Hoyos v. Ny-1095 Ave. of the Americas, LLC

Full title: WILLIAM FABIAN HOYOS, Plaintiff, v. NY-1095 AVENUE OF THE AMERICAS, LLC…

Court: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 59

Date published: Mar 22, 2016

2016 N.Y. Slip Op. 30510 (N.Y. Sup. Ct. 2016)

Opinion

Index No.: 109409/09

03-22-2016

WILLIAM FABIAN HOYOS, Plaintiff, v. NY-1095 AVENUE OF THE AMERICAS, LLC STRUCTURE TONE, INC., Defendants. 350 BLEECKER STREET APARTMENT CORP., TUDOR REALTY SERVICES CORP., Third-Party Plaintiffs, v. B&H RESTORATION, INC., Third-Party Defendant.

DEBRA A. JAMES, J.S.C.

DECISION AND ORDER

Motion Seq. Nos. 4 & 5 DEBRA A. JAMES, J.S.C.:

Motion sequence numbers 004 and 005 are hereby consolidated disposition.

Plaintiff, a painter construction worker alleges that he suffered injuries when he fell from a loading dock as he was entering the construction work site and seeks damages arising out of such injuries pursuant to Labor Law §§ 240(1), 241(6), and 200.

Defendant Structure Tone, the general contractor of the construction work site, moves for summary judgment, under CPLR 3212, dismissing all claims by plaintiff against it (motion sequence number 004).

Defendant NY-1095 Avenue of the Americas LLC (NY-1095), owner of the construction work site, separately moves for summary judgment, under CPLR 3212, dismissing all claims by plaintiff and cross claims against it (motion sequence number 005). Plaintiff cross moves, under CPLR 3212, for partial summary judgment as to liability on his Labor Law § 240(1), opposes the defendants' motions as to Labor Law § 200 and concedes that there is no liability against either defendant pursuant to Labor Law § 241(6).

NY-1095 was the fee owner of the building known as 1095 Avenue of the Americas, a 40 plus story commercial office building (building). Non-party Metropolitan Life Insurance Company (Met Life) leased multiple floors in the building. Met Life hired co-defendant Structure Tone, Inc. (Structure Tone), as general contractor, to renovate those floors. Structure Tone thereafter hired non-party Cosmopolitan Painting Corp., plaintiff's employer, as subcontractor to perform the painting work on those floors.

Plaintiff William Fabian Hoyos (Hoyos) alleges that on October 20, 2009, he was injured when, as he entered the loading dock to the building to sign in and begin work, he stepped back to allow another person to pass and fell backwards off the loading dock approximately three feet to the ground.

Defendants Structure Tone and NY-1095 each argue that plaintiff is not a covered worker under the Labor Law because he was not carrying out construction work at the time of his accident.

"Summary judgment must be granted if the proponent makes '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,' and the opponent fails to rebut that showing" (Brandy B. v Eden Cent. School Dist., 15 NY3d 297, 302 [2010], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). However, if the moving party fails to make a prima facie showing, the court must deny the motion, "'regardless of the sufficiency of the opposing papers'" (Smalls v A.I. Indus., Inc., 10 NY3d 733, 735 [2008], quoting Alvarez, 68 NY2d at 324).

I. Labor Law § 240 (1)

Labor Law § 240 (1) provides, in relevant part:

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.

The Court of Appeals has held that this duty to provide safety devices is nondelegable (Gordon v Eastern Ry. Supply, 82 NY2d 555, 559 [1993]), and that absolute liability is imposed where a breach has proximately caused a plaintiff's injury (Bland v Manocherian, 66 NY2d 452, 459 [1985]). A statutory violation is present where an owner or general contractor fails to provide a worker engaged in section 240 activity with "adequate protection against a risk arising from a physically significant elevation differential" (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]). Where a violation has proximately caused a plaintiff's injuries, owners and general contractors are absolutely liable "even if they do not have a continuing duty to supervise the use of safety equipment" (Matter of East 51st St. Crane Collapse Litia., 89 AD3d 426, 428 [1st Dept 2011] [citation omitted]).

Defendants each argue that plaintiff was not protected under the Labor Law § 240(1) because at the time of his accident he was not engaged in construction activity. This court concurs with plaintiff that he was protected under such statute, as under the applicable decisional law the fact that he was entering the workplace at the time of his injuries did not remove him from protection by the same rationale that "the fact that plaintiff was in the process of exiting the job site did not remove him from the protections of Labor Law § 240(1)" (Alarcon v UCAN White Plains Hous. Dev. Fund Corp., 100 AD3d 431 [1^st Dept 2012]). See also Oprea v New York Citv Housing Authority, 226 AD2d 310 (1^st Dept 1996) (the fact that the worker was using the safety device to access the worksite as opposed to carrying out his work on such device did not preclude liability pursuant to Labor Law § 204[1]).

The decisional law is also clear that under Labor Law § 240(1), the loading dock constituted a safety device, as "[plaintiff's] injuries were gravity-related, and the elevated platform served as a device designed to protect a worker from gravity-related hazards" (Cassidy v Hiahrise Hoisting & Scaffolding, Inc., 89 AD3d 510, 511 [1^st Dept 2011]).

II. Labor Law § 200

With respect to defendants' motion as to plaintiff's Labor Law 200 and common law negligence claims, the court shall deny summary judgment dismissing such claims. Whether defendants had the requisite notice of the dangerous condition in the form of the absence of guard rails on the loading dock is an issue of fact (Burton v CW Equities, LLC, 87 AD3d 462 [1^st Dept 2012]).

Accordingly, it is

ORDERED that the motion of defendant NY-1095 Avenue of the Americas, LLC pursuant to CPLR 3212 for summary judgment dismissing plaintiff's claim under Labor Law § 241(6) is granted without opposition, and is denied as to summary judgment dismissing plaintiff's claims under Labor Law § 200; and it is further

ORDERED that the motion of defendant Structure Tone, Inc. pursuant to CPLR 3212 for summary judgment dismissing plaintiff's claim under Labor Law § 241(6) is granted without opposition, and denied to the extent that it seeks summary judgment dismissing plaintiff's claims pursuant to Labor Law § 200; and it is further

ORDERED that plaintiff's cross motion for summary judgment pursuant to CPLR 3212 as to liability under (a) Labor Law § 240 (1) is granted. Dated: March 22, 2016

ENTER

/s/ _________

J.S.C.