Bedoya v. Hackley Sch.

Full title: Liliana Bedoya, Plaintiff, v. Hackley School and D.H.I. CONSTRUCTION…

Court: Supreme Court, Westchester County

Date published: Sep 20, 2017

2017 N.Y. Slip Op. 51220 (N.Y. Sup. Ct. 2017)

Opinion

60169/15

09-20-2017

Liliana Bedoya, Plaintiff, v. Hackley School and D.H.I. CONSTRUCTION SERVICES, INC., Defendant. HACKLEY SCHOOL and D.H.I. CONSTRUCTION SERVICES, INC.,Third-Party Plaintiffs, v. KENCAL MAINTENANCE CORP.,Third-Party Defendant.

Tara A. Tully, Esq. Tully Law Office 1830 Commerce Street Yorktown Heights, New York 10598 Attorneys for Plaintiff Danielle Tauber, Esq. Wilson Elser Moskowitz Edelman & Dicker 1133 Westchester Avenue White Plains, New York 10604 Attorneys for defedant Hackley School Otto, Cheng, Esq. Milber Makris Plousadis & Seiden LLP 709 Westchester Avenue White Plains, New York 10604 Attorneys for defendant D.H.I. Construction Services, Inc.

David F. Everett, J.

Tara A. Tully, Esq. Tully Law Office 1830 Commerce Street Yorktown Heights, New York 10598 Attorneys for Plaintiff Danielle Tauber, Esq. Wilson Elser Moskowitz Edelman & Dicker 1133 Westchester Avenue White Plains, New York 10604 Attorneys for defedant Hackley School Otto, Cheng, Esq. Milber Makris Plousadis & Seiden LLP 709 Westchester Avenue White Plains, New York 10604 Attorneys for defendant D.H.I. Construction Services, Inc. David F. Everett, J.

The following papers were read on the motions: 001 DHI Notice of Motion/Affirmation in Supp/Exhibits A-N/Memorandum of Law 002 Plaintiff Notice of Cross Motion/Affirmation in Supp of Cross Motion and in Opp to Motion/Exhibits A-B DHI Affirmation in Opp to Cross Motion Reply Affirmation to DHI Opp to Cross Motion Reply Affirmation to Hackley Opp to Cross Motion 003 Hackley Notice of Motion/ Affirmation in Supp/Exhibits A-O/Memorandum of Law Plaintiff Affirmation in Opp/Exhibits A-C/Memorandum of Law Reply Affirmation in Further Supp

In this action sounding in Labor Law, defendant D.H.I. Construction Services, Inc. (DHI) moves, under motion sequence number 001, for an order, pursuant to CPLR 3212, granting summary judgment and dismissing the complaint and all cross and counterclaims against it. Plaintiff Liliana Bedoya (Bedoya) cross-moves, under motion sequence number 002, for an order, pursuant to CPLR 3212, granting summary judgment on her Labor Law § 240 (1) claim as to liability. Defendant Hackley School (Hackley) moves, under motion sequence number 003, for an order, pursuant to CPLR 3212, granting summary judgment and dismissing plaintiff's Labor Law and common law negligence claims against it. The motions, under motion sequence numbers 001, 002 and 003, are consolidated for disposition, and upon the foregoing papers, the motions are resolved as set forth below.

The following facts are taken from the pleadings, motion papers, affidavits, documentary evidence and the record, and are undisputed unless otherwise indicated.

Plaintiff commenced the instant action by filing a summons and complaint in the Office of the Westchester County Clerk on June 11, 2015, to recover damages for injuries she allegedly sustained when, on August 22, 2014, she was caused to fall from a ladder at an elevated height while performing commercial cleaning within a building owned, and on the campus of, Hackley, a school located in Tarrytown, New York. At the time of the accident, Bedoya was employed by third-party defendant Kencal Maintenance Corp. (Kencal). The complaint charges DHI and Hackley with violating Labor Law §§ 200, 240 (1), and 241 (6). Issue was joined by service of Hackley's answer with affirmative defenses and cross claims on or about July 14, 2015, and by service of DHI's answer with affirmative defenses and cross claims on or about August 26, 2015. By third-party summons and complaint filed on January 21, 2016, Hackley and DHI impleaded Kencal into the action, and by notice of discontinuance dated February 11, 2016, DHI discontinued its third-party claims against Kencal, without prejudice, due to its failure to appear in the action. After conducting discovery pursuant to the preliminary conference and follow-up compliance conference orders, plaintiff filed a note of issue and certificate of readiness on January 10, 2017.

Currently before the Court are the parties' motions for relief.

The underlying and largely undisputed facts are that, by written contract dated August 25, 2013 (Contract) (notice of cross motion, exhibit A), Hackley hired construction contractor DHI to perform certain renovations, and alterations, including an addition, to the main building on campus, known as Raymond Hall (Project). On or about July 12, 2014, DHI entered into a subcontract with Kencal for the performance of certain post-construction cleaning at Raymond Hall (Subcontract) (aff in opp, exhibit B ). After DHI and its subcontractors performed alterations, painting and the installation of lighting fixtures in several classrooms on the second floor of Raymond Hall, Bedoya and a co-worker were directed to perform cleaning work in those areas. Bedoya's work consisted of cleaning away the dust that resulted from wood cutting within the room. This involved cleaning the tops of the door frames, cleaning the, approximately, 10 to 13 feet high windows, and removing tape from around the windows, doors and lighting fixtures. Kencal provided Bedoya with Windex, a mop, a bucket and a long handled broom with a dust rag tied to the end. When she was directed to the particular classrooms she was assigned to clean, Bedoya was given an eight foot A-frame ladder to use. While the parties disagree as to who owns the ladder, and who provided her with the ladder, it is undisputed that Bedoya was not provided with any other protective or safety device. According to Bedoya, in order to reach the top of the windows, she climbed up the ladder. The accident occurred when, while standing on the second to top step, and extending one arm to clean by the top of one of the windows, the ladder started to move or tilt, as it had done earlier that morning, and then both she and the ladder fell to the floor.

With respect to plaintiff's cross motion for summary judgment on his Labor Law § 240 (1) claim, the statute provides, in relevant part:

[a]ll contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, 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.

Bedoya contends that what happened to her is precisely what the statute was enacted to prevent.

"Labor Law § 240 (1) was designed to prevent those types of accidents in which the . . . 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" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]; Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520 [1985]). The Legislature enacted this statute to protect workers and to place the responsibility for safety practices on those in the best situation to bear that responsibility, the owners, contractors, and their agents. The duty is nondelegable, and one who breaches that duty may be held liable in damages, regardless of whether it actually exercised supervision or control over the work being performed (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 500).

Neither Hackley nor DHI deny their roles as owner and general contractor with respect to the Project, nor do they deny that Bedoya was standing on a ladder doing her assigned work when she fell, and that there were no safety devices in place to protect her from the elevation-related risks. What they dispute is whether Bedoya was performing a task that is covered under Labor Law § 240 (1).

In support of their motions, and in opposition to Bedoya's cross motion, defendants insist that: (1) because most of the Project construction work in the classroom had been completed, the area Bedoya and her partner were cleaning cannot be considered part of a construction site; and (2) because the work is akin to routine dusting and cleaning, it is not a covered activity under the Labor Law. Defendants' arguments are unavailing. The activity at issue is post-construction cleaning in rooms which had been taken down to the studs. It included the removal of tape and wood dust from the tops of door frames, light fixtures and 10 to 13 foot tall windows, and necessitated DHI's engagement of a commercial cleaning service, rather than relying on Hackley's in-house cleaning staff, to accomplish. Inasmuch as the task she was performing at the time of her accident required Bedoya, who says she is 5'4" tall, to stand near the top of an eight foot ladder, the assigned task "created the type of elevation-related risk that Labor Law § 240 (1) was intended to address" (Swiderska v New York Univ., 10 NY3d 792, 793 [2008]). The undisputed lack of protection and safety gear supports Bedoya's claim of entitlement to partial summary judgment on her Labor Law § 240 (1) claim. For their part, defendants have failed to demonstrate entitlement to a dismissal of the claim, and they have failed to demonstrate the existence of a genuine issue of material fact sufficient to preclude summary judgment in plaintiff's favor (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]). Accordingly, Bedoya's cross motion is granted as to liability, and defendants' motions for a dismissal of her Labor Law § 240 (1) claim are denied.

As to Bedoya's Labor Law §§ 200 and 241 (6) claims, it is her contention that the ladder failed and fell over, because it lacked stability, as evidenced by its movement from side to side when she was standing on the second to top step. It is also Bedoya's claim that the ladder was provided for her use by Hackley maintenance and grounds employee, Gregory Maldonado (Maldonado). During her deposition, Bedoya explained that, when they arrived on the Hackley campus the morning of her accident, Maldonado spoke with her and the other Kencal employees, telling them everything they had to do that day, and to call him if they needed anything. Bedoya also testified that she personally watched Maldonado take the subject ladder from another classroom in Raymond Hall before he gave it to her to use to do her work (Bedoya tr at 99, 116).

At his deposition, Maldonado testified that, during the construction period, he was responsible for unlocking doors for the various trade subcontractors, and that he directed the Kencal workers, including Bedoya, to certain classrooms to do their cleaning tasks. Maldonado denied, however, giving Bedoya or anyone else from Kencal a ladder to use. Maldonado explained that, when he heard commotion coming from the classroom, he entered the classroom and saw Bedoya and the ladder laying on the floor, but that he did not recognize the ladder as belonging to Hackley, based on its coloring, and that he does not know what happened to it after the incident. Finally, Maldonado confirmed that, while Hackley does employ its own in-house cleaners to do routine cleaning in the school, Kencal was brought in for about one to two weeks prior to completion of the Project to do post-construction cleaning in Raymond Hall.

DHI's project supervisor and deposition witness, Drew O'Neil, denied any involvement with Kencal or its workers, other than hiring Kencal to handle the post-construction cleaning. He also denied providing equipment for any of the trades involved in the Project.

The Labor Law § 200 cause of action against DHI is dismissed. Although Bedoya relies on DHI's general supervisory duties at the Project, an implicit precondition to imposing a duty on the defendant to provide Bedoya with a safe place to work, is that the defendant charged has the authority to control the activity bringing about her injury (see Comes v New York State Elec. and Gas Corp., 82 NY2d 876, 877 [1993]). Bedoya has produced no evidence that DHI controlled the manner in which she performed her tasks. Additionally, even though it was the general contractor (DHI) that contracted for Kencal's services at the Project, and it "coordinated the contractors at the site, told contractors where to work on a given day, and had the authority to review safety on the site, this conduct does not rise to the level of supervision or control necessary to hold [DHI] liable for [Bedoya's] injuries" (Loicono v Lehrer McGovern Bovis, 270 AD2d 464, 465 [2d Dept 2000]). Liability can only attach where a defendant either exercised supervisory control over a plaintiff's work, or had actual or constructive notice of the dangerous condition which produced the injury (see Sprague v Peckham Materials Corp., 240 AD2d 392, 394 [2d Dept 1997]).

Hackley's motion to dismiss Bedoya's Labor Law § 200 cause of action against it is denied. Where, as here, the plaintiff gave sworn testimony that Hackley, by its employee, Maldonado, provided her with the allegedly defective ladder, Hackley cannot establish, as it must to obtain summary judgment, that it "neither created the alleged danger or defect in the instrumentality nor had actual or constructive notice of the dangerous or defective condition" (Artoglou v Gene Scappy Realty Corp., 57 AD3d 460, 462 [2d Dept 2008]).

Defendants' motions for a dismissal of Bedoya's Labor Law § 241 (6) causes of action against them are denied. Labor Law § 241 (6):

"requires owners and contractors to"provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor. As is the duty imposed by Labor Law § 240(1), the Labor Law § 241 (6) duty to comply with the Commissioner's regulations is nondelegable. Thus, to the extent that plaintiff has asserted a viable claim under Labor Law § 241 (6), [she] need not show that defendants exercised supervision or control over [her] worksite in order to establish [her] right of recovery"

(Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 501-502 [1993] [internal quotation marks and citations omitted]).

Here, Bedoya supports her Labor Law § 241 (6) causes of action with claimed violations of several sections of the Industrial Code that relate to ladders and ladderways, specifically, 12 NYCRR 23-1.21 (b) (1), (3) and (8), and 12 NYCRR 23-1.21 (e) (2), (e) (3) and (e) (5). Section 23-1.21 (b) (1) requires that: "[e]very ladder shall be capable of sustaining without breakage, dislodgment or loosening of any component at least four times the maximum load intended to be placed thereon." Section 23-1.21 (b) (3) requires that: "[a]ll ladders shall be maintained in good condition." Section 23-1.21 (b) (8) requires that: "[a]ll ladders with spreading bases, such as step and trestle ladders, shall be equipped with locking type spreaders to hold such bases rigid when in the open position." With respect to stepladders, Section 23-1.21 (e) (2) requires that: "[s]uch bracing as may be necessary for rigidity shall be provided for every stepladder. When in use every stepladder shall be opened to its full position and the spreader shall be locked." Section 23-1.21 (e) (3) pertains to stepladder footing, and requires that:

"[s]tanding stepladders shall be used only on firm level footings. When work is being performed from a step of a stepladder 10 feet or more above the footing, such stepladder shall be steadied by a person stationed at the foot of the stepladder or such stepladder

shall be secured against sway by mechanical means."

Section 23-1.21 (e) (iv) requires that: [m]etal ladder steps of any stepladder shall be corrugated, knurled, dimpled, coated with skid-resistant materials or otherwise constructed or treated to minimize slipping."

It is undisputed that none of the parties preserved the subject ladder nor did they perform a thorough examination of the subject ladder at any time after the accident. Bedoya's description of the swaying she felt prior to the accident could emanate from a violation of any of the Industrial Code sections listed above, with the exception of Section 23-1.21 (e) (iv), which is inapplicable. Defendants' speculation that the ladder might have belonged to one of the electrical subcontractors, is insufficient to warrant dismissal, as is the assertion that Bedoya caused the accident when her key ring got caught on the ladder. While contributory and/or comparative negligence are valid defenses to this labor law claim, questions of fact exist as to whether a violation of any of the code provisions proximately caused Bedoya's injury (Montalvo v J. Petrocelli Constr. Inc., 8 AD3d 173, 176 [1st Dept 2004]), precluding summary judgment on her Labor Law § 241 (6) cause of action.

Accordingly, it is

ORDERED that the motion of defendant D.H.I. Construction Services, Inc., under motion sequence number 001, is granted to the extent that plaintiff's Labor Law § 200 cause of action is dismissed as against said defendant, and the motion is otherwise denied; and it is further

ORDERED that plaintiff's cross motion, under motion sequence number 002, for partial summary judgment as to liability on her cause of action pursuant to Labor Law 240 (1) is granted and the issue of the amount of a judgment to be entered thereon shall be determined at the trial herein; and it is further

ORDERED that the motion of defendant Hackley School, under motion sequence number 003, is denied; and it is further

ORDERED that the remaining causes of action shall continue; and it is further

ORDERED that counsel for all parties are directed to appear in the Settlement Conference Part in courtroom 1600, at the Westchester County Courthouse, 111 Dr. Martin Luther King, Jr. Drive, White Plains, New York on October 31, 2017 at 9:15 a.m. to schedule a date for trial.

This constitutes the decision and order of the Court. Dated: September 20, 2017 White Plains, New York ENTER: _______________________________ HON. DAVID F. EVERETT, A.J.S.C.