Rafael Batista, Appellant,v.Manhattanville College, et al., Respondents, The Female Academy of the Sacred Heart, Defendant.BriefN.Y.December 14, 2016Bronx County Clerk’s Index No. 301184/07 New York Supreme Court APPELLATE DIVISION FIRST DEPARTMENT RAFAEL BATISTA, Plaintiff-Respondent, against MANHATTANVILLE COLLEGE and TJR INC., Defendants-Appellants, and THE FEMALE ACADEMY OF THE SACRED HEART, Defendant. (Additional Caption on the Reverse) >> >> To Be Argued By: Robert A. Lifson REPLY BRIEF FOR DEFENDANT-APPELLANT MANHATTANVILLE COLLEGE LEWIS JOHS AVALLONE AVILES, LLP Attorneys for Defendant-Appellant Manhattanville College One CA Plaza, Suite 225 Islandia, New York 11749 631-755-0101 ralifson@lewisjohs.com Printed on Recycled Paper Of Counsel: Robert A. Lifson TJR INC, Third-Party Plaintiff, against AMERICAN SCAFFOLD AND EQUIPMENT CORP., Third-Party Defendant. MANHATTANVILLE COLLEGE, Second Third-Party Plaintiff, against AMERICAN SCAFFOLD AND EQUIPMENT CORP., Second Third-Party Defendant. TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii PRELIMINARY STATEMENT ............................................................................... 1 POINT I: THE PLAINTIFF WAS THE SOLE CAUSE OF THE INCIDENT ........................ 7 POINT II: ALTERNATIVE ISSUES OF FACT EXIST AS TO HOW THE INCIDENT OCCURRED AND WHETHER THE PLAINTIFF WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT ........................................................ 13 POINT III: THERE WAS NO VIOLATION OF THE PRESERVATION RULE UNDER THE UNIQUE CIRCUMSTANCES OF THIS CASE .................................................... 16 CONCLUSION ....................................................................................................... 22 PRINTING SPECIFICATIONS STATEMENT ..................................................... 23 ii TABLE OF AUTHORITIES Cases Page Aimatop Restaurant Inc. v. Liberty Mutual Fire Ins. Co., 74 A.D.2d 516 (2d Dep't 1980) .................................................................................. 8 Andron v. Libby, 120 A.D.3d 1056 (1st Dep't 2014) ............................................................................ 16 Blake v. Neighborhood Housing Services of New York City, 1 N.Y.3d 280 .............................................................................................................. 9 Bonilla v. Petrillo Development Corp., 237 A.D.2d 115 (1st Dep't 1997) .............................................................................. 12 Cabrera v. Noble Electric Contracting Co. Inc., 117 A.D.3d 484 (1st Dep't 2014) .............................................................................. 13 Cahill v. Triborough Bridge and Tunnel Authority, 4 N.Y.3d 35 ................................................................................................................ 9 Calcano v. Rodriguez, 91 A.D.3d 468 .......................................................................................................... 14 Cetindogan vs. Schuyler, 95 A.D.3d 577 (1st Dep't 2012) ................................................................................ 16 Crompton Richmond Co Inc. v. Peterson, 40 A.D.2d 646 (1st Dep't 1973) ................................................................................ 14 Daley v. 250 Park Avenue LLC, 126 A.D.3d 747 (2d Dep't 2015) ................................................................................ 9 Dickerson v. Health Management Corp. of American, 21 A.D.3d 326 (1st Dep't 2005) .................................................................................. 9 iii Gary v. Flair Beverage Corp., 60 A.D.3d 413 (1st Dep't 2009) ................................................................................ 18 Greelish v New York Central R.R. Co., 29 A.D.2d 159 (3d Dep't 1968) ................................................................................ 18 Hladczuk v. Epstein, 98 A.D.2d 990 (3d Dep't 1983) ................................................................................ 14 Kerrigan v. TDX Constr. Corp., 108 A.D.3d 468 (1st Dep't 2013) .......................................................................... 9, 11 Kershaw v. Hospital for Special Surgery, 114 A.D.3d 75 (1st Dep't 2013) .................................................................................. 8 Madeline D'Anthony Enterprises Inc. v. Sokolowsky, 101 A.D.3d 606 (1st Dep't 2012) ................................................................................ 8 Nalepa v. South Hills Business Campus LLV, 123 AD3d 1190 (3d Dep't 2014) .............................................................................. 11 Paz v. City of New York, 85 A.D.3d 519 (1st Dep't 2011) ................................................................................ 11 Perez v. Folio House Inc., 123 A.D.519 (1st Dep't 2014) ................................................................................... 12 Pivar v. The Graduate School of Figurative Art of the New York Academy of Art, 290 A.D.2d 212 (1st Dep't 2002) .............................................................................. 18 Rodriguez v. Dormitory Authority of the State of New York, 104 A.D.3d 529 (1st Dep't 2013) .............................................................................. 13 Saaverda v. East Fordham Rd Development Corp., 233 A.D.2d 125 (1st Dep't 1997) .............................................................................. 12 Stone v. Continental Insurance Co., 234 A.D.2d 282 (2d Dep't 1996) ................................................................................ 8 iv Tora v. Group AG, 31 A.D.3d 341 (1st Dep't 2006) .................................................................................. 9 Winegrad v. New York University Medical Center, 64 N.Y.2d 851 (1985) ................................................................................................ 8 Statutes, Rules & Regulations Labor Law §240(1) ........................................................................1, 2, 4, 5, 9, 10, 14 Labor Law §241(6) ....................................................... 1, 5, 9, 10, 12, 13, 17, 18, 22 Civil Practice Law & Rules 2101(b) .................................................................... 6, 21 Civil Practice Law & Rules 3212(a) ........................................................................ 14 Treatise 4 N.Y. Jur.2d Appellate Review § 613 .................................................................... 17 1 PRELIMINARY STATEMENT This is an appeal of an order of the Supreme Court of the State of New York County Bronx (Thompson J.S.C.) dated July 2, 2014. The learned IAS judge was faced with competing motions for summary judgment. The Defendants/Appellants having moved for summary judgment dismissing the complaint against them, and the Plaintiff/Respondent having moved for summary judgment in his favor based on his Labor Law §240(1) cause of action. Each side opposed the other’s request for summary relief. In the brief of the Defendant/Appellant College, it was asserted that said party had proved an entitlement to summary judgment dismissing the complaint, that the plaintiff had failed to prove their entitlement to summary judgment, and that the Labor Law §241(6) claim (which the IAS court deemed moot) should have been dismissed. The Respondent’s brief argues that the alleged misuse of the planking by the plaintiff was not the proximate cause of the incident in question, that several points asserted in the brief submitted by the Appellant College were not preserved for review by this Honorable Court (an argument which will be shown to be not accurate infra), and that a viable Labor Law §241(6) was established. This reply brief will endeavor to clarify and simplify the issues now presented on this appeal. The question that is common to all branches of the relief 2 sought and determinations rendered herein is does an issue of fact exist as to whether the plaintiff’s action were the sole reason that the planks broke causing his fall. The Defendants maintain that said actions were the sole cause of the incident, and the plaintiff maintains that they were not. The first party to move for summary relief was the plaintiff. By motion returnable on August 5, 2014 plaintiff moved for summary judgment or his Labor Law §240(1) claim. The motion was supported by an attorney’s affirmation, all pleadings and depositions, and an affidavit from the plaintiff (R. 1122, 1160). The argument posed concisely stated the plaintiff was a member of protected class established by the Legislature, and he was injured because he was working on the scaffold and had not been provided with proper safety equipment (R. 1128-1130). The affidavit of the plaintiff states that he suddenly fell when the plank broke. The plaintiff alleges he was injured because he did not have proper safety equipment (R. 1161-1162). This affidavit was accompanied by an affidavit of a paralegal indicating it had been translated from English to Spanish for the plaintiff (R. 1164 - 1165). The motion for summary judgment by the defendant College crossed in the mail and was returnable August 9, 2014. The initial motion papers submitted by the defendant College included a review of the deposition testimonies of various witnesses (see infra) attached as exhibits and synthesized in an attorney’s 3 affirmation which advanced the principal argument that plaintiff was the sole proximate cause of the incident (R. 39). In particular, the defendant College relied on the pertinent testimony derived from George Theocarapolulas an eyewitness to the event. The proof submitted indicated the following facts: (1) the plaintiff had fifteen years experience in this field (R. 207, 275), (2) the plaintiff was the senior employee on the site (R. 207, 235), (3) the plaintiff was the person that placed all the planks used for flooring (R. 207), (4) the plaintiff opted to use spruce planking rather than the OSHA approved planking (made of pine which he knew was stronger) for the flooring (R. 339-340, 686, 694), (5) all the floor planks had already been placed and the last part of the job was to install the post and rails (R. 26-27, 36-37) and (6) the plaintiff saw one spruce plank which he said was no good and walked to an area where no posts or rails had yet been erected and proceeded to hop or bounce on the spruce plank and it broke (R. 27-31, 213-214, 234-235, 701). The College also relied on portions of the deposition of Peter Sacheli, who testified to the following: (1) the plaintiff was employed in this field for fifteen years (R. 33), (2) plaintiff knew any plank with a knot was not to be used for flooring (R. 33) and (3) plaintiff knew the differences in spruce versus pine planking (R. 33). The College also relied on portions of the plaintiff’s own deposition wherein he testified to the following: (1) he had worked for his employer and his current position was a scaffold supervisor – a person responsible 4 for assembling the skeleton of a scaffold (R. 34), (2) OSHA approved planks (pine) were used for flooring (R. 35), (3) he knew planks with cracks or knots in them were not suitable for flooring because they could break (R. 282), (4) when he was handed a plank he would almost always inspect it to see if there were cracks (R. 293), (5) he was responsible for letting his supervisor know if they were running low on any supplies or any type of equipment (R. 231), (6) he was the sole person responsible for placement of the flooring planks on the day of the accident (R. 36) and (7) the plaintiff was not using a safety harness on the date of the accident because for two level jobs they were hardly used (R. 348). The movant also attached a report submitted to a governmental agency by George Theocarapulas in which he wrote that the plaintiff was testing the strength of the plank and so he “jumped” on it to test its strength (R. 38, 1119). All the foregoing was set forth in an affirmation by the attorney for the defendant College in the context of what was believed to be the controlling legal authority. Based on the confluence of those facts, and the applicable law, it was argued that the scaffold was the safety device in question and that it did not malfunction but was caused to break by the actions of the plaintiff. Specifically it was argued that the plaintiff could not prove that there was a violation of Labor Law §240(1) and even if there was a violation, that such circumstance was not a proximate cause of the accident (R. 40-41). It was specifically argued that the 5 injury was not due to the absence of any safety device but rather was caused by the action of the plaintiff in improper testing of a suspect plank (R. 41-42). The attorney also acknowledged that while a presumption might arise from an unexplained collapse of a scaffold that where, as here, evidence is introduce that offers an alternative cause based on the actions of the injured party, relief pursuant to Labor Law §240(1) will not lie (R. 43). Lastly, counsel also argued that Labor Law §241(6) was not applicable because again the plaintiff was the sole cause of the incident (R. 47-48), and the absence of additional safety devices was not a cause of the accident. The motion brought by the defendant contractor was also returnable on August 9, 2014. That defendant also took the position that the Plaintiff was the sole cause of the incident in question (R. 1216). The defendant College submitted papers in opposition to the plaintiff’s motion for summary judgment which essentially reiterated the facts derived from the exhibits attached to its motion. However, the attorney’s affirmation argued that the plaintiff’s proof was deficient because he was incapable of proving a violation of the law or that the only alleged violation was the cause of plaintiff’s injury because the facts demonstrated that the plaintiff was the sole proximate cause of the incident. Specifically, it was observed that the defendant was not injured 6 because of a lack of adequate safety devices but it was due to his bouncing causing the boards to break (R. 1262). In response to the foregoing, the plaintiff submitted a reply affidavit in further support of his motion and in opposition to the motions of the defendants. The reply affidavit also contained a reiteration of the plaintiff’s moving papers. In addition, the plaintiff submitted his own affidavit which, for the first time, he explicitly states he never jumped, hopped, bounced, skipped or danced on the flooring and that he was simply standing when the flooring broke (R. 1285).1 That affidavit was in English, but it was accompanied by an affidavit of a paralegal from plaintiff’s office indicating she translated the affidavit from English to Spanish for the plaintiff prior to its execution (R. 1287-1288). By reply papers submitted by the defendant College, it was brought to the court’s attention that the affidavit of the interpreter and the affidavit of the plaintiff were inadmissible per CPLR 2101(b). In ruling in favor of the plaintiff the learned IAS judge in essence, determined that the scaffold was not an adequate safety device because the plaintiff was provided with unsafe planks which were supposed to be tested by his supervisor before delivery to the site and before they were to be installed. The IAS court was silent as to anything to do with the absence of any other safety devices. 1 In his deposition the plaintiff denied “jumping.” 7 POINT I: THE PLAINTIFF WAS THE SOLE CAUSE OF THE INCIDENT The record clearly demonstrates that the plaintiff was a scaffold supervisor. As such, he had decision making responsibilities. His own testimony demonstrated that he was responsible for making sure that adequate quantities and material were available on site. If the proper material was not on site, he was responsible to see that they were delivered. His testimony reflects he was aware of that responsibility as he alleged he claimed he had run out of pine (OSHA) approved planks and none were on the site or at the yard - a virtual admission (not really disputed) that he knowingly used the spruce planks for flooring. There was testimony from his supervisor, as well as a fellow worker, that plaintiff knew the difference between the two types of planks. There was also testimony that he knew the proper way to test a plank for strength and potential defects (R. 852). He also was responsible for the actual construction of the principal safety device; to wit, the scaffold itself. In this capacity he had fourteen years of experience. He knew the difference in the quality of the planks to be used for flooring as well as the inherent danger of using bad planking. He further testified that “he almost always examined the planks before he installed them to insure that they were suitable” (R. 293). Although the plaintiff claims he had run out of pine planks there is evidence in the record that contradicted that testimony (R. 952). Even if they had run out of 8 pine (OSHA) planks, contrary to the plaintiff’s testimony there was evidence that additional pine planks were at the yard and were readily available for delivery to the site (R. 693). The proponent of the motion for summary judgment (whether plaintiff or defendant) assumes the burden of proving the absence of all facts that preclude judgment in that party's favor and must prove such facts as entitle said party to judgment, as a matter of law. Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 487 N.Y.S.2d 316 (1985); Stone v. Continental Insurance Co., 234 A.D.2d 282, 650 N.Y.S.2d 772 (2d Dep't 1996); Aimatop Restaurant Inc. v. Liberty Mutual Fire Ins. Co., 74 A.D.2d 516, 425 N.Y.S.2d 8 (2d Dep't 1980). Each case is dependent on the nature of the pleadings. In this case the defendants had pled several affirmative defenses including the defense that the plaintiff was the sole proximate cause of the incident. Once the party seeking summary judgment has met its prima facie burden of proof, the burden then shifts to the party opposing summary judgment to demonstrate that a genuine potential issue of fact may exist. See Kershaw v. Hospital for Special Surgery, 114 A.D.3d 75, 978 N.Y.S.2d 13 (1st Dep't 2013); Madeline D'Anthony Enterprises Inc. v. Sokolowsky, 101 A.D.3d 606, 957 N.Y.S.2d 88 (1st Dep't 2012). 9 On a motion for summary judgment a defendant meets his burden of proof by the production of evidence which demonstrates that one of the required elements of the plaintiffs’ proof is negated. Tora v. Group AG, 31 A.D.3d 341, 819 N.Y.S.2d 730 (1st Dep't 2006); Dickerson v. Health Management Corp. of American, 21 A.D.3d 326, 800 N.Y.S.2d 391 (1st Dep't 2005). In a claim pursuant to Labor Law §240(1) it is the plaintiff’s burden to plead and prove that either the owner of the premises or the pertinent contractor failed to provide adequate safety devices and that such failure was the proximate cause of the injuries in question. Blake v. Neighborhood Housing Services of New York City, 1 N.Y.3d 280, 771 N.Y.S.2d 484; Kerrigan v. TDX Constr. Corp., 108 A.D.3d 468, 970 N.Y.S.2d 13 lv dnd, 22 N.Y.3d 862, 83 N.Y.S.2d 493 (1st Dep't 2013). Thus a defendant seeking dismissal of a Labor Law §240(1) or a Labor Law §241(6) claim can prevail upon proof which demonstrates that the plaintiff’s own negligence was the sole proximate cause of the accident causing the injury in question. Cahill v. Triborough Bridge and Tunnel Authority, 4 N.Y.3d 35, 790 N.Y.S.2d 74; Blake v. Neighborhood Housing Services of New York City, supra; Daley v. 250 Park Avenue LLC, 126 A.D.3d 747, 5 N.Y.S.3d 267 (2d Dep't 2015). The difficulty in this instance is that each party submitted an application for summary judgment and each party assumed differing burdens of proof. With respect to the plaintiff’s motion (the first interposed) it is respectfully submitted 10 that with respect to plaintiff’s Labor Law §240(1) claim, as set forth in our initial brief in greater detail (see pages 32-34) the plaintiff failed to sustain this burden. The plaintiff’s affidavit merely reiterates that his employer did not provide him with sufficient safety devices and does not even attempt to negate the defenses that he was solely culpable even in a conclusory fashion. This proof emphasizes not the alleged inadequacy of the scaffold, but the absence of additional safety devices such as harness etc., etc. With respect to the plaintiff’s Labor Law §241(6) cause of action, it is respectfully called to the court’s attention that the notice of motion makes no mention of that claim nor is there any proof submitted with respect thereto (R. 1122-1124). As a consequence neither defendant nor the court focused on that claim. Turning to the motion for summary judgment by the defendant College, it is respectfully submitted that the proof submitted was sufficient to meet the movants’ summary judgment burden. The proof submitted demonstrated that plaintiff was more than a mere laborer, and was reposed with supervisory responsibilities per his own testimony. As indicated above the defendants were able to demonstrate that once the plaintiff’s supervisor left after the first day, it was the plaintiff’s responsibility to ensure that all the supplies and equipment were at the job site and to see the delivery of anything that was needed but not present was to be provided. It was plaintiff who decided to use boards of lesser strength and lesser suitability. It 11 was plaintiff who indicated he almost always inspected the boards, and placed them (R. 293), and it was plaintiff who opted to work in a spot where he had not yet placed the final safety railings. Moreover, it was plaintiff, the highest ranking employee of the scaffolding company on site who did not bring any additional safety equipment and even if he had brought such devices; by his own admission he would not have used them, as per his own testimony, they were not used on second floors (by inference they were only needed in other circumstances perhaps at a higher level or work outside the confines of the scaffold) (R. 348). In a scenario such as here, a court has sufficient evidence to fairly conclude that the plaintiff was the decision maker and he alone set the parameters of the task at hand as to the manner of construction, the material to be used, gave instructions to other workers, and set in motion the means to perform the task (including not intending to bring or utilize any additional safety device) this court has ruled it is appropriate to deem such individual solely responsible for all that thereafter transpires. See Kerrigan v.TDX Construction Corp., supra; see also Nalepa v. South Hills Business Campus LLV, 123 A.D.3d 1190, 998 N.Y.S.2d 245, lv. to appl. dnd., 25 N.Y. 3d 909, 10 N.Y.S.3d 529 (3d Dep't 2014); Paz v. City of New York, 85 A.D.3d 519, 925 N.Y.S.2d 453 (1st Dep't 2011). It should be noted that the conflicting versions of whether the plaintiff took the additional step of bouncing, testing, or putting stress on the board in question does not raise an issue 12 of fact to defeat the defendant’s motion because the other actions of the plaintiff (none of which are denied) is sufficient for the defendant’s burden. Bonilla v. Petrillo Development Corp., 237 A.D.2d 115, 655 N.Y.S.2d 340 (1st Dep't 1997); Saaverda v. East Fordham Rd Development Corp., 233 A.D.2d 125, 649 N.Y.S.2d 416 (1st Dep't 1997). With respect to that branch of the motion which sought dismissal of the plaintiff’s Labor Law §241(6) cause of action, the same proof that the plaintiff was the sole proximate cause of the incident would warrant dismissal of this cause of action as well. As indicated in the initial brief, in response to this motion the plaintiff merely reiterates that the employer failed to provide him with sufficient safety devices and does not adequately address the suitability of the scaffold as a safety device and whether any deficiencies in it were attributable to the actions of the plaintiff. Thus, none of the alleged Code violations were a proximate cause of the incident and it was argued by the defendants that the plaintiff’s acts and omissions and decisions were the sole cause of the incident in question by impairing the reliability of the scaffold. Bonilla v. Petrillo Development Corp., supra; Saavarda v. East Fordham Rd Development Corp., supra. It is respectfully submitted that the plaintiff failed to itemize the specific section of the Code that were violated, and such circumstance can be deemed an abandonment of that claim. See e.g. Perez v. Folio House Inc., 123 A.D.519, 123 A.D.3d 519, 999 13 N.Y.S.2d 29 (1st Dep't 2014). The Labor Law §241(6) cause of action was not adequately defended below as indicated by a total failure by plaintiff to make any reference to how any specifications of those Code violations were raised before the IAS court, and therefore, this court should deem such cause of action abandoned. Cabrera v. Noble Electric Contracting Co Inc., 117 A.D.3d 484, 985 N.Y.S.2d 497 (1st Dep't 2014); Rodriguez v. Dormitory Authority of the State of New York, 104 A.D.3d 529, 962 N.Y.S.2d 102 (1st Dep't 2013). In the Respondents’ brief, the Plaintiff asserts that this argument is not preserved for Appellate review. As will be discussed in Point III infra, it will be shown that the argument is either inaccurate or falls within one of the recognized exceptions to the preservation rule. POINT II: ALTERNATIVE ISSUES OF FACT EXIST AS TO HOW THE INCIDENT OCCURRED AND WHETHER THE PLAINTIFF WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT In the event that this court concludes that the defendants’ motion failed to meet their burden, then the same must logically follow for the motion brought by the Plaintiff. As indicated above, with respect to plaintiff’s Labor Law §241(6) cause of action, there was no notice of that relief being sought nor proof submitted in the motion in chief on that claim. Consequently, the plaintiff failed to meet his burden of proof on that branch of the motion. 14 Similarly with respect to the Labor Law §240(1) claim, the plaintiff’s proof was insufficient to sustain his burden as to that issue. In moving for summary judgment the movant must demonstrate that no issues of fact exist and consequently, the plaintiff must not only prove his prima facie case but he must negate the defenses interposed. CPLR 3212(a) Calcano v. Rodriguez, 91 A.D.3d 468, 936 N.Y.S.2d 185; Crompton Richmond Co Inc. v. Peterson, 40 A.D.2d 646, 336 N.Y.S.2d 759 (1st Dep't 1973); Hladczuk v. Epstein, 98 A.D.2d 990, 470 N.Y.S.2d 211 (3d Dep't 1983). Thus, in the instant case it was not sufficient for the plaintiff to merely state that he was not supplied adequate safety equipment. It is respectfully submitted that the plaintiff’s burden was also to negate that he was the sole cause of the accident. He failed to do so. Additionally, the plaintiff’s deposition, and the opposition submitted to his motion, demonstrated that issues of fact exist which should be determined by the trier of fact. The plaintiff admits to weighing 200 pounds (R. 207). He was aware that a regular non-defective plank could only support about 140-150 pounds of weight (R. 411). He admitted that he had been told many time that he could only walk on OSHA planks (R. 302-303), but then denied it elsewhere in his deposition (R. 300, 315). He knew he would be working without his supervisor on the second floor (R. 221). In the past he conceded that he had been instructed to wear safety equipment (R. 310) (but see infra). He was responsible for bringing all necessary 15 supplies and equipment to the site (R. 231). He never complained about the condition of the planks (R. 221). He elected to not stop at the shop and bring the safety equipment that was there to the site. Moreover, even if the safety equipment had been on site, his testimony clearly demonstrated that he would not have used it. This is not speculation or surmise because he unequivocally testified that in his views they were hardly used on two level jobs (R. 348), and he contradicted his prior testimony by saying he did not know if he had ever been instructed when to use safety equipment (R. 348). He “almost always” accepted the responsibility of insuring that the boards he used (which in this instance was made of spruce and thus less sturdy)) were free of cracks or knots (R. 293), and he was the only one who placed the defective board at its location which was on the edge in an area where safety bars had not yet been installed (R. 213-214, 234-235). Thus, plaintiff knowingly placed a weaker board that by virtue of his years of experience, (not to mention the testimony of the eyewitness) was not suitable and placed it on the most vulnerable area (where there were no safety rails or other supporting planks). The foregoing caused the plaintiff to fall off the edge of the scaffold to the ground below (R. 702-703, 706-708, 1094). Based on the foregoing, it is clear that there are issues of fact as to whether the plaintiff was the sole proximate cause of the incident. However, there are additional issues that were raised as well. Although the plaintiff denies jumping on 16 the board that broke, he admitted that he walked over it several times before the incident without any problem (R. 398, 400). As the parties opposing the plaintiff’s motion for summary judgment, the defendants are entitled to any possible favorable inference which gives rise to a potential issue of fact. Andron v. Libby, 120A.D.3d 1056, 993 N.Y.S.2d 272 (1st Dep't 2014); Cetindogan v. Schuyler, 95 A.D.3d 577, 944 N.Y.S. 2d 88 (1st Dep't 2012). In this instance, the plaintiff admits he walked on the very plank in question without a problem, he denies jumping on the board, but that alone does not exclude putting additional pressure on the board. In light of the conflicting testimony of his co-worker that he was bouncing on the board as a means of testing it when the board broke, it is respectfully submitted that a jury could consider such circumstances (a 200 pound man walking on a plank without incident versus a different version having the same man bounce up and down causing it to break) both as to weighing the credibility of the plaintiff as well as determining that he may have been the cause of the incident by knowingly using a substandard plank and improperly “testing” it in an improper manner and at an improper location. POINT III: THERE WAS NO VIOLATION OF THE PRESERVATION RULE UNDER THE UNIQUE CIRCUMSTANCES OF THIS CASE The plaintiff has in several instances alleged that the defendant College raised issues not preserved for appeal. As will be argued below, that assertion is 17 either inaccurate or is permissible under recognized exceptions to the preservation rule. The plaintiff would have this court believe that the arguments were invented de novo. As a closer examination of each instance alleged will show that is simply not so. While in most instances, an issue not addressed to a motion court is not preserved for argument on appeal, the rule is not absolute. “(T)he Appellate Division may address unpreserved issues where it appears necessary to do so in order to meet the interests of justice or to prevent the invasion or denial of essential rights.” 4 N.Y. Jur.2d Appellate Review § 613. Taking the charges; to wit, that the defendants failed to raise the issue of adequate safety equipment at Respondent’s brief (p. 5) and the related charge about its Labor Law §241(6) and addressing them first these charges are false for two reasons. First with respect to the plaintiff’s motion (first interposed) the Plaintiff did not properly notice any relief seeking summary judgment on the §241(6) cause of action and merely set forth the alleged failure to provide safety equipment (R. 1122-1123) and neither the attorney’s affirmation nor the plaintiff’s own affirmation makes any reference to the specific Code violations. The plaintiff’s affidavit merely says he was not provided with additional safety devices, he ignored that the scaffold itself is a safety device. Thus, there was never a necessity to raise such issue in response to plaintiff’s motion. That view is supported by the 18 approach the learned IAS judge took as he avoided any reference to the Code violations and simply indicated consideration of any alleged Code violations had been rendered moot because he considered the scaffold a safety device not adequate for its intended purpose (R. 16-20). It is respectfully submitted this is the very type of fact pattern that falls within the exception noted above. See e.g. Greelish v New York Central R.R. Co., 29 A.D.2d 159, 286 N.Y.S.2d 151(3d Dep't 1968), affd., 23 N.Y.2d 903 (1969). Where, as here, all sides have moved for summary judgment, and the issue is apparent on the record and could not or should not have been avoided, this court has previously ruled that notwithstanding the general rule of preservation, its interest of justice jurisdiction can properly be invoked to rule on the issue. Gary v. Flair Beverage Corp., 60 A.D.3d 413, 875 N.Y.S.2d 4 (1st Dep't 2009); see also Pivar v. The Graduate School of Figurative Art of the New York Academy of Art, 290 A.D.2d 212, 735 N.Y.S.2d 522 (1st Dep't 2002). The deficiency in the plaintiff’s motion with respect to Labor Law §241(6) (failure to properly or notice the relief sought) is plainly in the record and could not have been avoided. The only real issue in dispute is which party was responsible for the adequacy of the scaffold. Second, the plaintiff’s argument also ignored the fact that the defendant College approached the whole idea of the safety equipment as being somewhat 19 irrelevant as it was strongly argued that the failure to properly use safety equipment was not a cause of the accident. Other than saying there was no safety equipment on site, there is never an attempt by the plaintiff to demonstrate how such equipment would have altered the outcome. Even if that were not enough it also ignore the statement and argument that the plaintiff misused the safety device (referring, as the IAS court, did solely to the scaffold) (R. 44). It bears repeating that the defendants and the court viewed the inadequacy of safety equipment to be focused primarily on the scaffold, and had nothing to do with the absence of alleged ancillary safety devices. In short, the Defendants’ argument is simply that the scaffold itself was the safety device and it was adequate until misused and abused by the plaintiff. The plaintiff also argues that the defendant raised, for the first time, that the plaintiff was aware that he was using a defective plank. Not so; the initial motion of the defendant College makes reference to the testimony of the eyewitness who quoted the plaintiff as stating that the board he was about to stand on “was no good” (R. 28). In fact the whole argument about pine vs. spruce (OSHA vs. Non- OSHA) swirled around the fact that the plaintiff knowingly used the wrong plank. (R. 25-31). It was also argued that the plaintiff, as scaffold supervisor, was solely responsible for directing the work – which one would reasonably conclude required insuring the presence of proper safety equipment (R. 46). 20 Lastly the plaintiff tries to make much of the objection posed to his “in office” interpreter. That argument ignores the reality that in opposition to our motion for summary judgment, the plaintiff’s counsel procured the affidavit of plaintiff via his paralegal which we alleged to be improper in our reply papers (R. 1402-1403) at the first opportunity available to object to it. This circumstance arose because the plaintiff attempted to buttress his motion for summary judgment by submitting proof not set forth in the initial motions. What he really is asserting is not that the issue is not preserved as never having been raised below, but rather that the failure to object to the use of the same translator, utilized for a prior affidavit of the plaintiff (which we deemed innocuous) in support of the initial motions for summary judgment, constituted a waiver of the right to object to all futures affidavits translated in this manner. I know of no case law that supports that proposition in the context of a motion for summary judgment2 - but a waiver argument is radically different then indicating the argument was omitted altogether. With respect to this last issue, the use of an employee to do the translation places great doubt of the accuracy on whether the English was accurately translated to Spanish and vice versa. The proper method envisioned by CPLR 2 Such a rule might be understandable with respect to a use of a translator at trial where a judge is instantly available to rule on the competency of a translator who is properly sworn by the clerk and where the testimony is unknown and ongoing, in contrast to a motion where the related uses of the translator is not apparent. 21 2101(b) is to provide the witness with an affidavit in Spanish and to have the same translated into English, indicating that the English is a true and accurate translation of the affidavits prepared in Spanish. In any event, if the objection to the affidavit was nullified, there are two things to consider. First, even with the inclusion of the affidavit, there is sufficient evidence in the record that would indicate that the plaintiff was the sole cause of the accident in question in improperly constructing the scaffold. Second, even with the inclusion of the affidavit, the fact remains that the testimony of the eyewitness and that of the plaintiff is hopelessly at odds. Thus, if this Court deems the determination of whether the plaintiff was jumping, bouncing or hopping on the weak planks has any relevancy to the issues at hand, it is the role of the jury to weigh the credibility of these two witnesses and that cannot be determined as a matter of law. CONCLUSION It is respectfully submitted that the order under appeal should in all respects be reversed, and the complaint against the defendant College should be dismissed. Alternatively, that portion of the order under appeal denying the defendant College's motion for summary judgment dismissing Plaintiffs Labor Law §241(6) cause of action should be reversed, and the action should be dismissed, that all other requests for summary judgment should be denied, with the determination of the issues raised to abide the trial of the action. Dated: Islandia, New York November 11, 2015 Respectfully submitted, 22 23 Printing Specifications Statement APPELLATE DIVISION – FIRST JUDICIAL DEPARTMENT Pursuant To Rule 600.10(d)(1)(v) Processing System: Microsoft Word Typeface: Times Roman Point Size: 14pt Margins: 1 Inch Line Spacing: Double Space Word Count: 5,404* *Word Count. The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc.
