Flores v. Cmty. Hous. Mgmt. Corp.

• Decision Date: 21 May 2019
• Docket Number: Index 51288/2017
• Citation: 2019 NY Slip Op 34588 (U)
• Parties: EDWIN FLORES and BRENDA TORRES, Plaintiffs, v. COMMUNITY HOUSING MANAGEMENT CORP., Defendant. COMMUNITY HOUSING MANAGEMENT CORP. Third-Party Plaintiff, v. PEAK PERFORMANCE AND SERVICE, INC., Third-Party Defendant.
• Court: New York Supreme Court

2019 NY Slip Op 34588(U)

EDWIN FLORES and BRENDA TORRES, Plaintiffs, v. COMMUNITY HOUSING MANAGEMENT CORP., Defendant.

COMMUNITY HOUSING MANAGEMENT CORP. Third-Party Plaintiff, v. PEAK PERFORMANCE AND SERVICE, INC., Third-Party Defendant.

Index No. 51288/2017

Supreme Court, Westchester County

May 21, 2019

Unpublished Opinion

Hach & Rose, LLP Attorneys for Plaintiffs

The Tierney Law Group, LLC Attorneys for Community

Law Offices of Stewart H. Friedman Attorney for Peak

DECISION AND ORDER

Linda S. Jamieson Judge

The following papers numbered 1 to 5 were read on these motions:

Paper Number

Notice of Motion, Affirmation and Exhibits 1

Notice of Motion, Affirmation and Exhibits 2

Affirmation in Opposition 3

Reply Affirmation 4

Reply Affirmation 5

There are two motions for summary judgment in this Labor Law and negligence case. The first motion was filed by Community Housing Management Corp. ("Community"). The second is filed by Peak Performance and Service, Inc. ("Peak"). At the outset, the Court points out that plaintiffs do not object to the dismissal of the claims arising under Labor Law §§ 200 and 241(6) . Those causes of action are thus dismissed. That leaves only the negligence and Labor Law § 240 claims.

The Facts

The facts are undisputed. Plaintiff Flores was the superintendent of a residential property owned by non-party Stuhr Gardens LLC ("Stuhr"). Defendant Community manages the property. The president and sole owner of Community, Eugene Conroy, and Cynthia Apicella, an employee of Community and the property manager for Stuhr, hired plaintiff to work as the superintendent. Plaintiff reported to Apicella, but he was paid by Stuhr.

Community and Peak had a contract in which Peak, a boiler service and repair contractor, was to maintain and repair the boilers at Stuhr. It was a flat-fee contract, meaning that if plaintiff called Peak for a repair, the only charge would be for the cost if a part was needed.

On the day of the accident, Apicella told plaintiff that there was a problem in a boiler room, and told him to fix it. There is no dispute that plaintiff did not call Peak (although it is unclear as to whether this was because Apicella told him not to, or because plaintiff chose not to). when he got to the boiler room, plaintiff saw that there was water on the floor and that the hot water pump was leaking. He took the materials he needed, including a ladder, and proceeded to replace the part. Plaintiff testified at his deposition that he slipped on the ladder, and fell. He did not know what caused the fall. Although asked repeatedly, plaintiff was quite sure that he did not know what caused him to slip and fall. He had been up and down the ladder several times, removing the old pump and getting the new one. Plaintiff testified that he did not notice the ladder shaking or wobbling, but that since there was water on the floor, there could have been water on the ladder. Plaintiff also testified that he had to lean off the ladder in an awkward position in order to reach the area of the pipes.

This was not the first time that plaintiff had done this sort of work. Plaintiff testified that he had replaced this sort of equipment probably more than five times. Plaintiff further testified that replacement of the pump would be routine maintenance. Plaintiff also testified that there was no construction going on at the premises at the time of his accident.

Analysis

It is well-settled 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. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action.

Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986).

The Court begins with the claims arising under Labor Law § 240(1) .

This section provides, in relevant part, that

All contractors and owners and their agents ... in the erection, demolition, repairing . . . of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.

As the Court of Appeals has held, "Throughout our section 240(1) jurisprudence we have stressed two points in applying the doctrine of strict (or absolute) liability. First, that liability is contingent on a statutory violation and proximate cause . . . violation of the statute alone is not enough; plaintiff is obligated to show that the violation was a contributing cause of his fall, and second, that when those elements are established, contributory negligence cannot defeat the plaintiff's claim." Blake v Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 771 N.Y.S.2d 484 (2003) (quotations and citation omitted). The Court went on to note that "an accident alone does not establish a Labor Law § 240(1) violation or causation" because some times "the plaintiff is solely to blame for the injury."

In this case, the Court first examines whether what plaintiff was doing at the time of his accident constitutes "repairing" as set forth above. This is a paramount consideration, because while repairs are covered by the statute, "routine maintenance" is not. Tserpelis v. Tamares Real Estate Holdings, Inc., 147 A.D.3d 1001; 1002, 47 N.Y.S.3d 131, 132 (2d Dept. 2017). "In determining whether a particular activity constitutes 'repairing,' courts are careful to distinguish between repairs and routine maintenance, the latter falling outside the scope of section 240(1). Generally, courts have held that work constitutes routine maintenance where the work involves replacing components that require replacement in the course of normal wear and tear." Ferrigno v. Jaghab, Jaghab & Jaghab, P.C., 152 A.D.3d 650 (2d Dept. 2017) (Emphasis added).

The key distinction here is whether the boiler was still functioning at the time of the replacement of the part. As the Second Department has explained, "The replacement of a worn-out component in an operable piece of machinery constitutes "routine maintenance" rather than "repair" or "alteration," and thus falls outside the protective scope of Labor Law § 240(1). Gonzalez v. Woodbourne Arboretum, Inc., 100 A.D.3d 694, 697, 954 N.Y.S.2d 113, 116 (2d Dept. 2012).

This is precisely what occurred in this case. Although it was leaking, the boiler was still working at the time; indeed plaintiff testified that it was very hot in the room at the time of the accident. All that plaintiff did was determine that a part had to be replaced, and proceed to do it (until he had the accident). This is simply routine maintenance, as the Court of Appeals has defined it. See, e.g., Abbatiello v. Lancaster Studio Assocs., 3 N.Y.3d 46, 53 (2004) ("plaintiff determined that the cause of the defective signal was water in the tap, a common problem caused by rainwater accumulating in junction boxes affixed to building exteriors. The remedy would have been to loosen a few screws and drain the water from the tap and, if worn out, replace the tap. These activities constitute routine maintenance and not...