Bradley v. Hwa 1290 III LLC

Decision Date28 February 2017
Docket NumberIndex No. 157576/2012
Citation2017 NY Slip Op 30596 (U)
PartiesMARIE BRADLEY, as Administratrix for the Estate of EDWARD BRADLEY. (Deceased), and MARIE BRADLEY, Individually, Plaintiffs v. HWA 1290 III LLC, HWA 1290 IV LLC, HWA 1290 V LLC, and UNITED ELEVATOR CONSULTANTS SERVICE, INC., Defendants
CourtNew York Supreme Court

2017 NY Slip Op 30596(U)

MARIE BRADLEY, as Administratrix for the Estate of EDWARD BRADLEY.
(Deceased), and MARIE BRADLEY, Individually, Plaintiffs
v.
HWA 1290 III LLC, HWA 1290 IV LLC,
HWA 1290 V LLC, and UNITED ELEVATOR CONSULTANTS SERVICE, INC., Defendants

Index No. 157576/2012

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46

RECEIVED: March 29, 2017
February 28, 2017


NYSCEF DOC. NO. 149

DECISION AND ORDER

LUCY BILLINGS, J.S.C.:

I. BACKGROUND

Plaintiffs sue defendants, claiming their negligence and violations of New York Labor Law §§ 200 and 241(6), to recover damages for deceased Edward Bradley's personal injury and wrongful death and his widow plaintiff Marie Bradley's lost services sustained March 28, 2012. On that date the decedent, an employee of nonparty Schindler Elevator Corporation, was working in an elevator machine room at 1290 Avenue of the Americas, New York County, premises owned by defendants HWA 1290 III LLC, HWA 1290 IV LLC, and HWA 1290 V LLC, which contracted with defendant United Elevator Consultants Service, Inc., to modernize the premises' elevator system. The decedent, an elevator mechanic, was found dead from electrocution in the elevator machine room, also referred to as the motor room, in front of an open electrical cabinet, which housed an elevator control panel.

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Defendants move for summary judgment dismissing the complaint. C.P.L.R. § 3212(b). For the reasons explained below, the court grants defendants' motion in part. C.P.L.R. § 3212(b) and (e).

II. APPLICABLE STANDARDS

A. SUMMARY JUDGMENT

To obtain summary judgment, defendants must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact. C.P.L.R. § 3212(b); Friends of Thayer Lake LLC v. Brown, 27 N.Y.3d 1039, 1043 (2016); Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 26 N.Y.3d 40, 49 (2015); Voss v. Netherlands Ins. Co., 22 N.Y.3d 728, 734 (2014); Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503 (2012). Only if defendants satisfy this standard, does the burden shift to plaintiffs to rebut that prima facie showing, by producing evidence, in admissible form, sufficient to require a trial of material factual issues. De Lourdes Torres v. Jones, 26 N.Y.3d 742, 763 (2016); Nomura Asset Capital Corp. v. Cadwalader Wickersham & Taft LLP, 26 N.Y.3d at 49; Morales v. D & A Food Serv., 10 N.Y.3d 911, 913 (2008); Hymah v. Queens County Bancorp, Inc., 3 N.Y.3d 743, 744 (2004). In evaluating the evidence for purposes of defendants' motion, the court construes the evidence in the light most favorable to plaintiffs. De Lourdes Torres v. Jones, 26 N.Y.3d at 763; Vega v. Restani Constr. Corp., 18 N.Y.3d at 503; Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 37 (2004). If defendants fail to meet their initial burden, the

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court must deny them summary judgment despite any insufficiency in plaintiffs' opposition. Voss v. Netherlands Ins. Co., 22 N.Y.3d at 734; Vega v. Restani Constr. Corp., 18 N.Y.3d at 503; Smalls v. AJI Indus., Inc., 10 N.Y.3d 733, 735 (2008); JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y.3d 373, 384 (2005).

B. PLAINTIFFS' RELAXED BURDEN OF PROOF IN AN ACTION FOR WRONGFUL DEATH

Plaintiffs maintain that the death of Edward Bradley, preventing him from describing the occurrence, entitles them to a relaxed burden of proof. Wingerter v. State of New York, 58 N.Y.2d 848, 850 (1983); Noseworthy v. City of New York, 298 N.Y. 76, 80 (1948); Melendez v. Parkchester Med. Servs., P.C., 76 A.D.3d 927, 928 (1st Dep't 2010); Black v. Loomis, 236 A.D.2d 338, 338 (1st Dep't 1997). See Williams v. Hooper, 82 A.D.3d 448, 449 (1st Dep't 2011); Lynn v. Lynn, 216 A.D.2d 194, 194 (1st Dep't 1995). Application of this doctrine requires plaintiffs to show facts from which defendants' negligence may be inferred, Rugova v. Davis, 112 A.D.3d 404, 405 (1st Dep't 2013); Melendez v. Parkchester Med. Servs., P.C., 76 A.D.3d at 928; Black v. Loomis, 236 A.D.2d at 338, which at this stage plaintiffs have failed to show. Therefore they are not entitled to the lesser burden of proof in the evaluation of their evidence rebutting defendants' motion. Rugova v. Davis, 112 A.D.3d at 405; Melendez v. Parkchester Med. Servs., P.C., 76 A.D.3d at 928; Lynn v. Lynn, 216 A.D.2d at 196; Santos v. City of New York, 135 A.D.2d 426, 431 (1st Dep't 1987). The doctrine is also inapplicable at this stage because the undisputed evidence in the current record shows

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that defendants' knowledge of the cause of Edward Bradley's unwitnessed death is no greater than plaintiffs' knowledge of the occurrence. Walsh v. Murphy, 267 A.D.2d 172, 172 (1st Dep't 1999); Lynn v. Lynn, 216 A.D.2d at 195.

III. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

A. VIOLATION LABOR LAW § 241(6)

Labor Law § 241(6) applies to a worker engaged in construction, demolition, or excavation. See Esposito v. New York City Indus. Dev. Agency, 1 N.Y.3d 526, 528 (2003); Nagel v. D & R Realty Corp., 99 N.Y.2d 98, 103 (2002); Garcia v. 225 E. 57th St. Owners, Inc., 96 A.D.3d 88, 91 (1st Dep't 2012); Mata v. Park Here Garage Corp., 71 A.D.3d 423, 424 (1st Dep't 2010). Concomitantly, 12 N.Y.C.R.R. § 23-1.13(b)(iii), requiring warnings about electrical hazards, and § 23-1.30, requiring adequate lighting, that plaintiffs claim defendants violated to support their violation of Labor Law § 241(6), like all the provisions of 12 N.Y.C.R.R. Part 23, protect construction, demolition, and excavation workers. Nostrom v. A.W. Chesterton Co., 15 N.Y.3d 502, 507 (2010); Peluso v. 69 Tiemann Owners Corp., 301 A.D.2d 360, 361 (1st Dep't 2003).

Construction work is defined as all:

work of the types performed in construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures, whether or not such work is performed in proximate relation to a specific building or other structure, and includes, by way of illustration and not by way of limitation, the work of hoisting, land clearing, earth moving, grading, excavating, trenching, pipe and conduit laying, road and bridge construction, concreting, cleaning of the exterior surfaces including windows of any building or other structure under

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construction, equipment installation and the structural installation of wood, metal, glass, plastic, masonry and other building materials in any form or for any purpose.

12 N.Y.C.R.R. § 23-1.4(b)(13); Nagel v. D & R Realty Corp., 99 N.Y.2d at 102-103. See Joblon v. Solow, 91 N.Y.2d 457, 466 (1998). The work specified in this regulation, however, still must be carried out in the context of construction, demolition, or excavation to fall under Labor Law § 241(6). Esposito v. New York City Indus. Dev. Agency, 1 N.Y.3d at 528; Nagel v. D & R Realty Corp., 99 N.Y.2d at 103; Bautista v. 165 W. End Ave. Assoc., L.P., 137 A.D.3d 714, 715 (1st Dep't 2016); Caban v. Maria Estela Houses I Assoc., L.P., 63 A.D.3d 639, 640 (1st Dep't 2009).

Although elevator modernization may be considered construction work to which Labor Law § 241(6) applies, see, e.g., Franco v. Jay Cee of N.Y. Corp., 36 A.D.3d 445, 446 (1st Dep't 2007); Nevins v. Essex Owners Corp., 276 A.D.2d 315, 317 (1st Dep't 2000), defendants present evidence establishing that the decedent was not engaged in the modernization project. John Soutar, a supervisor for Schindler Elevator, the decedent's employer, attests that the decedent was the resident elevator mechanic for 1290 Avenue of the Americas, where he was assigned to perform preventive maintenance, troubleshoot malfunctions, and undertake minor repairs. Building and security personnel advised the decedent of elevator malfunctions, which he handled as he saw fit. Schindler Elevator's modernization department was completely separate from its maintenance and repair department.

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The decedent bore no responsibilities for the modernization work.

Juan Melendez, a Schindler Elevator employee who worked as the decedent's helper, testified at his deposition that the decedent's job was to maintain and provide service to elevators. Melendez's testimony that he was removed as the decedent's helper and reassigned to the modernization project further illustrates that the decedent's work was unrelated to the modernization project.

This evidence is corroborated by the deposition testimony of Philip Garcia, the president of United Elevator Consultants, that an elevator mechanic's job was to maintain elevators, which included cleaning, greasing, and lubricating them; troubleshooting, which Garcia defined as fixing shutdowns; and making repairs and adjustments, which included work in the machine room. Through this combined evidence, defendants have met their initial burden of demonstrating that the decedent's work was unrelated to the modernization project. Barnes v. City of New York, 77 A.D.3d 481, 481 (1st Dep't 2010). See Bayo v. 626 Sutter Ave. Assoc., LLC, 106 A.D.3d 648, 649 (1st Dep't 2013).

If Edward Bradley was engaged in routine maintenance of elevators, Labor Law § 241(6) does not apply to his work. Moscoso v. Overlook Towers Corp., 121 A.D.3d 438, 438 (1st Dep't 2014). See Agli v. Turner Constr. Co., 246 A.D.2d 16, 24 (1st Dep't 1998). Although the evidence indicates an elevator brake fault that shut down an elevator in defendants' building March

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28, 2012, before Edward Bradley was found dead, no admissible evidence establishes that he was called to investigate or repair that malfunction or that he even was informed of it. Assuming nonetheless that the decedent's work with the elevator control panel was not routine, but constituted repair of a malfunction within the definition of construction work to which Labor Law § 241(6) would apply, see Esposito v. New York City Indus. Dev. Agency, 1 N.Y.3d at 528; Bautista v. 165 W. End Ave. Assoc., L.P., 137 A.D.3d at 715; Caban v. Maria Estela Houses I Assoc., L.P., 63 A.D.3d at 640; Cohen v. Columbia Univ. in City of N.Y., ...

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