Opinion
706739/2016
02-14-2018
Raul VILLARROEL and Betzara Vergara, Plaintiffs, v. MARILOU DEVELOPMENT CO., INC. and B.S.G. Management Co., Defendants.
The following electronically filed documents read on this motion plaintiffs for an Order pursuant to CPLR § 3212, granting plaintiffs summary judgment on liability on their Labor Law §§ 240(1) and 241(6) causes of action; and on this cross-motion by defendants for an Order pursuant to CPLR § 3212, granting defendants summary judgment dismissing the verified complaint in its entirety:
Papers
Numbered
Notice of Motion–Affirmation–Exhibits–Memo. of Law...EF 40–62
Notice of Cross–Motion– Affidavits–Exhibits...EF 67–82
Affirmation in Opp. to Motion–Affidavits...EF 83–85
Affirmation in Opp. to Cross–Motion & in Further Support–Exhibits...EF 86–91
Reply Affirmation...EF 92
This is an action to recover damages for personal injuries allegedly sustained by plaintiff, Raul Villarroel, on March 9, 2016 when he fell from a ladder while performing plaster work in the building located at 346 Brook Avenue, in Bronx County, New York. Marilou Development Co., Inc. (Marilou) owns the subject building, and B.S.G. Management Co. (BSG) manages it.
This action was commenced on June 8, 2016 by filing a summons and verified complaint. Defendants joined issue by service of a verified answer dated July 20, 2016. Plaintiffs now move for summary judgment on their Labor Law §§ 240(1) and 241(6) claims and defendants cross-move to dismiss the complaint.
Plaintiff, Raul Villarroel, appeared for an examination before trial on January 25, 2017. He testified that prior to the date of the incident, he had been employed by defendants from approximately 2013 to 2015 as a handyman. After he stopped working for them, they called him from time to time. In early March 2016, he was called to do a job at 346 Brook Avenue. He was hired to repair cracks in the walls and then paint them. On the day of the incident, he was plastering on the first floor. His job included repairing cracks in the walls. He opened the cracks and patched them. At the end, he would paint. This was his second day at the subject location. When the incident occurred, he was on a ladder provided to him by the building's super. The ladder had five rungs. He went up to the fourth rung. No one was helping him or present. Before using the ladder, he secured the two braces. One of the cross pieces of the ladder was bent, the pail shelf was missing, and the rubber on the bottom feet were worn out. The incident occurred when he was on the fourth rung, working on a section of the ceiling. As he was attempting to patch the ceiling, the ladder twisted, and he and the ladder fell. Nobody witnessed his fall. The tenant in apartment 1C assisted him.
Raymond Eshaghoff, president of BSG, appeared for an examination before trial on February 2, 2017. He testified that plaintiff went to the subject building to do some plastering and painting at the request of Karina at BSG. Karina was authorized to hire repairmen. Arsenio Colon maintained the property, cleaned the hallways, shoveled the snow, cleaned and maintained the garbage areas, and did some repairs. Mr. Colon also performed apartment repairs, plastered and painted, and performed other handyman work.
Arsenio Colon, the building's part-time super, appeared for an examination before trial on August 22, 2017. He testified that he would be at the building four to five hours per day. He would do the "little things" in the building. For the "larger things", the building would sometimes hire other people.
In support of the cross-motion and in opposition to the motion, defendants submit an affidavit from Karina Cisneros dated January 18, 2018. Ms. Cisneros affirms that she is presently employed by BSG as a maintenance coordinator. She has been employed by BSG as a maintenance coordinator since March 2015. As the maintenance coordinator, she assigns maintenance tasks to BSG's superintendent and arranges for contractors to perform work in the buildings that BSG manages. Plaintiff had been employed by BSG as a handyman from 2013 until 2015. He was not employed by BSG at any time following his resignation from BSG in 2015. He had not been retained as an independent contractor by BSG at any time following his resignation in 2015. In early March 2016, she did advise plaintiff that if he would provide an executed independent contractor and indemnification agreement (hereinafter the agreement) along with a W–9, he could be retained to perform touch up work in the hallways in light of routine wear and tear to the walls. BSG requires that before any contractor begins to perform work, he or she must complete the agreement and W–9. A file is kept at BSG's office specifically for hard copies of the paperwork. When she spoke to plaintiff in early March 2016, she advised him that he was required to complete the paperwork and bring it to the office before he would be permitted to begin the work. Plaintiff misrepresented to her that he had previously picked up the paperwork, completed it, and handed it in. She learned that he never actually completed the paperwork. Therefore, plaintiff commenced work at the building without any authority to do so. Any work performed by plaintiff on March 8, 2016 and March 9, 2016 was without permission. After learning about this incident, she searched for the agreement that plaintiff told her he had provided. She did not find the agreement.
Initially, plaintiffs contend that Ms. Cisneros' affidavit should not be considered because she was not disclosed as a witness and her affidavit lacks a certificate of conformity. Here, plaintiffs had actual notice of Ms. Cisneros as both plaintiff and Mr. Eshaghoff testified regarding Ms. Cisneros. As such, consideration of the affidavit does not prejudice a substantial right of plaintiffs, especially where, as here, plaintiffs do not contend that defendants prevented a deposition of Ms. Cisneros. Additionally, there was a certificate of conformity attached to the affidavit. Therefore, this Court will consider Ms. Cisneros' affidavit.
The proponent of a summary judgment motion has the initial burden of submitting evidence in admissible form demonstrating the absence of any triable issues of fact and establishing an entitlement to judgment as a matter of law (see Ayotte v. Gervasio , 81 NY2d 1062 [1993] ; Winegrad v. New York Univ. Med. Ctr. , 64 NY2d 851 [1985] ; Zuckerman v. City of New York , 49 NY2d 557 [1980] ). Once the requisite showing has been made, the burden shifts to the opposing party to produce admissible evidence sufficient to establish the existence of a triable issue of fact (see Alvarez v. Prospect Hosp. , 68 NY2d 320 [1986] ; Winegrad v. New York Univ. Med. Ctr. , 64 NY2d 851 [1985] ).
Labor Law § 240(1) requires owners, contractors, and their agents to provide workers with appropriate safety devices to protect against "such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured" ( Ross v. Curtis–Palmer Hydro–Elec. Co. , 81 NY2d 494, 501 [1993] ). To prevail on a Labor Law § 240(1) cause of action, a plaintiff must demonstrate that there was a violation of the statute and that the violation was a proximate cause of the accident (see Blake v. Neighborhood Hous. Servs. of New York City, Inc. , 1 NY3d 280 [2003] ). Although any purported contributory or comparative negligence of the plaintiff is not a defense in an action brought under the statute, a claim under Labor Law § 240(1) will not stand where the plaintiff's own conduct was the sole proximate cause of his or her injuries (see Zimmer v. Chemung County Performing Arts , 65 NY2d 513 [1985] ; Plass v. Solotoff , 5 AD3d 365 [2d Dept. 2004] ).
Here, plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) by submitting evidence that defendants provided him a defective ladder with bent cross pieces, a missing pail shelf, and worn rubber feet, which caused the ladder to twist and plaintiff to fall to the ground (see Cardenas v. 111–127 Cabrini Apts. Corp. , 145 AD3d 955 [2d Dept. 2016] ; Patrikis v. Arniotis , 129 AD3d 928 [2d Dept. 2015] ). Additionally, the scraping and plastering performed by plaintiff is encompassed within the term ‘painting’ in Labor Law § 240(1) (see Loreto v. 376 St. Johns Condominium, Inc. , 15 AD3d 454 [2d Dept. 2005] ; Aarons v. 401 Hotel, L.P. , 12 AD3d 293 [1st Dept. 2004] ; De Oliveira v. Little John's Moving , 289 AD2d 108 [2d Dept. 2001] ). Lastly, although defendants' expert, George H. Pfreundschuh, P.E., submits an affidavit concluding that plaintiff's "own improper use of the ladder is the sole cause of the claimed fall", where a violation of Labor Law § 240(1) is a proximate cause of an accident, the worker's conduct cannot be deemed solely to blame for it (see Blake v. Neighborhood Hous. Servs. Of NY City , 1 NY3d 280 [2003] ); Valensisi v. Greens at Half Hollow, LLC , 33 AD3d 693 [2d Dept. 2006] ).
In opposition, however, defendants did raise a triable issue of fact as to whether plaintiff was authorized to be at the building at the time of the subject incident. To invoke the protections afforded by the Labor Law, "a plaintiff must demonstrate that he was both permitted or suffered to work on a building or structure and that he was hired by someone, be it owner, contractor or their agent" ( Whelen v. Warwick Val. Civic & Social Club , 47 NY2d 970, 971 [1979] ). Based on Ms. Cisneros' affidavit stating that plaintiff was performing work without permission on the date of the subject incident, an issue of fact remains as to whether plaintiff was employed within the meaning of the Labor Law (see Aslam v. Neighborhood Partnership Hous. Dev. Fund Co., Inc. , 135 AD3d 790 [2d Dept. 2016] ).
Accordingly, plaintiff's motion seeking summary judgment on the causes of action based on violations of Labor Law §§ 240(1) and 241(6) is denied (see Mordkovsky v. VCV Development Corp. , 78 NY2d 573 [1990]; Passsante v. Peck & Sander Props., LLC , 33 AD3d 980 [2d Dept. 2006] ).
Under Labor Law § 241(6), liability is imposed on an owner or contractor for failing to comply with the Industrial Code, even if the owner or contractor did not supervise or control the worksite. To support his claim under Labor Law § 241(6), the plaintiff has alleged violations of 12 NYCRR 23–1.5(c)(1), 23–1.21(b)(1), 23–1.21(b)(3)(I), 23–1.21(b)(3)(iv), 23–1.21(b)(4)(iv), and 23–1.21(e)(3).
That branch of the cross-motion seeking to dismiss plaintiffs' Labor Law § 241(6) claims premised on violations of Industrial Code Sections 23–1.5(c)(1), 23–1.21(b)(1), and 23–1.21(b)(4)(iv) is granted without opposition as these provisions are not applicable. 12 NYCRR 23–1.21(e)(3) is also inapplicable because plaintiff was standing on a step less than ten feet above the footing (see Vega v. Renaissance 632 Broadway, LLC , 103 AD3d 883 [2d Dept. 2013] ).
12 NYCRR 23–1.21(b)(3) provides that a "ladder shall not be used if ... it has a broken member of part... it has any flaw or defect of material that may cause ladder failure". Although Mr. Pfreundschuh opined that the bent horizontal brace did not materially affect the shape, utility or strength of the ladder and that the missing rubber foot did not impair the overall functioning of the remaining foot pads, plaintiff testified that the ladder had deteriorated rubber feet and a defect in its rear horizontal brace. Thus, issues of fact exist as to whether the defects alleged by plaintiff were the proximate cause of plaintiff's incident.
It is well-settled that liability for negligence will attach pursuant to common law or under Labor Law § 200 if the plaintiff's injuries were sustained as a result of a dangerous condition at the work site and only if the owner, contractor or agent exercised supervision and control over the work performed at the site or had actual or constructive notice of the alleged dangerous condition (see Pirotta v. EklecCo. , 292 AD2d 362 [2d Dept. 2002] ; Kobeszko v. Lyden Realty Investors , 289 AD2d 535 [2d Dept. 2001] ; Giambalvo v. Chemical Bank , 260 AD2d 432 [2d Dept. 1999] ).
Although defendants contend that the common law negligence and Labor Law § 200 claims must be dismissed because defendants did not supervise, direct, or control the method or manner in which plaintiff performed his work, the allegedly defective ladder was provided to plaintiff by defendants' super, Mr. Colon. Thus, issues of fact remain as to whether defendants supervised, directed or controlled the manner in which plaintiff performed his work. Additionally, issues of fact remain as to whether defendants created the alleged defective condition and whether defendants had actual or constructive notice of such condition (see Chowdhury v. Rodriguez , 57 AD3d 121 [2d Dept. 2008] ).
Lastly, defendant BSG's contention that it is not subject to the obligations of the Labor Law is meritless (see Corona v. Metropolitan 298–308 Assoc. , 281 AD2d 447 [2d Dept. 2001] ). Here, there is at least an issue of fact as to whether BSG, as Marilou's agent, had the right to control plaintiff's work since it is undisputed that Ms. Cisneros on behalf of BSG had the authority to hire repairmen.
Accordingly, and based on the above reasons, it is hereby,
ORDERED, that the motion for summary judgment by plaintiffs is denied; and it is further
ORDERED, that the cross-motion for summary judgment by defendants is granted only to the extent that plaintiffs' Labor Law 241(6) claims premised on violations of 12 NYCRR 23–1.5(c)(1), 23–1.21(b)(1), and 23–1.21(b)(4)(iv), and 23–1.21(e)(3) are dismissed as against defendants.