Haynes v Beechwood Atlantc Ave. LLC

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Haynes v Beechwood Atlantc Ave. LLC 2022 NY Slip Op 32978(U) September 1, 2022 Supreme Court, Kings County Docket Number: Index No. 528242/2019 Judge: Richard J. Montelione 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. 528242/2019 FILED: KINGS COUNTY CLERK 09/06/2022 11:54 AM NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 09/06/2022 At lAS Part 99ofthe Supreme Court .of the StateofNew York, held in and fotthe County of Kings, at the Courthouse located at 3 60 Adams Street, Brooklyn, Brooklyn, NY day of - - - IJ 201, on the 2022. SEP O 1 2022 SUPREME COURT OF THE STATEOF NEW YORK COUNTY OF KINGS: PART 99 DECISION/ORDER -· --- .··- ·-· --· ·-----------------· --- ·-- ·-------- . ---· . ----------X TERRANCE HAYNES, Index No.:· 528242/2019 Motion Date: 8/3/2022 Motion Cal.No.: Mot. Seq. 2 Plaintiff, "'"againstBEECHWOOD ATLANTC AVE. LLC, Defendant. ---- .------ .---. --------· -·-------------- ·--· .---.. -. -- . ---- .. -.. x. The following papers were read on this inotion pursuant to CPLR 2219(a): NYSCEF DOC.# Papers. · Plaintiff's notice of motion dated April 30, 2022 pursuantto CPLR § 3212, granting partial summaryjudgment on the· issue of Habi lity, in :favor of Terrance Haynes and against Beechwood Atlantic Ave. LLC, on the issue cifliability, with respect to Terrance Haynes Third Cause of Action. pursuantto Labor Law Section 240( I), etc; attorney affirmation ofKevin M. Gallagher, Esq., affirmedon.April.30,·2022; Affidavitof ·Terrance Haynes, sworn to on October 10; 2020; Exhibits i-8 ........... ,................... ,...... Defendant's attorney affirmatkm of Kevin B. Pollak, Esq, in opposition, affirrried on Ju:ly .26, 2022 and supporting exhibits ........................................ .......... ; ........ ;., ......... , .. Reoly .AffirmatiorL ........ ,·.' ..... ' ... •.' ........ ·, ... '' ... ·•· ·, . •·• .......... ' •....... ' ..................................... '.'· 36-46 49-54 55-56 MONTELIONE, RICHARD J., J. This is an action commenced under th~ Labor Law by filing the summcms an.d complaint on. December 3 0, 201 9, for personal injuries allegedly suffered by plaintiff on I)ecembet l; 201 7. Issue was joined on March 16, 2020. Plaintiff now moves for partial surnrnaryjudglllent ori the issue of liability with regard to his third cause of action pursuant to Labor Law Section 240(1).. Plaintiff argues that he injured himself during work at a construction site when he fell off an unsecured six-foot A,-frame ladder, fro ma height of four feet, when the ladder sunk into the ground beneath him which was comprised of gravel/sand and was uneven and soft. Plaintiff was employed by JME FireSprinket Corp. ("JME'') as a sprinkler mechanic; The defendant is the owner of the premises and aUeged general contractor where·the accident is alleged to have [* 1] 1 of 4 ....... · · · · · · · · · · · · · · · · · · · - - · · · · · · · · · · · · · · · · · - - - - - - - ~ - INDEX NO. 528242/2019 FILED: KINGS COUNTY CLERK 09/06/2022 11:54 AM NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 09/06/2022 Haynesv. BeechwoodAtlantic Ave. LLC, Index:No.528242/2019 happened. The defendant hired JME to perform some services at the construction site. The accident was immediately reported to "Theo," a lead mechanic for J.ME. Plaintiff alleges he was given no equipment or second person to secure the ladder to protect him from such a fall, that the extension ladderwas foo short, causing plaintiff to have to stand too close to the top rung. Plaintiff argues that further discovery is unnecessary because there is no evidence which .· contradicts plaintiffs version of the accident 1 Defendant opposes the motion and argues that the motion for summary judgment is premature because no discovery has taken place.2 Further; defendant provides affidavits from its employees stating that the ground where the ladder was placed was asphalt and not uneven, that the sprinkler pipes that he was working on were 8 feet 6 inches above the ground, not 10- l 5feet · above the gmund, and the six-foot A-frame ladder that JME provided plaintiff allowed him to · safely work on and reach the sprinkler pipes. In reply, plaintiff argues there were inconsistencies in plaintiff's affidavitandthe deposition, but the court does not find any issues of fact that would change the analysis in this . . . . motion. A motion for summaryjudgment will be granted if; upon all the papers and proof submitted, the cause of action or defense is established sufficiently to warrant directing judgment in favor of any party as a matter of law. CPLR3212 (b); Gilbert Frank Corp, v; Federal Ins; Co.;. 70N.Y.2d 966,967 (1988); Zuckerman v. City of New York, 49N.Y.2d 557,562 (1980). On such a motion, tlie evidence will be construed in a light most favorable to the party against whom summary judgment is sought. Spinelli v, Procassini, 258 A.D.2d 577 (2d Dept 1999); Tassone v. Johannemam, 232 A.D.2d 627,628 (AD2dDept1996); Weiss v. Garfield, 21 A:D2dl56, 158 . . (AD3 rd Dept 1964). Here, there is no issue of fact that plaintiff fell oft' the ladder provided to him, there is no indication that the ladder Was clefective. The position of the ladder and condition ofthe surface where it was located is not relevant to the.issue ofliability befotethe court. See Messina v City of New York, 148 AD3d493, 494,49 NYS3d 408,2017 NY Slip OpUl823, 1, 2017 WL 985529 (1st Dept2017): Plaintiff established.his entitlement to partial summary judgment on the Labor Law § 240 ( 1) claim through his testimony that he was injured when the A-frame ladder on which he was standing moved underneath him as he applied pressure to it while trying to remove part of the drop ceiling he was demolishing (see Hillv City ofNew York, 140 AD3d 568; 570[lst Dept2016];Ausbyv365 W. End LLC, 135 AD3d 481 [lstDept 2016]). Plaintiff was not required to show that the ladder was defective or that he actually fell offthe ladder to satisfy his prirriafacie burden (see Hill, 140 1 TI1e court notes that the affidavit of Terrance Haynes is identical to the .affidavit ofhis counsel, that it contains inappropriate references to the law; is not limited to the facts and the court will reject any future inappropriate · subrriissions. 2 Since the submission of the motion, a deposition of the plaintifftook place. 2of4 [* 2] 2 of 4 INDEX NO. 528242/2019 FILED: KINGS COUNTY CLERK 09/06/2022 11:54 AM NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 09/06/2022 Haynes v. Beechwood Atlantic Ave. LLC, Index No .. 52.8242/2019 AD3dat 570;Reavelyv Yonkers RacewayPrograms, Inc., AD3d 561, 565 [1st Dept 2011 ]). 88 Defendants failed to raise· a triable issue of fact whether plaintiff was the sole proximate cause of the accident. There is no testimony in the record as to whether there were other readily available, adequate safety devices at the accident site that plaintiffdeclined to use (see Gove v Pavarini McGovern, LLC, 110 AD3d 601 {1st D~pt 2013]). Moreover, the evidence establishes that the ladder twisted underneath plaintiff because it was unsecured, not because he misusedit, andthatdefendants providedno othersc1fety devices for his use, At most, plaintiffs· application of pressure to the ladder while engaged in the work he was directed to do, which caused it to rnrist, was comparative negligence, no defense to a Section 240 (1) claim (Hill, 140 AD3d at 570; Noor v City of New York; 130 AD3d536, 541-542 [lstDept2015], iv dismissed27 NY3d 975 [2016]). "Regardless of the method employed by plaintiff to remove [the drop ceiling], the ladder provided to him was not an adequate safety device for the task he was performing" (Carino v Webster Place Assoc., LP,45 AD3d 351, 352 [1st Dept2007]). Even where a ladder moves with no apparent reason to cause plaintiff to fall, plaintiff meets his prima facie burden of showing entitlement to judgment as a matter oflaw. Sef! Cabrera v Arrow SteelWindow Corp., 163 AD3d 758., 759-60, 82 NYS3d 444, 2018 NY Slip Op 05275, 2, 2018 WL 3451526 (2d Dept 2018), ", .. (plaintiff}made a prirna facie showing of ·. entitlement to judgment as a matter oflaw through his deposition testimony, which demonstrated that the ladder on which he was working moved. for no apparent reason, causing 1:iim to fall (see Alvarezv Vingsan L.P., 150AD3d 1177, 1179 [2017]; Goodwin v Dix Hills Jewish Ctr.,144 AD3d 744, 747 [2016]; Ocana v Quasar RealtyPartnets L.P., 137 AD3d 566, 567 [2016]; LaGiudice v Sleepy's Inc., 67 AD3 d 969, 971 [2009]):" Even where plaintiff places the ladder on debris, plaintiff establishes a prima facie case that defendant violated Labor Law §240(1) by failing to ensure proper polac~mentofthe ladder due to the condition of the flooL See Klein v City ofNew York, 89 NY2d 833,675 NE2d 458,652 NYS2d 723, l996WL 676241 (NYS Ct. of Ap. 1996). . ·Defendant has not raised an issue .of fact regarding the plaintiff's fall from. the ladder or thathe was the sole proximate cause of the.fall. Tuzzolino v. Consolidated Edison Company of New York, 160 AD3d 568 (1st Dept 2018), Courts have held even where plaintiff misses a step that this fact; " ... does not raise a. tnable is.s:ue a~ to v,th,ether plaintiff was the sole proximate cause of the a~cident, as it does not refute piaintiffs a:sserdon that the ladder. slid out from .beneath him (citations omitted).'' Se.e Nolan v Port Auth. ofNew York and New Jersey, 162 AD34 488, 489, 78 NYS3d 333\2018NY Slip Op.04293, l, 2018 WL2919291 (istDept 2018). Haseq ori the foregoing, . . . it is. 3of4 [* 3] 3 of 4 ............. ··········-······--------------------------------- INDEX NO. 528242/2019 FILED: KINGS COUNTY CLERK 09/06/2022 11:54 AM NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 09/06/2022 H_ayrt~s v. Beechwood Atlantic A Ve. LLC, Index No. 528242/2019 ORDERED that plaintiff's motion for partial summary judgm_ent on the issue ofliability is GRANTED; and it is further ORDERED that any otherrequests for relief <lte DENIED. This constitutes the decision and order of the Court. ' Pf~ .·.· . ·.·_, . . .. . . . . . . ·. . . .. . Hon. Richard J. Montelione 4of4 [* 4] 4 of 4.............................. _.,,.., ________________

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