Opinion
7458/2012
10-05-2016
Jose Reyes, Plaintiff, v. 105-05 69th Avenue LLC, Rose Associates LLC and Adelphi Restoration Corp., Defendant(s). Adelphi Restoration Corp., Third-Party Plaintiff, v. CFC Contractor Group, Inc., Third-Party Defendant. Rose Associates LLC and 105-05 69th Avenue LLC, Second-Third-Party Plaintiff, v. CFC Contractor Group, Inc., Second-Third-Party Defendant.
Attorney for Plaintiff Rhonda Katz, Esq. Jacob Orensky & Associates, PLLC 149 east 149th Street Bronx, NY 10451 (718) 993-9999 Attorney for Defendant/Third-Party Plaintiff Nicoletti, Gonson, Spinner & Owen, LLP 555 Fifth Avenue 8th Floor New York, NY 10017 (212) 730-7750 Attorneys for Defendants/Second-Third-Part Plaintiffs Michelman & Robinson, LLP 800 Third Avenue, 24th Floor New York, NY 10022 (212) 730-7700 Attorneys for Third-Party Defendants/Second-Third-Party Defendant Montfort, Healy, McGuire & Salley, LLP 840 Franklin Avenue P.O. Box 7677 Garden City, NY 11530 (516) 747-4082
Attorney for Plaintiff Rhonda Katz, Esq. Jacob Orensky & Associates, PLLC 149 east 149th Street Bronx, NY 10451 (718) 993-9999 Attorney for Defendant/Third-Party Plaintiff Nicoletti, Gonson, Spinner & Owen, LLP 555 Fifth Avenue 8th Floor New York, NY 10017 (212) 730-7750 Attorneys for Defendants/Second-Third-Part Plaintiffs Michelman & Robinson, LLP 800 Third Avenue, 24th Floor New York, NY 10022 (212) 730-7700 Attorneys for Third-Party Defendants/Second-Third-Party Defendant Montfort, Healy, McGuire & Salley, LLP 840 Franklin Avenue P.O. Box 7677 Garden City, NY 11530 (516) 747-4082 Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of the plaintiff Jose Reyes (hereinafter injured plaintiff or Reyes), filed on March 11, 2016, under motion sequence number seven, for an order pursuant to CPLR 3212, granting partial summary judgment on liability on the third cause of action in his favor and against the defendants 105-05 69th Avenue LLC (hereinafter 105-05), Rose Associates LLC (hereinafter Rose) and Adelphi Restoration Corp. (hereinafter Adelphi) on his Labor Law § 240 (1) claims. 105-05 and Rose have jointly opposed the motion (hereinafter jointly referred as the owner defendants). Adelphi has also opposed the motion.
Notice of Motion
Affirmation in Support
Exhibits A-L
Affirmation in Opposition
Exhibits 1-3
Affirmation in Opposition
Exhibits 1-4
Reply Affirmations BACKGROUND
On April 6, 2012, Reyes commenced the instant action for damages for personal injuries by filing a summons and verified complaint with the Kings County Clerk's office. 105-05 joined issue by verified answer dated August 1, 2012, Rose joined issue by verified answer dated August 1, 2012, and Adelphi joined issue by verified answer dated May 22, 2012.
The complaint contains sixty-three allegations of fact in support of four causes of action. The first cause of action alleges general negligence. The second cause of action alleges negligence under Labor Law § 200. The third cause of action alleges negligence under Labor Law § 240 (1) and § 240 (2). The instant motion seeks summary judgment only as to the third cause of action. Accordingly, the court will only analyze the Labor Law § 240 (1) claim.
The complaint, bill of particulars and plaintiff's deposition testimony alleges the following salient facts: on October 19, 2011, plaintiff was as an employee of CFC Contractor Group (hereinafter CFC) working on a restoration project at 105-05/105-15 69th Avenue, Forest Hills, New York (hereinafter the subject premises). Rose was the project manager for the restoration job. The restoration project involved pointing brick as well as removing and replacing the lintels from around the windows. 105-05 retained Adelphi as the general contractor on the premises who in turn retained the plaintiff's employer, third-party defendant CFC.
The following facts are undisputed. 105-05 owned the subject premises. Rose was the managing agent for the subject premises. 105-05 retained Adelphi as the general manager for the restoration project. Adelphi hired CFC as the subcontractor.
At the time of the incident the injured plaintiff was standing on the lower level of a suspended rope scaffold platform. As the scaffold was being raised it became stuck on the fire escape which caused it to detach from its supportive hook and one side fall down. The rope scaffold collapse caused the plaintiff to fall and sustain personal injuries. It is alleged that 105-05, Rose, and Adelphi caused the accident by failing to provide adequate protection from a height related risk in violation of Labor Law § 240 (1).
LAW APPLICATION
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Giuffrida v Citibank, 100 NY2d 72 [2003]). The prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings (Miller v Village of E. Hampton, 98 AD3d 1007 [2nd Dept 2012] citing Foster v Herbert Slepoy Corp., 76 AD3d 210, 214 [2nd Dept 2010]). A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 923 [1993]). If a prima facie showing has been made the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hospital, 68 NY2d 320 at 324 [1986]).
A party opposing a motion for summary judgment is obligated "to lay bear his proofs" to sufficiently demonstrate, with admissible evidence, that a triable issue of fact will exist (Friends of Animals, Inc. v Associated for Manufacturers, Inc., 46 NY2d 1065 [1979]). A genuine issue of fact may not be demonstrated by using mere conclusions, expressions of hope or unsubstantiated allegations or assertions (Amatulli v Delhi Constr. Corp., 77 NY2d 525 [1991]). Labor Law § 240 (1)
Labor Law § 240 (1) imposes a nondelegable duty and absolute liability upon owners and contractors for failing to provide safety devices necessary for workers subjected to elevation-related risks in circumstances specified by the statute (see Rocovich v Consolidated Edison Co., 78 NY2d 509 [1991]). To recover, the plaintiff must have been engaged in a covered activity "the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure" (Labor Law § 240 (1) ; see Panek v County of Albany, 99 NY2d 452, 457 [2003]) and must have suffered an injury as "the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]). To impose liability pursuant to Labor Law § 240 (1), there must be a violation of the statute and that violation must be a proximate cause of the plaintiff's injuries (Corchado v 5030 Broadway Properties, LLC, 103 AD3d 768 [2nd Dept 2013]). Where there is no statutory violation, or where the plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery under Labor Law § 240 (1) ( Id.).
To hold a party liable, as an agent of general contractor, for violations of the scaffold law and statute requiring owners and contractors to provide reasonable and adequate protection and safety for workers engaged in construction, demolition, and excavation work, there must be a showing that it had the authority to supervise and control the work. The determinative factor is whether the party had the right to exercise control over the work, not whether it actually exercised that right (Bakhtadze v Riddle, 56 AD3d 589 [2nd Dept 2008]).
In support of the instant motion the plaintiff submitted, among other things, his deposition transcript. Plaintiff testified that the morning of the accident he told his supervisor, Carlos Friere (hereinafter Friere), that the weather was too bad to perform work at the subject premises. However, Friere insisted that work be performed as he was concerned about the progress of the job. Plaintiff and two other workers ascended the pipe scaffold onto the rope scaffold and began to raise the rope scaffold. While the scaffold was being raised, the portion of the rope scaffold that the plaintiff was standing on became stuck on the fire escape. The scaffold then detached from its supportive hook and collapsed causing the plaintiff to fall and sustain personal injuries.
The plaintiff's deposition transcript establishes his prima facie burden on a Labor Law § 240 (1) claim that he was engaged in work covered under the statute and suffered an injury as "the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (see Runner, 13 NY3d 599, 603 [2009] see also Durmiaki v International Bus. Machs. Corp. 85 AD3d 960 [2nd 2011]).
Accordingly, the burden shifts to the defendants to raise a triable issue of fact (Alvarez v Prospect Hospital, 68 NY2d 320 at 324 [1986]). In opposition to the motion the owner defendants and Adelphi rely on the deposition transcript of Friere, among other things. Friere testified to the following. He was employed by CFC as a supervisor and supervised the plaintiff at the subject premises. There was a pipe scaffold, as well as, a rope scaffold. The rope scaffold was utilized to access upper floors and functioned with a pulley system. However, the rope scaffold that was on the subject premises was not yet completed or in service. On the date of the accident it was raining and he instructed plaintiff and another worker to secure the scaffold to the building as it was banging on the windows. Due to the inclement weather no pointing work was to be done on the date of the accident. Friere saw the plaintiff on the pipe scaffold. He was approximately fifteen feet from the rope scaffold at the time of the accident. He did not actually see the accident. However, he saw Reyes standing on the pipe scaffold six feet off of the ground. Friere turned his head to look at a different location and heard a bang. He assumed that Reyes jumped from the pipe scaffold or threw the tools down from the platform. The rope scaffold was on the floor the entire time that Reyes was on the pipe scaffold and after his fall.
In the instant matter Reyes is the only witness with direct knowledge of the accident. However, sufficient circumstantial evidence can raise a triable issue of fact in opposition to a movant's prima facie showing of entitlement to summary judgment (Garrido v International Business Mach. Corp., 38 AD3d 594 [2nd Dept 2007]). Friere's deposition transcript contains enough circumstantial evidence to raise a triable issue of fact as to how the accident occurred. Assuming Friere's version of the accident as true then the accident occurred differently than the plaintiff alleges.
As discussed above, the function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist (Pearson v Dix McBride, LLC, 63 AD3d 895, 895 [2nd Dept 2009][internal citations omitted]).
Accordingly, the plaintiffs motion is denied.
CONCLUSION
Jose Reyes' motion seeking an order granting partial summary judgment on liability on the third cause of action in his favor and against the defendants 105-05 69th Avenue LLC, Rose Associates LLC and Adelphi Restoration Corp. (hereinafter Adelphi) on his Labor Law § 240 (1) cause of action is denied.
The foregoing constitutes the decision and order of this Court. Enter: October 5, 2016 J.S.C.