Capuano v. Tishman Constr. Corp.
| Decision Date | 15 September 2011 |
| Docket Number | No. 302194/09.,302194/09. |
| Citation | 37 Misc.3d 1206,961 N.Y.S.2d 357,2011 N.Y. Slip Op. 52530 |
| Parties | Philip CAPUANO and Danielle Capuano, Plaintiffs, v. TISHMAN CONSTRUCTION CORPORATION, Tishman Construction Corporation of New York, Albert Einstein College of Medicine of Yeshiva University, Yeshiva University and Montefiore Medical Center, Defendants. |
| Court | New York Supreme Court |
OPINION TEXT STARTS HERE
Michael J. Regan, Esq., Duffy & Duffy, Uniondale, for the Plaintiff.
Lawrence Getzler, Esq., Molod Spitz & DeSantis, P.C., New York, for the Defendants.
In an action for damages for personal injuries arising from an alleged construction related accident, plaintiffs Philip Capuano and Danielle Capuano (collectively referred to as “Plaintiffs”), move for partial summary judgment against defendants Tishman Construction Corporation, Tishman Construction Corporation of New York, Albert Einstein College of Medicine of Yeshiva University, Yeshiva University and Montefiore Medical Center (collectively referred to as “Defendants”) on their claims made under Labor Law § 241(6). Defendants oppose.
On February 26, 2007, plaintiff Philip Capuano (individually referred to as “Plaintiff”), a carpenter, was assigned to work on the fifth floor of a job site where he was directed to unload and install sheets of “abuse board”, a heavy-duty version of sheet rock. Defendants collectively were the construction manager and owners of the job site at issue. Plaintiff was working on the fifth floor in a 30' by 30' laboratory with no windows. Plaintiff had unloaded 10 sheets of abuse board, each 4' by 10', weighing 90 to 100 pounds. He picked up one of the boards and was carrying it to be installed when he tripped on a piece of discarded sprinkler pipe. Plaintiff described the pipe as “a 12 inch to 18 inch piece of 1 inch to 1 1/4 inch sprinkler pipe”. Plaintiff testified that none of the interior temporary lights were functioning, and the nearest lights were 20 feet behind him. He submits an affidavit in further support of this motion, where he states the little natural light entered his work area, and the lack of adequate lighting prevented him from seeing the floor clearly enough.
Defendant's lead supervisor on the job site was Carla Sciara. Ms. Sciara testified that defendant Tishman was responsible for picking up debris left behind by subcontractors, and the collection process would occur every day. She confirmed that a subcontractor, Sirina Fire Protection, had been working in the area of the incident cutting in sprinkler heads. Sirina would have been using pipe that fit the description of what allegedly caused Plaintiff's accident.
Plaintiff now moves for summary judgment on his claims under Labor Law § 241(6).
Plaintiff's engineering expert, Stanley H. Fein, opined that Tishman's failure to maintain Plaintiff's work space free from debris constituted a violation of § 23–1.7(e)(2) of the industrial code. He further opined that failure to provide adequate lighting constituted a violation of § 23–1.30 of the Industrial Code, which proximately caused the accident.
In opposition. Defendants argue that no one witnessed plaintiff's accident. The last time he walked through the area where the accident occurred was two days prior, and he did not observe debris on the floor. Prior to the accident, he stated that he never observed problems with the lighting conditions. Plaintiff's stated that he traversed the area where his accident occurred two times before the accident, and did not have any trouble seeing the area at that time. He did not tell anyone about the accident until the next day. Defendants argue that there are factual issues as to whether they were responsible for cleaning the subject area of debris or tools.
Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986). There is no requirement that the proof for said motion be submitted in affidavit form, rather, the requirement is that the evidence proffered be in admissible form. Muniz v. Bacchus, 282 A.D.2d 387 (1st Dept.2001). Accordingly, affirmations from attorneys having no personal knowledge of the facts are not evidence and offer nothing more than hearsay. Reuben Israelson v. Sidney Rubin, 20 A.D.2d 668 (2nd Dept.1964); Erin Federico v. City of Mechanicville, 141 A.D.2d 1002 (3rd Dept.1988).
Once a movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact. Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. Knepka v. Tallman, 278 A.D.2d 811 (4th Dept.2000).
Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact. Ro[illegible text]uba Extruders v. Ceppos. 46 N.Y.2d 223 (1978). When the existence of an issue of fact is even debatable, summary judgment should be denied. Stone v. Goodson, 8 N.Y.2d 8 (1960).
Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon owners and contractors “to provide reasonable and adequate protection and safety” to persons employed in. or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed. Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 501–502 (1993). This section of labor law imposes liability on general contractors and owners for the negligence of a subcontractor, even in the absence of control or supervision of the worksite. Rizzuto v. LA Wenger Constr. Co., 91 N.Y.2d 343 (1998). On a Labor Law § 241(6) claim, prima facie entitlement to summary judgment is established when a plaintiff demonstrates that a defendant has violated a rule or regulation promulgated by the Commissioner of Labor, which mandates compliance with concrete specifications. Dipalma v. MT[illegible text], 20 Misc.3d 1128(A) (N.Y. Sup.Ct., Bx. Cty.2008). citing ICF Kaiser Enfineers Corp v. Charles Shu[illegible text]ump & Sons Co., 227 A.D.2d 959 (4th Dept.1996). Plaintiff must also establish that any breach of the labor law was the proximate cause of the injuries alleged. Id., citing Kane v. Peter Coundorous, 293 A.D.2d 309 (1st Dept.2002).
To the extent that a plaintiff asserts a viable claim under this section, the plaintiff need not show that the defendant exercised supervision or control over the work site in order to establish a right of recovery, but must demonstrate that his injuries were proximately caused by a violation of an applicable Industrial Code regulation. Penta v. Related Cos., L.P., 286 A.D.2d 674 (2d Dep't 2001). The regulation(s) relied on must be “concrete specifications” as opposed to general safety standards. Ross v. Curtis–Palmer Hydro Electric, et al., 81 N.Y.2d 494 (1993). The interpretation of Industrial Code is a question of law for the court to decide. See, e.g., Penta supra.
Violation of a section of the Industrial Code does not result in absolute liability but is merely some evidence of negligence. Ross, supra. Zimmer, supra. Moreover, where such a violation is established, it does not conclusively establish a defendant's liability as a matter of law, but constitutes some evidence of negligence and reserves the issue of whether the equipment, operation or conduct at the work site was reasonable and adequate under the particular circumstances. Seaman v. Bellmore Fire Dist., 59 AD3d 515 (2nd Dept.2009), citing Rizzuto v. L.A. Wenger Contr. Co., supra.; see Long v. Forest–Fehlhaber, 55 N.Y.2d 154, 160, (1982). Once it has been alleged that a concrete specification of the rules applicable to the facts of the case has been violated, it is for the jury to decide whether the negligence of some party to, or participant in the construction project caused plaintiff's injury. Rizzuto v. LA Wenger Contracting Co., Inc., supra. This includes an inquiry into whether plaintiff himself was comparatively negligent, and whether safety measures employed were “reasonable and adequate” under the circumstances. See Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513 (1985)(because violation of administrative rules cannot rise to the level of negligence as a matter of law, contributory and comparative negligence are defenses to an action based on such a violation). Where a plaintiff establishes, however, both a violation and causation, summary judgment on its Labor Law § 241(6) claim is appropriate where no issue of material fact is raised by the defendant. See e.g. McGarry v. CVTP [illegible text] LLC, 55 AD3d 441 (1st Dept.2008).
In this matter. Plaintiff alleges violations of 12 NYCRR 23–1.7(e)9 2) , and 12 NYCRR 23–1.30 (). Both of these specifications have been held to be specifically “concrete” so that Plaintiff may rely on them in a lawsuit. See O'Hare v. City of New York, 280 A.D.2d 458 (2nd Dept.2001)(as to 23–1.7[e][2] ), see also Hernander v. Columbus...
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