Opinion
Index No. 500744/2020 Cal Nos. 6 7 Motion Seq. Nos. 6 4
07-15-2024
SANDRA NIEVES and CHARLES BIANCO, Plaintiffs, v. WDF INC. and ST. TERESA'S ROMAN CATHOLIC CHURCH IN THE BOROUGH OF BROOKLYN, IN THE CITY OF NEW YORK. Defendants.
Unpublished Opinion
At an IAS Tenn. Part 13, of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse at 320 Jay Street. Brooklyn, New York on the 15th day of July 2024.
PRESENT: HON. RUPERT V. BARRY, J.S.C.
DECISION & ORDER
HON RUPERT V. BARRY, J.S.C.
Recitation, as required by CPLR 2219 (a), of the papers considered in review of Plaintiffs motion for summary judgment pursuant to CPLR 3212 asserting that Defendants failed to provide a safe work environment pursuant to Labor Law §§ 240 (1) and 241 (6), and Defendants cross-motion for summary judgment to dismiss the case against them. NYSCEF Doc. Nos.: 75-97; 138-141; 120-137; 142-146.
Upon the papers submitted, this Court finds as follows:
This matter arises from allegations by Plaintiff Nieves that she sustained injuries while employed as a painter for subcontractor non-party Robell Painters Co., at 541 St. John's Place, Brooklyn, New York (hereinafter "subject premises"). Plaintiff Nieves alleges that while painting at the subject premises, she attempted to descend from a scaffold and fell due to an unsecured ladder. Plaintiffs files this instant motion for summary judgment and Defendants (i) general contractor WDF Inc. (hereinafter "WDF") and (ii) the owner of the premises "St. Teresa's Roman Catholic Church in Borough of Brooklyn, in The City of New York," filed a cross-motion seeking dismissal of Plaintiffs' claims, alleging, amongst otherthings, that there are no triable issues of fact.
Plaintiffs' motion
To prevail on a motion for summary judgment, the movant must make a prima facie showing of entitlement as a matter of law (Hutchison v Sheridan Hill House Corp., 26 N.Y.3d 66 [2015]). Once the movant has made such a showing, the party opposing the motion must show that there is a material issue of fact that requires a trial (Zuckerman v City of New York, 49 N.Y.2d 557, 560 [1980]).
Pursuant to Labor Law § 240(1), "[a]ll contractors and owners and their agents. . . in the . . . painting. . . shall furnish or erect, or cause to be furnished or erected for the perfonuance of such labor, scaffolding, hoists, stays, ladders, . . . and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."
In this instant case, this Court finds that Plaintiffs made their prima facie showing to support their entitlement to summary judgment under Labor Law § 240(1). Plaintiffs' evidence showed that tire ladder provided for Plaintiff Nieves, and from which she attempted to descend, did not provide proper protection. It was only one portion of an extension ladder which was inadequately secured.
Summary judgment should be granted under Labor Law § 240(1) if Plaintiff Nieves can demonstrate that her injuries are a proximate cause of Defendants failure to provide Plaintiff Nieves with the appropriate safety devices (Venegas v Shymer, 201 A.D.3d 1001, 1003 [2d Dept 2022]). Labor Law § 240(1) "'imposes upon owners, contractors, and their agents a nondelegable duty that renders them liable regardless of whether they supervised or control the work'" (Ochoa v JEM Real Estate Co., LLC, 223 A.D.3d 747. 748 [2024]). This Court finds that there is sufficient credible evidence to show that as Plaintiff Nieves was stepping on the ladder, it moved, causing her to fall due to the failure of Defendants to properly secure that ladder. Thus. Plaintiffs' motion for summary judgment under Labor Law § 240(1) is granted.
Defendants alleged that Plaintiff Nieves fell due to her own negligence as she was on her phone and facing the ladder improperly as she descended from the ladder. However, this Court finds that Defendants are liable for the injuries sustained by Plaintiff Nieves due to Defendants failure to provide her with a ladder that was properly secured. Furthermore, the ladder that Plaintiff Nieves was using, according to deposition testimony by WDF Inc. safety manager Robert Salcedo, was not an appropriate ladder for the work being done. The ladder, according to Mr. Salcedo, was one-half of an extension ladder and was not designed to be used in such manner.
Defendants also argue that the scaffold that Plaintiff Nieves was on, prior to ascending to the ladder, was signed off by Robell Foreman, Joseph Poli. This Court does not find that argument persuasive. WDF as a General Contractor, hired safety managers to prevent work accidents. The fact that Joseph Poli may have told the Safety Manager that he inspected the scaffold, and it is safe would not relieve Defendants of liability. WDF Safety Managers had the ability to stop workers from using unsafe equipment and unsafe work practices. Furthermore, WDF was required to inspect and sign off on equipment prior to permitting subcontractors to use it.
Next, Plaintiffs move for summary judgment under Labor Law § 241(6), which requires "all contractors and owners and their agents. . . when constructing or demolishing buildings. . .shall. . .provide reasonable and adequate protection and safety to the persons employed 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" (Ochoa v JEM Real Estate Co., LLC 223 A.D.3d 747, 749 [2024]). To establish liability under Labor Law § 241(6), Plaintiffs must prove that the injuries were caused by a violation of an applicable Industrial Code. The applicable code, Industrial Code 12 NYCRR § 23-1.21 (b)(4)(iv) states:
"When work is being performed from ladder rungs between six and 10 feet above the ladder footing, a leaning ladder shall be held in place by a person stationed at the foot of such ladder unless the upper end of such ladder is secured against side slip by its position or by mechanical means. When work is being performed from rungs higher than 10 feet above the ladder footing, mechanical means for securing the upper end of such ladder against side slip
are required and the lower end of such ladder shall be held in place by a person unless such lower end is tied to a secure anchorage or safety feet are used.''
It remains undisputed that Plaintiff Nieves was using a leaning ladder and did not have anyone at the base of her ladder to ensure that it was properly secured nor was her ladder properly footed. Therefore, based upon the evidence submitted, Plaintiffs has established a prima facie entitlement to summary judgment.
Defendants also seeks to dismiss the claims brought against them brought under common law negligence. Defendants argue that they did not have actual or constructive notice of the alleged defective ladder. Defendants' contention that they are not liable for Plaintiff Nieves' injury in that the ladder used by Plaintiff Nieves was provided by non-party Robell Painters Co. is unpersuasive. Industrial Code 12 NYCRR § 23-1.21 (b)(4)(iv) and 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 areas of their work sites.
Defendant's cross-motion
Defendants, in their cross-motion for summary judgment allege that the claims brought by Plaintiffs in their complaint must be dismissed as they failed to raise any triable issues of fact under Labor Law §§ 240(1), 241(6), and Industrial Codes 12 NYCRR § 23-1.21(b)(4)(iv). 12 NYCRR § 23-1.7(d), 12 NYCRR § 23-1.16, 12 NYCRR § 23-1.17, and 12 NYCRR § 27-1.7(d). For the reasons previously addressed, Defendants' cross-motion seeking dismissal of Labor Law §§ 240(1), and Industrial Code 12 NYCRR § 23-1.21 (b)(4)(iv) is denied.
Addressing Defendants' application to dismiss Industrial Codes 12 NYCRR § 23-1.7(d), 12 NYCRR § 23-1.16, 12 NYCRR § 23-1.17. In that Plaintiffs failed to respond Defendants application in regard to these specific claims, this Court finds these Industrial Codes are abandoned (Pita v Roosevelt Union Free Sch. Dist., 156 A.D.3d 833. 835 [2d Dept 2017]) and dismisses them.
Defendants also move to dismiss Industrial Code 12 NYCRR § 27-1.7(d). As Industrial Code 12 NYCRR § 27-1.7(d) does not exist, this branch of Defendants' cross-motion is denied.
For the reasons stated above, it is
ORDERED, that Plaintiffs' motion (MSQ No.: 4) for summary judgment as to Labor Law § 240(1) is GRANTED, and a detennination as to damages shall be made at trial. It is further
ORDERED, that Plaintiffs' motion for summary judgment (MSQ No.: 4) as to Industrial Code 12 NYCRR § 23-1.21 (b)(4)(iv) is GRANTED, and a determination as to damages shall be made at trial. It is further
ORDERED, that Defendants' cross-motion (MSQ No.: 6) for summary judgment as to Labor Law § 240(1) and Industrial Code 12 NYCRR § 23-1 21(b)(4)(iv) are DENIED. It is further
ORDERED, that Defendants' cross-motion for summary judgment (MSQ No.: 6) dismissing Plaintiffs' Labor Law § 200 is GRANTED. It is further
ORDERED, that Defendants' cross-motion for summary judgment dismissing Plaintiffs' claims under Industrial Codes 12 NYCRR 23-1.7(d), 12 NYCRR 23-1.16(b). 12NYCRR 23-1.17 is GRANTED, and those claims are DISMISSED as abandoned. It is further
ORDERED, in that Industrial Code 12 NYCRR § 27-1.7(d) does not exist, this branch of Defendants' cross-motion seeking to dismiss that code section is DENIED. It is further
ORDERED, that all applications not specifically addressed herein are denied.
This constitutes the decision and order of this Court.