Opinion
No. 00 Civ. 4595 (LTS) (FM)
December 18, 2001
Thomas K. Lindgren, Esq., O'KEEFFE LINDGREN, LLP, White Plains, New York, Attorneys for Plaintiffs.
Alfred E. Page, Jr., Esq., CERUSSI SPRING, P.C., Attorneys for Defendant Signature Construction, Inc.
Christopher A. South, Esq., TROMELLO SIEGEL, New York, New York, Attorney's for Defendant, 500 Mamaroneck Avenue Associates.
OPINION
Plaintiffs Nicola Santoro ("Santoro" or "Plaintiff") and his wife Mari (collectively, "Plaintiffs") bring this action against Defendants 500 Mamaroneck Avenue ("Mamaroneck") and Signature Construction, Inc. ("Signature") (collectively, "Defendants") to recover damages for injuries allegedly sustained by Santoro in an accident alleged to have occurred at an interior building construction site located at 500 Mamaroneck Avenue in Harrison, New York, on October 27, 1998. Plaintiff asserts New York statutory claims, as well as a claim for common law negligence. Plaintiffs wife, Mari Santoro, brings an additional claim for loss of consortium. Mamaroneck has filed a cross-claim against Signature for indemnification. Plaintiffs invoke the Court's diversity jurisdiction pursuant to 28 U.S.C. § 1332.
This matter comes before the Court on: 1) Plaintiffs' motion pursuant to Federal Rule of Civil Procedure 41(a)(2) to dismiss the action as against defendant Mamaroneck; 2) Plaintiff's motion for summary judgment with respect to liability on Santoro's claim asserted pursuant to section 240(1) of the Labor Law of the State of New York; and 3) Mamaroneck's cross-motion for summary judgment on Santoro's claims for negligence and for violations of New York Labor Law Section 200.
The Court has considered thoroughly all submissions and arguments related to these motions and the decision to be rendered reflects such consideration. For the following reasons, Plaintiffs' motion to dismiss as to defendant Mamaroneck is granted and Plaintiff's motion for summary judgment is granted as against defendant Signature. Defendant Mamaroneck's cross-claim is dismissed, and its cross-motion for summary judgment is denied, for lack of subject matter jurisdiction.
BACKGROUND
According to the complaint filed in this action Plaintiff Nicola Santoro, a resident of Connecticut, was an employee of Saturn Interiors of Connecticut or Saturn Interiors, Ltd. ("Saturn"), a subcontractor to defendant Signature. (Compl. ¶¶ 4, 22, 24.) Defendant Mamaroneck, which maintains a principal place of business in Westchester County, New York, hired defendant Signature, which maintains a principal place of business in New York, New York, to perform construction work, labor and services upon premises located at 500 Mamaroneck Avenue in Westchester. (Id. at ¶¶ 8, 11, 18, 19.) Defendant Signature was the general contractor for the construction and alteration work being performed at 500 Mamaroneck Avenue. (Id. at ¶ 19.) Plaintiff alleges that, on the morning of October 27, 1998, when he was working upon a ladder at the premises located at 500 Mamaroneck Avenue, he fell from the ladder when the ladder fell out from under him, and that, as a result, he sustained injuries. (Id. at ¶¶ 29, 32.)
Plaintiffs invoke the diversity jurisdiction of this court pursuant to 28 U.S.C. § 1332, which provides in pertinent part that:
(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between —
(1) citizens of different States. . . .
28 U.S.C.A. § 1332 (West Supp. 2001). In support of the jurisdictional allegation, the complaint asserts that Plaintiffs are "residents of the County of Fairfield, State of Connecticut," (id. at ¶ 4), and that Defendants are either New York corporations or foreign corporations authorized to do business in New York, each with its principal place of business in New York. (Id. at ¶¶ 6-11.) Defendant Mamaroneck, a general partnership, subsequently advised the Court that one of the members of the partnership is a resident of Connecticut, the same state of which Plaintiffs were residents at the time of the commencement of this action. (Letter to the Court dated August 2, 2001.) The Court then ordered Plaintiffs to file and serve evidentiary material sufficient to demonstrate complete diversity of citizenship. Plaintiffs did not file and serve such evidentiary material, but instead moved for entry of dismissal with prejudice as to defendant Mamaroneck, under Federal Rule of Civil Procedure 41, seeking to preserve this Court's jurisdiction of their claims against defendant Signature. The Court deems Plaintiffs' Rule 41 motion a concession of the lack of diversity of citizenship between Plaintiffs and defendant Mamaroneck.
Mamaroneck has proffered its consent to the dismissal Plaintiffs seek. (Letter to the Court dated August 22, 2001.) Signature, however, opposes Plaintiffs' dismissal motion as to defendant Mamaroneck, contending that the Court lacks subject matter jurisdiction to address the question of dismissal pursuant to Rule 41(a)(2) as to fewer than all defendants when diversity is lacking and that dismissal of the entire action for lack of subject matter jurisdiction is required. (Mem. of Law and Ex. on Behalf of Def. Signature Construction, Inc. in Opp'n at 3-4.)
DISCUSSION
Motion to Dismiss as to Defendant Mamaroneck
Notwithstanding the current absence of diversity jurisdiction, the Court has authority to determine whether the non-diverse party was necessary and indispensable under Rule 21 of the Federal Rules of Civil Procedure. "Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just." Fed.R.Civ.P. 21. Rule 21 permits a federal district court to retain diversity jurisdiction over a case by dropping the non-diverse party, provided that the party is not indispensable or necessary. Newman-Green, Inc. v. Alfonso-Larrain, 490 U.S. 826, 832(1989). Indeed, the law is now well settled that dismissal of non-diverse parties to preserve a court's jurisdiction is proper regardless of the procedural mechanism employed, unless the dismissed parties are indispensable to the action under Fed.R.Civ.P. 19." Mutual Benefit Insurance Company in Rehabilitation v. Carol Management Corporation, No. 93 Civ. 1991(LAP), 1994 WL 570154, at *1 (S.D.N.Y. Oct. 13, 1994).
Here, Plaintiffs' rights are not inexorably intertwined with Mamaroneck's. There is no risk that either Plaintiffs or Signature would be subject to double, multiple or inconsistent obligations if Plaintiffs' claims are dismissed with prejudice as against Mamaroneck and the federal action proceeds against Signature. See Delgado v. Plaza Las Americas, Inc., 139 F.3d 1 (1st Cir. 1998); Travelers Indemnity Company of Connecticut v. The Losco Group, 150 F. Supp.2d 556, 564 (S.D.N.Y 2001). The Court can thus consider Plaintiffs' Rule 41 motion to dismiss.
Rule 41 specifies the conditions under which an action may be dismissed. Once a defendant has interposed an answer or a motion for summary judgment, a plaintiff cannot dismiss an action voluntarily, even with prejudice, without leave of court. Rather, a plaintiff seeking such a dismissal must move for a court order pursuant to Rule 41(a)(2). Rule 41(a)(2) provides in pertinent part that:
[A]n action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper . . . Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.
Fed.R.Civ.P. 41(a)(2). In Zagano v. Fordham University, 900 F.2d 12 (2d Cir. 1990), the Second Circuit summarized the factors relevant to the consideration of a motion to dismiss, including the plaintiffs diligence in bringing the motion; any "undue vexatiousness" on plaintiffs part; the extent to which the suit has progressed, including the defendant's effort and expense in preparation for trial; the duplicative expense of relitigation; and the adequacy of plaintiff's explanation for the need to dismiss. See also D'Alto v. Dahon California, Inc., 100 F.3d 281, 283 (2d Cir. 1996). A Rule 41(a)(2) motion is addressed to the sound discretion of the district court. See Zagano, 900 F.2d at 14.
Plaintiffs seek to dismiss this action with prejudice as against defendant Mamaroneck. Such a dismissal precludes further litigation of Plaintiffs' claims against that defendant. The Court finds that any prejudice to the remaining defendant, Signature, if relevant to the analysis, is minimal, and that the interests of judicial economy favor defendant Mamaroneck's dismissal to support the Court's diversity jurisdiction to determine the merits of the action as against defendant Signature. Accordingly, Plaintiffs' motion for dismissal with prejudice pursuant to Rule 41(a)(2) is granted.
Once a party has been dropped, the Court reads the complaint as if that party had never been included, for purposes of determining the existence of subject matter jurisdiction.
[O]nce subject matter jurisdiction is `cured' by an amendment, courts regularly have treated the defect as having been eliminated from the outset of the action. In other words, where a change in parties, necessary to the existence of jurisdiction, is appropriate and is made (even on or after appeal), appellate courts have acted as if the trial court had jurisdiction from the beginning of the litigation.E.R. Squibb Sons, Inc. v. Lloyd's Co., 241 F.3d 154, 163 (2d Cir. 2001) (citing Newman-Green. Inc. v. Alfonzo-Larrain, 490 U.S. 826, 829(1989)). There is no dispute as to complete diversity of citizenship between Plaintiffs and Signature. Accordingly, the Court may now consider Plaintiffs' motion for summary judgment against Signature, the remaining defendant. Mamaroneck's cross-claim will be dismissed without prejudice, and its cross-motion for summary judgment on Santoro's claims for negligence and for violations of New York Labor Law Section 200 will be denied for lack of subject matter jurisdiction.
Plaintiffs' Motion for Summary Judgment
Santoro seeks summary judgment with respect to liability on his claim pursuant to New York Labor Law section 240(1). The parties have submitted their respective statements of material facts pursuant to 56.1 of the Local Civil Rules of this Court. Plaintiff submitted a statement of undisputed facts ("Pl.'s Stmt"), and defendant Signature submitted a counter-statement of undisputed facts ("Def.'s Cntr"). The Court finds that there is no genuine dispute as to the following facts.
On October 27, 1998, defendant Signature was the General Contractor for the construction and alteration work being performed in the premises located at 500 Mamaroneck Avenue. (Pl.'s Stmt at ¶ 2.) On October 27, 1998, Santoro was working as a carpenter for Saturn Construction pursuant to a contract with defendant Signature. (Id. at ¶ 3.) That same day, Santoro was injured when a rung on the ladder he was working on collapsed, causing him to fall. (Id. at ¶¶ 4, 5.) The whereabouts of the ladder after the incident have never been disclosed. (Def.'s Cntr at ¶¶ 6, 7.) The only other Saturn employee at the job site on the date of the alleged occurrence was a co-worker who was not in the room when and where the alleged accident occurred, and who was not a witness to the alleged accident. (Id. at ¶ 2.) The accident reports annexed to Plaintiff's Memorandum of Law and Exhibits were prepared by Saturn, Plaintiff's employer, in conjunction with Plaintiffs. (Id. ¶ 1.)
Summary judgment shall be granted in favor of a moving party where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the burden of establishing the absence of any genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256(1986). When considering the motion for summary judgment, the Court does not engage in finding of facts or weighing of credibility, but determines if any material questions of fact are in dispute after resolving all ambiguities and drawing all justifiable inferences in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150(2000); Anderson, 477 U.S. at 250; Carlton v. Mystic Transportation Inc., 202 F.3d 129, 133 (2d Cir. 2000). Conclusory allegations, conjecture and speculation will not, however, create a genuine issue of fact. Kerzer v. Knigly Manufacturing, 156 F.3d 396, 400 (2d Cir. 1998).
A genuine issue of material fact exists if"a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248;Converse v. General Motors Corp., 893 F.2d 513, 514 (2d Cir. 1990). If there is evidence in the record as to any material fact from which an inference could be drawn in favor of the non-movant, summary judgment is inappropriate. Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991). The moving party must initially satisfy a burden of demonstrating the absence of a genuine issue of material fact, which can be done merely by pointing out that there is an absence of evidence to support the nonmoving party's case. Celotex Corp., v. Catrett, 477 U.S. 317, 323-25(1986). The nonmoving party then must meet a burden of coming forward with "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e), by "a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. See also Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990), quoting Fed.R.Civ.P. 56(e); National Union Fire Ins. Co. v. Turtur, 892 F.2d 199, 203 (2d Cir. 1989).
Labor Law Section 240 provides in relevant part that:
All contractors and owners and their agents . . . in the erection, demolition repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.
N.Y. Labor Law § 240(1) (McKinney 1986). Section 240 imposes absolute liability on owners and contractors and removes the worker's contributory fault as an issue. Section 240 was adopted to provide protection against risks "inherent in [a] particular task because of the relative elevation at which the task must be performed or at which materials or loads must be positioned or secured." Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514 (N.Y. 1991). "[T]he contemplated hazards [of Section 240] are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured." Id. Hazards within the scope of Section 240 are accidents 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 N.Y.2d 494, 501 (N.Y. 1993). "Labor Law § 240(1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person." Id.
To prevail on a motion for summary judgment on the issue of liability under Section 240, a plaintiff must demonstrate that: 1) the statute has been violated; and 2) the violation was the proximate cause of the plaintiffs injuries. Garcia v. Delta Airlines, Inc., No. 1998 Civ. 7249 (JG), 2001 WL 91619, at *4 (E.D.N.Y. Jan. 23, 2001). "In cases where a plaintiff falls from a ladder at a worksite covered under § 240, if the `protective device' proved inadequate, proximate cause is proved as a matter of law." Id. In this case, plaintiff Santoro was injured while using a ladder provided to assist him with work being performed under the supervision of defendant Signature. Plaintiff's assertion that the rung of the ladder collapsed is uncontroverted. Plaintiff Santoro has thus established a prima facie case of a violation of Section 240(1), in that the ladder did not provide "proper protection."
Defendant Signature argues, however, that there is a material issue of fact as to how the alleged incident occurred, as Plaintiff's accident was unwitnessed. Signature asserts that there are inconsistencies in Plaintiff's accounts of the incident and that there is an issue of fact as to whether there was a ladder involved in the accident. Signature also argues that this action may not be governed by Section 240 because Plaintiff was not subject to an elevation-related risk.
Plaintiff's version of the incident is supported by statements made by Steven Sirois, Saturn's field supervisor, in an affidavit submitted on behalf of defendant Signature. Sirois indicates that Plaintiff was injured at the site on October 27, 1998. (Affidavit of Steven Sirois, dated August 10, 2001, at ¶ 5.) Sirois did not witness the incident leading to the injury (id. at ¶ 6.), but he interviewed Plaintiff several hours following the accident. (Id. at ¶ 10.) Sirois' affidavit relates that he returned to the job site to inspect the ladder and confirmed what Plaintiff told him. (Id.) Moreover, accident reports recite that a rung of the ladder broke causing Plaintiff to fall and injure himself. (Memorandum of Law and Exhibits on Behalf of Defendant, Signature Construction Group Inc., in Opposition to Plaintiffs' Motion for Summary Judgment, Exhibits B and C.) Signature proffers no evidence to the contrary arguing, instead, that there were no witnesses other than Plaintiff to the alleged fall and that a jury could reject Plaintiff's testimony.
Under these circumstances, the fact that Plaintiff's fall was apparently unwitnessed does not preclude summary judgment. Defendants' assertion that there was no ladder involved in the accident is based on speculation, unsupported by facts in the record, and is thus insufficient to defeat the summary judgment motion. Summary judgment may be granted on a Section 240 claim "when the defendant has not "presented any evidence of a triable issue of fact relating to the prima facie case or to plaintiff's credibility even when the plaintiff is the sole witness to the accident.'" Hendrickson v. Marriott International, No. 93 Civ. 7991 (LLS), 2001 WL 789296, at *2 (S.D.N.Y. July 12, 2001) (citing Klein v. City of New York, 652 N.Y.S.2d 723, 724 (N Y 1996)). See also McCann v. Central Synagogue, 720 N.Y.S.2d 459, 460 (1st Dep't 2001); Smith v. Pergament Enter. of S.I., 271 A.D.2d 870, 872 (3rd Dep't 2000); Barrowman v. Niagra Mohawk Power Corporation, 222 A.D.2d 1029 (4th Dep't 1995).
The inconsistencies Defendant cites are not sufficiently material to warrant denial of the motion for summary judgment. While it is true that there were minor inconsistencies between Plaintiff's statements and the statements by Steven Sirois, his supervisor, including whether Plaintiff was mounting the ladder rather than dismounting, and whether it was the second step that gave away or the first step, these do not undermine the central factual element of Plaintiff's Section 240 claim: that Plaintiff was injured while working with a ladder, on account of the collapse of a rung of that ladder. Nor do they suffice to place Plaintiffs credibility at issue and thereby raise a "genuine issue of material fact." Defendant's effort to draw from Plaintiff's delay in seeking treatment for the alleged back injury an inference that Plaintiff's account of the accident is not credible is also insufficient, in the face of the evidence proffered by Plaintiff, to create a genuine issue of material fact. Summary judgment is appropriate if Plaintiff's account of the accident is uncontroverted or if Defendants are unable to show, other than by speculation without factual support, that a bona fide issue exists. "[M]ere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment." Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir. 1996).
Signature also that this action may not be governed by Section 240 because there was no elevation-related risk. Signature notes that, according to the Sirois affidavit, "it would not have been necessary for Mr. Santoro to stand any higher than the first step, approximately ten inches above floor level, on the ladder to install the laser device" (Affidavit of Sirois at ¶ 9.), and argues that Section 240 should not apply because the elevation involved was minimal. "[W]hether a danger is within the contemplation of Labor Law § 240(1) cannot be measured exclusively in terms of inches, but must be measured in terms of legislative intent." Dilluvio v. City of New York, 264 A.D.2d 115, 120-21 (1st Dep't 2000) (recognizing that falls from low heights have been found to fall within the purview of Section 240(1) but declining to hold the statute applicable to the facts presented in that case). The risk to which Plaintiff was exposed to was height-related because he was working on a ladder, a device specifically within the contemplation of Section 240(1). The Court finds that Santoro's accident is of the type that was intended to be avoided by the safety precautions set forth in Section 240.
The Court also finds, on the basis of the uncontroverted evidentiary record, that the statute was violated and that the violation was, as a matter of law, the proximate cause of Plaintiff's injuries. Plaintiff's motion for summary judgment against defendant Signature under Section 240(1) is therefore granted.
CONCLUSION
For the foregoing reasons, Plaintiffs' motion to dismiss as to defendant Mamaroneck is granted and Plaintiff's motion for summary judgment on the issue of liability under Section 240(1) of the New York State Labor Law is granted as against defendant Signature. Defendant Mamaroneck's cross-claim is dismissed, and its motion for summary judgment is denied for lack of subject matter jurisdiction.
IT IS SO ORDERED.