Buono v. AvalonBay Cmtys., Inc.

• Decision Date: 06 January 2021
• Docket Number: 19 Civ. 5413 (LGS)
• Parties: STEPHEN BUONO, Plaintiff, v. AVALONBAY COMMUNITIES, INC., Defendant.
• Court: U.S. District Court — Southern District of New York

STEPHEN BUONO, Plaintiff, v. AVALONBAY COMMUNITIES, INC., Defendant.

19 Civ. 5413 (LGS)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

January 6, 2021

OPINION & ORDER

LORNA G. SCHOFIELD, District Judge:

Plaintiff Stephen Buono alleges that Defendant AvalonBay Communities, Inc. has violated New York Labor Law ("NYLL") sections 240(1), 241(6) and 200, and committed common law negligence. Defendant filed a motion for summary judgment, which for the reasons below, is granted in part and denied in part.

I. BACKGROUND¹

In December 2017, Defendant owned the premises located in Mamaroneck, New York (the "Property"). Renovations were being performed at the Property, and Defendant retained Applied Electrical to perform electrical work. Plaintiff was working for Applied Electrical at the time of the accident. Applied Electrical provided Plaintiff all the equipment he used and supervised his work. Defendant employed three onsite superintendents who managed the day-to-day coordination and scheduling of contractors.

On December 27, 2017, Plaintiff and his partner, a foreman, were running wires toconnect temporary heaters in the amenities apartments of the Property. Plaintiff first entered a room called the amenities space to install the temporary heaters. The wires for the heaters were connected to a single panel in this room, and Plaintiff's responsibility was to hook up the panel. The foreman then pulled the wires from this first room into a second room, and Plaintiff followed. In the middle of the second room was a six-foot A-frame ladder standing in an open position. The ladder was owned by a different contractor and had been used earlier by other workers. The foreman pulled the wire while walking about fifteen to twenty feet through the second room and was about to enter a third room when the wire swept past the ladder. The wire caught the bottom of the ladder, the ladder fell, and the top corner of the ladder struck Plaintiff's knee, causing Plaintiff to fall backward and hit his back and head. The accident occurred in the middle of the room, which was dark and had piled debris pushed to the side. Plaintiff did not see any workers return to the ladder before he left that day at six p.m.

II. STANDARD

In this diversity action, removed from state court, Plaintiff opposes Defendant's summary judgment motion relying on the New York state summary judgment standard. The federal summary judgment standard applies because it is procedural law. See Hanna v. Plumer, 380 U.S. 460, 465 (1965) (citation omitted) (A federal court sitting in diversity must apply state substantive law and federal procedural law.); accord Capobianco v. Stop & Shop Supermarket Co, No. 14 Civ. 6112, 2017 WL 1157173, at *2 (S.D.N.Y. Mar. 24, 2017) (applying the federal summary judgment standard in removed diversity action).

Summary judgment is appropriate where the record establishes that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A genuine issue of material fact exists if 'the evidence is such that areasonable jury could return a verdict for the nonmoving party.'" Nick's Garage, Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 113 (2d Cir. 2017) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When the movant properly supports its motion with evidentiary materials, the opposing party must establish a genuine issue of fact by "citing to particular parts of materials in the record." Fed. R. Civ. P. 56(c)(1)(A). "[A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Fed. Trade Comm'n v. Moses, 913 F.3d 297, 305 (2d Cir. 2019) (quotation marks omitted). "Only admissible evidence need be considered by the trial court in ruling on a motion for summary judgment." Porter v. Quarantillo, 722 F.3d 94, 97 (2d Cir. 2013); accord Starr Indem. & Liab. Co. v. Brightstar Corp., 388 F. Supp. 3d 304, 323 (S.D.N.Y. 2019).

III. DISCUSSION

Defendant argues that it is entitled to judgment as a matter of law. As explained below, Defendant's motion for summary judgment is granted as to all claims except the NYLL section 200 and common law negligence claims.

1. NYLL Section 240(1) Claim

Defendant moves for summary judgment on the section 240(1) claim. This statute states in relevant part that contractors and owners and their agents engaged "in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure" must provide "scaffolding, hoists, stays, ladders, [etc.] and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed." N.Y. Lab. Law § 240(1). The statute "impose[s] absolute liability on '[a]ll contractors and owners and their agents' for any breach of a statutory duty to provide safety measures that proximately cause injury." Albanese v. City of New York, 833 N.E.2d 1213, 1214 (N.Y. 2005); accord Lincho v. Nat'l R.R.Passenger Corp., 338 F. Supp. 3d 343, 351 (S.D.N.Y. 2018). "Although the statute is meant to be liberally construed to accomplish its intended purpose, absolute liability is contingent upon the existence of a hazard contemplated in section 240(1) and the failure to use, or the inadequacy of, a safety device of a kind enumerated therein." O'Brien v. Port Auth. of New York & New Jersey, 74 N.E.3d 307, 310 (N.Y. 2017) (quotation marks omitted). Defendant is granted summary judgment on this claim because, based on the undisputed evidence and drawing all inferences in favor of Plaintiff, no reasonable juror could find that Plaintiff's injuries arose from the type of risk covered by the statute.

The New York Court of Appeals has held that the scaffold law "evinces a clear legislative intent to provide 'exceptional protection' for workers against the 'special hazards' that arise when the work site either is elevated or is positioned below the levels where 'materials or load [are] hoisted or secured.'" Ross v. Curtis-Palmer Hydro-Elec. Co., 618 N.E.2d 82, 85 (N.Y. 1993) (quoting Rocovich v. Consol. Edison Co., 583 N.E.2d 932 (N.Y. 1991)); accord Harris v. City of New York, 923 N.Y.S.2d 2, 5 (1st Dep't 2011). More recently, the Court of Appeals held that courts have read the statute too narrowly. See Runner v. New York Stock Exch., Inc., 922 N.E.2d 865, 867 (2009) (explaining that "[t]he breadth of the statute's protection has . . . been construed to be less wide than its text would indicate."). Still, the protective reach of the statute is "limited to . . . specific gravity-related accidents [such] as . . . falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured." Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 959 N.E.2d 488, 492 (N.Y. 2011) (quotation marks omitted). Such hazards "do not encompass any and all perils that may be connected in some tangential way with the effects of gravity." Ross, 618 N.E.2d at 85 (emphasis in original); accord Simmons v. City of New York, 85 N.Y.S.3d 462, 465 (2d Dep't 2018). Rather, "liability may . . . beimposed under the statute only where the 'plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.'" O'Brien, 74 N.E.3d at 310 (emphasis added) (alteration in original) (quoting Nicometi v. Vineyards of Fredonia, LLC, 30 N.E.3d 154, 158 (N.Y. 2015)).

The undisputed evidence shows that Plaintiff was not injured as a result of a physically significant elevation differential. To constitute a "gravity-related risk" arising from a "physically significant elevation differential," the falling object need not be elevated. See Wilinski, 959 N.E.2d at 494. However, "[c]ourts must take into account the practical differences between the usual and ordinary dangers of a construction site," and the "extraordinary elevation risks" envisioned by the statute. See Ortiz v. Varsity Holdings, LLC, 960 N.E.2d 948, 950 (N.Y. 2011) (quotation marks omitted) (contrasting a prior holding that the risk of falling four to five feet from a flatbed trailer or similar surface is not covered by section 240(1), citing Toefer v. Long Is. R.R., 828 N.E.2d 614 (2005)). Relevant considerations include the amount of force generated by the falling object in light of the object's characteristics and manner of descent. See Wilinski, 959 N.E.2d at 494. For example, in Wilinski, the Court of Appeals held that injury from freestanding ten-foot tall pipes that fell after being struck by debris from demolition of a nearby wall constituted harm flowing directly from a risk arising from a physically significant elevation differential. See id. The pipes stood at the same level as the injured worker, but the elevation differential was not "de minimis." See id. The "amount of force the pipes were able to generate" was significant because of the four-inch diameter of the metal pipes, the ten-foot height of the pipes and the at-minimum four-foot fall prior to striking Plaintiff. See id. (citations and alterations omitted). Here, Plaintiff was injured by a six-foot A-frame ladder left open and unused. The ladder fell after being struck by wires pulled by Plaintiff's partner. Plaintifftestified that he was standing about two feet away when the top of the ladder hit Plaintiff's knee, causing Plaintiff to fall backward. Plaintiff testified that he believed the ladder was made of aluminum and plastic, and he was able to move the ladder off to the side after he fell. Plaintiff was injured by the operation of gravity, but the amount of force generated by the ladder's composition, height and descent cannot constitute a physically significant elevation differential or an "extraordinary elevation risk" encompassed by the statute. See, e.g., Rodriguez v. Margaret Tietz Ctr. for Nursing Care, Inc., 602 N.Y.S.2d 640, 642 (2d Dep't...