Opinion
Index No. 157216/2018 Motion Seq. No. 002
01-12-2024
IGOR KOVYACHENKO, ALBINA KOVYACHENKO Plaintiffs, v. ELITE FLOOR SERVICE, INC., Defendant.
Unpublished Opinion
MOTION DATE 07/31/2023
DECISION + ORDER ON MOTION
HON. PAULA. GOETZ JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 002) 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59 were read on this motion to/for JUDGMENT - SUMMARY.
In this Labor Law personal injury action arising out of a construction worker's slip and fall due to debris left on the floor of the worksite, defendant moves for summary judgment pursuant to CPLR § 3212 dismissing plaintiffs' complaint.
BACKGROUND
Plaintiff Igor Kovyachenko (plaintiff Igor) is an employee of non-party TF Cornerstone, a real estate development company that owns, builds, and manages properties, including the apartment building located at 95-97 Horatio Street, New York, NY 10014 (NYSCEF Doc Nos 1, 48, 54). TF Cornerstone assigned plaintiff Igor to perform plastering work in the kitchen of apartment 6C of the building (premises). Plaintiff Igor's practice was to position an A-frame ladder on the floor, lock it, climb up, apply plaster to the ceiling with a putty knife, descend the ladder, and repeat as needed. TF Cornerstone also hired defendant as a contractor to perform flooring services at the premises (NYSCEF Doc Nos 49, 51). Their practice was to rip out flooring, place the pieces of parquet into heavy-duty garbage bags, tie up the bags, place them in the comer of the room, and then use a cart to remove them.
Plaintiff Igor alleges that on September 5, 2017, he was injured in the course of his work (NYSCEF Doc No 48, 72:17-73:5). He alleges that when he arrived at the premises that day, the interior of the apartment had already been demolished and the floors ripped out (id. 49:20-24). He states that there were 30-40 black garbage bags all around the apartment which were filled with debris (id. 81:15-20). He began plastering the ceiling at approximately 8:00 a.m. (id. 49:10-15). Plaintiff Igor alleges that at around 10:00 or 11:00 a.m., two employees of defendant entered the premises and removed the garbage bags while he was working (id. 69:2-70:6). At around 1:00 or 2:00 p.m., plaintiff Igor descended the ladder as usual, with putty knives in one hand and plaster mix in the other (id. 76:8-77:3). With his right foot on the bottom step, he extended his left foot to the floor, where it slipped on a stray piece of parquet left there, and he fell on his buttocks, causing injury (id. 88:15-91:4).
Plaintiffs brought this action against defendant, alleging on plaintiff Igor's behalf violations of Labor Law §§ 200, 240, 241(6) and common law negligence, and on plaintiff Alina Kovyachenko's behalf loss of consortium with her spouse (NYSCEF Doc No 1). Defendant moves for summary judgment dismissing the complaint (NYSCEF Doc No 45), primarily arguing that summary judgment is proper because defendant is "not the owner of the building or a general contractor or other culpable Labor Law defendant," and because plaintiff Igor's testimony is incredible as a matter of law and conflicts with the credible testimony of Robert Rutledge, a co-owner of Elite Flooring Service Inc. (Elite Flooring), and Anselmo Gutierrez, one of defendant's two employees performing the flooring work.
Rutledge's Testimony (NYSCEF Doc No 49)
Rutledge owns Elite Flooring with his brother, Frank (id. 11:2-7). They consider TF Cornerstone to be their biggest client (id. 24:22-25:11) and estimate that they have perfoimed 200-250 flooring jobs at 95-97 Horatio Street, alone (id. 52:6-19). Rutledge cannot specifically recall visiting apartment 6C around the time of plaintiff Igor's accident (id. 57:6-11 ["Q. Do you specifically remember going to 95-97 Horatio to do a site visit for [6C]? / A. You know, I don't, and I wouldn't because I'm in and out of 20 apartments every day"]). However, he offers his knowledge of his business's general practices and his understanding of the records. Based on work tickets, he states that September 5, 2017 was the first day his employees began their work at the premises, and that they would have started at around 9:00 a.m. that morning (id. 63:22-64:6). He testified that no other tradesmen would have been at the premises at the same time because the foreman set schedules that staggered different stages of the work to be performed (id. 105:1-12). He also stated that his employees "would have bagged [the pieces of parquet] at the end of the job," rather than bagging as they went along in ripping up the floors (id. 84:21-85-10), and that he had never received complaints of pieces of parquet breaking through the bags and being left behind (id. 105:23-106:6).
Gutierrez's Testimony (NYSCEF Doc No 51)
Gutierrez was also deposed because work tickets place him at the premises at the relevant time. Like Rutledge, he cannot specifically recall the job at issue (id. 20:19-21:2 ["I don't remember because you're talking about three or four years ago"]). However, he offers testimony as to how he typically performed such work and his understanding of the overall process. He testified, for example, that there would be no overlap between his removal of debris and another tradesman's plastering work (id. 31:18-32:18 ["when we are working in there, you can't come in"]). He also stated that it was his practice to clean thoroughly while taking out the garbage, leaving nothing but dust, and that garbage never fell or stuck out of the bags (id. 47:5-48:24, 52:17-53:4). When asked if anyone would check his and his coworker's work after they completed a job, he stated: "I imagine that Roberto would come in to see If it was okay. But I didn't see it." (id. 37:16).
Plaintiffs oppose defendant's motion on the grounds that defendant is asking the court to make a credibility determination, defendant failed to address their claims that it had notice of the dangerous condition alleged, and material issues of fact remain as to each cause of action (NYSCEF Doc No 54).
DISCUSSION
"It is well settled that 'the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact'" (Pullman v Silverman, 28 N.Y.3d 1060, 1062 [2016], quoting AIvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]). "Once such a prima facie showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to raise material issues of fact which require a trial of the action" (Cabrera v Rodriguez, 72 A.D.3d 553, 553-54 [1st Dept 2010]).
"The court's function on a motion for summary judgment is merely to determine if any triable issues exist, not to determine the merits of any such issues or to assess credibility" (Meridian Mgt. Corp, v Cristi Cleaning Serv. Corp., 70 A.D.3d 508, 510-11 [1st Dept 2010] [internal citations omitted]). The evidence presented in a summary judgment motion must be examined "in the light most favorable to the non-moving party" (Schmidt v One New York Plaza Co. LLC, 153 A.D.3d 427, 428 [2017], quoting Ortiz v Varsity' Holdings, LLC, 18 N.Y.3d 335, 339 [2011]) and bare allegations or conclusory assertions are insufficient to create genuine issues of fact (Rotuba Extruders v Ceppos, 46 N.Y.2d 223, 231 [1978]). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (Rotuba Extruders v Ceppos, 46 N.Y.2d 223, 231 [1978]).
Common Law Negligence and Labor Law § 200 Claims
Labor Law § 200 "is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work" (Singh v Black Diamonds LLC, 24 A.D.3d 138, 139 [1st Dept 2005], citing Comes v New York State Elec. &Gas Corp., 82 N.Y.2d 876, 877 [1993]). It provides, in relevant part: "All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places" (Labor Law § 200[ 1 ]). Defendant argues that it cannot be liable under this section because it lacked the authority to supervise or control plaintiff Igor's work.
There are two distinct categories of section 200 cases: (1) where the accident is the result of a dangerous condition that is inherent in the premises; and (2) where the accident is the result of the means and methods used by a contractor to do its work (Ruisech v Structure Tone, Inc., 208 A.D.3d 412, 414 [1st Dept 2022]; Cappabianca v Skanska USA Bldg. Inc., 99 A.D.3d 139, 143-144 [1st Dept 2012]). This case falls into the second category, as the injury was caused by defendant's alleged failure to properly remove the debris, rather than an inherent danger (Glynn v 42nd and 10th Assoc., L.L.C., 2016NY Slip Op 30055[U], *10 [SC NY Co 2016]). Generally, a contractor will not be held liable in this scenario unless it had "authority to supervise or control the means and methods of plaintiffs work" (Jackson v Hunter Roberts Constr., L.L.C., 205 A.D.3d 542, 543 [1st Dept 2022]). However, liability may still be imposed where the contractor created the dangerous condition giving rise to the injury (Tighe v Hennegan Constr. Co., Inc., 48 A.D.3d 201, 201 [1st Dept 2008] [finding that plaintiffs Labor Law § 200 claim was "properly sustained as against Liberty, the demolition subcontractor," which was responsible for "the hazard at issue-debris accumulated as a result of the demolition"]; Murphy v Columbia Univ., 4 A.D.3d 200, 202 [1st Dept 2004] ["It was not necessary to prove Pavarini's supervision and control over plaintiff because the injury arose from the condition of the work place created by or known to the contractor"]). Here, since defendant was responsible for the flooring services that caused plaintiff Igor's injury, he may properly bring a Labor Law § 200 claim against it.
Defendant argues that in any case, plaintiff Igor's testimony is incredible because defendant's floor layers began working on apartment 6C on September 5, 2017 at 9:00 a.m., and therefore could not have removed so much flooring (or any flooring, for that matter) to fill 30-40 garbage bags by the time plaintiff Igor arrived at 8:00 a.m. that same day. Moreover, defendant asserts that the project's foreman had a practice of staggering the construction work done at any one location, and as further supported by the testimony of defendant's witnesses, plaintiff Igor's time in 6C did not overlap with that of the floor layers as he alleged. Defendant's witnesses also testified that pieces of parquet could not have ripped and fallen through the garbage bags as theorized by plaintiff Igor, since these were industrial bags and they had never experienced that before (NYSCEF Doc No 49, 105:23-106:6; NYSCEF Doc No 51, 47:5-48:24, 52:17-53:4). Defendant also cites the complaint and the chiropractor's report (NYSCEF Doc No 52), which presented some discrepancies in plaintiff Igor's description of the fall and injuries.
These contentions and the supporting evidence submitted fail to "eliminat[e] all material issues of fact regarding whether they created the alleged dangerous condition that led to plaintiffs accident" (Carrera v Westchester Triangle Hous. Dev. Fund Corp., 116 A.D.3d 585, 586 [1st Dept 2014]). Rutledge, for example, has no personal knowledge of the incident (NYSCEF Doc No 49, 57:6-11), and while records indicate that Gutierrez was at the premises at the relevant time, he testified that he could not remember anything specific because the incident occurred "three or four years" prior to the deposition (NYSCEF Doc No 51, 20:24-21:2). As a result, the witnesses offer minimal testimony as to the specific facts of this case, and instead testify as to what they imagine occurred based on typical business practices, related experiences, and records they reviewed after the fact (see generally, NYSCEF Doc Nos 49, 51). Such extrapolation is insufficient to support granting summary judgment (Fiorentino v Atlas Park LLC, 95 A.D.3d 424, 427 [1st Dept 2012] [project manager "had no personal knowledge as to the condition of the BX cable prior to the accident. Accordingly, his testimony was insufficient to raise an issue of fact."]; Pouso v Columbia Univ, in the City of N.Y., 2012 NY Slip Op 33080[U], * 14 [SC NY Co 2012] [witness "does not aver any personal knowledge ... Asa consequence, [his] affidavit contains only hearsay assertions"). Defendant does submit work tickets from the dates at issue which support its contention that its employees only began ripping up the floors on September 5, 2017 (NYSCEF Doc No 50). However, these work tickets do not definitively dispel the possibility of defendant's liability.
Defendant has thus failed to submit sufficient evidence demonstrating "that it neither created nor had notice of the dangerous condition of the work site" such that dismissal the Labor Law § 200 and common law negligence claims is warranted (Padilla v Touro Coll. Univ. Sys., 204 A.D.3d 415, 416 [1st Dept 2022]; Romano v New York City Tr. Auth., 213 A.D.3d 506, 508 [1st Dept 2023] [defendant "failed to submit any proof establishing that they lacked constructive notice of the condition" and "various witnesses' testimony" presented "credibility issues that cannot be properly determined on a summary judgment motion"]; McKinney v Empire State Dev. Corp., 217 A.D.3d 574 [1st Dept 2023] [claims could not be dismissed where issues of fact remained as to whether defendant created and had notice of dangerous condition]).
Ultimately, plaintiff Igor was the sole witness to his own accident, and defendant asks that the court find his statements "incredible." The court will not make such a determination on a motion for summary judgment (Rodriguez v New York City Hous. Auth., 194 A.D.3d 460 [1st Dept 1993] ["such relief is inappropriate where 'the injured party is the apparent sole witness to the accident, as the salient facts are exclusively within his knowledge and his credibility is placed in issue'"]; Meridian Mgt. Corp., 70 A.D.3d at 510-11 ["The court's function on a motion for summary judgment is merely to determine if any triable issues exist, not to determine the merits of any such issues or to assess credibility"]).
Defendant has not met its prima facie burden of demonstrating entitlement to judgment as a matter of law, and accordingly, the portion of its motion seeking to dismiss plaintiffs' common law negligence and Labor Law § 200 claims will be denied.
Labor Law § 241(6) Claim
Labor Law § 241(6) provides that "[a]ll areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places" (Labor Law § 241 [6]). It imposes its obligations on "[a]ll contractors and owners and their agents." Similar to defendant's argument regarding Labor Law § 200, defendant contends that it cannot be held liable under this section because it is the subcontractor, rather than general contractor or owner, and did not have supervisory authority over plaintiff Igor's work.
"Although section 241 (6) does not expressly apply to subcontractors," where work is delegated to a subcontractor, it is "concomitantly delegated the authority to supervise and control that work and [may thereby become] the statutory agent of the general contractor under section 241" (Leon v J &M Peppe Realty Corp., 190 A.D.2d 400, 408 [1st Dept 1993]). "Our interpretation of the statutory 'agent' language appropriately limits the liability of a contractor as agent for a general contractor or owner for job site injuries to those areas and activities within the scope of the work delegated or, in other words, to the particular agency created" (Russin v Louis N. Picciano &Son, 54 N.Y.2d 311, 318 [1981]).
The scope of defendant's authority is not clear from the evidence presented, but by accepting the subcontract, it may have become an agent, if only with respect to the flooring aspect of the project (id. [finding subcontractor was not liable because it was an "agent with respect to the heating, ventilation and air-conditioning work [and not] with respect to the general construction activity which produced the plaintiffs injury, i.e., the erection, maintenance and dismantling of the scaffolding equipment"]). Since this is the aspect that plaintiff Igor alleges caused his injury, defendant cannot avoid liability at this stage (Vitucci v. Durst Pyramid LLC, 205 A.D.3d 441, 444 [1st Dept 2022] ["there are issues of fact as to whether defendant Geller - the electrical subcontractor - was responsible for the lighting at the time of the accident, and therefore whether it may be liable as a statutory agent based on its authority to control the lighting"]; DeMaria v RBNB 20 Owner, LLC, 129 A.D.3d 623, 626 [1st Dept 2015] [denying summary judgment against "Forest, the subcontractor responsible for electrical work on the project and for lighting at the site" because "an issue of fact exists as to whether inadequate illumination contributed to the causation of the accident"]). "Rather, a question of fact is presented as to the authority [defendant] was given when the work was originally subcontracted to it" (Nascimento v Bridgehampton Constr. Corp., 86 A.D.3d 189, 193 [1st Dept 2011]), and as to whether defendant had "supervision or control of the safety of the area involved" at the time of the accident (Piazza v Frank L. Ciminelli Constr. Co., 12 A.D.3d 1059, 1060 [4th Dept 2004] ["Pursuant to its contract with Ciminelli, Mader was responsible for the crawl space insulation and for the safety of its work and the work area. Mader was also responsible for the clean-up and removal of all debris caused by its operations."]).
Accordingly, defendant's summary judgment motion seeking dismissal of plaintiffs' complaint will be denied as to plaintiff Igor's Labor Law § 241(6) claim.
Labor Law § 240(1) Claim
Labor Law § 240, known as New York's "Scaffold Law," requires that "[a]ll contractors and owners and their agents, ... furnish or erect [ladders] 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 ]). "To prevail on a Labor Law § 240 (1) claim, a plaintiff must establish that the statute was violated and that the violation was a proximate cause of the injury" (Cutaia v Bd. of Mgrs. of the 160/170 Varick St. Condo., 38 N.Y.3d 1037, 1042-43 [2022]). The protections of this section "do not encompass any and all perils that may be connected in some tangential way with the effects of gravity" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501 [1993]). Rather, the injury must be "attributable to the kind of extraordinary elevation-related risk that the statute was intended to guard against" (Sihly v New York City Tr. Auth., 282 A.D.2d 337, 723 N.Y.S.2d 189 [2001]).
Defendant is correct that the accident as alleged by plaintiff Igor is not covered by Labor Law § 240. Though plaintiff Igor states that the ladder he was using "flew away into a different direction" (NYSCEF Doc No 48), this only occurred after he fell; he does not assert that the ladder itself caused his fall or any of his injuries (Felker v Corning. Inc., 90 N.Y.2d 219, 224 [1997] ["No allegations were raised that the ladder itself was defective, . . . Thus, [] we are not concerned with the adequacy of this particular ladder as a device to safely elevate plaintiff']). Since plaintiff Igor instead alleges that his injury was caused by slipping on a piece of parquet left on the floor, he is not covered by Labor Law § 240's protections against elevation-related risks (Lopez v City of New York Transit Auth., 21 A.D.3d 259, 259 [1st Dept 2005] [Labor Law § 240 inapplicable to plaintiff who "slipped on debris around the bottom of the ladder"]; Vasiliades v Lehrer McGovern & Bovis, Inc., 3 A.D.3d 400, 401 [1st Dept 2004] [same for plaintiff who, with one foot on the bottom rung of a ladder, slipped due to a wet floor]).
The accident as alleged by plaintiff Igor is not the result of an elevation-related risk which the statute was meant to protect against. Accordingly, that portion of defendant's motion seeking dismissal of plaintiff Igor's Labor Law § 240(1) claim will be granted.
CONCLUSION
Based on the foregoing, it is
ORDERED that defendant's motion for summary judgment dismissing the complaint is granted with respect to plaintiff Igor's Labor Law § 240(1) claim and is otherwise denied.