Opinion
Index No.: 507156/2016
05-09-2019
MARLON BROWN, Plaintiff, v. EAST 22nd STREET ACQUISITION HOLDINGS, LLC, and PLAZA CONSTRUCTION CORP., Defendants.
NYSCEF DOC. NO. 60 At an IAS Term, Part 81 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 9th day of May, 2019. PRESENT: HON. CARL J. LANDICINO, Justice. DECISION AND ORDER Motion Sequence, #2 Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
| Papers Numbered | |
| Notice of Motion/Cross Motion andAffidavits (Affirmations) Annexed | 1/2, |
|---|---|
| Opposing Affidavits (Affirmations) | 3 |
| Reply Affidavits (Affirmations) | 4 |
Upon the foregoing papers, and after argument, the Court finds as follows:
Plaintiff Marlon Brown (hereinafter the "Plaintiff") alleges causes of action pursuant to New York State Labor Law §§200, 240(1) and 241(6) as against Defendants East 22nd Street Acquisition Holdings, LLC and Plaza Construction Corp. (hereinafter "the Defendants"). Plaintiff alleges in his Verified Bill of Particulars that on April 2, 2016, while working as a laborer in the employ of non-party Tower Installation Construction, LLC (hereinafter "Tower") at the premises known as 45 East 22nd Street, New York, N.Y. (hereinafter "the Premises"), he was injured while in the process of moving crates of windows at the construction site.
The Defendants now move (motion sequence #2) for an order pursuant to CPLR 3212 granting summary judgment in their favor, dismissing all causes of action against them. Specifically, the Defendants contend that Plaintiff's Labor Law 240(1) claim fails, as Plaintiff's injuries did not occur due to a gravity related accident and no safety devices delineated in the statute could have protected him. As to Plaintiff's Labor Law 241(6) claim, the Defendants contend that the Industrial Code provisions that the Plaintiff relies upon are too general and not applicable to the facts at issue. Finally, the Defendants contend that the Plaintiff's Labor Law 200 and general negligence claims fail as a matter of law because the Defendants did not supervise, direct or control the Plaintiffs work.
Plaintiff opposes the Defendants' motion in relation to the Plaintiff's Labor Law §240(1) claim. The Plaintiff contends that he was injured as a result of the descent of a crate of windows which propelled him into the air and caused his injuries. Specifically, the Plaintiff contends that the Defendants have failed to meet their prima facie burden in relation to the Plaintiff's Labor Law §240(1) claim since Plaintiff's injuries were caused by the descent of a 3,500 pound crate of windows and as a result, the facts as alleged, related to a gravity related injury. As to the Labor Law §§200, 241(6) and common law negligence claims, the Plaintiff does not oppose the Defendant's motion and does not provide evidence sufficient to raise an issue of fact in relation to these applications. Accordingly, the remainder of this Decision and Order will relate to the Plaintiff's claim based upon Labor Law §240(1) and the Defendant's motion is granted as it relates to Labor Law §§200, 241(6) and common law negligence claims, which were not opposed by the Plaintiff. See Nicometi v. Vineyards of Fredonia, LLC, 25 N.Y.3d 90, 95, 30 N.E.3d 154, 157 [2015] (holding that where summary judgment is not otherwise opposed, dismissal is appropriate).
"Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it 'should only be employed when there is no doubt as to the absence of triable issues of material fact.'" Kolivas v. Kirchoff, 14 AD3d 493 [2nd Dept, 2005], citing Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 320 N.E.2d 853 [1974]. The proponent for the summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate absence of any material issues of fact. See Sheppard-Mobley v. King, 10 AD3d 70, 74 [2nd Dept, 2004], citing Alvarez v. Prospect Hospital, 68 N.Y.2d320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986]; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985].
Once a moving party has made a prima facie showing of its entitlement to summary judgment, "the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Garnham & Han Real Estate Brokers v Oppenheimer, 148 AD2d 493 [2nd Dept, 1989]. Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. See Demshick v. Cmty. Hous. Mgmt. Corp., 34 A.D.3d 518, 520, 824 N.Y.S.2d 166, 168 [2nd Dept, 2006]; see Menzel v. Plotnick, 202 A.D.2d 558, 558-559, 610 N.Y.S.2d 50 [2nd Dept, 1994].
Labor Law § 240(1)Labor Law § 240 (1) is designed to protect employees on construction sites from elevation-related risks. This section provides that:
"All contractors and owners and their agents ... who contract for but do not direct or control the work, 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."
"Labor Law 240(1) provides exceptional protection for workers against the special hazards that arise when the work site itself is either elevated or positioned below the level where materials are being hoisted." Walker v. City of New York, 72 A.D.3d 936, 937, 899 N.Y.S.2d 322, 323 [2nd Dept, 2010]. In order to prevail on a Labor Law § 240 (1) cause of action, "[a] plaintiff must establish that the statute was violated and that the violation was a proximate cause of his [or her] injuries" Delahaye v Saint Anns School, 40 AD3d 679, 682 [2007]; see Berg v Albany Ladder Co., Inc., 10 NY3d 902, 904 [2008]; Robinson v East Med. Ctr., L.P., 6 NY3d 550 [2006]. "Liability may, therefore, be imposed under the statute only where the "plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential." Nicometi v. Vineyards of Fredonia, LLC, 25 N.Y.3d 90, 97, 30 N.E.3d 154, 158 [2015].
Turning to the merits of the Defendants' motion, the Court finds that the Defendants have met their prima facie burden in relation to the Plaintiff's remaining Labor Law §240(1) claim. The Defendants rely on Plaintiff's deposition testimony, images of the device at issue, both the deposition testimony of and affidavit by Ray Romani, superintendent of Defendant Plaza Construction, a copy of the accident report and the affidavit of Plaintiff's supervisor, Andrew Hussain. During his deposition, the Plaintiff testified (Defendants' Motion, Exhibit H, Pages 38-43) that at the time of the accident, he was leading a group of workers who were moving large wooden crates with glass windows inside. The Plaintiff also testified (Defendants' Motion, Exhibit H, Pages 52-53) that the crates were on wheeled skates or dollies that allowed the crates to be moved from one location to another. The Plaintiff testified (Defendants' Motion, Exhibit H, Pages 92-96) that the accident occurred while he was using a "johnson bar" to lift a crate so as to allow another worker to remove the skate from underneath the crate. Plaintiff states that at the time of the accident the crate "shifted" causing the Plaintiff to be elevated by the "johnson bar." These facts, taken together, establish that the Plaintiff's alleged injuries were not the result of a gravity related incident as covered by Labor Law §240(1). The few inches that the crate shifted, causing the bar to lift the Plaintiff, is "not an extraordinary elevation-related risk protected by Labor Law § 240(1), but rather, one of the usual and ordinary dangers of a construction site." Eddy v. John Hummel Custom Builders, Inc., 147 A.D.3d 16, 20-21, 43 N.Y.S.3d 507, 511 [2nd Dept, 2016]; see also Toefer v. Long Is. R.R., 4 N.Y.3d at 407-409, 795 N.Y.S.2d 511, 828 N.E.2d 614 [2005] (four feet above the ground); Dilluvio v. City of New York, 95 N.Y.2d at 929, 721 N.Y.S.2d 603, 744 N.E.2d 138 [2000] (three feet); Biscup v. E.W. Howell, Co., Inc., 131 A.D.3d 996, 998, 16 N.Y.S.3d 266 [2nd Dept, 2015] (four to five feet). What is more, "[w]ithout a significant elevation differential, Labor Law § 240(1) does not apply, even if the injury is caused by the application of gravity on an object." Simmons v. City of New York, 165 A.D.3d 725, 726-27, 85 N.Y.S.3d 462, 466 [2nd Dept, 2018], quoting Christiansen v. Bonacio Const., Inc., 129 A.D.3d 1156, 1158, 10 N.Y.S.3d 683, 686 [3rd Dept, 2015]. In Simmons, an air compressor weighing approximately six hundreds pounds was raised approximately three to six inches from the floor by a pallet jack and the Court found that the plaintiff's injuries were not caused by the elevation or gravity-related risks encompassed by Labor Law § 240(1). Id.
In opposition, the Plaintiff has failed to raise an issue of fact that would prevent this Court from granting the Defendants' summary judgment application. In support of his position, the Plaintiff cites the case of Grant v. Solomon R. Guggenheim Museum, for the proposition that an injury that resulted from the use of a "johnson bar" did involve an elevation related risk within the meaning of Labor Law 240(1). However, the facts of Grant v. Solomon R. Guggenheim Museum are materially dissimilar to those of the instant proceeding. In Grant, the crates at issue were being prepared for off-loading (by hoist) from the back of a flat bed truck and a crate tipped over, knocking the Plaintiff to the ground. In the instant case, the crates were being placed on the ground by removal of a skate underneath, which was less than a foot off the ground. See Grant v. Solomon R. Guggenheim Museum, 139 A.D.3d 583, 584, 33 N.Y.S.3d 183, 185 [1st Dept, 2016]. The height of the crate from the ground, in this case, is insufficient to permit this Court to find that the Plaintiff's injuries resulted from an elevation related risk sufficient to invoke Labor Law 240(1). See Pita v. Roosevelt Union Free Sch. Dist., 156 A.D.3d 833, 835, 68 N.Y.S.3d 84, 86 [2nd Dept, 2017]. In Pita the Court held that "Labor Law § 240(1) does not apply because the three-foot-height differential between the two levels of the roof did not present the sort of elevation-related risk protected by that statute." Id. As a result, the Defendants application is granted as to Labor Law 240(1). Based upon the foregoing, it is hereby Ordered that:
The Defendants motion (motion sequence #2) is granted. The Plaintiff's complaint is dismissed.
This constitutes the Decision and Order of the Court.
ENTER:
/s/ _________
Carl J. Landicino
J.S.C.