Jones v. 414 Equities LLC

• Decision Date: 28 October 2008
• Docket Number: 32583259.
• Citation: 866 N.Y.S.2d 165,57 A.D.3d 65,2008 NY Slip Op 08197
• Parties: CLARENCE JONES, Appellant, v. 414 EQUITIES LLC et al., Respondents. (And a Third-Party Action.)
• Court: New York Supreme Court — Appellate Division

57 A.D.3d 65

866 N.Y.S.2d 165

2008 NY Slip Op 08197

CLARENCE JONES, Appellant, v. 414 EQUITIES LLC et al., Respondents. (And a Third-Party Action.)

32583259.

Appellate Division of the Supreme Court of the State of New York, First Department.

October 28, 2008.

Pollack, Pollack, Isaac & DeCicco, New York City (Brian J. Isaac and Michael H. Zhu of counsel), for appellant.

Rubin, Fiorella & Friedman, LLP, New York City (Shelley R. Halber of counsel), for respondents.

OPINION OF THE COURT

McGUIRE, J.

The principal issue on this appeal is whether plaintiff, a demolition worker who fell approximately 10 to 12 feet when the permanent floor he was walking across collapsed, is entitled to summary judgment on his cause of action premised on Labor Law § 240 (1). Although the Court of Appeals has issued numerous decisions that provide important guidance in resolving the question of law on which this appeal turns, no decision of the Court of Appeals is squarely on point. Each of the parties litigating the summary judgment motion, however, can point to authority both in this Department and in the other Departments that squarely supports its position. For the reasons that follow, we conclude that Supreme Court correctly denied plaintiff's motion with leave to renew following disclosure.

Plaintiff worked as a demolition laborer on a renovation project at a five-story apartment building owned by defendant 414 Equities LLC. Defendant Artimus Construction, Inc., was the general contractor of the project and retained plaintiff's employer, third-party defendant Bronxdale Maintenance Corp., as a subcontractor. The project involved major renovations to the interior of the building, including the demolition of all interior walls, and the removal of all debris and bathroom and kitchen fixtures. Essentially, the interior of the building was being "gutted" and rebuilt. Notably, however, the building's permanent wooden floors were not to be removed in the course of the project.

On November 13, 2003, plaintiff was working on the second floor when the accident giving rise to this litigation occurred. Plaintiff described his accident as follows: "I was picking up [a] piece of the [interior] walls, like an old-fashion wall, it got cement and I was up [sic], I heard a loud crack and I just fell through the floor and the floor came from under me. The next thing I know I was screaming and [some coworkers] w[ere] down, came downstairs, I was down on the next [i.e., the first] floor." Plaintiff clarified this testimony, further testifying that he was dragging across the second floor a 50- to 60-pound piece of demolished wall to place it with other debris when the portion of the floor he was walking across collapsed, causing him to fall approximately 10 to 12 feet to the floor below. Plaintiff did not "hear anything or see anything" before the floor collapsed except for the loud cracking noise. There were no holes in the second floor prior to its collapse. At the time of the accident, the only safety devices plaintiff was using were a hard hat, a pair of gloves and a cloth facemask.

On January 12, 2005, plaintiff commenced this action against the owner asserting causes of action under Labor Law §§ 200, 240 (1) and § 241 (6) and for common-law negligence. The owner answered the complaint in April 2005, and commenced a thirdparty action against plaintiff's employer in September 2005.

In June 2006 plaintiff moved for summary judgment against the owner on the issue of liability on the Labor Law § 240 (1) cause of action. Plaintiff asserted that he was entitled to summary judgment because (1) he was engaged in an activity protected by the statute, i.e., demolition work, (2) he was exposed to an elevation-related risk, i.e., the floor that collapsed was the second floor, and (3) the owner violated the statute by failing to provide him with proper safety devices. Plaintiff stressed that the collapse of a permanent floor, like the floor at issue, constitutes a prima facie violation of Labor Law § 240 (1), particularly where there is evidence that the floor was "rotte[d] and decayed." In support of this motion plaintiff submitted, among other things, his deposition testimony and an affidavit. In his affidavit plaintiff averred that "[p]ortions of the second floor were old, rotted and decayed."

In opposition the owner argued that summary judgment was premature because two entities—plaintiff's employer and the general contractor—had been or were in the process of being added as parties to the action, and disclosure was needed from those entities to ascertain the condition of the floor prior to its collapse and the cause of the collapse. The owner also argued that a triable issue of fact existed "as to whether the building was in a state of disrepair and decay such that the conditions created a foreseeable [elevation-related] risk" requiring the owner to provide the plaintiff with proper safety devices.

In August 2006 plaintiff filed a supplemental summons and complaint against the general contractor asserting the same causes of action he asserted against the owner. On September 11, 2006, plaintiff served the general contractor through the Secretary of State pursuant to Business Corporation Law § 306 and on October 20 mailed to the general contractor a notice advising that service of process in the action had been effected on the general contractor under that statute.

On the same day he mailed the notice (and while his motion for summary judgment against the owner was sub judice), plaintiff moved for a default judgment against the general contractor, arguing that the general contractor had failed timely to answer the action. On or about November 3, the general contractor cross-moved for leave to serve a late answer. The general contractor acknowledged that it failed timely to answer the action, but asserted that its brief delay in answering was caused "by the intervening time required for the Secretary of State's copy to be served upon the defendants, for that copy to be forwarded to [the general contractor's] insurance carrier and for counsel to be appointed." The general contractor noted that its insurer retained the law firm representing the owner to represent the general contractor on October 31. Plaintiff opposed the cross motion on the ground that the general contractor failed to offer both a reasonable excuse for its failure timely to answer and a meritorious defense to the action.

Supreme Court denied plaintiff's motion for summary judgment against the owner on the issue of liability on the Labor Law § 240 (1) cause of action, without prejudice to a renewed motion following the completion of certain disclosure, i.e., the depositions of the general contractor, plaintiff's employer and the architect of the project. The court reasoned that the mere collapse of a permanent floor, without more, did not constitute an elevation-related risk; to be actionable, such a risk must "be apparent, or known or with reasonable effort could have been known to those who are held to be statutorily liable" (14 Misc 3d 705, 709 [2006]). The court concluded that plaintiff's averment that "[p]ortions of the second floor were old, rotted and decayed" was insufficient to establish his entitlement to summary judgment because he was not "qualified as an expert" and had offered no other evidence indicating that the floor might collapse (id.). In a separate order Supreme Court denied plaintiff's motion for a default judgment against the general contractor and granted the general contractor's cross motion to serve a late answer. Plaintiff appealed both orders.

With respect to his motion against the owner, plaintiff asserts that he is entitled to summary judgment on his Labor Law § 240 (1) cause of action because the floor collapsed, exposing him to an elevation-related risk, and the owner failed to provide him with proper safety devices. While plaintiff maintains that the issue of whether the collapse of the floor was foreseeable is irrelevant in determining liability under the statute, he contends that, in any event, the collapse of the floor was foreseeable because it was old, rotted and decayed.

To establish a cause of action under section 240 (1),¹ a plaintiff must prove both that the statute was violated and that the violation was a proximate cause of his or her injuries (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287 [2003]). The statute is violated when the plaintiff is exposed to an elevation-related risk while engaged in an activity covered by the statute and the defendant fails to provide a safety device adequate to protect the plaintiff against the elevation-related risk entailed in the activity or provides an inadequate one (see Broggy v Rockefeller Group, Inc., 8 NY3d 675, 681 [2007]; see also Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]; Felker v Corning Inc., 90 NY2d 219, 224 [1997]; Zimmer v Chemung County Performing Arts, 65 NY2d 513, 524 [1985]; see generally Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]). Here, plaintiff established that he was engaged in a protected activity at the time of his accident, i.e., demolition work, and that the owner failed to provided him with adequate safety devices; the owner does not argue to the contrary. Thus, the sole issue on the appeal from the order denying plaintiff's motion for summary judgment against the owner on the section 240 (1) cause of action is whether, as a matter of law, plaintiff was exposed to an elevation-related risk when he walked across the permanent floor that collapsed.

In Rocovich v Consolidated Edison Co. (supra), the Court of Appeals for the first time "fully addressed" the question of "the nature of those occupational hazards which the Legislature intended should warrant the absolute protection that [section 240 (1)] affords" (78 NY2d at 513 [emphasis omitted]). Noting that section 240 (1) does not specify the hazards it was designed...