Dematteo v. The N.Y.C. Dep't of Educ.

• Court: New York Supreme Court
• Writing for the Court: Hon. Consuelo Mallafre Melendez, J.S.C.
• Citation: Dematteo v. The N.Y.C. Dep't of Educ., 2022 NY Slip Op 30920(U), Index 517296/17 (N.Y. Sup. Ct. Mar 17, 2022)
• Decision Date: 17 March 2022
• Docket Number: Index 517296/17
• Parties: Gerard Dematteo and Dawn Dematteo, Plaintiffs, v. The New York City Department of Education and The City of New York, Defendants.

2022 NY Slip Op 30920(U)

Gerard Dematteo and Dawn Dematteo, Plaintiffs, v. The New York City Department of Education and The City of New York, Defendants.

Index No. 517296/17

Supreme Court, Kings County

March 17, 2022

Unpublished Opinion

PRESENT: HON. CONSUELO MALLAFRE MELENDEZ, Justice.

Hon Consuelo Mallafre Melendez, J.S.C.

The following e-filed papers read herein: NYSCEF Doc Nos.

Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) 38-39 . Opposing Affidavits (Affirmations) 57 . Reply Affidavits (Affirmations) 59 .

Upon the foregoing papers, plaintiffs Gerard Dematteo and Dawn Dematteo move (in motion sequence [mot seq.] three) for an order granting them partial summary judgment with respect to liability on their Labor Law §§ 240 (1) and 241 (6) causes of action.

The motion is granted with respect to the Labor Law § 240 (1) cause of action and denied with respect to the Labor Law § 241 (6) cause of action.

Plaintiffs have pleaded causes of action premised on common-law negligence and violations of Labor Law §§ 200, 240 (1) and 241 (6) based on injuries plaintiff Gerard Dematteo^[1] suffered on July 27, 2016, when he fell from a scaffold to the floor while painting the wall of an auditorium located in P.S. 101. P.S. 101 is a public school owned by defendant City of New York (City) and operated by defendant New York City Department of Education (DOE) (see e.g. Education Law § 2554 [4], [13] [a] [13] [b]; NY City Charter, ch 20, § 521 [a]; Bleiberg v City of New York, 43 A.D.3d 969, 971 [2d Dept 2007]).^[2] Non-party Nicholas Schiavo (Schiavo), a DOE custodial engineer who worked at P.S. 101, hired plaintiff as a "fireman."^[3] Plaintiffs duties as fireman included maintaining P.S. 101's boilers and general handyperson work at the school. Schiavo directed plaintiff to perform the sanding/painting work in the school's auditorium, which involved repainting the entire auditorium as part of the school's summer renovation.

According to plaintiff's deposition testimony, his painting work on the date of the accident required him to use the school's scaffold. The scaffold was a metal pipe "Bakers" scaffold that had a wheel at the base of each of its four legs. With the legs fully extended and the additional extension added, the scaffold platform stood approximately 15 feet above the floor. According to Schiavo's deposition testimony, the scaffold also had bars or railings on three sides. While plaintiff had never been afraid to use the scaffold, he felt it was too shaky, and had complained about how shaky it was in the past.

In his 50-h hearing testimony, plaintiff testified that he "more than likely" or "probably" checked to see that the wheels of the scaffold were locked before he climbed up to perform his work immediately before the accident. At this deposition, plaintiff testified that he "did check the brakes." Plaintiff then proceeded to climb up onto the scaffold platform using a ladder that he had placed next to the scaffold and started to paint. At both his 50-h hearing and deposition, plaintiff testified that the scaffold buckled, and that the next thing he recalls is waking up in the hospital. Plaintiff Dawn Dematteo, plaintiff's wife, who worked in P.S. 101 as a teacher, arrived in the auditorium a few minutes after the accident and observed that the scaffold had fallen to the floor and appeared to be broken. At that time, plaintiff was sitting in one of the seats in the auditorium and his face was black and blue and covered in blood. Plaintiff, however, did not respond to Dawn Dematteo when she asked him questions. Photographs taken after the accident show the fallen scaffold lying partly on the floor and partly over the row of the auditorium seats, with the scaffold platform detached from the scaffold. The photographs also show paint on the floor as well as blood in the area where plaintiff had apparently fallen.^[4] Turning first to plaintiff's Labor Law § 240 (1) cause of action, Labor Law § 240 (1) imposes a nondelegable duty upon owners, general contractors, and their agents to provide scaffolding which is "so constructed, placed and operated as to give proper protection" to employees using it. To make a prima facie showing of liability under Labor Law § 240 (1), a plaintiff must establish that the statute was violated and that the violation was a proximate cause of his or her injuries (see Debennedetto v Chetrit, 190 A.D.3d 933, 936 [2d Dept 2021]; Cruz v Roman Catholic Church of St. Gerard Magella, 174 A.D.3d 782, 783 [2d Dept 2019]). The burden then shifts to the defendant to raise a triable issue of fact (see Bermejo v New York City Health & Hosps. Corp., 119 A.D.3d 500, 502 [2014], lv dismissed 24 N.Y.3d 1096 [2015]). A plaintiff's comparative negligence is not a defense to a cause of action under Labor Law § 240 (1) (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 286 [2003]; Rapalo v MJRB Kings Highway Realty, LLC, 163 A.D.3d 1023, 1024 [2d Dept 2018]). However, where a plaintiff's actions are the sole proximate cause of his or her injuries, liability under Labor Law § 240 (1) does not attach (see Robinson v East Med. Ctr., LP, 6 N.Y.3d 550, 554 [2006]; Rapalo, 163 A.D.3d at 1024).

Here, there is no dispute that the City, as owner, and DOE, as the entity that contracted for plaintiff to perform work, may be held liable under Labor Law § 240 (1) (see Gordan v Eastern Ry. Supply, 82 N.Y.2d 555, 559-560 [1993]; see also McCarthy v Turner Constr., Inc., 17 N.Y.3d 369, 374 [2011]; Gomez v 670 Merrick Rd. Realty Corp., 189 A.D.3d 1187, 1190 [2d Dept 2020]), that plaintiff's painting work is work that is covered under section 240 (1) (see Artoglou v Gene Scappy Realty Corp., 57 A.D.3d 460, 461 [2d Dept 2008]; cf. Mejia v Cohn, 188 A.D.3d 1035, 1037 [2d Dept 2020]), and that plaintiff was working at an elevation for purposes of section 240 (1) (see Ortiz v Varsity Holdings, LLC, 18 N.Y.3d 335, 339-340 [2011]; Myiow v City of New York, 143 A.D.3d 433, 436 [1st Dept 2016]; Henry v Eleventh Ave., L.P., 87 A.D.3d 523, 524 [2d Dept 2011]). Additionally, through plaintiff's testimony that he felt the scaffold platform buckle and the photographs and testimony of Dawn Dematteo and Schiavo that the scaffold was lying on the auditorium floor and seats after the accident, plaintiffs have demonstrated, prima facie, that the statute was violated by the movement and/or collapse of the scaffold and that this violation was a proximate cause of plaintiff's injuries (see Hernandez v 767 Fifth Partners, LLC, 199 A.D.3d 484, 485 [1st Dept 2021]; Debennedetto, 190 A.D.3d at 936; Cruz, 174 A.D.3d at 783; Caban v Plaza Constr. Corp., 153 A.D.3d 488, 489-490 [2d Dept 2017]; Strojek v 33 East 70^th St. Corp., 128 A.D.3d 490, 491 [1st Dept 2015]).

Contrary to defendants' contentions, the fact that the plaintiff may have been the sole witness to the accident does not preclude an award of summary judgment in his favor (see e.g. Klein v City of New York, 89 N.Y.2d 833, 834-835 [1996]; Cardenas v 111-127 Cabrini Apts. Corp., 145 A.D.3d 955, 957 [2d Dept 2016]; Melchor v Singh, 90 A.D.3d 866, 869 [2d Dept 2011]). Denying summary judgment in such circumstances is only appropriate where the defendant raises a bona fide issue as to how the accident happened or with respect to plaintiff's credibility (see Klein, 89 N.Y.2d 833, 835 [1996]; Alverez v 2455 8 Ave., LLC, __ A.D.3d __, 2022 NY Slip Op 00837 [2d Dept 2022]; King v Villette, 155 A.D.3d 619, 622 [2d Dept 2017]; Albino v 221-223 W. 82 Owners Corp., 142 A.D.3d 799, 800-801 [1st Dept 2016]; Melchor, 90 A.D.3d at 869).

Here, defendants have failed to point to any evidence that would warrant denying plaintiff's motion. Although the photographs may be insufficient to demonstrate whether the scaffold actually buckled or collapsed, the photographs unequivocally prove that the scaffold fell to the ground - which fall likewise demonstrates, prima facie, that the scaffold failed to perform its proper function (see Wolf v Ledcor Constr., Inc., 175 A.D.3d 927, 929 [4th Dept 2019]; Strojek, 128 A.D.3d at 491). Similarly, the fact that plaintiff's 50-h hearing testimony may leave open the possibility that plaintiff failed to lock the wheels of the scaffold does not raise a bona fide issue regarding the happening of the accident. In light of the fall or collapse of the scaffold, the failure to lock the wheels would, at best, constitute comparative fault, rather than the sole proximate cause of the accident (see Ordonez v One Block, LLC, 191 A.D.3d 412, 413 [1st Dept 2021]; Celaz v Cornell, 144 A.D.3d 590, 590 [1st Dept 2016]; see also Cruz, 174 A.D.3d at 782; Bermejo, 119 A.D.3d at 502). Finally, contrary to defendants' contention, an affidavit from an engineer or other expert was not necessary for plaintiff to make out his prima facie showing in view of the record before the court (see McCallister v 200 Park, L.P., 92 A.D.3d 927, 928-929 [2d Dept 2012]).

Defendants in opposition, only submitted a certified copy of the "Prehospital Care Report" in which one of the EMTs who transported plaintiff to the hospital noted that "PT STATED THAT HE GOT DIZZY AND FELL OFF A SCAFFOLDING ABOUT 10 FT HIGH." Plaintiff's statement to the EMTs may be considered as a party admission (see Pina Arthur Clinton Hous. Dev. Fund Corp., 188 A.D.3d 614, 614-615 [1st Dept 2020]; Robles v Polytemp, Inc., 127 A.D.3d 1052, 1054 [2d Dept 2015]; Goodrich v Watermill Townhouses, Inc., 169 Misc.2d 314, 318-319 [Sup Ct, Ulster County 1996]; see also Grieve v MCRT Northeast Constr., LLC, 197 A.D.3d 623, 625 [2d Dept 2021]). However, in view of the indisputable evidence that the scaffold itself fell, the fact that plaintiff may have initially begun to fall because he was dizzy...