Gatti v. Dordevic Constr. Co.
| Decision Date | 07 June 2012 |
| Docket Number | No. 101351/2009.,101351/2009. |
| Citation | 35 Misc.3d 1241,954 N.Y.S.2d 758,2012 N.Y. Slip Op. 51087 |
| Parties | John DELLI GATTI and Katina Delli Gatti, Plaintiffs, v. DORDEVIC CONSTRUCTION CO., 767 Fifth Partners, LLC., and I.M.G. Worldwide Holdings, Inc., Defendants. |
| Court | New York Supreme Court |
OPINION TEXT STARTS HERE
O'Dwyer & Bernstein, New York, for Plaintiffs.
Rubin, Fiorella & Friedman, LLP, New York, for Defendants.
Papers considered in review of this motion for summary judgment:
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¦Notice of Plaintiffs' Motion ¦1¦
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¦Aff in Opposition ¦2¦
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¦Reply Aff ¦3¦
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¦Notice of Defendants' ¦ ¦
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¦Motion ¦4¦
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¦Mem of Law ¦5¦
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¦Aff in Opposition ¦6¦
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¦Reply Aff ¦7¦
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In this Labor Law action plaintiffs John Delli Gatti (“Delli Gatti”) and Katina Delli Gatti (collectively “plaintiffs”) move for partial summary judgment against defendants Dordevic Construction Co. (“Dordevic Construction”), 767 Fifth Partners, LLC (“767”), and I.M.G. Worldwide Holdings, Inc. (“IMG”) (collectively “defendants”) on their Labor Law § 240(1) claim (motion sequence no. 2). Defendants move separately for summary judgment dismissing the complaint (motion sequence no. 3). Motion sequence nos. 2 and 3 are consolidated for disposition.
This action arises from injuries Delli Gatti sustained on August 28, 2008 while working on a renovation project (the “project”) at a work site owned by 767 and located at 767 Fifth Avenue in Manhattan (the “premises”). The purpose of the project was to prepare a new corporate headquarters for IMG, the premises' tenant. At the time, Delli Gatti was employed with Pro Max Carpentry Inc. (“Pro Max”). Dordevic Construction, the project's general contractor, hired Pro Max to perform carpentry, drywall and finishing work on the project.
At his deposition, Delli Gatti testified that the accident occurred at approximately 10:30 A.M., when he fell from the third rung of a six-foot ladder. According to Delli Gatti, he fell because the ladder gave way under him. Delli Gatti testified that he had inspected the ladder before the accident but did not seen anything wrong with it, and that others used the ladder after his accident without incident. Oscar Esquivel (“Esquivel”), Delli Gatti's former co-worker, attests that he worked with Delli Gatti the entire morning of the accident and did not see Delli Gatti fall, nor did he see a ladder tip over or break.
Dordevic Construction's Vice President, Thomas Dordevic (“Dordevic”), testified that Dordevic Construction simply provided subcontractors with the desired end product and did not direct them in how to perform their work, nor did Dordevic Construction personnel communicate directly with subcontractor employees. Dordevic further testified that IMG never directed him on how IMG wanted the work done, and that the subcontractors, not Dordevic Construction, were responsible for taking care of safety measures at the work site.
David Rooney (“Rooney”) of Pro Max testified that Pro Max was in charge of all safety issues at the work site. Rooney also testified that Dordevic did not assign a safety coordinator to the site. Instead, Rooney testified, Dordevic served as a “super senior coordinator,” and would sometimes generally instruct Rooney on what he wanted Pro Max's employees to do. Rooney further testified that he never saw any IMG personnel at the premises inspecting the project's work progress.
Delli Gatti commenced this action in January 2009, asserting causes of action for common law negligence and violations of Labor Law §§ 200, 240, 241, 241–a.1 In his Verified Bill of Particulars and Supplemental Verified Bill of Particulars, Delli Gatti alleges violations of 12 NYCRR §§ 23–1.5(c), 23–1.7(d), 23–1.7(e)(2), 23–1.7(f), 23–1.21(b), 23–1.21(c), 23–1.21(e) stepladders, 23–2.3, 23–1.21(e)(2) and 23–1.21(e)(3), and OSHA regulations as the basis for his Labor Law § 241 claim.
Delli Gatti now moves for summary judgment on the issue of liability on the Labor Law § 240(1) cause of action, arguing that Delli Gatti's testimony that the ladder gave way establishes a prima facie violation of Labor Law § 240(1). Delli Gatti further argues that, under Labor Law § 240(1), 767 is strictly liable as the premises' owner, Dordevic is strictly liable as the project's general contractor, and IMG is strictly liable as 767's agent.
In opposition, and in support of their summary judgment motion, defendants argue that Delli Gatti did not fall from the ladder, thus they are not liable under Labor Law § 240(1). Defendants further argue that they are not be liable for any injuries resulting from the alleged fall because Delli Gatti testified that the ladder was not defective. With respect to the Labor Law § 241(6) cause of action, defendants argue that none of the regulations Delli Gatti cites in support of his Labor Law § 241(6) claim are applicable here, nor are the sections specific enough to sustain a Labor Law § 241(6) cause of action. Lastly, defendants argue that none of the defendants controlled Delli Gatti's work site, thus they are not liable under Labor Law § 200.
A movant seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to eliminate any material issues of fact. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 (1985). Once a showing has been made, the burden shifts to the opposing party, who must then demonstrate the existence of a triable issue of fact. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 (1986); Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 (1980).
Initially, the Court holds that IMG is entitled to summary judgment dismissing the Labor Law claims against it. The Labor Law applies only to owners, general contractors and their agents, see Rodriguez v. New York City Hous. Auth., 194 A.D.2d 460, 461, 599 N.Y.S.2d 263 (1st Dept.1993). The parties do not dispute that 767 owns the premises and that Dordevic was the project's general contractor.
Delli Gatti maintains that IMG is liable as 767's agent. A party is liable as an agent under the Labor Law only where that party had the authority to control or supervise the plaintiff's work. See Walls v. Turner Const. Co., 4 NY3d 861(2005); Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 318, 445 N.Y.S.2d 127, 429 N.E.2d 805 (1981). Here, there is no evidence that IMG had any authority to control or supervise Delli Gatti's work. Further, Rooney testified that Dordevic was the only construction manager at the work site and that he never saw any IMG personnel there. As the uncontroverted evidence shows that IMG was not 767's agent, the Court grants summary judgment dismissing all Labor Law claims against IMG.However, triable issues of fact preclude summary judgment for the remaining defendants on the Labor Law § 240(1) cause of action. Owners and general contractors are required under Labor Law § 240(1) to provide workers with protections against “elevation-related risks.” Jamil v. Concourse Enters., 293 A.D.2d 271, 273, 740 N.Y.S.2d 308 (1st Dept.2002). A fall from a ladder is an “elevation-related risk” and Delli Gatti testified that he was injured because the ladder gave way under him, which constitutes a prima facie violation of § 240(1), see McCarthy v. Turner Constr., Inc., 52 A.D.3d 333, 333–34, 859 N.Y.S.2d 648 (1st Dept.2008). In contrast, Delli Gatti's co-worker Esquivel attests that he was working with Delli Gatti at the time the accident allegedly occurred and he never saw Delli Gatti or the ladder fall.2 Because there is conflicting evidence as to whether Delli Gatti's injuries resulted from an elevation-related hazard, neither plaintiffs nor Dordevic Construction and 767 are entitled to summary judgment on the Labor Law § 240(1) cause of action. See Samsung Am. v. Yugoslav–Korean Consulting & Trading Co., 248 A.D.2d 290, 291, 670 N.Y.S.2d 466 (1st Dept.1998).
Triable issues of fact also preclude summary judgment on the Labor Law § 241(6) cause of action against Dordevic Construction and 767. Labor Law § 241(6) requires owners and general contractors to provide “reasonable and adequate protection and safety” to workers by complying with Industrial Code regulations. See Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 501–02, 601 N.Y.S.2d 49, 618 N.E.2d 82 (1993). Although he asserted numerous Industrial Code violations in his bill of particulars, Delli Gatti does not contest that 12 NYCRR §§ 23–1.5, 23.17, 23–2.23 and 23–1.21 do not apply here. However, Delli Gatti maintains that “Rule 23–1.21 requires strength to withstand the framing weight, a firm footing,” and that defendants violated this rule.
Although it is unclear from the papers submitted, it appears that Delli Gatti is asserting violations of 12 NYCRR §§ 23–1.21(b)(1), 21–121(b)(4)(ii), 23–121(e)(2) and 23–121(e)(3), as the remaining subsections of § 23–1.21 are unrelated to framing weight or ladder footing. Because 12 NYCRR § 23–121(e)(2) may not serve as a predicate for § 241(6) liability, the Court dismisses the claim insofar as Delli Gatti asserts a violation of that subsection. See Khan v. 1765 First Assoc. LLC, 2011 N.Y. Misc. LEXIS 1667, at *18 (Sup.Ct. N.Y. County 2011); Spenard v. Gregware Gen. Contr., 248 A.D.2d 868, 871, 669 N.Y.S.2d 772 (3d Dept.1998).
The Court also dismisses plaintiffs' Labor Law § 241(6) cause of action as it relates to 12 NYCRR § 23–1.21(b)(1), which requires that ladders “be capable of...
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