Opinion
39028/07.
Decided September 9, 2010.
Mary J. Joseph, Esq, Fabiani Cohen Hall, LLP, New York, NY, Attorney for Plaintiff Kenneth Dumas.
Kenneth Sacks, Esq., Sacks and Sacks, LLP, New York, NY, Attorney for Defendant Myrtle Avenue.
By notice of motion filed on January 21, 2010, under motion sequence number three, Myrtle Avenue Builders, LLC. (hereinafter "MAB") and Myrtle Avenue Owners, LLC (hereinafter "MAO").
BACKGROUND
On October 19, 2007, plaintiff Kenneth Dumas commenced this action by filing a summons and verified complaint with the Kings County Clerk's office. Defendants MAO and MAB joined issue by verified answer dated January 29, 2008.
The verified complaint contains thirteen allegations of fact in support of a single cause of action seeking compensation for personal injuries allegedly incurred by plaintiff in a construction accident as a consequence of defendants' violation of §§ 200, 240, and 241(6) of the Labor Law. The sum and substance of plaintiff's claim is that plaintiff, while lawfully performing his duties on a construction site owned and operated by defendants, was caused to fall thirty five feet as a consequence of defendants' failure to provide sufficient safety devices which might have prevented plaintiff's fall; and that as a result of his fall, plaintiff suffered injuries to his person.
MOTION PAPERS
Plaintiff's motion papers consist of a notice of motion as well as a memorandum of law and affirmation of counsel, annexed to which there are nine exhibits labeled 1 through 7 and 9 through 10. Although there is a tab for an eighth exhibit, there is in fact no exhibit annexed behind this tab. Exhibit 1 is the instant summons and verified complaint. Exhibit 2 is defendants' verified answer and demands. Exhibit 3 is a copy of the transcript of the deposition testimony of defendants' through one of their owners, Don Capoccia, taken on June 18, 2009. Exhibit 4 is a contract between defendant MAB as general contractor and defendant MAO as owner of the development. Exhibit 5 is a contract between defendant MAB as general contractor and Car-Win Construction, Inc. as subcontractor. Exhibit 6 is a copy of the transcript of the deposition testimony of plaintiff taken on November 7, 2008. Exhibit 7 is a copy of the transcript of the deposition testimony of non-party witness Shan-Karim taken on November 3, 2009. Exhibit 9 is a copy of the transcript of the deposition testimony of non-party witness Diego Dumas taken on November 3, 2009. Exhibit 10 is a series of photographs.
Defendants' opposition papers consist of an affirmation of counsel annexed to which there is one exhibit labeled A, which is an affidavit of Josh W. Hamilton, who was an employee of Car-Win Construction on the date of the accident.
Plaintiff replied to defendants' opposition papers with an affirmation of counsel annexed to which there are three exhibits labeled 11 through 13. Exhibit 11 contains a series of documents which are identified as minutes of meetings of employees of Car-Win Construction as well as copies of photographs. Exhibit 12 is a printout from the website of the United States Department of Labor. Exhibit 13 contains responses by defendants to plaintiff's discovery demands.
LAW AND APPLICATION
A motion for summary judgment may be granted only when there is no doubt as to the absence of any triable issue of material fact ( Kolivas v. Kirchoff , 14 AD3d 493 [2nd Dept. 2005]). "Issue finding, rather than issue determination is the court's function. If there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied" ( Celardo v. Bell, 222 AD2d 547 [2nd Dept. 1995]). A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact ( Alvarez v. Prospect Hosp., 68 NY2d 320; Napolitano v. Suffolk County Dept. Of Public Works , 65 AD3d 676 [2nd Dept 2009]). Once the movant has met this burden, the burden then shifts to the party opposing the motion to demonstrate via admissible evidence the existence of a factual issue requiring a trial of the action ( Alvarez v. Prospect Hosp., supra; Zuckerman v. City of New York 49 NY2d 557, 560 [1980]). "As a general rule, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merits of its claim or defense" ( See, Mennerich v. Esposito , 4 AD3d 399 [2nd Dept. 2004]).
Labor Law § 240(1) is designed to promote safe practices at construction sites. It provides protection for workers engaged in the erection, demolition, alteration and repair of buildings. Specifically, it requires that owners, general contractors, and their agents at sites where such work is undertaken, furnish scaffolds, hoists, slings, pulleys, braces, irons, and other devices which shall be "so constructed, placed and operated as to give proper protection" to construction workers. Furthermore, the duty imposed upon owners and general contractors by Labor Law § 240(1) is absolute. That is to say, owners and general contractors who fail to comply with Labor Law § 240(1) may be held liable without regard for their care or lack thereof (See, Koenig v. Patrick Const. Corp., 298 NY 313). The Appellate Division, Second Department, has cited Koenig with approval for the proposition that Labor Law § 240(1) "is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed" (See, Gasques v. State, 59 AD3d 666 [2nd Dept. 2009] citing Koenig v. Patrick Const. Corp, 298 NY 313).
In Rocovich v. Consolidated Edison Co., 78 NY2d 509, the Court of Appeals held that liability under the statute would be applied only in cases arising from risks related to elevation differentials. The Court of Appeals reiterated and elaborated upon its holding in Rocovich in Ross v. Curtis-Palmer Hydro Electric Co., 81 NY2d 494 by stating that Labor Law § 240(1) liability is "limited to specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured."
In Runner v. New York Stock Exchange , Inc., 13 NY3d 599 , the Court of Appeals held that an injured worker is entitled to judgment when a hoisting apparatus fails or is inappropriate for the task for which it is used.
In Blake v. Neighborhood Hous. Serv. Of NY City, Inc., 1 NY3d 280, the Court of Appeals explained that Labor Law § 240 (1) creates a liability that is strict, or absolute, in two senses. First, the duty that it imposes is nondelegable. Thus contractors and owners are liable under this statute regardless of whether they supervise or control the work. And second, the plaintiff's own negligence does not furnish a defendant owner or contractor with a defense where a violation of this statute caused the accident which is the subject of the litigation. It is still necessary, however, for the plaintiff to show that Labor Law § 240 (1) was violated and that the violation proximately caused the plaintiff's injury. Thus, where a plaintiff's own actions are the sole proximate cause of the accident, there can be no liability ( See, Cahill v. Triborough Bridge and Tunnel Authority , 4 NY3d 35). However, comparative negligence is not a defense to absolute liability under Labor Law § 240 (1) ( See, Blake v. Neighborhood Hous. Serv. Of NY City, Inc., 1 NY3d 280).
In the class of cases where a worker has been injured as a result of his refusal to use available safety devices provided by the employer or owner, the so-called recalcitrant worker doctrine may permit a defendant to escape liability under Labor Law § 240 (1) ( See, Hagins v. State, 81 NY2d 921). A defendant who wishes to invoke the recalcitrant worker defense must show that the injured worker refused to use the safety devices that were provided by the owner or employer ( See, Stolt v. General Foods Corp., 81 NY2d 918 citing Hagins v. State, 81 NY2d 921). The recalcitrant worker defense has no application where no adequate safety devices were provided ( See, Stolt v. General Foods Corp., 81 NY2d 918 citing Zimmer v. Chemung County Performing Arts, 65 NY2d 513). In Stolt, the Court of Appeals noted that "an instruction by the employer or owner to avoid using unsafe equipment or engaging in unsafe practices is not itself a safety device.'" Thus, it is the intention of the Court of Appeals to confine the application of the recalcitrant worker defense to the specific situation of a worker refusing to use a safety device.
In order for a defendant to raise a triable issue of fact based upon the recalcitrant worker defense in opposition to a plaintiff's motion for summary judgment, the defendant must present evidence that the plaintiff was provided with certain safety devices, that such devices were readily available for his use, and that the plaintiff was specifically instructed to use such devices but chose for no good reason to disregard those instructions ( See Zong Mou Zou v. Hai Ming Const. Corp. , 74 AD3d 800 [2nd Dept. 2010] citing Cahill v. Triborough Bridge and Tunnel Authority ,4 NY3d 35).
In support of its motion for summary judgment, plaintiff presents the deposition testimony of Don Capoccia, who is a member of defendant MAB. According to Mr. Capoccia, MAB is the general contractor on the project which plaintiff was working on at the time of his accident (Capoccia deposition, p. 7). Mr. Capoccia is also a part owner of MAO, which is the owner of the project (p. 7). The project commenced in early 2007 (pp. 4-7). MAB retained plaintiff's employer, Car-Win Construction, to erect the structural steel for the project (p. 15).
Plaintiff also presents his own deposition testimony. He testified that at the time of the accident he was working for Car-Win (Dumas deposition, p. 73). During the initial three weeks that he was at the job site where the accident occurred, he was assigned to the raising gang and essentially acted as a gopher getting coffee and organizing bolts, as well as making up bolt buckets (pp. 88-89). The raising gang erected the steel and worked the crane (p. 89). At the time of the accident, plaintiff was working for the bolting up gang, where he made up buckets of bolts and handed them up to workers on upper levels by using a line (pp. 112, 121, and 130). On the afternoon of the accident, as plaintiff was performing his duties getting bolts for the bolting up gang, he was taken off of his job and instructed by his superiors, Shan Karim and Diego Dumas, to retrieve a hoisting apparatus known as a come-along (p. 138). At the time of the accident, plaintiff was on a beam above the ground operating the come-along in order to hoist a column (p. 160, 164). The come-along snapped and this caused plaintiff to fly off the beam and fall 30 feet to the ground (p. 164, 170).
Plaintiff has thus made a prima facie showing, through his presentation of his own deposition testimony, that defendants violated Labor Law § 240 (1) and that this violation proximately caused his injury ( See, Blake v. Neighborhood Hous. Serv. Of NY City, Inc., 1 NY3d 280; See also, Runner v. New York Stock Exchange , Inc., 13 NY3d 599 ).
Defendants attempt to raise a triable issue of fact through their presentation of the affidavit of John Hamilton, Car-Win's site safety manager. Mr. Hamilton did not witness plaintiff's accident. However, he states in his affidavit that on September 20, 2007, six days prior to the accident, there were a variety of safety devices at the project site which would have provided fall arrest protection to an ironworker elevated above the ground. Mr. Hamilton further states that he held "toolbox meetings" that the ironworkers were required to attend. At these meetings, according to Mr. Hamilton, "The workers were told that there were beamers, tie off straps and chokers at the site for them to use when they were working at elevation. Further, the ironworkers were told that they must tie off using the available safety devices when working at a height. Kenneth Dumas attended the meetings and he was told to use a beamer, tie off strap and or choker when he was working at an elevation."
Defendants do not dispute that the come along which plaintiff was operating at the time of his accident snapped. Thus, defendants' position that plaintiff's own actions were the sole proximate cause of his accident is untenable. Consequently, defendants might only raise a triable issue of fact via the recalcitrant worker doctrine. Defendants fail to do so because they have not come forth with evidence that plaintiff chose for "no good reason to disregard those instructions" to which Mr. Hamilton claims to have given him to tie off, or use a beamer, or a choker ( See Zong Mou Zou v. Hai Ming Const. Corp. , 74 AD3d 800 [2nd Dept. 2010] citing Cahill v. Triborough Bridge and Tunnel Authority ,4 NY3d 35). Defendants merely come forth with evidence that plaintiff disregarded Mr. Hamilton's instructions. This is insufficient to raise a triable issue of fact ( id.).
Moreover, defendants acknowledge that plaintiff was wearing a harness and a lanyard at the time of the accident (see defendants' affirmation of counsel, paragraph 16). Plaintiff was thus not operating the come-along at elevation without any safety device whatsoever. In addition, defendants point out in their own reply affirmation plaintiffs' deposition testimony that plaintiff could not tie off because there were no independent lines above him and that he could not tie off to the beam upon which he was standing because he was taught not to tie off to steel.
Plaintiff's motion for summary judgment is granted.
The foregoing constitutes the decision and order of the court.