Hernandez v 46-24 28th St., LLC

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Hernandez v 46-24 28th St., LLC 2021 NY Slip Op 34000(U) June 16, 2021 Supreme Court, Bronx County Docket Number: Index No. 30345/2018E Judge: Lucindo Suarez 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. 30345/2018E FILED: BRONX COUNTY CLERK 06/24/2021 12:33 PM NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 06/24/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRO X: PART 19 Index No.: 30345/2018E GUADALUPE PATRON HERNANDEZ, Plaintiff, DECISION and ORDER - against - 46-24 28TH STREET, LLC, Defendant. Hon. Lucindo Suarez, J.S.C. Defendant moves pursuant to CPLR §3212 to dismiss the complaint. Plaintiff opposes the motion, and cross-moves pursuant to CPLR §3212, seeking partial summary judgment against Defendant 46-24 28th Street, LLC., ("Defendant") under his Labor Law §§240(1 ) and 241 (6) causes of action. In this Labor Law action, Plaintiff, Guadalupe Patron Hernandez, ("Plaintiff') alleges that he fell off a ladder while performing work at a construction site owned by Defendant. Plaintiff, an employee of nonparty USA Construction & Painting, Inc. ("USA Construction"), alleges that on Friday, July 20, 2018, at approximately 3:30 p.m., he fell from a ladder while working on the third floor of the premises known as 46-24 28th Street in Long Island City, New York. Plaintiff stated that he was supervised at work by Sanchez, and also by Amir [Razzaq] "the boss." Plaintiff claimed that at the time of the accident, he was assigned the task ofremoving nails in connection with the demotion of a 15 ' by 10' wooden platform that was embedded in a brick wall. Plaintiff testified that the platform was 10 feet off the floor. Plaintiff placed a 10-foot leaning ladder against the far wall next to the platform, which he stated had "some rubber" at the bottom. Plaintiff had used the ladder prior to the accident without incident. Plaintiff testified that although the floor was free of debris, the ladder slipped, causing him to fall eight feet to the floor below. Plaintiff claimed that a co-worker asked him if he was all right after the fall. He testified that, "I said that I was okay. Then I was not feeling well. So I went downstairs because it was almost time to leave, and I changed my clothes." To his knowledge, no accident report was prepared. He worked on some days after the accident. He did not seek any medical treatment until July 28, 2018. [* 1] 2 of 7 INDEX NO. 30345/2018E FILED: BRONX COUNTY CLERK 06/24/2021 12:33 PM NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 06/24/2021 anchez, Plaintiffs supervisor at U Construction testified as a non-party witness. He stated that plaintiff did not tell him about the accident on the day of the occurrence. He characterized Plaintiff as "always drunk." The day of the accident, Sanchez testified, That day I paid him his salary and the only thing he said to me was, ' o one knows because he was drunk." He stated that Plaintiff appeared to be intoxicated, because he discovered Plaintiff drinking a Coors beer in the ba ement Plaintiff smelled of alcohol, and Plaintiffs eyes were red. anchez testified, 'He worked on the third floor and he went down to the ba ement like three or four times a day to drink his beer. anchez did not observe he accident and learned of the accident only the following day when a worker advised Sanchez that Plaintiff had fallen. Razzaq, who gave instructions and assignments each day to the worker testified that Plaintiff was fired on July 27, 2018, for showing up to work intoxicated on veral occasions after receiving everal warnings. Razzaq learned of the accident when he received legal papers from Plaintiff's counsel. Plaintiff never told Mr. Razzaq that he was injured on the job. Defendant argues that plaintiff was the sole, proximate cause of the alleged accident. Defendant argues that the evidence shows that plaintiff was provided with the appropriate safety devices set up his own ladder and was intoxicated on the day of the alleged incident. Sanchez, ob erved Plaintiff drinking Coors Light on two separate occasions that day and thus Defendant contend that Plaintiffs intoxication wa the sole proximate cause of the accident. As to the common law neglig nee and Labor Law §200 cause of action, Defendant argues that they are inapplicable to the facts of the instant case because the alleged accident did not occur as a result of a dangerous or defective condition, and Defendant did not exerci e the requisite direction, control and supervision of Plaintiff to warrant liability for these causes of action. As to the claim under Labor Law 241 (6) Defendant argues that none of the Industrial Code provisions identified by Plaintiff are applicable. 1 Analysis Labor Law 240(1) Labor Law §240(1) applies where elevation-related risks are at involved in the work. ( arducci v. Manhasset Bay As oc ., 96 83 A.D.3d 433, 921 .Y.2d 259,267 [2001]; Bruce v. 182 Main St. Realty Corp., .Y.S.2d 42 [l st Dept.2011] ["Labor Law 240(1) impo es a nondelegable duty on owners, even when the job is performed by a contractor the own r did not hire and of which it was 1 [* 2] Plaintiff ha alleged violations of the following Industrial Code provisions 12 (b) 1.17 and I .2J (b)(l), (3)(i), (4)(ii), (4)(iv) and (e). 2 3 of 7 YCRR § 1.5, 1.7(f), I. 15, l.16(a) and INDEX NO. 30345/2018E FILED: BRONX COUNTY CLERK 06/24/2021 12:33 PM NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 06/24/2021 unaware, and therefore over which it exercised no supervision or control.") The fact that a worker falls at a construction site, in itself, does not establish a violation of Labor Law §240(1). (O'Brien v. .E.3d 307, 310, 52 N.Y.S .3d 68, 71 [2017].) To Port Auth. of N. Y & N.J , 29 N.Y.3d 27, 33, 74 recover under Labor Law §240(1) for injuries sustained in a falling object case, a plaintiff must establish both: (1) that the object was being hoisted or secured, or that it required securing for the purposes of the undertaking; and (2) that the object fell because of the absence or inadequacy of a safety device to guard against a risk involving the application of the force of gravity over a physically significant elevation differential. (Flowers v. Harborcenter Dev., LLC, 2017 N.Y. App. Div. LEXIS 8146, *l, 2017 NY Slip. Op. 08117, 1 [4 th Dept. 2017].) Labor Law §240(1) "imposes absolute liability on building owners and contractors whose failure to provide proper protection to workers employed on a construction site proximately causes injury to a worker." (Wilinski v. 334 E. 92nd Haus. Dev. Fund Corp. , 18 488, 935 N.Y.S.2d 551). "Whether a plaintiff is entitled to .Y.3d 1, 7, 959 N.E.2d recovery under Labor Law § 240( 1) requires a determination of whether the injury sustained is the type of elevation-related hazard to which the statute applies." (id. at 7;) "The dispositive inquiry does not depend upon the precise characterization of the device employed or upon whether the injury resulted from a fall, either of the worker or of an object upon the worker. Rather, the single decisive question is whether plaintiff's injuries were the direct consequence of a failure to provide protection against a risk arising from a physically significant elevation differential." (Runner v. New York Stock Exch. , Inc., 13 .Y.3d 599, 603, 922 N.E.2d 865, 895 N.Y.S .2d 279; Kandatyan v. 400 Fifth Realty, LLC, 2017 N.Y. App. Div. LEXIS 8064, *3-4, 2017 NY Slip Op 07984, 1 [2d Dept. 2017] [worker pushing dolly up ramp, injured as object rolled backward, was within purview of Labor Law 240[1].) " [W]here a plaintiff's own actions are the sole proximate cause of the accident, there can be no liability." (Cahill v. Triborough Bridge & Tunnel Auth. , 4 NY3d 35, 39, 823 N.E.2d 439, 790 N.Y.S.2d 74 [2004]). According to Plaintiffs deposition testimony, the accident occurred when the ten-foot straight ladder slid from its position, causing him to fall. Plaintiff has thus met his initial burden of demonstrating a prima facie violation of the statute. (See Peralta v. American Tel. & Tel. Co., 29 AD3d 493 , 494, 816 .Y.S.2d 436 [1st Dept. 2006] ["[u]nrefuted evidence that the unsecured ladder moved, combined with evidence that no other safety devices were provided to plaintiff, warranted a finding that the owners were absolutely liable under Labor Law § 240(1 )"].) " It is well settled that a failure to properly secure a ladder, to ensure that it remains steady and erect while being used, 3 [* 3] 4 of 7 INDEX NO. 30345/2018E FILED: BRONX COUNTY CLERK 06/24/2021 12:33 PM NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 06/24/2021 constitut s a iolation of Labor Law 240(1)." ( Kijak v 330 Madison Ave. Corp. 251 AD2d 152 153 675 .Y.S.2d 341 [1st Dept. 1998 ]; ee also Montalvo v. J. Petrocelli Constr. , Inc., 8 AD3d 173 174,780 271 688 .Y.S.2d558 [1st Dept. 2004]; Wa ilewskiv. Mu eumoJModernArt,260AD2d271, .Y.S.2d 547 [1st Dept. 1999]). Moreover, plaintiff is under no obligation to show that the ladder was defective in some manner or to prove that the floor was slippery. (see Klein v. City ofNew York, 222 A.D.2d 351,352,635 652 .Y.S.2d 634 [1st Dept. 1995], affd 89 Y2d 833,675 .E.2d 458 , .Y .. 2d 723 [1996]). To make out a section 240(1) violation it ' was sufficient to show the ab ence of adequate safety de ice to pr vent the ladder from sliding or to protect plaintiff from falling. ' (Bonanno v. Port Auth. of . Y & .J., 298 AD2d 269 270 750 .Y.S.2d 7 [1st Dept. 2002]). D pite Plaintiffs prima facie on his cross-motion, issues of fact exist which preclude summary judgment in favor of either party under the Labor Law 240( l ). In opposition to the crossmotion, and in support of the motion, Defendants raised issues of fact exist as to the manner Plaintiffs accident happened, and as to whether Plaintiff was intoxicated at the time of accident. The sole proximate cause defense based upon a Plaintiffs intoxication in the context of a Labor Law case may not be based on speculation. Accordingly, in Kijak v. 330 Madison Ave. Corp., 251 A.D.2d 152,675 .Y .. 2d 341 (1st Dept. 1998) the defendant failed to raise an issue of fact mer ly b cause the plaintiff had alcohol on his breath when he was taken to the hospital after the accident. Moreover, where there is a clear tatutory violation, intoxication may only be a concurrent cause which will not constitute the ole proximate cause of the injury. Here, however, the testimony of anchez raises issues of fact as to whether plaintiff was habitually drunk, including on the day of the accident. Sanchez was competent to testify that plaintiff wa intoxicated based on his observations. In this regard the law holds: Contrary to the court's ruling it is well settled that a lay witness may testify regarding hi or her observation that anoth r indi idual exhibited signs of intoxication ( ee Felska v ew York Cent. & Hudson Ri . R.R. Co. 152 Y 339, 343-344, 46 E 613 [1897]' see also Jerome Prince, Richardson on E idence § 7-202 [h] [Farrell 11th ed 1995]) and also regarding his or her opinion that another individual was intoxicated (see Fe/ ka 152 Y at 344; Bhowrnik v antana, 140 AD3d 460, 461, 33 YS3d 51 [1st Dept. 2016]' Burke v. Tower E. Rest, 37 AD2d 836,836,326 YS2d 32 [2d Dept. 1971]). Although HN2 '[t]rial courts are accorded wide discretion in making evidentiary rulings [and], absent an abuse of discretion, those rulings should not be disturb don appeal' (Mazella v. Beal , 27 NY3d 694, 709, 37 NYS3d 46, 57 E3d 1083 [2016]; se generally People v. Acevedo, 136 AD3d 1386, 1387, 25 YS3d 761 [4th Dept. 20 16] , lv denied 27 Y3d 1127, 39 Y 3d 109 61 E3d 508 [2016]), we conclude that the ruling at issue here was an abuse of discr tion. ' (Brooks v. Blanchard, 174 A.D.3d 1362, 1363, 105 .Y.. 3d 682 684-685 [4 th Dept. 2019]). 11 11 4 [* 4] 5 of 7 INDEX NO. 30345/2018E FILED: BRONX COUNTY CLERK 06/24/2021 12:33 PM NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 06/24/2021 In addition, given the fact that Plaintiff allegedly failed to report his accident to his supervisor and Plaintiff's cryptic statement "who knows ' there exist issues of fact and credibility as to the manner in which the accident occurred, thereby, precluding summary judgment in favor of either party. Labor Law §241 (6) Labor Law §241 (6) imposes on owners and contractors a nondelegable duty to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, exca ation or demolition work is being performed. To sustain a cause of action pursuant to Labor Law 241(6), a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of an Industrial Code regulation that is applicable to the circumstances of the accident. (Yaucan v. Hawthorne Vil., LLC, 2017 .Y. App . Div. LEXIS 8088, 2017 NY Slip Op 08035 [2d Dept. 2017].) "Whether a regulation applies to a particular condition or circumstance is a question of law for the court" (Harrison v. State of New York, 88 AD3d 951 , 953, 931 .Y.S.2d 662 [2d Dept. 2011]). As a prerequisite to a Labor Law §241(6) cause of action a plaintiff must allege a violation of a concrete specification promulgated by the Commissioner of the D partment of Labor in the Industrial Code. (De/Rosario v. United at ions Fed. Credit Union, 104 A.D.3d 515 , 961 N.Y.S.2d 389 [1st Dept. 2013] [citations omitted] [granting summary judgment to plaintiff based on Labor Law §241 [6].) Given the disputed issues of fact, summary judgment is not warranted on the claims under Labor Law § 241(6). Additional issues of fact exist as to whether he ladder itself was a sufficient safety device, and whether the ladder slipped as claimed by the plaintiff. Common Law egligence and Labor Law 200 Claims An owner may be liable under the common law or under Labor Law 200 for a dangerous condition arising from either the condition of the premises or the means and methods of the work. ( ee Cappabianca v. Skanska U. 'A Bldg. Inc. 99 A.D.3d 139, 143-144, 950 .Y.S.2d 35 [1st Dept. 2012]). An owner ' s liability only attaches for an injury arising from the means and methods of the work if the owner exercised supervisory control over the work (id. at 144). Where a dangerous condition in the premises caused the accident liability only arises if the owner created the condition or had actual or constructive notice of it (id.). "To constitute constructive notice, a defect must be visible and apparent, and it must exist for a sufficient length of time prior to the accident to permit 5 [* 5] 6 of 7 INDEX NO. 30345/2018E FILED: BRONX COUNTY CLERK 06/24/2021 12:33 PM NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 06/24/2021 defendant's employees to discover and remedy it. (Gordon v. American Mu eum of atural Hi tory, 67 Y2d 836, 837, 492 .E.2d 774 501 .Y. .2d 646 [1986]). Howe er con tructive notice will not b imputed where a defect is latent and would not be discoverable upon reasonable inspection.' ( uriale v. Sharrotts Woods, Inc., 9 A.D.3d 473,475, 781 .Y.S.2d 47 [2d Dept. 2004].) There is no evidence in this case that Defendant owner exerci ed supervisory control over Plaintiff's injury-producing work or that the accident arose out of a dangerous condition on the premi es that Defendant possessed actual or constructive notice of. Conclusions ccordingly based upon the foregoing, it is hereby ORDERED , that the Defendant s motion is granted in part only to the extent of dismissing the claims based on common law negligence and Labor Law §200· and it is further ORDERED, that the cross motion by Plaintiff is denied. This constitutes the decision and order of the court. Dated: June 16, 2021 LUCINDO SUAREZ, J.S.C. 6 [* 6] 7 of 7

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