Benjamin v. El–Ad Props. NY, LLC
| Decision Date | 16 September 2010 |
| Docket Number | No. 36132/07.,36132/07. |
| Citation | 28 Misc.3d 1239,958 N.Y.S.2d 306,2010 N.Y. Slip Op. 51645 |
| Parties | Lionel BENJAMIN, Plaintiff, v. EL–AD PROPERTIES NY, LLC, CPS 1 Realty LP, The Plaza Condominium, et ano., Defendants. |
| Court | New York Supreme Court |
OPINION TEXT STARTS HERE
Paul G. Gargiulo, Esq., for plaintiff.
Law Offices of Edward Garfinkel by Michael J. Pearsall, Esq., of counsel, for defendants.
Upon the foregoing papers, plaintiff Lionel Benjamin moves for an order, granting him partial summary judgment against defendants El–Ad Properties NY, LLC, CPS 1 Realty LP, and Tishman Construction Corporation of New York, on the issue of liability pursuant to Labor Law § 240(1) and § 241(6).
The verified complaint alleges that on December 20, 2006, plaintiff suffered injuries as a result of a fall at the construction site located at 768 5th Avenue in Manhattan. The construction project was the renovation of the building known as the Plaza Hotel located at that address. Plaintiff was involved in the renovation of the exterior; specifically, he was renovating part of the roof.
The accident occurred while plaintiff, a sheet metal mechanic, was standing on a plank, which was the working surface of an exterior scaffold approximately 19 floors above the ground. A co-worker would hand plaintiff copper sheets from inside the building through an open window to plaintiff, who would place the sheets on the scaffold. After plaintiff placed one of the sheets on the scaffold, the plank on which he stood slid off the scaffold frame. Consequently, plaintiff fell approximately ten feet and landed within the scaffold frame. Plaintiff suffered injuries as a result.
Thereafter, on September 27, 2007, plaintiff commenced this action to recover damages for his injuries. Plaintiff alleges that defendant CPS 1 Realty LP (“CPS”) is the owner of the subject building and that CPS hired defendant Tishman Construction Corporation of New York (Tishman) to renovate the subject building. Tishman hired various subcontractors, including plaintiff's employer, non-party Eagle One Roofing, Inc.
Plaintiff claims that, inter alia, both CPS, the owner of the subject property, and Tishman, either a contractor hired by the owner to perform construction work or an agent of the owner, are subject to absolute vicarious liability under the Labor Law. Plaintiff further claims that defendants and their agents violated, inter alia, sections 240 and 241 of the Labor Law. Lastly, plaintiff argues that the violations of the Labor Law were the proximate cause of the accident, and CPS and Tishman are thus vicariously liable for his injuries.
Defendants interposed an answer, discovery ensued, and on February 2, 2010, plaintiff filed a note of issue, indicating that the instant action is ready for trial. Plaintiff now seeks partial summary judgment against CPS and Tishman 1 on the issues of liability pursuant to Labor Law § 240(1) and § 241(6).
In support of his motion, plaintiff first asserts that he was a construction worker lawfully present on the site and performing renovation work on the subject building. Therefore, reasons plaintiff, he is a protected worker who was injured while performing protected work for Labor Law purposes.
Plaintiff next asserts that CPS and Tishman are vicariously liable for his injuries pursuant to Labor Law § 240(1) and Labor Law § 241(6). Plaintiff argues that CPS is an “owner” and that Tishman is a either a “contractor” or “agent” of the owner as those terms are defined in the Labor Law. Plaintiff contends that it is undisputed that CPS owned the subject premises, and further contends that since Tishman had and exercised authority given by CPS to hire subcontractors and oversee the renovation project, Tishman is a either a “contractor” or “agent” of the owner. Plaintiff concludes that CPS and Tishman are thus subject to absolute vicarious liability pursuant to Labor Law § 240(1) and § 241(6).
Plaintiff further claims that Labor Law § 240(1) applies to the subject accident because he was subject to an elevation-related risk that led to the accident. Plaintiff reiterates that the accident occurred while he was working approximately 19 floors above ground level, and that he suffered injuries as a result of a ten-foot fall to a lower part of the scaffold frame. Next, plaintiff contends that Labor Law § 240(1) requires that he was provided with proper protection against the risk of falling. However, claims plaintiff, the subject scaffold did not constitute proper protection for various reasons.
First, plaintiff contends that the slipped plank on which he stood constitutes a collapse of the scaffold. Alternatively, plaintiff asserts that the lack of guardrails at the level where he was working establishes that he was not furnished with proper protection against falls. Lastly, plaintiff claims that, even assuming the scaffold was properly built and placed, the fact that the scaffold did not prevent the fall demonstrates the existence of a violation of Labor Law § 240(1).
Plaintiff reasons that these facts establish that he has demonstrated prima facie establishment to judgment as a matter of law against CPS and Tishman on the issue of Labor Law § 240(1) liability. Plaintiff then asserts that defendants cannot demonstrate the existence of an issue of fact. Plaintiff argues that where, as here, a scaffold fails to prevent a fall, there is no merit to a “sole proximate cause” defense. Also, plaintiff asserts that the type of scaffold used and the type of work performed rendered the use of a safety line impossible. In the alternative, plaintiff claims that there was no available safety line that would have both been adequate to complete his assigned task and prevented the fall. Plaintiff concludes that he is entitled to partial summary judgment against CPS and Tishman on the issue of Labor Law § 240(1).
Plaintiff also asserts that the instant facts establish, prima facie, a Labor Law § 241(6) violation. Plaintiff alleges violations of two provisions of the Industrial Code Industrial Code that contain specific and positive commands: Industrial Code § 23–1.5(a) and § 23–5.1(e). Plaintiff asserts that the facts indicate that these two provisions were not complied with, and that these violations proximately caused his injuries. Plaintiff concludes that he is therefore entitled to partial summary judgment against CPS and Tishman on the issue of Labor Law § 241(6) liability, and asserts that this court should grant the instant motion.
In opposition to the motion, CPS and Tishman assert that the existence of a triable issue of material fact precludes partial summary judgment on the issue of Labor Law § 240(1). Specifically, CPS and Tishman assert that the instant facts could convince the trier of fact that plaintiff's failure to use a safety harness that was readily available to plaintiff and would have provided protection against the elevation-related risk. Although CPS and Tishman note that plaintiff testified at his examination before trial that he was directed by both his supervisor and a Tishman agent not to use a harness while performing the roofing work, CPS and Tishman nevertheless characterize this testimony as a “hearsay claim” 2 and conclude that the trier of fact must determine whether plaintiff's failure to use a safety harness was the sole proximate cause of his injuries.
The opponents of the motion also assert that plaintiff is not entitled to partial summary judgment on the issue of Labor Law § 241(6) liability. First, CPS and Tishman note that courts have held that Industrial Code § 23–1.5(a) and § 23–5.1(e) are general safety provisions that do not contain positive, specific commands and are thus not adequate predicates for Labor Law § 241(6) liability. Next, CPS and Tishman assert that, contrary to plaintiff's suggestion, the facts do not indicate that Industrial Code § 23–5.1(e), which contains provisions regulating scaffold planking, was violated. Instead, claim CPS and Tishman, there is no indication that the subject plank did not comply with Industrial Code § 23–5.1(e). For these reasons, CPS and Tishman conclude that this court should deny the instant motion.
Summary judgment is a drastic remedy that deprives a litigant of his or her day in court and should thus only be employed when there is no doubt as to the absence of triable issues of material fact (Kolivas v. Kirchoff, 14 AD3d 493 [2005];see also Andre v. Pomeroy, 35 N.Y.2d 361, 364 [1974] ). However, a motion for summary judgment will be granted if, upon all the papers and proof submitted, the cause of action or defense is established sufficiently to warrant directing judgment in favor of any party as a matter of law (CPLR 3212[b]; Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 967 [1988];Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980] ), and the party opposing the motion for summary judgment fails to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986], citing Zuckerman, 49 N.Y.2d at 562).
The proponents of a motion for summary judgment must first demonstrate entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact (Alvarez, 68 N.Y.2d at 324;Zuckerman, 49 N.Y.2d at 562;see also Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985];Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 404 [1957] ). The motion should be granted only when it is clear that no material and triable issue of fact is presented (Di Menna & Sons v. City of New York, 301 N.Y. 118 [1950] ). If the existence of an...
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