Canfield v. Forman Jay LLC
| Decision Date | 14 January 2015 |
| Docket Number | No. 13512/12.,13512/12. |
| Citation | 7 N.Y.S.3d 240 (Table) |
| Parties | Scott CANFIELD and Caren Keller, Plaintiffs, v. FORMAN JAY LLC and Jon Goldstein, d/b/a Vinegar Hill Studios, Defendants. |
| Court | New York Supreme Court |
Brian J. Isaac, Esq., Pollack, Pollack, Isaac & DeCicco, New York.
Steven R. Montgomery, Esq., Rawle & Henderson, LLP, New York, Jon Goldstein d/b/a Vinegar Hill Studios, Brooklyn, attorney for defendant.
Recitation in accordance with CPLR 2219(a) of the papers considered on the motion of plaintiffs Scott Canfield and Caren Keller (hereafter, plaintiffs), served on April 3, 2014, under motion sequence number three, for an order granting them partial summary judgment on liability on the Labor Law §§ 240(1) and 241(6) claims of plaintiff Scott Canfield (hereafter, plaintiff):
Recitation in accordance with CPLR 2219(a) of the papers considered on the motion of Forman Jay LLC, served on April 28, 2014, under motion sequence number four, for summary judgment, pursuant to CPLR 3212, dismissing all of plaintiffs' claims:
New Year's Eve, was a motion picture released in December, 2011. It portrayed a panoply of characters hoping that this one night would change their lives forever—a workaholic secretary has a list of new year's resolutions to meet (Michelle Pfeiffer), a journalist dying of cancer wants to see the “ball” drop in Times Square one more time (Robert De Niro), and so forth. Four scenes of that motion picture were filmed on a set2 inside a warehouse at 51 Jay Street in the DUMBO section of Brooklyn, New York (hereafter, the building). Intended to reproduce the island of Bali, the movie set consisted of a tiki hut—a cabana-style structure with thatched roof—built on a raised platform (hereafter, the tiki hut). A mock stone retaining wall flanked the sides of the tiki hut as it was facing the camera. A water bridge in front of the tiki hut crossed a lagoon that was fed by small waterfalls. Plants and rocks finished the scenery of this interior movie set (hereafter, the tiki-spa set).
The tiki-spa set, once fully assembled, occupied some 7,000 square feet of the building's 22,000–square–foot ground floor. The framing of the tiki-spa set was performed by a team of carpenters who had built the deck before the roof of the tiki hut could be covered with thatch tiles. The tiki hut's roof rose about 18 to 20 feet up from the ground-floor level. The roof frame was three-sided, with slats that were spaced about every 14 to 16 inches. The placement of roof tiles, together with the finishing and painting of the movie set, was to be performed by teams of set dressers and scenic artists.
Plaintiff was one of the set dressers for the tiki-spa set. He was injured on February 8, 2011, his second day on the set, at the time when it was about 60–70% complete. On that day, as well as on the day before it, he was attaching 1' x 3' x 1½? thatch tiles to the tiki hut's roof. To be able to reach the roof, he and his coworker had built an unenclosed work platform by screwing a piece of plywood to a 4' x 6' pallet and by using two ratchet straps to secure the platform to the forks of a hi-lo forklift to be operated by his coworker. The platform with plaintiff and several boxes of thatch tiles on it was held and raised up to the tiki hut's roof by the forks of the forklift. As plaintiff was lying on the platform, he was attaching the tiles to the roof frame, while his coworker was positioning the forklift. To attach the tiles, plaintiff approached the roof frame from the outside, rather than by reaching in through the slats. In the course of his work in the afternoon of February 8, 2011, he fell off the platform, landing about ten feet on the concrete ground below. In his own words, he “lost [his] whole life” on a movie set of New Year's Eve.3
To work on this set, plaintiff, a member of Local 52 of the International Alliance of Theatrical Stage Employees, had been hired and supervised by his brother Philip Canfield (hereafter, the supervisor), who acted as the “leadman” or lead set dresser. New Line Productions, Inc. (hereafter, New Line) licensed the space for the tiki-spa set from the building owner, defendant Foreman Jay LLC (hereafter, the owner), pursuant to a Location Agreement, dated January 7, 2011, for a stated period of about two months, encompassing the date of the accident. New Line rented the forklift from the building tenant, the defendant Jon Goldstein, d/b/a Vinegar Hill Studios (hereafter, the tenant). New Line also entered into an Access Location Agreement, dated January 11, 2011, with the tenant designating the latter as the “doorman” who would open and close the building while the tiki-spa set was being constructed.
Plaintiff, and his wife suing derivatively, brought this action against the owner and the tenant asserting as to each of them claims under (1) Labor Law § 240(1), (2)Labor Law § 241(6) to the extent premised on the alleged violation of 23 NYCRR (hereafter, the Industrial Code) § 23–1.16 (), (3) Labor Law § 200/common-law negligence, and (4) a derivative claim for loss of consortium (see summons and verified complaint filed with the Kings County Clerk on June 29, 2012). The owner and the tenant joined issue (see owner's verified answer, dated Aug. 1, 2012, and tenant's verified answer, dated Nov. 26, 2012). After discovery was completed and a note of issue was filed on February 27, 2014, the instant motions were timely served.
Plaintiffs seek partial summary judgment on liability on (1) plaintiff's Labor Law § 240(1) claim and (2) on his Labor Law § 241(6) to the extent premised on the alleged violations of Industrial Code § 23–5.1(j)(1) () and § 23–1.15 (safety railing). The owner seeks summary judgment dismissing all of plaintiffs' claims against it.
In the course of the motion practice, plaintiffs conceded that the facts of this case do not support plaintiff's claim against the owner based on an alleged violation of Labor Law § 200 or under common-law negligence (see plaintiffs' affirmation in opposition, dated June 17, 2014, n 1). Plaintiffs further conceded that Industrial Code § 23–1.16 () is not relevant (id. at 29).
The Court construes plaintiffs' motion as seeking relief solely against the owner. Although plaintiffs' motion does not specify whether they seek relief against the owner only or against both the owner and the tenant, their papers focus exclusively on the issues that are relevant to the owner and avoid any discussion of the issues that are specific to the tenant.
The only issues before the Court are the merits of plaintiff's claims against the owner under (1) Labor Law § 240(1), and (2)Labor Law § 241(6) claim to the extent premised on the alleged violations of Industrial Code § 23–5.1(j)(1) () and § 23–1.15 (safety railing).
Labor Law § 240(1) provides, in relevant part, that:
“All ... owners and their agents ... in the erection ..., repairing, altering, [or] painting ... of a ... 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.”
Statutory liability arises when a property owner's breach of its statutory duty to provide safety measures proximately causes the worker's injury (see Albanese v. City of New York, 5 N.Y.3d 217, 219 [2005] ). If established, a property owner's failure to provide a safety device is a per se violation of the statute for which the owner is strictly liable (see Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 523–524 [1985], rearg. denied 65 N.Y.2d 1054 [1985] ).
Here, plaintiffs have made a prima facie showing of their entitlement to judgment as a matter of law on the issue of liability on so much of their complaint as alleged that the owner violated Labor Law § 240(1). Plaintiffs have submitted admissible deposition transcripts4 demonstrating that (1) plaintiff was working at an elevation; (2) the makeshift platform constituted a scaffold contemplated by § 240(1) ; and (3) he fell off the platform sustaining injuries. It is self-evident that plaintiff was not provided with (1) an adequate work platform (i.e., scaffolding), which is one of the protective devices enumerated in § 240(1) ; and/or (2) a safety harness and a lanyard, secured and tied off to an anchor point, which is another type of the protective device within the ambit of § 240(1) (see Tabickman v. Batchelder St. Condominiums By Bay, LLC, 52 A.D.3d 593, 595, 859 N.Y.S.2d 721 [2d Dept 2008] ; Dzieran v. 1800 Boston Rd., LLC, 25 A.D.3d 336, 337, 808 N.Y.S.2d 36 [1st Dept 2006] ).
The burden now shifts to the owner to come forward with sufficient evidence to raise a triable issue of fact (see Ernest v. Pleasantville Union Free School Dist., 28 A.D.3d 419, 811 N.Y.S.2d 573 [2d Dept 2006] ). Answering the question of whether the owner has met this burden is dependent on the resolution of the three issues listed here.
The first issue is whether the tiki hut was a “structure” within the meaning of § 240(1). The owner argues that it was not, noting that it was unsecured to the building floor and that it existed only for the duration of the movie...
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