Medina v. 75-76 Third Ave. Assets II, LLC
| Decision Date | 17 January 2018 |
| Docket Number | INDEX NO. 155699/2013 |
| Parties | ERICK MEDINA a/k/a GUSTAVO AVILA, Plaintiff, v. 75-76 THIRD AVENUE ASSETS II, LLC and DRYBAR HOLDINGS LLC, Defendants. 75-76 THIRD AVENUE ASSETS II, LLC and DRYBAR HOLDINGS LLC, Third-Party Plaintiffs, v. CREATIVE INTERIORS PLUS INC., Third-Party Defendants. |
| Court | New York Supreme Court |
MOTION DATE 12-06-2017
Upon a reading of the foregoing cited papers, it is ordered that plaintiff's motion for summary judgment on liability under Labor Law §240[1], is denied. Drybar Holdings Inc.'s cross-motion seeking summary judgment dismissing all of the claims and cross-claims asserted against it, is granted only as to dismissing Labor Law §241[6] Industrial Code Violations as stated herein. The remainder of the relief sought is denied.
Plaintiff brought this Labor Law action for injuries sustained on August 24, 2012, when he fell through the first floor of the premises located at 209 East 76th Street, New York, N.Y. (hereinafter referred to as the premises). Plaintiff was working for third-party defendant Creative Interiors Plus, Inc. (hereinafter referred to as "CIP"), the general contractor for the project, during the remodeling of the space for a new Drybar location. Plaintiff alleges that while attempting to remove part of a wood and plywood floor supported by wooden beams by hitting it with a pry-bar, the part of the floor he was standing on collapsed, causing him to fall approximately ten (10) feet through a basement room to a cement floor, and land on his back.
Plaintiff claims that no safety equipment was provided. Plaintiff alleges his work was only directed by his CIP co-worker, non-party Jeffrey Sanders. Defendant/third-party plaintiff 75-76 Third Avenue Assets II, LLC (hereinafter referred to individually as "75-76 Third Avenue") is the owner of the premises. Defendant/third-party plaintiff Drybar Holdings, LLC (hereinafter individually referred to as "Drybar") is the lessee of the premises.
The third-party action asserts claims against CIP for contribution, common law indemnification, contractual indemnification, and individually on behalf of 75-76 Third Avenue for breach of contract and failure to procure insurance.
Plaintiff's motion seeks an Order granting summary judgment on liability pursuant to Labor Law §240[1].
Drybar opposes plaintiff's motion and cross-moves for summary judgment dismissing all of plaintiff's Labor Law §200, §240[1] and §241[6] claims against it.
In order to prevail on a motion for summary judgment pursuant to CPLR §3212, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence, eliminating all material issues of fact (Klein v. City of New York, 89 N.Y. 2d 833, 675 N.E. 2d 548, 652 N.Y.S. 2d 723 [1996]). Once the moving party has satisfied these standards, the burden shifts to the opponent to rebut that prima facie showing, by producing contrary evidence in admissible form sufficient to require a trial of material factual issues (Amatulli v. Delhi Constr. Corp., 77 N.Y. 2d 525, 571 N.E. 2d 645; 569 N.Y.S. 2d 337 [1999]).
Summary judgment is a drastic remedy and should not be granted where triable issues of fact are raised and cannot be resolved on conflicting affidavits (Millerton Agway Cooperative v. Briarcliff Farms, Inc., 17 N.Y. 2d 57, 268 N.Y. S. 2d 18, 215 N.E. 2d 341 [1966] and Ansah v. A.W.I. Sec. & Investigation, Inc., 129 A.D. 3d 538, 12 N.Y.S. 3d 35 [1st Dept., 2015]). Inconsistent accounts and conflicting testimony raise credibility issues that cannot be resolved prior to trial and require denial of summary judgment (Berman Brothers-Bloch Furs Inc. v. Fashion Vault Corp., 50 A.D. 3d 450, 856 N.Y.S. 2d 565 [1st Dept., 2008]).
Plaintiff argues that there are no issues of fact and pursuant to Labor Law §240[1], the defendants are strictly liable for his injuries because they failed to provide proper and adequate safety devices to protect him from the foreseeable risk of injury from having the floor he was removing collapse under him. Plaintiff claims that the higher position relative to the basement created a gravity related risk of falling to the floor below as a result of the ongoing removal of the floor and no protective devices were provided.
Labor Law §240[1] applies to a gravity related risk of the type enumerated in the statute, upon proof that "plaintiff's injuries result from an elevation related risk and the inadequacy of safety devices" (Nicometi v. Vinyards of Freedonia, 25 N.Y. 3d 90, 30 N.E. 3d 154, 7 N.Y.S. 3d 263 [ 2015]). Labor Law §240[1] is liberally construed to accomplish its purpose (Hoyos v. NY-1095 Avenue of the Americas, LLC 2017 N.Y. Slip Op. 08717 [1st Dept., 2017] citing to Rocovich v. Consolidated Edison Co., 78 N.Y. 2d 509, 583 N.E. 2d 932, 577 N.Y.S. 2d 219 [1991]). Liability does not apply to an injury that occurs as a result of, "the usual and ordinary dangers to which the extraordinary protections of Labor Law §240[1] do not extend" (Cohen v. Memorial Sloan-Kettering Cancer Center, 11 N.Y. 3d 823, 897 N.E. 2d 1059, 868 N.Y.S. 2d 578 [2008]). The standard for liability under Labor Law §240[1] involving the collapse or failure of a permanent structure, is the presence of a foreseeable elevation related risk in light of the work being performed, such that safety devices should have been provided (Vasquez v. Urbahn Associates, Inc., 79 A.D. 3d 493, 918 N.Y.S. 2d 1 [1st Dept., 2010] citing to Jones v. 414 Equities, LLC, 57 A.D. 3d 65, 866 N.Y.S. 2d 165 [2008] and Garcia v. Neighborhood Partnership Housing Development Fund Co., Inc., 113 A.D. 3d 494, 980 N.Y.S. 2d 6 [1st Dept., 2014]).
75-76 Third Avenue and third-party defendant CIP raise issues of fact as to foreseeability due to the condition of the permanent floor. Plaintiff failed to provide sufficient evidence to obtain summary judgment pursuant to Labor Law §240[1]. There is conflicting testimony that the part of floor he was standing on had defects such that he needed to use safety devices and that this was foreseeable prior to the accident. 75-76 Third Avenue, relying on deposition testimony, also raises an issue of fact as to attempts made to demolish that section of permanent floor plaintiff was standing on before it collapsed.
Drybar opposes plaintiff's motion and cross-moves for summary judgment arguing: (i) plaintiff's accident does not fall within the definition of a gravity related injury as defined by Labor Law §240[1] ; (ii) Drybar was not the owner, an agent of the owner or the general contractor for the project; (iii) CIP has conceded that it was the only general contractor for the project; (iv) plaintiff and CIP both admit that Drybar did not have any control over or supervise any aspect of the work including plaintiff's work; (v) Drybar did not perform any work at the project; and (vi) Drybar was not negligent.
Labor Law §240[1] only refers to "contractors and owners and their agents" but lessees can also be liable when they hire the contractor, and thus technically have the right to control the work being done. Lessees that hire the contractor "are owners within the meaning of the statute"(Ferluckaj v. Goldman Sachs & Co., 12 N.Y. 3d 316,908 N.E. 2d 869, 880 N.Y.S. 2d 879 [2009]).
Drybar's argument that as a tenant it is not liable under Labor Law §240[1] because it is not an owner or contractor or an agent of an owner or contractor, is unavailing. On July 2, 2012 Drybar entered into a contract with CIP wherein Drybar is identified as the "Owner" and agreed to perform duties as an "Owner" under Article 8, that included the ability to "issue a written order to the Contractor (CIP) to stop the work" (NYSCEF Docket # 104). Drybar is potentially liable under Labor Law §240[1]. Drybar's argument that plaintiff's Labor Law §240[1] claims cannot be sustained because they involve a foreseeable risk, merely states the same argument as 75-76 Third Avenue and third-party defendant CIP, which were sufficient to raise issues of fact to defeat plaintiff's motion, but are not sufficient to grant Drybar summary judgment. Drybar has failed to establish that there was no gravity related risk.
Labor Law §200 applies to an existing dangerous defect on the premises requiring that the defendant nave either actual or constructive notice of the unsafe condition thatcaused the accident (Vasquez v. Urbahn Associates, Inc., 79 A.D. 3d 493, 918 N.Y.S. 2d 1 [1st Dept., 2010], Mendoza v. Highpoint Assoc., IX, LLC, 83 A.D. 3d 1, 919 N.Y.S. 2d 129 [1st Dept., 2011] and Gory Neighborhood Partnership Housing Development Fund Co., Inc., 113 A.D. 3d 550, 979 N.Y.S. 2d 314 [1st Dept., 2014]).
Plaintiff's reference to a letter sent by CIP to Drybar's architects, Lacina-Heitler Architects, stating " CO#2 Replacement of existing floor joists and underlayment: Tues 8/14 structural integrity of the existing floor joists was found to be deficient," is sufficient to raise an issue of fact as to whether Drybar had notice of an unsafe condition after the 8/14 inspection within an approximately nine days period before the floor collapsed . Drybar's argument that it is unclear which floor is being referenced in the letter ignores deposition testimony on behalf of CIP that the project was to remodel the first level and basement of the premises leased to Drybar (See Cross- Mot. Exh. 14, p. 20). Drybar contractually had employees from the architect keep Drybar informed about the progress and quality of the work. They took picutres and drew up the plans for Drybar's approval (NYSCEF Docket # 104, Articles 8 and 10). Drybar was contractually obligated to CIP to obtain permits for the work performed (Cross- Mot. Exh. 14 and NYSCEF Docket # 104 Article 8). Drybar conceded that it has a representative...
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