Opinion
Index 2018-594
03-12-2021
HAROLD STEVENSON, Plaintiff, v. JAMES F. JOSEPH, JAMES F. JOSEPH REVOCABLE TRUST, HOTTENROTH & JOSEPH ARCHITECTS and JAMES F. JOSEPH, JR., Individually, and as Trustee of the JAMES F. JOSEPH REVOCABLE TRUST, Defendants.
MICHAEL C. CONWAY, Esq. HARRIS, CONWAY & DONOVAN, PLLC Attorney for Plaintiff BRIAN D. CASEY, Esq. Cabaniss Casey LLP Attorney tor Defendants
Unpublished Opinion
MICHAEL C. CONWAY, Esq.
HARRIS, CONWAY & DONOVAN, PLLC
Attorney for Plaintiff
BRIAN D. CASEY, Esq.
Cabaniss Casey LLP
Attorney tor Defendants
DECISION AND ORDER
Adam W. Silverman, Judge
Before the Court is Plaintiffs Motion for Partial Summary Judgment as to liability pursuant to Labor Law § 240 (1) and Defendants Cross Motion for Summary Judgment dismissing various causes of action asserted by Plaintiff. Summary judgment is a drastic remedy that must denied when a substantial question of credibility raises an issue of fact.
By Stipulation of Discontinuance filed on November 18, 2020, the action was discontinued against Defendant Hottenroth & Joseph Architects. References to "Defendants" throughout this Decision refer to James F. Joseph, James F. Joseph Revocable Trust, and James F. Joseph, Jr., Individually, and as Trustee of The James F. Joseph Revocable Trust.
Procedural History
On May 30, 2018, Plaintiff was injured by falling from an unsecured ladder while working on a roof replacement project at a two-story residential rental property owned by Defendants, as a laborer for nonparty JBM Property Maintenance, Inc.. Plaintiff testified at his deposition that he was bringing a box of nails up a ladder to the roof at the request of another employee when, while lifting his left foot up, the ladder kicked out from under him. Plaintiff sustained injuries requiring a month of hospitalization.
On June 27, 2018, Plaintiff commenced an action by filing a Summons and Complaint alleging negligence and Labor Law violations against Defendants. After two amendments to the complaint, which are not relevant to this Motion, Defendants joined issue by filing an Answer on or around April 1, 2019.
Currently before the Court is Plaintiffs Motion seeking partial summary judgment. Plaintiff alleges that there is no question of fact that Defendants, as owner of the worksite, breached their nondelegable duty, pursuant to Labor Law § 240 (a), to provide Plaintiff with elevation-related safety devices to prevent his fall.
Defendants oppose Plaintiffs Motion and cross-moved for partial summary judgment dismissing Plaintiffs Labor Law § 200 and negligence causes of action with prejudice. Defendants assert that Plaintiffs Motion must be denied because 1.) a ladder, which is among the safety devices specified in the statute, was present at the job site and utilized by Plaintiff, raising a question of fact; 2.) a question of fact is presented with respect to how the incident occurred - specifically if Plaintiff simply fell 3.) a question of fact is presented with respect to how the incident occurred - specifically if Plaintiff intentionally staged his own injury.
Summary Judgment
Summary judgment is a drastic remedy which will be granted only when the moving party has established prima facie entitlement to judgment as a matter of law by presenting competent evidence that there is no doubt as to the absence of a triable issue of fact (see Alvarez v Prospect Hospital, 68 N.Y.2d 320, 324 [1986]; McDay v State, 138 A.D.3d 1359, 1359 [3d Dept 2016]). "The court's function on amotion for summary judgment is issue finding not issue determination" (Gadani v Dormitory Auth of State of N.Y., 43 A.D.3d 1218, 1219 [3d Dept 2007]; see Lacasse v Sorbello, 121 A.D.3d 1241, 1242 [3d Dept 2014]), and this Court "must view the evidence in the light most favorable to the nonmoving party and accord such party the benefit of every reasonable inference that can be drawn therefrom" (Aretakis v Cole's Collision, 165 A.D.3d 1458, 1459 [3d Dept 2018]; see Healthcare Professionals Ins. Co. v Parentis, 165 A.D.3d 1558, 1565 [3d Dept 2018]).
The burden then shifts to the nonmoving party to establish by admissible proof, the existence of genuine issues of fact (see Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]; Davis v EAB-TAB Enters., 166 A.D.3d 1449, 1450 [3d Dept 2018]). However, in opposing a motion for summary judgment, the nonmoving party "must produce evidentiary proof in admissible form ... or must demonstrate acceptable excuse for his [or her] failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v City of New York, 49 N.Y.2d at 562; accord Miller v Lu-Whitney, 61 A.D.3d 1043, 1047 [3d Dept 2009]; see Banco Popular North America v Victory Taxi Management, Inc., 1 N.Y.3d 381, 383 [2004] ["[A]verments merely stating conclusions, of fact or of law, are insufficient" to "defeat summary judgment"]).
Labor Law § 240 (1)"Labor Law § 240 (1) imposes a nondelegable duty and absolute liability upon owners and contractors for failing to provide safety devices necessary for workers subjected to elevation-related risks in circumstances specified by the statute" (Soto v J. Crew Inc., 21 N.Y.3d 562, 566 [2013], citing Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 513 [1991]; see Salzer v Benderson Dev. Co., LLC, 130 A.D.3d 1226, 1227 [3d Dept 2015]; Miranda v Norstar Bldg. Corp., 79 A.D.3d 42, 46 [3d Dept 2010]). To recover, the plaintiff must have suffered an injury as "the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Runner v New York Stock Exch., Inc., 13 N.Y.3d 599, 603 [2009]; accord Scribner v State of New York, 130 A.D.3d 1207, 1208 [3d Dept 2015]). Notably, "the fact that plaintiff was injured while working above ground does not necessarily mean that the injury resulted from an elevation-related risk contemplated by" Labor Law § 240 (1) (Salzer v Benderson Dev. Co., LLC, 130 A.D.3d at 1227-1228).
Therefore, to prevail upon a motion for summary judgment, "plaintiff [is] required to establish that [adequate] safety devices were not provided and that his [or her] injuries were proximately caused by this violation of the Labor Law" (Burhmaster v CRM Rental Mgt., Inc., 166 A.D.3d 1130, 1131-1132 [3d Dept 2018]; see Cahill v Triborough Bridge & Tunnel Auth, 4 N.Y.3d 35, 39 [2004]; Portes v New York State Thruway Auth., 112 A.D.3d 1049, 1050 [3d Dept 2013] ["A prima facie case for summary judgment of Labor Law § 240 (1) liability is established when a claimant produces evidence that the statute was violated and that the violation proximately caused his or her injury"], lv dismissed 22 N.Y.3d 1167 [2014]).
A defendant may "raise a factual issue by presenting evidence that a safety device furnished was adequate and properly placed and that the conduct of the plaintiff may be the sole proximate cause of his or her injuries" (Burhmaster v CRM Rental Mgt., Inc., 166 A.D.3d at 1132-1133 [internal quotation marks, brackets and citation omitted]; see Ball v Cascade Tissue Group-New York, Inc., 36 A.D.3d 1187, 1188 [3d Dept 2007]). "A plaintiff is the sole proximate cause of his or her injuries where it is shown that he or she had adequate safety devices available; that he or she knew both that they were available and that he or she was expected to use them; that he or she chose for no good reason not to do so; and that had he or she not made that choice he or she would not have been injured" (Griffin v AVA Realty Ithaca, LLC, 150 A.D.3d 1462, 1465 [3d Dept 2017] [internal quotation marks, brackets and citation omitted]; see Georgia v Urbanski, 84 A.D.3d 1569, 1570 [3d Dept 2011]).
However, "comparative fault... is not a defense under the statute" (Salzer v Benderson Dev. Co., LLC, 130 A.D.3d at 1228; see Williams v Town of Pittstown, 100 A.D.3d 1250, 1251-1252 [3d Dept 2012]; McGill v Qudsi, 91 A.D.3d 1241, 1243-1244 [3d Dept 2012], appeal dismissed 19 N.Y.3d 1013 [2012]). "Under Labor Law § 240 (1) it is conceptually impossible for a statutory violation (which serves as a proximate cause for a plaintiffs injury) to occupy the same ground as a plaintiffs sole proximate cause for the injury. Thus, if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it. Conversely, if the plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation" (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d280, 290 [2003]; see DeRose v Bloomingdale's Inc., 120 A.D.3d 41, 45 [1st Dept 2014] ["the sole proximate cause defense does not apply where a plaintiff was not provided with an adequate safety device as required by the Labor Law"]).
Discussion
Plaintiffs Submissions
In support of his Motion, Plaintiff submits, as relevant here, his own deposition testimony, as well as the deposition transcripts of Joseph B. Murell, David Mosher, and Robert Pulver.
Plaintiff testified that the date of the accident was his first or second day on the books, though he had previously worked for Murell under the table, and that he rode to the worksite with Mosher, his supervisor with JBM Property Maintenance. According to Plaintiff, there were two or three other employees working at the site. Plaintiff stated that, prior to his fall, he had carried supplies up the ladder to the workers on the roof multiple times that morning. Plaintiff further testified that he believed it was Mosher who instructed him to bring the supplies up the ladder. Regarding the fall, Plaintiff testified that he "was getting off of the ladder [and] ... lifted [his] left foot up to get onto the roof and the ladder kicked out" from under him. When asked to elaborate on what he meant by "kicked out", Plaintiff explained that "[i]t slid out. I don't know how else to describe it." He stated that his left foot was touching the roof when the ladder slid towards the chimney and he fell. Plaintiff went on to describe sitting on the ground in pain and numbness until Mosher came down. He further stated that Murell came to the site and spoke to him, though he did not remember the conversation, and then the ambulance came and took him to the hospital.
Plaintiff also submits the deposition of Joseph Murell, owner of JBM Property Maintenance. Murell testified that the morning of the accident was Plaintiffs first or second day working for of JBM Property Maintenance. Plaintiff had worked "a day here, a day there" for Murell, including projects "around the house, cleaning up branches, trees and stuff like that"; however, Plaintiff was not a full-time employee before the accident. When he was hired to work for JBM Property Maintenance, Murell swears he hired Plaintiff to be a "ground guy" who would perform ground cleanup work. According to Murell, Plaintiff was specifically told to stay on the ground and was not supposed to go up the ladder. Murell was not at the jobsite at the time of the accident, as he was in Florida until later that morning. Murell testified that, besides Plaintiff and Mosher, "there might have been one other guy [at the jobsite] that doesn't work for me anymore. And I don't know where he is." He further stated the job was being done by "[t]wo or three guys."
Additionally, Plaintiff submits the deposition of David Mosher, foreman for JBM Property Maintenance at the time of accident. Mosher stated that either he or Pulver would have set up the ladder. As to how the ladder was secured, he stated the ladder may have "some nails or something in fascia board [but] [u]sually, when a ladder is set up properly, you don't need that stuff." He later testified that the ladder is usually secured by pointing the feet as points to dig into the ground. Murell also testified that there were harnesses available at the site, but that neither he nor Plaintiff were wearing one at the time of the accident - Mosher could not recall if Pulver was.
Besides Pulver, Mosher swore, in contrast to Plaintiffs testimony, that he did not remember anyone else from JBM Property Maintenance at the jobsite at the time of the accident. Mosher also stated he did not remember anyone else who worked for JBM Property Maintenance at the time of the accident, stating, "There were some guys in and out. It's like a revolving door. Guys show up and it don't work out." Also contrary to Plaintiffs account, Mosher testified that he was only at the site for "approximately two minutes." Mosher further denied instructing Plaintiff to bring supplies to the roof and he was not aware of Plaintiff having previously been on the ladder.
While Mosher testified that he may have been at the site earlier in the morning, he swears that he arrived at the site minutes before the accident, he spoke to Plaintiff telling him not to go up the ladder, he went up the ladder and he was halfway across the roof, and then he heard Plaintiff yell that he had fell. Specifically, Mosher testified that immediately before going up the ladder, he told Plaintiff to "[c]lean up the ground, stay on the ground. Clean up the ground. That's all you are here to do." After hearing Plaintiff yell, Mosher found the ladder had "slid over and hit up against the chimney." Using an air hose to reach the ladder, Mosher pulled the ladder back to the area of the roof he could reach it from and went to the ground to check on Plaintiff. He swears that Plaintiff "wasn't unconscious or anything like that" and "was smoking cigarettes and joking."
Finally, Plaintiff submitted the deposition testimony of Roger Pulver, a fellow JBM Property Maintenance employee. Like Mosher, he did not witness the fall. Notably, Pulver testified that he had been working with Plaintiff for a couple weeks and, though he could not recall the specific date, he recalled Plaintiff making comments around the jobsite to the effect of "[i]f I do a certain thing I could get hurt and get paid." Pulver further described Plaintiff making "[j]ust little, snarky comments here and there sometimes about money and things like that."
Pulver's testimony contrasts with Mosher and Murell. Pulver stated that he believed two other individuals, including Mosher's son and another longtime JBM Property Maintenance employee, were working at the site at the time of the accident. Pulver testified that Plaintiffs job included both ground cleanup and bringing supplies to the roof and, though he could not recall for certain who had given the instruction, Plaintiff had been directed to bring supplies up the ladder. Pulver agreed with Mosher as to how the ladder would be set up by digging the feet into the ground, but denied there were harnesses available at the site. Pulver agreed with Plaintiff and Mosher that the ladder had slid towards the chimney, but he had a different recollection of how he and Mosher were able to get the ladder and get down to Plaintiff- stating that a grounds worker not employed by JBM Property Maintenance retrieved the ladder. Pulver also stated that once they were on the ground, he asked Plaintiff if he was in pain and Plaintiff replied "[y]eah, then no."
Contrary to Defendants' assertion that the mere provision of a ladder creates an issue of fact, there exists a "presumption that Labor Law § 240 (1) is violated where, as here, a ladder collapses or malfunctions for no apparent reason" (Rom v Eurostruct, Inc., 158 A.D.3d 570, 571 [1st Dept 2018]; see Blake v Neighborhood Horn. Servs. of N.Y.City, 1 N.Y.3d at 289 [In cases involving ladders or scaffolds that collapse or malfunction for no apparent reason, the Court of Appeals has "continued to aid plaintiffs with a presumption that the ladder or scaffolding device was not good enough to afford proper protection"]; Debennedetto v Chetrit, __ A.D.3d __, 2021 NY Slip Op 00413, *3 [2d Dept 2021]; Georgia v Urbanski, 84 A.D.3d at 1570 [Finding plaintiff met their prima facie burden showing entitlement to partial summary judgment where they showed a ladder had collapsed, slipped or otherwise failed to support him]; Smith v Pergament Enters., 271 A.D.2d 870, 872 [3d Dept 2000] [Plaintiff entitled to summary judgment where "the unsecured ladder on which he was standing moved and became tilted, precipitating his fall, which demonstrated as a matter of law that the ladder was not so constructed, placed and operated as to give proper protection"]). Here, Plaintiff, Pulver, and Mosher all testified that the ladder slipped towards the chimney, thus the mere provision of a ladder does not raise an issue of fact to prevent summary judgment.
Likewise, "the fact that an accident is unwitnessed does not bar summary judgment on a Labor Law § 240 (1) claim where ... there are no bona fide issues of fact with respect to how it occurred" (Kirbis v LP Ciminelli, Inc., 90 A.D.3d 1581, 1583 [4th Dept 2011] [internal quotation marks and citation omitted]; accord Burhmaster v CRM Rental Mgt., Inc., 166 A.D.3d at 1132-1133; see Melchor v Singh, 90 A.D.3d 866, 869 [2d Dept 2011]; Niks v Shue Roofing Co., 219 A.D.2d 785, 785 [3d Dept 1995]). Further "[t]he precise manner in which plaintiffs fall occurred is immaterial, [where] there [is] no question that plaintiffs injuries are at least partially attributable to defendants' failure to provide ... proper protection" (Laquidara v HRH Const. Corp., 283 A.D.2d 169, 169 [1st Dept 2001]; see Cooper v Delliveneri, 166 A.D.3d 1152, 1154 [3d Dept 2018] [holding plaintiffs inconsistent statements regarding the height from which he fail and the exact point he fell from did not raise a question of fact sufficient to defeat plaintiffs motion for partial summary judgment]).
However, viewing "the evidence in the light most favorable to the nonmoving party" and according to Defendants "the benefit of every reasonable inference that can be drawn therefrom" as the Court is required to do on a motion for summary judgment (Aretakis v Cole's Collision, 165 A.D.3d at 1459), Plaintiff has failed to establish as a matter of law that the alleged violation was the proximate cause of the injuries. '"To be entitled to a judgment on liability for a violation of section 240 (1) of the Labor Law, [a] plaintiff [is] required to prove, as a matter of law, not only a violation of the section, but also that the violation was a proximate cause of his [or her] injuries'" (Sims v City of Rochester, 115 A.D.3d 1355, 1355 [4th Dept 2014], quoting Rossi v Main-S. Hotel Assoc, 168 A.D.2d 964, 964 [4th Dept 1990]). Plaintiffs own filings bring into question Plaintiffs account of the cause of his fall. The facts that it was Plaintiffs first or second day on the official payroll, that Mosher, Pulver and Plaintiff himself had all previously used the ladder without movement, that Mosher and Murell both testified that Plaintiff was instructed not to go up the ladder, and that Pulver stated Plaintiff had made comments implying a potential plan to self-inflict his injury in order to receive an award, together, in the light most favor to the non-moving Defendants, bring into question Plaintiffs description of events. While speculation alone does not raise an issue of fact, summary judgment is properly denied when a plaintiffs credibility regarding the causation of the accident is called into question, particularly in this case where the accident was unwitnessed (see Gould v E.E. Austin & Son, Inc., 114 A.D.3d 1208, 1209 [4th Dept 2014] [Holding that summary judgment was properly denied where plaintiffs statements and subsequent descriptions raised question regarding causation]). Critically, '"[i]t is not the court's function on a motion for summary judgment to assess credibility"1 (Abdou v Rampaul, 147 A.D.3d 885, 887 [2d Dept 2017] [internal quotation marks and citations omitted]; see also Harrington v Fernet, 92 A.D.3d 1070, 1072 [3d Dept 2012]).
Defendants' Submissions in Opposition
While the Court is not required to consider Defendants' submissions as it has already found that Plaintiff failed to make its prima facie showing (see Yao Zong Wu v Then Jia Yang, 161 A.D.3d 813, 815 [2d Dept 2018]), in the interest of full consideration, the Court will address these filings as well. For the reasons expressed above, the Court rejects Defendants arguments that the provision of a ladder alone raises a question of fact (see e.g. Pergament Enters., 271 A.D.2d at 872) as well as that a question of fact exists merely because the accident was unwitnessed and slightly inconsistent statements may have been made to emergency medical providers (see Cooper v Delliveneri, 166 A.D.3d at 1154). However, Defendants filings further raise the question of Plaintiff s credibility, a critical issue considering solely his testimony regarding the unwitnessed fall establishes proximate cause. Credibility cannot be properly decided on a motion for summary judgment.
Defendants submit, as relevant here, the affidavit of Harold Winfield. In contradiction to Pulver's testimony, Winfield swears that he was not working the day that Plaintiff was injured. He also swears he has not spoken with Plaintiff regarding the accident. However, Winfield, consistent with Pulver, swears that Plaintiff had worked with him for JBM Property Maintenance for "a couple weeks." During that time, Winfield swears that Plaintiff "always said" how he was going to make himself fall so he could "get a lawsuit" and would be permanently out of work. According to Winfield, Plaintiff would say, "What would happen if I fall off this roof right here, man. Would I get paid? Oh, man I would get paid. I wouldn't have to work no more." While Plaintiff objects to consideration of these comments, describing them as merely hearsay, the Guide to New York Evidence explains that a statement of a declarant which provides evidence of the declarant's state of mind does not constitute inadmissible hearsay (Guide to NY Evid rule 8.00, Definition of Hearsay, Note at 2 [rev Dec 2020] citing People v Ricco, 56 N.Y.2d 320 [1982]; Loetsch v New York City Omnibus Corp., 291 NY 308, 310-311 [1943]). Winfield's affidavit, particularly combined with Pulver's testimony, call into question Plaintiffs credibility.
Defendants' Cross Motion
"It is axiomatic that in order for plaintiff[] to prevail on [his] common-law negligence and Labor Law § 200 causes of action, [he] must establish that [Defendants] both exercised supervisory control over the operation and had actual or constructive knowledge of the unsafe manner in which the work was being performed" (Shields v General Elec. Co., 3 A.D.3d 715, 716 [3d Dept 2004]). The record reflects no supervisory role or control for Defendants. Plaintiff does not contest Defendants' Cross Motion. Therefore, the Court grants Defendants' Cross Motion dismissing Plaintiffs Labor Law § 200 and negligence causes of action.
Accordingly, it is
ORDERED, Plaintiffs Motion for partial Summary Judgment is denied; and be it further
ORDERED, Defendants' Cross Motion for partial Summary Judgment is granted and Plaintiffs Third Cause of Action is dismissed.
This shall constitute the Decision, Order and Judgment of the court. This Decision, Order and Judgment is being returned to the attorney for Defendants. All original supporting documentation is being filed with the Greene County Clerk's Office. The signing of this Decision, Order and Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provision of that rule relating to filing, entry and notice of entry.
SO ORDERED AND ADJUDGED.