Rafael Batista, Appellant,v.Manhattanville College, et al., Respondents, The Female Academy of the Sacred Heart, Defendant.BriefN.Y.December 14, 2016LEWIS ]OHS Lewis Johs Avallone Aviles, LLP September 28, 20 16 VIA FEDEX 18063 0731 76251 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 Rc: Batista v. Manhattanvillc College APL-2016-00156 Dear Mr. Asiello: I am writing, as counsel to the ftrm of Lewis Johs Avallone Aviles, LLP, attorneys for the Defendant/Respondent Manhattanville College. This letter is in response to the letter/memorandum of the Plaintiff/Appe llant Batista. Although the facts are somewhat unique, the issue of law is relatively simple and that is in moving fo r summary judgment the plaintif f fai led to meet his summary judgment burden, or alternatively, the opposing parties submitted proof which would raised bona fide issues of fact. As with all motions for summary judgment, the issues to be determined are based on the pleading in question and the proof submitted to the Court. To the extent relati ve to these proceedings, the plaintiff's claims are predicated on alleged violations of Labor Law §§200, 240( I), 24 1 (6) and common law negligence (R. 65-79). Both the then defendant College and the general contractor, TJR, interposed answers which, in pertinent part, alleged that the plaintifrs injuries were due to his own culpable conduct (R. 81-92, 11 33- 11 38). The motion of the plaintiff seeking summary judgment on his Labor Law claims and the motion by the defendant College seeking dismissal of those claims crossed in the mail. The lAS court ruled that the plaintiff was entitled to summary judgment on his Labor Law § 240( I) claim and denied the rest of all other requested relief as moot. The College and TJR appealed the order of the lAS court, and no cross appeal was taken by plaintiff as to the portion of the order that denied the other branches of the relief sought by the plaintiff. The Appellate Division First Department found six separate issues of fact. The first four itemized issues are as set forth in the plaintiff' s letter/memorandum and dealt with whether the OSHA approved pine planks were available for plaintiff' s use and whether he knew, or was instructed, to use only such planks in the construction of the scaffold ' s floor. The Appellate Division found two additional issues of fact ; to wit, whether the plaintiff was responsible for checking the planks for the presence of knots, Counsellors at Law Mark R. Al~dort Robert J. Avallone Deborah A. 1\vilcs Amy E. Bedell Koren M. Berberich Claudi.1 L. Boyd J ulianne Bonomo Anne M . Brack~n Dylan C. Braverman Brian Brown Jorja C. Carr Joseph l\1. Charchalis Robert J . Cimino Michael T. Colavecchio Robert M. !)'Angelillo Thomas J . Dargan Tara M . Darling Rebecca K. Dtvlin Amondo C. Dicken< Robert \VI. Doyle. Jr. Rosa l\1. Feeney David \VI. f ink Daniel K. fidlltlman Carl A. Formicola J ennifer M. Frankola L3wrence J . freeze Stacey E. Gorny Brian J . Greenwood J ohn J. Halltron Il l Christine B. Hickey Tara M. Higgins Caro line K. I lock John E. Horan J effrey D. Hummel Frederick C. Johs Annemarie S. Jones J ason T. Katz Jessica Klotz Bryan F. Lewis \VIi II iom J . Lewis Eileen II. Libutti Robert A. Lifson Judith N. Littman Stephen J . Maloney, J r. Don ie! \VI. McCally Kevin G. Mescal! David L. Metzger Michoel Mi lchan G reg M. Mondelli James F. Murphy Megan M. Murphy Teresa l\I.C. Myers J ordan S. Palntiello Amy S. Pincus J effrey l\1. Pincus Ross A. Ruggiero T homas A. Rhatigan F. Sean Rooney Martin K. Rowe J ohn B. Savi lle Ellen N . Savino Theresa Scotto·L3vi no Matthew D . Shwom Adam H . Silverstone Amanda E. Spinner N icholas A. Spratt Paul R. Varriale Robert J. Yenchman One CA Plaza, Sui te 225, Island ia, NY 11749 63 1.755.0101 Fax 63 1.755 .011 7 www.lcwis johs.com New York C i[ y I Long I s l a nd LEWIS IJ JOHS Lewis Johs Avallone Aviles, LLP cracks, and other defects, and whether he used a plank wi th knots in it which he knew to be inherently unsafe. The sole claim subject to this proceeding is plaintiff's claim fo r entitlement to summary relief predicated on his claim of an alleged violation of Labor Law §240( I) which provides in pertinent part as follows: "1. All contractors and owners and their agents, except owners of one and two- fa mily dwellings who contract fo r 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, sli ngs, 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." The present case is unique because the safety device in question was the very scaffold which the plaintiff was assembling. Thus, the only possible actionable violations of the statute that could arise is dependent on whether the plainti ff was, or was not. provided wi th proper materi als for the safe construction of the scaffold itse lf or was, or was not. provided with suitable "other devices," the absence of which alleged ly fai led to give proper protection to the plaintiff. Based on the pleadings and the unique facts of the case, it is the College 's contention that in mak ing his motion seeking summary relief. the plainti ff not only assumed the burden of proving his cause or action that there was a statutory violation which caused his injury, but he also assumed the burden of proving that his action were not responsible for the incident which caused his injury (CPLR 32 12 (b) which requires the plaintiff to submit proof that '·there is no defense to the cause of action ... or (that) the defense lacks merit"). See also e.g. Thoma v. Ronai, 82 NY2d 736, 602 NYS2d 323 ( 1993): Rodriguez v. City of New York, 2016 WL4543507 _AD 3d_ . _ NYS3d_ ( I 51 Dept. September 1, 2016); Daley v. 250 Park Ave. LLC, 126 ADJd 747, 5 YS3d 267 (211d Dept. 20 15). In support of his mot ion fo r summary judgment, the plaintiff submitted his own deposition which contained the following pertinent testimony: a) At the time of the accident the plaintiff weighed about 200 pounds (R. 207). b) He testified that he knew that each plank could only support about 140- 150 pounds (a weight below his own weight) (R.4 1 I). c) He admitted that he had been told many times that he could only walk on OSHA planks (R. 302-303, 313), but then denied it elsewhere in his deposition (R. 315). d) In the past he conceded that he had been instructed to wear safety equipment (R. 3 10, 318) (but see item "g" inji-a). 2 Counsellors at Law LEWIS ~ JOHS Lewis Johs Avallone Aviles, LLP e) The plaintiff admitted he was responsible for installing the entire job (erecting the scaffold) (R. 207, 216-217). f) He was responsible fo r bringing all necessary supplies and equipment to the site (R. 231 ). g) He elected to not stop at the shop to bring the safety equipment that he was required to take 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 view such devices were hardly used on a two level job (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 (See item "d" above R. 348). h) 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), i) He knew that planks with cracks or knots whether made of pine (stronger OSHA approved planks) or spruce (regular planks) were not safe to bear a man's weight (R.292-294) j) He was the only one who placed the defective board at its location which was on the edge of the second floor in an area where safety bars had not yet been installed by him (R. 213-214, 234-235). It is respectfull y submitted that where, as here, a deposition is offered in support of a summary judgment motion and contains contradictory testimony as to material facts, such circumstance puts the credibility of the party being deposed into doubt and that alone raises an issue of fact; thus, making the submission insuffic ient to meet one's summary judgment burden. Cassizii v. Fordham University , I 0 l AD 3d 645, 957 NYS2d 856 (I 51 Dept 20 12); Valerio v. City of Ne-vv York, 23 AD 3d 308, 804 NYS2d 3 12 (l 51 Dept. 2005); Lacagnino v. Gonzalez, 306 AD2d 250, 760 NYS2d 533 (211d Dept. 2003). Therefore, the deposition testimony of the plaintiff alone validates the conclusion of the Appellate Division as to the last two issues of fact that they identifi ed - whether the plaintiff was responsible for checking for knots and other defects, and knowingly affixed flooring he knew was defective and inadequate. Even if this Honorable Court were to excuse the inconsistencies in the plaintiff s deposition testimony, the proof submitted by the opposing parties clearly raises bona fide issues of fact. This proof submitted in opposition to the plaintiffs motion included the following additional allegations: a) The plaintiff was solely responsible for assembling the second floor of the scaffold (R . 1247). b) The plaintiff was respons ible for installing safety rail s in the area he was working and he was the so le person responsible for such items (R. 1248). c) The plaintiff alone opted not to use the stronger OSHA approved planks (R. 692-693, 1248- 1249). Conflicting testimony was offered as to whether such planks were on site, or readily available at the yard, or were just not available. 3 Counsellors at Law LEWIS JOHS Lewis Johs Avallone Aviles, LLP d) The plank in question had a knot in it (which is not disputed) and one eyewitness testified that he overheard the plaintiff state '·the planks suck ... they were no good" and then in what appeared to be an attempt to test the strength of a plank which he previously testified could only support 150 pounds, he proceeded to apply pressure to the plank by bouncing or hopping upon it while it was laid out on the second floor (R. 701-703, 708). e) After the plank broke the plainti ff fell over the side where (per prior testi mony in item "b") the plaintiff had not yet installed safety rails (R. 709). As the opponents of the plainti ff's motion for summary judgment, the defendants are entitled to every favorable inference. Figueroa v. Gallagher III, 20 AD3d 385, 798 NYS2d 143 (211d Dept. 2005); Cruz v. Apex Investigation and Security Co ., 285 AD2d 427, 728 NYS2d 154 (151 Dept. 200 1). The truth ofwhat transpired is highly dependent on the credibility of the various deponents. However, credibi lity (whether of the plaintiff, superiors, the co-worker eyewitness or others) is solely for the jury to determine. Friends of Thayer Lake LLC v. Brown, 27 NY3d I 039, 33 NYS3d 853 (20 16); Vega v. Res/ani Construction Corp., 18 NY3d 499, 942 NYS2d 13 (20 12). On this simple summary judgment analysis alone, it is respectfully submitted that the determination of the Appellate Division that issues of fact existed warranting denial of plaintiff's summary judgment motion was correct. Turning from the procedural basis for affirmance to the substantive issues raised by my adversary, it is respectfully submitted nothing contained in plaintiff's letter memo would warrant reversal of the Appellate Division determination that there are bona fide issues of fact. While intermediate Appe llate Court decisions are difficul t to reconcile, our belief on the correctness of the result at issue stems from the more recent decisions set forth by the Court of Appeals which are dispositive. We agree with the plaintiff's general statement of the Labor Law set forth in the letter/memorandum submitted, particularly with the concession that there is the right to plead the potential application of the defense that the plaintiff was a recalcitrant worker or was otherwise solely responsible for the accident that caused his injuries is a legitimate potentiality (See p 2 of the plainti ff's letter/memorandum). However, the record before this Court shows that the viab ility or the lack of viabi li ty of said defense could not and should not be summari ly determined. Both Blake v. Neighborhood Housing Service of New York City , I NY3d 280, 77 1 NYS2d 484 (2003), and the subsequent case of Cahill v. Triborough Bridge and Tunnel Authority, 4 NY3d 35, 790 NYS2d 74 (2004) clearly stated that the issue is not whether the worker was merely recalcitrant but whether the injury was not caused by any alleged violation of the Labor Law but was caused solely through the conduct of the plainti ff; the very scenario alleged here. As in Cahill the defendants claimed that it was the plaintiff, an extremely experienced scaffold assembly person, who was responsible fo r bringing all the safety devices and all other necessary material to the work site, as we ll as properly assembling the scaffold with proper planks and properly instal ling all the safety rai ls, and was solely responsible for using a defective board which caused him to fall over the side where he had not yet erected the safety rai lings. It is very hard to 4 Counsellors at Law LEWIS ]OHS Lewis J ohs Avallone Aviles, LLP distinguish Mr. Cahill 's decision to use an alternative to the availab le safety line and the actions of this plainti ff in abandoning all common sense and his many years of experience in assembling the scaffold in the careless manner he employed. The defendants ' allegations go far beyond alleging that the plaintiff was injured because he failed to follow general instruction. See Gordon v. Eastern Railway Supply Inc. , 82 NY2d 555, 606 NYS2d 127 ( 1993); Stolt v. General Food C01p., 81 NY2d 918, 597 NYS2d 650; Hagins v. State, 81 NY2d 921 597 NYS2d 651 ( 1993). Nor is th is a case of a worker merely failing to follow a standing order to use safety devices when he was not made aware of where the safety devices were. Gallagher v. The New York Post, 14 NY 3d 83, 896 NYS2d 732 (20 I 0). Here unlike Gallagher supra, the plaintiff was the one who was charged with going to the yard and bringing the safety devices. Not only did he know where they were, but he stated that he had no intention of using such devices because he did not fee l they were needed or were necessary fo r a second floor scaffold job (R. 348). Thus, it appears that the plaintiff cannot refer to any post- Blake and Cahill cases which have a factual context similar to the instant matter. Instead, the plaintiff refers this Court to numerous Appellate Division cases, which needless to say are not binding upon this Court. Of the numerous cases cited, there are several from the First Department that are worth noting. The first such case plaintiff relies on is Miraglia v. H&L Holding Corp., 36 AD 3d 456, 828 NYS2d 329 ( I 51 Dept 2007). The lawyers there were able to demonstrate that the record showed that the employer fa iled to provide adequate safety devices and measures. The testimony that the workers could use planks to traverse a trench, if they were doubled up did not mean that the planks provided sufficient safety. As the court noted, those planks were unsafe for other reasons (e.g. the planks were not secured). Moreover, unlike the facts here, there was no proof in the record in Miraglia supra that the workers were responsible for erecting a makeshift scaffold; they merely chose to use the planks rather than a ladder to traverse the trench. In the instant case the plainti ff was the one who was responsible for the proper construction of the scaffold not merely for his safety, but more importantly, for the safety of the workers of the contractor who would be called upon to use the scaffold for repair of the wall to be worked on. Other cases rel ied upon by the plaintiff are distinguishable for identical reasons. See Medina v. MSDW 140 Broadway Property LLC, 13 AD3d 67,786 NYS2d 152 ( l s1 Dept 2004), and otherwise are cases which preceded Blake and Cahill like e.g Keena v. Grucci Shops, 300 AD2d 82, 75 1 NYS2d 188 (I 51 Dept 2002) and Ciardiello v. Benenson Capital C01p. , 273 AD2d 147,7 10 NYS 2d 894 (l s1 Dept 2000). The plaintiff also rel ies upon several 2nd Department cases which are similarly fac tually distinct from the matter now before the Court. For example in Salazar v. United Rentals, 41 AD3d 684, 838 NYS2d 615 (2nd Dept 2007), although not set forth with clarity in the decision, the record shows that neither the property owner nor the contactor knew how to operate the boom (the safety device in question) and the lessor of the boom fai led to make the people who would operate it aware of the location of the other safety devices (harnesses, etc). In contrast to Salazar, the plainti ff, here, knew where the safety devices were, he was responsible for transporting them to the job site and he 5 Counsellors ar Law LEWIS ~ JOHS Lewis J ohs Avallone Aviles, LLP unequivocall y stated he had no intention of ever us ing such devices because he did not use them on second floor jobs. S imilarly, in Tama v. Gargiulo Brothers, 6 1 AD3d 958, 878 NYS2d 128 (211d Dept. 2009), and in Norwood v. WhiUng- Turner Construction, 40 AD 3d 7 18, 836 NYS2d 222 (211d Dept. 2007), the injured plaintiffs were provided with inadequate scaffo lds (and as the Court expressl y observed in Norwood the scaffo lds were not assembled by the plaintiff). In the instant case an issue of fact exists as to whether the inadequacy of the scaffold, if any, was due so lely to the plaint iff s action in assembling it and whether the scaffold absent hi s action was safe for hi s use as well as the use of the other workers for whom it was being erected . As this Court noted, Labor Law §240 was not intended to make the owner of property an insurer fo r all accidents occurring on the owner's property but was intended primarily to promote the protection or workers . Sana/ass V. Consolidated Investing Company Inc. , 10 NY3d 333, 858 NYS2d 67 (2008). However, due to the unique circumstances presented here, a reversal of the Appellate Division decision would actuall y fru strate that very purpose of the statute by summaril y excusing what is, arguably, gross negligence and other unacceptable conduct by the plaintiff which (but for his accident) would have put the safety of the other workers who were to use the scaffold at ri sk. Clearly, an issue of fact exists as to whether he was the sole cause of his accident. Under these circumstances, it is respectfully requested that the order under rev iew be affirmed. Respectfully Submitted , /J~ ~.j~ Robert A. Li fso n ral i fso n@ lewis johs.com Islandia Office RAL/11 cc: VIA F E DEX [8062 9764 1830] OVERNIGHT DELIVERY Brian J. Isaac, Esq. Pollack Pollack Isaac & DeCicco, LLP 225 Broadway - Suite 30 New York, New York I 0007 Email : bji@ ppid.com Attorneys/or Raphael Batista VIA FEDEX [8062 9764 1840) OVERNIGHT DELIVERY Thomas J. Burke, Esq. Burke Conway Loccisano & Dillon I 0 Bank Street - Suite 790 White Plai ns, New York I 0606 Email: Thomas.Burke@ LibertyM utua l.com Allorneysfor TJR, INC. 6 Counsellors at Law AFFIDAVIT OF SERVICE STATE OF NEW YORK) ) ss.: COUNTY OF SUFFOLK) Linda Lansky, being duly sworn, deposes and says: That deponent is not a party to this action, is over 18 years of age and resides in Nassau County, New York. That on the 29th day of September, 20 16, deponent served the within LETTER MEMORANDUM PURSUANT TO 22 NYCRR §500.11 by electronic filing upon the attorneys\parties in this action, as appearing on the Court of Appeals, State ofNew York Electronic Filing Website at the email addresses designated by said parties and by FedEx Overnight Mai l as fo llows: FedEx Tracking #8062 9764 1830 Brian J. Isaac, Esq. Pollack Pollack Isaac & DeCicco, LLP 225 Broadway- Suite 30 New York, New York 10007 Email: bji@ppid.com Attorneys/or Raphael Batista FedEx Tracking #8062 9764 1840 Thomas J. Burke, Esq. Burke Conway Loccisano & Dillon 10 Bank Street- Suite 790 Whi te Plains, New York 10606 Emai I: Thomas.Burke@LibertyMutual.com Attorneys/or TJR, INC ERIKA NA DEAU Notary Public, Stntc of New York 'o. OIAR60 16.f3.f Qunlific