Nunez v. Levy, 2008 NY Slip Op 31115(U) (N.Y. Sup. Ct. 4/15/2008)
| Decision Date | 15 April 2008 |
| Docket Number | 0114538/2003.,Motions Seq. No. 008.,Motions Seq. No. 007. |
| Citation | 2008 NY Slip Op 31115 |
| Parties | HUGO NUNEZ, Plaintiff, v. LAURENCE LEVY, LFP 1020 PWB, LLC., TRITEC BUILDING COMPANY, INC., NORTH FORK BANCORPORATION, INC., Defendants. TRITEC BUILDING COMPANY, INC., Third Party Plaintiff, v. DIAMOND DEMOLITION, INC., Third-party Defendant. |
| Court | New York Supreme Court |
Motion sequence numbers 007 and 008 are consolidated for disposition
In this action, plaintiff Hugo Nunez seeks to recover damages for serious personal injuries he sustained while working at the premises located at 1020 Port Washington Boulevard in Port Washington, New York on August 8, 2003 when, in the process of removing a two-ton bank vault door, the door loosened from its hinges and fell, crushing the lower portion of plaintiff's right leg, which resulted in the amputation of his right leg below the knee. Plaintiff was 29 years old at the time of the accident and was employed by third-party defendant Diamond Demolition, Inc. ("Diamond").1
Defendants Lawrence Levy ("Levy") and LFP 1020 PWB, LLC ("LFP") were the owners of the premises and defendant North Fork Bancorporation, Inc. ("North Fork") was the lessee. North Fork retained defendant/third-party plaintiff Tritec Building Company, Inc. ("Tritec") as the general contractor.
Diamond, a demolition subcontractor, was hired to perform various demolition work at the site, which ultimately included the removal of the vault door.
Originally, the Complaint contained causes of action pursuant to Labor Law §§ 240(1), 241(6) and 200. However, the plaintiff voluntarily discontinued and withdrew his claim pursuant to § 240(1) against all the defendants, and this Court, by Decision and Order dated May 18, 2006, dismissed plaintiff's claim pursuant to § 200 against all the defendants. However, the Court found that there were issues of fact as to whether any of the defendants violated section 23-3.3 of the Industrial Code, and thus denied that portion of the motion seeking judgment dismissing plaintiff's claim pursuant to § 241(6).2
The case was tried before this Court and a jury in March of 2007, and the jury rendered a verdict for the plaintiff on March 12, 2007 finding that there were violations of Industrial Code Rules 23-3.3(b)3 and 23-3.3 (c). The jury awarded plaintiff $5,000,000 for past pain and suffering and $5,000,000 for future pain and suffering.
Defendants now move this Court (under motion sequence number 007) for an Order: 1) setting aside the verdict and directing judgment as a matter of law in favor of the defendants on the grounds that a) the work engaged in by plaintiff was not a Labor Law protected activity and/or the Industrial Code provisions relied upon by plaintiff are inapplicable to the within action; b) evidence of Tritec's post-accident opinions should not have been admitted into evidence and c) plaintiff's expert Ronald B. Dukell should not have been permitted to testify; and 2) granting a new trial as to damages unless plaintiff stipulates to substantial reductions in the awards for pain and suffering and structuring a judgment in accordance with CPLR Article 50-B.
Third-party defendant Diamond moves (under motion sequence number 008) for an Order pursuant to CPLR § 4404 setting aside the verdict and granting judgment dismissing the Complaint, or, in the alternative, for a new trial or a substantial reduction in the jury's award.3
Defendants argue in the first instance that the work plaintiff was engaged in at the time of his accident does not fall within the definition of "demolition work" as set forth in the Industrial Code.
12 NYCRR 23-1.4 (b) (16) (Rule 23 of the Industrial Code) defines demolition work as "[t]he work incidental to or associated with the total or partial dismantling or razing of a building or other structure including the removing or dismantling of machinery or other equipment."
Defendants argue, based on the testimony adduced at trial and the Exhibits admitted into evidence during the trial, that
Diamond's demolition work on the site was completed no later than July 18, 2003 when they returned to remove metal decking from the roof, and that renovations had already been underway for at least one week prior to that time, continuing through the date of plaintiff's accident.
The testimony at trial revealed that although North Fork had considered replacing the vault door from the beginning of the project, there was no firm plan to do so in place until after the door had been damaged during an earlier stage of the demolition work. North Fork then proceeded to get proposals to remove the vault door from a few companies, including Diamond Demolition, Inc., which was eventually retained to do the job.
When the Diamond workers arrived at: the site to remove the door on August 7th, Timothy Browne, Tritec's project supervisor, sent them home because they did not have hard hats. When they returned on August 8th again without hard hats, Browne purchased them for the men.
Benny Chicco, the foreman from Diamond, determined the means and methods by which they were going to remove the door — namely to cut the top hinge of the door first, then the bottom hinge and let the door fall on some Bobcat tires they had put down — and Browne placed yellow caution tape around the area to protect: the other workers.
One worker named Juan started to cut the top hinge with a cutting device while Benny Chicco was sitting or reclining on top of the vault. Plaintiff was asked to go out to the truck and get Benny's cigars. When plaintiff returned, and as he was handing the cigars to Benny, the door fell suddenly, after only the top hinge was removed, and caught plaintiff's right leg.
Defendants argue that the vault door was removed after demolition operations had been completed and while construction was underway and thus was post demolition work which is not protected activity under Labor Law § 241(6). Defendants further argue that the work plaintiff was retained to perform did not in any way affect either the structural integrity of the bank or the vault itself, but rather was renovation work which is not covered under Labor Law § 241(6). See, Sparkes v. Berger, 11 A.D.3d 601 (2nd Dep't 2004); Quinlan v. City of New York, 293 A.D.2d 262 (1st Dep't 2002); Bombard. v. Central Hudson Gas & Elec. Co., 229 A.D.2d 837 (3rd Dep't 1996); lv. to app. dism. in part, den. in part 89 N.Y.2d 854 (1996); Zuniga v. Stam Realty, 169 Misc.2d 1004, (Sup. Ct Queens Co. 1996), aff'd 245 A.D.2d 561 (2nd Dep't 1997), lv. denied 91 N.Y.2d 813 (1998).
Plaintiff, however, argues that in their contemporaneous work records, all introduced into evidence at trial, Tim Browne and North Fork's project manager, Robert Cornell, both referred to the work in question as "demolition". In fact, Mr. Cornell testified that he was at the job site on August 7, the day before the accident, for a regular weekly progress meeting with Mr. Browne and others and wrote in his notes "Demo on safe door started." (emphasis supplied)
Demolition, consistent with the Industrial Code definition, necessitates the total or partial dismantling or razing of a building or structure . . . What the rule envisions is some structural change of the building, in whole or in part, i.e., some interference with, alteration or change in the structural integrity of the building, sufficient to constitute a dismantling or razing of the building, either in whole or in part.
Zuniga v. Stam Realty, supra at 1010.
The task being performed at the time of plaintiff's accident was not the mere "removal of a door" as urged by defendants, but rather the demolition of a two-ton steel vault door. This was clearly an "interference with, alteration or change in the structural integrity" of the Bank and was "work incidental to or associated with the total or partial dismantling" of the Bank, even if most of the other demolition work had already been completed and, thus, was protected work under Labor Law § 241(6). See, Pino v. Robert Martin Company, 22 A.D.3d 549 (2nd Dep't 2005).
Moreover, just because plaintiff was not part of the original demolition crew on site on behalf of Diamond and did not have experience in construction or demolition does not mean that the work he was engaged in on August 8, 2003 was not "demolition work" within the contemplation of the statute.
Defendants next argue that the Industrial Code provisions relied upon by plaintiff are not applicable to the facts of this case. The two relevant sections of the Code are Rule 23-3.3(b)3 and Rule 23-3.3(c) which provide as follows:
23-3.3 Demolition by hand.
Demolition of walls and partitions.
* * *
(3) Walls, chimneys and other parts of any building or other structure shall not be left unguarded in such condition that such parts may fall, collapse or be weakened by wind pressure or vibration.
* * *
Inspection. During hand demolition operations, continuing inspections shall be made by designated persons as the work progresses to detect any hazards to any person resulting from weakened or deteriorated floors or walls or from loosened material. Persons shall not be suffered or permitted to work where such hazards exist until protection has been provided by shoring, bracing or other effective means.
Defendants argue that this section is not applicable here because this case did not involve the demolition of a wall or a partition.
Defendants further contrast this Rule to Rule 23-3.4 which deals with mechanical means of demolition as opposed to demolition by hand, and provides as follows:
(b) Structural stability. Walls, chimneys and other parts of any building or other structure shall not be left unsupported (emphasis supplied) or unguarded in such condition that such parts may fall, collapse or be weakened by wind pressure or...
To continue reading
Request your trial