White v 855 MRU LLC

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White v 855 MRU LLC 2021 NY Slip Op 30089(U) January 7, 2021 Supreme Court, Kings County Docket Number: 508860/14 Judge: Lawrence S. Knipel 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] KINGS COUNTY CLERK 01/12/2021 12:11 PM INDEX NO. 508860/2014 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 01/12/2021 At an IAS Ter1n, Part 57 of tl1e Sttprerne Court of the State of New York, held in and for the County of Ki11gs, at the Courthouse, at Civic Center, Brooklyn, New York, on the 7ih day of January, 2021. PRESENT: HON. Lil WRENCE KNIPEL, Justice. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X \\'.-\ Y\iE \X/r llTE and S1·11\RICE Wl·!JTE. DECISION AND ORDER ON REARGUMENT Plaintiffs, - against - Index No. 508860/14 855 MRU I.LC, Mot. Seq. No. 5 i)L_'HST FE·1 :-;ER f{ESl[)ENTJAL LLC, and (i()TI 11\rvr CONS'rRUC:TJON COMPANY, L'LC, Defcnda11ts. - - - - -- - - -- - - - - - - - - - - - - - - - - - - - - - - -X '!'he J'ollo\vi11g c-filed papers read herein; NYSCEF #: Notice or 1Vlotion, J\ ffir111ation, and I:xbibits Annexed _ _ ;\ffirn1<1tion in O p p o s i t i o n - - - - - - - - - - - R.eply Af!innation - - - - - - - - - - - - - - 87-101 102 103 In this action t<) recover dan1ages for personal injuries, defenda11ts 855 MRU LLC (MRlJ). I)urst 1~·ctner Residential L.LC (Durst). an([ Gotha1n C.~onstruction Co1npany, LLC (Clotha1n: collectively vvith Mf{U and Durst, defendants) i11ove in Seq. No. 5 for leave, pursuant to CPLR 2221 (d), to reargue their prior motion in Seq. No. 4 for smmnary judg1nent dis111issing the co1nplaint as against them (defendants' motion), as well as to rcargue the pri<)r n1otil)n of plaintiffs Wayne White (the injured plaintiff) and Sharice White (collectively \Vitl1 the injured plaintifC plaintiffs) in Seq. No. 3 for partial su1n1nary judg1nent on liability on the injured plaintiffs Labor Law§ 240 (I) claim as against MRU and Gotham (p!aintiffS' n1otion): and, upon reargu1nent, granting defendants' 1notion_, denying plaintiffs' motion, and vacating the order of the Court (Baynes, J.). dated Feb. 8, 2019 (NYSCEF #84) (the prior order). \\:hich denied defendants' inotion, granted plaintiffs' iuotion, and, in additio11, granted, sua sponte, partial su1nmary judg1nent on liability on t11e injured plaintiffs Labor Law § .241 (6) claim. as predicated on the alleged violation of lndustrial Code 1 of 11 [*FILED: 2] KINGS COUNTY CLERK 01/12/2021 12:11 PM NYSCEF DOC. NO. 107 INDEX NO. 508860/2014 RECEIVED NYSCEF: 01/12/2021 § 23-1.7 (a)(!), as against MRU and Gotham (the prior order). Leave to reargue is granted and, upon reargument, the prior order is vacated, and the following is substituted in its place and -stead: BACKGROUND On Sept. 18, 2014, at a building under construction at 885 Sixth Avenue in Manhattan, an approximately five-foot-long piece oflumberfell through the partially enclosed elevatorshaft opening in the eighth-floor decl( and strucl( plaintiff, an ironworker, who was then engaged in construction next to the partially enclosed elevator-shaft opening in the 7-M floor i1nmediately below. According to the injured plaintiffs coworker who witnessed the accident on the 7-M floor, "[o]ne of the carpenters working above us [i.e., on the eighth floor] was cutting wood and the piece he was cutting fell through a hole [i.e., the elevatorshaft opening] in the [eighth] floor above us and fell approximately seven feet and hit [the injured plaintifi] in the head [on the 7-M floor]." 1 As the eyewitness noted, "[t]here was no netting or any other protective devices [either on tl1e eighth floor and the 7-M floor] to prevent any objects from falling [from the eighth floor] onto the [7-M] floor where [the injured plaintiff] and 1 were working at the time of the accident."2 Both the eyewitness and the injured plaintiff\vho were then working on the 7-M floor, as well as the carpenters who were tl1e11 \Vorking on the eighth floor (including the carpenter who was cutting the piece of lumber at issue at the time of the accident), were employed by nonparty Cross Country Construction LLC (Cross Country). Defendant MRU was the building owner. Defendant 1 See Sworn Affidavit ofMarquiese Wrenn, dated Aug. 7, 2018 (NYSCEF #57). 2 Jc/. 2 2 of 11 [*FILED: 3] KINGS COUNTY CLERK 01/12/2021 12:11 PM NYSCEF DOC. NO. 107 INDEX NO. 508860/2014 RECEIVED NYSCEF: 01/12/2021 Gotha1n \Vas MRU's construction 1nanager. The role of the third defendant-Durst- in the project is unclear. Approximately one wee!< after the accident, the injured plaintiff and his wife, suing derivatively, co1n1nenced this action. Defendants interposed a joint answer. After plaintiffs filed a note of isst1e and certificate of readiness, the instant motions for su1n1nary judg1nent \Vere ti1nely served. A few preli1ninary points will si1nplify the Court's analysis. First, inas1nuch as plaintiffs do not oppose defendants' 1notion insofar as it seeks dismissal of Durst from this action, the portion of defendants' inotion insofar as it relates to Durst is granted. Second, although plaintiff alleged multiple violations of the Industrial Code, they do not oppose, with the exception of Industrial Code§ 23-1.7 (a)(!), dismissal of the injured plaintiffs Labor Law§ 241 (6) claim, as predicated on those sections, as againstMRU and Gotham (collectively, the remaining defendants). Therefore, fhose Industrial Code sections, with the exception oflndustrial Code§ 23-1.7 (a) (1), have been abandoned as bases for fhe Labor Law§ 241 (6) liability (see e.g. Genovese v Gambino, 309 AD2d 832, 833 [2d Dept 2003 ]). This leaves for the Court's consideration, under the summary judgment standard of review, the merits of the injured plaintiff's claims under Labor Law §§ 240 (!), 241 (6) as predicated on Industrial Code § 23-1.17 (a) (1 ), and 200/common-law negligence as against tl1e ren1aining defen_dants. 3 3 of 11 [*FILED: 4] KINGS COUNTY CLERK 01/12/2021 12:11 PM NYSCEF DOC. NO. 107 INDEX NO. 508860/2014 RECEIVED NYSCEF: 01/12/2021 DISCUSSION Labor Law§ 240 (1) Claim Against Remaining Defendants Falling object liability under Labor Law § 240 (I) is not limited to cases in which the falling object is in the process of being hoisted or secured, but also where a plaintiff de1nonstrates that, at the time the object fell, it required securing for the purposes of the undertaking (see Fabriziv 1095 Ave. ofthe Ams., l.l.C., 22 NY3d 658, 663 [2014]). Stated otherwise, Labor Law § 240 (I) "does not automatically apply simply because an object fell and injured a worker; [rather,] a plaintiff must show that the object fell ... because ofthe absence or inadequacy of a safety device of the kind enumerated in the statute" (Fabrizi, 22 NY3d at 663 [internal quotation marks and alterations omitted; italics in the original]). Tl1e require1ne11t that a plaintiff de1uonstrate that the object was being hoisted or secured, or required sect1ri11g for the pttrposes of the undertal(ing, was recently reaffirmed by the Second Judicial Departrnent in Henriquez v Clarence P. Grant Haus. Dev. Fund Co., Inc., 186 AD3d 577 (Aug. 12, 2020). In Henriquez, the Second Judicial Department held that the plaintiff tl1erein failed to make a prima facie showing that a plank fell because of the absence or inadequacy of a safety device, given that the daily log submitted in support of the plaintiffs motion "showed simply that an object fell causing injmy to [him]" (id. at 122 [internal quotation marks omitted]). Here, plaintiffs have failed to 1nak:e a prima facie showing of their entitle1nent to judg1nent as a 1natter of la\V on the issue of liability on the injured plaintiffs Labor Law § 240 (I) claim, whereas the remaining defendants have made a prima facie showing of their 4 4 of 11 [*FILED: 5] KINGS COUNTY CLERK 01/12/2021 12:11 PM NYSCEF DOC. NO. 107 INDEX NO. 508860/2014 RECEIVED NYSCEF: 01/12/2021 cntitle1nent to judg1nent as a matter of law dismissing that clai1n by demonstrating that the piece of lumber at issue was not a falling object within the meaning of the statute. More particularly, the remaining defendants have de1nonstrated that the piece of lumber at issue: (I) was not an object which required securing for the purposes of the undertaking; (2) did not fall because of the absence or inadequacy of an enumerated safety device; and (3) was being used by the injured plaintiffs coworker who was cutting it immediately before the accident (see Millette v Tishman Constr. Corp., 144 AD3d 1113, 1115-1116 [2d Dept2016]; see also Berman-Rey v Gomez, 153 AD3d 653, 655 [2d Dept 2017]; Seales v Trident Structural Corp .. 142 AD3d 1153, 1156 [2d Dept 2016]). In oppositio11 to defendants' pri1na facie showing, plaintiffs have failed to raise a triable issue of fact. Contrary to plaintiffs' contention, tl1is case is on all fours with the Millette's holding and analysis in the Labor Law§ 240 (!)context. As is the case here, Millette's eye,vitness description of the accident, "in any event [i.e., regardless of whether that description was sworn, or not], failed to de1nonstrate that the [object at issue] was required to be secured for the purposes of the undertaking" (id., 144 AD3d at 1116). 3 Plaintiffs' contention that Labor Law § 240 ( 1) should apply to this accident because no safet;1 devices were available to protect the injured plaintiff.from being struck by falling Compare Passos v Noble Constr. Group, 169 AD3d 706, 707-708 (2d Dept 2019) (a vvorker wl10 was struck by a plywood sheet approxi1nately 30 minutes after his coworker had removed the vertical post supporting it, was entitled to summary judgment on t11e issue of liability under Labor Law § 240 [!]); Cortes v Jing Jeng Hang, 143 AD3d 854, 855 (2d Dept 2016) (a worker \Vho was injured when an unsecured 45 pound concrete block struck his foot after it had fallen off the top of a fivewfoot-higl1 scaffold, was granted summary judgment on the issue of liability under Labor Law§ 240 [!]). J. 5 5 of 11 [*FILED: 6] KINGS COUNTY CLERK 01/12/2021 12:11 PM NYSCEF DOC. NO. 107 INDEX NO. 508860/2014 RECEIVED NYSCEF: 01/12/2021 lu1nber, tnisses the J)Oint. Plaintiffs' contention ignores Fabrizi's holding that, in the context of the falling object liability under Labor Law§ 240 (I), an object must fall because ofthe absence or inadequacy of a statutorily enu1nerated safety device. The cases cited by plainti!Ts on this point are unavailing insomuch as they are either factually inapplicable4 or no longer represent a binding precedent in the context of the falling object liability under Labor Law§ 240 (I) following the Court of Appeals' decision in Fabrizi. 5 Accordingly, plaintiffs' motion in Seq. No. 3 for partial summary judgment on the issue ofliability on the injured plaintiffs Labor Law§ 240 (I) claim as against the remaining defendants is denied. Conversely, the branch of defendants' motion in Seq. No. 4 for summary judgment dismissing the injured plaintiff's Labor Law§ 240 (I) claim as against the1n is granted. labor lllw § 241 (6) Claim Against Remaining Defendllnfs As noted, Industrial Code § 23-1.7 (a) (!)is the only surviving predicate for the injured plaintifl's Labor Law§ 241 (6) claim. Industrial Code 23-1.7 (a)(!) ("Protection from general hazards"; "0\1erhead hazards") provides, in relevant part, that "[e]very place 4 - cc;;ee Outar v (,'ily oj"JVe1v York, 5 NY3d 731 (2005) (an unsecured dolly fell on the worker from the top of the bench wall); 5;arata v Metropolitan Transp. Auth., 134 AD3d 1089 (2d Dept 2015) (a piece of co11crete hit a cross-bean1 and flew through a hole in a defective safety netting); Hill v Acies Group, LLC, 122 AD3d 428, 429 (Isl Dept 2014) (a brick fell on the worker while he was stationed on a patticular side of the building whicl1 lacked the safety netting which 11ad been installed on its other sides). 5 · See Humphrey v Park View Fifih Ave. Assoc. LLC, 113 AD3d 558, 558-559 (!st Dept 2014) (Hun1phrey was handed down approxi1nately one month before the Court of Appeals issued its decision in Fabrizi); Mercado v Caitl1ness Long Is. LLC, 104 AD3d 576, 576-577 (1st Dept 2013); k!atthewsv 400 F/fih Realty LLC, 111 AD3d 405, 406 (I st Dept 2013); Santos vSure Iron Work, 166 AD2d 571, 572-573 (2d Dept 1990). 6 6 of 11 [*FILED: 7] KINGS COUNTY CLERK 01/12/2021 12:11 PM NYSCEF DOC. NO. 107 INDEX NO. 508860/2014 RECEIVED NYSCEF: 01/12/2021 where persons are required to work or pass that is normally exposed to falling material or objects shall be provided with suitable overhead protection" (italics supplied). This provision constitutes a specific Industrial Code inandate, sufficient to sustain a Labor Law § 241 (6) claim (see Zervos v City a/New York, 8 AD3d 477, 480 [2d Dept 2004]). With respect to Labor Law § 241 (6), the remaining defendants have failed to establisl1, prima facie, that the area where the accident happened was not "normally exposed to falling material or objects," and that Industrial Code§ 23-1.7 (a) (1) was thus rendered inapplicable (see Ginter v Flushing Terrace, LLC, 121 AD3d 840, 843 [2d Dept 2014]; Gonzalez v TJM Const. Corp., 87 AD3d 610, 611 [2d Dept 2011]). 6 Although lack of compliance with a11 Industrial Code provision may be excused when compliance is not feasible in light of the work performed (see Mclean v 405 Webster Ave. Assoc., 98 AD3d 1090, 1094 [2d Dept 2012]), that is not the case here. Rather, defendants contend that compliance with Industrial Code § 23-1.7 (a) (I) would have precluded vertical access between floors 7-M and eight. In that case, however, the requisite work could still proceed if another method of access from the 7-M floor to the eighth floor was constructed. Accordingly, the branch of defendants' 1notion for summary judgment dis1nissing, as against them, the injured plaintiffs Labor Law§ 241 (6), as predicated on the alleged violation of '' Compare Millette, 144 AD3d at 1115 (''As to the Labor Law § 241 [6] cause of action, which was predicated upon a violation of [Industrial Code] 23-1.7 [a] [I], ... the defendants established their prin1a facie entitlement to judg1nent as a matter of law based upon t11e plaintiffs supervisor's affidavit, in which he averred that the area where the plaintiff was working was not norn1ally exposed to falling material or objects"). 7 7 of 11 [*FILED: 8] KINGS COUNTY CLERK 01/12/2021 12:11 PM NYSCEF DOC. NO. 107 INDEX NO. 508860/2014 RECEIVED NYSCEF: 01/12/2021 Industrial Code § 23-1. 7 (a) ( 1), is denied without regard to the sufficiency of plaintiffs' opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 952 [1985]). Labor Law§ 200/Common-Law Negligence Claim Against Remaining Defendants "Labor LaV\' § 200 is a codification of the common-law duty to provide work_ers \Vith a safo work environment" (Azadv 270 5th Realty Corp., 46 AD3d 728, 730 [2d Dept 2007], iv denied 10 NY3d 706 [2008]). "There are two main types of liability under Labor Law § 200: injuries caused by dangerous or defective conditions, and injuries caused by dang_erous or defective equip1nent at the jobsite" (Davies v Simon Prop. Group, Inc., I 74 AD3d 850, 853 [2d Dept 2019]). Here, plaintiffs' complaint, as amplified by their bill of particulars, 1nay be properly construed as asserting that the re1naining defendants had actt1al or constructive notice of the allegedly dangerous condition; namely, the inadequately protected elevator-shaft openings in each of the eighth and 7-M floors (collectively, the dangerous condition).' Each of the remaining defendants is required to establish, prima facie, that such defendant lacked actual or constructive notice of the dangerous condition. 8 'I'he evidence submitted in support of defendants' motion, whi_ch includes a deposition See Bill of Particulars, dated Dec. 1, 2014, ~~ 5, 8, 10-12, 13-14, 35-39 (NYSCEF #91). ,)ee also Defendants' Exhibit C (post~accident photograph of the eighth floor) and Defendants' 7 · Exhibits A-B (post-accidentphotographs ofthe 7-Mfloor) (NYSCEF #93). Defendants' Exhibits A thro1tgh C were n1arked for identification at the injured plaintiff's Mar. 29, 2016 deposition (page 33, line 18 to page 34, line 2) (NYSCEF #91). 8 • "The owner's duty to provide a safe place to work encompasses the d11ty to make reasonable inspections, and the question of whether tl1e da11ger should 11ave been apparent lLpo11 visual inspection is generally a q11estion of fact" (lvfcLean v 405 Webster Ave. Assoc., 98 AD3d I 090, t 093-1094 [2d Dept 2012] [internal quotation marks and citations omitted]). "This duty extends to general contractors with control over the work site" (id. at I 094). 8 8 of 11 [*FILED: 9] KINGS COUNTY CLERK 01/12/2021 12:11 PM NYSCEF DOC. NO. 107 INDEX NO. 508860/2014 RECEIVED NYSCEF: 01/12/2021 transcript of Gotha1n's site-safety tnanager, Richard Agresta, fails to demonstrate, prima facie, that either MRU or Gotham, or both, lacked either actual or constructive notice of the dangerous condition. 9 I11as1nuch as the remaining defendants have failed to make a pritna facie showing that they lack.ed actual or constructive notice of the existence ofthe dangerous condition, the branch of their 1notion which is for summary judgment dismissing the inj11red plaintiff's I. . abor Law § 200 and com1non-law negligence claims as against thetn is denied without regard to the sufficiency of plaintiffs' opposition papers (see Gurewitz v City ofNew York, 175 AD3d 658, 664 [2d Dept 2019]; Berman-Rey, 153 AD3d at 654-655), CONCLUSION Based on the foregoing, it is ORDERED that in Seq. No. 5, leave to reargue is granted and, upon reargumcnt: (1) the prior order of the Court (Baynes, J. ), dated Feb. 8, 2019 (NYSCEF #84 ), is vacated; (2) plaintiffs' motion in Seq. No. 3 for partial summary judgment on the issue of liability on the injured plaintiffs Labor Law§ 240 (I) claim is denied; and defendants' motion in Seq. No. 4 for su1n1naryjudgment distnissing plaintiffs' clai1ns is granted to the extent that: 9 · See Agresta (Gotham) EBT tr at page 18, line 8 to page 19, line 2 (testifying that a named representative fro1n MRU "\valked the job site" either with or without Mr. Agresta); page 20, line 16 to page 22, li11e 3 (testifying that he "walked the job site on a daily basis," including the floors on which Cross Cou11try's employees worked); page 35, lines 5-14 (acknowledging a potential for a fall hazard fro1n the use of construction materials within six feet of a floor opening); page 53, lines 3-19 (testifying tl1at the railing on the north side of the eighth-floor elevator-shaft opening was intended, as relevant herein, to ''protect fron1 objects falling down tl1e [opening] ... [d]epending on what tl1e object [was]''); page 56, lines 9-16 (testifying that shortly after the accident he observed the injured plaintit1' sitting i11 the southeast corner of the elevator-shaft openiI1g in the 7-M floor); page 80, li11es 20-24 (ackno,vledging "a potential for a worker to get injured who is worki11g below [the eighth-floor ele\'ator-shaft] opening where there is active work being perfor1ned above [i.e., 011 the eighth tloor]"). 9 9 of 11 [*FILED: 10] KINGS COUNTY CLERK 01/12/2021 12:11 PM NYSCEF DOC. NO. 107 INDEX NO. 508860/2014 RECEIVED NYSCEF: 01/12/2021 (a) plaintiffs' claims against defendant Durst are dismissed witl1out opposition.; (b) the injured plaintiff's Labor Law§ 241 (6) claim, as predicated on the alleged violatio11S of' the Industrial Code provisions, with the exception of Industrial Code§ 27-1.7 (a)(!), is dismissed as abandoned; (c) the injured plaintiff's Labor Law§ 240 (1) claim is dismissed as against the remaining_ defendants; and (d) tl1e balance of defendants' motion is denied; and it is further ORDERED that for the avoidance of doubt, this action shall proceed, as against the remaining defendants, on: (1) the injured plaintiff's Labor Law § 241 (6) claim, as predicated on the alleged violation of Industrial Code § 23-1.7 (a) (l); (2) the injured plaintiff's Labor Law § 200/common-law negligence claim as predicated on the alleged da11gerous premises condition; and (3) the spousal derivative clai1n; and it is further ORDERED that to reflect the unopposed dismissal of defendant Durst from this action, the caption is amended to read as follows: --- - -- - - - - - - - - - - - - - - - - - - - - - -- - - - -X wAYNE WHrrE and Si·IARICE WHITE, Plaintiffs, - agai11st - Index No. 508860/14 855 MRU LLC and GOTHAM CONSTRuc·rroN COMPANY, LLC, Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X ; and it is further 10 10 of 11 [*FILED: 11] KINGS COUNTY CLERK 01/12/2021 12:11 PM NYSCEF DOC. NO. 107 INDEX NO. 508860/2014 RECEIVED NYSCEF: 01/12/2021 ORDERED that defendants' counsel is directed to electronically serve a copy of this decision and order vvith notice of entry on plaintiffs' counsel and to electronically file an affidavit of service thereof with the Kings Connty Clerk. This constitutes the decision and order of the Court. J. 11 11 of 11 s. c.

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