Giambalvo v. National RR Passenger Corp., CV-91-1852 (DRH).

• Decision Date: 31 March 1994
• Docket Number: No. CV-91-1852 (DRH).,CV-91-1852 (DRH).
• Citation: 850 F. Supp. 166
• Parties: William GIAMBALVO, Plaintiff, v. NATIONAL RAILROAD PASSENGER CORP., Two Penn Plaza Associates, Bernard Mendik, The Long Island Railroad Company and Chemical Bank, Defendants. CHEMICAL BANK, Third-Party Plaintiff, v. KNIGHT MAINTENANCE CORP., Third-Party Defendant.
• Court: U.S. District Court — Eastern District of New York

850 F. Supp. 166

William GIAMBALVO, Plaintiff, v. NATIONAL RAILROAD PASSENGER CORP., Two Penn Plaza Associates, Bernard Mendik, The Long Island Railroad Company and Chemical Bank, Defendants.

CHEMICAL BANK, Third-Party Plaintiff, v. KNIGHT MAINTENANCE CORP., Third-Party Defendant.

No. CV-91-1852 (DRH).

United States District Court, E.D. New York, Hauppauge Division.

March 31, 1994.

Gersowitz Libo & Korek, P.C. by Jeff Korek, New York City, for plaintiff.

Ahmuty, Demers & McManus by William F. Ryan, Albertson, NY, for defendant National R.R. Passenger Corp.

Joseph M. Conklin by James M. Lloyd, New York City, for defendants Two Penn Plaza Ass'n and Bernard Mendik.

Caulfield, Galvin, Heller, Harris & Colligan by Patrick Colligan, New York City, for defendant Chemical Bank.

McMahon, Martine & Merritt by William D. Gallagher, New York City, for third-party defendant Knight Maintenance Corp.

ORDER

HURLEY, District Judge.

Plaintiff in the above-referenced action seeks recovery for personal injuries under the common-law theory of negligence, as well as certain statutory provisions of the New York Labor Law. Currently before the Court are the following motions: (1) motion for summary judgment by Defendant National Railroad Passenger Corporation ("Amtrak"); (2) motion for summary judgment by Defendants Two Penn Plaza Associates and Bernard Mendik; (3) cross-motion for summary judgment by Defendant Chemical Bank; (4) Plaintiff's cross-motion for summary judgment; and (5) cross-motion for summary judgment by Third-party Defendant Knight Maintenance Corporation. For the reasons that follow, the Court grants the motion of Defendant Amtrak, and the cross-motion of Plaintiff as against Amtrak is denied. Having dismissed the only claim over which the Court has original jurisdiction, the Court declines to exercise supplemental jurisdiction over the remaining claims, and, therefore, the Court does not reach the merits of the remaining motions.

BACKGROUND

Plaintiff, a member of Local 3 of the International Brotherhood of Electrical Workers, was employed by Third-party Defendant Knight Maintenance Corporation ("Knight"), as a lamp technician. His job responsibilities included the changing of lightbulbs in light fixtures at various sites, including the Chemical Bank located at Two Penn Plaza. Defendant Amtrak owns the concourse area of Two Penn Plaza, and leased the area to Defendants Two Penn Plaza Associates and Bernard Mendik, who, in turn, sub-leased the premises to Chemical Bank.

On November 30, 1989, Plaintiff was called to Chemical Bank to replace a spotlight that had burned out. Prior to changing the bulb, he obtained a ladder from a storage room within the Chemical Bank premises. After removing the old bulb, and while standing on the ladder, Plaintiff fell and sustained certain injuries.¹

On April 15, 1991, Plaintiff brought an action in New York Supreme Court, County of Kings, to recover for these injuries. Because Defendant Amtrak is a corporation created by an Act of Congress, 45 U.S.C. §§ 501-658, the federal district courts have original jurisdiction over the action, 28 U.S.C. §§ 1331, 1349, and, accordingly, the action was removed to this Court pursuant to 28 U.S.C. § 1441. The action alleges that Defendants are liable to Plaintiff under New York Labor Law §§ 240(1), 241(6), and 200, and the common-law theory of negligence.

Discussion

I. Standard for Review of Motion for Summary Judgment

A motion for summary judgment may be granted only when it is shown that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir.1987); Winant v. Carefree Pools, 709 F.Supp. 57, 59 (E.D.N.Y.), aff'd, 891 F.2d 278 (2d Cir.1989). The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion," and identifying which materials "it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. at 2552; see also Trebor Sportswear Co., Inc. v. The Limited Stores, Inc., 865 F.2d 506, 511 (2d Cir.1989); Pariente v. Scott Meredith Literary Agency, Inc., 771 F.Supp. 609, 612 (S.D.N.Y.1991). The substantive law governing the case will identify those facts which are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

Once the moving party has come forward with support demonstrating that no genuine issue of material fact remains to be tried, including pleadings, depositions, interrogatory answers, and affidavits, the burden shifts to the non-moving party to provide similar support setting forth specific facts about which a genuine triable issue remains. Fed. R.Civ.P. 56(e); Anderson, 477 U.S. at 250, 106 S.Ct. at 2511; Borthwick v. First Georgetown Sec., Inc., 892 F.2d 178, 181 (2d Cir. 1989); Donahue, 834 F.2d at 57. The Court must resolve all ambiguities and draw all reasonable inferences in favor of the non-moving party. Donahue, 834 F.2d at 57.

"The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48, 106 S.Ct. at 2510. Moreover, "conclusory allegations will not suffice to create a genuine issue. There must be more than a `scintilla of evidence,' and more than `some metaphysical doubt as to the material facts.'" Delaware & Hudson Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir.1990), cert. denied, 500 U.S. 928, 111 S.Ct. 2041, 114 L.Ed.2d 125 (1991) (quoting Anderson, 477 U.S. at 252, 106 S.Ct. at 2512, and Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986)); see also Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir.1991). "The non-movant cannot `escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts,' or defeat the motion through `mere speculation or conjecture.'" Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir.1990) (quoting Borthwick, 892 F.2d at 181, and Knight v. U.S. Fire Insurance Co., 804 F.2d 9, 12 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987)). With the above principles in mind, the Court turns to a discussion of the case at bar.

II. Section 240(1)

Plaintiff first claims that Defendant Amtrak is liable for his injuries pursuant to § 240(1) of the New York Labor Law. This section establishes a non-delegable duty upon owners and contractors, and provides, in relevant part, that:

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, ... ladders ... which shall be so constructed, placed, and operated as to give proper protection to a person so employed.

N.Y. Labor Law §§ 240(1) (McKinney 1986). In response to Plaintiff's claim under this section, Defendant Amtrak contends that summary judgment should be granted in its favor, because Plaintiff was not engaged in any of the statute's enumerated activities. More specifically, Defendant Amtrak argues that Plaintiff was not "repairing" any "building or structure."

In assessing the respective positions of the parties, the Court first looks to the legislative history of this provision of the Labor Law, which provides that it was the intent of the legislature to protect "workers by placing `ultimate responsibility for safety practices at building construction jobs where such responsibility belongs, on the owner and general contractor.'" 1969 N.Y. Legis. Ann. at 407 (emphasis added) (quoted in Zimmer v. Chemung County Performing Arts, Inc., 65 N.Y.2d 513, 520, 493 N.Y.S.2d 102, 105, 482 N.E.2d 898, 901 (Ct.App.1985)).

A case that is in keeping with this intent, and upon which Defendant Amtrak primarily relies, is Manente v. Ropost, Inc., 136 A.D.2d 681, 524 N.Y.S.2d 96 (2d Dep't 1988). In Manente, the plaintiff was injured while changing a lightbulb in a lamppost located in the parking lot of the defendant's restaurant. As he was changing the bulb, the lamppost dislodged from its base, and plaintiff fell from the ladder. The Appellate Division found that plaintiff's reliance on § 240 was misplaced, for two separate and independent reasons. First, the court explained that the lamppost was not part of a "building or structure," as required by the statute. Second, the court explained that

nor was the plaintiff at the time of the accident engaged in the type of repair envisioned by the statute. He was merely replacing a lightbulb in a lightpole located on premises on which there was no construction, demolition, renovation or any other type of structural work underway in either the parking lot or the building itself.

Manente, 136 A.D.2d at 682, 524 N.Y.S.2d at 97 (emphasis added).

In response to Defendant's motion, Plaintiff suggests that § 240 must be read liberally, and, read as such, his conduct falls within the purview of the statute. In support of his position, Plaintiff principally relies upon three cases that, he contends, liberally construe the terms "alteration" and "repair": Izrailev v. Ficarra Furniture of Long Island, Inc., 70 N.Y.2d 813, 523 N.Y.S.2d 432, 517 N.E.2d 1318 (Ct.App.1987); Neville v. Deters, 175 A.D.2d 597, 572 N.Y.S.2d 256 (4th Dep't 1991); and Ferrari v. Niasher Realty, Inc., 175 A.D.2d 591, 573 N.Y.S.2d 794 (4th Dep't 1991)...