Luna v. Broadcom W. Dev. Co.
| Decision Date | 10 December 2020 |
| Docket Number | 101340/2015 |
| Citation | 141 N.Y.S.3d 236,70 Misc.3d 1043 |
| Parties | Carmen Lezcano LUNA, as Administratrix of the Estate of Johnny Luna, Deceased, and Carmen Lezcano Luna, individually, Plaintiff, v. BROADCOM WEST DEVELOPMENT COMPANY LLC and Brodsky Organization LLC, Defendants. Broadcom West Development Company LLC and Brodsky Organization LLC, Third Party Plaintiffs, v. PS Marcato Elevator Co., Inc., Third Party Defendant. |
| Court | New York Supreme Court |
Miller Leiby & Associates, P.C., New York City (Anthony Vaughn, Jr., of counsel), for third-party defendant.
Black Marjieh & Sanford LLP, Elmsford ( Lisa Black of counsel), for defendants/third-party plaintiffs.
Asta and Associates PC, New York City ( Michael Asta of counsel), for plaintiff.
Plaintiff sues for personal injuries, wrongful death, and lost services sustained January 9, 2015, when a descending elevator killed her husband Johnny Luna, a mechanic employed by third party defendant PS Marcato Elevator Co., Inc. He was working on an elevator modernization project in a building at 75 West End Avenue, New York County, owned by defendant Brodsky Organization LLC and managed by defendant Broadcom West Development Company LLC. PS Marcato Elevator moves for summary judgment dismissing the third party complaint and the main complaint, C.P.L.R. § 3212(b), which PS Marcato Elevator is entitled to do even though plaintiff does not claim against third party defendant, because it may interpose any defenses of defendants-third party plaintiffs. C.P.L.R. § 1008 ; Houston Cas. Co. v. Cavan Corp. of N.Y., Inc. , 158 A.D.3d 536, 539, 71 N.Y.S.3d 455 (1st Dep't 2018) ; Muniz v. Church of Our Lady of Mt. Carmel , 238 A.D.2d 101, 102, 655 N.Y.S.2d 38 (1st Dep't 1997). Defendants move separately for summary judgment dismissing the complaint and for summary judgment on their third party contractual and implied indemnification claims against PS Marcato Elevator. C.P.L.R. § 3212(b) and (e). Plaintiff cross-moves against both motions and seeks summary judgment on defendants' liability under New York Labor Law § 240(1). For the reasons explained below, the court grants the motions in part, but denies the cross-motions.
Plaintiff maintains claims for violation of Labor Law § 200 and for negligence, as well as for violation of Labor Law § 240(1), but at oral argument August 20, 2020, discontinued her claims for violation of Labor Law §§ 241(6) and 241-a. The parties also stipulated that all exhibits presented are authenticated and admissible for the purpose of determining the motions and cross-motions for summary judgment.
If Luna was the sole proximate cause of his death, defendants are not liable based on Labor Law §§ 240(1), 200, or negligence.
Robinson v. East Med. Ctr., LP , 6 N.Y.3d 550, 554-555, 814 N.Y.S.2d 589, 847 N.E.2d 1162 (2006) ; Montgomery v. Federal Express Corp. , 4 N.Y.3d 805, 806, 795 N.Y.S.2d 490, 828 N.E.2d 592 (2005) ; Cahill v. Triborough Bridge & Tunnel Auth. , 4 N.Y.3d 35, 39, 790 N.Y.S.2d 74, 823 N.E.2d 439 (2004) ; Blake v. Neighborhood Hous. Servs. of N.Y. City , 1 N.Y.3d 280, 290, 771 N.Y.S.2d 484, 803 N.E.2d 757 (2003). See Barreto v. Metropolitan Transp. Auth. , 25 N.Y.3d 426, 433, 13 N.Y.S.3d 305, 34 N.E.3d 815 (2015). Luna would be the sole proximate cause of his death if his failure without good reason to follow specific safety instructions of which he was aware caused his death. Cahill v. Triborough Bridge & Tunnel Auth. , 4 N.Y.3d at 40, 790 N.Y.S.2d 74, 823 N.E.2d 439 ; Guaman v. City of New York , 158 A.D.3d 492, 493, 71 N.Y.S.3d 29 (1st Dep't 2018). See Biaca-Neto v. Boston Rd. II Hous. Dev. Fund Corp. , 34 N.Y.3d 1166, 1168, 121 N.Y.S.3d 753, 144 N.E.3d 363 (2020) ; Gallagher v. New York Post , 14 N.Y.3d 83, 88, 896 N.Y.S.2d 732, 923 N.E.2d 1120 (2010).
PS Marcato Elevator and defendants maintain that Luna was the sole proximate cause of his death because he disobeyed his supervisor's direction not to work at the lobby level and failed to use lockout tagout equipment to arrest the elevator. Since Luna was killed in the elevator shaft near the lobby level, had he not been there, the elevator would not have crushed him. PS Marcato and defendants rely on the deposition testimony by Paul Kahl, PS Marcato Elevator's modernization foreman, who was ambiguous at best, if not self-contradictory.
Aff. of Ingrid Marmol Ex. I, at 60-61. Michael Thornton, a PS Marcato Elevator mechanic, also testified at his deposition that he and Luna were present when Kahl instructed that no work was to be performed "in the lobby areas until we have our rigging equipment and confirm with the building when we can take the elevators out of service." Id. Ex. L, at 58.
Id. at 73 (emphasis added). This testimony indicates that Luna was not performing work that Kahl had prohibited. In fact Kahl further admitted in answer to a federal Occupational Health and Safety Administration questionnaire that he instructed Luna to work on the hall buttons between elevators 8 and 9, which is exactly the work Luna was performing when he was killed.
Although Kahl maintained that he did not "know why he [Luna] was where he was" when he was killed and that the work he was performing at that time "wasn't part of the scope of work I told him to do," id. at 75, and while Luna may have entered the elevator shaft from the lobby level, no evidence indicates that he was working on the "lobby button" that Kahl wanted "to talk to the building about." Id. at 73. Kahl's concern was that Luna was supposed to perform his work from atop the elevator car after setting it to independent mode, which gives the mechanic control over the elevator, and that the work did not require him to be in the shaft at the lobby level. No evidence, however, discloses that Luna received any such instruction.
A statement sworn August 21, 2015, by Brad Heaton, a PS Marcato Elevator helper who assisted Luna, on the other hand, departs from Kahl's and Thornton's testimony above. Heaton attested that Kahl instructed Luna and Heaton in their presence to wait before working "within the shaft" and that a Leo Rig, which is planking, and stack ladders were to be brought to the site. Id. Ex. T, at 1. Again, however, no evidence discloses that Luna was instructed to wait for this Leo Rig to be used for his task of connecting wires from the motor room to the boxes behind the hall buttons down the shaft. Heaton also described this work as running pipe that contained wires or conductors "from the top floor to the pit" at the bottom of the shaft. Id. This description suggests that the work "within the shaft" that Kahl instructed Heaton and Luna to wait for was not the running of the wires down the shaft and the work on the hall buttons between elevators 8 and 9.
Defendants insist that the Leo Rig was necessary for Luna's task, because the elevator did not descend below the lobby level, and therefore at that level Luna could not perform his work from atop the elevator and needed the planking to stand on. Heaton belies this suggestion, however, when he attests that he and Luna completed their task at the two basement levels before proceeding to the lobby.
Heaton further attested that, after completing the work at the basement levels, he returned to the lobby, where Luna was waiting with the lobby elevator doors open and elevator car 8 on the second or third floor. Luna entered the shaft and asked Heaton to close the doors. Soon afterward, elevator cars 8 and 9 descended to the lobby level. Elevator car 8 struck and killed Luna.
Alfonso Marshall, a New York City Department of Buildings supervisory inspector when Luna was killed, testified at his deposition that he viewed video of the lobby area during the period leading up to Luna's death. Marshall corroborates and supplements Heaton's account of this time frame. Marshall observed Luna open the hoistway door, look inside and wait for his helper Heaton to arrive. After Heaton arrived, he held the elevator door open as Luna stepped into the hoistway, and then Heaton stepped away from the door, allowing it to close. Approximately 15 seconds later, when a person entering the building approached, Heaton pressed the call button. Lights showing through the hoistway door's seams showed the elevator descend to the lobby level.
It is obvious from this account that Luna was not using the lockout tagout equipment to arrest the elevator's movement. Evidence regarding the availability of this equipment to Luna and any instruction to him to use it for his assigned task is even less clear and more lacking than the evidence that he was instructed not to work where he was working when he was killed. In fact Kahl testified that the...
To continue reading
Request your trial