Diamond v. TF Cornerstone Inc.
| Decision Date | 04 August 2022 |
| Docket Number | Index Nos. 152626/2016,005,007 |
| Parties | SEAN DIAMOND, Plaintiff, v. TF CORNERSTONE INC., CARNEGIE HALL TOWER II, L.L.C., ABM INDUSTRIES, INC. D/B/A ABM JANITORIAL SERVICES NORTHEAST, INC., KLEAR ELECTRICAL CORP., UNITY BUILDING SECURITY, INC., Defendants. |
| Court | New York Supreme Court |
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 005) 98, 99, 100, 101, 102, 103, 104, 105, 106, 107 108, 109, 110, 111, 112, 113, 114, 115, 116, 119, 121, 151, 152, 153, 154, 184' 185, 186, 187, 188, 189, 190, 191, 192, 193, 209, 212, 213, 214, 310, 311, 312, 374 were read on this motion to/for JUDGMENT - SUMMARY
The following e-filed documents, listed by NYSCEF document number (Motion 007) 138, 139, 140, 141, 142143 144 145, 146, 147, 148, 149, 150, 194, 200, 201,202, 203, 204, 205, 206, 207, 208, 210, 211, 215' 216' 217, 218, 219, 220, 221, 222, 223, 224, 225, 226, 227, 228, 229, 230, 231, 232, 233, 234, 235, 236, 237, 238, 239, 240, 241, 242, 243, 244, 245, 246, 247, 248, 249, 250, 251, 252, 255, 256, 257, 258, 259' 26(/ 261, 262, 263, 264, 265, 266, 267, 268, 269, 270, 271, 272, 273, 274, 277, 278, 279, 280, 281, 282, 283, 284, 285, 286, 287, 288, 289, 290, 291.292, 293, 294, 295, 296, 297, 298, 299, 300, 301, 302, 303, 304' 305, 306, 307, 308, 309 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER
Plaintiff, Sean Diamond (plaintiff), commenced this action seeking damages for personal injuries and pursuant to Labor Law § 241(6) stemming from a November 15, 2015 fall on a stairway in Carnegie Hall Tower, located at 152 West 57th Street, New York, New York (premises). In motion sequence 005, co-defendant, Klear Electrical Corp. (Klear), now moves pursuant to CPLR 3212 for summary dismissal of the amended complaint and all cross claims with prejudice. Co-defendant, ABM Industries, Inc. d/b/a ABM Janitorial Services Northeast, Inc. (ABM) now cross-moves pursuant to CPLR 3212 for summary dismissal of the amended complaint and all cross claims, including those sounding in failure to procure insurance, indemnification, and contribution. In motion sequence 007, plaintiff now moves pursuant to CPLR 3212 for summary judgment on his claims under Labor Law § 241(6) and for negligence against co-defendants ABM, Klear, TF Cornerstone Inc. (TF Cornerstone), Carnegie Hail Tower II, LLC (Carnegie), and Unity Building Security, Inc. (Unity). TF and Carnegie now cross-move pursuant to CPLR 3212 for summary dismissal of plaintiff's claim under Labor Law § 241(6) and Unity cross-moves pursuant to CPLR 3212 for summary dismissal of the amended complaint. The motions are opposed. For the following reasons, the motions and cross-motions for summary dismissal of plaintiffs claims under Labor Law § 241(6) are granted, and the motions and cross-motions concerning plaintiffs claim for negligence are denied.
Plaintiff commenced this action for personal injuries resulting from a slip on a chipped or broken step. Specifically, plaintiff testified that he was injured when he slipped and fell on the fourth step from the bottom of the stairway located between the 60th and 61 st floors at the premises. TF Cornerstone managed the premises and Carnegie owned the premises. ABM provides janitorial and maintenance sendees at the premises. Klear is an electrical contractor hired to maintain the lighting in the public areas within the premises. Unity was contracted to provide fire safety and security personnel in the lobby area of the premises.
On the date of the incident, plaintiff was employed by non-party Otis Elevator Co. as an elevator mechanic assigned to repair the freight elevator located within the premises. Specifically, plaintiff was called to fix a problem with the door locks on the elevator, which resulted in the elevator shutting down intermittently. Plaintiff testified that his work consisted of wiping the elevators rollers and tracks to remove a buildup of dust and gunk, what plaintiff referred to as "maintenance bump" (NYSCEF doc. no. 246, pla dep at 82:21-83:11). Plaintiff further testified that he had to replace a couple of "gibs," which plaintiff explained are used to insert the doors into the tracks, as they wore out from "too much play" (id. at 140:19-141:4).
Plaintiff testified that after he finished working, he exited the freight elevator on the 60th floor and ascended the staircase to the 61st floor in order to bring his tools back to his base. Plaintiff then proceeded down the staircase to the 60th floor so that he could take the elevator to the lobby, as there was no elevator service on the 61st floor. Plaintiff testified that he walked down the initial steps to the landing and then down the second ten steps. As he reached the fourth step from the bottom of the 60th floor, his right foot moved out from under him, and he slid down the remaining steps.
Plaintiff further testified that he looked at the step as he was descending the staircase, including immediately before stepping onto the step, and did not observe anything on the step. Plaintiff further testified that while he didn't notice anything on the step, "[i]t was a little dark, it wasn't the most lighted stairs" (id. at 61:21-22). Plaintiff further testified that he looked at the subject step after he fell and observed that there was a four- or five-inch chip in the step. Plaintiff further testified that there were two lights in the stairway, one at the top of the staircase and one at the bottom, and that both were illuminated at the time of his fall. Photographs of the alleged defective step reveal a groove, or "chip," on the edge of the right side of the fourth step from the landing. Plaintiff further testified that the lighting in the staircase was "dim to medium" and that the lighting was "probably [] inappropriate" (id. at 63:17-25).
Brian Ralli (Ralli), a maintenance supervisor for Otis, testified that plaintiff was performing what would be considered routine maintenance (NYSCEF doc. no. 229 20:18-22). Ralli further testified that he completed an accident report addressing the details of the incident the day after. According to the accident report, the cause of plaintiff s accident was attributed to "[n]ot holding the handrail" within the staircase (id. at 25:11-12). Ralli further testified that plaintiff did not tell Ralli that a broken step caused his fall, and that if plaintiff told him he tripped on a broke step, Ralli would have included that information in the accident report.
On a motion for summary judgment, the movant carries the initial burden of tendering admissible evidence sufficient to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). Once the movant meets its initial burden, the burden shifts to the opposing party to "show facts sufficient to require a trial of any issue of fact" (Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). When deciding the motion, the Court's views .the evidence in the light most favorable to the nonmoving party, and gives the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence (see Negri v. Stop &Shop, Inc., 65 N.Y.2d 625, 626 [1985]). Summary judgment may be granted upon a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence sufficient to eliminate material issues of fact (CPLR 3212 [b]; Alvarez, 68 N.Y.2d at 324; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851 853 [1985]).
In support of their respective motions for summary dismissal of plaintiff s claims pursuant to Labor Law § 241(6), defendants argue that plaintiff was not performing work as defined pursuant to the statute at the time he was injured. ABM and Unity also argue that they are improper defendants under Labor Law § 241(6) in that they are neither owners nor contractors under the statute. In opposition, plaintiff argues that his injury resulted from work that was part of ongoing construction at the premises and that he was performing a repair within the context of Labor Law § 241 (6).
Labor Law § 241 (6) imposes a nondelegable duty on owners, contractors, and their agents to ensure that construction, demolition, and excavation operations at construction sites are conducted so as to provide for the reasonable and adequate protection of construction workers (Rizzuto v L.A. Wenger Contr. Co., 91 N.Y.2d 343, 350 [1998]). By its terms, Labor Law § 241(6) applies to repairs that arise during construction, demolition or excavation, but not to repairs that constitute routine maintenance (Nagel v D &R Realty Corp., 99 N.Y.2d 98 (2002) []). "The Industrial Code definition of'construction work' [12 NYCRR 23-1.4(b)(l 3)], which includes maintenance, must be construed consistently with this Court's understanding that section 241(6) covers industrial accidents that occur in the context of construction, demolition and excavation" (id. at 103; Caban v Maria Estela Houses I Assocs., L.P., 63 A.D.3d 639, 640 [1st Dept 2009]).
Here defendants establish their entitlement to dismissal of plaintiffs claims pursuant to Labor Law § 241(6) by demonstrating that plaintiffs injuries were not the result of construction, demolition, and excavation at the premises within the meaning of section 241(6). It is undisputed that at the time of plaintiff s fall, plaintiff was...
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