George Newman, et al., Appellants,v.RCPI Landmark Properties, LLC, et al., Respondents.BriefN.Y.October 18, 2016APL-2015-00247 New York County Clerk’s Index No. 155632/12 Court of Appeals STATE OF NEW YORK GEORGE NEWMAN and JOANNE NEWMAN, Plaintiffs-Appellants, against RCPI LANDMARK PROPERTIES, LLC, TISHMAN SPEYER PROPERTIES, INC. and TISHMAN SPEYER PROPERTIES, L.P., Defendants-Respondents. >> >> BRIEF FOR PLAINTIFFS-APPELLANTS NAPOLI SHKOLNIK PLLC Attorneys for Plaintiffs-Appellants 1301 Avenue of the Americas, 10th Floor New York, New York 10019 212-397-1000 On the Brief: Joseph P. Napoli Annie E. Causey Date Completed: November 13, 2015 To Be Argued By: Annie E. Causey Time Requested: 15 Minutes i TABLE OF CONTENTS QUESTIONS PRESENTED ...................................................................................... 1 STATEMENT OF THE NATURE OF THE CASE ................................................. 1 STANDARD OF REVIEW ....................................................................................... 3 ARGUMENT ............................................................................................................. 4 I. The Appellate Division Misconstrued and Misapplied This Court’s Decision in Montgomery v. Fed. Express Corp and its Progeny Cases. .......... 4 II. Torres v. 1420 Realty, LLC Does Not Support the Appellate Division’s Implied Conclusion that Mr. Newman’s Use of the Milk Crates to Descend the Loading Dock Platform was Unreasonable and/or Unforeseeable as a Matter of Law......................................................... 9 CONCLUSION ........................................................................................................ 11 ii TABLE OF AUTHORITIES Cases Cherry v. Time Warner, Inc., 66 AD3d 233 (1st Dept. 2009)............................................................................6, 7 Derdiarian v. Felix Contr. Corp., 51 NY2d 308 (1980) .............................................................................................. 10 Kush by Marszalek v. City of Buffalo, 59 NY2d 26 (1983) ................................................................................................ 10 Miro v. Plaza Constr. Corp., 38 AD3d 454 (1st Dept. 2007) ..........................................................................5, 6 Montgomery v. Federal Express Corp., 4 NY3d 805 (2005) .................................................................................... 3, 4, 5, 8 Robinson v. E. Med. Ctr., LP, 6 NY3d 550 (2006) ................................................................................................. 5 Taylor v. Interstate Motor Freight Sys., 309 NY 633 (1956) ................................................................................................. 3 Torres v. 1420 Realty, LLC, 111 AD3d 434 (1st Dept. 2013) ........................................................................3, 9 Statutes and Rules 22 NYCRR § 500.11(b) ............................................................................................. 1 CPLR 5501(b) ............................................................................................................ 3 1 QUESTIONS PRESENTED 1. Is a safety device “readily available” to a worker where the worker’s employer never advised its employee that such a device was available, that such a device existed or the location of such a device, and where the worker had not in the past requested such a device and did not know of a process through which to request a device? Answer: No. A safety device is “readily available” to a worker only in situations where workers know the exact location of the safety device, and where there is a practice of obtaining such devices. 2. Pursuant to 22 NYCRR § 500.11(b), is there “record support” for the Appellate Division’s holding that the conduct giving rise to Mr. Newman’s injuries was unforeseeable and/or unreasonable as a matter of law? Answer: No. For the reasons herein, and for those in the papers below, there is no “record support” for the Appellate Division’s finding that Mr. Newman’s actions giving rise to his injuries were unforeseeable and/or unreasonable as a matter of law. STATEMENT OF THE NATURE OF THE CASE The gravamen of this appeal is whether the Appellate Division erred in finding that Mr. Newman was – as a matter of law – the sole proximate cause of his injuries. The record-facts pertinent to the Appellate Division’s determination 2 and to this Court’s review are as follows.1 Until the date of his injury, Mr. Newman had descended the platforms of all loading docks at his worksite except for the 620 Dock. Except for the 620 Dock, all loading docks at the worksite had permanent stairs and ramps immediately visible that led from the platform of the dock to the ground. (R. 284-285). The 620 Dock only had a ladder mounted to one of its sidewalls, which was blocked from plain view by a delivery truck at the time that Mr. Newman went to descend from the platform to the ground, with no indicia of its location (e.g., a sign directing one’s attention to its location on the sidewall). (R. 285; R. 297-298). The only visible means of descending from the 620 Dock platform to the ground several feet below were milk crates pre-stacked against the platform wall. (R. 172; R. 174-175). Mr. Newman fell and sustained injuries when he followed his co-worker down the “steps” of the milk crates to the ground. (R. 171). There is no record-evidence (i) that the responsible defendants ever advised Mr. Newman of the location of the ladder, (ii) that Mr. Newman knew that the wall-mounted ladder existed, (iii) that any other device except for the wall- mounted ladder was available and intended to be used to descend from the 620 Dock platform, or (iv) that there was any common practice of requesting a ladder or some other device to descend from the 620 Dock platform to the ground. 1 Mr. Newman refers the Court to his Appellate Division brief below for a more complete statement of the relevant factual background. 3 On this record, the First Department held that “Plaintiff’s choice to use the crates rather than the ladder was the sole cause of his injuries (see Torres v. 1420 Realty, LLC, 111 AD3d 434 (1st Dept. 2013); see also Montgomery v. Federal Express Corp., 4 NY3d 805 (2005)). Based upon Montgomery and its progeny cases, in order for the First Department’s order to withstand this Court’s review, it must be true that, as a matter of law, the wall-mounted ladder was “readily available” to Mr. Newman. STANDARD OF REVIEW The Appellate Division reversed the trial court’s decision denying RCPI’s motion for summary judgement “on the law.” This Court exercises independent review of questions of law. See CPLR 5501(b); Taylor v. Interstate Motor Freight Sys., 309 NY 633, 636 (1956) (per curiam) (conducting independent review where Appellate Division stated that its decision was made “on the law”). Accordingly, the issue to be decided by this Court is whether the case law that the Appellate Division relied upon to reverse the trial court’s determination that issues of fact exist as to the proximate cause of Mr. Newman’s injuries, thereby precluding a grant of summary judgment in either parties’ favor, supports that reversal. Mr. Newman respectfully submits that the Appellate Division’s order reversing the trial court is unsupported by the law. Mr. Newman therefore seeks this Court’s reversal 4 of the Appellate Division’s order, remanding this case to the IAS court to proceed to trial on all issues so triable. ARGUMENT I. The Appellate Division Misconstrued and Misapplied This Court’s Decision in Montgomery v. Fed. Express Corp and its Progeny Cases. Montgomery established the rule that a worker is the sole cause of his injuries sustained at his worksite resulting from the worker’s use of a safety device when different devices that are employer-provided are “readily available” to the worker. Montgomery v. Fed. Express Corp., 4 NY3d 805 (2005) (holding that ladders were “readily available”). The trial court in Montgomery entered partial summary judgment against the owner of a building and its general contractor for injury sustained by a worker when the worker attempted to jump down to the roof from a worksite elevated above the roof. The worker alleged that the removal of the stairs that the worker had used in the past was the proximate cause of his injuries. The appellate division reversed, and this Court affirmed, holding that the removal of the stairs was not the proximate cause of the worker’s injury “since ladders were readily available.” Id. 4 NY3d 805, 806 (2005). In Robinson, this Court had the opportunity to address a set of undisputed facts that, taken together, describe a situation in which a safety device is considered “readily available” to a worker as a matter of law. See, Robinson v. E. 5 Med. Ctr., LP, 6 NY3d 550 (2006). In Robinson, the employee of a plumbing subcontractor brought an action under against the owner and general contractor on a construction project, seeking to recover damages for injury he sustained in a workplace accident involving a tipping stepladder. The trial court in Robinson granted the employee’s motion for summary judgment on the issue of liability, and appeal was taken. The Appellate Division reversed, and this Court affirmed. Building upon the law laid down in Montgomery, this Court held that the Robinson employee was the sole proximate cause of his injuries sustained from the employee’s action in standing on the top rung of a six-foot stepladder, where it was undisputed that the “employee knew he [required] an eight-foot stepladder…, acknowledged that there were eight-foot stepladders on the worksite, that he knew where they were stored, and that he routinely helped himself to [them].” Id. 6 NY3d 550, 555 (2006). In Miro v. Plaza Constr. Corp., 38 A.D.3d 454 (1st Dept. 2007) the First Department found that the plaintiff was the sole proximate cause of his injuries on the erroneous conclusion that the plaintiff’s “normal and logical response” should have been to request a ladder since the defendant had “a lot of ladders” available at its projects, i.e., the ladders were “readily available.” Id. In modifying the First Department’s finding, this Court held that such a characterization (that the defendant had a lot of ladders available) was insufficient to establish that the 6 ladders were “readily available” as a matter of law, and thus, that a triable issue of fact existed because “[a]ssuming that the ladder was unsafe, it is not clear from the record how easily a replacement ladder could have been procured.” Miro, 9 NY3d 948, 949 (emphasis added). In Cherry v. Time Warner, Inc., 66 AD3d 233, 238 (1st Dept. 2009) the plaintiff, having moved for summary judgment, alleged that the scaffold from which he fell was the only scaffold chained to his gang box on the third floor, that the scaffold lacked appropriate guardrails, and that he was not provided with any other safety devices to protect him from falling. The Cherry plaintiff further alleged that he did not see any scaffolds with guardrails on the date of his accident, and that he was not instructed, at any time, that he should use only scaffolds with railings. The Cherry defendants cross-moved for summary judgment, citing the plaintiff’s deposition testimony wherein he claimed that he had seen scaffolds with guardrails on the third floor (where he had his accident) and on other floors prior to the date of his accident, and that therefore, he was the sole proximate cause of his injuries. In denying both motions, the First Department held that “the requirement of a worker’s ‘normal and logical response’ to get a safety device rather than having one furnished or erected for him is limited to those situations when workers know the exact location of the safety device or devices and where there is a 7 practice of obtaining such devices because it is a simple matter for them to do so.” Cherry, 66 AD3d at 238. The record establishes that Mr. Newman did not have prior knowledge of the wall-mounted ladder’s existence. However, Mr. Newman did look in the wall- mounted ladder’s location (R. 187), and, assuming arguendo that the wall-mounted ladder would have been visible from where Mr. Newman was standing on the loading dock, Mr. Newman would have seen it, and then perhaps would have been able to make a choice as to whether to use it, but for the truck that was blocking its view. The fact that Mr. Newman did not “look” for a ladder (that he had no reason to look for) does not preclude the critical analysis of its visibility, and thus, whether it was “readily available.” It is a fact that Mr. Newman looked at the wall upon which the wall-mounted ladder was affixed (R. 187), even able to identify its color. Id. Had the ladder been visible (i.e., not blocked by a delivery truck), Mr. Newman would have (or at least potentially could have) seen the wall-mounted ladder. It is respectfully submitted that the invisibility of the ladder to Mr. Newman when he assessed the sidewalls of Dock 620 is relevant. Whether he was per se “looking” for the ladder does not end the analysis, contrary to the Appellate Division’s decision and order, that whether the ladder was visible is irrelevant, since Mr. Newman did not look for another means of descending the platform. (see, R. 395). 8 Whereas in Montgomery the worker knew that ladders existed on the worksite, and knew where to find one, there is nothing in the record here to support a factual finding that Mr. Newman knew that ladders existed on the worksite, knew where the ladders were located, or even whether ladders were meant to be used to descend from the 620 Dock platform edge. What is supported by the record, is that (i) all of the other loading dock platforms had either stairs or ramps, (ii) Mr. Newman had only been to those other loading dock platforms with stairs or ramps, and (iii) a seasoned coworker of Mr. Newman’s had been to the 620 Dock platform, knew where the pyramid was, and even aided Mr. Newman to such pyramid to descend the platform. Surely, these facts are material and distinguishable from this Court’s and the First Department’s decisions governing the issue of “readily availability.” Whether Mr. Newman had a choice, and thus whether he is the sole cause of his injuries, wholly depends in the first instance on whether the wall-mounted ladder (or any other form of egress from the platform to the loading dock floor) was “readily available” as that term is understood in the law. Because it cannot be said, as a matter of law, that such means were readily available to Mr. Newman, Mr. Newman cannot be said to have made a “choice.” And, therefore, cannot possibly be found to be the sole proximate cause of his injuries as a matter of law. 9 II. Torres v. 1420 Realty, LLC Does Not Support the Appellate Division’s Implied Conclusion that Mr. Newman’s Use of the Milk Crates to Descend the Loading Dock Platform was Unreasonable and/or Unforeseeable as a Matter of Law. Although the First Department did not specifically reach the issues of dangerous condition, reasonableness, and foreseeability, (having made its decision based upon an erroneous finding that the wall-mounted ladder was “readily available as a matter of law), it did cite Torres v. 1420 Realty, LLC, evidently for Torres’ holding on the issue of foreseeability – that is, that Mr. Newman’s and his co- worker’s use of the milk crates to descend from the 620 Dock platform was unreasonable and unforeseeable as a matter of law. In Torres, a tenant brought action against the tenant’s apartment building owners, seeking to recover damages for injuries she sustained when she fell after the paint bucket she was using as a step stool tilted over, allegedly due to the uneven condition of her apartment floor. The trial court granted summary judgment in favor of owners, and the tenant appealed. The First Department affirmed the grant of summary judgment, holding that the tenant’s independent superseding and/or intervening act of using paint bucket as a step stool was not foreseeable, thereby breaking chain of causation. An intervening act of the plaintiff or of a third-party may serve to limit or extinguish the defendant’s liability, but only “when the act is of such an extraordinary nature or so attenuates [the] defendant’s negligence from the ultimate injury that responsibility for the injury may not be reasonably attributed to the 10 defendant.” Kush by Marszalek v. City of Buffalo, 59 NY2d 26, 33 (1983); see, Gordon v. Eastern Ry. Supply, 82 NY2d 555, 562 (1993). “Because questions concerning what is foreseeable ... may be the subject of varying inferences, as is the question of negligence itself, these issues generally are for the fact finder to resolve.” Derdiarian v. Felix Contr. Corp., 51 NY2d 308, 315 (1980). To the extent that it did so impliedly hold, the Appellate Division erred in finding that Mr. Newman’s use of the milk crates to descend the platform of the 620 Dock was unforeseeable as a matter of law, that the act was so extraordinary that Mr. Newman’s employer could not have possibly foreseen the conduct. To this end, and with due respect, it is quite telling that, at oral argument before the First Department, the court asked Mr. Newman’s counsel whether she would have used the milk crates to descend the platform under the circumstances. The very asking of such a question establishes the non-extraordinary nature of Mr. Newman’s and his co-worker’s decision to use the milk crates to get down from the 620 Dock platform, and a triable issue as to the reasonableness and foreseeability of Mr. Newman’s use of the pyramid. To be sure, at least one other person (Mr. Newman’s coworker) found their use within the bounds of reason. Inasmuch as the record-facts do not present a situation “where only one conclusion may be drawn” (Derdiarian, 51 NY2d at 315), the First Department committed reversible error in finding that Mr. Newman was the sole proximate cause of his injuries. CONCLUSION For the reasons discussed here, and those set forth in Mr. Newman's papers below, which he incorporates by reference here, the Decision and Order should be reversed, on the law, and this case should be remanded to Supreme Court, New York County, to proceed to trial. Dated: New York, New York November 13, 2015 Respectfully submitted, NAPOLI SHKOLNIK PLLC Joseph P. Napoli Annie E. Causey 1301 Avenue of the Americas, 10th Fl. New York, New York 10019 Tel: (212) 267-3700 jnapoli@napolilaw.com acausey@napolilaw.com Attorneys for Appellants George Newman and Joanne Newman 11