Mainato v. Franzosa Contracting Inc.
| Decision Date | 10 June 2020 |
| Docket Number | Index 68779/2016 |
| Citation | 2020 NY Slip Op 34971 (U) |
| Parties | MANUEL MAINATO, Plaintiff, v. FRANZOSA CONTRACTING INC., JEFFREY GUZMAN and MARGARET GUZMAN, Defendants. FRANZOSO CONTRACTING INC. i/s/h/ as FRANZOSA CONTRACTING INC., Third-Party Plaintiff, v. MEP GENERAL CONTRACTOR CORP., Third-Party Defendant. |
| Court | New York Supreme Court |
Unpublished Opinion
Submit Date: 4/08/2020
DECISION/ORDER
In accordance with CPLR 2219 (a), the decision herein is made upon considering all papers filed in NYSCEF as submitted in connection with the motion of defendant/third-party plaintiff FRANZOSO CONTRACTING INC. i/s/h/ as FRANZOSA CONTRACTING INC. (hereinafter "Franzoso") (Mot. Seq. 1), made pursuant to CPLR 3212, for an order granting summary judgment to dismiss plaintiff MANUEL MAINATO's complaint; and granting summary judgment on Franzoso's claims for common-law indemnification, contractual indemnification breach of contract, and reimbursement of counsel fees as against third-party defendant MEP GENERAL CONTRACTOR CORP.
Plaintiff a roofer employed since 2012 by third-party defendant MEP General Contractor Corp. (hereinafter referred to as MEP) fell from the roof of a two-story house while he was performing certain construction work on October 14, 2016. The homeowners are Jeffrey Guzman and Margaret Guzman (hereinafter the Guzmans). Prior to the accident in question, the Guzmans contracted with Franzoso)[1] for Franzoso to remove and replace the roofing system of the Guzmans' home. As the general contractor, Franzoso retained MEP, the subcontractor, to complete the roof removal and replacement. The accident occurred on the second day of work on the construction project.
In December 2016, plaintiff commenced this action against Franzoso and the Guzmans, [2]alleging causes of action to recover damages for personal injuries allegedly sustained due to common-law negligence and violations of Labor Law §§ 200, 240 (1), and 241 (6). After joinder of issue, Franzoso commenced a third-party action against MEP seeking, among other things, indemnification. Following discovery, Franzoso now moves for summary judgment dismissing the complaint and on its third-party claims against MEP for common-law indemnification, contractual indemnification, reimbursement of counsel fees, and breach of contract. Plaintiff opposes the motion. Though it answered raising three affirmative defenses, MEP has not filed opposition to this motion.
On a summary judgment motion, a court must determine whether there are issues of fact that militate against granting summary relief. "It is not the court's function on a motion for summary judgment to assess [issues of] credibility" (Chimbo v Bolivar, 142 A.D.3d 944, 945 [2d Dept 2016]; Garcia v Stewart, 120 A.D.3d 1298, 1299 [2d Dept 2014]), nor to "engage in the weighing of evidence" (Chimbo v Bolivar, 142 A.D.3d at 945; Scott v Long Is. Power Auth., 294 A.D.2d 348, 348 [2d Dept 2002]). "Resolving questions of credibility, determining the accuracy of witnesses, and reconciling the testimony of witnesses are for the trier of fact" (Bykov v Brody, 150 A.D.3d 808, 809 [2d Dept 2017]; accord Kahan v Spira, 88 A.D.3d 964, 966 [2d Dept 2011]). Thus, "summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" (Ruiz v Griffin, 71 A.D.3d 1112, 1115 [2d Dept 2010]). Under this standard, the court will address each branch of Franzoso's motion.
Turning first to plaintiff's claim under Labor Law § 240 (1), Franzoso's main contention in this regard is that plaintiff was a recalcitrant worker whose failure to use the safety equipment available consisting of a harness and rope supplied by his employer MEP, which he knew was available for use by him, was the sole proximate cause of the accident. Plaintiff counters that questions of fact exist inasmuch as a rope was unavailable for his use as an attachment point at the time of his accident since the rope had been left coiled and stored on the roof, along with the harness which, according to plaintiff, was MEP's accepted company custom and practice. Plaintiff claims that his purported failure to bring down his harness from the roof on the day prior to the accident, or to obtain a separate harness, was inconsequential because a harness alone would not have prevented his fall from the roof.
Labor Law § 240 (1) imposes absolute liability upon general contractors when the failure to provide or erect safety devices to protect a worker from an elevation-related risk or hazard constitutes the proximate cause of the worker's injuries (see Sanatass v Consolidated Inv. Co., Inc., 10 N.Y.3d 333, 338 [2008]; Gordon v Eastern Ry. Supply, 82 N.Y.2d 555, 559 [1993]). The principal objective of this statute is to prevent a worker from falling from an elevated height differential by providing the worker with protective devices (i.e., safety lines, harnesses, rope grabs or netting) that prevent such falls (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500 [1993]). "Contributory negligence on the part of the worker is not a defense to a Labor Law § 240 (1) cause of action" (Salinas v 64 Jefferson Apts., LLC, 170 A.D.3d 1216, 1222 [2d Dept 2019]; see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 286 [2003]).
To establish the recalcitrant worker defense, the contractor must demonstrate that a worker deliberately refused to employ safety devices available, visible, and in place at the work site; and that such was the sole proximate cause of the accident (see Cahill v Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 39-40 [2004]; Gordon v Eastern Ry. Supply, 82 N.Y.2d at 562-563). The defense applies "where the plaintiff, acting as a recalcitrant worker, misused an otherwise proper safety device, chose to use an inadequate safety device when proper devices were readily available, or failed to use any device when proper devices were available" (Salinas v 64 Jefferson Apts., LLC, 170 A.D.3d at 1222 [internal quotation marks omitted]).
Franzoso asserts the recalcitrant worker defense inasmuch as plaintiff failed to use a harness on the second day at the work site, which was readily available to him and he should have used it. Franzoso claims that since there was no harness on the roof, plaintiff knew he should have first obtained a harness from MEP's work vehicle and use one of three ropes connected to the roof as an attachment point, and that he failed to do so, thus resulting in the accident.
In contrast, plaintiff maintains that using a harness would not have prevented the fall since there was no rope available to attach to a harness, as it was MEP's customary practice at work sites to leave harnesses and ropes on the roof near the chimney so that the ropes would not hang over the windows of a house.
Franzoso counters that there was no harness left on the roof the day preceding the accident; thus, the use of a rope by plaintiff without a harness would have been a misuse of safety equipment. Franzoso submits several photographs of the roof on the first workday of the project and hours after the accident taken by Jacob Amacher, Franzoso's project manager, asserting that one of the ropes connected on the roof was accessible to plaintiff from the ground level.
Plaintiff testified he worked on approximately 40 roofing jobs during his tenure at MEP wherein he utilized a harness that was tied off. At his deposition, he stated that on the first day of the construction project, he was instructed by Benjamin Pomavilla, the MEP crew chief of the project, [3] to place three hooks on the roof to connect to plaintiff's harness while on the roof. Plaintiff stated that after concluding work on the first day of the project, he and other MEP workers left the ropes attached to the hooks on the roof, folded up near the chimney so that the ropes would not hang over the windows of the house. Plaintiff explained that he left his disconnected harness on the roof behind the chimney so that the wind would not blow the harness down, which was in accordance with normal company practice.
Plaintiff testified that the next day, he, Pomavilla, and another worker arrived at the work site shortly after 8 a.m. He was tasked with bringing new shingles up to the roof using a power ladder. The shingles were stacked in the driveway near the house, and there were no materials on the roof at that time. There was an extension ladder used to access the roof which was set up on the same side of the house as the power ladder when the accident occurred. On the morning of the accident, Pomavilla directed him to go up to the roof and set up the shingles that were lifted from the ground to the roof. Plaintiff explained he climbed up using the ladder to retrieve his harness and rope where he had left them the day before. He was not wearing a harness when he climbed the ladder. Pomavilla and another worker remained on the ground level near the ladder. As plaintiff stepped from the ladder onto the roof, his left leg suddenly slipped, and he fell to the ground, thus causing his injuries.[4]
Pomavilla testified it was customary practice for all MEP workers to hook the rope into their harnesses while they were on the roof; that when he and plaintiff concluded work on the first day, they put their harnesses in a "bucket . . . on the floor next to the material." The next morning, they drove to the work site. Plaintiff was a passenger in the backseat of the vehicle, and Pomavilla states that he told plaintiff to "use the harnesses and the ropes because it had rained the previous night." Pomavilla testified that when they arrived at the work...
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