Raul Barreto, Appellant, et al., Plaintiff,v.Metropolitan Transportation Authority, et al., Respondents. (And other Third-Party Actions.)BriefN.Y.February 11, 2015APL-2014-00031 New York County Clerk’s Index Nos. 108233/05, 591045/06 and 590440/07 Court of Appeals STATE OF NEW YORK Index No. 108233/05 RAUL BARRETO, Plaintiff-Appellant, and DERLIM BARRETO, Plaintiff, against METROPOLITAN TRANSPORTATION AUTHORITY, NEW YORK CITY TRANSIT AUTHORITY, THE CITY OF NEW YORK and IMS SAFETY CORP., Defendants-Respondents. (Additional Caption On the Reverse) >> >> REPLY BRIEF FOR PLAINTIFF-APPELLANT RAUL BARRETO GORAYEB & ASSOCIATES, P.C. Attorneys for Plaintiff-Appellant Raul Barreto 100 William Street, Suite 1205 New York, New York 10038 212-267-9222 Date Completed: September 4, 2014 Of Counsel: John M. Shaw To Be Argued By: John M. Shaw Time Requested: 30 Minutes Third-Party Index No. 591045/06 IMS SAFETY INC., Third-Party Plaintiff, against ANDRES SERVICES CORPORATION, Third-Party Defendant. Second Third-Party Index No. 590440/07 METROPOLITAN TRANSPORTATION AUTHORITY and NEW YORK CITY TRANSIT AUTHORITY, Second Third-Party Plaintiff, against P.A.L. ENVIRONMENTAL SAFETY CORP., Second Third-Party Defendant. i TABLE OF CONTENTS Page PRELIMINARY STATEMENT ............................................................................... 1 ARGUMENT ............................................................................................................. 6 POINT I IN VIEW OF THE UNCONTROVERTED FACT THAT THERE WAS NO SAFETY PROCEDURE IMPLEMENTED, THAT PROPER PROTECTION SUCH AS A GUARDRAIL SYSTEM WAS NOT IN PLACE AND RAFAEL TORRES ADMITTED THAT HE FAILED TO PERSONALLY SUPERVISE THE REPLACING OF THE MANHOLE COVER, DEFENDANTS’ ARGUMENT THAT PLAINTIFF’S ACTIONS WERE THE SOLE PROXIMATE CAUSE OF THE ACCIDENT IS UNTENABLE AS MATTER OF LAW ............................................................. 6 CONCLUSION ........................................................................................................ 12 ii TABLE OF AUTHORITIES Page Cases Auriemma v. Biltmore Theatre, LLC, 82 A.D.3d 1, 917 N.Y.S.2d 130 (1st Dept. 2011) ................................................................................................... 8 Cherry v. Time Warner, Inc., 66 A.D.3d 233, 885 N.Y.S.2d 28 (1st Dept. 2009) ................................................................................................... 8 Dos Santos v. Consolidated Edison of N.Y., Inc., 104 A.D.3d 606, 963 N.Y.S.2d 12 (1st Dept. 2013)....................................................................... 9 Gallagher v. New York Post, 14 N.Y.3d 83, 896 N.Y.S.2d 732 (2010) ................... 8 Salazar v. Novalex Contracting Corp., 18 N.Y.3d 134, 936 N.Y.S.2d 624 (2011) .............................................................................. 9, 10 Sanatass v. Consolidated Inv. Co. Inc., 10 N.Y.3d 333, 858 N.Y.S.2d 67 (2008) ...................................................................................... 2 Stolt v. General Foods Corp., 81 N.Y.2d 918, 597 N.Y.S.2d 650 (1993) .......................................................................................................... 2, 4, 8 Statutes Labor Law Section 200 ........................................................................................ 5, 12 Labor Law Section 240(1) ................................................................................passim Labor Law Sections 241(6) .................................................................................. 5, 12 1 PRELIMINARY STATEMENT Plaintiff-Appellant, Raul Barreto (“plaintiff”), respectfully submits this brief in reply to the respective respondents’ briefs of defendants-respondents, Metropolitan Transportation Authority (“MTA”), New York City Transit Authority (“NYCTA”), The City of New York (“CITY”), and IMS Safety Corp. (IMS”) (collectively “defendants”). For the sake of brevity and judicial economy, because virtually all the arguments addressed by defendants were fully briefed in plaintiff’s prior brief, plaintiff respectfully incorporates by reference the arguments and facts set forth in plaintiff’s brief. Nevertheless, a few matters need to be addressed. In their respective briefs defendants materially misconstrue applicable law and the facts at bar by arguing that plaintiff was a sole proximate cause of this accident. Defendants’ failure to apply settled law is highlighted by MTA’s brief. On Page 21 of its brief MTA avers the following: “Significantly, the plaintiff knew that the manhole cover had been removed prior to his accident and plaintiff negligently failed to ensure that it had been replaced prior to his accident.” (A. 525, 667-669). This statement is in gross contravention to the law of the State of New York. It is defendants, not the worker (i.e. plaintiff), who have the ultimate 2 responsibility to provide proper protection to construction workers. Labor Law Section 240(1) exists solely for the benefit of workers and operates to place the ultimate responsibility for safety violations on owners and contractors and not the workers, regardless if the owners and contractors were not present at the site. Sanatass v. Consolidated Inv. Co. Inc., 10 N.Y.3d 333, 858 N.Y.S.2d 67 (2008). Putting aside that the record is uncontroverted that it was not plaintiff’s responsibility to cover the manhole, defendants, not plaintiff, have the non-delegable duty to ensure that proper protection was provided to the workers. It is hornbook law that a plaintiff need not show that the statutory violation was the only cause but need only show that it was a contributory cause. Stolt v. General Foods Corp., 81 N.Y.2d 918, 597 N.Y.S.2d 650 (1993). As will be demonstrated infra, there was no specific procedure in place at the subject site nor any specific protocol as to what workers were supposed to do with regard to replacing the manhole cover. Plaintiff, who had no supervisory authority at this job site while working for P.A.L., was a mere laborer who had the same rank as “Julio” and “Charlie”, plaintiff’s co-workers in the containment area (A. 646, 648). 3 Even if the supervisor, Rafael Torres, told plaintiff and the co-workers that the manhole had to be covered first before deconstruction, there was no specific prohibition that the workers were not to be in the containment area until the manhole was covered. The record is devoid of any such directive. Plaintiff averred that it was the supervisor, Rafael Torres’ responsibility to make sure that the manhole was covered. (A. 620, 670-671). Mr. Torres conceded the foregoing (A. 337). What is incredible is that IMS now tries to distance or disassociate itself from the testimony of its own witness, Joseph P. Mazzurco. Even though IMS designated Mr. Mazzurco, who was the president of IMS, as its deposition witness and who had years of experience in the business, IMS attempts to argue that the Court should disregard his testimony concerning his admission that appropriate guardrails should have been in place at the time of the accident. Despite IMS’s argument to the contrary, that was the testimony of Mr. Mazzurco. IMS was hired as the site safety contractor; for IMS to claim that Mr. Mazzurco is not qualified to give such testimony is nothing short of disingenuous. Furthermore, the incontrovertible fact that Mr. Mazzurco is a convicted felon for conspiracy to commit wire fraud and mail fraud for his misrepresentation is palpably relevant. Mr. Mazzurco’s testimony goes to the issue of falsus in uno. 4 The bottom line is that at most plaintiff’s actions go to the issue of comparative negligence, which is immaterial for the purposes of Labor Law Section 240(1). Stolt, supra. It is inconceivable as a matter of law that plaintiff was the sole proximate cause of this accident: in view of the fact that plaintiff was not given proper protection (by way of, inter alia, fall protection and proper lighting) nor was there a procedure implemented regarding the deconstruction of the barricade. There was no safety procedure implemented for removal/replacement of the manhole. The mere fact that the supervisor (Mr. Torres) may have said not to deconstruct the containment without first having the manhole cover in place was not a specific prohibition [to not be in the area at the time of the accident]. The record is devoid of any proof that the workers were told not to be in the vicinity of the accident before the manhole cover was in place. The foregoing is corroborated by the supervisor’s accident investigation report (prepared by Rafael Torres) (A. 337). Mr. Torres conceded that there was no proper supervision/procedure in place at the time of the accident when he averred as part of the corrective action to take: “I personally supervise replacing of a manhole cover as soon as last worker exits manhole.” (A. 337). 5 Mr. Torres admitted that there was no procedure/supervision in place at the time of the accident regarding the replacing of the manhole cover. As a result of this accident, he further acknowledged to personally supervise the replacing of the manhole cover as soon as the last worker exits the manhole. This is consistent with plaintiff’s testimony in that plaintiff averred that it was the supervisor’s responsibility to supervise the replacing of the manhole cover. (R. 620, 670-671). With regard to plaintiff’s Labor Law Section 200 and 241(6) claims, plaintiff respectfully refers this Court to plaintiff’s prior brief. Both plaintiff and Mr. Mazzurco testified that MTA/NYCTA supervised the operation involving the removal/placement of the manhole. Furthermore, IMS misstates the law when it argues that it could not be deemed to be an “agent” under the Labor Law because it did not direct plaintiff’s work. The record is replete with testimony (and conceded by Mr. Mazzurco) that IMS had supervisory authority over the removal/replacement of the manhole cover (and was not some detached site safety manager). Moreover, on Page 19 of its brief IMS concedes that a subcontractor can be liable under Labor Law Sections 240(1) and 241(6) if it had the authority to supervise/control the work. In the case herein, the record is replete with testimony that IMS had such authority. 6 ARGUMENT POINT I IN VIEW OF THE UNCONTROVERTED FACT THAT THERE WAS NO SAFETY PROCEDURE IMPLEMENTED, THAT PROPER PROTECTION SUCH AS A GUARDRAIL SYSTEM WAS NOT IN PLACE AND RAFAEL TORRES ADMITTED THAT HE FAILED TO PERSONALLY SUPERVISE THE REPLACING OF THE MANHOLE COVER, DEFENDANTS’ ARGUMENT THAT PLAINTIFF’S ACTIONS WERE THE SOLE PROXIMATE CAUSE OF THE ACCIDENT IS UNTENABLE AS MATTER OF LAW The Court is respectfully referred to the Preliminary Statement, supra, as well as plaintiff’s prior brief, which address at length the failure of defendants to provide proper safety protection, inter alia, a guardrail system. IMS tries to backpedal from the testimony of its own designated deposition witness, Mr. Mazzurco, who conceded the need for same. Defendants rely on the accident investigation report signed by Rafael Torres, plaintiff’s supervisor (A. 337). While this report is technically hearsay, Mr. Torres attempts to pass blame solely onto plaintiff for this accident. What is conspicuously noticeable in this report is Mr. Torres’ admission that there was no proper supervision nor procedure in place to ensure workers such as plaintiff were protected while they were performing their work. In the Section entitled “Supervisor’s corrective action to ensure this type of accident does not recur,” Mr. Torres highlights the following: 7 “I personally supervise replacing of manhole cover as soon as last worker exits manhole.” (A. 337). Mr. Torres concedes that he did not supervise the replacing of the manhole cover at the time of the accident to ensure that the workers were properly protected. In his deposition testimony plaintiff averred that it was the responsibility of the supervisor, Mr. Torres, to ensure that the manhole had to be covered and that all the work was to be done correctly. Plaintiff testified that: “It’s the supervisor that has to check the work to see that everything is covered and that all of the work is being done correctly.” (A. 670-671). Q. “Did the supervisor advise anyone at P.A.L., the workers at P.A.L. that the manhole had to be covered first?” A. The supervisor says break down and nothing else.” (A. 671). Plaintiff was part of a three person team involved in the deconstruction of the containment. These three workers, including plaintiff, all deconstructed part of the plastic before the accident occurred. These three workers all were laborers and all had the same rank (A. 646-648). The supervisor, Rafael Torres, by his own admission, failed to personally supervise the replacing of the manhole cover as soon as the last worker (plaintiff in this case) exited the 8 manhole. This was noted and conceded by Mr. Torres in his accident report (A. 337). In another section of this report (which defendants rely upon), Mr. Torres makes some self-serving generic statement that plaintiff “…did not follow procedure of replacing manhole cover …” (A. 337). What is conspicuous by its absence in this report and devoid in the entire record is any example of what actual safety procedure there was. The mere general announcement of not to deconstruct the barrier before the manhole cover was in place fails as a matter of law to exonerate defendants of liability. Putting aside there were still no proper guardrails/safety devices in place and there was no proper supervision (by Mr. Torres’ own admission) nor any actual safety procedure implemented, this general announcement is not a basis for a sole proximate cause defense. Stolt, supra; Gallagher v. New York Post, 14 N.Y.3d 83, 896 N.Y.S.2d 732 (2010); Cherry v. Time Warner, Inc., 66 A.D.3d 233, 885 N.Y.S.2d 28 (1st Dept. 2009); Auriemma v. Biltmore Theatre, LLC, 82 A.D.3d 1, 917 N.Y.S.2d 130 (1st Dept. 2011). The record is devoid of any proof that the workers, including plaintiff, were provided with any safety meetings/classes regarding working around a manhole (A. 668). 9 The Court again is respectfully referred to plaintiff’s brief to address defendants’ argument that this accident was not within the purview of an elevation-related risk. IMS’s argument (including its reliance on two New York Supreme cases) is contrary to applicable law. In Dos Santos v. Consolidated Edison of N.Y., Inc., 104 A.D.3d 606, 963 N.Y.S.2d 12 (1st Dept. 2013) the Appellate Division, First Department reversed the motion court decision that dismissed the plaintiff’s Labor Law Section 240(1) cause of action and denied the plaintiff’s cross motion. In Dos Santos, supra, the plaintiff fell into a manhole which he and his co-worker had uncovered. The defendant’s general manager testified that hazard protection such as a railing should have been provided. The Appellate Division, First Department, which granted summary judgment to the plaintiff, held that the manhole met the definition of a structure and that the plaintiff’s accident fell within the purview of an elevation-related risk under Labor Law Section 240(1). Dos Santos, supra. IMS’s reliance on Salazar v. Novalex Contracting Corp., 18 N.Y.3d 134, 936 N.Y.S.2d 624 (2011) is misplaced. In Salazar, supra, this Court (in a split opinion) held that it would have been illogical to require the owner or general contractor to place a protective cover over a three or four foot deep hole when the very goal of the work was to fill that hole with concrete. The record was unequivocally clear that the purpose of the work was to lay concrete over the 10 entire basement and since the concrete would necessarily fill the trench and pour over the surrounding floor areas, it would be impractical and contrary to the very work at hand to cover the area where the concrete was being spread. Salazar at 140. In the case at bar, on the other hand, plaintiff’s work did not involve the filling of a trench. Plaintiff fell through an unprotected opening (the manhole) down to the level below at a height of approximately ten feet (A. 1105). The two cases are completely distinguishable. For the foregoing reasons and as set forth in plaintiff’s prior brief, it is untenable as a matter of law that plaintiff’s actions could have been the sole proximate cause of this accident. At most, plaintiff’s actions go to the issue of comparative negligence. The manhole cover was not the “perfect safety device”: (1) there was no safety protection, including a guard rail system placed; (2) there was no proper lighting; (3) plaintiff was one of a team of three workers that was deconstructing the containment area at the time; (4) plaintiff was not responsible for removing the manhole cover or placing the manhole cover back on the manhole; (5) there was no safety procedure/method implemented as to how the workers were supposed to be positioned, cover the manhole and perform the deconstruction of the containment; (6) Mr. Torres admitted he failed to personally supervise the placing of a manhole cover as soon as the last worker exited the manhole; (7) 11 and that was part of Mr. Torres’ corrective action to prevent this type of accident in the future. For the foregoing reasons, it is respectfully requested that the Order of the Appellate Division be reversed and this Court grant plaintiff’s cross-motion for partial summary judgment pursuant to Labor Law Section 240(1). At the very least, it is respectfully requested that this Court reinstate plaintiff’s Labor Law Section 240(1) claim. 12 CONCLUSION It is respectfully submitted that the Appellate Division, First Department order is inconsistent with and contrary to well settled case law. The Appellate Division, First Department misconstrued and ignored applicable facts in the record, and ignored case law promulgated by the Court of Appeals as to sole proximate cause/recalcitrance. For all the foregoing reasons and for the reasons set forth in appellant’s prior brief, it is respectfully submitted that the Appellate Division order dated October 31, 2013 be modified to the extent that it granted defendants’ respective motions for summary judgment to dismiss plaintiff’s complaint; that plaintiff’s complaint against defendants, which asserted causes of action pursuant to Labor Law Sections 240(1), 241(6), 200 and common law negligence, should be reinstated; and appellant’s cross motion for partial summary judgment pursuant to Labor Law Section 240(1) be granted; or in the alternative this matter should be permitted to proceed to trial against defendants; and with any other and different relief that this Court deem just and proper. 13 Dated: New York, New York September 4, 2014 Respectfully submitted, _________________________ John M. Shaw Gorayeb & Associates, P.C. Attorney for Plaintiff-Appellant RAUL BARRETO 100 William Street, Suite 1205 New York, New York 10038 (212) 267-9222 Of counsel: John M. Shaw
