Gray v. City of N.Y.

• Court: New York Supreme Court
• Writing for the Court: HERBERT KRAMER
• Citation: Gray v. City of N.Y., 906 N.Y.S.2d 458, 28 Misc.3d 1093 (N.Y. Sup. Ct. 2010)
• Decision Date: 07 July 2010
• Parties: John GRAY, Plaintiff, v. The CITY OF NEW YORK and the New York City Department of Environmental Protection, Defendants.

906 N.Y.S.2d 458

28 Misc.3d 1093

John GRAY, Plaintiff,

v.The CITY OF NEW YORK and the New York City Department of Environmental Protection, Defendants.

Supreme Court, Kings County, New York.

July 7, 2010.

Frank J. Laine, PC, Plainview, for Plaintiff.

Fabiani, Cohen & Hall, LLP, New York, for Defendants.

HERBERT KRAMER, J.

Upon the foregoing papers, defendants The City of New York (the City) and The New York City Department of Environmental Protection (DEP) move for an order, pursuant to CPLR 3212, granting summary judgment dismissing the Complaint and all other claims against them.

FACTS AND PROCEDURAL HISTORY

Plaintiff John Gray (Gray) worked at the Newtown Creek Water Pollution Control Plant (the Facility), which was located at the intersection of Greenpoint Avenue and Kingsland Avenue in Brooklyn, New York. The Facility was owned by the City. In 1994, upgrade work on the Facility commenced. Hazen & Sawyer/Malcolm Pirnie Joint Venture (Hazen Sawyer) was the construction manager for all upgrade projects on the Facility. One of the general contractors on the site was A.J. Pegno/Tully Construction Co. Joint Venture (Pegno/Tully), which was in charge of the "31 series" of contracts (plumbing and general work) ( see Transcript of Ernest Livingston, July 20, 2009, annexed as Exhibit L to plaintiff's opposition papers, at 25-26).¹

As a heavy on-site teamster steward employed by Pegno/Tully, Gray "challenged" trucks for union identification at the Facility. He was responsible for requesting that truck drivers show their union card and dues receipt, and either approving drivers for entry into the Facility to make a delivery, or denying them access to make the delivery if they were not union members. Additionally, plaintiff's responsibilities included operating vehicles on the construction site, which could be a dump truck moving dirt from one lot to another, or a flatbed truck moving materials. Pegno/Tully provided him with a red Chevy Silverado pick-up truck to perform his steward duties.

On July 27, 2007, plaintiff drove his pick-up truck to a location near the "Grit" building on the Facility, and was parked there for a few minutes when he saw a green flatbed truck approaching. The truck turned onto a temporary road and left plaintiff's field of vision. Rather than drive to where the green truck had parked to request union identification, plaintiff decided to approach the driver on foot because "[i]t was a nice day." As plaintiff was exiting his pick-up truck, he stepped onto some wooden two-by-fours on the ground which were adjacent to the vehicle's door on the driver's side. According to plaintiff, the two-by-fours, which were nailed together, created a "ramp" that was used for walking up and down the steel curb and temporary roadway, as well as for bringing materials and gang boxes up and down from the curb.² The higher end of the ramp was toward the curb. When plaintiff's feet came into contact with the two-by-fours, the two-by-fours separated and he fell through to the road surface approximately 18 to 20 inches below him.

Gray commenced this action to recover for personal injuries allegedly sustained as a result of the incident, including, according to his Bill of Particulars, bilateral calcaneal fractures (heel fractures). Plaintiff asserts that defendants were negligent andviolated Labor Law §§ 200, 240(1), and 241(6).

THE PARTIES' CONTENTIONS

Defendants argue that plaintiff's Labor Law claims should be dismissed because plaintiff was not within the class of persons that the Labor Law was intended to protect, given that he was not performing work that was necessary or incidental to the erection of a structure pursuant to Labor Law § 240(1) when the accident occurred, nor permitted or suffered to work on a building or structure under Labor Law §§ 200 and 241(6). They further contend that they are entitled to summary judgment on the Labor Law § 240(1) claim because Gray was exiting his vehicle when the accident occurred and there was no elevation-related hazzard. They also argue that the Labor Law § 241(6) claim should be dismissed because the alleged Industrial Code violations upon which this claim is predicated are either inapplicable to the facts or were not actually violated. Additionally, they move to dismiss the Labor Law § 200 and common-law negligence claims on the grounds that defendants did not have notice of the allegedly dangerous or defective condition of the "ramp," nor did they exercise supervision, direction or control over the activity that led to plaintiff's accident.

Plaintiff opposes the motion for summary judgment on the ground that the expert affidavit submitted on behalf of defendants is inadmissible because it contained legal conclusions that he was not qualified to make. He contends, contrary to defendants' assertions, that he was in fact performing an activity protected by the Labor Law at the time of his accident, and cites numerous cases supporting that proposition. Specifically, he avers that his work was vital and integral to the construction work being performed on the Facility, and that he was a member of a team engaging in an activity under a construction contract. He additionally maintains that liability under Labor Law § 240(1) does apply to the collapse of the two-by-fours which served as a ramp, and also suggests that he was essentially using the ramp as a platform. Plaintiff opposes defendants' motion for summary judgment with regard to Labor Law § 241(6) by contending only that Industrial Codes Section 23.1-22(b)(2) and (3) were violated, are sufficiently specific to support such a claim, and are applicable to the instant facts.³ Finally, plaintiff argues that the Labor Law § 200 claim should not be dismissed because defendant has not demonstrated that it did not have actual or constructive notice of the allegedly defective ramp.

In reply, defendants assert that the only new evidence offered by plaintiffs in opposition to their motion was a discovery response that was not in admissible form. They also aver that plaintiffs' expert affidavitdoes not contain legal conclusions, but rather, serves to provide the Court with professional and technical knowledge within the field of construction safety and fall protection. Moreover, defendants argue that plaintiff disingenuously attempts to apply Labor Law § 240(1) by calling the ramp a "platform," even though he never testified to using it as such. They distinguish cases cited by plaintiff, in which courts found the ramps therein to pose elevation-related risks, by noting, inter alia, that plaintiff was merely using the ramp as a passageway, and that plaintiff does not argue that the lack of safety rails or curbs proximately caused his injuries. With respect to Labor Law § 241(6), defendants aver that the cases cited by plaintiff regarding the remaining alleged violations do not conclude that said violations are indeed applicable to the ramps therein. Defendants also claim that plaintiff's sole evidence that the cited Industrial Codes are applicable to the subject ramp is his attorney's opposing affirmation. Finally, regarding the Labor Law § 200 and common-law negligence claims, defendants aver that they did not provide the ramp in question, insist that usage of the ramp was a method of work chosen by one of the contractors to move personnel or materials onto the sidewalk, and argue that they did not supervise, direct or control such method.

DISCUSSION

The drastic remedy of summary judgment should be granted only where there are no triable issues of fact ( see Pearson v. Dix McBride, LLC, 63 A.D.3d 895, 883 N.Y.S.2d 53 [2009]; Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387 [1957] ). The moving party on a motion for summary judgment has the burden of demonstrating "a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" ( Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 852, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ). Once the movant has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which require a trial ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" ( Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). The evidence presented on summary judgment must be scrutinized in the light most favorable to the party opposing the motion ( Goldstein v. Monroe County, 77 A.D.2d 232, 236, 432 N.Y.S.2d 966 [1980] ). Accordingly, "[i]f there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied" ( Celardo v. Bell, 222 A.D.2d 547, 547, 635 N.Y.S.2d 85 [1995] ).

(a) Applicability of the Labor Law

Defendants contend that Gray does not qualify within the class of persons the Labor Law was intended to protect because, at the time of his alleged accident, he was not "performing work necessary and incidental to the erection or repair of a building or structure" ( see Pisciotta v. St. John's Hosp., 268 A.D.2d 465, 466, 702 N.Y.S.2d 339 [2000], citing Shields v. St. Marks Hous. Assoc., 230 A.D.2d 903, 904, 646 N.Y.S.2d 854 [1996] ). Defendants rely chiefly on Shields for their position that Labor Law § 240(1) does not apply to the instant facts, and analogize Gray, a teamster steward who "challenged" delivery truck drivers for union identification,to the plaintiff in Shields, a night watchman/security guard hired by a contractor on the construction/renovation site therein. In Shields, the court found that the plaintiff failed to show that he was engaged in work necessary and incidental to the renovation work...