Opinion
00-CV-0720E(Sr)
October 7, 2003
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Malone filed a complaint in state court on July 19, 2000. Defendant ("Med Inn") removed the case to this Court on August 21, 2000. Med Inn filed a motion for summary Judgment on April 10, 2003, which was argued and submitted on May 23. Malone filed a motion for summary Judgment on June 25, which was argued and submitted August 1. for the reasons set forth below, Malone's motion for summary Judgment will be denied and Med Inn's motion for summary Judgment will toe granted.
Such will be used to denote either a plaintiff or both plaintiffs.
Malone was working on a construction site when he allegedly fell off a ladder and injured himself. The record contains several different versions of Malone's accident. Rule 56(c) of the Federal Rules of Civil Procedure ("FRC v. P") states that summary Judgment may toe granted only if the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to Judgment as a matter of law. In other words, after discovery and upon a motion, summary Judgment is mandated against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary Judgment is thus appropriate where there is no genuine issue of material fact. Anderson V. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Of course, the moving party bears the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (citing Adicles v. S.H. Kress Co., 398 U.S. 144, 157 (1970)). If the moving party makes such a showing, the non-moving party must then come forward with evidence of specific facts sufficient to support a jury verdict in order to survive the summary judgment motion. Ibid.; FRCvP 56(e).
With respect to the first prong of Anderson, a genuine issue of material fact exists it if the evidence in the record is such that a reasonable Jury could return a verdict for the nonmoving party. Anderson, at 248. Stated another way, there is no genuine issue as to any material fact where there is a complete failure of proof concerning an essential element of the nonmoving party's case. Celotex, at 323. Under the second prong of Anderson, the disputed fact must be material, which is to say that it might affect the outcome of the suit under the governing law ***. Anderson, at 248.
See also Anderson, at 252 ("The mere existence of a scintilla of evidence in support of the [movant's] position will be insufficien[t] there must be evidence on which the jury could reasonably find for the [movant].)
Furthermore, [i]n assessing the record, to determine whether there is a genuine issue as to any material fact, the district court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary Judgment is sought." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000) (Citing Anderson 255). Nonetheless, mere conclusions, conjecture, unsubstantiated allegations or surmise on the part of the non-moving party are insufficient to defeat a well-grounded motion for summary Judgment. Groenaga, at 18.
See footnote 3.
Malone's motion for summary Judgment seeks a determination of liability with respect to plaintiffs claim under N.Y. Labor Law § 240(1). As set forth in Med Inn's brief, there are numerous genuine issues of material fact whether Malone fell from ladder under the circumstances in which he alleges to have fallen. For example, there is a genuine issue of material fact whether Malone fell while he was on the ladder or fell while he was attempting to step onto the ladder. Even assuming that Malone fell from the ladder, there is a genuine issue of material fact whether the lack of a safety device was the proximate cause of Malone's injury inasmuch as there is evidence indicating that Malone fell because he was wearing muddy boots — as opposed to having fallen because of the lack of a safety device. Consequently, there is a genuine issue of material fact whether defendant is liable under Labor Law section 240(1). Accordingly, Malone's motion for summary Judgment will be denied.
See Def.'s Mem. of Law, at 6-12.
Compare Am. Compl. at ¶ 11 (alleging that plaintiff was caused to fall from a ladder a distance of approximately twenty (20) feet") and Compl. at ¶ 11 (alleging that plaintiff was caused to fall from a ladder a distance of approximately ten (10) feet) with Aff. of Kathleen T. O'Donnell, M.D. (stating that plaintiff informed her that the accident occurred while plaintiff was standing can a 2 to 3 foot bank *** [as] he tried to step onto a ladder but least his balance J. Although plaintiff's counsel submitted an affidavit challenging the reliability of the O'Donnell affidavit, such weighing of evidence is properly left for a jury. Labor Law section 240(1) only applies where an elevation-related hazard exists. See Rocovicti v. Consolidated Edison Co., 78 N.Y.2d 509, 513-514 (1991) (holding that worker's fall into 12-inch trough was not actionable under section 240(1). Consequently, if Malone fell while on the ground — albeit while attempting to climb onto a ladder — section 240(1) would not apply. Cf. Cundy v. N.Y. State Elec. Gas Corp., 273 A.D.2d 743, 743-744 (3d Dep't 2000) (holding that section 240(1) was inapplicable where worker fell at same level in which he was working — albeit consisting of a three-foot fall); Rossi v. Mt. Vernon Hosp., 265 A.D.2d 542, 543 (2d Dep't 1999) (holding that section 240(1) did not apply where worker fell into a grease pit while working on the ground level).
See e.g., Aff. of Stojan Tritchew ¶ 4; see also Weininger v. Hagedorn Co., 91 N.Y.2d 958, 960 (1998) (finding that trial court erred in directing a verdict for plaintiff because a reasonable jury could have found that plaintiff's actions were the proximate cause of his injuries stemming from fall from ladder); Zimmer v. Chemung Cty. Performing Arts, 65 N.Y.2d 513, 518-519 (1985) (holding that owners/contractors are liable under Labor Law section 240(1) where they failed to provide any safety devices for workers at a building site, and the absence of such devices is the proximate cause of injury to a worker"); Jablon v. Solow, 22 F. Supp.2d 411, 413 (S.D.N.Y. 1998 (denying worker's summary judgment motion because there existed a genuine issue of material fact whether plaintiff's own conduct was the proximate cause of his injuries — which were inflicted when he fell from a ladder). Moreover, there is a genuine issue of material fact as to whether any safety equipment would have prevented Malone's injuries. Cf. Rocovich, supra note 7, at 514-515 (While the extent of the elevation differential may not necessarily determine the existence of an elevation-related risk, it is difficult to imagine how plaintiff's proximity to the 12-inch trough could have entailed an elevation-related risk which called for any of the protective devices of the types listed in section 240(1).").
Med Inn's motion for summary Judgment seeks dismissal of Malone's first two causes of action — i.e., his negligence and Labor Law $200 claims on the ground that there is no evidence that Med Inn exercised super vision or control over the work performed by Malone. This Court agrees because [a]n owner is not liable under § 200 unless it *** exercised supervision or control over the work performed by the plaintiff. Wilson v. City of New York, 89 F.3d 32, 38 (2d Cir. 1996) (citing Comes supra note 9). Malone, however, has produced no evidence that Med Inn exercised any control or supervision over his work on the ladder. Indeed, Malone merely contends that Med Inn hired Cannon Design as its construction manager and that Cannon Design supervised the construction site. Such a general supervisory presence, however, is insufficient to establish that Med Inn supervised or controlled the manner in which Malone performed his work. Accordingly, defendant's motion for summary Judgment will toe granted.
Malone's negligence and section 200 claims will be analyzed in tandem inasmuch as section 200 is merely a codification of the common law duty owed by of an owner or general contractor. See Comes v. N.Y.S. State Elec. Gas Corp., 82 N.Y.2d 876, 877 (1993).
See generally Def.'s Statement of Undisputed Material Facts. See also Wilson, at 38 (holding that city did not supervise or control worker employed by a company hired by the city to maintain a building and that mere assertion that the city had control over plaintiff's work was insufficient to raise an issue of fact for trial); Bradford v. The Barge B-10, 1999 WL 1256248, at* 5 (S.D.N.Y. 1999) (noting that a plaintiff who falls from a ladder situated on defendant's property may recover under § 200 only if he can first demonstrate that the defendant supervised, controlled, or directed the manner in which the task involving the ladder was undertaken and holding that defendant neither controlled nor supervised plaintiff's work on the ladder despite the fact that defendant's agent was fifty feet away); Poulin v. E.I. DuPont DeNemours Co., 883 F. Supp. 894, 898 (W.D.N.Y. 1994) (granting owner's motion for summary judgment because there was no evidence showing that it had notice or control over equipment used by plaintiff). Indeed, Malone was directed and controlled by his employer, Rankin Construction via Rankin supervisor, Craig "Biz" Bismack. See Malone Dep., at 13, 32-38, 121, 123, 125-126. Med Inn neither directed nor controlled Malone in performing his duties. See Cashman Dep., at 8-10, 19-21, 24-39; Tritchew Dep., at 6-8, 17-18, 43-45.
See Jackson v. Williasmsville Cent. Son. Dist., 229 A.D.2d 985, 987 (4th Dep't 1996) (Retention of the right to inspect or monitor the work does not amount to the level of supervision or control required for the imposition of liability upon an owner); Enderlin v. Iiebert Indus. Insulation, Inc., 224 A.D.2d 1020, 1020-1021 (4th Dep't 1996) (affirming dismissal of plaintiff's section 200 claim because plaintiff failed to make the requisite showing that [defendants] supervised or controlled the manner and method of construction of the enclosures on which plaintiff was working and holding that defendants general supervisory authority established by contract was insufficient to establish liability under Labor Law § 200"); Gaul v. Motorola, Inc., 216 A.D.2d 879, 880 (4th Dep't 1995) (holding that trial court should have granted defendant's motion for summary judgment because there was no evidence that the construction manager, Cannon Design, supervised, controlled, or directed the work"); see also Carberry v. Integral Constr. Corp., 1997 WL 97841, at *4-5 (S.D.N.Y. 1997) (citing cases for the proposition that general supervisory capacity is insufficient under section 200). Likewise here. There is no evidence that Cannon — as the construction manager — controlled or supervised the manner in which Malone performed his work. Moreover, defendant's right to maintain general supervisory authority does not support Malone's section 200 claim.
Accordingly, it is hereby ORDERED that plaintiffs' motion for summary Judgment is denied, that defendant's motion for summary Judgment as to plaintiffs first two causes of action is granted and that the parties shall appear before Part 111 of this Court on November 14, 20003 at 3:00 p.m. (or as soon thereafter as they may toe heard) to set a date for trial with respect to plaintiffs remaining claims.