Gambino v. City of N.Y.

Full title: Vincent Gambino, Plaintiff, v. The City of New York, NEW YORK CITY…

Court: Supreme Court, Kings County

Date published: Jul 28, 2016

2016 N.Y. Slip Op. 51152 (N.Y. Sup. Ct. 2016)

Opinion

15957/2013

07-28-2016

Vincent Gambino, Plaintiff, v. The City of New York, NEW YORK CITY DEPARTMENT OF TRANSPORTATION, TULLY CONSTRUCTION CO, INC and POSILLICO CIVIL, INC, d/b/a TULLY CONSTRUCTION CO, INC/POSILLICO CIVIL INC, JOINT VENTURE, Defendants. THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF TRANSPORTATION, TULLY CONSTRUCTION CO, INC and POSILLICO CIVIL, INC, d/b/a TULLY CONSTRUCTION CO, INC/POSILLICO CIVIL INC, JOINT VENTURE, Third Part Plaintiffs, . HELLMAN ELECTRIC CORP. Third Party Defendant.

Plaintiff Attorney — Sacks & Sacks 150 Broadway, 4th floor New York, New York 10038 (212) 964-5570 David H. Mayer, Esq. Defendants Attorney - Harris, King, Fodera & Correia 1 Battery Plaza, 29th floor New York, New York 10004 (212) 487-9701

Wayne P. Saitta, J.

Plaintiff Attorney — Sacks & Sacks 150 Broadway, 4th floor New York, New York 10038 (212) 964-5570 David H. Mayer, Esq. Defendants Attorney - Harris, King, Fodera & Correia 1 Battery Plaza, 29th floor New York, New York 10004 (212) 487-9701 Wayne P. Saitta, J.

Plaintiff, VINCENT GAMBINO, (hereinafter "Plaintiff"), moves this Court for an Order pursuant to CPLR § 3212 for partial Summary Judgment against the Defendants and granting further relief as this Court deems just and proper.

Upon reading the Notice of Motion by David H. Mayer, Esq., Attorney for Plaintiff, VINCENT GAMBINO and Patrick Reagan & Maureen Reagan, dated March 30th, 2015, together with Affirmation in Support of David H. Mayer, Esq., dated March 31st, 2015 and all exhibits annexed thereto; the Notice of Motion for Summary Judgement by David H. Mayer, Esq., dated March 30th, 2015, together with Affirmation in Support of David H. Mayer, Esq., dated March 31st, 2015 and all exhibits annexed thereto; the Memorandum of Law in Support of Plaintiff Motion for Summary Judgment by David H. Mayer, Esq., dated March 31st, 2015; Affirmation In Opposition of Thomas J. King, Esq., Attorney for Defendants, THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF TRANSPORTATION, TULLY CONSTRUCTION CO, INC. and POSILLICO CIVIL, INC., d/b/a TULLY CONSTRUCTION CO., INC./POSILLICO CIVIL INC., JOINT VENTURE, dated June 30th, 2015 and all exhibits annexed thereto; the Reply Affirmation of David H. Mayer, Esq., dated September 29th, 2015 and all exhibits annexed thereto; and after argument of counsel and due deliberation thereon, Plaintiff's motions for partial Summary Judgment is granted for the reasons set forth below.

FACTS

This action arises out of an accident which occurred on May 6, 2013 in which Plaintiff VINCENT GAMBINO, ("GAMBINO" or "Plaintiff"), sustained injuries.

Plaintiff was a Local 3 union electrician employed by HELLMAN ELECTRIC CORP, ("HELLMAN"), at the time of the accident. The owner of the project was Defendant NEW YORK DEPARTMENT OF TRANSPORTATION, (hereinafter "NY DOT"), and the general contractor was Defendant TULLY CONSTRUCTION CO, INC and POSILLICO CIVIL, INC, d/b/a TULLY CONSTRUCTION CO, INC/POSILLICO CIVIL INC, JOINT VENTURE, (hereinafter "TULLY"). Plaintiff's employer, HELLMAN, was hired by Defendant TULLY.

GAMBINO and Patrick Reagan, ("Reagan"), another electrician, together with an apprentice named Dave, were in the process of removing telephone poles by the side of the Belt Parkway at the time of the accident. Plaintiff was instructed to use a boom lift truck to access the poles. The truck was owned by HELLMAN.

Plaintiff and Reagan were working in the elevated basket of a boom truck when the truck tipped over, causing the Plaintiff and Reagan to fall approximately 50 feet to the ground. Both GAMBINO and Reagan were wearing their harnesses and were tied off to the basket at the time of the accident.

Plaintiff was using the truck for the first time on the date of the accident, although he had worked with similar trucks previously. He testified that he had not been trained on this truck but that he knew how to set it up from having observed others on prior jobs with other trucks.

Plaintiff GAMBINO drove the truck to the site, set the brake and the "power take off", which transferred power from the operation of the truck to the boom apparatus. Then he and his co-worker Reagan deployed the outriggers and downriggers.

Plaintiff cut one pole and then moved the truck to the location where the accident occurred.

At that point, GAMBINO engaged the rear downriggers. Reagan deployed the driver side outrigger, deployed the passenger side outrigger under which he had placed a piece of plywood, and then deployed the front downrigger. Together Plaintiff and Reagan determined that the truck was level, and then entered the basket.

They were both in the basket approximately 50 feet in the air for over a minute or two when the truck fell over, causing the aerial lift to slam to the ground with the Plaintiff and Reagan tied off to the basket.

Plaintiff alleges causes of action pursuant to Labor Law 200, 240(1) and 241(6). He moves for partial summary judgment against Defendants on his Labor Law 240(1) claim.

ARGUMENTS

Plaintiff argues that the Defendants are statutorily liable pursuant to Labor Law 240(1) as owner and contractor on the construction project. He argues that the boom lift is a safety device within the meaning of the Labor Law and the fact that the boomlift truck collapsed constituted a violation of section 240(1).

Defendants argue that the boomlift truck did not collapse but tipped over because Plaintiff set it up and operated it improperly. Accordingly, the Defendants argue that Plaintiff was the sole proximate cause of the accident.

Defendants' expert Robert O'Connor, P.E., argues that the accident was caused by the Plaintiff and a co-worker failing to properly deploy the downriggers and outriggers.

Defendants argue that the undisputed fact is that the Plaintiff and his co-worker placed the truck and deployed the rigging and their actions constitute the sole proximate cause of the accident.

ANALYSIS

Labor Law § 240 (1) provides, in part,

All contractors and owners and their agents, except owners of one and two-family dwellings 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. (Emphasis supplied.)

Although Plaintiff argues that the truck upon which he was working collapsed, no evidence was presented that the truck collapsed or was defective. In fact, the testimony of the Plaintiff and his co-worker, and the photographs taken after the accident, support the fact that the truck tipped over.

Thus the possible violation of Labor Law 240(1) was not that the truck, as a safety device, was not adequate to protect the worker from the elevation related hazard because it collapsed, but rather that the truck tipped over because it was not properly placed to provide protection to the workers. The truck was positioned and the down riggers and outriggers were deployed by the Plaintiff and his co-worker Reagan.

Generally to defeat a plaintiff's motion for summary judgment on a 240(1), the defendant must show that there is no statutory violation or, if there is one, that a plaintiff's own acts or omissions were the sole cause of the accident.

The Court of Appeals' decisions in Blake and Cahill state that where there is a violation of Labor Law 240(1) and the violation was a proximate cause of the plaintiff's injury, plaintiff's contributory negligence does not affect liability to statutory parties as contributory negligence is not a defense to a Labor Law 240(1) claim. Blake v Neighborhood Hous. Services of New York City, Inc., 1 NY3d 280, 290 [2003], Cahill v Triborough Bridge and Tunnel Auth., 4 NY3d 35, 40 [2004].

Blake held that "[u]nder Labor Law 240(1), it is conceptually impossible for a statutory violation serves as a proximate cause of a plaintiff's injury to occupy the same ground as a plaintiff's sole proximate cause for the injury. Thus if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it. Conversely, if the plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation". Blake, at 291.

Situations where the only statutory violation is the improper placement of a safety device, and the device was placed or setup by the plaintiff, has resulted in varied outcomes. In some cases the plaintiff's actions have been determined to have been the sole proximate cause of plaintiff's accident, and in other cases the plaintiff was found to have merely been comparatively negligent, and therefore defendant remained liable under Labor Law 240(1). The question, therefore, is what differentiates cases where the plaintiff's actions in placing or setting up a safety device have been found to constitute the sole proximate cause of an accident from those cases where the plaintiff's actions have been found only to constitute comparative negligence.

A survey of recent cases indicates that the determinative factor is intent or recklessness; where a plaintiff deliberately chooses not to use available safety equipment, or intentionally misuses or improperly places safety equipment, or otherwise acts recklessly, his actions may constitute the sole proximate cause of the accident.

In Montgomery v Fed. Express Corp., 4 NY3d 805, 795 NYS2d 490 (1st Dept 2005), rather than retrieve a ladder, the plaintiff's behavior was found to be the sole proximate cause of his injuries where he used an inverted bucket to ascend to a motor room rather than a ladder. When he descended from the motor room by jumping, he sustained injuries. See also Weingarten v Windsor Owners Corp., 5 AD3d 674, 774 NYS2d 537 (2nd Dept 2004), where the plaintiff fell into an elevator shaft after he stood on a folding chair while attempting to hoist himself into an elevator stuck between floors. Repairing elevators was not one of the plaintiff's duties and no one requested he climb into the elevator. The Court held that the plaintiff's actions were the sole proximate cause of his injuries.

In Thome v Benchmark Main Tr. Assoc., LLC, 86 AD3d 938, 927 NYS2s 260 (4th Dept 2011), the plaintiff deliberately ignored the direction not to drive a forklift into an area where holes had been made in the floor, causing the lift to tip over. See also Cahill v Triborough Bridge and Tunnel Auth., 4 NY3d 35, 40 [2004] where plaintiff failed to use an available safety line despite instructions to do so.

In the case of Berman v Franchised Distributors, Inc, 88 AD3d 755, 930 NYS2d 891 (2nd Dept 2011), the Court found that the plaintiff's admission that he had been drinking and that he had placed the ladder, which shifted, on water soaked ground raised a question of fact as to whether he was the sole proximate cause of his loss. See also Reves v Khan, 90 AD3d 734, 934 NYS2d 328 (2nd Dept 2011), the Court affirmed a denial of summary judgment to plaintiff who placed a ladder on loose soil and did not secure ladder. The Second Department stated the plaintiff performed work in an unnecessarily dangerous and improper manner, raising an issue of fact as to whether he was the sole proximate cause of his injuries; see also Daley v 250 Park Avenue, LLC,126 AD3d 747, 5 NYS3d 267 (2nd Dept 2015) where the Court reversed a grant of summary judgment to the plaintiff where defendant raised a question of fact as to whether the plaintiff mis-positioning the ladder from which he fell, and if he did, whether his conduct was the sole proximate cause of the ladder tipping over.

In the case of Robinson v East Medical Center, 6 NY3d 550, 814 NYD2d 589 (1st Dept 2009), the Court concluded plaintiff's actions were the sole proximate cause of his injuries where he stood on top cap of a 6' ladder rather than retrieve an 8' ladder, which was available. In Blake v Neighborhood Hous. Services of New York City, Inc., 1 NY3d 280, 290 (2003), the Plaintiff fell from an extension ladder he set up when the top part of the ladder retracted. The plaintiff admitted that the ladder was not defective, that it was properly placed and that he may not have locked the extension clips in place. The Court found that under those facts that there was a question of fact whether the plaintiff was the sole proximate cause of his injuries.

Conversely, in those cases where it was determined that the worker did not act deliberately or recklessly to misuse or place the safety equipment, the Courts have held that the worker's actions were not the sole proximate cause of the accident.

To impose the burden of ensuring the proper placement of safety equipment on the worker would have the effect of frustrating the legislative purpose of the Labor Law 240(1), which seeks to ensure that the burden of providing a safe work place falls upon the owners and contractors, and not upon workers. Rodriguez v Biltoria Realty LLC, 580 FSupp2d 122 (Eastern Dist 2003). In Beharry v Pub. Stor, Inc., 36 AD3d 574, 828 NYS2d 458 [2d Dept 2007], the Court held that the plaintiff was not the sole proximate cause of his injuries as he "neither engaged in unforeseeable, reckless activities nor misused a safety device that was provided to him", when he fell through metal decking while climbing between two floors. See also Quick v City of New York, 24 Misc 3d 1210(A), where the Court held that defendants did not make out a sole proximate cause defense, finding no misuse of a safety devise where plaintiff fell while removing nails from boards on which he was working.

In Bermejo v New York City Health and Hosps. Corp., 119 AD3d 500, 989 NYS2d 490 (2nd Dept 2014), the defendant failed to show that plaintiff's failure to clip the platform to scaffold was the sole proximate cause of the collapse of the scaffold. See also Bombard v Christian Missionary All. of Syracuse, 292 AD2d 830, 739 NYS2d 516 (4th Dept 2002) where the Court found that even if plaintiff had failed to lock the wheels on the scaffold, causing it to move and fall into an opening in the floor, this failure would constitute comparative negligence and not the sole proximate cause of the accident.

In Riffo-Velozo v Village of Scarsdale, 68 AD3d 839, 891 NYS2d 418 (2nd Dept 2009), plaintiff placed a ladder on which he was working against a garage door which knocked the ladder over when it was opened. The Court held that his negligent placement of the ladder was not the sole proximate cause of his injuries.

Similarly, in Morin v Machnick Builders Ltd, 4 AD3d 668, 772 NYS2d 388 (3rd Dept 2004), plaintiff's improper placement of a ladder on a piece of plywood over ice on a sidewalk, which slid out from underneath him, constituted a violation of Labor Law 240(1). The Court distinguished such contributory negligence from cases where a worker misuses a safety device. See also Kazmierczak v Town of Clarence, 286 AD2d 955, 737 NYS2d 177 (4th Dept 2001), where the plaintiff was entitled to summary judgment when the ladder he placed tipped over. The Court held it the defendant had a statutory duty to provide a properly placed ladder so plaintiff's contributory negligence was immaterial.

What can be drawn from these cases is that proper placement of a safety device is a non-delegable duty of an owner and an owner cannot delegate to a plaintiff the responsibility for properly placing a safety device, especially a complex safety device such as the boomlift truck used here.

Where a plaintiff is merely negligent in placing a device, his conduct does not constitute the sole proximate cause of his injuries. It is only where a plaintiff intentionally misuses or intentionally improperly places a device that his or her conduct is the sole proximate cause. There is no evidence in this case that Plaintiff or his co-worker deliberately or intentionally failed to set the downriggers and outriggers properly. There is no evidence that the Plaintiff disregarded any specific instructions or direction as to how to set up the truck.

Therefore, any failure by Plaintiff to properly set the downriggers and outriggers would constitute comparative negligence but would not be the sole proximate cause of Plaintiff's injuries.

An additional and independent reason why Plaintiff's actions were not the sole proximate cause of his injuries is the fact that he did not set the downrigger and outriggers of the truck alone. Defendants' expert stated that the failure to properly deploy the downriggers and outriggers was what caused the truck to tip over. A co-worker of Plaintiff deployed some of the outriggers and therefore Plaintiff was not the sole cause of the truck tipping over.

WHEREFORE, Plaintiff's motion for summary judgment as to his clam pursuant to Labor Law section 240(1) is granted, and it is hereby,

ORDERED that Plaintiff is granted summary judgement against Defendants THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF TRANSPORTATION, TULLY CONSTRUCTION CO, INC and POSILLICO CIVIL, INC, d/b/a TULLY CONSTRUCTION CO, INC/POSILLICO CIVIL INC, JOINT VENTURE, as to liability on his claim pursuant to Labor Law 240(1).

This shall constitute the decision and Order of this Court. ENTER, _________________ J S C