Cazho v Urban Bldrs. Group, Inc.

[*1] Cazho v Urban Bldrs. Group, Inc. 2020 NY Slip Op 51039(U) Decided on September 11, 2020 Supreme Court, Bronx County Armstrong, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 11, 2020
Supreme Court, Bronx County

Manuel Cazho and Baltazara Quizhpe, Plaintiff,

against

Urban Builders Group, Inc., Defendants.



301329/2013E
Adrian N. Armstrong, J.

Upon the foregoing papers, the motion of the plaintiffs[FN1] for summary judgment as to liability against defendant Urban Builders Group, Inc. ("Urban") on their claim under Labor Law 240(1) is decided as follows:

Plaintiff was employed on a construction project to renovate a four-story townhouse located at 69 Willow Street in Brooklyn, New York.[FN2] Defendant Urban was the general contractor. On November 21, 2012, plaintiff was installing plywood on the roof. Plaintiff and another worker were directed by the foreman to move a "sheet of glass or metal" measuring approximately 3 square feet, ostensibly a skylight,[FN3] on the roof of the structure. When the plaintiff and his co-worker lifted the skylight, plaintiff stepped forward and fell through an unsecured opening located directly underneath. Plaintiff testified that he was unaware of the presence of the opening, and that after he stepped forward, he fell approximately 13 feet through the opening to the floor of the room below the roof.

Plaintiff argues that the accident falls within the protection of Labor Law § 240(1). [*2]Defendant Urban argues that, to the contrary, the accident is not covered by Labor Law § 240(1) because plaintiff himself exposed the opening, and thereby created the hazard that caused the injury. Further, defendant argues that the presence of the opening under the skylight "was obvious to anyone to see what was plainly and obviously there to be seen." Defendant Urban maintains that plaintiff himself removed a skylight cover from the middle of the roof, and negligently stepped forward into the opening that was in plain view and clearly observable in front of him, and thus plaintiff was the sole proximate cause of his injuries. Accordingly, defendant argues, plaintiff is not entitled to summary judgment on his Labor Law § 240(1) claim.

Defendant Urban also argues that plaintiff has not articulated or identified what safety device, if any, should have been provided or furnished to him that would have allegedly protected plaintiff and prevented his fall through the exposed skylight opening in plain view.

Lastly, defendant Urban argues that Impact Construction was plaintiff's employer at the time of his accident on November 21, 2012, and was performing work at the subject premises under the direction, supervision and control of Impact Construction. Consequently, if not solely caused by plaintiff's own negligence, defendant argues that plaintiff's injuries arose from third-party defendant/second third-party defendant Impact Construction's performance of the work, and/or from the negligence of its agents, servants, employees and/or subcontractors.

Labor Law § 240(1) imposes a nondelegable duty upon owners and general contractors to provide safety devices to protect workers from elevation-related risks. (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 618 NE2d 82, 601 NYS2d 49 [1993]). Labor Law § 240(1) imposes upon owners, contractors and their agents a nondelegable duty that renders them liable regardless of whether they supervise or control the work. Where an accident is caused by a violation of the statute, a plaintiff's own negligence will not furnish a defense; however, where a plaintiff's own actions are the sole proximate cause of the accident, there can be no liability. Thus, in order to recover under § 240(1), the plaintiff must establish that the statute was violated and that such violation was a proximate cause of his injury. (Barreto v. Metropolitan Transp. Auth., 25 NY3d 426, 430, 34 N.E.3d 815, 817, 13 N.Y.S.3d 305, 307 [2015].)

Plaintiffs have established a prima facie case of a violation of Labor Law § 240(1). "Section 240 (1) is violated when workers fall through unprotected floor openings. . . . Plaintiff established a prima facie violation of the statute by showing that the plywood cover on the hole was an inadequate safety device because it was not secured at the time of the accident." (Alonzo v. Safe Harbors of the Hudson Hous. Dev. Fund Co., Inc., 104 AD3d 446, 450, 961 N.Y.S.2d 91, 95 [1st Dept. 2013].) Plaintiffs have established that the injured plaintiff was exposed to an elevation-related risk during construction, and that he was not provided with any safety devices to prevent or arrest a fall. (Cashbamba v. 1056 Bedford LLC, 168 AD3d 638, 92 N.Y.S.3d 37 [1st Dep't 2019] [plaintiff entitled to granted partial summary judgment on the issue of liability on his Labor Law § 240(1) claim as plaintiff fell from the seventh floor to the sixth floor of the building on which he was working, a distance of approximately nine feet, and it was undisputed that there were no safety harnesses or other safety devices were provided].)

Defendant argues that plaintiff has not identified a specific safety device that should have been provided to him. In Myiow v City of New York (143 AD3d 433, 436-437, 39 N.Y.S.3d 1, 3-4 [1st Dept. 2016]), the Court noted the following:

"The dissent points out that a plaintiff must present evidence as to which specific and identifiable safety device would have prevented his fall, a requirement that derives from [*3]Ortiz v Varsity Holdings, LLC (18 NY3d 335, 960 NE2d 948, 937 NYS2d 157 [2011]), where the Court stated that "to prevail on summary judgment, plaintiff must establish that there is a safety device of the kind enumerated in section 240 (1) that could have prevented his fall, because liability is contingent upon . . . the failure to use, or the inadequacy of such a device" (id. at 340 [internal quotation marks omitted]). Here . . . plaintiff meets this burden by showing that he was provided with a safety harness, but that it proved to be inadequate because there was no location where the harness could be secured." (Emphasis added.)

In Aramburu v Midtown W. B, LLC, 126 AD3d 498, 499, 6 N.Y.S.3d 227, 229 [1st Dept. 2015]), the First Department found that the plaintiff's burden was satisfied by demonstrating that no safety devices were provided:

"Plaintiff also met his burden to 'establish that there is a safety device of the kind enumerated in section 240 (1) that could have prevented his fall' (Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 340, 960 NE2d 948, 937 NYS2d 157 [2011]), by pointing to the abundant evidence that no such devices, including pulleys or ropes, were used (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 523, 482 NE2d 898, 493 NYS2d 102 [1985])." (Emphasis added.)

Here, similarly, plaintiff was not provided with any safety devices, and clearly any type of harness affixed to the roof would have provided protection from a fall.

Defendant further argues that the existence of an opening under the skylight was open and obvious, and thus plaintiff's failure to realize the obvious breaks the chain of causation. Similar arguments have been made in connection with the defendant's duty under Lab. Law § 200. As noted in one leading treatise on the subject:

"While there are a few older cases like Reynolds v. Fisher, 220 AD2d 345, 220 AD2d 968, 632 N.Y.S.2d 704 (3d Dep't 1995) and Gavigan v. Bunkoff Gen. Contrs., 247 AD2d 750, 669 N.Y.S.2d 69 (3d Dep't 1998), that hold that an owner or general contractor has no duty under Lab. Law § 200, to protect a worker from defects, risks, or damages that are readily observable by the reasonable use of the senses, taking into account the age, intelligence, and experience of the worker, there is also more recent authority that state otherwise (Sportiello v. City of New York, 6 AD3d 421, 774 N.Y.S.2d 353 (2d Dep't 2004) (fact that dangerous condition on which worker allegedly slips may have been open and obvious does not negate duty to maintain city, city board of education, and contractor's worksite in reasonably safe condition, but rather, may raise issue of fact concerning worker's comparative negligence); Maza v. Univ. Ave. Dev. Corp., 13 AD3d 65, 786 N.Y.S.2d 149 (1st Dep't 2004) (liability under Lab. Law § 200 is not negated by plaintiff's awareness that workers were throwing debris into courtyard, or by "open and obvious" nature of any danger; rather, these factors go to plaintiff's comparative negligence)). But see, Ochoa-Hoenes v. Finkelstein, 172 AD3d 1080, 2019 NY App. Div. LEXIS 3822 (2d Dep't 2019) (plaintiff who elected to move a stack of plywood, which then fell over, could not recover as the condition was open and obvious, and plaintiff elected to proceed in a manner in which he caused injury to himself)." (1 LexisNexis AnswerGuide New York Negligence § 4.07 [2019].)

The First Department continues to adhere to the reasoning that an open and obvious condition will generally raise an issue of comparative negligence, and not bar recovery of damages by the plaintiff. (Spencer v Term Fulton Realty Corp., 183 AD3d 441, 443, 123 N.Y.S.3d 599, 601 [1st Dept. 2020] ["It is not relevant whether the rods on which the cart got stuck were an open and obvious condition that plaintiff could have seen, since that issue raises a question of plaintiff's comparative negligence and does not bear on defendant's own liability." (Citation omitted).]) Where negligence is at issue, judgment for the defendant will be warranted only if the defendant establishes both that the defect was open and obvious, and that it was not inherently dangerous. (Dinallo v. DAL Elec., 43 AD3d 981, 982, 842 N.Y.S.2d 519, 520 [2d Dept. 2007] ["jack assembly" that the injured plaintiff tripped over, which had been set up at the construction site, was an open and obvious condition that was not inherently dangerous].) The unsecured opening here was inherently dangerous.

Comparative negligence is, of course, not a defense to a Labor Law § 240(1) claim. A defense is stated here only if plaintiff's conduct was the sole proximate cause of his injuries. (Blake v. Neighborhood Hous. Servs. of NY City, Inc., 1 NY3d 280, 803 N.E.2d 757, 771 N.Y.S.2d 484 [2003].) The Court does not view the plaintiff's failure to recognize the danger posed by the hazard — uncovering the skylight—as so clear and obvious as to constitute the sole proximate cause of plaintiff's injuries. Plaintiff's unawareness of the danger at most constituted comparative negligence, which will not bar recovery. The fact remains that plaintiff was assigned to work on a roof, that the skylight needed to be removed to complete the work, that plaintiff was thus required to work in proximity to an unsecured opening, and that plaintiff was not given any safety device or instructions as to the unguarded opening. (Gallagher v. New York Post, 14 NY3d 83, 923 N.E.2d 1120, 896 N.Y.S.2d 732 [2010] [granting summary judgment to plaintiff who was removing floor and fell through an unsecured opening].)

With respect to Urban's argument that Impact Construction (as opposed to Impact Contracting) was negligent, this does not affect Urban's liability as a general contractor under Labor Law § 240(1). (Cabrera v. Arrow Steel Window Corp., 2018 NY App. Div. LEXIS 5255, 2018 NY Slip Op 05275 (2d Dept. 2018] [general contractor was subject to liability under Labor Law § 240(1) because it had the authority to enforce safety standards and choose the subcontractor who did the asbestos work, directly entered into a contract with the subcontractor, and had the authority to exercise control over the work, even if it did not actually do so].) On the present motion, Urban has not cross-moved for relief against Impact Construction. A separate motion is pending by Impact Construction (Motion Sequence No. 7) to dismiss all claims and cross-claims against it. Accordingly, whether or not another entity may or may not be required to indemnify or grant contribution to Urban does not affect Urban's liability under Labor Law § 240(1).

Accordingly, it is hereby,

ORDERED that the motion is granted, and it is further

ORDERED that the plaintiffs are granted summary judgment as to defendant Urban on the plaintiffs' claim under Labor Law § 240(1) only.

This is the Decision and Order of the Court.

Dated: 9-11-20

_____________________________

Adrian Armstrong, A.J.S.C. Footnotes

Footnote 1: The use of "plaintiff" herein in the singular indicates the injured plaintiff only.

Footnote 2: It is disputed whether the plaintiff was employed by third party defendant Impact Construction Corp. ("Impact Construction") or third party defendant Impact Contracting Services, Inc. ("Impact Contracting") — companies owned by the same principle. It is unnecessary to address these issues on the present motion.

Footnote 3: The object as described by the plaintiff appears to have been a skylight, as admitted by plaintiff's attorney in his affirmation in support of the motion. The word skylight will be used herein for clarity.