Opinion
103878/04.
Decided June 16, 2008.
This action arose as a result of a construction site accident which occurred on the first floor of premises located at 1787 Madison Avenue, New York, New York on February 25, 2003. At the time, plaintiff was a laborer employed by non-party B V Contracting Associates, Inc. d/b/a B V Contracting Enterprises, Inc. (B V), installing insulation between studs of an open wall. Plaintiff was working within what would become a studio apartment. The ceiling of the room had the metal framing for a drop ceiling installed, but no ceiling tiles had been placed as yet. Plaintiff was working on an eight-foot aluminum A-frame ladder. As he descended, a screw on the metal framing for the ceiling got hooked on his jacket, and he fell and was injured. Plaintiff avers that he was on the third step from the top when he felt the ladder move, and it collapsed beneath him on the floor.
At the time of the accident, defendant NYC Partnership Housing Development Fund Company, Inc. (Fund) was the owner of the building. Fund entered into a Site Development Agreement with defendant L M Madison Owners, LLC, which in turn, contracted with L M Builders, LLC (Builders) to act as the general contractor for the project. The project entailed building an eight-story building with commercial space on the street level and residential space above. Builders subcontracted with B V to perform the carpentry work at the site. The parties lump both L M entities together, referring to both simply as "L M" without distinguishing one from the other. The court will do likewise.
Plaintiff now moves, pursuant to CPLR 3212, for partial summary judgment on the issue of defendants' liability pursuant to Labor Law § 240 (1). Defendants, who are now collectively represented by the same counsel, cross-move for summary judgment dismissing plaintiff's common-law negligence and Labor Law §§ 200 and 241 (6) claims.
DISCUSSION
"The proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law" ( Dallas-Stephenson v Waisman , 39 AD3d 303 , 306 [1st Dept 2007], citing Winegrad v New York University Medical Center, 64 NY2d 851, 853). "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers'" Santiago v Filstein, 35 AD3d 184, 186 [1st Dept 2006], quoting Winegrad, 64 NY2d at 853). However, "[o]nce the movant makes the required showing, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that precludes summary judgment and requires a trial" ( Dallas-Stephenson, 39 AD3d at 306, citing Alvarez v Prospect Hospital, 68 NY2d 320, 324). "The court's role, in passing on a motion for summary judgment, is solely to determine if any triable issues exist, not to determine the merits of any such issues" ( Sheehan v Gong , 2 AD3d 166 , 168 [1st Dept 2003], citing Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404).
Plaintiff's Motion
"Labor Law § 240 (1) provides special protection to those engaged in the erection . . . of a building or structure'" ( Prats v Port Authority of New York and New Jersey, 100 NY2d 878, 880). The statute imposes absolute liability upon owners, contractors, and their agents for injuries to workers that were proximately caused by the failure to provide safety devices necessary to protect workers from elevation-related risks and hazards, such as "falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured" ( Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 501). "In order to establish prima facie entitlement to judgment as a matter of law on a cause of action pursuant to Labor Law § 240 (1), a plaintiff must provide evidence that the statute was violated and that the violation was the proximate cause of his or her injuries" ( Woszczyna v BJW Associates , 31 AD3d 754 , 755 [2d Dept 2006]).
Defendants contend that there was nothing wrong with the ladder that B V had supplied to plaintiff, and that plaintiff himself was the sole proximate cause of his accident, in that his movements in trying to unhook his jacket from the screw could have caused him to fall. At the very least, defendants maintain, there are questions of fact concerning whether the ladder was defective, or shifted, or whether plaintiff's misuse of the ladder was the sole proximate cause of his accident.
One of the two electricians who were in the room with plaintiff, Pablo Wilkes, testified that the ladder was not in good condition, that it was shaky, and that it moved from side to side while plaintiff was working on it (Wilkes Depo., at 32, 34). In contrast, B V's co-owner, Robert Ballesteros, testified that after the accident, he inspected the ladder and found that it was in excellent condition — the cross braces were locked and the ladder was in its A position, and had rubber pads on all four of its feet (Ballesteros Depo., at 73-74).
Where a "plaintiff's actions [are] the sole proximate cause of his injuries, . . . liability under Labor Law § 240 (1) [does] not attach" [citations omitted]. Instead, the owner or contractor must breach the statutory duty under section 240 (1) to provide a worker with adequate safety devices, and this breach must proximately cause the worker's injuries. These prerequisites do not exist if adequate safety devices are available at the job site, but the worker either does not use or misuses them ( Robinson v East Medical Center, LP, 6 NY3d 550, 554; see also Blake v Neighborhood Housing Services of New York City, 1 NY3d 280, 290 ["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"]).
Defendants allege that plaintiff was the sole proximate cause of his injuries because he misused the ladder he was standing on. They assert that plaintiff's supervisor twice saw him misusing the ladder in the half hour prior to the accident: the first time by standing on the top of the ladder while the ladder was closed, leaning against the wall, and the second time by standing on the very top of the ladder while it was in its A position. However, there is no evidence that plaintiff was not using the ladder correctly at the time of his accident, or that his prior misuse of the ladder contributed in any way to the happening of the accident. Nor does defendants' argument that plaintiff movements, to untangle his jacket from the screw, provide a basis to deny the motion. Defendants cite no cases which stand for the proposition that such movements are not a "normal and logical response" to being tangled and therefore, could be deemed misuse of the ladder. The case cited by defendants, Miro v Plaza Construction Corp. ( 38 AD3d 454 , 455 [1st Dept 2007]) is inapposite because there the court stated that the "uncontroverted evidence establishes that plaintiff recognized the undesirability of the fireproofing material on his ladder, knew full well that could have requested that his employer provide him with a new, clean ladder, and yet-for no apparent reason-chose not to make such a request." Here, however, there is no evidence that plaintiff recognized that the ladder was unfit, or that a replacement ladder was available which would have prevented the accident. Thus, defendants' defense of plaintiff being the sole proximate cause of his injuries is unpersuasive.
While defendants argue that there is a question of fact concerning whether the ladder was defective, that issue is immaterial. "Plaintiff was under no obligation to show that the ladder was defective in some manner or to prove [some defect in the floor] to make out a Labor Law § 240 (1) violation. It was sufficient to show the absence of adequate safety devices to prevent the ladder from sliding or to protect plaintiff from falling" ( Bonanno v Port Authority of New York and New Jersey, 298 AD2d 269, 270 [1st Dept 2002]). Here, it is uncontested that the ladder on which plaintiff was standing was unsecured and that no other safety devices were provided to him to prevent him from falling. Thus, there was nothing to keep the ladder from moving when plaintiff may have shifted his weight while trying to release his jacket from the screw. Plaintiff has established that the failure of the ladder to prevent his fall and the lack of other safety devices were a proximate cause of his injuries, and his motion for summary judgment on the issue of defendants' liability under Labor Law § 240 (1) is granted ( Hart v Turner Construction Co. , 30 AD3d 213 [1st Dept 2006] [plaintiff was entitled to summary judgment under Labor Law § 240 (1) when a ladder he was standing on shifted, causing him to fall; defendants failed to establish that plaintiff was the sole proximate cause of the accident]).
Defendants' Cross Motion
Untimeliness of Cross Motion
Plaintiff urges the court to not consider defendants' cross motion because it was made after the post-note of issue 120-day statutory period had expired, no good cause for the delay was presented, and no motion for leave of court to file the late cross motion was brought. Defendants urge the court to consider the admittedly untimely cross motion, made three weeks late, because the cross motion allegedly has merit, plaintiff will suffer no prejudice, and defendants have a reasonable excuse for their tardiness in that their counsel was on trial and was unable to make the cross motion in a timely manner.
In 2004, the Court of Appeals decided the case of Brill v City of New York ( 2 NY3d 648 ), which determined that " good cause' in CPLR 3212 (a) requires a showing of good cause for the delay in making the [summary judgment] motion — a satisfactory explanation for the untimeliness — rather than simply permitting meritorious, nonprejudicial filing, however tardy" ( Brill, 2 NY3d at 652). Brill is not completely on point in this matter, however, because it did not decide the issue of untimely cross motions made in response to timely-served summary judgment motions. Since Brill, the Appellate Division, First Department, has squarely addressed the issue, finding that an untimely cross motion may be considered if the cross motion was made "in response to . . . still pending, timely summary judgment motions" ( Osario v BRF Construction Corp. , 23 AD3d 202 , 203 [1st Dept 2005]), and if the cross motion "was largely based on the same arguments raised in [the] timely motion, and the same findings that mandated judgment for [the proponent of the motion] also require judgment for [the proponent of the cross motion]" ( Altschuler v Gramatan Management , 27 AD3d 304 , 304-305 [1st Dept 2006]). More recently, the First Department again affirmed that an untimely cross motion could be considered "since it sought relief on the same issues as were raised in defendants' timely motion" ( Conklin v Triborough Bridge and Tunnel Authority , 49 AD3d 320 , 321 [1st Dept 2008]; see also Lapin v Atlantic Realty Apts. Co., LLC , 48 AD3d 337 , 337 [1st Dept 2008] ["marginally untimely" cross motion was properly considered "because it raised nearly identical issues" as asserted in the timely motion]).
In a case that closely resembles this one, after noting that an untimely cross motion may be considered "even in the absence of good cause, where a timely motion for summary judgment was made seeking relief nearly identical' to that sought by the cross motion" ( Filannino v Triborough Bridge and Tunnel Authority , 34 AD3d 280 , 281 [1st Dept 2006]), the First Department discussed the reasoning for allowing consideration of an untimely cross motion:
An otherwise untimely cross motion may be made and adjudicated because a court, in the course of deciding the timely motion, may search the record and grant summary judgment to any party without the necessity of a cross motion. The court's search of the record, however, is limited to those causes of action or issues that are the subject of the timely motion ( Ibid.). The Court declined to consider the untimely cross motion because "defendants' motion was addressed to the causes of action under Labor Law §§ 200 and 241 (6), while plaintiff's cross motion concerned a different cause of action (i.e., Labor Law § 240)" ( ibid.). The Court distinguished its ruling from its ruling in Osario ( 23 AD3d 202, supra), because in Osario, the untimely cross motion was "made in response to defendants' timely motions for summary judgment dismissing [the] Labor Law § 240 (1) cause of action" ( Filannino, 34 AD3d at 281-282).
Here, as in Filannino, defendants bring an untimely cross motion seeking summary judgment dismissing causes of action that are not the subject of plaintiff's timely motion (i.e., common-law negligence and sections 200 and 241 (6) of the Labor Law). As such, the court declines to consider defendants' untimely cross motion.
As a further reason to decline consideration of defendants' cross motion, defendants have not shown good cause for their three-week delay in making the cross motion. The fact that defendants' counsel was preparing for and on trial does not constitute "good cause" ( see e.g. Bejarano v City of New York , 18 AD3d 681 , 682 [2d Dept 2005] ["large caseload" was not good cause]). Absent a showing of good cause, "a court has no discretion to entertain even a meritorious, nonprejudicial summary judgment motion" ( Hesse v Rockland County Legislature , 18 AD3d 614, 614 [2d Dept 2005], citing Brill).
CONCLUSION
Accordingly, it is
ORDERED that plaintiff's motion for partial summary judgment on the issue of defendants' liability under Labor Law § 240 (1) is granted, with the determination of damages to await trial; and it is further
ORDERED that defendants' cross motion is denied.
This Constitutes the Decision and Order of the Court.