Quintero v 520 Madison Owners LLC

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Quintero v 520 Madison Owners LLC 2021 NY Slip Op 31465(U) April 28, 2021 Supreme Court, New York County Docket Number: 159128/2016 Judge: Shawn T. Kelly 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. [* 1] INDEX NO. 159128/2016 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 04/30/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART IAS MOTION 57 -----------------------------------------------------------------------------------X TEO QUINTERO, INDEX NO. Plaintiff, MOTION DATE 159128/2016 11/10/2020 - v520 MADISON OWNERS LLC,520 MADISON VENTURE, MOTION SEQ. NO. 005 Defendant. DECISION+ ORDER ON MOTION -----------------------------------------------------------------------------------X 520 MADISON OWNERS LLC Third-Party Index No. 595118/2017 Plaintiff, -againstPAL ENVIRONMENTAL SERVICES, INC. Defendant. --------------------------------------------------------------------------------X HON. SHAWN TIMOTHY KELLY: The following e-filed documents, listed by NYSCEF document number (Motion 005) 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176 were read on this motion to/for JUDGMENT - SUMMARY Upon the foregoing documents, it is Plaintiff Ted Quintero moves for an Order pursuant to CPLR §3212, entering summary judgment on behalf of the Plaintiff on the issue of liability pursuant to New York State Labor Law Section 240(1) against Defendant 520 Madison Owners LLC. This Labor Law action stems from serious injuries allegedly sustained by Plaintiff on July 8, 2016, while in the course of his employment at the premises located at 520 Madison Avenue, New York, NY. Plaintiff contends that he was caused to fall approximately eight (8) . feet when the scaffold upon which he was laboring tipped as he attempted to disembark from it 159128/2016 QUINTERO, TEO vs. 520 MADISON OWNERS LLC Motion No. 005 1 of 7 Page 1 of 7 [* 2] INDEX NO. 159128/2016 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 04/30/2021 while engaging in asbestos removal. As a result, Plaintiff alleges that he sustained serious permanent personal injuries, including but not limited to herniations of his lumbar spine which required a surgical fusion. Specifically, Plaintiff contends that he has established prima facie entitlement to summary judgment on his Labor Law §240(1) claim as it is undisputed that the scaffold tipped and fell, and that plaintiff fell from the scaffold. Plaintiff further argues that it is irrelevant what caused the scaffold to tip or whether plaintiff can identify a specific defect with the scaffold. In opposition, Defendants allege that Plaintiff's own conduct in misuse of the scaffolding was the proximate cause of his injuries. Further, Defendants contend that supervisor Bryan Pilgrim's deposition testimony and the expert affidavits of Angela Levitan, Ph.D. and Kelly D. Scott, P.E., create a question of fact as to how the accident occurred thereby precluding a finding of summary judgment. Factual Evidence Plaintiff's Deposition Plaintiff was deposed over four days on February 26, 2019, June 11, 2019, July 18, 2019 and August 5, 2019. Plaintiff testified that on July 7, 2016 he arrived at the jobsite at 6:00 p.m., and his fall occurred at approximately 2:00 a.m. on July 8, 2016 (NYSCEF Doc. No. 158). Plaintiff stated that he communicated with his supervisor, Brian, in Spanish and that Brian told him to go to an area and remove the ceiling insulation (NYSCEF Doc. No. 158, p. 153). Plaintiff stated that Brian addressed everyone as a group, saying "guys; go to the scaffolds and start working." ((NYSCEF Doc. No. 158, p. 156). Plaintiff testified that the work area had several scaffolds set up when he got there (NYSCEF Doc. No. 158, p. 154-159). 159128/2016 QUINTERO, TEO vs. 52() MADISON OWNERS LLC Motion No. 005 2 of 7 Page 2 of 7 [* 3] INDEX NO. 159128/2016 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 04/30/2021 Plaintiff stated that after Brian gave the instruction to begin working, he climbed up a scaffold and started working (NYSCEF Doc. No. 158, p. 167). He stated that he was working with "Jason" that day because he had to work with a partner in order to be able to move the . scaffold over the course of the day (NYSCEF Doc. No. 15 8, p. 168-170). Plaintiff testified that he got on the scaffold using the ladder/steps that were attached to the scaffold (NYSCEF Doc. No. 158, p.184). He stated that he got on and off the scaffold many times before his fall (NYSCEF Doc. No. 158, p.186). Further, he said that after moving the scaffold each time he made sure the wheels were locked and he always got on and off using the ladder (NYSCEF Doc. No. 158, p .205). Plaintiff testified that just before his fall, Jason got off the scaffold to go get water (NYSCEF Doc. No. 158, p. 219-221). He stated that while he was on . the first step of the ladder attempting to disembark the scaffold, the scaffold started to tip sideways, causing him to fall and the scaffold to fall on top of him (NYSCEF Doc. No. 158, pp. 219-20, 222). Plaintiff stated that he landed on the cement floor with the scaffold on him (NYSCEF Doc. No. 158, p. 223). He stated that he had both hands on the ladder when it tipped and that his body moved to the left as he felL Plaintiff testified that he went from the holding the ladder to landing face down on the cement (NYSCEF Doc. No. 158, p. 224). Bryan Pilgrim's Deposition Bryan Pilgrim was Third Party Defendant PAL Environmental Services' Field Supervisor on the date of plaintiffs accident, July 8, 2016 (NYSCEF Doc. No. 171, p. 24). Pilgrim testified that plaintiff failed to follow a direct instruction he gave at the beginning of plaintiffs shift on July 7, 2016 (NYSCEF Doc. No. 171, p. 93). Specifically, he stated that he told plaintiff to use the stairwells of the scaffold (NYSCEF Doc. No. 171, p. 93). Pilgrim testified that plaintiff fell because he exited the scaffold using the guardrails and not the steps of the ladder on the side of 159128/2016 QUINTERO, TEO vs. 520 MADISON OWNERS LLC Motion No. 005 3 of 7 Page 3 of7 [* 4] INDEX NO. 159128/2016 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 04/30/2021 the scaffold (NYSCEF Doc. No. 171, p. 85-86). He testified that plaintiffs accident would not have happened if plaintiff had used the integrated ladder (NYSCEF Doc. No. 171, p. 86). He also testified that he did not witness the exact moment of the accident and never saw plaintiff actually use the guardrails to get off the scaffold (NYSCEF Doc. No. 171, p. 56). Pilgrim stated that based on his knowledge of scaffold use and safety, plaintiff wouldn't have fallen ifhe had not incorrectly exited the scaffold (NYSCEF Doc. No. 171, p. 86). He explained that the sc,affold would become unbalanced if a worker tried to descend from the middle of the scaffold, as plaintiff did, instead of using the stairwells on the sides of the scaffold (NYSCEF Doc. No. 171, p. 96-97). Pilgrim further testified that he told plaintiff to use the stairwells of the scaffold to get on and off the scaffold during the daily safety meeting that he conducted in both English and Spanish on the accident date, prior to the accident (NYSCEF Doc. No. 171, p. 104-105). He stated that both plaintiffs signature and.his signature, appear on the PAL daily safety meeting sheet for July 7, 2016 (NYSCEF Doc. No. 171, 106-107; see also NYSCEF Doc. No. 172, p. 4-5). Yeison Villa's Deposition Testimony Villa testified that he worked for PAL with Teo Quintero at 520 Madison Avenue on July 8, 2016 as his partner (NYSCEF Doc. No. 173, p. 13, 20). He stated that they were working on Baker scaffolds (NYSCEF Doc. No. 173, p. 21). Villa stated that the scaffold was already set up when they got there to work (NYSCEF Doc. No. 173, p. 28). He testified that the platform on the scaffold was six to seven feet off the ground (NYSCEF Doc. No. 173, p. 31). Villa stated that he is six feet tall and he could not have gotten off the scaffold by climbing through the guardrail - it is too high (NYSCEF Doc. No. 173, p.32). He also stated that it would have been too high for plaintiff to get off that way as well (NYSCEF Doc. No. 173, p. 32). 159128/2016 QUINTERO, TEO vs. 520 MADISON OWNERS LLC Motion No. 005 4 of 7 Page 4 of 7 [* 5] INDEX NO. 159128/2016 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 04/30/2021 Affidavits of Angela Levitan, Ph.D. and Kelly D. Scott, P.E. The affidavits of biomechanical engineer and Certified Professional Ergonomist, Angela Levitan, Ph.D., and licensed professional engineer Kelly D. Scott, P.E., submitted in opposition to plaintiff's motion, support defendants' arguments that the plaintiff's description of the accident is inconsistent with the laws of physics and the principles of biomechanics. Levitan states that, given plaintiff's testimony as to the placement of his body on the integrated ladder and the subsequent movement of the scaffold at the time of his accident, when compared to the final resting position of his body, it would be impossible for the accident to have occurred as plaintiff described (NYSCEF Doc. No. 169, para. lO(g), 11). Scott further states that based upon a reasonable degree of engineering and construction safety certainty, the plaintiff could not have been standing on the rungs of the integrated ladder for the scaffold to tip in the manner he described (NYSCEF Doc. No. 170, para. 9(a)). Scott concludes that between plaintiff's version and that indicated in the accident report, only the accident report scenario is consistent with the positioning of the plaintiff and the scaffold after the accident (NYSCEF Doc. No. 170, para. 9(a)). Analysis "'The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case"' (Santiago v Fi/stein, 35 AD3d 184, 185-186 [1st Dept 2006], quoting Wine grad vNew York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The burden then shifts to the motion's opponent to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact" (Mazurek v Metropolitan Museum ofArt, 27 AD3d 227, 228 [Pt Dept 2006], citing Zuckerman v City ofNew York, 49 NY2d 557, 562 [1980]; see also 159128/2016 QUINTERO, TEO vs. 520 MADISON OWNERS LLC Motion No. 005 5 of 7 Page 5 of 7 [* 6] INDEX NO. 159128/2016 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 04/30/2021 DeRosa v City ofNew York, 30 AD3d 323, 325 [1st Dept 2006]). The evidence presented in a summary judgment motion must be examined in the "light most favorable to the party opposing the motion" (Udoh v Inwood Gardens, Inc., 70 AD3d 563 1st Dept 2010]) and bare allegations or conclusory assertions are insufficient to create genuine issues of fact (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]). Further, issues of credibility are not to be resolved on summary judgment (see Alvarez v New YorkCity Hous. Auth., 295 AD2d 225; 226, 744 NYS2d 25 [1st Dept 2002]). New York State Labor Law Section 240(1) New York Labor Law § 240(1) states as follows: All contractors and owners and their agents, ... in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed. Plaintiff contends that "[i]t is well settled law that the failure to properly secure a ladder [or scaffold] to ensure that it remains steady and erect while being used, constitutes a violation of Labor Law§ 240(1)" (see Orellano v 29 East 37th Street Realty Corp., 292 AD2d 289, 740 NYS2d 16 [1st Dept 2002]; Vail v 1333 Broadway Associates, LLC, 105 AD3d 636, 963 NYS2d 647 [1st Dept 2013]). However, Plaintiffs reliance on these cases is misplaced as these matters all involved scaffolds that lacked safety rails or guardrails .. The scaffold as described, even in Plaintiffs deposition, had appropriate safety rails and guardrails. Plaintiff has not met his burden on summary judgment and has failed to demonstrate that no material issues of fact remain regarding liability. There is not only contrary evidence as to 159128/2016 QUINTERO, TEO vs. 520 MADISON OWNERS LLC Motion No. 005 6 of 7 Page 6 of 7 [* 7] INDEX NO. 159128/2016 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 04/30/2021 how to Plaintiffs accident occurred, but also significant issues as to credibility that cannot be resolved on summary judgment. Accordingly, it is hereby; ORDERED that Plaintiffs motion for summary judgment is denied. 4/28/2021 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: SHAWN TIMaLLY, J.S.C ~ CASE DISPOSED GRANTED 0 NON-FINAL DISPOSITION DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 159128/2016 QUINTERO, TEO vs. 520 MADISON OWNERS LLC Motion No. 005 7 of 7 D D OTHER REFERENCE Page 7 of7

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