Opinion
28562/10
11-09-2011
Ismael Nunez, Plaintiff, v. The City of New York, The New York City Board of Education, New York City Department of Education, and New York City School Construction Authority, Defendants.
Plaintiff Attorney: Lipsig, Shapey, Manus & Monerma. Defendant Attorney: Cozen & O'Connor.
Plaintiff Attorney: Lipsig, Shapey, Manus & Monerma.
Defendant Attorney: Cozen & O'Connor.
David Schmidt, J.
The following papers numbered 1 to 8 read on this motion:
Papers Numbered
Notice of Motion/Order to Show Cause/
Petition/Cross Motion and
Affidavits (Affirmations) Annexed1-3, 4-6
Opposing Affidavits (Affirmations)7, 8
Reply Affidavits (Affirmations)
Affidavit (Affirmation)
Other Papers
Plaintiff Ismael Nunez moves for an order, pursuant to CPLR 3212, granting partial summary judgment on his Labor Law § 240(1) claim on the issue of liability against defendants City of New York, The New York City Board of Education, New York City Department of Education and New York City School Construction Authority (collectively, the defendants). Defendants cross-move for an order, pursuant to CPLR 3212, granting summary judgment dismissing plaintiff's Labor Law § 240(1) cause of action. Factual Background
This action arises out of an incident which occurred on July 1, 2010, when the plaintiff Ismael Nunez (plaintiff) was allegedly injured while performing asbestos removal work at P.S. 121, Nelson A. Rockefeller School, located at 5301 20th Avenue in Brooklyn, New York. Pursuant to an agreement, TDX Construction was the Construction Manager and Agent retained by defendant New York City School Construction Authority. TDX thereafter contracted Jaysan Contracting Corporation, not a party herein, as the General Contractor. Jaysan, in turn, hired non-party Vestar, Inc., to perform asbestos removal and disposal work at the premises. At the time of the accident, the plaintiff was employed by Vestar as an asbestos abatement worker.
During his deposition, the plaintiff testified that he was instructed by his supervisor, Mirna Villatoro, to work in a bathroom located on the first floor of the premises, and to install plastic (poly) covering on the walls. According to plaintiff, the cement floor in the bathroom was broken up because it had previously been demolished before he started working. On the day of the accident, the plaintiff was working with a Vestar co-worker named John Ramirez. The plaintiff and Ramirez were each provided with 10-foot A-frame ladders. The ladder given to the plaintiff was made of fiber-glass and was provided by plaintiff's supervisor, Villatoro. Plaintiff claimed that he initially began working with the ladder in a closed position leaned up against the bathroom wall because of the demolished nature of the bathroom floor. However, after approximately 15 minutes, he claimed that Villatoro saw him and instructed him, as well as Nunez, to open up the ladders. Plaintiff claimed that he then fully opened up his ladder, engaged the locking clips, and proceeded with his work. The accident occurred approximately 15 minutes later. According to the plaintiff, he was standing on the third rung from the top of the ladder, which was fully extended and locked. As the plaintiff leaned forward to apply poly on the bathroom wall, the ladder suddenly moved causing him as well as the ladder to fall approximately 10 feet to the ground. Plaintiff alleges that he sustained various injuries as a result. Plaintiff further testified that he was not provided with any rope or other devices to secure the ladder, nor was anyone holding the ladder at the time. Plaintiff subsequently commenced the within action against defendants, alleging common-law negligence and violations of Labor Law §§240(1), 200 and 241(6). The issue presently before the court is plaintiff's motion for partial summary judgment on his Labor Law § 240(1) cause of action, and defendants' cross-motion to dismiss same. Discussion
It is well established that a party moving for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (see Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman, 49 NY2d at 562). Summary judgement, however, is a drastic remedy that should not be granted where there is any doubt as to the existence of triable issues of fact (see Alvarez, 68 NY2d at 324; see also Herrin v Airborne Freight Corp., 301 AD2d 500, 505-01 [2003]).
"Labor Law § 240 (1) imposes absolute liability upon an owner or contractor for failing to provide or erect safety devices necessary to give proper protection to a worker who sustains injuries proximately caused by that failure" (Bland v Manocherian, 66 NY2d 452, 459 [1985]). "[T]he availability of a particular safety device will not shield an owner or general contractor from absolute liability if the device alone is not sufficient to provide safety without the use of additional precautionary devices or measures" (Conway v New York State Teachers' Retirement Sys., 141 AD2d 957, 958-959 [1988]; see Nimirovski v Vornado Realty Trust Co., 29 AD3d 762, 762 [2006]). "In order to prevail on a Labor Law § 240 (1) cause of action, a plaintiff must establish that the statute was violated and that the violation was a proximate cause of his or her injuries" (Rudnik v Brogor Realty Corp., 45 AD3d 828, 829 [2007]; see Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 287 [2003]). "Labor Law § 240(1) requires that safety devices, such as ladders, be so constructed, placed and operated as to give proper protection to a worker"(Klein v City of New York, 89 NY2d 833, 834—835 [1996]). "The failure to properly secure a ladder, to ensure that it remain steady and erect while being used, constitutes a violation of Labor Law § 240(1)." Wasilewski v Museum of Modern Art, 260 AD2d 271 [1999]).
Here, the plaintiff was working on a ladder performing asbestos abatement work and thus was subject to an elevation-related risk (Gordon v Eastern Ry. Supply, 82 NY2d 555, 561 [1993]; see Mooney v PCM Dev. Co., 238 AD2d 487, 488 [1997]). In support of his motion, the plaintiff has submitted his own deposition testimony wherein he testified that he fell when the ladder, which was placed on an uneven ground and was not otherwise secured, slipped out from under him while he was working. In further support, the plaintiff has submitted the affidavit of John Ramirez, a Vestar co-worker, who was working with the plaintiff on the day of the accident. According to Ramirez, he and the plaintiff were both given a 10-foot A-frame ladder to perform their work in the bathroom. He claimed that the plaintiff was working on the ladder in an open fully extended position when it suddenly shifted to the side causing the plaintiff to fall to the ground. He further claimed that prior to the fall, the locking clips on the ladder were engaged (see Freund Affirm, Ex. G).
Based upon the foregoing, the court finds that the plaintiff has met his burden of establishing that the subject ladder provided to him was inadequate to protect him from the elevation-related risk to which he was exposed, based upon the failure to secure the ladder (see Granillo v Donna Karen Co., 17 AD3d 531 [2005]) and the improper placement of the ladder on an uneven surface (see Klein v City of New York, 89 NY2d 833, 835 [1996]; Gillani v 66th Street Woodside Property, LLC, 63 AD3d 678 [2009]; Ruiz v WDF, Inc., 45 AD3d 758 [2007]). Indeed, since the subject ladder did not prevent plaintiff from falling, the core' objective of section 240 (1) was not met (see Gordon v Eastern Ry. Supply, 82 NY2d at 561; Woods v Design Ctr., LLC, 42 AD3d 876, 877 [2007]; Dasilva v A.J. Contr. Co., 262 AD2d 214 [1999]). The evidence showed that the accident could have been prevented by the proper placement of the ladder (see Klein, 89 NY2d at 835; Quinlan v Eastern Refractories Co., 217 AD2d 819, 820 [1995]; see also Riffo-Velozo v Village of Scarsdale, 68 AD3d 839 [2009]; Rudnik v Brogor Realty Corp., 45 AD3d 828, 829 [2007] [plaintiff's actions in placing closed A-frame ladder against the wall from atop the scaffold was not considered sole proximate cause of injuries]).
In opposition, the defendants argue that issues of fact exist as to whether plaintiff's actions were the sole proximate cause of the accident. In this regard, defendants contend that there are conflicting accounts of how the accident occurred and specifically how the plaintiff positioned the ladder. Defendants point to an unsworn statement by Ramirez which states that the ladder was closed and leaning up against the bathroom wall at the time of the accident, which is contrary to the plaintiff's version of how the ladder was positioned. Defendants further argue that the plaintiff has failed to establish that the subject ladder was in any way defective.
"[W]here a plaintiff's own actions are the sole proximate cause of the accident, there can be no liability" (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39 [2004]). However, "if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it" (Blake, 1 NY3d at 290; see also Robinson v East Med. Ctr., LP ., 6 NY3d 550, 554 [2006]). "[R]egardless of the precise manner in which the accident occurred, a defendant is not absolved from liability where . . . a plaintiff's injuries were at least partially attributable to the defendant's failure to provide protection as mandated by the statute" (Cammon v City of New York, 21 AD3d 196, 201 [2005]). Moreover, contrary to defendants' contention, the plaintiff is not required to show that the ladder on which he was standing was defective (Orellano v 29 East 37th Street Realty Corp., 292 AD2d 289 [2002]). Rather, the proper inquiry under Labor Law § 240(1) is whether the ladder provided proper protection to plaintiff.
Here, the court finds that the defendants have failed to raise a triable issue of fact as to whether the plaintiff's own actions were the sole proximate cause of the accident (see Boe v Gammarati, 26 AD3d 351, 352 [2006 ]; Chlap v 43rd St.-Second Ave. Corp., 18 AD3d 598 [2005]; Peter v Nisseli Realty Co., 300 AD2d 289, 290 [2002]; see also Gilhooly v Dormitory Auth. of State of New York, 51 AD3d 719 [2008]). There is no evidence that the accident was caused solely by plaintiff's improper use of the ladder. Even if the plaintiff had in fact failed to fully open the ladder, as the defendants contend, such conduct would not have been the sole proximate cause of the accident, inasmuch as the broken and uneven floor on which the ladder was positioned would still be a contributing factor (see Ruiz v WDF, Inc., 45 AD3d 758; Izzo v AEW Capital Mgt., 288 AD2d 268, 269 [2001]). Furthermore, there is no dispute that the plaintiff was not provided with any ropes or other devices to secure the ladder on the uneven floor.
Defendants' reliance on Intriago v City of New York, 44 AD3d 1008 [2007] is misplaced. In Intriago v City of New York, supra, the plaintiff was given a choice of A-frame ladders of varying heights, and he chose the smallest one, which he admitted he used improperly, as he did not fully open it. Although he claimed that the boiler room in which he was working was too small to allow him to fully open the ladder, the court found that he did not meet his prima facie burden for summary judgment as he did not proffer evidence about the dimensions of the boiler room or the ladder. This case is distinguishable because the plaintiff in this case knowingly took unnecessary risks by failing to use an available and appropriate safety device.
Here, in contrast, plaintiff did not fail to use an available and appropriate safety device, nor did he knowingly take any unnecessary risks. Even if the plaintiff failed to open the ladder and engage the locking clips, negligence on plaintiff's part cannot serve as a defense to a section 240 (1) claim as long as his negligence is not the sole proximate cause of the accident (see generally Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d 280 [2003]; Rudnik v Brogor Realty Corp., 45 AD3d at 829).
Defendant's reliance upon Sprague v Peckham Materials Corp., 240 AD2d 392 (1997) under the factual circumstances presented is also misplaced. In Sprague v Peckham Materials Corp., 240 AD2d 392 [1997]) although there was no allegation before the court that the ladder was defective, the court did find that the accident was caused at least in part by the ladder's being placed on gravel. "Labor Law § 240(1) does not limit itself to the condition and design of the safety devices themselves; it requires that they be so constructed, placed and operated as to give proper protection'"(Secord v Willow Ridge Stables, Inc., 179 Misc 2d 366 [1999]). In the present case, it is undisputed that the ladder was resting on an uneven surface at the time of the accident and, therefore, was not properly placed pursuant to Section 240(1). Lastly, Alava v City of New York, 246 AD2d 614 (1998), upon which defendants also rely, does not compel a different result.
Accordingly, plaintiff's motion seeking partial summary judgment on his Labor Law 240(1) cause of action is granted. That branch of defendants' motion seeking summary judgment dismissing said claim is hereby denied.
The foregoing constitutes the decision and order of the court.
ENTER,
J. S. C.