Opinion
75815/04.
Decided August 28, 2006.
Plaintiff: Paul Biruld.
Defendant: Robyin, Schepp, Yuhas Harris Ryan gulino Boniva.
On November 21, 2002, the plaintiff, Stanislaw Lech (hereinafter, Lech), while being handed a piece of plywood from the second floor to be stacked on the third floor of 1203 Myrtle Avenue, Brooklyn, NY, premises owned by the defendant/third-party plaintiff, Neighborhood Partnership Housing Development Fund Company, Inc. (hereinafter, NPHDFC), allegedly sustained injuries when his right foot slid, causing him to slide forward atop his elevated work site platform (beams at sixteen inch intervals, with his left foot on a beam and his right foot on a five by sixteen inch piece of plywood with a beam in between) and to fall from a standing to a seated position while holding onto the beam.
NPHDFC has now moved this court, pursuant to CPLR 3212, for summary judgment seeking dismissal of Lech's causes of action under Labor Law §§ 200, 240, and 241(6). NPHDFC predicates its request on the fact that Lech was hired by Staten Island Contractors as a construction laborer and supervised by its own foreman, Chris Pawelac. A fortiori, NPHDFC stresses that it did not ". . . supervise, direct nor dictate the work means or methods of work to Staten Island Contractors and/or its employees[,] including Stanislaw LECH . . ." In addition, NPHDFC notes that Lech ". . . provided sworn, unequivocal testimony that the piece of plank and/or plywood upon which he was standing did not move, slip, kick and/or collapse before his incident." NPHDFC cites the Court of Appeals holding in the matter of Comes v. New York State Electric and Gas Corporation, 82 NY2d 876, for the proposition that "[w]here the alleged defect and/or dangerous condition arises from a contractor's methods and an owner and/or general contractor exercises no supervisory control over the operation, no liability will attach to the owner and/or general contractor under common law or under the Labor Law Section 200." (Citing also, Landa v. City of New York, 17 AD3d 180 and Mitchell v. New York University, 12 AD3d 200). In addition, NPHDFC notes that since Lech ". . . did not fall to any floor below nor did any item strike him from above" there is no basis for recovery under Labor Law § 240 which requires that injuries be related to the effects of gravity (citing, Ross v. Curtis Palmer Hydroelectric Company, 81 NY2d 494; Hicks v. Montefiore Medical Center, 266 AD2d 14 [1st Dept, 1999]; Bonaparte v. Niagara Mohawk Power Corp., 188 AD2d 853 [2nd Dept., 1993]; Smith v. The county of Nassau, 242 AD2d 380 [2nd Dept., 1996]). Insofar as the industrial code violations alleged by Lech, NPHDFC points out that they have no applicability since the accident herein neither involved safety belts, life nets, or scaffolds as respectively governed by 12 NYCRR 23-1.16, 1.17 and 5.1 (citing, Toefer v. Long Island Railroad, 4 NY3d 399; Adendano v. Sazerac, 248 AD2d 340 [2nd Dept., 1988]; and Bennion v. Goodyear Tire and Rubber Company, 229 AD2d 1003 [4th Dept., 1996]), nor ramps, runways and/or platforms used in the transport of vehicular and/or pedestrian traffic pursuant to 12 NYCRR 23-1.22 (citing, Curley v. Gateway Commons, Inc., 250 AD2d 288 [3rd Dept, 1998]), or skeleton steel construction in tiered buildings under 12 NYCRR 23-2.14, (citing, Bennion v. Goodyear Tire and Rubber Company, supra).
Lech, in response, interposed a cross-motion for summary judgment against NPHDFC on the issue of liability under Labor Law §§ 240(1) and 241(6) and in opposition to NPHDFC's summary judgment motion, as above set forth. Although Lech in large measure agrees with the rendition of facts as asserted by NPHDFC insofar as the accidental occurrence is concerned, he strenuously disputes the issues of ultimate responsibility for and description of the job site. Lech, as attested to by an eyewitness, submits that he was ". . . working on beams on an unconstructed floor standing on a makeshift, unstable and unsecured scaffold/platform consisting of a plywood plank, at a height of approximately 15 feet above the unconstructed floor/level below." In addition, Lech asserts that his fall was attributable to the plank shifting; i.e., ". . . his legs split, and he ended up with his legs falling through the beams to [the] unconstructed lower level and to either side of a beam. In short, he ended up with his legs falling through the beams and landing on a beam between his legs straddling either side of a beam and dangling into the ceiling space of the floor below." Consequently, Lech notes that Labor Law § 240(1) is indeed applicable since it ". . . imposes absolute liability upon contractors, owners and their agents for injuries proximately caused by a failure to provide proper protection under the circumstances where an elevation differential places a worker at risk, and injury is caused by such elevation differential (citing, Elkins v. Robbins Cowan, Inc., 237 AD2d 404, 655 NYS2d 563 [2nd Dept., 1997]; and Kaborycha v. Kimmins Industrial Service Corp., 243 AD2d 687, 663 NYS2d 642 [2nd Dept., 1997]). In addition, Lech argues that the holding in Frierson v. Concourse Plaza Associates, 189 AD2d 609, 592 NYS2d 309 [1st Dept., 1993], is especially apropos in that the Appellate Division, First Department therein determined that whether or not a device constitutes a scaffold is generally a question of fact, but where a claimant who was standing on unsecured plank laid across beams which collapsed, that makeshift setup was a scaffold as a matter of law with resultant 240(1) liability (citing also, Graziano v. 118-17 Libery Avenue Management Corp., 209 AD2d 582, 619 NYS2d 102 [2nd Dept., 1994] unsecured wooden planks placed across the supporting structure of a drop ceiling, which planks fell; Farrel v. City of New York, 162 AD2d 655, 557 NYS2d 101 [2nd Dept., 1990] unsecured plank collapsed; Evans v. NAB Construction Corp., 80 AD2d 841, 436 NYS2d 774 [2nd Dept., 1981] unsecured planks across two steel columns collapsed; Latera v. Rockville Centre Union Free School District, 186 AD2d 789, 589 NYS2d 87 [2nd Dept., 1992] claimant fell from atop a boiler being used as a scaffold and no safety devices or safeguards were provided. In contrast, Lech notes that the Papapietro v. Rock Time, Inc., 265 AD2d 174 [1st Dept., 1999], Bennion v. Goodyear Tire Rubber Co., et al, supra, and Fragoman v. Pyramid Cos Development and Management, 213 AD2d 984 [4th Dept., 1995] matters referenced by NPHDFC are inapposite to its position in that the first involved a fall atop an elevator, the second entailed a scenario identical to the matter sub judice, and the last involved a fall limited to the worker's work level as did Bonaparte v. Niagara Mohawk Power Corp., supra and Smith v. County of Nassau, supra, where the claimants tripped over electrical wire on the scaffolds on which they had been working. Lech concludes by asserting that inasmuch as ". . . he was standing on a beam and a makeshift scaffold/platform consisting of an unsecured plywood plank . . ." NPHDFC is absolutely liable for the accident which befell him, and he should accordingly be granted summary judgment pursuant to Labor law §§ 240(1) and 240(6).
In response to the foregoing, NPHDFC, adoptively joined by Cheever Development Corporation (hereinafter Cheever), the third-party defendant, in opposition to Lech's cross-motion for summary judgment contends that in the cases cited by Lech ". . . all or some portion of an elevated work surface collapsed causing plaintiff's accident. However, in the case at bar plaintiff Lech's own testimony establishes that no portion of the elevated work site moved, shifted and/or collapsed anytime (sic) before his fall. . . . Plaintiff's deposition testimony also establishes that the plaintiff slid wholly onto the beam upon which he was standing and working following his incident." (citing, Fragoman v. Pyramid Cos Development Management, 213 AD2d 984 [4th Dept., 1995]; Bonaparte v. Niagara Mohawk Power Company, supra; and Smith v. County of Nassau, supra). NPHDFC also argues that Lech's affidavit in support of his request for summary judgment to the effect that an unsecured plywood plank slid from under his foot as he was standing atop a beam contradicts his earlier deposition testimony in an attempt to create liability under Labor Law § 240. In that regard, NPHDFC argues that ". . . where an injured worker's version of an accident is inconsistent with his own previous accounts, a triable issue of fact is presented (citing the 1st Dept. Matters of Hicks v. Montefiore Medical Center, supra; and Errnish v. The City of New York, 2 AD3d 256, [AD, 1st, 2003]). Finally, NPHDFC reiterated its position that since none of the items specified in the industrial code sections referenced by Lech were in use, particularly the scaffold provision of NYCRR 23-5.1 which Lech seems most intent on establishing as relevant, they are inapplicable.
Finally and in reply to the preceding, Lech notes that contrary to NPHDFC's misrepresentation of events, his rendition of the accident is substantiated by the eyewitness who was deposed and establishes that he fell from an elevated work site by slipping on an unsecured piece of plywood and was left dangling between a beam. In addition, Lech notes that neither NPHDFC's request for summary judgment nor its opposition to his cross-motion for the same relief are supported by affidavits of any persons with personal knowledge. Therefore, since NPHDFC has not offered any proof, other than affirmations of counsel who lacks personal knowledge of the facts to support its position and to refute his requests, the former should be denied and the latter granted as a matter of law (citing, Place v. Grand Union company, 184 AD2d 817, 584 NYS2d 666 [3rd Dept., 1992]; Grieshaber v. City of New Rochelle, 113 AD2d 821, 493 NYS2d 497 [2nd Dept., 1985]; Urrea v. Sedgwick Avenue Associates, 191 AD2d 319, 595 NYS2d 46 [1st Dept., 1993]; Fernandez v. MHP Land Associates, 188 AD2d 417, 591 NYS2d 835 [1st Dept., 1992]).
The objective of a motion for summary judgment is "issue-finding, not issue-determination." In assessing such a motion, the "court should draw all reasonable inferences in favor of the non-moving party" (see Assaf v. Ropog Cab Corp., 153 AD2d 520, 544 NYS2d 834 [1989]). "A party seeking summary judgment 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" (Ayotte v. Grevasioi, 81 NY2d 1062, 601 NYS2d 463; Alvarez v. Prospect Hosp., 68 NY2d 320, 508 NYS2d 923). Once a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material questions of fact (see Alvarez v. Prospect Hosp., supra).
"Labor Law § 200 codifies the common law duty imposed on an owner or general contractor to provide construction site workers with a safe work site" (See Nevins v. Essex Owners Corp., 276 AD2d 315, 714 NYS2df 38; Bessinger v. The Estee Lauder Co., 271 AD2d 343, 707 NYS2d 78). However, an explicit precondition to this duty is that the party charged with that responsibility have the authority to control the activity bringing about the injury." (See Russin v. Picciano Son, 54 NY2d 311, 445 NYS2d 127). It is equally the fact that "both owners and general contractors are strictly liable for providing the necessary devices to protect workers' safety under Labor Law § 240(1)" (see Thompson v. St. Charles Condominiums, 303 AD2d 152, 756 NYS2d 530). In order to establish liability under § 240(1), a violation of the statute must be demonstrated and shown to have been a proximate cause of the injuries sustained (see Blake v. Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 771 NYS2d 484). Afterall, "liability is contingent upon the existence of a hazard contemplated in § 240(1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" (see Narducci v. Manhasset Bay Assocs., 96 NY2d 259). Hence,
". . . where a safety device has been furnished, and it collapses, a prima facie case of liability under Labor Law § 240(1) is established" (See Aragon v. 233 W. 21st St., Inc., 201 AD2d 353, 607 NYS2d 642). Under Labor Law § 241(6), contractors and owners are charged with the non-delegable duty to provide reasonable and adequate protection and safety to construction workers. Accordingly, a violation of an Industrial Code provision which sets forth specific safety standards is required to result in liability thereunder (see Ross v. Curtis-Palmer Hydro-Elec Co., 81 NY2d 494, 601 NYS2d 49).
NPHDFC's reliance on the deposition testimonies of the plaintiff and an eyewitness in its moving papers, in the absence of an affidavit by one with personal knowledge is inadequate to establish a prima facie showing sufficient to demonstrate the absence of any material issues of fact warranting summary judgment in its favor, particularly as it relates to the issue of supervision and control over the work site. By the same token, the plaintiff's affidavit (in support of his request for summary judgment and in opposition to NPHDFC's demand for the same relief) when contrasted with his prior deposition testimony, as referenced by both sides, certainly creates a conflict with regards to the manner in which the fall in question is said to have occurred, such that it could very well suggest a feigned attempt to create false issues of fact (See Stancil v. Supermarkets General, supra, citing Marcelle v. NY City Transit Auth., 289 AD2d 459 [2001]). What is clear in the matter sub judice, is that no safety devices were in use at the work site, save for possibly a make-shift scaffold consisting of inter-spaced beams which comprised the third floor on which the plaintiff had been standing. Whether or not that set-up was a scaffold; i.e., an elevation-related risk, or a proximate cause of his injuries raises triable issues of fact that can not be resolved via summary judgment. Therefore, on the basis of all of the foregoing, NPHDFC's motion, pursuant to CPLR 3212, for summary judgment seeking dismissal of plaintiff Lech's causes of action under Labor Law §§ 200, 240, and 241(6) and Lech's cross-motion for summary judgment against NPHDFC on the issue of liability under Labor Law §§ 240(1) and 241(6) are dismissed. This constitutes the decision and order of this Court.