Opinion
Index Nos. 151987/2018 595342/2018 595687/2020 MOTION SEQ. No. 003
01-19-2024
RAFAEL RIVADENEIRA, JESSICA VANEGAS, Plaintiff, v. 731 COMMERCIAL LLC, TRI-STAR CONSTRUCTION CORP., Defendant. 731 COMMERCIAL LLC, TRI-STAR CONSTRUCTION CORP Plaintiff, v. TRI STATE DISMANTLING CORP. Defendant. 731 COMMERCIAL LLC, TRI-STAR CONSTRUCTION CORP Plaintiff, v. TRI STATE DISMANTLING CORP. Defendant.
Unpublished Opinion
PRESENT: HON. FRANCIS A. KAHN, III Justice
DECISION + ORDER ON MOTION
Francis A. Kahn III Judge
The following e-filed documents, listed by NYSCEF document number (Motion 003) 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118 were read on this motion to/for JUDGMENT - SUMMARY.
Upon the foregoing documents, the motions are decided as follows:
In this action Plaintiff seeks to recover for injuries allegedly sustained when he fell from an A-frame ladder. Plaintiff claims at the time of the incident he was performing work as a laborer as an employee of Third-Party Defendant Tri-State Dismantling Corp ("Tri-State") at a premises located at 731 Lexington Avenue, New York, New York. The premises was owned by Defendant 731 Commercial LLC ("Owner"). Defendant Owner contracted with Defendant Tri-Star Construction Corp. ("Tri-Star") to be the general contractor on a demolition project at the location.
On February 5, 2018, Plaintiff was tasked with cutting and removing metal electrical conduits at the premises. Plaintiff testified at his deposition that to facilitate his work, he obtained an eight-foot A-frame fiberglass ladder provided by his employer. Plaintiff stated that the incident occurred approximately ten minutes after his lunch break while he was engaged in cutting metal conduits with an electric powered Sawzall, a task he had performed hundreds of times previously. He stated that to reach the conduits, which were 13 to 14 feet above the floor, he was required to ascend the ladder and stand on its platform. Plaintiff testified that he erected the ladder, locked it in the open position and placed its feet on a level concrete floor. Plaintiff acknowledged that he inspected the ladder before using it, found no problems and moved it two or three times immediately prior to the incident without issue. A co-employee, Santana, was working nearby cleaning up debris that fell when the conduits were cut. Plaintiff testified that the incident occurred when the blade of the Sawzall he was operating with both hands became stuck in the metal conduit. As a result, Plaintiff averred that "I moved. The ladder shook. It tipped over to the left, the ladder. I fell to the right." Plaintiff also described the incident as follows:
The Sawzall got stuck on the pipe. The ladder wiggle, and as it was shaken to the left, I fell to the right. My reaction by then, I couldn't grab onto anything. And Santana's reaction, he tried to grab the ladder. By then it was too late. 1 was already falling.
Plaintiff commended this action to recover for the injuries he allegedly sustained and pled causes of 1 action under sections 200, 240[ 1 ] and 241 [6] of the Labor Law. Defendants Owner and Tri-Star filed separate answers. Now, Plaintiff moves for partial summary judgment on liability under Labor Law §240[l]. Defendants Owner and Tri-Star jointly oppose Plaintiffs motion and cross-move for summary judgment dismissing Plaintiffs complaint. Third-Party Defendant Tri-State opposes Plaintiffs motion. Plaintiff opposes the cross-motion.
"[T]he proponent of a summary judgment motion 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. Gervasio, 81 N.Y.2d 1062, 1063 [1993] citing Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 [1986]; see also Zapata v. Buitriago, 107 A.D.3d 977 [2d Dept 2013]). Failure to make such a showing requires the denial of the motion, regardless of the sufficiency of the papers in opposition (Alvarez v. Prospect Hospital, supra at 324; see also Smalls v. AJI Industries. Inc., 10 N.Y.3d 733, 735 [2008]). If a prima facie showing is made, the burden shifts to the party opposing the motion to produce proof, in evidentiary form, sufficient to establish the existence of material issues of fact (see eg Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]).
As to Plaintiffs motion, "[i]n order to recover under [Labor Law §] 240(1), the plaintiff must establish that the statute was violated and that such violation was a proximate cause of his or her injury" (Barreto v. Metropolitan Transp. Auth., 25 N.Y.3d 426, 433 [2015]; see also Anderson v. MSG Holdings, L.P., 146 A.D.3d 1 401,402 [1st Dept 2017]). The purpose of Labor Law § 240[1] is to protect workers "from the pronounced risks arising from construction work site elevation differentials" (Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 603; see also Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501 [1993]). The statute imposes "imposes upon owners, contractors and their agents a nondelegable duty that renders them liable regardless of whether they supervise or control the work" (Barreto v. Metropolitan Transp. Auth., supra). However, "the fact that a worker falls at a construction site, in itself, does not establish a violation of Labor Law § 240 (1)" (O'Brien v. Port Auth. of N Y. & N.J., 29 N.Y.3d 27, 33 [2017]). The protections of the statute are triggered where a worker's "task creates an elevation-related risk of the kind that the safety devices listed in section 240 (1) protect against" (Broggy v. Rockefeller Group, Inc., 8 N.Y.3d 675, 681 [2007]; see also Soto v. J.Crew Inc., 95 A.D.3d 721, 722 [1st Dept 2012]). Liability is also contingent upon "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 [2001]; see also Kebe v. Greenpoint-Goldman Corp., 150 A.D.3d 453, 453-454 [1st Dept 2017]). Thus, on a motion for summary judgment, a plaintiff must proffer evidence which demonstrates, in the first instance, that necessary protection from the gravity-related risk of his construction work was not provided and/or that the safety device in use failed to provide proper protection (see eg Badzio v. East 68th St. Tenants Corp., 200 A.D.3d 591 [1st Dept 2021]; Carpentieri v. 309 Fifth Ave., LLC, 180 A.D.3d 571 [1st Dept 2020]).
Here, Plaintiff established prima facie that the A-frame ladder he was utilizing failed to provide him proper protection under the circumstances through his testimony that the unsecured ladder moved when the Sawzall blade became jammed in the conduit he was cutting (see Ward v. Urban Horizons II Hous. Dev. Fund Corp., 128 A.D.3d 434 [1st Dept 2015]; see also Diming Wu v. 34 17th St. Project LLC, 200 A.D.3d 508 [1st Dept 2021]; Concepcion v. 333 Seventh LLC, 162 A.D.3d 493, 494 [1st Dept 2018] Johnson v. General Design & Dev., 225 A.D.2d 970 [3d Dept 1996]). "Whether the ladder moved or whether the plaintiffs fall was caused by [the Sawzall blade sticking] is immaterial, as the A-frame ladder was an inadequate safety device for the work plaintiff was performing" (Diming Wu v. 34 17th St. Project LLC, supra at 509). This result is compulsory under the circumstances as "[t]he failure to properly secure a ladder so as to hold it steady and erect during its use constitutes a violation of Labor Law §240[l ]" (Dasilva v. A. J. Contracting Co., 262 A.D.2d 214 [1st Dept 1999] citing Kijak v. 330 Madison Ave. Corp., 251 A.D.2d 152 ) and no further evidence of the defective nature of the ladder is required (see eg Pierrakeas v. 137 E. 38th St. LLC, 177 A.D.3d 574 [1st Dept 2019]; Fanning v. Rockefeller Univ., 106 A.D.3d 484, 485 [1st Dept 2013]).
In opposition, Defendants' argument that there are issues of fact concerning whether Plaintiff was the sole proximate cause of accident is without merit (see Blake v. Neighborhood Hous. Servs. of N.Y.City, Inc., 1 N.Y.3d 280; Plywacz v. 85 Broad St. LLC, 159 A.D.3d 543, 544 [1st Dept 2018]; Keenan v. Simon Prop. Group, Inc., 106 A.D.3d 586, 589; Ross v. 1510 Assoc. LLC, 106 A.D.3d 471,471 [1st Dept 2013]). At the very least, since the unsecured ladder was partly to blame for the accident, Plaintiffs acts cannot constitute the "sole proximate cause" of his fall (see eg Perrone v. Tishman Speyer Props., L.P., 13 A.D.3d 146 [1st Dept 2004]; Torres v. Monroe College, 12 A.D.3d 261 [1st Dept 2004]). Any argument that Plaintiff was to blame based upon his actions at the job site constitutes a claim of comparative negligence which is no defense under Labor Law §240[l] (see generally Cardona v. New York City Hous. Auth., 153 A.D.3d 1179, 1180 [1st Dep't 2017]; Caceres v. Standard Realty Assoc., Inc., 131 A.D.3d 433, 434 [1st Dep't 2015]; Stankey v. Tishman Constr. Corp. of N. Y, 131 A.D.3d 430, 430 [ 1st Dept 2015]). As such, "[i]t is irrelevant that plaintiff inspected the ladder and found it to be in good order before using it, as plaintiff is not required to demonstrate that the ladder was defective in order to make a prima facie showing of entitlement to summary judgment on his Labor Law § 240(1) claim"; (Pinzon v. Royal Charter Props., Inc., 211 A.D.3d 442, 443 [1st Dept 2022]).
Defendants' assertion that multiple post-accident reports and documents create an issue of fact is without merit. Where, "credible evidence reveals differing versions of the accident, one under which defendants would be liable and another under which they would not, questions of fact exist making summary judgment inappropriate" (Ellerbe v. Port Auth. of N.Y.& N.J, 91 A.D.3d 441, 442 [1st Dept 2012]). Admissions by a plaintiff recounted via deposition testimony and/or post-incident reports can be utilized to demonstrate a disparate version of an accident (see Lewis v. 96 Wythe Acquisition LLC, 204 A.D.3d 470 [1st Dept 2022]; Cain v. Ameresco, Inc., 195 A.D.3d 677 [2d Dept 2021]). In this case, a statement attributed to Plaintiff in the hospital record that the accident was caused by a pipe that "swang [sic] towards him pushing him off the ladder", does not raise an issue of fact since a Labor Law §240[ 1 ] violation would exist under this disparate version (see eg Dasilva v. A.J. Contracting Co., 262 A.D.2d 214 [1st Dept 1999]). Contrary to Defendants' assertions, all the other post-accident reports and medical records do not contain versions of the accident that are notably different from Plaintiff s deposition testimony and none of these documents recounts a version of events which would exonerate Defendants from liability. Indeed, "whether Plaintiff initially lost his balance before or after the ladder wobbled" is irrelevant (Plywacz v. 85 Broad Street LLC, supra at 544).
Accordingly, Plaintiffs motion for partial summary judgment on liability for his Labor Law §240[ 1 ] cause of action against Defendants Owner and Tri-Star is granted and the branch of the cross-motion for 1 summary judgment by Defendants Owner and Tri-Star dismissing this claim is necessarily denied.
The branches of the cross-motion to dismiss Plaintiffs Labor Law §§241 [6] and 200 claims is untimely as it was made nearly a three-months after the expiration of this Court's deadline and good cause for the delay was not proffered (see CPLR §3212[a]; Brill v. City of New York, 2 N.Y.3d 648 [2004]). Also, the service of a cross-motion was contrary to the parties' June 28, 2023, stipulation, so-ordered by this Court, adjourning Plaintiffs motion (NYSCEF Doc No 98). That agreement permitted Defendants additional time to "submit opposition", not a cross-motion. Allowing movants to file an untimely cross-motion without good cause shown for the delay affords them an unfair and improper advantage and must be summarily denied (see Kershaw v. Hospital for Special Surgery, 114 A.D.3d 75, 88 [1st Dept 2013]).
Defendants are correct that an untimely cross-motion for summary judgment may be considered "because a court, in the course of deciding the timely motion, may search the record and grant summary judgment to any party without the necessity of a cross motion" (see eg Filannino v. Triborough Bridge &Tunnel Auth., 34 A.D.3d 280, 282 [1st Dept 2006]). Nevertheless, the court's search of the record is limited to those causes of action or issues that are "nearly identical" to those in raised in timely motion (see Maggio v. 24 W. 57 APF, LLC, 134 A.D.3d 621, 628 [1st Dept 2015]; Jarama v 902 Liberty Ave. Hous. Dev. Fund Corp., 161 A.D.3d 691 [lsl Dept 2018]). The issue of Defendants' liability under Labor Law §241 [6] and §200 are not such issues (see Filannino v. Triborough Bridge &Tunnel Auth., 34 A.D.3d 280 [1st Dept 2006]).
Accordingly, it is
ORDERED that Plaintiffs motion for partial summary judgment on liability on his Labor Law §240[l ] cause of action against Defendants 731 Commercial LLC and Tri-Star Construction Corp, is granted, and it is further
ORDERED that Defendants 731 Commercial LLC and Tri-Star Construction Corp, cross-motion for summary judgment dismissing Plaintiff s complaint is denied.