Donato v. 455 Broadway Realty LLC
| Docket Number | Index No. 512759/18,Mot. Seq. Nos. 2-3 |
| Decision Date | 18 December 2023 |
| Citation | 2023 NY Slip Op 34515 (U) |
| Parties | James V. Donato, Plaintiff, v. 455 Broadway Realty LLC and Muji U.S.A. Limited, Defendants. |
| Court | New York Supreme Court |
Unpublished Opinion
DECISION AND ORDER
The following e-filed papers read herein: NYSCEF Doc Nos.:
Notice of Motion/Cross Motion, Affirmations (Affidavits), with Exhibits Annexed 40-47; 53-60
Affirmations (Affidavits) in Opposition and in Reply, with Exhibits Annexed 61; 64-65
Other Documents (Answer of 455 Broadway Realty LLC) 9
In this action to recover damages for personal injuries, defendants 455 Broadway Realty LLC and Muji U.S.A. Limited ("defendants") jointly move for summary judgment dismissing the amended complaint of plaintiff James V. Donato ("plaintiff') as against them, whereas plaintiff cross-moves for partial summary judgment on the issue of liability on his Labor Law § 240 (1) claim, as well as on his Labor Law § 241 (6) claim, as predicated on the alleged violations of Industrial Codes §§ 23-1.7 (e) (2), 23-1.7 (f), and 23-2.1 (a).[1]
On Monday morning, March 25, 2018,[2] plaintiff, an elderly[3] laborer with nonparty Michilli, Inc. ("Michilli"), arrived for his first day on the job on the ground floor of defendants' construct! on/renovation project at 455 Broadway in Lower Manhattan. His task that day was to lay the Masonite sheets (the "Masonite") on the ground floor - which, at the time, was "[o]ne big room"[4] - to protect it from damage.[5]
Initially, plaintiff had carried the Masonite onto the ground floor by hand (one or two pieces at a time) from the outside of the store where it was stored.[6] After he had carried 20 to 25 pieces by hand into the store, he decided (without consulting with, or receiving any instructions from, Michilli) to ease his task of transporting the remainder of the Masonite onto the ground floor by using a pallet jack.[7] Before he could use a pallet jack, however, he needed to have a level surface between the inside and outside of the store.[8] Towards that end, he decided (again acting on his own initiative) to fashion a makeshift ramp out of a piece of a silver-colored metal (with the estimated weight of 200 pounds) (the "metal plate") that was leaning against one of the front walls of the ground floor.[9] As he was approaching the metal plate, it suddenly shifted -according to plaintiff, it had been surrounded by wood debris[10] - and started falling.[11] While he was either reaching toward or, alternatively, trying to grab the metal plate to arrest its fall,[12] the plate cut across the inside of his left thumb, as it was falling to the floor.[13] He sought first aid at a local urgent-care clinic and approximately a month later underwent an in-hospital "[d]igital nerve repair" of his left thumb.[14] He has not worked in any capacity since the day of his accident.
On June 20, 2020, plaintiff commenced this action against defendants for his left-thumb injury. Plaintiff asserted claims under: (i) Labor Law § 240 (1); (ii) Labor Law § 241 (6) to the extent predicated on, among other Industrial Code provisions, 12 NYCRR §§ 23-1.7 (e) (2), 23-1.7 (f), and 23-2.1 (a); and (iii) Labor Law § 200/common-law negligence. After discovery was completed and a Note of Issue was filed on January 26, 2022, the aforementioned motion and cross motion, each for summary judgment, were served on March 28, 2022 and November 1, 2022, respectively (NYSCEF Doc No. 40 and 53). On May 10, 2023, the Court heard oral argument, reserving decision.
Although plaintiffs cross motion is untimely, having been made more than 60 days after the filing of the Note of Issue,[15] the Court may nonetheless consider it because "a timely motion for summary judgment was made on nearly identical grounds" (Grande v Peteroy, 39 A.D.3d 590, 591-592 [2d Dept 2007]). "In such circumstances, the issues raised by the untimely . . . cross motion are already properly before the court and thus, the nearly identical nature of the grounds may provide the requisite good cause (see CPLR 3212 [a]) to review the untimely . . . cross motion on the merits" (id. at 592). Accordingly, the Court will consider plaintiff s cross motion on the merits (see Connor v AMA Consulting Engineers PC, 213 A.D.3d 483, 484 [1st Dept 2023]; Jenkin v Cadore, 185 A.D.3d 558, 561 [2d Dept 2020]).
It is well established that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Ayotte v. Gervasio, 81 N.Y.2d 1062, 1063 [1993], citing Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 [1986]; Zapata v. Buitriago, 107 A.D.3d 977 [2d Dept 2013]). Once a prima facie demonstration has been made, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action. (Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]).
Summary judgment is a drastic remedy which should not be granted where there is any doubt as to the existence of a triable issue or where the issue is even arguable (Elzer v. Nassau County, 111 A.D.2d 212, [2nd Dept. 1985]; Steven v. Parker, 99 A.D.2d 649, [2nd Dept. 1984]; Galeta v. New York News, Inc., 95 A.D.2d 325, [1st Dept. 1983]). When deciding a summary judgment motion, the Court must construe facts in the light most favorable to the non-moving party (Marine Midland Bank N.A. v. Dino &Artie's Automatic Transmission Co., 168 A.D.2d 610 [2d Dept. 1990]; Rebecchi v. Whitemore, 172 A.D.2d 600 [2d Dept. 1991]).
Labor Law § 240(1)[16] imposes absolute liability on building owners and contractors whose failure to provide protection to workers employed on a construction site proximately causes injury to a worker (see Wilinski; quoting Misseritti v Mark IV Constr. Co., 86 N.Y.2d 487, 490 [1995]; Fabrizi v 1095 Ave. of the Ams., L.L.C., 22 N.Y.3d 658, 662 [2014]; Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 513 [1991]). The statute is intended to provide extraordinary protections to a narrow class of dangers - more specifically, special hazards that present elevation-related risks (Nicometi v Vineyards of Fredonia, LLC, 25 N.Y.3d 90, 96-97 [2015] [internal quotation marks, brackets and citations omitted]).
Generally, Labor Law § 241 (6) imposes a nondelegable duty on owners and contractors to provide reasonable and adequate protection and safety for workers without regard to direction and control (Romero v J &S Simcha, Inc., 39 A.D.3d 838 [2d Dept 2007]). In order to prevail under this section of the Labor Law, a plaintiff must establish that specific safety rules and regulations of the Industrial Code were violated (Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494 [1993]; Ares v State of New York, 80 N.Y.2d 959 [1992]). The rule or regulation alleged to have been breached must be a specific, positive command and be applicable to the l . facts of the case (Kwang Ho Kim v D &W Shin Realty Corp., 47 A.D.3d 616, 619 [2d Dept 2008]; Jicheng Liu v Sanford Tower Condominium, Inc., 35 A.D.3d 378, 379 [2d Dept 2006]).
In order to prevail on summary judgment in a section 240 (1) falling object case, the injured worker must demonstrate the existence of a hazard contemplated under that statute and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein (Fabrizi at 662). Essentially, the plaintiff must demonstrate that at the time the object fell, it either was being hoisted or secured, or required securing for the purposes of the undertaking and that the object fell because of the absence or inadequacy of a safety device of the kind enumerated in the statute. (Id. at 662-663; Narducci v Manhasset Bay Assoc., 96 N.Y.2d at 268; Mendez v Jackson Dev. Group, Ltd., 99 A.D.3d 677, 678 [2d Dept 2012]). While a plaintiff is not required to present evidence as to which particular safety devices would have prevented the injury, the risk requiring a safety device must be a foreseeable risk inherent in the work (Niewojt v Nikko Constr. Corp., 139 A.D.3d 1024; 1027 [2d Dept 2016]; Noble v AMCC Corp., 277 A.D.2d 20 [2000]). Thus, Labor Law § 240 (1) does not apply in situations in which a hoisting or securing device of the type enumerated in the statute would not be necessary or expected (see Narducci; Moncayo v Curtis Partition Corp., 106 A.D.3d 963, 965 [2d Dept 2013]).
Here the court finds that the record presents genuine issues of triable fact as to: (1) whether plaintiffs injury flowed directly from the application of the force of gravity to (and by) the metal plate; (2) whether the elevation differential between the top of the metal plate and the floor was "physically significant" or, in the alternative, "de minimis"; (3) whether, considering the lean-to position of the metal plate, its weight could generate a significant amount of force as it fell; (4) whether there was a causal nexus between plaintiffs injury and a lack or failure of a device prescribed by Labor Law § 240 (1); and (5) whether anyone had instructed plaintiff to use a pallet jack to move the Masonite and to use the metal plate as a makeshift ramp for that purpose (see Wilinski v 334 E. 92ndHous. Dev. Fund Corp., 18 N.Y.3d 1, 9 [2011]; Connor v AMA Consulting Engineers PC, 213 A.D.3d 483, 484 [1st Dept 2023]; Kuylen v KPP 107th St., LLC, 203 A.D.3d 465 [1st Dept 20...
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