Opinion
No. 2655/13.
07-01-2015
Oscar ANGUIZACA and Martha Suarez, Plaintiff(s), v. TISHMAN INTERIORS CORPORATION and Verizon New York Inc., Defendant(s).
Jorge Roman, Esq., Robert A. Cardali & Assoc., LLP, New York, Attorney for Plaintiff. Thomas J. Abernethy, Esq., Cullen and Dykman LLP, New York, Attorney for Defendants.
Jorge Roman, Esq., Robert A. Cardali & Assoc., LLP, New York, Attorney for Plaintiff.
Thomas J. Abernethy, Esq., Cullen and Dykman LLP, New York, Attorney for Defendants.
Opinion
FRANCOIS A. RIVERA, J.
Recitation in accordance with CPLR 2219(a) of the papers considered on the notice of motion of the plaintiffs Oscar Anguizaca and Martha Suarez, filed on February 19, 2015, under motion sequence number five, for an order pursuant to CPLR 3212, (1) granting partial summary judgment on liability in their favor and against the defendants Tishman Interiors Corporation (hereinafter Tishman) and Verizon New York, Inc (hereinafter Verizon) on the
Labor Law 240 (1) claims. The defendants have jointly opposed the motion.
Notice of Motion
Affirmation in support
Exhibits A–L
Affirmation in Opposition
Exhibit A
Reply Affirmation
BACKGROUND
On February 13, 2013, plaintiff Oscar Anguizaca (hereinafter the injured plaintiff or Anguizaca) and Martha Suarez (hereinafter Suarez), his wife suing derivatively, commenced the instant action for damages for personal injuries by filing a summons and complaint against the defendants Tishman and Verizon. Tishman and Verizon joined issue by a joint answer dated March 20, 2013.
The complaint contains forty seven allegations of fact in support of five causes of action for damages for personal injuries and derivative claims. The complaint asserts that on February 5, 2013, plaintiff was working at 102–108 Broad Street, New York, New York (hereinafter the premises). At the time of the incident plaintiff was removing ductwork from the ceiling of the premises as part of demolition work. The plaintiff was an employee of non-party Calvin Maintenance, Inc. Tishman was the general contractor on the premises and Verizon owned the premises. Plaintiff was on an eight foot A-frame ladder when a part of the duct fell from the ceiling and hit the bottom of the ladder. The duct caused the ladder to move which then caused the plaintiff to fall and sustain personal injuries. It is alleged that Tishman and Verizon caused the accident by failing to provide a safe work place, proper safety devices in violation of Labor Law § 200, 240(1) and 241(6).
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 N.Y.2d 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 N.Y.2d 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 N.Y.2d 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 N.Y.2d 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 N.Y.2d 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 N.Y.2d 525 [1991] ).
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 N.Y.2d 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 N.Y.2d 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] ).
Labor Law 240(1) as to Tishman:
In the instant action plaintiff has submitted the deposition transcripts of the plaintiff, and Charles Vitchers (Vitchers) and Antonio Cusenza (Cusenza) on behalf of Tishman. The deposition transcripts establish that Tishman was acting as the general contractor for the work on the premises. Accordingly, Labor Law 240(1) applies to Tishman. Plaintiff's deposition transcript establishes that plaintiff 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] ). In situations where a worker is struck by a falling object, even if his specific task was to remove that object, he has met his prima facie burden showing that the object was not properly secured (see Durmiaki v. International Bus. Machs. Corp. 85 AD3d 960 [2nd Dept 2011] ; Kosavick v. Tishman Constr. Corp. of NY, 50 AD3d 287 [1st Dept 2008] ). Therefore, plaintiff has met his prima facie burden under Labor Law 240(1).
The burden now shifts to the owner to come forward with sufficient evidence to raise a triable issue of fact (see Ernest v. Pleasantville Union Free School Dist., 28 AD3d 419, 811 N.Y.S.2d 573 [2nd Dept 2006] ). Tishman initially opposes plaintiff's motion on the technical reason that the deposition transcripts were not signed and therefore not admissible. The deposition transcript of plaintiff and that of the other deponents, as annexed to plaintiffs' motion, are certified by the applicable court reporter. As a result of the certification, the deposition transcripts are admissible (see CPLR 3116[b] ).
Alternatively, Tishman also asserts that plaintiff has failed to meet his burden in that ducts are not items that need to be secured. As discussed above, duct work being removed in the manner that plaintiff was working requires proper securing (see Durmiaki v. International Bus. Machs. Corp. 85 AD3d 960 [2nd Dept 2011] ).
Tishman also asserts that even if the ducts required securing, that plaintiff was the sole proximate cause of his accident. In order for Tishman to defeat plaintiff's motion on the basis that plaintiff was the sole proximate cause, it must raise a triable issue of fact as to whether the plaintiff had adequate safety devices available; that he knew both that they were available and that he was expected to use them; that he chose for no good reason not to do so; and that had he not made that choice he would not have been injured (Auriemma v. Biltmore Theatre, 82 AD3d 1, 10 [1st Dept 2011] [internal quotation marks omitted] ). Tishman fails to submit any evidence which raises an issue of fact as to whether plaintiff was the sole proximate cause of the accident. Accordingly, Tishman has failed to raise a triable issue of fact.
Labor Law 240(1) as to Verizon:
Plaintiff alleges that Verizon is liabile under Labor Law 240(1) as the owner of the premises. Verizon denied ownership of the premises in their answer. In support of the plaintiff's contention that Verizon is the owner of the premises he submits documents described as a “cost affidavit” and a “work permit application.” Plaintiff does not submit a deed to the property, the most conclusive evidence of ownership nor a deposition from a witness from Verizon. In light of Verizon's denial of ownership and lack of any submission of an affidavit or deposition from someone with personal knowledge as to the ownership of the premises, the plaintiff has failed to meet his burden establishing that Verizon is liable under Labor law 240(1) as an owner. As discussed above, plaintiff has established all other elements establishing liability under Labor Law 240(1) as to the owner of the premises. Accordingly, the motion for summary judgment is denied, regardless of the sufficiency of Verizon's opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985] ).
CONCLUSION
Plaintiff's partial motion for summary judgment under Labor Law 240(1) is granted as to Tishman.
Plaintiff's partial motion for summary judgment under Labor Law 240(1) is denied as to Verizon.
The foregoing constitutes the decision and order of this Court.