Rafael Batista, Appellant,v.Manhattanville College, et al., Respondents, The Female Academy of the Sacred Heart, Defendant.BriefN.Y.Dec 14, 2016THOMAS J. BURKE MICHAEL G. CONWAY JOHN F. LOCCISANO PHILIP J. DILLON GERALDINE AINE DAVID M. BERKLEY JAYNE L. BRAYER RONESE R. BROOKS MARTIN GALVIN ERIN GROVER CRISTIN HUGHES SEAN LEVIN STEPHANE D. MARTIN JAYNE F. MONAHAN SAMI P. NASSER MOYA O'CONNOR ROSANNA H. SHAMASH SAMANTHA L. SHARPE ROBERT J. SPENCE, In MARC E. STIEFELD RICHARD M. WARD LAW OFFICES OF BURKE, CONWAY, LOCCISANO & DILLON Employees of Liberty Mutual Group, Inc. 10 BANK STREET- SUITE 1200 WHITE PLAINS, NEW YORK 10606 PHONE: 914-997-8100 FAX: 914-997-8473 E-SERVICE: bcldlaw@libertymutual.com EFax: 603-334-9706 PLEASE BE ADVISED TIIAT WE ARE NOW ACCEPTING E-SERVICE October 19, 2016 VIA UPS OVERNIGHT DELIVERY Court of Appeals, State ofNew York 20 Eagle Street Albany, New York 12207-1095 Attention: John P. Asiello, Chief Clerk & Counsel to the Court Re: Batista v Manhattanville College APL-2016-00156 Dear Mr. Asiello: OFFICE MANAGER PATRICIA K. BROWN I am an attorney in the Law Office of Burke, Conway, Loccisano & Dillon. This Letter Brief is submitted on behalf of Defendant/Respondent TJR, Inc. [hereafter "TJR"] in response to the letter memorandum submitted by Plaintiff/ Appellant. Plaintiff seeks reversal of the unanimous decision by the Appellate Division, First Department, denying his motion for summary judgment, finding various issues of fact and credibility regarding sole proximate cause. Counsel for Defendant/Respondent Manhattanville College submitted a letter memorandum opposing the letter by Plaintiff/Appellant. TJR hereby adopts its arguments in favor of affirmance. Plaintiff/ Appellant insists that he eliminated all questions of fact and is entitled to summary judgment as a matter of law on the Labor Law § 240 ( 1) claims. Plaintiff/ Appellant relies on cases with markedly different facts than those presented here. Contrary to his claims, Plaintiff/Appellant's actions were the sole proximate cause of this incident, and at a minimum issues of fact remain. Plaintiff's actions were egregious and unforeseeable, including, inter alia, jumping, bouncing and hopping on a floor board that he had placed on a scaffold. An eyewitness to Plaintiffs actions testified that plaintiff directly caused this incident by hopping and bouncing on a plank of wood that he had placed on the scaffold, apparently to test in mid-air whether the plank could support his weight. Although plaintiff denied that he tested the wood by jumping, hopping, or bouncing on it, a Court must draw all reasonable inferences in favor of the non- moving party opposing summary judgment and not pass judgment on issues of credibility. Further, plaintiff was the site foreman with many years of experience in assembling scaffolds. He knew that OSHA planks, which were available to him, were to be used. Notwithstanding the testimony by plaintiffs supervisor that he specifically instructed plaintiff on multiple occasions not to use the spruce planks as floorboards, and that plaintiff was a highly experienced foreperson, plaintiff flagrantly disregarded these instructions and installed non- OSHA stamped spruce planks. Further, Plaintif£' Appellant knowingly used planks with visual cracks and knots, which he knew were inferior. The Appellate Division heard oral arguments on this matter and found a number of separate issues of fact remained: inter alia, whether plaintiff, as the foreperson for the job with years of experience, knowingly placed spruce planks rather than OSHA-approved planks; whether plaintiff knew and was instructed only to use OSHA-approved planks and failed to do so; whether OSHA-approved planks were available to plaintiff; and whether plaintiff was instructed more than once never to use such planks as floor planks and, nevertheless, disregarded this instruction. STATEMENT OF FACTS Plaintiff had been employed for over ten years in this field, and he knew that such planks were not to be used for the platform surface on the scaffold. (R.902-903) Peter Sacheli, plaintiff's supervisor, testified that he learned that plaintiff was bouncing on the plank on the second-l~ve1 of the scaffold, when the plank broke. (R.916) He also learned that George Theocaropoulos, plaintiffs colleague, told plaintiff beforehand that the plank that ultimately broke had knots in it (which were visible) and told plaintiff not to use the plank, but plaintiff used it anyway. (R.919) Plaintiff weighed approximately 200 pounds, and he knew that each plank that he installed would only support approximately 140-150 pounds. (R. 207) He admitted on various occasions that he could only walk on OSHA stamped planks. (R. 302-303, 313) Plaintiff elected not to bring any safety devices, and he admitted that he would not have used any safety device, because they were never used on a two-level jobsite, such as this one. He, personally, had placed the floorboard down before bouncing and hopping on it. (R. 213-214, 234-235). Plaintiff was solely responsible for installing the second floor of the scaffold (R. 1247). It was far from normal practice to bounce, hop, or jump on a plank on the scaffolding. (R.916-917) When Mr. Sacheli arrived on site shortly after plaintiffs accident, there were OSHA-approved pine planks at the job site. (R.952-953) Mr. Sacheli had observed plaintiff utilizing spruce planks for scaffold flooring in the past and had instructed him to use the OSHA- approved pine planks. (R.958-959, 976) Plaintiff was even relieved on several occasions for not following instructions regarding the use of such planks. (R.977 -978) Plaintiff had told his 2 foreman that he preferred the spruce planks because they are lighter than the pine planks, and he had been instructed not to place spruce planks as floorboards, but did so anyway. (R.961) On the date of the incident, Mr. Theocaropoulos observed plaintiff walk to a section on the scaffold where there were no posts or rails, and proceed to hop or bounce on the end plank, complaining that the planks were no good, using more provocative language. (R.701) Mr. Theocaropoulos stated: Okay, we were at the last part of the job putting up the posts and rails, and Rafael walked to a section where there was no posts and rails and proceeded to hop on the end plank, the last one far out on the end. He stood on one plank by itself and was telling Julio in Spanish that the planks sucked, they were no good, and he walked to the last one, No.6, and started hopping, and it snapped from underneath him and he fell sideways out ... (R. 701) Plaintiff hopped or jumped on the plank three to four times before it snapped. (R. 708) Antonio Carino was employed by TJR as an operating engineer. (R.594) While he did not witness the accident, based upon his observations afterward, the plank had snapped in half because it had a knot in the middle of it. (R.623-624) These knots were readily visible, and plaintiff knew he was not supposed to use any planks with knots in them. ARGUMENT A. Summary Judgment Standard It is well-settled law that "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter oflaw, tendering sufficient evidence to demonstrate the absence of any material issues of fact." Alvarez v. Prospect Hosp., 68 NY2d 320,324 (1986) (citation omitted). The failure to make such a showing requires the denial of the motion, regardless of the sufficiency of the opposition papers, or lack thereof. Id.; see also Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 (1985). If this showing is made by the movant, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Alvarez, 68 NY2d at 324; see also Zuckerman v. City ofNew York, 49 NY2d 557, 562 (1980). As a granting of a summary judgment motion "is the procedural equivalent of a trial" Crowley's Milk Co. v. Klein, 24 AD2d 920,920 (3d Dept. 1965), "summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of triable issue." Moskowitz v. Garlock, 23 AD2d 943, 944 (3d Dept. 1965). It has long been held that "[t]his drastic remedy should not be granted where there is any doubt as to the existence of such issues, or where the issue is 'arguable."' Glick & Dolleck v. Tri-Pac Export Com., 22 NY2d 439, 441 (1968) (citing Barrett v. Jacobs, 255 NY 520, 522 [1931]); see also CPLR § 3212, Practice Commentaries, David D. Siegel, C3212:1. 3 "Where a plaintiff is the sole witness to an accident, an issue of fact may exist where he or she provides inconsistent accounts of the accident." Smigielski v. Teachers Ins. & Annuity Assn. of Am., 137 AD3d 676,676 (1st Dept. 2016) (citing Goreczny v. 16 Ct. St. Owner LLC, 110 AD3d 465,466 [1st Dept. 2013]); Jones v. W. 56th St. Assoc., 33 AD3d 551, 552 (1st Dept. 2006) (the plaintiff was not entitled to summary judgment as to liability where inconsistencies in his accounts of how he came to be injured raised "a factual issue ... as to whether a violation of Labor Law§ 240 (1) was a proximate cause of plaintiff's injury"); see also Thoma v. Ronai, 82 NY2d 736 (1993); (holding that plaintiff is required to eliminate all questions of material fact and issues of credibility before being entitled to summary judgment as a matter oflaw); Rodriguez v. City ofNew York, 142 AD3d 778 (1st Dept. 2016) (same). As the Court's role is one of issue finding, not issue determination, the evidence must be evaluated in a light most favorable to the party opposing the motion. See Sosa v. 46th Street Dev. LLC, 101 AD3d 490,492-493 (1st Dept. 2012). This is so because "issues of negligence, foreseeability and proximate cause involve the kinds of judgmental variables which have traditionally, and soundly been left to the finders of fact to resolve even where the facts are essentially undisputed." Rotz v. City ofNew York, 143 AD2d 301, 304 (1st Dept. 1988) (citations omitted); Raider v. Friedman, 162 AD2d 112 (1st Dept. 1990). Thus, the existence of unresolved factual questions precludes imposing summary judgment. See Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395,404 (1957). B. Issues of Fact as to Sole Proximate Cause and Recalcitrant Plaintiff Where a plaintiff's negligence constitutes the sole proximate cause of the injury, it will be deemed to be an intervening or superseding cause, and renders the plaintiff's accident unforeseeable. Liability pursuant to the Labor Law will not be imposed in such cases. See Blake v. Neighborhood Hous. Servs ofN.Y. City. 1 NY3d 280 (2003); Weininger v. Hagedorn & Co., 91 NY2d 958, 960 (1998) (holding that Labor Law§ 240 (1) liability does not attach if the plaintiff's actions were the sole proximate cause or he was a recalcitrant worker who refused safety instruction); Zimmer v. Chemung County Performing Arts, 65 NY2d 513, 524 (1985). There are numerous cases where courts refused to grant plaintiff's motion for summary judgment where there is an issue of fact whether plaintiff was the sole proximate cause of the incident. For example, in Montgomery v Federal Express Corp., 4 NY3d 805, 806 (2005), the Court affirmed the holding of the Appellate Division, First Department that the plaintiff, who chose to use an inverted bucket to get up to an elevator motor room located about four feet above the roof, and then to jump down, was the sole proximate cause of his injury, and was therefore not entitled to recover under Labor Law§ 240 (1). See also Egan v. A.J. Constr. Corp., 94 NY2d 839, 841-842 (1999) (holding that as a matter of law, the plaintiff's act of jumping out of a stalled elevator six feet above the lobby floor after the elevator's doors had been opened manually was not foreseeable in the normal course of events resulting from defendants' alleged negligence). This Court's decision in Montgomery supports dismissal of plaintiffs Labor Law § 240 (1) claim, much less affirmance of the Appellate Division's findings of fact in the instant record, which is replete with factual disputes and internally inconsistent testimony proffered by plaintiff. 4 In Montgomery, instead of obtaining a ladder that was available, the plaintiff stood on an inverted bucket and thereafter jumped down to the roof after leaving the motor room. In the instant case, plaintiff was standing on the scaffold, the very safety device he was erecting, and he made a conscious decision not to use OSHA planks designed to be used as floor boards but, instead, used spruce planks, notwithstanding previous reprimands for his own prior rogue actions. Then, compounding this problem, plaintiff decided to use planks with knots in them, which were clearly apparent and which plaintiffknew would compromise the strength of the boards. Finally, plaintiff's hopping, jumping and bouncing on the wood- which he stated in coarse terms he knew was poor- as a 200-pound man, who knew that those boards would only support approximately 140 pounds - was an egregious and unforeseeable act of negligence that directly caused the plank to break. In Robinson v. E. Med. Ctr .. LP (6 NY3d 550, 554-555 [2006]), the Court held that an employee's action of standing on top cap of six-foot stepladder was sole proximate cause of his injuries. The plaintiff in Robinson knew that he needed an eight-foot ladder in order to perform his job and that there were such ladders nearby. The Court found that the plaintiffs own negligent actions - choosing a six-foot ladder that he knew was too short for the task to be accomplished and then standing on the ladder's top cap in order to reach the work- were, as a matter oflaw, the sole proximate cause of his injuries. Here, plaintiff chose not to use the proper planks, and his actions directly caused the incident. In Cahill v. Triborough Bridge & Tunnel Auth. (4 NY3d 35 [2004]), the plaintiff was working on repair and reconstruction of a bridge, which entailed climbing up and down forms. The Court noted: 1) a jury could have found that plaintiff knew that adequate safety devices existed and were available and that he was expected to use them; 2) he chose for no good reason not to do so; and 3) that had he not made that choice he would not have been injured. Id. at 40. Here, as in Cahill, plaintiff chose to disregard specific safety instructions to utilize equipment or devices that were available. Had plaintiff not disregarded his employer's instructions, the scaffold would have provided protection and would have prevented his accident. Plaintiff conceded that he utilized spruce planking for flooring. The fact that plaintiff chose to use spruce planking instead of OSHA-approved pine planking, then stated that the planking were terrible and should not be used, then shockingly proceeded to jump or bounce on it in mid-air, are all unforeseeable acts that directly caused this incident. Plaintiff was instructed by his employer to only utilize OSHA-approved pine planks for the flooring of the scaffold. (R.902-903, 958-959, 976). On occasions prior to plaintiff's accident, plaintiff's supervisor, Peter Sacheli, had "caught" him using spruce planks for flooring and had specifically instructed him to only use pine planks, and reprimanded plaintiff on more than one occasion for not following instructions. (R. 958-961, 976-978) Pine planks sufficient for the entire job were available through plaintiff's employer, American Scaffold. Furthermore, plaintiff was a "recalcitrant worker" because he was instructed by his employer to only test scaffold flooring planks while on the ground, while also looking for knots. (R. 843-845, 851-852) George Theocaropoulos, plaintiff's co-worker, testified that despite these instructions, plaintiff's accident occurred while he was bouncing on a plank and testing it, while incredibly on the second level of the scaffold, contrary to his employer's training and 5 instructions, and in gross disregard for common sense, especially for an experienced scaffold foreman. (R. 701-702) Thus, substantial evidence exists both that the plaintiff's conduct was the sole proximate cause of his accident, and that plaintiff was a recalcitrant worker. This evidence militates against concluding that the plaintiff established prima facie entitlement to a grant of partial summary judgment on liability pursuant to Labor Law§ 240 (1). Thus, a reasonably jury could have concluded that plaintiff's actions were the sole proximate cause ofhis injuries and, consequently, that liability under Labor Law § 240 (1) does not attach. The unforeseeable nature of plaintiff's accident should preclude recovery as plaintiff's negligence was the sole proximate cause of his accident. There is no evidence of a statutory violation in this case. All materials required to safely erect the scaffold were available to the plaintiff. Plaintiff was aware of which planks to use for the floorboards. Additionally, he was trained to safely test the planks on the ground before they were placed on the scaffold. Instead, plaintiff "tested" the planks after they were already on the scaffold, resulting in his injury. Plaintiff was instructed various times not to use those planks, and his own statements evince that he knew the planks would not support his weight when he jumped, hopped, and bounced on them. Plaintiff's normal, logical response should have been to use the OSHA-approved pine planking that was readily available to him. He also knew that he was expected to use pine planks for flooring, yet he chose, for no good reason, to disregard that requirement. In doing so, he failed to use his years of experience, disregarded specific instructions that he previously had been reprimanded for failing to follow, and did not use simple common sense that a piece of wood should not be tested in mid-mr by jumping, hopping or bouncing on it. His actions directly caused this event. Accordingly, there is, at a minimum, issues of fact as to sole proximate cause. C. Plaintiff's Relied-Upon Cases are Inapposite The cases cited by plaintiff in support of his contention that he was not recalcitrant or was not the sole proximate cause ofhis accident are inapplicable and distinguishable. Plaintiff relies upon Miraglia v. H & L Holding Corp. (36 AD3d 456 [1st Dept. 2007]). There, the plaintiff's employer's trial testimony that workers were permitted to walk on planks lmd across a trench at the work site, provided that they doubled the planks, negated the defense that plaintiff was a recalcitrant worker for walking on a plank rather than using a ladder to cross the trench. Here, the facts are almost exactly the opposite; plaintiff was the person charged with erecting the scaffold, the subject safety device, and he failed to use proper floor board. He even knew the floor boards were deficient because they had knots in them and were not stamped OSHA planks, and commented in explicit terms that they were deficient to be used as floor boards, just before he jumped, hopped and bounced on the board. The facts here are far different than those in Miraglia. Accordingly, reliance upon that case is unavailing. Plaintiff also cites to Salazar v. United Rentals, Inc. (41 AD3d 684 [2d Dept. 2007]). There, under completely different facts, defendants provided plaintiff with no safety device to use when he was in a boom-lift basket, despite instruction for them to provide safety harnesses. The Court held that the defendants' contentions that plaintiff, who went and purchased his own rope and did not use it at the time of his incident, was not sufficient for sole proximate cause to be established. Here, the scaffold is the safety device, and it was being erected by plaintiff, a highly-experienced assembler. He disregarded all instruction regarding which planks to use and 6 then jumped, hopped and bounced on planks that he knew would not support his weight. Accordingly, reference to that case is misplaced. Similarly unpersuasive is plaintiffs reliance upon Gordon v. Eastern Rwy. (82 NY2d 555, 557 [1993]). There, the defendants' failure to provide plaintiff with a safe scaffold or ladder while he sandblasted the railroad car was a substantial cause leading to his fall and the injuries he sustained. Injury was a foreseeable result of cleaning railroad cars from an elevated position. Here, there is ample evidence that plaintiff had proper boards to erect the scaffold; he disobeyed orders and chose not to use such boards; he knew the boards were not to be used as floor boards; and, he proceeded to jump, hop or bounce on the boards. His actions were unforeseeable, directly contrary to numerous instructions, and he had available to him OSHA planks and chose not to use them. CONCLUSION This Court has made plain that the language of Labor Law § 240 (I) ''must not be strained" to accomplish what the Legislature did not intend. See Martinez v. City ofNew York, 93 NY2d 322, 326 (1999). The instant case presents unique facts, far different than the Appellate Division cases relied upon by Plaintifii'Appellant. Plaintiff's actions were egregious and unforeseeable- as well as unacceptable in promoting a safe work environment- and he placed coworkers at risk. Further, plaintiff's actions directly caused this incident. The Appellate Division correctly determined that there were various issues of fact regarding sole proximate cause. Accordingly, the unanimous decision by the Appellate Division, First Department should be affirmed. Very truly yours, BURKE, CONWAY, LOCCISANO & DILLON ~~ cc: VIA UPS OVERNIGHT DELIVERY Brian J. Isaac, Esq. Pollack Pollack Isaac & DeCicco, LLP 225 Broadway- Suite 30 New York, New York 10007 Email: bji@ppid.com Attorneys for Plaintiff/Appellant 7 Robert A. Lifson Gorayeb & Associates PC Lewis Johs Avallone Aviles LLP One CA Plaza, Suite 225 Islandia, NY 11749 ralifson@lewisjohs.com Attorneys for Manhattan ville College 8
