Gao v. Mehran Enters. Ltd., INDEX NO. 159168/2013
| Decision Date | 01 November 2017 |
| Docket Number | INDEX NO. 159168/2013 |
| Citation | 2017 NY Slip Op 32341 (U) |
| Parties | WEN LING GAO, Plaintiff, v. MEHRAN ENTERPRISES LTD., FUTURE QUEENS REALTY, INC., SEAPORT RESTAURANT, INC., TIAN MING ZHENG, ZHI GANG WANG, QIN-ZHOU CHEN and ZIN-PING ZHOU, Defendants. MEHRAN ENTERPRISES LTD., Third-Party Plaintiff, v. OCEANICA CHINSE RESTAURANT, INC., SEAPORT RESTAURANT, INC., TIN CHENG, WANG ZHI GANG, QIN ZHOW CHEN, JIN PING ZHO, Third-Party Defendants. |
| Court | New York Supreme Court |
MOTION DATE __________
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 104, 121, 122, 123, 124, 125, 148, 150
were read on this application to/for summary judgment.
Plaintiff Wen Ling Gao moves, pursuant to CPLR 3212, for partial summary judgment on his Labor Law § 240 (1) claim against defendant Mehran Enterprises Ltd. ("Mehran"). Mehran opposes.
BACKGROUND
The alleged accident took place on the second floor in the kitchen area of 37-02 Main Street in Flushing, New York (the "Building") on September 7, 2012. Mehran owned the Building on the day of the accident. Mehran, as owner, triple net leased the Building to Future Queens Realty, Inc ("Future") pursuant to a lease dated March 6, 2002. On May 30, 2012, Future sub-leased the second floor of the Building to four individuals, Tin Cheng, Qin Zhou Chen, Jin Ping Zhu and Wang Zhi Gang, who all personally guaranteed the lease. On June 29, 2012, Oceanica Chinese Restaurant, Inc. ("Oceanica") assumed the sub-lease between Future and Mr. Cheng, Mr. Chen, Mr. Zhu, and Mr. Gang, who were also the shareholders of Oceanica.
Plaintiff alleges that on September 7, 2012, he was working as a construction laborer for a construction contractor by the name of Tian Ming Zheng when he fell from a ladder and sustained injuries. According to Plaintiff, Mr. Zheng was directly responsible for the construction and renovation of a Chinese restaurant that was being built at the Building. Plaintiff testified that as part of the construction project, he was directed by Mr. Zheng to patch a hole in a ceiling approximately ten feet above the tile floor in the kitchen area and was provided a ladder to reach the ceiling. As he ascended the ladder with an electric drill in one hand, Plaintiff felt the ladder shake and move, and ultimately pitch to one side, causing him to fall and sustain injuries. Plaintiff claims that a screw securing one of the ladder's steps came loose, causing the ladder to shift and his subsequent fall.
Mehran contends that on the date of the accident, as evidenced by Plaintiff's Employer's Report of Work-Related Injury/Illness C-2 report, Plaintiff may have been employed as a janitor, responsible for cleaning and maintenance, and that he may have been injured when he stepped on an empty plastic barrel while in the process of cleaning the top of a refrigerator.
Plaintiff's Deposition Testimony and Affidavit
Plaintiff, with the assistance of an interpreter as English is not his native language, testified that in June of 2012, he approached Tian Ming Zheng looking for work. He did not know whether Mr. Zheng had a company or not, but he began to work for and under the supervision of Mr. Zheng at the Building on a "renovation project" (tr. at 59). Plaintiff's understanding was that he was working for a renovation business and that he was going to perform interior renovation, particularly plastering, including of the walls and ceilings. On the day of the accident, Mr. Zheng told Plaintiff that he would be installing stainless steel above the freezer in the kitchen area. There was also a hole in the ceiling above the freezer door in the kitchen area, which Mr. Zheng directed Plaintiff to repair.
In order to repair the hole in the ceiling, Plaintiff retrieved an eight-foot makeshift ladder. He leaned the ladder against the seven-foot freezer and climbed the ladder with an electrical drill in his hand. Plaintiff testified that the ladder was" "shaky" and moved, causing him to fall (tr. at 166). Plaintiff further testified that the accident occurred as a result of a screw in the ladder coming loose. He did not know that the ladder had a loose screw until the accident occurred, he was not provided with any railings, harness or rope as fall protection, and he did not see any other ladders, except a "two-step high" ladder (tr. at 323).
Plaintiff's affidavit is consistent with his deposition testimony. Plaintiff states that he was hired by Mr. Zheng to work as a construction laborer in connection with the construction of a restaurant at the Building. His duties included sheetrock installation, plastering and general construction labor in and around the kitchen area of the restaurant. Among the equipment provided to him to perform his duties was a makeshift ladder, approximately eight feet in height. He was not provided with any fall protection equipment.
Plaintiff states that on September 7, 2012, Mr. Zheng directed him to patch a hole in the kitchen ceiling. To perform the patchwork, Plaintiff used the aforementioned ladder, which was the only device provided or available to reach the ceiling. Plaintiff leaned the ladder against the door of a freezer in the kitchen, but the ladder was neither secured nor was it able to be secured. He climbed the ladder with an "electric tool" in one hand, and the ladder began to shake and shifted to one side causing him to fall, which Plaintiff believed was caused by a loose screw holding one of the steps in place.
STANDARD
Summary Judgment
On a motion for summary judgment, the moving party has the burden of offering sufficient evidence to make a prima facie showing that there is no triable material issue of fact. Jacobsen v. N.Y. City Health & Hosps. Corp., 22 N.Y.3d 824, 833 (2014). Once the movant makes that showing, the burden shifts to the non-moving party to establish, through evidentiary proof in admissible form, that there exist material factual issues. Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). In determining a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party. Henderson v. City of New York, 178 A.D.2d 129, 130 (1st Dep't 1997). The court's function on a motion for summary judgment is issue-finding, rather than making credibility determinations or findings of fact. Vega v. Restani Const. Corp., 18 N.Y.3d 499, 503, 505 (2012).
The non-moving party may use hearsay to oppose summary judgment. Rivera v. GT Acquisition 1 Corp., 72 A.D.3d 525, 526 (1st Dep't 2010); Candela v. City of New York, 8 A.D.3d 45, 47 (1st Dep't 2004). Although summary judgment should be denied where "credible evidence reveals differing versions of the accident," (Ellerbe v Port Auth. of N.Y. & N.J., 91 AD3d 441, 442 [1st Dep't 2012]), inadmissible hearsay evidence alone is insufficient to warrantdenial of a summary judgment motion; Briggs v. 2244 Morris, L.P., 30 A.D.3d 216, 216 (1st Dep't 2006); Quichimbo v. Vornado 640 Fifth Ave., L.L.C., 30 A.D.3d 194, 195 (1st Dep't 2006).
Labor Law § 240 (1), also known as the scaffold law, provides, in relevant part:
"All contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing 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."
Labor Law § 240 (1) "was enacted to protect workers in construction projects against injury from the expected risks of inherently hazardous work posed by elevation differentials at the work site." Lipari v. AT Spring, LLC, 92 A.D.3d 502, 503 (1st Dep't 2012); John v. Baharestani, 281 A.D.2d 114, 118 (1st Dep't 2001); Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501 (1993). While the statute is meant to be liberally construed, "the fact that a worker falls at a construction site, in itself, does not establish a violation of Labor Law § 240 (1)." O'Brien v. Port Auth. of New York & New Jersey, 29 N.Y.3d 27, 33 (2017); Kebe v. Greenpoint-Goldman Corp., 150 A.D.3d 453, 453 (1st Dep't 2017). Rather, absolute "[l]iability may ... be imposed under the statute only where the plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential." O'Brien, 29 N.Y.3d at 33 () (internal quotation marks omitted). "Whether a device provides proper protection is a question of fact, except when the device collapses, moves, falls, or otherwise fails to support the plaintiff and his or her materials." Melchor v. Singh, 90 A.D.3d 866, 868 (2d Dep't 2011); Cuentas v. Sephora USA, Inc., 102 A.D.3d 504, 505 (1st Dep't 2013); see Weber v. Baccarat, Inc., 70 A.D.3d 487,487-488 (1st Dep't 2010) (); see also Peralta v. American Tel. and Tel. Co., 29 A.D.3d 493, 494 (1st Dep't 2006) (). To succeed on a Labor Law § 240 (1) claim, the plaintiff must that the statute was violated and the violation was a proximate cause of the injury. Blake v. Neighborhood Hous. Servs. of N....
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