Rossi v. Doka U.S., Ltd.

Full title: DOMENICK ROSSI, Plaintiff, v. DOKA USA, LTD., WORLD TRADE CENTER…

Court: Supreme Court, New York County

Date published: Jan 25, 2024

2024 N.Y. Slip Op. 30308 (N.Y. Sup. Ct. 2024)

Opinion

Index Nos. 156072/2013 590168/2014 Motion Seq. No. 007

01-25-2024

DOMENICK ROSSI, Plaintiff, v. DOKA USA, LTD., WORLD TRADE CENTER PROPERTIES, LLC., 4 WORLD TRADE CENTER, LLC., SILVERSTEIN PROPERTIES, INC.,TISHMAN CONSTRUCTION CORPORATION, LESLIE E. ROBERTSON ASSOCIATES, R.L.L.P., Defendant. DOKA USA, LTD. Plaintiff, v. ROGER & SONS CONCRETE, INC. Defendant.

SUZANNE J. ADAMS, J.S.C.

Unpublished Opinion

PRESENT: HON. SUZANNE J. ADAMS, Justice.

DECISION + ORDER ON MOTION

SUZANNE J. ADAMS, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 007) 365, 366, 367, 368, 369, 377, 411,415, 416, 417, 418, 419, 420, 421, 422, 423, 424, 425, 426, 427, 428,429, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440, 441, 442, 443, 444, 445, 446, 447, 448, 449, 450, 451, 452, 453, 454, 455, 456, 457, 458, 459, 460, 461, 462, 463, 464, 465, 466, 467, 468, 469, 470, 471, 472, 473, 474, 475, 476, 477, 478, 479, 520, 527, 528, 532, 533, 538, 539, 540 were read on this motion to/for JUDGMENT - SUMMARY. Upon the foregoing documents, it is ordered that plaintiffs motion; the cross-motion of defendants WORLD TRADE CENTER PROPERTIES LLC, i/s/h/a WORLD TRADE CENTER PROPERTIES, LLC., 4 WORLD TRADE CENTER LLC, i/s/h/a 4 WORLD TRADE CENTER, LLC., SILVERSTEIN PROPERTIES, INC., TISHMAN CONSTRUCTION CORPORATION, LESLIE E. ROBERTSON ASSOCIATES, R.L.L.P., and third-party defendant ROGER &SONS CONCRETE, INC. ("R&S") (collectively, the "WTC Defendants"); and the cross-motion of defendant/third-party plaintiff DOKA USA, LTD. ("Doka") are denied. This personal injury action arises out of an incident that occurred in February 2011 at the construction site of the building known as World Trade Center Tower 4 located at 150 Greenwich Street in Manhattan. The WTC Defendants, exclusive of R&S, were the owners and/or contractors for the construction project. R&S was the project's concrete superstructure subcontractor, and plaintiff was a laborer employed by R&S. Doka designed, manufactured, and/or distributed a SKE100 and Xclimb 60, Hydraulic Self-Climbing System for Core Walls, which was a reusable concrete form system being used at the construction site. The Doka form systems employed tracks, so that a form could be filled with concrete, pushed into place along the track, and then pulled out again once the concrete sets. The form was moved back and forth on the track using ratchets approximately three feet in length and attached to a bolt. Plaintiff commenced this action in July 2013, seeking damages for injuries allegedly sustained at the construction site resulting from the use of a defective ratchet which he alleges was designed and/or manufactured by Doka, and provided by Doka to R&S for plaintiffs use. The complaint alleges causes of action sounding in negligence and violations of New York State Labor Law §§ 200 and 241(6). Plaintiff now moves pursuant to CPLR 3212 for partial summary judgment on his Labor Law § 241(6) cause of action, as asserted against defendants 4 World Trade Center, Silverstein, and Tishman. The WTC Defendants oppose the motion and cross-move pursuant to CPLR 3212 to dismissing the Labor Law § 241(6) cause of action. Doka opposes plaintiffs motion in part and cross-moves pursuant to CPLR 3212 to dismiss plaintiffs complaint and all cross-claims asserted against it. Plaintiff opposes the cross-motions. (In a separate motion sequence (sequence 008), the WTC Defendants and Doka move and cross- move, respectively, for certain summary relief. This motion and cross-motion are being decided separately and concurrently with the instant motion and cross-motions.)

"The 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." Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 (1986) (citing Winegrad v. New York University Medical Center, 64 N.Y.2d 851 (1985)); see also Winegrad, 64 N.Y.2d at 853. The party opposing a motion for summary judgment is entitled to all reasonable inferences most favorable to it, and summary judgment will only be granted if there are no genuine, triable issues of fact. Assaf v. RopogCab Corp., 153 A.D.2d 520, 521-22 (1^stDep't 1989).

New York Labor Law § 200 codifies the common law duty of owners or general contractors to provide a safe construction site workplace, with the "implicit precondition to this duty ... [being] that the party charged with that responsibility have the authority to control the activity bringing about the injury...." Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 316-17 (1981). Labor Law § 241(6) provides, in pertinent part, that all contractors and owners and their agents shall provide "reasonable and adequate protection and safety" to persons employed in "all areas in which construction, excavation or demolition work is being performed." The statute imposes a nondelegable duty of reasonable care upon owners and contractors with respect to construction site safety, and has been held to also impose liability upon a general contractor for a subcontractor's negligence, even in the absence of control or supervision. Rizzuto v LA. Wenger Contr. Co., 91 N.Y.2d 343, 348-49 (1998). "To establish liability under the statute, a plaintiff must specifically plead and prove the violation of an applicable Industrial Code regulation" which "constitutes a specific, positive command, not one that merely reiterates the common-law standard of negligence... [and is] applicable to the facts and be the proximate cause of the plaintiffs injury. Buckley v. Columbia Grammar and Preparatory, 44 A.D.3d 263, 271 (1^st Dep't 2007) (citations omitted). Here, plaintiff moves on the alleged violation of Industrial Code § 23-1.5(c)(3) which provides, in pertinent part:

23-1.5 - General Responsibility of Employers (c) Condition of equipment and safeguards (3) All safety devices, safeguards and equipment in use shall be kept sound and operable and shall be immediately repaired or restored or immediately removed from the jobsite if damaged.

Plaintiff alleges that on the date of the incident he was in the process of closing up a wall, which according to Doka required two people working together to ensure the concrete form moved evenly on the track and did not get "bound" and difficult to move. Plaintiff admitted he was moving the wall by himself when he was injured. He testified that when the wall became bound, he used his right foot to apply pressure onto the shaft of the ratchet and when he did this, the gears in the ratchet broke. The ratchet and plaintiff were propelled forward, causing plaintiffs knee to strike a brace that was directly in front of him. Plaintiff asserts that because "the Doka Ratchet was defective in that it was constantly breaking under pressure, Defendants failed to maintain it in a 'sound and operable' condition." (See, Affirmation of Terrence James Cortelli, Esq., p. 16.) According to Doka, the subject ratchet was a hand tool and plaintiffs use of the ratchet with his foot was contrary to the training provided by Doka to R&S, which never instructed the use of one's foot to apply force to the ratchet to unlock the system.

12 NYCRR 23-1.5(c)(3) is sufficiently specific to support a claim under Labor Law §241(6). Jackson v Hunter Roberts Constr. Group, LLC, 161 A.D.3d 666 (1^st Dep't 2018); Becerra v Promenade Apts. Inc., 126 A.D.3d 557 (1^st Dep't 2015). However, summary judgment on plaintiffs motion and the cross-motions is precluded here, as various triable issues of fact as to the cause and circumstances of the incident are apparent from the record and the conflicting testimony therein, including, inter alia, whether the ratchet at issue was provided by Doka; whether it was defectively designed or manufactured; whether it was "sound and operable" at the time of its use, as required by the Industrial Code provision at issue; whether plaintiffs use of the ratchet with his foot constituted misuse of the product; whether any such use or misuse was foreseeable; whether such use or misuse caused the incident. Triable issues of fact exist as to whether 12 NYCRR 23-1.5(c)(3) is applicable to the facts of this matter, whether it was breached, whether the breach proximately caused plaintiffs injuries and whether defendants failed to comply with the requirements of the statute.

Accordingly, it is hereby ORDERED that plaintiffs motion and the cross-motions of The WTC Defendants and Doka are denied. This constitutes the decision and order of the court.