Opinion
Index 713511/17
05-07-2020
GUOXING SONG, Plaintiff, v. CA PLAZA, LLC, CA PLAZA LLC d/b/a 134-22 35TH AVE., LLC, W & L GROUP CONSTRUCTION INC., and XYZ CORPORATION, Defendants. Motion Seq. No. 5
Unpublished Opinion
Motion Date February 4, 2020
HONORABLE DARRELL L. GAVRIN JUSTICE
The following numbered papers read on this motion by plaintiff for summary judgment on the issue of liability against defendants W & L Construction Group (W & L) and CA Plaza, LLC (Plaza).
Papers Numbered
Notice of Motion - Affirmation - Exhibits.............................. EF 79-87
Affirmation in Opposition - Exhibits....................................... EF 88-91
Reply Affirmation..................................................................... EF 92-93
Upon the foregoing papers it is ordered that the motion is determined as follows:
Plaintiff alleges that he was injured on February 16, 2017, when he slipped on ice while he was working as an employee of nonparty, Ding Li Construction Inc. on a construction project in Flushing, Queens. At the time of the accident, plaintiff was working on what was then the top floor of the building under construction and his worksite was exposed to the elements. According to plaintiff's deposition testimony, he lost his footing and was thrown into a squatting position when he stepped on a patch of ice as he was carrying a wooden form-board to the area where he was creating posts for the next higher floor. Defendant, W & L was the general contractor for the project and defendant Plaza was the owner of the building being constructed.
Plaintiff's complaint alleges causes of action for negligence and violation of Labor Law §§ 200 and 241(6). Where, as here, the injured plaintiff's accident arose from an allegedly dangerous condition at the worksite, liability for a violation of Labor Law § 200, as well as for common-law negligence, requires proof that the defendant either created the dangerous condition or had actual or constructive notice of it. (See Honeyman v Curiosity Works, Inc., 154 A.D.3d 820 [2d Dept 2017]; DeFelice v Seako Constr. Co. LLC, 150 A.D.3d 677 [2d Dept 2017].) Plaintiff has not made a prima facie showing in support of his contention that defendants had constructive notice of the icy condition which caused him to slip. Contrary to plaintiff's assertion, W & L's daily work log for February 9, 2017 does mention cleaning snow when describing the day's work. No evidence was presented as to the amount of snow which fell that day or of the condition of the worksite thereafter to allow for any conclusions to be drawn about whether the icy condition was caused by the melting and refreezing of ice or snow from precipitation seven days before the accident. Nor does the inadequacy of the testimony of W & L's site manager with regard to establishing when the worksite had been inspected carry plaintiff's burden on its summary judgment motion. The moving party may not rely on gaps in an opponent's proof but must affirmatively establish its claim or defense sufficiently to demonstrate a right to judgment as a matter of law. (See Spota v Love, 140 A.D.3d 730 [2d Dept 2016].) Accordingly, plaintiff is not entitled to summary judgment on his causes of action for negligence and failure to provide a safe work place under Labor Law § 200.
The absence of evidence of actual or constructive notice, however, is irrelevant to the imposition of liability pursuant to Labor Law § 241(6). (See Rizzuto v L.A. Wenger Contr. Co., 91 N.Y.2d 343 [1998]; Reynoso v Bovis Lend Lease LMB, Inc., 125 A.D.3d 740 [2d Dept 2015].) As a predicate for liability pursuant to Labor Law § 241(6), the plaintiff has alleged that he was injured as a result of the presence of an ice condition at his worksite which violated the unequivocal requirement and concrete specification of section 23-1.7(d) of the Industrial Code (12 NYCRR 23-1.7[d]) which provides that "[i]ce, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing." (Id.)
The duty imposed on owners and contractors by Labor Law § 241(6) is nondelegable. (See Rizzuto, 91 N.Y.2d at 350). The plaintiff's testimony at his deposition established that he slipped and was injured as a result of ice at the location where he was performing the tasks assigned to him. The plaintiff thereby demonstrated his prima facie entitlement to judgment as a matter of law on the Labor Law § 241 (6) cause of action. (See Reynoso, 125 A.D.3d at 742.) In opposition, defendants have failed to submit evidence in admissible form to raise a triable issue of fact. (See Luciano, 157 A.D.3d at 617; Reynoso, 125 A.D.3d at 742.)
The excerpt from a purported daily report prepared by W & L for the day of plaintiff s accident is written in Chinese and is not accompanied by a translation with an affidavit setting forth the qualifications of the translator. (CPLR 2101[b]; see Monteleone v Jung Pyo Hong, 79 A.D.2d 988 [2d Dept 2010].) In addition, this hearsay document was not properly qualified as a business record to be admissible under the business record exception to the hearsay rule. (CPLR 4518[a]; see Federal Natl. Mtge. Assn. v Marlin, 168 A.D.3d 679 [2d Dept 2019]; Citibank, N.A. v Cabrera, 130 A.D.3d 861 [2d Dept 2015].) The patient health history questionnaire from the records of plaintiff s treating acupuncturist suffers from similar deficiencies. There is no information as to how the responses included thereon were obtained or who prepared the form, which is written in English, whereas plaintiff is Chinese speaking and required a translator for his deposition Nor are the acupuncturist's records qualified as business records. Even assuming that the treatment pages of the acupuncturist's records were admissible, the entry therein concerning how the accident occurred upon which defendants rely is not attributed to the injured plaintiff. In any event, had the subject entry referred to statements attributable to plaintiff, the notation was not germane to his diagnosis or treatment and, therefore, would not be admissible under the business records exception to the hearsay rule. (CPLR 4518[a]; see Sermos v Gruppuso, 95 A.D.3d 985 [2d Dept 2012].)
Although inadmissible evidence may be acceptable under certain circumstances to defeat summary judgment, those circumstances are not present here, where the inadmissible evidence is the sole proof offered for the denial of summary judgment and defendants have not given any excuse for their failure to tender that evidence in admissible form. (See Vaccariello v Meineke Car Care Ctr., Inc., 136 A.D.3d 890 [2d Dept 2016]; Kristo, 134 A.D.3d at 551; Weinstein v Nicolosi, 117 A.D.3d 1036 [2d Dept 2014..)
Accordingly, plaintiffs motion is granted only to the extent that he is awarded summary judgment against defendants W & L and Plaza on the issue of liability on his cause of action for violation of Labor Law § 241(6).