Plaintiffs are represented by Peter D Rigelhaupt, Esq., the Perecman Firm, PLLC, 250 West 57th Street, New York, NY 10107. Defendants are represented by David C. Zegarelli, Esq., 711 Westchester Avenue, Suite 405, White Plains, NY 10607
Plaintiffs are represented by Peter D Rigelhaupt, Esq., the Perecman Firm, PLLC, 250 West 57th Street, New York, NY 10107. Defendants are represented by David C. Zegarelli, Esq., 711 Westchester Avenue, Suite 405, White Plains, NY 10607 Llinet M. Rosado, J.
Dane Hyatt, the plaintiff, was employed by Winco Corporation (Winco) as a concrete laborer in this case. The plaintiff's employer, non-party Winco, was the concrete foundation and superstructure subcontractor retained by the general contractor TF Cornerstone Inc., on this case. The plaintiff commenced the instant proceeding against the defendants based on a cause of action relating to an incident alleged to have occurred on May 29, 2012 at the seventh floor of a construction site located at 4545 Center Boulevard in Long Island City, New York.
On the date of the accident, the plaintiff was working on the seventh floor where he had been directed to work by Winco's supervisor. At the time of the accident, the plaintiff testified that he was working on the seventh floor and handling, dismantling, and/or disassembling scaffoldings with a co-worker named "Junior." The plaintiff testified that after the plaintiff dismantled a piece of metal beam from the scaffolding at issue, the plaintiff and the co-worker removed it from the passage area/way, however, the scaffolding at issue was not connected or tied in anywhere. While the plaintiff and the co-worker were dragging the other scaffoldings, the scaffolding at issue fell approximately 15 feet over and a piece of the scaffolding struck the plaintiff on his back. The plaintiff further testified that Winco and the defendants did not provide a safety device other than a hard hat and a harness. As a result of the accident, the plaintiff alleges that he sustained permanent bodily injuries. Based on the aforementioned facts, in his pleadings, the plaintiff claims that the defendants failed to provide appropriate safety devices to the plaintiff and violated Labor Law §240(1) and §241(6).
In this motion, pursuant to CPLR 3212, the plaintiff is seeking an order granting partial summary judgement against the defendants 4545 East Coast LLC f/k/a East Coast 2 LLC, the owner of the property (4545 East Coast), and TF Cornerstone QW 2 LLC (TF Cornerstone), the general contractor, on the issue of liability under the Labor Law §240 (1). In response to the plaintiff's motion, the defendants filed a cross-motion for an order granting summary judgment in their favor and dismissing the plaintiff's Labor Law §240 (1) and §241 (6) claims. In support of his motion, the plaintiff submits a copy of the pleadings, the deposition transcripts of the plaintiff, Mr. Simon Wynn, and Mr. Christopher Steinmann, the photograph marked at Mr. Steinmann's deposition, the agreement between owner and general contractor, and the accident reports. In support of their cross-motion, the defendants submit the affidavit of Mr. Shawn Z. Rothstein and the Curriculum Vitae of Mr. Rothstein. The plaintiff submits an attorney's affirmation in support and a memorandum of law in reply, and the defendants submit a memorandum in support of the defendants' cross-motion and a memorandum of law in reply.
The defendants filed a prior motion seeking summary judgment dismissal of the plaintiff's common law negligence and Labor Law § 200 claims. This Court granted the motion, without opposition, on April 15, 2020. --------
Untimely Filed Cross-Motion
The plaintiff argues that the defendants' cross-motion filed on November 8, 2019 is untimely since the plaintiff filed his note of issue on May 2, 2019.
The defendants argue that the Labor Law §241 (6) claim raises the "nearly identical" issue as the Labor Law §240 (1), and the Labor Law §241(6) claim is inexorably related to the core allegations that make up the basis for the plaintiff's Labor Law §240(1) claim.
In general, under CPLR 3212 (a), a "motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown." CPLR 3212 (a) (McKinney, Westlaw current through L.2019, chapter 758 & L.2020, chapters 1 to 56, 58 to 106); Kershaw v. Hosp. for Special Surgery, 114 AD3d 75, 978 N.Y.S.2d 13 (1st Dept. 2013); Group IX, Inc. v. Next Printing & Design Inc., 77 AD3d 530, 909 N.Y.S.2d 434 (1st Dept. 2010). The Court of Appeals concluded that "'good cause' in CPLR 3212(a) requires a showing of good cause for the delay in making the motion—a satisfactory explanation for the untimeliness—rather than simply permitting meritorious, nonprejudicial filings." Brill v. City of New York, 2 NY3d 648, 814 N.E.2d 431, 781 N.Y.S.2d 261 (2004); Miceli v. State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 819 N.E.2d 995, 786 N.Y.S.2d 379 (2004); Fofana v. 41 West 34th Street, LLC, 71 AD3d 445, 897 N.Y.S.2d 46 (1st Dept. 2010); Perini Corp. v. City of New York, 16 AD3d 37, 789 N.Y.S.2d 29 (1st Dept. 2005).
In Gibbs, the Court of Appeals explained the underlying policy of CPLR 3212 (a) and aforementioned Brill case as follow:
The failure to comply with deadlines not only impairs the efficient functioning of the courts and the adjudication of claims, but it places jurists unnecessarily in the position of having to order enforcement remedies to respond to the delinquent conduct of members of the bar, often to the detriment of the litigants they represent. Chronic noncompliance with deadlines breeds disrespect for the dictates of the Civil Practice Law and Rules and a culture in which cases can linger for years without resolution. Furthermore, those lawyers who engage their best efforts to comply with practice rules are also effectively penalized because they must somehow explain to their clients why they cannot secure timely responses from recalcitrant adversaries, which leads to the erosion of their attorney-client relationships as well. Gibbs v. St. Barnabas Hosp., 16 NY3d 74, 942 N.E.2d 277, 917 N.Y.S.2d 68 (2010); see Brill, 2 NY3d at 653.
However, an untimely motion or cross motion for summary judgment may be considered by the court where a timely motion for summary judgment was made on "nearly identical" grounds. Guallapa v. Leon D. DeMatteis Constr. Corp., 121 AD3d 416, 997 N.Y.S.2d 1 (1st Dept. 2014); Leonardi v. Cruz, 73 AD3d 580, 904 N.Y.S.2d 4 (1st Dept. 2010); Filannino v. Triborough Bridge and Tunnel Auth., 34 AD3d 280, 824 N.Y.S.2d 244 (1st Dept. 2006). In such circumstances, the issues raised by the untimely motion or cross motion are already properly before the court and thus, the same issue and/or the nearly identical nature of the grounds may provide the requisite good cause to review the untimely motion or cross motion on the merits. Jarama v. 902 Liberty Av. Hous. Dev. Fund Corp., 161 AD3d 691, 78 N.Y.S.3d 73 (1st Dept. 2018); Homeland Ins. Co. of New York v. Nat'l Grange Mut. Ins. Co., 84 AD3d 737, 922 N.Y.S.2d 522 (2nd Dept. 2011); Snolis v. Clare, 81 AD3d 923, 917 N.Y.S.2d 299 (1st Dept. 2011); Grande v. Peteroy, 39 AD3d 590, 833 N.Y.S.2d 615 (2nd Dept. 2007).
In this case, the plaintiff filed the note of issue on May 2, 2019, and the defendants filed the cross-motion on November 8, 2019, later than one hundred twenty (120) days after the plaintiff filed the note of issue. In addition, the defendants did not seek leave of this Court and failed to offer any good cause for the delay in making the cross-motion.
Instead, the defendants simply argue that the Labor Law §240 (1) and §241 (6) claims are nearly identical. The First Department held that the court may consider the merits of defendants' untimely cross-motion for summary judgment dismissing the plaintiff's Labor Law §240 (1) claim, because it is based on the same issues raised in the plaintiff's motion. Jarama, 161 AD3d at 691-92; Palomo v. 175th St. Realty Corp., 101 AD3d 579, 581 (1st Dept. 2012). However, the remainder of the cross-motion, seeking dismissal of the Labor Law §241 (6) cannot be considered because it does not address issues nearly identical to that raised in the timely motion and the defendants did not demonstrate good cause for the delay. Jarama, 161 AD3d at 691-92; Palomo, 101 AD3d at 581.
The defendants cited the Filannino case to support their argument that the Labor Law §240 (1) and §241 (6) claims are the issues nearly identical, however, Filannino does not directly support the defendants' position in this case. In Filannino, the defendants moved for partial summary judgement dismissing plaintiff's causes of action under the Labor Law §200 and §241 (6), and eleven days after the time to make summary judgment motions had expired, the plaintiff cross-moved for summary judgment on the issue of liability on his cause of action under the Labor Law §240 (1). Filannino, 34 AD3d at 281. The plaintiff asserted that the defendants, after repeatedly failing to produce a witness for a deposition, produced the witness the date plaintiff filed his note of issue. Filannino, 34 AD3d at 282. However, the First Department found that the plaintiff received the deposition transcript several weeks before the deadline for making summary judgment motions, and the plaintiff offered no explanation of why he could not have made a timely motion after receiving the transcript. Filannino, 34 AD3d at 282. In Filannino, the First Department affirmed the trial court's decision that the plaintiff's cross motion was untimely, and no good cause existed to entertain the merits of the cross motion. Filannino, 34 AD3d at 282-82; cf. Osario v. BRF Constr. Corp., 23 AD3d 202, 803 N.Y.S.2d 525 (1st Dept. 2005).
Thus, by the purpose of the clear intent and unequivocal language of the Court of Appeals in Gibbs, Brill, and Miceli cases, this Court concludes that it should hold the defendants accountable for their unexplained delay. Johnson v. Town of Fishkill, 62 AD2d 532, 692 N.Y.S.2d 431 (2nd Dept. 1999). This Court finds that the defendants' cross-motion with respect to the Labor Law §241 (6) claim is untimely, and only the Labor Law §240 (1) claim survives for further review here.
CPLR 3212 (a) Summary Judgment Standard of Review
Pursuant to CPLR 3212, "for a summary judgment to be granted, the moving party must make a prima-facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. (Alvarez v. Prospect Hosp., 68 NY2d 320, 324, 508 N.Y.S.2d 923, 501N.E.2d 572 ). If the moving party produces the required evidence, the burden shifts to the nonmoving party "to establish the existence of material issues of fact which require a trial of the action." (Vega v. Restani Constr. Corp., 18 NY3d 499, 503, 542 N.Y.S.2d 923, 501 N.E.2d 240, quoting Alvarez, 68 NY2d at 324, 508 N.Y.S.2d 923, 501N.E.2d 572)." Xiang Fu He v Troon Mgmt., Inc., 34 NY3d 167, 137 N.E.3d 469, 114 N.Y.S.3d 14 (2019).
Labor Law §240 (1) and Foreseeability
In this case, the plaintiff argues that the Labor Law §240 (1) is applicable because the plaintiff was struck by a piece of the scaffolding that fell from a height of approximately 15 feet, a "falling object" for the purpose of the Labor Law §240 (1) protection.
On the other hand, the defendants argue that a safety device that secures scaffoldings would be contrary to the objectives of the plaintiff's work plan which is disassembling and/or dismantling scaffoldings. The defendants further argue that in order for liability to be imposed under the Labor Law §240 (1), there must be a foreseeable risk of injury from an elevation-related hazard, as the defendants are liable for all normal and foreseeable consequences of their acts.
It is well established that owners and contractors have a statutory duty to provide adequate safety devices for their workers, and the failure to provide a safety device is a per se violation of the statute for which an owner and/or contractor is strictly liable under the Labor Law §240 (1). Zimmer v. Chemung County Performing Arts, 65 NY2d 513, 482 N.E.2d 898, 493 N.Y.S.2d 102 (1985); Auriemma v. Biltmore Theatre, LLC, 82 AD3d 1, 917 N.Y.S.2d 130 (1st Dept. 2011); Cherry v. Time Warner, Inc., 66 AD3d 233, 885 N.Y.S.2d 28 (1st Dept. 2009). The underlying policy is to protect workers from any injuries that result from such failure because workers are "scarcely in a position to protect themselves from accident." Zimmer, 65 NY2d at 520; Auriemma, 82 AD3d at 8; Cherry, 66 AD3d at 236. Moreover, the public policy protecting workers requires the statute to be liberally construed. Sanatass v. Consol. Investing Co., Inc., 10 NY3d 333, 339 (2008); Blake v. Neighborhood Hous. Serv. of N.Y.C., 1 NY3d 280, 803 N.E.2d 757, 771 N.Y.S.2d 484 (2003); Martinez v. City of New York, 93 NY2d 322, 712 N.E.2d 689, 690 N.Y.S.2d 524 (1999); Auriemma, 82 AD3d at 8; Mata v. Park Here Garage Corp., 71 AD3d 423, 896 N.Y.S.2d 57 (1st Dept. 2010); Cherry, 66 AD3d at 236.
In order to prevail on a motion for summary judgement on a cause of action under the Labor Law §240 (1), a plaintiff must show that there was a violation of the Labor Law §240 (1), which was the proximate cause of the plaintiff's injuries. Sanatass, 10 NY3d at 338; Cahill v. Triborough Bridge & Tunnel Auth., 4 NY3d 35, 823 N.E.2d 439, 790 N.Y.S.2d 74 (2004); Blake, 1 NY3d at 292; Gordon v. Eastern Ry. Supply, Inc., 82 NY2d 555, 626 N.E.2d 912, 606 N.Y.S.2d 127 (1993); Auriemma, 82 AD3d at 9; Cherry, 66 AD3d at 236.
However, where use of such a safety device would defeat or be contrary to the purpose of the work, no liability will attach for the failure to provide such a device. Salazar v. Novalex Constr. Corp., 18 NY3d 134, 960 N.E.2d 393, 936 N.Y.S.2d 624 (2011); Leveron v. Prana Growth Funt I, L.P., 181 AD3d 449, 121 N.Y.S.3d 242 (1st Dept. 2020); Tropea v. Tishman Constr. Corp., 172 AD3d 450, 100 N.Y.S.3d 237 (1st Dept. 2019); Ragubir v. Gibraltar Mgmt. Co., Inc., 146 AD3d 563, 45 N.Y.S.3d 76 (1st Dept. 2017). Furthermore, if adequate safety devices are provided, and the worker chooses not to use them or misuses them, liability under the Labor Law §240 (1) also does not attach. Cherry, 66 AD3d at 236; Cahill, 4 NY3d at 40. In this case, the plaintiff testified that he engaged in handling, dismantling, and/or disassembling scaffoldings. The plaintiff testified that the scaffolding that the plaintiff and his co-worker removed fell approximately 15 feet over and a piece of the scaffolding struck the plaintiff on his back, and the scaffolding was more than fifty pounds. This Court finds that the piece of the scaffolding was a "falling object" for the purpose of the Labor Law §240 (1). See Metus v. Ladies Mile Inc., 51 AD3d 537, 858 N.Y.S.2d 142 (1st Dept. 2008); Rosa v. R.H. Macy Co. Inc., 272 AD2d 87, 707 N.Y.S.2d 407 (1st Dept. 2000).
Furthermore, the plaintiff testified that Winco and the defendants did not provide protective gear other than the hard hat and the harness. However, said protective gear was not meant to prevent the scaffoldings from falling over. The injuries were allegedly caused by the effects of gravity upon the piece of the scaffolding, and it is well settled that the "Labor Law §240 (1) was designed to prevent those types of accidents in which the scaffold or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person." Runner v. NY Stock Exch., Inc., 13 NY3d 599, 922 N.E.2d 865, 895 N.Y.S.2d 279 (2009); Quattrocchi v. F.J. Sciame Constr. Corp., 11 NY3d 757, 896 N.E.2d 75, 866 N.Y.S.2d 592 (2008); Ross v. Curtis-Palma Hydro-Elec. Co., 81 NY2d 494, 618 N.E.2d 82, 601 N.Y.S.2d 49 (1993); Ortega v. City of New York, 95 AD3d 125, 940 N.Y.S.2d 636 (1st Dept. 2012); Harris v. City of New York, 83 AD3d 104, 923 N.Y.S.2d 2 (1st Dept. 2011); Makarius v. Port Auth. of New York and New Jersey, 76 AD3d 805 (1st Dept. 2010).
The defendants argue that securing the scaffolding in this case was contrary to the objectives of the plaintiff's work plan. However, the plaintiff testified that the scaffolding at issue had been moved out of the way and the scaffolding that the plaintiff and the co-worker were dragging did not cause the plaintiff's injuries herein. To provide a safety device to secure scaffoldings and actually securing the scaffolding which had already been moved would not be contrary to the plaintiff's objectives of handling, dismantling, and/or disassembling scaffoldings.
The plaintiff further testified that Winco provided plaintiff with a hard hat that plaintiff kept on his head the entire time on the date of the accident. However, a hard hat is not the type of safety device enumerated in the Labor Law §240 (1) that would provide proper protection from extraordinary elevation-related risks to a construction worker. Singh v. 49 East 96 Realty Corp., 291 AD2d 216, 737 N.Y.S.2d 345 (1st Dept. 2002); Rosa, 272 AD2d at 87. Also, the plaintiff testified that Winco provided a safety harness to the plaintiff which the plaintiff utilized the entire time on the date of the subject incident. However, the purpose of a safety harness is to protect a construction worker from the types of injuries that are caused by slipping and/or falling down and not to protect the worker from falling objects. In this case, the plaintiff did not fall from any ladder, structure, or building but the scaffolding, which is a falling object, fell over and a piece of the scaffolding struck him. Providing the safety harness to the plaintiff did not protect him from a falling object and does not immunize the defendants from liability under the Labor Law §240 (1).
In addition to the aforementioned discussion, the defendants argue that in order for liability to be imposed under the Labor Law §240 (1), there must be a foreseeable risk of injury from an elevation-related hazard. However, the First Department repeatedly held that "foreseeability" was unnecessary for a plaintiff to prevail on the Labor Law §240 (1) claim. Garcia v. Neighborhood P'ship Hous. Dev. Fund Co., Inc., 113 AD3d 494, 980 N.Y.S.2d 6 (1st Dept. 2014); Ortega, 95 AD3d at 129; Vasquez v. Urbahn Assoc. Inc., 79 AD3d 493, 918 N.Y.S.2d 1 (1st Dept. 2010); Espinosa v. Azure Holdings II, LP, 58 AD3d 287, 869 N.Y.S.2d 395 (1st Dept. 2008); Jones v. 414 Equities LLC, 57 AD3d 65, 866 N.Y.S.2d 165 (1st Dept. 2008). The First Department has created a limited exception with respect to foreseeability where the accident involves the collapse of a permanent structure. Ortega, 95 AD3d at 129. The First Department declined to "extend the foreseeability requirement to anything other than permanent structures," and held that the court "would not read such a requirement into the statute." Ortega, 95 AD3d at 129-30. In this case, neither the scaffolding and/or a piece of the scaffolding that caused the plaintiff's injuries are permanent structures nor did the accident involve the collapse of permanent structures. Moreover, even if the plaintiff had to show a foreseeable risk of injury from an elevation-related hazard, that an unsecured scaffolding would fall over and strike a construction worker is foreseeable and reasonably inferred. It is sufficient that given the inherently dangerous conditions of work sites, it is foreseeable that an owner or contractor's failure to provide safety devices to workers, as here, may cause an injury. Mendoza v. Highpoint Assoc., IX, LLC, 83 AD3d 1, 15 (1st Dept. 2011); Vasquez, 79 AD3d at 497; Gordon, 82 NY2d at 562; see also Burns v. Marcellus Lanes, Inc., 169 AD3d 1457, 92 N.Y.S.3d 824 (4th Dept. 2019).
This Court finds that the plaintiff made a prima-facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from this case. As the plaintiff has established the defendants' liability as a matter of law under the Labor Law §240 (1), this Court need not reach the defendants' remaining arguments regarding the Labor Law §241 (6) claim. See Guaman v. Ansley & Co., LLC, 135 AD3d 492 (1st Dept. 2016); Jimenez v. Metropolitan Transp. Auth., 124 AD3d 507, 3 N.Y.S.3d 1 (1st Dept. 2015); Goreczny v. 16 Ct. St. Owner LLC, 110 AD3d 465, 973 N.Y.S.2d 54 (1st Dept. 2013); see also Auriemma v. Biltmore Theatre, LLC, 82 AD3d 1, 917 N.Y.S.2d 130 (1st Dept. 2011).
Accordingly, it is hereby
ORDERED, that the plaintiff's motion is granted; and it is further
ORDERED, that the defendants' cross-motion is denied; and it is further
ORDERED, that the plaintiff is directed to serve a copy of this order with notice of entry on the defendants within thirty (30) days from the date of entry.
This constitutes the decision and order of this Court. Dated: June 30, 2020 __________ Hon. Llinét M. Rosado, J.S.C.