Lincho v. Nat'l R.R. Passenger Corp.

• Citation: 338 F.Supp.3d 343
• Decision Date: 12 October 2018
• Docket Number: 17 Civ. 4752 (GWG)
• Parties: Licinio LINCHO, Plaintiff, v. NATIONAL RAILROAD PASSENGER CORPORATION, and Amtrak,. Defendants.
• Court: U.S. District Court — Southern District of New York

338 F.Supp.3d 343

Licinio LINCHO, Plaintiff,

v.NATIONAL RAILROAD PASSENGER CORPORATION, and Amtrak,. Defendants.

17 Civ. 4752 (GWG)

United States District Court, S.D. New York.

Signed October 12, 2018

Darren Thomas Moore, Joseph Edmund Gorczyca, The Law Offices of Michael S. Lamonsoff, P.L.L.C., New York, NY, for Plaintiff.

Daniel Jr. Zemann, Aris Edward Lynn Dutka, Daniel Wagner London, Deborah J. Denenberg London Fischer LLP, New York, NY, for Defendants.

OPINION AND ORDER

GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE

Plaintiff Licinio Lincho brings this action against the National Railroad Passenger Corporation and "Amtrak" (the name under which the National Railroad Passenger Corporation does business) ("Amtrak") for injuries resulting from his fall from a ladder at a construction site. Defendants move for summary judgment pursuant to Fed. R. Civ. P. 56.¹ For the following reasons, the motion is granted.

I. BACKGROUND

A. Facts

The following facts are undisputed unless otherwise stated.

The City of New York is the owner of the Bryant Avenue Bridge located at 1165 Garrison Avenue in Bronx, New York. See The National Railroad Passenger Corporation and Amtrak's Responses to Plaintiff's First Set of Interrogatories, dated Dec. 13, 2017 (annexed as Ex. 11 to Zemman Aff.) ("Def.'s Response to Pl.'s Interrogs."), No. 6; NY State Highway Bridge Data: October 31, 2017 (annexed as Ex. B to Def.'s Response to Pl.'s Intterogs.) ("NY State Highway Bridge Data"), 5. The Bryant Avenue Bridge runs over land owned by Amtrak. See Silva Aff. ¶ 6; Deposition of Carl Stypinski, dated April 20, 2018 (annexed as Ex. 7 to Zemann Decl.) ("Stypinski Dep."), 43; NY State Highway Bridge Data, at 5. Amtrak trains run underneath the Bryant Avenue Bridge on land that Amtrak owns. See Silva Aff. ¶¶ 6, 8.

In June 2014, the New York City Department of Transportation ("NYCDOT") awarded a contract for the rehabilitation of the Bryant Avenue Bridge to Judlau Contracting, Inc. ("Judlau"). See Letter from Polly Trottenberg, dated June 20, 2014 (annexed as Ex. 14 to Zemann Decl.). Judlau served as the general contractor on the project. Stypinski Dep. at 41. The contract involved the removal and reconstruction of the entire bridge superstructure, Silva Aff. ¶ 2, as well as concrete work and painting on the parapet walls underneath the bridge, Stypinski Dep. at 42-44. Judlau performed the project from August 2014 until July 2015. Silva Aff. ¶ 3.

In order to access the Bryant Avenue Bridge and to perform work underneath the bridge on the parapet walls, Judlau required access to Amtrak's land. See Silva Aff. ¶ 6. In exchange for a payment of $1000, Amtrak provided Judlau with a temporary permit to "enter" upon its property to do the bridge work. See National Railroad Passenger Corporation, Temporary Permit to Enter Upon Property, dated October 8, 2014 (annexed as Ex. 9 to Zemann Decl. and as Ex. 1 to Silva Aff.) ("Permit"), ¶¶ 1, 4. Amtrak could revoke the permit at any time. Id. ¶ 9. Judlau personnel required Amtrak ID cards to access the property. See Silva Aff. ¶ 7.

The Permit itself required compliance with numerous safety measures to ensure that Judlau's work did not interfere with the safe operation of the railroad. See Permit ¶¶ 6-8, 10, 12-13. The Permit required that "[a]ll work on, over, under, within or adjacent to" Amtrak's property be performed in accordance with a document titled "Specifications Regarding Safety and Protection of Railroad Traffic and Property." Id. ¶ 10. The Specifications listed various requirements related to safety. See Specifications Regarding Safety and Protection of Railroad Traffic and Property (annexed as Attachment A to Permit) ("Specifications"). For example, the Specifications required Judlau personnel to coordinate with Amtrak personnel in order to maintain safety around the tracks, including by attending a pre-entry meeting where Judlau was required to submit "plans, computations, a Site Specific Safety Work Plan and site-specific work plans that include a detailed description of proposed methods for accomplishing the work and protecting railroad traffic" for approval by Amtrak's Chief Engineer, Specifications ¶ 1; by consulting with Amtrak's Chief Engineer to arrange for Amtrak personnel to provide protection to Judlau workers in the form of Track Watchmen, Flagmen, Signalmen, and other protection personnel, id. ¶ 4; by requiring Judlau to obtain written permission from Amtrak to "foul" an active track, id. ¶ 6,² and to verify the timing of scheduled track outages before scheduling work in the vicinity of the tracks, id. ¶ 7; and by obtaining permission from the Chief Engineer before placing equipment in the vicinity of operating tracks or storing material or equipment on the Railroad's property, id. ¶¶ 9-10. The Specifications do not provide for Amtrak personnel to supervise the safety or manner of performance of contractors' work unrelated to the work's potential interference with railroad operations. The Specifications explicitly state that the pre-entry meeting and the provision of Amtrak protection personnel "shall not relieve Permittee/Contractor of its complete responsibility for the adequacy and safety of its operations." Id. ¶ 1, accord id. ¶ 4.

Amtrak and its employees had the authority to suspend or stop Judlau's work and to revoke Judlau's permission to enter Amtrak's premises upon Judlau's violation of the Railroad's safety rules, regulations and requirements. See Specifications ¶ 2; Stypinski Dep. at 21-22. In his deposition testimony, Carl Stypinski, who was assigned as Amtrak's project manager for the Bryant Avenue Bridge project, Stypinski Dep. at 31, gave several examples of instances in which he had "shut down a job," see id. at 22-23. In particular, Stypinski testified that he had "shut down a job" upon observing "[p]eople trying to set a crane up without having the proper authorization or inspections, people trying to climb a rickety ladder, like some homemade thing, people leav[ing] their messes around and that stuff can blow on the railroad and a train can hit it, and ... people going out on a bridge without having their safety harnesses on where there's a possibility they can fall ...." Id. at 23. In addition, Stypinski testified that if he observed a contractor without "proper personal protective equipment," he could "ask that person to leave, put their stuff on, and if they refuse, go home and have a nice day." Id.

On April 24, 2015, Lincho was employed by Judlau Contracting, Inc. and was assigned to work on the Bryant Avenue Bridge project. See Deposition Testimony of Licinio Lincho (annexed as Ex. 5 to Zemman Decl.) ("Lincho Dep"), 10-11. On that date, Lincho had been working on the Bryant Avenue Bridge project for approximately six months, id. at 16, and had been working for Judlau for seven years, id. at 10. Lincho testified that the only people who directed his work at the Bryant Avenue Bridge project were Benito Mendes, id. at 16-17, 39, a foreman with Judlau, id. at 16-17, and a super employed by Judlau, id. at 39-40. On April 24, 2015, Lincho was working on top of the Bryant Avenue Bridge. See id. at 23-24. At some point, Mendes directed Lincho to stop working on top of the bridge and to instead assemble a scaffold underneath the bridge out of two-by-four planks of wood. See id. Underneath the bridge structure, there were thin metal rods that resembled large screws spaced at regular intervals sticking out of the concrete parapet walls. See Photograph of Bridge (annexed as Ex. 6 to Zemman Aff.) ("Photograph of Bridge"). Lincho testified that the two-by-fours were already resting on these metal rods when he ascended the ladder to work. See Lincho Dep. at 36. His job was to nail these two-by-fours together to assemble a scaffold. Id. To perform this work, Lincho ascended an extension ladder that was placed on a stone surface underneath the bridge, at a height of approximately 15 or 16 feet. Id. at 24, 33. The ladder was not affixed by its feet or top to either a wall or the ground. Id. at 33. No one held the ladder while Lincho worked. Id. at 34. Lincho did not wear a safety harness while working on the ladder, and was not provided with one. Id. at 33.

While Lincho was working on the ladder, Mendes was directing him to work quickly. See id. at 33. While Lincho was on the ladder, he pulled an approximately 16-foot-long two-by-four plank that had been resting on a the metal rods to reposition it in order to nail it into the scaffold structure he was building. See id. at 35-38. As he pulled the two-by-four, it turned, and the end of the beam hit him in the chest, causing him to fall off the ladder and onto the tracks below him. Id. After he fell, a co-worker, Joao Martino, see id. at 22, helped him get up, id. at 39, and, at Mendes' direction, Lincho waited inside a container that Judlau employees used to change into their uniforms, see id. at 17-18, 40, until Mendes drove him home at the end of the workday, id. at 40-41. Lincho testified that he told Mendes that he wanted to go to the hospital but Mendes refused to take him, told him to wait, and told him that his pain and injury would pass. See id. at 40. Lincho testified that he asked Mendes to a write a report documenting the injury, but Mendes and Judlau's super refused for several days. See id. at 42-43. Lincho ultimately sought medical attention from his doctor three days after the accident. See id. at 42. Since the accident, Lincho testified that he has had pain in his neck, back, and shoulders, and has not been able to return to work. See id. at 43-49.

On December 30, 2015, Lincho brought suit against the City of New York and the NYCDOT in Bronx Supreme Court. See Notice of Commencement of Action, dated Dec. 30, 2015 (annexed as Ex. 3 to Zemann Aff.). Defendants prevailed on summary judgment because Lincho failed to file a timely notice of claim and failed to move for leave to file an untimely notice of claim before the...