)" Law Labor encompa ssed NY3d 869 New York,· supra citing citing Gasgues Gasques v. v. State state of New York, 15 NY3d 869 [2010] [2010] ;i supra ; [2012] 31 AD3d 99 Trust,· Oakes v. v. Wal-Mar Wal-Mart t Real Est'ate Eseate Bus. Trust, AD3d [2012] i Davis Davis Oakes ion, opposit In . ) [2011] v. Wyeth Wyeth Pharms. Pharms.,1 Inc.; Inc. i 86 AD3d AD3d 907 [2011]). opposition, v. proof nt plaintifff has has' · failed failed to come forward forward with with sufficie sufficient proof in in plaintif Similar admissible fornl which which raise raise aa triable triable issue issue of ~fact. "fact. Similar to to le for~ admissib sor tn circumstances surrounding falling of aa compres compressor tn Simmons Simmons vv ing the falling tances surround circums but was being hoisted not being City of of New York , supra, the Boiler Boiler was not hoi~ted but was New York, City it on whereup ·1evei, ground simply being wheeled at essentially ground level, whereupon it ally essenti at . simply being wheeied aa te constitu not does event an rolled off of the hand Such event does not constitute Such truck. hand rolled off of y liabilit which upon basis the falling object nor otherwise basis upon which liability form falling object nor otherwis e plainti ff's Thus, plaintiff's t~a1; may be ,imposed from an elevatio elevationn differen differential. be ,imposed may of injury is is not not elevation elev~tion-~elated within the the meaning meaning of Labor Labor Law Law -:i;'.elate d within injury (1). §240 ~240(1). "To prevail cause of action action alleging alleging aa prevail on aa cause "To ff plainti a 241(6), violation Labor Law ~ a plaintiff Law§ Labor of n violatio ial Industr an of n must establish the violation Industrial violatio must establis h specific forth Code provisio provisionn that sets forth specific,, Code that s, and applicable safety standard standards, and that his his or or le safety applicab by tely caused her injuries injuries were were proxima proximately caused by such. such her ns [citatio Industrial Code violatio violationn [citations ial Code Industr 3 [* 3] 3 of 6 FILED: WESTCHESTER COUNTY CLERK 02/15/2019 10:25 AM NYSCEF DOC. NO. 220 RECEIVED NYSCEF: 02/13/2019 omitted] J INDEX NO. 61494/2015 " NYS3d 209 [2d New York, Inc., 9l (Moscati Consolo Edison Edison Co.· Co. of New 91 NYS3d [2d v. Consol. ti v. (Mosca defendant that satisfied is Dept 2019]). Here, the Court satisfied that defendant Court Dept 2019]). upon Code sections demonstrate, sections upon Industrial Code facie 1 that the Industrial prima facie, demonstrate, prima 7.1, 6.1, 1.27, 1.12, 1.8, 1.7~ which ~~23-l.5, 1.7, 7.1, plaintiff relies, §§23-1.5, which plaintiff in and, facts underlying facts 9.2, applicable to the underlying in 9.8, are not applicable and 9.8, 9.2, and of issue material issue of a material raise a response -failed to raise plaintiff has .failed response to same, plaintiff fact. fact. in judgment in Finally, defendants also shown shown entitlement entitlement to judgment have also defendants have claim,. §200 Law Labor their favor on the Labor Law ~200 claim,. their favor There "two' broad categories of actions actions broad categories There are "two· Law§~ Labor of that implicate Labor Law provisions implicate the provisions Wentworth Mgt. Corp., 83 Arco Wentworth v. Arco 200" (Reyes v. ~he first A.D.3d 919-N.Y.S,2d 44). The first A.D.3d 47, 50-51, 919·N.Y.S,2d out arising out injuries-. arising category worker injuries-. involves worker category involves conditions defective conditions alleged dangerous dangerous or defective of alleged performed work is performed where the work premises where on the premises Auth., Thruway (see Grasso v. New York State Thruway Auth., Stafe York New v. (see Grasso v. Reyes 604; N.Y.S.3d 71 159 A.D.3d 674, 678,71 N.Y.S.3d604; Reyes V. 678, A.D.3d 674, 51, at A.D.3d 83 Arco Corp., A.D.3d 51, Wentworth Mgt. Corp.,· Arco Wentworth Rodriguez, 57 v. Rodriguez, 919 N.Y.S.2d Chowdhury V. 44; Chowdhury N.Y.S.2d 44; those N.Y;S.2d 123). In those A.D.3d 128, 867 N.Y.S.2d A.D.3d 121, 128, l{ability to be imposed circumstances,s, "[f]or "[f]or liability imposed circumstance must be evidence evidence 9 there must property owner, there n the property 9n created either created showing owner either property owner showing that the property had or had condition, a dangerous aefective condition, defective or a dangerous without of Jdtual or constructive notice it without notice constructive ictual remedying reasonable time" (Reyes a reasonable within a remedying it within 51, A.D.3d at 51, v. Corp., 83 A.D.3d Wentworth Mgt. Corp.,. Arco Wentworth v. Arco broad category second broad category 44). "The second N.Y.S.2d 4~). 919 N.Y.S.2d involves Law §~ 200 involves of actions Labor Law under Labor actions under or dangerous or injuries occasioned by the use of dangerous injuries occasioned A the•job def.ective equipment equipment at the job site" (id.). (id.). A defective this under this liable under property be held liable will beheld owner will property owner authority to category possessed the authority only if it possessed category only methods of and supervise or control the means and methods means control supervise A.D.3d Puccia, the work (see id.; Ortega Ortega V. v. puccia, 57 A.D.3d work (see requisite The requisite 54, N.Y.S.2d 323). The 61, 866 N.Y.S.2d 54, 61, Law§~ Labor Law supervision or control control exists exists for Labor supervision bears owner bears property owner when the property purposes when 200 purposes which the responsibili manner in which responsibili ty for the manner M Dev. & M v. L & Marguez v.L work (see Marquez performed (see work is performed 698, 694, Partners, A.D.3d 698, 35 A.D.3d 141 Inc., Partners, factor e N.Y.S.3d 700). "The determinative factor is determinativ N.Y.S.3d exercise right whether the party had 'the right to exercise party had whether 4 [* 4] 4 of 6 FILED: WESTCHESTER COUNTY CLERK 02/15/2019 10:25 AM NYSCEF DOC. NO. 220 INDEX NO. 61494/2015 RECEIVED NYSCEF: 02/13/2019 control over over the work, not whether whether it actually actually control New exercised that righi'" right'U {Johnsen (Johnsen v. v. tity City of New exercised N.Y.S.3d 898, 149 A.D_.3d A.D.3d 822, 822, 822, 822, 49 N.Y.S.3d York, 149_ nt, quoting Williams Williams. . v. v. Dover Dover Home Home . Improveme Improvement, quoting 318 N.Y.S.2d~ 714 276 A.D.2d 626, 626, N.Y.S.2d'318 626, 626, A.D.2d NYS3d 209 New York, Irrc., (Moscativ.v. Consol. Consolo Edison Edison Co. Co. of New Inc., 91 NYS3d 209 [2d [2d {Moscati Dept 2019]). 2019]) Dept has come As owner of,the of, the building, defendant St. Anns, has come building, defendant the owner to the As to forward with with aa prima prima f_acie, f,acie showing showing ,that ,that.· it_ it did did not · exercise exercise forward plaintiff 's work. supervisionn or control' cont~ol manrter .of bf. plaintiff's of the manrt~r supervisio truck bed of aa truck the incident, the Furthermore, given location incident, of location the given Furthermo. re, \\ .. . . .bed street., adjacent an on parked not owned by St. Anns and WhlCh parked ad] acent street., was which St. Anns and not owned not occur there is aa prima showing that incident did did not occur due due hat the incident prima facie showing-t there is condition the to due or to any any defect defect located;located, on the premises premises condition to plaint_iff has failed thereof. In' response ,to same, plaintiff failed to to raise raise response to In' thereof. triable i~sues issues of fact. fact. triable . . . . response to defendant Finally, Gourt finds that in response defendant Finally, the dourt under favor in'its judgment to Hoffman's showing entitlement judgment in'its favor under nt entitleme of showing Hoffman's showing t sufficien a with section 200, plaintiff has ~ome fo~ward with a sufficient showing forward -come has section 200, plaintiff through deposition deposition testimony testimony that tn;ere th;ere are are :genuine genuine questions questions of of through of metho.ds and mariner the_ d fact as to whether Hoffman supervised the manner and methods of supervise · whether Hoffman fact Hoffman. upon d be'..:impose may be Jmposed upon Hoffman. plaintiff's such that liability liability may work such 's work plaintiff hereby Based upon foregoing, it is hereby the· foregoing, upon the Basec;i ORDERED, that.the that ,the complaint complaint is dismissed dismissed in all respects respects as as ORDERED, further is it and, against Poko-St Anns, L.P.; and, further against Poko-St 2 OO claim ORDERED, that, except as to the Labor Labor .taw Law §S200 claim against against that::, · except ORDERED, as dismissed are -claims all Hoffman Fuel Company Company of ·Danbury, Danbury, ~laims dismissed as Hoffman against' it; it; and, and, it is further further against' and ORDERED, -that, that, base_d base,d'. upon upon the foregoing foregoing and the ORDERED, hereby determinations Court or otherwise otherwise,, it is hereby tions of the court determina earlier earlier ORDERED, that the caption caption hereto hereby amended amended to to _hereto is hereby ORDERED, read as follows: read YORK NEW YORK SUPREME COURT COURT OF THE ST.ATE STATE of NEW SUPREME ER COUNTY OF WESTCHEST WESTCHESTER COUNTY _____ ~ --------- ~----------------------X ---------- ---------- --x ----\\ RAYMOND WALKER,. WALKER,' RAYMOND )) DECISION & & ORDER ORDER DECISION Plaintiff,, Plaintiff Index 61494/15 61494/15 Index 5 [* 5] 5 of 6 FILED: WESTCHESTER COUNTY CLERK 02/15/2019 10:25 AM NYSCEF DOC. NO. 220 INDEX NO. 61494/2015 RECEIVED NYSCEF: 02/13/2019 -against --against HOFFMAN FUEL COMPANY COMPANY OF DANBURY, HOFFMAN FUEL DANBURY, Defendant. Defendant. --·~------~--------- ---------------x ---~~------~-------------------------x \c.· parties. still still .in action ar_e ar,e directed directed to appear appear on All parties in the action Tuesday, March 2019_at 9:15 a.m. in the Settlement March 19, 19, 2019_at Settlement Conferenc~ Conference Courtroom 1600, Westchester Westchester County County S~preme Supreme Court, 111 D~. Dr. Part, Courtroom ~artin Luther Luther King, Jr. Jr. Bouleva;rd, ):1artin Bouleva'rd, White White Plains, New New York, prepared prepared conduct aa settlement settlement conference. conference. to conduct The' foregoing constitutes constitutes the Opinion, Opinion, Decision, and Order Order of The-foregoing Decision, and the Court. Dated: White New York York White Plains, P~ains, New February /3 ,.2019 February , 2019 c:if!;?@.J. ~~.~C. Jonathan E. Gold, Esq. Jonathan Esq. Rosenbaum & Rosenbaum Rosenbaum P.C. Rosenbaum Attorneys for Plaintiff Plaintiff Attorneys th Fl. Fl. 100 Wall Wall Street, ·-15 15 th New 100~5 New York, NY 1oots ~c. ,~ Alice Spitz, Esq. Alice Molod Desantis, P.C. Malod Spitz $pitz& & DeSantis, P.C~ Attorneys for Defendants. Attorneys Defendants. Broadway, 21 Flo 1430 Broadway, 21stst Fl. York,. NY 10018 ,, New New York, * THIS ACTION INC. ON ON ACTION WAS DISMISSED DISMISSED AGAINST AGAINST GUS & &G G CONSTRUCTION, CONSTRUCTION, INC. NOVEMBER NOVEMBER 13, 2017. 6 [* 6] 6 of 6 ,

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.