Opinion
Index No. 524053/2019
09-03-2024
WIESLAW TRONT, Plaintiff, v. THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF EDUCATION, and THE NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, Defendants,
Unpublished Opinion
PRESENT: HON. RICHARD VELASQUEZ Justice.
DECISION AND ORDER
HON. RICHARD VELASQUEZ, J.
The following papers NYSCEF Doc #'s 53 to 143 read on this motion:
Papers NYSCEF DOC NO.'s
Notice of Motian/Order to Show Cause
Affidavits (Affirmations) Annexed ___ 53-60; 116-139
Opposing Affidavits (Affirmations) ___ 85-90:142
Reply Affidavits ___ 113; 143
After having come before the Court on JANUARY 24, 2024 and the Court having heard oral argument and upon of review of the foregoing papers the court finds as follows:
Plaintiff moves for summary judgment pursuant to CPLR 3212 (MS#2). Defenants oppose the same. Defendants also move for an order; (1) vacating the Decision and Order of Justice Richard Velasquez dated September 20, 2023; (2) restoring the defendants' motion to reargue and placing it back on the active calendar for Justice Richard Velasquez and hearing the motion on the merits; (3) upon reargument, granting the defendants' motion to re-argue the Decision and Order of Justice Knipel dated on or about May 10, 2023 and upon reargument denying the plaintiffs previous motion to re-argue the Decision and Order of Justice Freier dated February 23, 2023 and reinstating the Decision and Order of Justice Freier dated February 23, 2023; (4) compelling the plaintiff to appear for all designated independent medical examinations in this action. (MS#5).
The alleged incident arose from a construction accident that occurred on May 24, 2019, at P.S. 48 located at 6015 18th Avenue, Brooklyn, New York. It is undisputed that on May 24, 2019, CITY was the owner of the premises. On May 24, 2019, SCA was the construction manager of the Project. SCA hired RICI as the general contractor. On May 24, 2019, Plaintiff was working as a mason employed by RICI performing work removing old paint off a wall in room 501, It is undisputed that Plaintiff set up a six (6) foot A-frame ladder next to the wall he was required to work on. Plaintiff states the ladder was properly set up and the braces of the ladder were fully extended. Plaintiff then got onto the ladder and was on the third rung of the ladder scraping the old paint off the wall with a spackle he was holding in his right hand and holding onto the top of the ladder with his left hand. NYSCEF DOC No. 58, p. 37; NYSCEF Doc No. 59, p. 55; NYSCEF Doc No 56- ¶¶ 5-6. As plaintiff was working the ladder wobbled and shifted to the left causing Plaintiff and the ladder to fall to the floor. NYSCEF Doc No 56. ¶ 7; NYSCEF Doc No 58, pp, 38-39, 41, 48. It is undisputed that the A frame ladder plaintiff used was the only ladder available to Plaintiff on the date of his accident there were no other ladders in or near his work area. NYSCEF Doc No 56. ¶ 8. Plaintiff alleges his supervisor told him that the baker scaffold was exclusively only for when he was working on the ceiling. NYSCEF Doc No 56. ¶ 11; NYSCEF Doc No, 58, p. 43, 26. In addition it is alleged, that on the date of the accident, plaintiff was told he should use the ladder for the wails because it is faster and easier and time was of the essence. NYSCEF Doc No 56 ¶ 11; NYSCEF Doc No 58, pp. 45-46. It is undisputed that Plaintiff was not instructed to use nor was plaintiff provided any safety devices or equipment to secure the ladder in place. NYSCEF Doc No 56 ¶ 10.
ANALYSIS
It is well established that a moving party 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 issue of fact. Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853 (1985). Once there is a prima facie showing, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form to establish material issues of fact, which require a trial of the action. Zuckerman v. City of New York, 49 N.Y.2d 557 (1980); Alvarez v. Prospect Hosp., 68 N.Y.2d 320 (1986) However, where the moving party fails to make a prima facie showing, the motion must be denied regardless of the sufficiency of the opposing party's papers
A motion for summary judgment will be granted "if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing the judgment in favor of any party". CPLR 3212 (b). The motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact." Id.
A motion for summary judgment is a drastic measure and to be used sparingly (Wanger v. Zeh, 45 Misc.2d 93 [Sup Ct, Albany County], aff'd 26 A.D.2d 729 [3rd Dept 1965]). Summary judgment is proper when there are no issues of triable fact (Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 [1986]). Issue finding rather than issue determination is its function (Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395 [1957]). The evidence will be construed in the light most favorable to the one moved against (Weiss v. Garfield, 21 A.D.2d 156 [3d Dept 1964]). The proponent of a motion for summary judgment carries the initial burden of production of evidence as well as the burden of persuasion. The moving party must tender sufficient evidence to show the absence of any material issue of fact and the right to judgment as a matter of law. (Zuckerman v. City of New York, 49 NY2nd 557 [1990]). Once this burden is met, the burden shifts to the opposing party to submit proof in admissible form sufficient to create a question of fact requiring a trial (Kosson v Algaze, 84 N.Y.2d 1019 [1995]).
Labor Law § 240(1)Labor Law 240(1) provides:
"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."
Defendant contends that Plaintiffs cause of action as to violations of Labor Law 240(1) should be dismissed because the plaintiff was the sole proximate cause of his accident, Defendant further contends that when plaintiff is only witness to the accident summary judgment cannot be granted as plaintiff credibility is in question.
"Liability under Labor Law 240(1) depends on Whether the injured worker's task creates an elevation-related risk of the kind that the safety devices listed in section 240(1) protect against". (Salazar v. Novalex Contracting Corp., 18 N.Y.3d 134, at 139, 960 N.E.2d 393, 936 N.Y.S.2d 624 (Ct. of App. 2011].)" Labor Law 240(1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to ah object or person." (Runner v. New York Stock Exchange, 13 N.Y.3d 599, at 604, 922 N.E.2d 865, 895 N.Y.S.2d 279 [2009] [quoting Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, at 501, 618 N.E,2d 82, 601 N.Y S.2d 49 (1993)].) In determining the applicability of the statute, the "relevant inquiry" is "whether the harm flows directly from the application of the force of gravity to the object." (See Runner v New York Stock Exchange, 13 N.Y.3d at 604.) "The dispositive inquiry ... does not depend upon the precise characterization of the device employed or upon whether the injury resulted from a fall, either of the worker or of an object upon the worker." (id at 603.) "Rather, the single decisive question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential." (/d.)
"The purpose of the strict liability statute is to protect construction workers not from routine workplace risks, but from the pronounced risks arising from construction work site elevation differentials, and, accordingly, that there will be no liability under the statute unless the injury producing accident is attributable to the latter sort of risk." (See Runner v. New York Stock Exchange, 13 N.Y.3d at 603). To prevail on a Labor Law § 240(1) cause of action, a plaintiff must establish that the statute was violated arid that the violation was a proximate cause of his or her injuries (see Berg v. Albany Ladder Co., 10 N.Y.3d 902, 904, 861 N.Y.S.2d 607, 891 N.E.2d 723; Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 287, 771 N.Y.S.2d 484, 803 N.E.2d 757; Martinez v. Ashley Apts Co., LLC, 80 A.D.3d 734, 735, 915 N.Y.S.2d 620). "[W]here a plaintiffs own actions are the sole proximate cause of the accident, there can be no liability" (Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 39, 790 N.Y.S.2d 74, 823 N.E.2d 439; see Blake v. Neighborhood Hous. Servs. of N.Y. City, Inc., 1 N.Y.3d at 290, 771 N.Y.S.2d 484, 803 N.E.2d 757).
In the present case, it is undisputed that the injury is the result of an elevated risk as the plaintiff fell from an unsecured ladder. There is no dispute that the ladder was unsecured. Defendant contends the mere fact that a plaintiff fell from a ladder does not, in and of itself, establish a violation of the statute. However, a plaintiff may establish prima facie entitlement to judgment as a matter of law by showing both that he or she fell from a defective or unsecured ladder, and that the defect or failure to secure the ladder was a proximate cause of his or her injuries (see Robinson v Goldman Sachs Headquarters, LLC, 95 A.D.3d 1096, 1097 [2012]). Where a plaintiff is the sole witness to the accident and his or her credibility has been placed in issue, the granting of summary judgment on the issue of liability in favor of the plaintiff on a Labor Law § 240 (1) cause of action is inappropriate (see Woszczyna v BJW Assoc., 31 A.D.3d 754, at 755, 820 N.Y.S.2d 289 [2d Dept. 2006]).
The case law in the Second Department is clear that a plaintiff who falls from an unsecured ladder that tips over, moves or slips out from underneath him while engaged in an activity covered under Labor Law §240(1) has established a prime facie entitlement to summary judgment as a matter of law under the statute. See Casasola v. State of New York, 129 A.D.3d 758, 9 N.Y.S.3d 685, (2d Dept. 2015); Seferovic v. Atlantic Real Estate Holdings, LLC, 127 A.D.3d 1058, 7 N.Y.S.3d 458, (2d Dept. 2015); Grant v. City of New York, 109 A.D.3d 961, 972 N.Y.S.2d 86, 297 Ed. Law Rep. 399 (2d Dept. 2013); Canas v. Harbour at Blue PointHome Owners Assoc., Inc., 99 A.D.3d 962, 953 N.Y.S.2d 150, (2d Dept. 2012); Hossain v. Kurzynowski, 92 A.D.3d 722, 939 N.Y.S.2d 89 (2d Dept. 2012); Kaminski v. 22-61 42nd St., LLC, 91 A.D.3d 606, 935 N.Y.S.2d 903 (2d Dept. 2012); Gonzalez v. AMCC Corp., 88 A.D.3d 945, 931 N.Y.S.2d 415, (2d Dept. 2011); Ordonez v. CG. Plumbing Supply Corp., 83 A.D.3d 1021, 922 N.Y.S.2d 156 (2d Dept. 2011); Yin Min Zhu v. Triple L. Group, LLC, 64 A.D.3d 590, 881 N.Y.S.2d 324 (2d Dept. 2009); Mingo v. Lebedowicz, 57 A.D.3d 491, 869 N.Y.S.2d 163 (2d Dept. 2008); Rivera v. Dafna Constr. Co., Ltd., 27 A.D.3d 545, 813 N.Y.S.2d 109, (2d Dept. 2006). Here, it is undisputed that Plaintiff fell from an unsecured ladder that tipped over while engaged in an activity covered under Labor Law §240.
It is equally well settled that the failure to adequately secure a ladder, to ensure that it continues to support the plaintiff while in use, constitutes a violation of Labor Law §240(1). Melchor v. Singh, 90 A.D.3d 866, 935 N.Y.S.2d 106 (2d Dept. 2011); Peralta v. AT&T Co, 29 A.D.3d 493, 816 N.Y.S.2d 436 (1st Dept. 2006); Montalvo v. J. Petrocelli Construction, Inc., 8 A.D.3d 173, 780 N.Y.S.2d 558 (1st Dept. 2004). Defendants contend that Plaintiffs accident was unwitnessed and that this somehow creates an issue of credibility without pointing to any testimony or other evidence that disputes Plaintiffs account of how the accident occurred. Nor do Defendants note any inconsistencies in Plaintiffs testimony regarding the happening of the accident. In the present case, at no point has Plaintiffs credibility been placed in issue. Therefore, defendants reliance on see Woszczyna v BJW Assoc., 31 A.D.3d 754, 820 N.Y.S.2d 289 [2d Dept. 2006] is of no moment, as that case is distinguishable, in that the plaintiffs credibility was brought into question, uniike the present case, where the plaintiffs credibility has not been brought into question.
Countless cases from the Appellate Division, Second Department, have held that a situation involving a worker falling from an unsecured ladder that moved, shifted or toppled over, such as what occurred to Plaintiff here entitles him to summary judgment based on a violation of Labor Law §240(1). See Ordonez v. C.G. Plumbing Supply Corp., 83 A.D.3d 1021 (2d Dept. 2011), wherein the plaintiff was injured when an unsecured extension ladder slipped from underneath him while he was attempting to descend it after completing a welding task. A coworker had placed the ladder against the building wall and the plaintiff stood oh it while he welded. After finishing, he took a step down and the ladder slipped out away from the wall, causing the plaintiff to fall to the ground and sustain injuries. The Appellate Division, Second Department, found the plaintiff was entitled to summary judgment as a result of defendant's violation of Labor Law §240(1) as the unsecured ladder upon which the plaintiff was standing tipped over, causing him to fall and sustain injuries. In another example, Gonzalez v. AMCC Corp., 88 A.D.3d 945, 931 N.Y.S.2d 415 (2d Dept. 2011), the plaintiff was standing on an unsecured A frame ladder, when the ladder shifted, causing the plaintiff to fall to the ground there were no safety devices provided. The court found a violation of the statute existed.
Accordingly, plaintiff motion for summary judgment is hereby granted, for the reasons stated above. (MS#2). MS# 5 is granted to the extent that the first request for relief is granted. The clerk shall restore MS#4 to the calendar and transfer MS#4 to the discovery part to be heard by the Justice that signed the order that the party seeks to reargue, specifically relief requests 2 and 3 of the motion. All other requests for relief in MS#5 are hereby respectfully referred to the CCP as they are all discovery issues.
This constitutes the Decision/Order of the court.