Opinion
Index No. 159150/2017 Motion Seq. No. 001
01-18-2024
LOUIS GRUMELLI, Plaintiff, v. 75 PLAZA LLC, RXR CONSTRUCTION & DEVELOPMENT LLC, RXR ATLAS LLC, RXR REALTY LLC Defendant.
Unpublished Opinion
MOTION DATE 08/18/2023
DECISION + ORDER ON MOTION
HON. SABRINA KRAUS JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 21,22, 23, 24, 25, 26, 27, 28, 29, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41 were read on this motion to/for SUMMARY JUDGMENT.
BACKGROUND
Plaintiff commenced this action seeking damages for personal injury he alleges he suffered when a cable dropped on him, as he was working on a construction project. Plaintiff now moves for summary judgment as to liability under Labor Law §240(1). For the reasons stated below, the motion is denied.
ALLEGED FACTS
The accident took place on July 10, 2017, while Plaintiff was working on a construction site at 75 Rockefeller Plaza. Plaintiff was a member of Elevator Constructors Union Local No. 1 and employed by Schindler Elevator as an elevator mechanic. Plaintiff was working on a major building renovation which required Schindler to install new elevators and modernize some existing elevators.
Plaintiff was performing wiring drops from the elevator controller located in the motor room above the top of the shaft, down the entire shaft-way. To accomplish this, he stood on top of the elevator car #9.
In order to move the elevator car from the machine room down to the bottom, plaintiff utilized a pendant run box which had an up, a down, a common/safety button and a stop button, on the end of a temporary traveling cable. The temporary traveling cable was a temporary power source for the elevator car that was connected to the elevator controller in the machine room and was used to move the elevator car solely during the construction project, permitting it to go up and down.
After plaintiff completed his work, he remained atop car #9 while stopped at the ground floor, organizing and cleaning up his work area. After being stopped on the ground floor for about 4 or 5 minutes, the temporary lights on top of the elevator car which were powered by the temporary traveling cable, went out. Plaintiff heard a banging sound in the distance that gradually became louder, and then the temporary traveling cable hit plaintiff knocking him flat onto to the roof of the elevator car.
The project required adding approximately three floors to the building and elevator shaft, which in turn required raising the machine room three floors. The existing temporary traveling cable was not long enough to stretch the additional three floors, so "someone" decided to splice in an extra length of temporary traveling cable into the existing traveling cable.
Plaintiff alleges that the splice was not properly supported or braced for the purpose of the undertaking, and as a result, was caused to fail, causing the longer length of traveling cable to fall more than 30 stories onto plaintiff. Plaintiff further alleges that instead of using wire nuts, 12-gauge wire and electrical tape, a traveling cable hanging bracket along with a Kellems Grips or similar wire mesh support harness, attached onto a structural member would have sufficed.
Further, Plaintiff argues that, had the defendants provided some overhead fall protection such as a canopy, debris net or other safety device so constructed placed and operated to prevent injury from a gravity related fall, the accident would have been prevented.
Plaintiff relies on the opinion of William Seymour who has been working with elevators throughout his career. Mr. Seymour asserts:
It is my opinion, with a reasonable degree of elevator and electrical engineering professional certainty that there were no safety devices to protect the plaintiff from the gravity related hazard of falling objects while he was in the elevator shaft. Had there been some overhead protection such as a temporary canopy or debris net above the elevator, he would have been protected from the falling object. Moreover, had the traveling cable been supported and braced for the purposes of the undertaking at hand with a Kellems grip, wire harness, sling or any other type of brace constructed, placed, operated and tied off/attached to a structural member so as to prevent a gravity related hazard of free-falling, the plaintiff would have avoided the accident all together. The defendants' failure to provide these basic protections was a proximate cause of this accident.
Defendants assert that Mr. Seymour is unqualified to provide an opinion regarding what safety procedures must be carried out during the renovation and modernization of an elevator hoistway, and that even if the court considers his proffered opinion there are questions of material fact to be resolved at trial.
DISCUSSION
To prevail on a motion for summary judgment, the moving party must establish its cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in its favor. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 (1985); Zuckerman v. City cf New York, 49 N.Y.2d 557 (1980). Absent such a prima facie showing, the motion must be denied, regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hospital, 68 N.Y.2d 320, 324 [1986]).
However, "[o]nce the movant makes the required showing, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that precludes summary judgment and requires a trial" (Dallas-Stephenson v Waisman, 39 A.D.3d 303, 306 [1st Dept 2007], citing Alvarez, 68 N.Y.2d at 324). "[A]ll of the evidence must be viewed in the light most favorable to the opponent of the motion" (People v Grasso, 50 A.D.3d 535,544 [1st Dept 2008]). "On a motion for summary judgment, the court's function is issue finding, not issue determination, and any questions of credibility are best resolved by the trier of fact" (Martin v Citibank, N.A., 64 A.D.3d 477,478 [1st Dept 2009]; see also Sheehan v Gong, 2 A.D.3d 166,168 [1st Dept 2003] ["The court's role, in passing on a motion for summary judgment, is solely to determine if any triable issues exist, not to determine the merits of any such issues"], citing Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 [1957]).
Labor Law § 240(1) provides:
All 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.
Not every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240(1). Rather, 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 (see, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82).
The decisive question is whether the worker's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential, Nicometi v Vineyards of Fredonia, LLC, 25 N.Y.3d 90 (2015); Runner v New York Stock Exchange, Inc., 13 N.Y.3d 599 (2009); Gonzalez v Madison Sixty, LLC, 216 A.D.3d 1141 (2d Dept 2023).
In order to prevail on summary judgment in a section 240(1) "falling object" case, the injured worker must demonstrate the existence of a hazard contemplated under that statute "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, 727 N.Y.S.2d 37, 750 N.E.2d 1085 [2001], citing Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82 [1993]). Essentially, the plaintiff must demonstrate that at the time the object fell, it either was being "hoisted or secured" (Narducci, 96 N.Y.2d at 268, 727 N.Y.S.2d 37, 750 N.E.2d 1085), or "required securing for the purposes of the undertaking" (Outar v. City cf New York, 5 N.Y.3d 731, 732, 799 N.Y.S.2d 770, 832 N.E.2d 1186 [2005]; see Quattrocchi v. F.J. Sciame Constr. Corp., 11 N.Y.3d 757, 759, 866 N.Y.S.2d 592, 896 N.E.2d 75 [2008]).Fabrizi v. 1095 Ave. cf Americas, L.L.C., 22 N.Y.3d 658, 662-63, (2014).
In this case the cable that fell on plaintiff was not being hoisted or secured so the issue is whether the cable required securing for the purposes of the work being done by Plaintiff. Plaintiff must establish that the object fell because of the absence or inadequacy of a safety device of the kind enumerated in the statute, Narducci v. Manhasset Bay Associates, 96 N.Y.2d 259, 268 [2001].
Mr. Seymour states that the accident was caused because the travelling cable used was the wrong type and did not have the structural integrity to hang beyond 200 feet, and because once it was spliced the integrity of the cable was compromised.
The court does not find that Plaintiff made out a prima facie entitlement to summary judgment. The court finds that the credentials of Mr. Seymour are insufficient to warrant a determination as a matter of law on what safety procedures must be carried out during the renovation and modernization of an elevator hoistway.
An expert must possess the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable. See Matott v. Ward, 48 N.Y.2d 455, 459 [1979]; see also People v. Aguilar, 206 A.D.3d 572 [1st Dept 2022], While Mr. Seymour did complete a two-year degree abroad leading to a certificate in engineering, Mr. Seymour has no formal training in elevator maintenance or repair. He is not a professional engineer, and has no applicable license. Mr. Seymour does not hold a four-year bachelor's degree and has never performed maintenance on an elevator. Mr. Seymour lacks the credentials to support his proffered opinion.
It is within this Court's discretion to determine whether a particular witness is qualified to testify as an expert. Felicia v. Boro Crescent Corp., 105 A.D.3d 697, 698 (2013). While it is true that "(t)he competence of an expert in a particular subject may derive from long observation and real world experience, and is not dependent upon formal training or attainment of an academic degree in the subject" (Miele v. American Tobacco Co., 2 A.D.3d 799, 802; see Caprara v. Chrysler Corp., 52 N.Y.2d 114, 121; McLamb v. Metropolitan Suburban Bus Auth., 139 A.D.2d at 572) the court does not find such competence established in the moving paper on the narrow issue before the court.
Furthermore, to the extent Mr. Seymour opines that Defendants were negligent in not installing overhead protection on the top of the elevator car, Mr. Seymour fails to cite to any specific New York City Department of Buildings Code, ASME code, or New York State Industrial Code provision which requires an elevator car be outfitted with overhead protection. Mr. Seymour does not state that it is general practice in the elevator industry to install overhead protection in an elevator hoistway while renovation/modemization is underway.
Additionally, all mechanical components can fail when a sufficient mechanical force is exerted. Mr. Seymour's opinion fails to provide an estimate of the amount of force that was generated during the incident and whether such force would not have exceeded that which could have been withstood by a safety device.
Finally, while Mr. Seymour does opine that the cable was not braced for the undertaking at hand" it is not clear that the "undertaking" referred to in Mr. Seymour's opinion relates to the work being done by plaintiff on the date of the accident. It would appear that the "undertaking" referenced by Mr. Seymour refers more to what bracing should have been used after the cable was spliced, or as applicable to the renovation project in general. The determination of the type of protective device required for a particular job turns on the foreseeable risks of harm presented by the nature of the work being performed. Buckley v. Columbia Grammar &Preparatory, 44 A.D.3d 263, 268 (2007).
It could be inferred by the trier of fact that the splicing of cable was the cause of the fall of the cable. This is certainly argued by Mr. Seymore. This is more akin to a general negligence claim.
This was not a situation where a hoisting or securing device of the kind enumerated in the statute would have been necessary or even expected.... The absence of a necessary hoisting or securing device of the kind enumerated in Labor Law § 240(1) did not cause the falling (cable) here. This was clearly a general hazard of the workplace, not one contemplated to be subject to Labor Law § 240(1).Narducci at 268-269.
CONCLUSION
WHEREFORE it is hereby:
ORDERED that the motion is denied; and it is further
ORDERED that, within 20 days from entry of this order, Plaintiff shall serve a copy of this order with notice of entry on the Clerk of the General Clerk's Office (60 Centre Street, Room 119); and it is further
ORDERED that such service upon the Clerk shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh);]; and it is further
ORDERED that any relief not expressly addressed has nonetheless been considered and is hereby denied; and it is further
This constitutes the decision and order of this court.