Opinion
INDEX 160657/2017
01-18-2022
SAMUEL CUTCHIN Plaintiff, v. TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY, Defendant. MOTION SEQ. Nos. 002 003
Unpublished Opinion
MOTION DATE 07/02/2021, 07/01/2021
DECISION+ ORDER ON MOTION
HON. FRANK NERVO JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 002) 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 57, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 79, 80, 81, 82 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER
The following e-filed documents, listed by NYSCEF document number (Motion 003) 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 58, 70, 71, 72, 73, 74, 75, 76, 77, 78 were read on this motion to/for JUDGMENT - SUMMARY.
Upon the foregoing documents, and following on-the-record argument, the Court finds that issues of fact preclude summary judgment.
As an initial matter, the Court notes that plaintiffs insinuation that by filing a competing summary judgment motion, defendant has engaged in gamesmanship betting that when reviewing competing summary judgment motions this Court has a propensity to "throw its hands in the air and say issues of fact" is unhelpful in resolving this issues at hand and has no place in any court filing (NYSCEF Doc. No. 70 at ¶ 8; Nachbaur v. American. Transit Ins. Co., 300 A.D.2d 74 [1st Dept 2002]; see also Benefield v. New York City Hous. Auth., 260 A.D.2d 167 [1st Dept 1999]). To be sure, this Court has done no such thing, and has carefully reviewed the record and arguments presented by the parties.
Likewise unhelpful is any contention that the burden on summary judgment is met by that party which is first to file a summary judgment motion (id.).
On a motion for summary judgment, the burden rests with the moving party to make a prima facie showing they are entitled to judgment as a matter of law and demonstrate the absence of any material issues of fact (Friends of Thayer lake, LLC v. Brown, 27 N.Y.3d 1039 [2016]). Once met, the burden shifts to the opposing party to submit admissible evidence to create a question of fact requiring trial (Kershaw v. Hospital for Special Surgery, 114 A.D.3d 75 [1st Dept 2013]).
Labor Law § 240(1) provides, in pertinent part:
all contractors and owners … 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.[continued on following page]
The duty imposed by Labor Law § 240(1) is nondelegable; an owner or contractor may be held liable regardless of whether such party actually exercised supervision or control over the work (Haimes v. New York Tel. Co., 46 N.Y.2d 132 [1978]; compare Russin v. Picciano & Son, 54 N.Y.2d 311 [1981], Labor Law § 200). Labor Law § 240(1) "is to be construed as liberally as may be for the accomplishment of the purpose for which it was … framed" (Koenig v. Patrick Constr. Corp., 298 NY 313 [1948] quoting Quigley v. Thatcher, 207 NY 66 [1912]). However, the injury claimed under § 240(1) must result from elevation-related hazards, "injuries resulting from other types of hazards are not compensable under that statute even if proximately caused by the absence of an adequate scaffold or other required safety device" (Ross v. Curtis-Palmer Hydro-Electric Co., 21 N.Y.2d 494 [1993] Back strain alleged because platform was placed in manner requiring worker to contort not within class of hazards contemplated by Labor Law § 240[1]; Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509 [1991]). That an accident occurred at an elevated height, without more, is insufficient to trigger the protections of Labor Law § 240(1) (Reyes v. Magnetic Constr., Inc., 83 A.D.3d 512 [1st Dept 2011]; see also Auchampaugh v. Syracuse Univ., 57 A.D.3d 1291 [3d Dept 2008]).
As conceded at oral argument, the only evidence that plaintiff fell from a height is plaintiff's own testimony; the alleged accident was unwitnessed (see generally Caraballo v. Kingsbridge Apt. Corp., 59 A.D.3d 270 [1st Dept 2009]). Although plaintiff characterizes the affidavit testimony of Tommy Hage as that of a witness, upon a mere cursory reading of same, there is no basis provided for the assertions therein (NYSCEF Doc. No. 38). Stated differently, Mr. Hage does not state how he came to learn of plaintiff's accident, whether as a first-hand eyewitness or second-hand learning after the fact (Marrero v. 2075 Holding Co. LLC, 106 A.D.3d 408, 409 [1st Dept 2013] foreman's testimony insufficient to raise triable issue of fact to defeat plaintiff's summary judgment motion where foreman did not witness the accident). Further, it is glaringly obvious Mr. Hage did not witness plaintiff fall from a height, as such observation is not noted in his affidavit.
Put simply, while plaintiff alleges he suffered a fall, the distance plaintiff fell is at issue, as is the nature of how plaintiff fell. Furthermore, there is conflicting evidence regarding the safety devices available to plaintiff, including ladders, whether a ladder was necessary for plaintiff's proper protection, and whether plaintiff chose not to use an available ladder at the time of plaintiff's alleged accident, as required (see Vasquez v. GAPLWQ Realty, Inc., 236 A.D.2d 311 [1st Dept 1997]; see also Isnardi v. Genovese Drug Stores, Inc., 242 A.D.2d 671 [2d Dept 1997] reversing order granting plaintiff summary judgment, finding issue of fact as to whether plaintiff was a recalcitrant worker not protected by the Labor Law by failing to use provided safety device; see also Jastrzebski v. North Shore School Dist, 223 A.D.2d 677 [2d Dept 1996] affd 88 N.Y.2d 946 [1996]). Citations to expert testimony, or lack thereof, and contradictions within the record all militate in favor of finding the existence of question of fact to be resolved by the jury.
The issues of fact precluding summary judgment on plaintiff's motion likewise preclude summary judgment on defendant's summary motion to dismiss the complaint.
Accordingly, it is
ORDERED the motions are denied. This constitutes the Decision and Order of the Court.