Gatinho v. E. Ramapo Cent. Sch. Dist.
| Decision Date | 23 December 2020 |
| Docket Number | Index 036603/2018 |
| Court | New York Supreme Court |
| Parties | KELLISON GATINHO, Plaintiff, v. EAST RAMAPO CENTRAL SCHOOL DISTRICT, AXIOM CONSULTANT GROUP, LLC[1], and GEA ENGINEERING P.C.[2] Defendants. EAST RAMAPO CENTRAL SCHOOL DISTRICT, Third-Party Plaintiff, v. UNITED ROOFING & SHEET METAL, INC. Third-Party Defendant. |
DECISION AND ORDER (MOTIONS #3, 4 & 6)
The following papers, numbered 1 to 26, were reviewed in connection with (i) Third-Party Defendant United Roofing & Sheet Metal Inc.'s ("United") Notice of Motion for an Order, pursuant to Civil Practice law and Rules § 3212, granting summary judgment and dismissal of Plaintiff's Labor Law §§ 240(1) and 241(6) causes of action (Motion #3); (ii) Defendant East Ramapo Central School District's ("East Ramapo") Notice of Motion for an Order, pursuant to Civil Practice Law and Rules § 3212, granting summary judgment and dismissal of Plaintiff's action in its entirety (Motion #4); and (iii) Plaintiff's Notice of Cross-Motion for anOrder, pursuant to Civil Practice Law and Rules§ 3212, granting him partial summary judgment as to liability on his Labor Law § 240(1) and § 241(6) cause of actions against Defendant East Ramapo (Motion #6):
PAPERS
NUMBERED
Motion #3
NOTICE OF MOTION/AFFIRMATION IN SUPPORT/EXHIBITS MEMORANDUM OF LAW
A-X/ 1-3
PLAINTIFF'S AFFIRMTION IN OPPOSITION/OLIVERA AFFIDAVIT/KEEN AN AFFIDAVIT/SILVERBERG AFFIDAVIT/EXHIBITS 1-9
AFFIRMATION IN OPPOSITION TO PLAINTIFF'S CROSS-MOTION AND IN FURTHER SUPPORT OF MOTION
8
Motion #4
NOTICE OF MOTION/AFFIRMATION IN SUPPORT/EXHIBITS A-P/ MEMORANDUM IN SUPPORT
9-11
PLAINTIFF'S AFFIRMTION IN OPPOSITION/OLIVERA AFFIDAVIT/ KEENAN AFFIDAVIT/SILVERBERG AFFIDAVIT/EXHIBITS 1-9
AFFIRMATION IN REPLY/EXHIBITS Q-V/MEMORANDUM OF LAW IN REPLY
NOTICE OF CROSS-MOTION/PLAINTIFF'S AFFIRMATION IN SUPPORT OF CROSS-MOTION AND IN OPPPOSITION TO MOTIONS/ OLIVERA AFFIDAFIT/ KEENAN AFFIDAVIT/SILVERBERG AFFIDAVIT/EXHIBITS 1-9
EAST RAMAPO'S AFFIRMATION IN OPPOSITION/EXHIBITS Q-V/ MEMORANDUM OF LAW
UNITED'S AFFIRMATION IN OPPOSITION
25
AFFIRMATION IN REPLY
26
Upon a careful and detailed review of the foregoing papers, the Court now rules as follows:
Plaintiff commenced the above captioned action against the East Ramapo School District on November 7, 2018, alleging violations of Labor Law § 240(1), §241(6), and § 200 arising out of an accident which occurred on July 14, 2018 at the Hempstead Elementary School in Spring Valley, New York. Issue was joined with the service of an Answer on November 26, 2018. Defendant East Ramapo filed a third-party complaint against Plaintiff's employer, United Roofing & Sheet Metal, Inc., on April 19, 2019. Issue was joined as to the third-party action on July 1, 2019. Although the Complaint was amended two times thereafter to join additional parties, the action has been discontinued as to those entities.
Plaintiff Kellison Gatinho, was employed as a union roofer by third-party defendant United. On the day of the accident, Plaintiff was working at Hempstead Elementary School in Spring Valley, which was owned by Defendant East Ramapo, in connection with a roof replacement project. He had begun working on that project four or five days prior to the accident. Plaintiff was working on the roof near the rear of the building, which was approximately 25 feet high, when the accident occurred. Plaintiff testified that, as a general rule, United did not provide him with safety equipment such as a harness and hard hat, although he did have a personal one which he sometimes used. Other times, a United foreman would make company harnesses available to the workers.
Mr. Gatinho testified that on the day of the accident, the safety equipment on the roof consisted of a single safety cart, in addition to yellow perimeter flags that served as "warning lines" to let workers know when they were near the edge of the roof. He described the safety cart as being a weighted, four wheeled cart manufactured by "Cobra," to which two workers could "tie off" at a time. The cart could be moved to different parts of the roof by removing its weights and wheeling it to the desired location. Plaintiff testified that workers were not permitted to move the cart, however, if other workers were tied off and already using it.
Mr. Gatinho testified that he did not have his personal harness with him on the day of the accident.[3] He claimed there no prohibition against working on the roof without one when working within the warning perimeter. After having performed several tasks within the safety perimeter, he testified that Mr. Bazzoni, his supervisor, instructed him to trim a piece of insulation that had been left hanging over the edge of the back portion of the roof, as he was concerned that someone would step on it and fall. In order to do so, Plaintiff had to go outside the warning perimeter. After removing the piece, Mr. Gatinho snapped a chalk line at the edge of the roof in order to mark a straight edge where the insulation should be cut.
Plaintiff testified that Mr. Bazzoni stood within the safety perimeter and watched him perform these tasks without a harness. Mr. Gatinho testified that he was unaware if any safety harnesses were available to him that day but that even if he had been wearing a harness, there was no place to "tie off." He testified that at least six of his co-workers were working outside the perimeter flags without being tied off. He further testified that at the time of his accident, two workers outside the flags were tied off to the single safety cart on the roof located 10-15 feet from him, the maximum permitted. Plaintiff claims that he was expressly instructed to perform this task outside the safety area, notwithstanding the fact that he was not wearing a safety harness. When asked why he performed the task without a safety belt, he testified that he was following his supervisor's orders. After snapping the chalk line, Mr. Gatinho knelt down and made the cut. As he was in the process of snapping a line for a second cut, while still kneeling, he lost his balance and fell from the edge of the roof, 25 feet to the asphalt below. Plaintiff denied that Mr. Bazzoni yelled at him to not work outside the safety perimeter prior to the accident or that he directed him to put a safety belt on and tie off.
Eduardo Bazzoni, Plaintiff's foreman, testified on behalf of third-party Defendant United. He testified that he could not remember exactly how many workers were present on the, day of the accident but estimates that there were approximately ten to twelve United employees at the work site. Mr. Bazzoni testified that United provided the plaintiff with safety equipment, including harnesses, retractables, safety carts, mobile carts, ropes and lanyards. He stated that there was a safety line set up around the perimeter as well as three mobile safety carts- two of which provided tie off points for five workers and one which provided tie off points for two workers.
Bazzoni testified that there was no need for the plaintiff to go outside the safety line to cut insulation. He stated that after observing Plaintiff do so, he reprimanded Plaintiff and expected him to go back inside the safety perimeter and tie off. Bazzoni testified that he became aware of the accident approximately 15-20 minutes later when he heard someone scream that Plaintiff fell off the roof. Although Mr. Bazzoni testified that there were at least two safety carts to which Plaintiff could have attached himself, he was unable to say where they were located or whether any were within the section of the roof that Plaintiff was performing his work. He also could not remember if all three carts were being used at the time of the accident such that they were unavailable. Bazzoni stated that it would take about "a minute" to move a cart 50 feet.
Additionally, Bazzoni testified that he took photographs shortly after the accident which would have presumably shown the location of the safety equipment. The accident report notes that photographs are attached, however, they were not. No such photographs were produced in response to Plaintiff's demand, and United claims that Mr. Bazzoni's tablet was damaged, was no longer in use, and that items on the tablet "are no longer recoverable."
The parties submitted examination before trial transcripts and/or signed and notarized statements from Plaintiff's co-workers. Herbert Ramirez testified at his examination before trial that he was about ten feet away from Plaintiff at the time of the accident and heard him fall but did not see him. He testified that safety harnesses were provided by United and that safety carts were on the roof on the morning of the accident where workers could tie off, however, he was unable to recall seeing any safety carts near Plaintiff. He did not recall Mr. Bazzoni telling Plaintiff to get away from the edge of the roof or not to work in that area prior to the accident occurring. Bruno Almeida testified that about five minutes before the accident he saw Plaintiff inside the safety perimeter about to "snap a line." He did not see Plaintiff fait and did not hear any United foremen remind workers to tie off. Although there were safety carts on the roof that morning, he could not say how many but did say none were within ten feet of Plaintiff before he fell. He did not hear Mr. Bazzoni yell at Plaintiff that morning.
Plaintiff submits the affidavit of Sidnei Olivera, who was working with Plaintiff on the roof when the accident occurred. Mr. Olivera was designated the "safety monitor" by Bazzoni and was in charge of supervising his...
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