Castelo-Branco v. City of N.Y.
| Decision Date | 29 February 2016 |
| Docket Number | No. 150021/14.,150021/14. |
| Citation | 36 N.Y.S.3d 46 (Table) |
| Parties | Pompeu CASTELO–BRANCO, Plaintiff, v. The CITY OF NEW YORK and The New York City Department of Transportation, Defendants. |
| Court | New York Supreme Court |
The following papers numbered 1 to 4 were fully submitted on the 16th day of December, 2015:
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Upon the foregoing papers, the motion for summary judgment by defendants, the City of New York and the New York City Department of Transportation (hereinafter, collectively, the “City”) (No. 3860–002), and the cross motion by plaintiff, Pompeu Catelo–Branco, for partial summary judgment (No. 4315–003), are decided as follows.This matter arises out of a construction site accident which occurred on March 12, 2013, on Egbert Avenue, between Jewett Avenue and Llewellyn Place on Staten Island. Plaintiff, a laborer performing emergency sewer repairs for his non-party employer, Perfetto Contracting Co., Inc. (hereinafter “Perfetto”) claims to have sustained extensive injuries to his wrist when an excavation bucket struck his left hand while serving as the crew's “timber man”.1 Specifically, plaintiff claims that at the time of the accident, he was standing at grade level and holding a wood upright with his left hand—also described as “holding the trench”—to indicate to the excavator operator that the area behind the wood upright could be backfilled. Insofar as it appears, the bucket of the excavator struck plaintiff's left arm during the backfilling process.
Plaintiff instituted this action against the municipal defendants alleging, inter alia, common-law negligence and violations of Labor Law §§ 200 and 241(6).
It appears undisputed that plaintiff's customary work was that of a “pitman”, the duties of which he described as standing “next to the [excavating] machine” and signaling to the operator, while acting in conjunction with the other pitman as a “second set of eyes” (see Plaintiff's November 19, 2014 EBT; Defendants' Exhibit G, p 19, ll 14–16; p 63, ll 14–20). According to plaintiff, on the date of the accident it had been raining continuously, and a number of his co-workers did not return to the construction site after lunch. As a result, when the original “timber man” failed to return, plaintiff, who had been working as the second “pitman”, assumed the timber man[ s] place ... so that the [excavator] operator could [continue] work[ing]” (id., p. 56, ll 15–19). Shortly after the lunch break, while plaintiff's fellow-employee, Santos, was acting as the sole pitman, the bucket of the excavator “crashed against the wood ... in [plaintiff's] left hand” (id., p. 75, ll 8–20), resulting in the extensive injuries alleged2 .
The City's “Assistant Civil Engineer”, Godwin Kwami, who was purportedly present at the job site on a daily basis, apparently did not witness the accident because he had left the site in order to “run an errand” (see April 14, 2015 EBT of Godwin Kwami; Defendants' Exhibit H, p 11, ll 14–17).
In moving for summary judgment dismissing plaintiff's causes of action for (1) common-law negligence and the alleged violation of Labor Law § 200, the City maintains that it did not direct, supervise, instruct or control plaintiff's work, nor did it have the authority to do so, and (2) the alleged violation of the provisions of the New York State Industrial Code upon which plaintiff relies to sustain his action under Labor Law § 241(6) (), are either inapplicable, insufficiently specific, and/or not causally related to plaintiff's accident.
In support of its motion, the City attaches, inter alia, the October 19, 2015 affidavit of its engineering expert, Jeffrey J. Schwalje, P.E., (see Defendants' Exhibit J), who opines that (1) the subject job site and trench were safe for the work of an excavation crew, (2) a three member excavation crew was a reasonable and safe number of people for the completion of this undertaking, (3) plaintiff, as a member of the excavating crew, was authorized pursuant to New York State Industrial Code § 12 NYCRR 23–9.5(c)to be within range of the excavator's bucket, and (4) plaintiff received instructions only from his foreman, and was not in any way subject to the direction of the City's Engineer.
Plaintiff opposes the motion on the ground that factual questions preclude an award of summary judgment3 , and cross-moves for partial judgment on the question of liability under Labor Law § 241(6) due to the City's failure to comply with that provision of the Industrial Code set forth in 12 NYCRR § 23–4.2(k). As is relevant, that section provides that: “[p]ersons shall not be suffered or permitted to work in any area where they may be struck or endangered by any excavation equipment or by any material being dislodged by or falling from such equipment.” In support of plaintiff's argument for imposing strict liability against the City, plaintiff submits, inter alia, the November 25, 2015 affidavit of his expert, Robert J. O'Connor, P.E., (see Plaintiff's Exhibit A), who opines, in effect, that plaintiff's injury resulted from his being forced to multitask. In this regard, Mr. O'Connor concludes that “in consideration of the authority possessed by the [City's Resident Engineer], the lack of an adequate crew to perform the excavation work4 , and the lack of a competent person to monitor the conditions of the trench more frequently as a result of the rain on the day in question [, resulted in] improper and unsafe means and methods [being] utilized in the excavation,” which caused the accident. Accordingly, plaintiff's expert further opined that “the City failed in its duty to properly exercise its authority to supervise the manner in which the work was being performed” (id., para 30).
In opposition to the cross motion, the City argues, inter alia, that the cross motion is untimely.
“[Inasmuch as] a summary judgment motion may resolve the entire case, obviously the timing of the motion is significant” (Brill v. City of New York, 2 N.Y.3d 648, 651, 781 N.Y.S.2d 261, 814 N.E.2d 431 ). Accordingly, “CPLR 3212(a) [] provides that the court may set a date after which no [dispositive] motion may be made', and [i]f no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown' “ (Fofana v. 41 W. 34th St., LLC, 71 A.D.3d 445, 447–448, 897 N.Y.S.2d 46 ; see Perini Corp. v. City of New York [Department of Envtl Protection ], 16 A.D.3d 37, 39, 789 N.Y.S.2d 29 ). The need for strict adherence to this rule of procedure has been consistently reiterated by the Court of Appeals, which stated in Miceli v. State Farm Mut. Auto. Ins. Co., (3 N.Y.3d 725, 726, 786 N.Y.S.2d 379, 819 N.E.2d 995 ), “statutory time frames—like court-ordered time frames—are not options, they are requirements to be taken seriously by the parties.” Nevertheless, an exception has been recognized in those cases where an untimely summary judgment motion or cross motion seeks relief “on the same issues as were raised in [a] timely motion” (Conkin v. Triborough Bridge & Tunnel Auth., 49 A.D.3d 320, 321, 855 N.Y.S.2d 54 ). In that event, the untimely motion will be considered on the merits (id. ). As is applicable herein, the Rules of the Thirteenth Judicial District require that all dispositive motions be made within 60 days of the filing of the Note of Issue.
In this case, plaintiff filed his Note of Issue on August 24, 2015. The City moved for summary judgment 59 days later, on or about October 22, 2015, but plaintiff's “cross motion” was not served until 90 days later, on November 22, 2015. However, since the City's timely motion for summary judgment was still pending on the date the cross motion was served, and because both motions were made upon substantially similar grounds, i.e., the extent, if any, of the City's liability at common law and under Labor Law §§ 200, 241(6), both the motion and cross motion are properly before the Court for a determination on the merits (see e.g., Giambona v. Hines, 104 A.D.3d 807, 870, 961 N.Y.S.2d 519 ; Grando v. Petroy, 39 A.D.3d 590, 592, 833 N.Y.S.2d 615 ).
Turning to those merits, it is the determination of this Court that the City's motion for summary judgment be granted to the extent of dismissing the complaint with respect to plaintiff's causes of action for common-law negligence and/or the alleged violation of Labor Law § 200, as well as so much of his cause of action under Labor Law § 241(6) as is predicated upon the alleged violation of Industrial Code §§ 23–9.2(b)(1), 9.5(a), 9.5(c) and 4.2(a). The balance of the City's summary judgment motion should be denied.
As the Court of Appeals has often stated, ...
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