Opinion
Index No. 156096/2018 Motion Seq. No. 001
01-16-2024
MR. JUSTIN GATES and NATALIE GATES, Plaintiffs, v. NEW YORK UNIVERSITY, NEW YORK UNIVERSITY SCHOOL OF MEDICINE, NYU LANGONE HOSPITALS, LENDLEASE (US) CONSTRUCTION LMB INC., and LENDLEASE (US) CONSTRUCTION INC., Defendants.
Unpublished Opinion
DECISION+ ORDER ON MOTION
HON. VERNA L. SAUNDERS, JSC
The following e-filed documents, listed by NYSCEF document number (Motion 001) 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78. 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91 were read on this motion to/for _SUMMARY JUDGMENT _.
Plaintiffs commenced this action by summons and complaint alleging that Mr. Justin Gates ("Gates") was injured while performing work at the premises located at 550 First Avenue, New York, NY ("premises"). Defendant New York University School of Medicine, an administrative unit of defendant New York University, as owner, entered into a construction contract dated October 14, 2013, with defendant LendLease (US) Construction LMB Inc., ("LendLease") to upgrade the infrastructure at the premises of defendant NYU Langone Hospital. Work was being performed under this construction contract on the date of plaintiffs injury, October 22, 2016, at the NYU Langone Hospital medical science building. In connection with the projects which were the subject of the contract, defendant LendLease entered into a subcontract with plaintiffs employer, Nelson Air Device, to perform work at the premises, including the work being performed in the mechanical room at the time of the accident. Gates asserts that at the time of his accident, he was working at an elevated height, namely, using a ladder at the premises, and sustained severe, permanent personal injuries as a result of the accident. He further alleges that by failing to ensure that the worksite was so equipped and operated as to provide reasonable and adequate protection and safety to him, defendants are liable for his injury in violation of §§ 200, 240 and 241(6) of the Labor Law of the State of New York and provisions of the Industrial Code (first cause of action). He further alleges that defendants' actions constituted a conscious disregard of the substantial, unjustifiable risk of death, dismemberment, and serious injury to plaintiff (second cause of action); and violate the applicable provisions of the New York Labor Law (third cause of action).
Mr. Gates' wife, defendant Natalie Gates, seeks loss of society, services, companionship consortium of her husband (fourth cause of action).
In their answer, defendants deny the allegations and assert affirmative defenses. The NYU defendants and LendLease also assert cross-claims for contribution and indemnification (NYSCEF Doc. Nos. 8, 9, 17, answers' with cross-claims). This action is discontinued as against Lendlease (US) Construction Inc. (NYSCEF Doc. No. 22, Stipulation of Discontinuance).
Plaintiffs now move the court, pursuant to CPLR 3212, for an order granting summary judgment in their favor and against defendants for their violation of Labor Law §§ 240(1) and 241(6); precluding the testimony or any other evidence from William Kallmeyer ("Kallmeyer") pursuant to CPLR 3126; and directing an immediate trial on the issue of damages (NYSCEF Doc. No. 54, notice of motion). They state that, at the time of the accident, Gates was performing his work as a steamfitter in the mechanical room, which was strewn with debris and uninstalled equipment from multiple trades which had been retained to perform work in the room. Gates allegedly placed one of the four legs of his A-frame ladder in a trough that was around the entire outside perimeter of the floor while working with his partner, Eddie De La Cruz ("De La Cruz"), who was standing on a separate ladder to install a pipe on hangers. According to Gates, his ladder wobbled and moved as he was descending from the third rung, causing him to miss the second rung and fall to the ground. He claims that his feet came into contact with electrical conduit debris left by the electricians on the floor, causing his body to twist as he fell over on outstretched arms, injuring both upper extremities. Gates testified at his deposition that prior to the accident, he and his co-worker made a complaint to the foreman at least once about debris in the room. De La Cruz issued a witness statement confirming same (NYSCEF Doc. No. 63, witness statement). Plaintiffs also proffer a statement of material facts recounting same (NYSCEF Doc. No. 64, plaintiffs Statement of Material Facts).
According to plaintiffs, Gates descending the ladder after installing a pipe on hangers falls within the purview of Labor Law § 240(1). They further maintain that defendants' failure to furnish and erect the safety devices necessary to provide him with sufficient protection while he was working at an elevation was a violation of the statute, and a proximate cause of the serious injuries he sustained (NYCEF Doc. No. 55, affirmation in support of motion, pg 11-12). In furtherance of this, plaintiffs contend that a worker's fall caused by the movement or slipping of an unsecured ladder, as is the case here, constitutes prima facie proof of a Labor Law § 240(1) violation. Plaintiffs also argue that they have no obligation to demonstrate that the ladder was defective.
Concerning the Labor Law § 241(6) claim premised on the Industrial Code provision 12NYCRR 23-1.7(e)(2) violation, plaintiffs articulate that they are entitled to summary judgment on such claim because the room where Gates injured himself was strewn with debris and the LendLease accident report states that plaintiff "tripped on material on the ground." The presence of the electrical conduit on the ground where Gates fell constitutes a tripping hazard, plaintiffs posit. Lastly, they set forth that testimony or evidence in any form and at any time from or by Kallmeyer, a LendLease employee who was an assistant superintendent involved in this project and who prepared the accident report, should be precluded pursuant to CPLR 3126(2), because defendants failed and/or refused, without justification, to produce him for deposition. Plaintiff asserts that, to the extent defendants attempt to rely on proof proffered by Anthony Cerino, LendLease's senior superintendent for the project at the premises, such proof lacks any weight because he only learned about Gates' injury after the fact and did not visit the injury site.
Defendants oppose the motion and cross-move, pursuant to CPLR 3216, for an order precluding plaintiffs from offering De La Cruz's witness statement as evidence in support of their summary judgment motion. Defendants also seek to preclude plaintiffs from offering any testimony from De La Cruz at trial since plaintiffs did not provide a last known address for De La Cruz when requested. Defendants claim that they attempted to locate De La Cruz but were unsuccessful. As such, defendants assert that their defense was prejudiced because they were deprived of the opportunity to cross-examine him (NYSCEF Doc. No. 68, defs' opposition and cross-motion, pg 3). They further argue that De La Cruz's affidavit should further be disregarded as it is inconsistent with Gates' initial reports of how the accident occurred. Defendants contend that the court should deny plaintiffs motion because questions of fact exist as to whether Labor Law § 240 was violated, in light of Gates's deposition testimony which contradicts the LendLease incident report and the C-3 form prepared immediately following the incident, both of which were signed by plaintiff. Defendants further maintain that the deposition testimony is at odds with statements he made to medical professionals the day after the occurrence. Specifically, the Lendlease incident report states that "[a]t around 1:00 PM on 10/22/16, Mr. Justin Gates was attempting to step off a ladder and tripped on material that was on the ground," whereas he stated that he fell and was injured after "stepping off a ladder" as the cause of his injury on his C-3 form.
This is the New York State's Workers' Compensation Employee Claim form.
Defendants point out that in both the incident report and C-3 form, Gates does not mention a gully or material/debris. Yet, his medical record reflects the following notation: "he stepped off ladder onto debris and slipped falling forward onto outstretched L hand". Furthermore, the claim of a trough around the room is inconsistent with the affidavit and testimony of Anthony Cerino ("Cerino"), LendLease's senior superintendent, and the photographs which show that there was no trough in the room since the floor was level and could not have contributed towards the ladder wobbling. Defendants furnish Cerino's affidavit wherein he avers that there were no prior complaints made about the room where plaintiffs injury occurred before the accident (NYSCEF Doc. No. 69, Cerino affidavit). Defendants contend that plaintiffs' request to preclude Kallmeyer's testimony be denied because Gates never met or spoke with him, and defendants are not relying on his affidavit or testimony to oppose plaintiffs' motion. Defendants argue that a claim under Labor Law § 241(6) does not lie because Gates's testimony and post-accident reports do not describe the incident as a tripping occurrence but rather, that he lost his footing and fell as his ladder wobbled (id., at pg 17).
In reply, plaintiffs maintain that they have established their entitlement to summary judgment on the Labor Law §§ 240(1) and 241(6) claims since defendants do not dispute that Gates landed on a piece of conduit, a tripping hazard in violation of 23 NYCRR 12-1.7(e), and fell forward, sustaining an injury. They further argue that defendants' claimed inconsistencies in the LendLease incident report and C-3 form are meritless insofar as they are based upon conjecture. Moreover, plaintiffs assert that Cerino's deposition testimony establishes that he did not recall ever going to the mechanical room where the accident occurred or speaking to any witnesses after Gate's accident. Cerino also denies being the person to whom complaints would have been made about debris in the mechanical room. In addition, the two photographs (Exhibit D) that accompany the accident report did not represent the way the room looked on the accident date, according to plaintiffs (NYSCEF Doc. No. 84, reply, ¶8-13). Hence, plaintiffs posit that Cerino's affidavit should be disregarded in its entirety in that he appears to not remember details about the accident during his deposition but made statements in his affidavit which are unsupported by the record. Self-serving affidavits like his, they contend, which contradict previous deposition testimony, are generally not considered by courts in deciding summary judgment. Regarding Kallmeyer, plaintiffs maintain that any testimony or affidavit from him should be precluded in this litigation because the demand that he be produced for deposition was not heeded. Lastly, plaintiffs argue that defendants did not suffer any prejudice by not deposing De La Cruz because they were well aware that he worked for one of the subcontractors with whom Cerino had easy and ongoing access and could have deposed him after the injury occurred. Therefore, contrary to defendants' request, the court should consider De La Cruz's witness affidavit.
It is well-settled that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]; Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980].) Once this showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action or show that "facts essential to justify opposition may exist but cannot [now] be stated." (CPLR 3212[f]; see Zuckerman, 49 N.Y.2d at 562).
Labor Law § 241(6) provides, in pertinent part, as follows:
"All contractors and owners and their agents,. . . when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements: * * *
(6) All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, [and] equipped ... as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places."
Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon owners and contractors "'to provide reasonable and adequate protection and safety' to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed" (Rizzuto v LA. Wenger Contr. Co., 91 N.Y.2d 343, 348 [1998], quoting Labor Law § 241(6); see also Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501-502 [1993]). Importantly, to sustain a Labor Law § 241(6) claim, it must be shown that the defendant violated a specific, "concrete" implementing regulation of the Industrial Code, rather than a provision containing only generalized requirements for worker safety (Ross, 81 N.Y.2d at 505). Such violation must be a proximate cause of the plaintiff s injuries (Leveron v Prana Growth Fund I, L.P., 181 A.D.3d 449, 450 [1st Dept 2020).
12 NYCRR 23-1.7 (e)(2), subtitled "Working areas," requires that construction site owners keep "floors, platforms and similar areas where persons work or pass" free from "accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed." 12 NYC RR 23-1.7 (e)(2) is sufficiently specific to support a Labor Law § 241(6) claim (see Randazzo v Consolidated Edison Company of New York, 271 A.D.2d 667, 668 [2000].)
As an initial consideration, the court denies defendants' cross-motion seeking to preclude evidence from De La Cruz at any point in this case because as general contractor, defendants could have acquired De La Cruz's last known address by contacting his employer. Defendants were aware that De La Cruz was a witness to the accident that caused plaintiffs injury, and they had sufficient time to locate any workers who were present during the accident (see Fuga v St. Moritz Holding, LLC, 299 A.D.2d 164, 164 [1st Dept 2002]). Therefore, this court shall consider said affidavit in deciding plaintiffs motion for summary judgment.
Here, plaintiffs have established their prima facie entitlement to summary judgment on the violation of Labor Law § 241(6) claim by demonstrating that there was conduit debris at the site of the accident which had been apparently left there by electricians and that a complaint was made to the foreman at least once prior to the accident date. However, defendants have pointed to seeming contradictions in the injury reports in that the C-3 report that was prepared and signed by Gates does not mention debris, conduit, or material on the floor but both the LendLease injury report and the hospital record both mention that there was "material" and "debris" at the site of the accident creating a material issue of fact. From the available record, it is still unclear the type of debris, if any, that contributed to Gates's injury (see Collins v Switzer Constr. Group, Inc., 69 A.D.3d 407, 408 [1st Dept 2010]). Therefore, that branch of plaintiffs' motion seeking summary judgment pursuant to Labor Law § 241(6) premised on the violation of 12 NYCRR 23-1.7(e)(2) is denied.
Turning next to the Labor Law § 240(1) analysis, the law, provides, as relevant here: "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."
Labor Law § 240(1) "imposes a nondelegable duty on owners and contractors to provide devices which shall be so constructed, placed and operated as to give proper protection to those individuals performing the work" (Quiroz v Memorial Hosp, for Cancer and Allied Diseases, 202 A.D.3d 601, 604 [1st Dept 2022] [internal quotation marks and citations omitted]). It "was designed to prevent those types of accidents in which the scaffold ... 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'" (John v Baharestani, 281 A.D.2d 114, 118 [1st Dept 2001], quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501 [1993]).
The absolute liability found within section 240 "is contingent upon the existence of a hazard contemplated in section 240(1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" (O'Brien v Port Auth. of N.Y. &N.J, 29 N.Y.3d 27, 33 [2017] [internal quotation marks and citation omitted]). In addition, Labor Law § 240(1) must be liberally construed to accomplish the purpose for which it was framed (Greenfield v Macherich Queens Ltd. P 'ship, 3 A.D.3d 429, 430 [1st Dept 2004]).
That said, not every worker who is injured at a construction site is afforded the protections of Labor Law § 240(1), and "a distinction must be made between those accidents caused by the failure to provide a safety device . . . and those caused by general hazards specific to a workplace" (Makarius v Port Auth. of N Y. &N. J., 76 A.D.3d 805, 807 [1st Dept 2010]; Buckley v Columbia Grammar &Preparatory, 44 A.D.3d 263, 267 [1st Dept 2007] [section 240 (1) "does not cover the type of ordinary and usual peril to which a worker is commonly exposed at a construction site"]). Instead, liability "is contingent upon the existence of a hazard contemplated in section 240(1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" (Narducci v Manhasset Bay Assoc., 96 N.Y.2d 259, 267 [2001]). Therefore, to prevail on a section 240(1) claim, a plaintiff must establish that the statute was violated, and that this violation was a proximate cause of the plaintiffs injuries (Barreto v Metropolitan Transp. Auth., 25 N.Y.3d 426, 433 [2015]).
Plaintiff has not demonstrated a prima facie case of liability under Labor Law § 240(1). While it is undisputed that plaintiff was descending the ladder in some form, there is an issue of fact as to whether Gate's injury occurred as a result of an elevation-related risk insofar as the medical record describes that "[Gate's] states he stepped off ladder onto debris and slipped falling forward onto outstretched L hand". Furthermore, since both the Lendlease incident report and the medical record state that plaintiff tripped on a material on the floor, issues of fact remain as to whether Gate's injury was as a result of an elevation hazard that Labor Law § 240(1) was intended to protect against or from the material he tripped on once he made contact with the floor (see Rodriguez v Plaza Constr., 2021 NY Slip Op 31875[U], **4 [Sup Ct, NY County 2021]). Therefore, plaintiffs' Labor Law § 240(1) claim to summary judgment is denied.
Addressing now that portion of plaintiffs' motion seeking to preclude Kallmeyer's testimony at any point in this case pursuant to CPLR 3126, plaintiffs have not established that such preclusion is warranted. "The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter of discretion with the [motion] court" (Palmenta v Columbia Univ., 266 A.D.2d 90, 91 [1st Dept 1999]; see also Arts4all, Ltd. v Hancock, 54 A.D.3d 286, 295 [1st Dept 2008]). Under New York State's broad discovery rule, "[t]he sanctions for failure to comply with such a request are equally broad and include a preclusion order preventing the nondisclosing party from using the evidence in any manner during the course of the litigation" (Northway Engineering, Inc. v Felix Industries, Inc., 77 N.Y.2d 332, 335 [1st Dept 1991]). "In order to invoke the drastic remedy of preclusion (CPLR 3126), the court must determine that the party's failure to comply with a disclosure order was willful, deliberate and contumacious" (Holliday v Jones, 36 A.D.3d 557, 557-558 [1st Dept 2007]). Here, plaintiffs request to preclude defendants from introducing any evidence from Kallmeyer is denied insofar as plaintiff does not dispute that defendants' made efforts to make Kallmeyer available for a deposition before the Note of Issue was filed. Moreover, defendants' have represented that they are willing to produce Kallmeyer for a deposition. Therefore, the court denies that branch of plaintiffs motion seeking to preclude testimony or evidence in any form and at any time from or by Kallmeyer in this action. All remaining arguments and requests have been considered and are either without merit or need not be addressed given the findings above. It is hereby
ORDERED that plaintiffs' motion for summary judgment is denied in its entirety; and it is further
ORDERED that defendants' cross-motion is denied; and it is further
ORDERED that plaintiffs shall share with defendants Eddie De La Cruz's last known address within 15 days after service of this decision and order with notice of entry; and it is further
ORDERED that defendants shall depose Eddie De La Cruz no later than sixty (60) days after plaintiffs share his last known address; and it is further
ORDERED that plaintiffs shall depose William Kallmeyer no later than sixty (60) days after service of this decision and order with notice of entry; and it is further
ORDERED that, within twenty (20) days after this decision and order is uploaded to NYSCEF, counsel for plaintiffs shall serve a copy of this decision and order, with notice of entry, upon defendants; and it is further
This constitutes the decision and order of this court..