Opinion
No. 112185/11.
07-01-2014
Devi KRISTOL, Plaintiff, v. BOARD OF EDUCATION OF the CITY OF NY, New York City Department Of Education, New York City School Construction Authority, City of New York, Kafka Construction, LLC, and Kafka Construction, Inc., Defendants.
Scott Rynecki, Esq., Rubenstein & Rynecki, Esqs., Brooklyn, for Plaintiff. Cozen O'Connor, Esq. by Matthew Kohel, Esq., New York, for Defendants, Board of Ed., NYC Dept. of Ed, et al. Mastropietro Frade, LLC, Mineola, for Defendant, Kafka Construction, LLC.
Scott Rynecki, Esq., Rubenstein & Rynecki, Esqs., Brooklyn, for Plaintiff.
Cozen O'Connor, Esq. by Matthew Kohel, Esq., New York, for Defendants, Board of Ed., NYC Dept. of Ed, et al.
Mastropietro Frade, LLC, Mineola, for Defendant, Kafka Construction, LLC.
LOUIS B. YORK, J.
Initial Motion
Plaintiff moves for summary judgment based on the defendants' violations of L.L. §§ 240(1) and 241(6). Defendants cross move for summary judgment dismissing the entire complaint, to wit the causes of action under L.L. §§ 200, 240(1) and 241(6). For the reasons hereinafter discussed, both motions are denied.
Plaintiff, a roofer, alleges that while engaged at a construction site for the renovation of the roof of P.S. 70, he fell 15 feet from a scaffold when he tripped over three loose planks that were not tied together while he was on his way to obtain a container of gasoline as instructed by the foreman of his employer. Plaintiff sues defendants in their unchallenged capacities as owner, agent of the owner and general contractor under the Labor Law. He claims that the three planks were defective and no harness, ropes or railings were available to prevent him from his fall.
Cross–Motion
Defendants' cross-motion introduces evidence showing that plaintiff was the sole cause of his accident because it occurred in a roped-off area in which he was prohibited entry. They introduce an accident report where it is claimed that plaintiff stated inconsistently that he fell down the scaffold's steps. Defendants also move to dismiss plaintiff's cause of action based on L.L. § 200 on the ground that plaintiff's employer, non-defendant Armstrong, was the only person who supervised plaintiff and provided him with instructions for carrying out the work. Lacking the element of control, negligence against the defendants cannot be sustained (Peckinaya v. Allyn, 25 AD3d 111, 808 N.Y.S.2d 596 [1st Dept 2005] ; Page v. State of New York, 72 AD3d 1456, 1458, 902 N.Y.S.2d 199 [3d Dept 2010] ).
Discussion
Whether or not plaintiff has made out a prima facie case on his Labor Law claims, his inconsistent statements raise serious questions, especially where he was the only witness to the accident (Reborchick v. Broadway Mall Props, 10 AD3d 713, 781 N.Y.S.2d 899 [2d Dept 2004] ). The statements attributed to plaintiff are conflicting as to where the accident occurred. Without knowing that, the Court cannot ascertain how the accident occurred and what sections of the Labor Law apply to it.
The record reveals that the defendants did not control as to the method and manner that the work was done as they allege, but rather, on the condition of the premises, which they may or may not be responsible for (Griffin v. New York City Tr. Auth., 764 Ad3d 202 791 N.Y.S.2d 98). If, in fact, plaintiff ignored the prohibition against going into the area where he was injured, as defendants contend, he may be solely responsible for his injuries.
Therefore, the issues boil down to whether plaintiff was solely responsible for his injuries and, if he wasn't, whether he was given adequate safety devices to protect him from falling. However, for the reasons explained above, the cross-motion to dismiss plaintiff's cause of action for negligence is granted.
Accordingly, it is
ORDERED that the first cause of action for negligence is dismissed, and it is further
ORDERED that the motion for summary judgment to dismiss the second cause of action is denied as to that portion alleging violations of L.L. §§ 240(1) and 241(6).