Opinion
Index No. 701777/2019 Cal. No. 4 Seq. No. 4
10-31-2022
Jose Leonardo De Souza, Plaintiff(s), v. BGY Cityview LLC, United Construction & Development Group Corp., and New Line Structures &Development LLC, Defendant(s).
Motion Submission Date: 8/2/2022
Unpublished Opinion
SHORT FORM ORDER
Laurentina S. McKetney Butler, J.S.C.
Recitation, as required by CPLR 2219(a), the following electronically filed documents were considered in the review of this motion
Papers Numbered
Notice of Motion, Affirmations, Affidavits and Exhibits....................................................EF 49-74
Opposition Affirmations, Affidavits and Exhibits.....................EF 88-89
Reply Affirmation and Affidavit of Service............................EF 90-91
Notice of Cross-Motion, Affirmations, Affidavits and Exhibits....................................................EF 77-85
Upon the foregoing papers this application is decided as follows:
Plaintiff moves for an order pursuant to CPLR §3212, granting summary judgment on the issue of liability, against defendants BGY Cityview LLC and New Line Structures &Development LLC, ("New Line") pursuant to New York State Labor Law§ 240(1), and against Defendant New Line pursuant to New York State Labor Law §200 and common law negligence. Defendants cross-move to dismiss plaintiffs Labor Law §241(6) claims.
In this labor law action plaintiff alleges personal injuries were sustained on October 3, 2018, while working at a construction site located at 23-15 44 Drive, Long Island City, New York ("the Premises"). At the time of the accident, defendant BGY Cityview LLC was the owner of the Premises, and defendant New Line was the Construction Manager. Plaintiff claims that at the time of the accident he was descending a 9-foot A-frame ladder when the ladder wobbled causing him to fall four or five feet to the ground and sustain serious physical injury. Plaintiff did not seek any relief against defendant, United Construction &Development Group Corp., a franchise authorized to do business in the State of New York.
To obtain summary judgment, the movant must establish their cause of action sufficiently to warrant the court, as a matter of law, to direct judgment in its favor by tendering sufficient evidence in admissible form to eliminate any material issues of fact from the case. Failure to make a prima facie showing of entitlement to judgment requires denial of the motion, regardless of the sufficiency of the opposing papers. Once proof has been established, the burden shifts to the opponent to show facts sufficient to require a trial of any material issue of fact. (See, CPLR §3212(b); Winegard v. New York Univ. Med. Ctr., 64 N.Y.2d 851 (1985); Zuckerman v. City of New York, 49 NY 557 (1980); Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065 (1979)).
" 'To prevail on a cause of action alleging a violation of Labor Law §240(1), a plaintiff must establish that Labor Law §240(1) was violated and that the violation was a proximate cause of his or her injuries' "(Gaspar v Pace Univ., 101 A.D.3d 1073, 1074, 957 N.Y.S.2d 393 [2012], quoting Lopez-Dones v 601 W. Assoc., LLC, 98 A.D.3d 476, 479, 949 N.Y.S.2d 165 [2012]). "The mere fact that a plaintiff fell from a ladder does not, in and of itself, establish that proper protection was not provided" (Delahaye v Saint Anns School, 40 A.D.3d 679, 682, 836 N.Y.S.2d 233 [2007]; see Esteves-Rivas v W2001Z/15CPW Realty, LLC, 104 A.D.3d 802, 803-804, 961 N.Y.S.2d 497 [2013]; Artoglou v Gene Scappy Realty Corp., 57 A.D.3d 460, 461, 869 N.Y.S.2d 172 [2008]; Xidias v Morris Park Contr. Corp., 35 A.D.3d 850, 851, 828 N.Y.S.2d 432 [2006]). There must be evidence that the ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing the plaintiffs injuries (see Artoglou v Gene Scappy Realty Corp., 57 A.D.3d at 461).
In support of the motion, plaintiff provides, inter alia, a copy of the pleadings, and copies of the deposition transcripts of plaintiff (taken with the use of a Portuguese interpreter) and Chris Hagen a mechanical, electric plumbing ("MEP") superintendent for defendant New Line.
Based on plaintiffs testimony, he was working as a carpenter; his work duties on the date of the accident consisted of building wooden molds that would be filled with concrete to create columns and that creating the molds required him to go up and down a ladder; that on the day of the accident he was using a 9-foot A-frame step ladder to perform his work; that the ladder he used was supplied by his employer; that the ladder was new and in good condition, and was set up when he arrived for work. Plaintiff also testified that on the day of the accident, before using the ladder, he tested it to ensure that it was sturdy, he moved it, to make sure that it was on firm ground and fully opened; and, inspected the ladder to confirm that it had rubber tips on the legs and was placed properly and securely. Plaintiff further testified that he was utilizing a harness with a lifeline attached to the ceiling; that before he began to descend the ladder prior to his fall, he unfastened the lifeline; that while approximately four to five feet from the ground the ladder wobbled, he lost his balance and fell to the ground landing on his left side with his back landing on a two by four wood plank. There were no witnesses to the accident.
The deposition testimony of Chris Hagen, the MEP Superintendent for defendant New Line, raises questions as to plaintiffs version of the happening of the accident, the equipment being used, the protective equipment provided and the actual work being performed. Additionally, Mr. Hagen, testified that he was informed of the accident, in the presence of the plaintiff, with either the site medic or plaintiffs foreman translating, that plaintiff was walking down a lumbar job-built ladder and when he arrived at the landing he tripped over a small piece of two by four lumber which was bolted to the ground to secure the ladder, plaintiff then allegedly tripped backward, and hit his back on, the two by four and suffered an abrasion to his left elbow. Due to the accident, plaintiff left work early without any assistance. Mr. Hagen also testified that on the date of the accident he inspected the accident area with the foreman and observed a job-built ladder that traverses the elevator shaft. Mr. Hagen testified that the work being performed by plaintiffs employer on the date of the accident was located in the center of the cellar and involved stripping, the process of removing the wood bracing that keeps the concrete columns. Subsequently, Mr. Hagen memorialized the information he obtained about the accident in a company template form that was filed with the company.
Based on the foregoing, an award of summary judgment on the issue of liability pursuant to Labor Law §240(1) is unwarranted as issues of fact exist as to the happening of the accident, the type of equipment used and the work being performed.
With respect to the branch of plaintiffs motion seeking summary judgment on the issue of liability pursuant to Labor Law §200 and common law negligence, plaintiffs argue that defendant New Line had the authority to control the work that plaintiff was performing which proximately led to plaintiffs accident and the resulting injuries, but failed to exercise that authority, and is therefore negligent pursuant to Labor Law §200 and common law.
Defendants argue that the claim should be dismissed, as a matter of law, on the grounds that defendants did not direct, supervise, or control the means and methods of plaintiffs work, did not have notice of any dangerous condition, and did not cause or create any dangerous work condition.
Section 200 of the Labor Law codifies the common law duty imposed upon an owner or general contractor to provide construction site workmen with a safe place to work (Russin v Louis N. Picciano & Son, 54 N.Y.2d 311, 316-317, 429 N.E.2d 805, 445 N.Y.S.2d 127 [1981]). To be charged with liability under Labor Law §200, an owner or general contractor must perform more than their "general duty to supervise the work and ensure compliance with safety regulations." De La Rosa v Philip Morris Management Corp., 303 A.D.2d 190, 192, 757N.Y.S.2d 527 (1st Dept 2003). Monitoring and oversight of the timing and quality of the work is not enough to impose liability under section 200, nor is a general duty to ensure compliance with safety regulations or the authority to stop work for safety reasons. (Dalanna v City of New York, 308 A.D.2d 400, 400, 764 N.Y.S.2d 429 (1st Dept 2003)). Instead, it must be shown that the owner had authority to control the activity bringing about the injury to enable it to avoid or correct the unsafe condition. (Hughes v. Tishman Construction Corp., 40 A.D.3d 305, 836 N.Y.S.2d 86 (1st Dept 2007))
On this record issues of fact exists as to how the accident occurred, the work that was being performed at the time of the accident, and the type of equipment being used to perform such work. Under these circumstances, plaintiff has failed to demonstrate that the defendants had authority to control the activity that caused the injury or that there was an unsafe or dangerous condition. Therefore, liability cannot summarily be imposed against defendants pursuant to Labor Law §200 or common law negligence.
Turning to defendants' cross-motion to dismiss plaintiff s claims pursuant to Labor Law §241(6). Plaintiff alleges defendants violated Labor Law §241(6), by violating Rule 23 of the Industrial Code of the State of New York, specifically, "but not limited to": 23-1.8(c), 23-1.16, 23-1.17, 23-1.21(a), 23-1.21(a-f), 23-1.30, 23-2.1(a), 23-2.3.3(b), 23-3.3(c), 23-5.1, 23-5.3(d)(e). Defendants argue that the Industrial Code violations alleged by Plaintiff are inapplicable to the facts of this case or were not violated.
"[T]o establish liability under Labor Law §241(6), a plaintiff must demonstrate that the defendant's violation of a specific rule or regulation was a proximate cause of the accident" (see, Seaman v Bellmore Fire Dist., 59 A.D.3d 515, 516, 873 N.Y.S.2d 181; see Creese v Long Is. Light. Co., 98 A.D.3d 708, 710, 950 N.Y.S.2d 167; Pereira v. Hunt/Bovis Lend Lease All. II, 2021 NY Slip Op 02552; 193 A.D.3d 1085, 1089; 147 N.Y.S.3d 628, 633 (App. Div. 2nd Dept.)
There being no opposition to defendants' cross-motion, plaintiff s claim based on Labor Law §241(6) is dismissed.
Accordingly, plaintiffs motion for summary judgment is denied in its entirety and defendant's cross-motion for summary judgment dismissing plaintiff s claims based on Labor Law §241(6) is granted, without opposition.
This constitutes the Decision and Order of the Court.