Andujar v. Port Auth. of N.Y. & N.J., Silverstein Props., Inc.
| Decision Date | 20 October 2017 |
| Docket Number | INDEX NO. 150509/2012 |
| Citation | 2017 NY Slip Op 32224 (U) |
| Parties | JULIAN ANDUJAR, Plaintiff, v. THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, SILVERSTEIN PROPERTIES, INC, WORLD TRADE CENTER MEMORIAL FOUNDATION INC, BOVIS LEND LEASE LMB INC, Defendants. |
| Court | New York Supreme Court |
MOTION DATE __________
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 100, 101
were read on this application to/for Summary judgment.
Upon the foregoing documents, it is
This action arises out of a construction site accident that occurred on May 25, 2011 at the National September 11th Memorial and Museum site at the World Trade Center in Lower Manhattan.1 Plaintiff Julian Andujar, a carpenter, alleges that he fell off a vertical lift in the course of his work at the site, sustaining injuries.
Defendants The Port Authority of New York and New Jersey ("Port Authority"), National September 11 Memorial And Museum At The World Trade Center Foundation, Inc., d/b/a 9/11 Memorial s/h/a World Trade Center Memorial Foundation Inc. ("Foundation"), and Lend Lease (US) Construction LMB, Inc. s/h/a Bovis Lend Lease LMB Inc. ("Lend Lease," and, along with Port Authority and Foundation, collectively "Defendants") move, pursuant to CPLR 3212, for summary judgment dismissing the complaint, including the Labor Law §§ 240 (1), 241, (6), 200, and common-law negligence claims filed by plaintiff Julian Andujar.2 Plaintiff opposes.
BACKGROUND
On the day of his accident, Plaintiff, a carpenter employed by subcontractor Component Assembly Systems, Inc. ("Component"), was working on the Museum Project. Port Authority owned the premises known as the National September 11th Memorial and Museum (the Museum), including the construction site. Port Authority retained Lend Lease to perform services in connection with the Museum and Foundation retained Lend Lease to act as construction manager in connection with the Museum Project.
Plaintiff's Deposition Testimony
Plaintiff testified that he began working for Component in March 2010 (plaintiff tr. at 12). On the day of the accident, May 25, 2011, he was employed by Component to do insulation work on the Museum Project. He had been working on the Museum Project for approximately three days before the accident occurred (id. at 17). His duties included installing insulation panels to a cement wall. Vincent Gangemi, his supervisor and a Component foreman, directed Plaintiff to use a vertical lift and was the sole source of instruction as to how to perform his work. The lift was manually operated and the platform was raised and lowered through use of a joystick. The lift had an enclosed work platform, surrounded by waist-high guardrails with tie-off points, and it would "beep" when it was either fully extended or "touche[d] down" on the ground (id. at 33-34). Plaintiff used the same kind of vertical lift on prior occasions and had raised and lowered the platform more than ten times on May 25th prior to the accident. Plaintiff also testified that as he entered the lift, he was wearing a safety harness and lanyard that he tied off on the platform rails.
The accident occurred "[m]ore or less like...ten minutes after" lunch, which ended at 12:30 (id. at 21). Plaintiff used the lift to descend from a height of approximately 20 feet (id. at 44) to retrieve more washers for his work. Plaintiff was in the lift and as he lowered the platform, the lift came to a stop and made a "boom" sound—"as if it had already arrived" but he did not hear a beep—and, as a result, he believed the platform was fully lowered (id. at 45-46, 53). Plaintiff disconnected his lanyard from the lift, and, after removing his fall protection, stepped off the lift and fell between seven to eight feet (id. at 48), thereby sustaining injuries. It was dark (id. at 47, 54) and plaintiff could not see well (id. at 54), stating, (id. at 47). There was a light on the floor of the room in which plaintiff worked that flashed up onto the wall near the lift (id. at 50), but when he was stepping out of the lift, the light was "[a] little bit away" (id at 50) and there were no lights on the lift (id. at 34). When plaintiff stepped out of the lift, he did not see the ground but rather "saw was everything was black" (id. at 47).
Deposition of Lois Justry (Port Authority Supervising Safety Engineer)
Port Authority Supervising Safety Engineer Lois Justry testified that she performed "regular walks through" of the site approximately two or three days per week with "insurance people, site safety manager [Duane Fitzpatrick of Lend Lease] for the CM [Lend Lease, the construction manager]" and "look for safety infractions." (Justry tr. 20-21). She testified that the Port Authority does not install lighting equipment for the use of construction workers, "so it would have to be another contractor," H. O'Kane or Five Star (id. at 33-34). She recalled having brought portable illumination with her during walk-throughs in the spring and summer of 2011 (id. at 35). She believed that she was notified on the date of plaintiff's accident that somebody fell from a lift and did not personally go to elevation 242 (the site of plaintiff's fall) to see the location of the accident (id. at 37-38) and that there was an incident report (id. at 47).
Deposition of Dwayne Fitzpatrick (Lend Lease Former Safety Personnel)
Dwayne Fitzpatrick worked for Lend Lease from 1994 to May of 2014 and was associated with the project from approximately December 2008 to May 2014 in a safety title (Fitzpatrick tr. 9). He testified that Lend Lease did not provide any safety equipment or illumination equipment to the subcontractors on the job and did not have anyone go around measuring the illumination in use by the subcontractors to see if it was bright enough (id. at 24-25).
Deposition of Luis F. Mendes (National September 11th Memorial & Museum)
Luis F. Mendes of the Foundation testified that the Foundation did not provide any safety equipment or artificial illumination to the construction workers for the museum project.
Affidavit of Vincent Gangemi (Component Foreman and Plaintiff's Supervisor)
As mentioned above, Vincent Gangemi was a Component foreman and Plaintiff's supervisor on the day of the accident. He states that Plaintiff did not report that there was any defective condition with the vertical lift nor did Plaintiff indicate that he was prevented from fully lowering the platform due to a mechanical defect. Mr. Gangemi conducted a post-accident inspection of the lift and concluded that the lift was in good working order with no defects. Based upon his discussion with Plaintiff and his inspection of the vertical lift, Mr. Gangemi concluded that Plaintiff fell solely due to operator error.
Affidavit of Les Winter (Professional Engineer)
Les Winter, P. E., is an electrical engineer, licensed in New York and New Jersey. He cites Industrial Code Rule 23, Section 23-1.30 ("Illumination") and opines that the Section's recommended ten foot-candle3 level would have been sufficient to allow the Plaintiff to have seen the floor from the lift. Mr. Winter thus concludes that based on Plaintiff's testimony that it was dark, the work space was insufficiently illuminated and had the space been adequately illuminated, Plaintiff would have been able to see that the lift had not yet reached the proper level of descent.
DISCUSSION
"[T]he 'proponent of a summary judgment motion 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.'" Meridian Mgt. Corp. v. Cristi Cleaning Serv. Corp., 70 A.D.3d 508, 510 (1st Dep't 2010), quoting Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985). Once the moving party meets this requirement, "the burden then shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that precludes summary judgment and requires a trial." Ostrov v. Rozbruch, 91 A.D.3d 147, 152 (1st Dep't 2012), citing Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986). In determining a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party. Henderson v. City of New York, 178 A.D.2d 129, 130 (1st Dep't 1997). The court's function on a motion for summary judgment is issue-finding, rather than making credibility determinations or findings of fact. Vega v. Restani Const. Corp., 18 N.Y.3d 499, 503, 505 (2012).
Timeliness of Motion
As a preliminary matter, the court finds that the motion was timely filed within 120 days after the filing of the Note of Issue pursuant to CPLR 3212(a) and in accordance with this part's rules.4
Plaintiff's Labor Law § 240 (1) Claim
Defendants move for dismissal of Plaintiff's Labor Law § 240 (1) claim, arguing that plaintiff's actions constituted the sole proximate cause of the accident. Labor Law § 240 (1), also known as the Scaffold Law (Ryan v. Morse Diesel, 98 A.D.2d 615, 615 [1st Dep't 1983]), provides, in relevant part:
All contractors and owners and their agents . . . 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, slings, 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.
"'Labor Law § 240 (1) was designed to prevent those types of accidents in which the scaffold . . . or other protective device...
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