Pereira v. A. D. Herman Const. Co., Inc.

• Decision Date: 19 February 1980
• Citation: 74 A.D.2d 531,425 N.Y.S.2d 308
• Parties: Antonio Lopes PEREIRA, Plaintiff-Respondent, v. A. D. HERMAN CONSTRUCTION CO., INC., Defendant-Appellant, Stony Brook University and Dormitory Authority, Defendant. A. D. HERMAN CONSTRUCTION CO., INC., Third-Party Plaintiff-Appellant, v. MASCEDOS CONCRETE CORPORATION, Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 308

425 N.Y.S.2d 308

74 A.D.2d 531

Antonio Lopes PEREIRA, Plaintiff-Respondent, v. A. D. HERMAN CONSTRUCTION CO., INC., Defendant-Appellant, Stony Brook University and Dormitory Authority, Defendant.

A. D. HERMAN CONSTRUCTION CO., INC., Third-Party Plaintiff-Appellant, v. MASCEDOS CONCRETE CORPORATION, Third-Party Defendant-Respondent.

Supreme Court, Appellate Division, First Department.

Feb. 19, 1980.

F. R. Profeta, Jr., New York City, for plaintiff-respondent.

J. D. Ahearn, New York City, for defendant-appellant and third-party plaintiff-appellant.

Before BIRNS, J. P., and FEIN, SULLIVAN, MARKEWICH and LYNCH, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, entered on September 13, 1978, modified, on the law and on the facts, and the matter remanded for a new trial on the issue of damages only, and otherwise affirmed, without costs and without disbursements; and the judgment entered thereon on December 26, 1978 reversed, and vacated, without costs and without disbursements.

FEIN, J., concurs in part and dissents in part in a memorandum, and would affirm in toto.

SULLIVAN and MARKEWICH, JJ., concur in a memorandum by SULLIVAN, J., as to affirmance as to liability and would modify and remand for a new trial on the issue of damages only.

BIRNS, J. P., and LYNCH, J., concur in part and dissent in part in a memorandum by LYNCH, and would remand for a new trial on the issue of damages (in which SULLIVAN and MARKEWICH, JJ., partially concur for remand on the issue of damages) and would reverse outright, deny plaintiff's motion for summary judgment, reinstate the third party action and remand for a new trial on the issue of liability as well as damages, with costs to abide the event.

FEIN, Justice (concurring in part, dissenting in part).

The dissenters would reverse summary judgment because there were no witnesses to plaintiff's fall from the scaffolding. I respectfully disagree. Summary judgment should not be denied to a plaintiff merely because he is the sole witness to the accident. Moreover, the record here is not so limited.

In his affidavit in support of his motion for summary judgment plaintiff swore:

"I was injured on September 12, 1975, while working as a carpenter in the employ of Mascedos Concrete Corporation at a building site at Stony Brook University under the direction of the general contractor, A. D. Herman Construction Co. I was standing on a scaffold preparing forms for a concrete wall, approximately 12 to 13 feet high, when a 2 X 4 timber cross brace, supporting the plank on which I was standing, broke in two and I fell to the ground some 10 to 12 feet below."

In his affirmation in opposition to the motion one of the attorneys for the defendant affirmed:

"As Counsel for plaintiff states in his affirmation, plaintiff was injured when the scaffolding he was standing on collapsed. The depositions of the parties, conducted on July 24, 1978 and July 31, 1978, show that the plaintiff was an experienced worker, employed by third party defendant, who, with the aid of other experienced workers, constructed the scaffold in question. However, at this point, structural and other physical analysis and testing of the scaffold in question has not been conducted, and therefore the essential issue as to why the scaffold collapsed has not been ascertained. The mere fact that the plaintiff was injured does not inescapably lead to the conclusion that this defendant, as general contractor, was responsible for inadequate, unstable, or ill-equipped scaffold."

The dissent suggests that the statement by defendant's attorney in this affirmation, conceding "plaintiff was injured when the scaffolding he was standing on collapsed", should merely be interpreted as a summation of plaintiff's allegations of negligence. I do not so read it. However, if it be assumed that this is merely a summation of plaintiff's allegations, rather than an admission as to how the accident happened, there is nothing left of the attorney's affidavit in opposition to the motion. There remains only some legal argument directed to questions of notice and contributory negligence, both of which are clearly irrelevant. Nothing was submitted by defendant by way of evidence as to how and why the accident occurred. No factual allegations are made or suggested contradicting or denying plaintiff's version. There is not one shred of evidence in the opposition papers even suggesting that plaintiff did not fall because of a broken scaffold. In the absence of even a hint of such evidence, plaintiff is plainly entitled to summary judgment.

Moreover, there is further evidence that the accident occurred because the scaffolding broke.

In the reply affirmation of the attorney for the plaintiff there is quoted from the examination before trial of the third-party defendant, plaintiff's employer, the following:

"Q: Did you find fault with the scaffold?

Do you understand what I mean?

Did you find you did anything wrong with the building of this scaffold?

"A: No."

"Q: Did you find anything wrong with the size of the lumber that he used?

"A: No."

"Q: Where it was broken, was there a knot?

"A: I don't remember.

"Q: Was it split before it broke? * * *

"Q: Could you describe the ends, the two by fours that were broken?

How were they split?

How were they split?

How were they broken?

Was it broken clean through, split length-wise?

"A: It was broken clean through.

"Q: There was no splitting, it just broke in one section?

"A: It was broken in one section."

"Q: Do you know what I am talking about?

Where it was broken, what did you see?

Can you describe what you saw?

"A: The two by fours broken, broken in the middle of the span.

"Q: Is there anything about that break that told you, as a carpenter, what caused it to break?

"A: The fault of the two by four."

The obligation of a party opposing a motion for summary judgment to assemble and lay bare affirmative proof to demonstrate the existence of a genuine triable issue of fact is well settled. (Shaw v. Time-Life Records, 38 N.Y.2d 201, 379 N.Y.S.2d 390, 341 N.E.2d 817; Stainless, Inc. v. Employers Fire Ins. Co., 69 A.D.2d 27, 418 N.Y.S.2d 76; Di Sabato v. Soffes, 9 A.D.2d 297, 193 N.Y.S.2d 184.) No such evidence or proof or even an intimation that such proof may exist has been submitted by defendant.

Hence the cases relied upon by the majority questioning the application of summary judgment do not support the view that under these circumstances summary judgment should be denied. Nordlicht v. Norton Simon, Inc., 70 A.D.2d 511, 415 N.Y.S.2d 855, reversed a summary judgment where the issue was whether plaintiff was a bona fide purchaser, and there was evidence that he had knowledge of the execution of a hypothecation certificate and stock power in blank on false representations as to their use. The issue found triable was that of actual knowledge.

In Royal Business Funds Corp. v. Commercial Trading Co., Inc., 59 A.D.2d 864, 401 N.Y.S.2d 69, the triable issue found was whether plaintiff's officers had been aware of the existence of a guarantee in light of circumstances establishing such knowledge. In the face of plaintiff's argument that the guarantee was unauthorized, there was a question whether plaintiff had acquiesced in or ratified the guarantee. Plainly these cases, concerned with subjective questions of knowledge, have no bearing on the issues before us.

Closer is Wood v. Picon, 57 A.D.2d 863, 394 N.Y.S.2d 251, where plaintiff was a passenger in an automobile owned by defendant and driven by defendant's son who was killed in a one-car accident when the car left the highway and struck objects at the side of the road. In light of the death of the driver it was held that summary judgment should have been denied. There were issues of negligence and contributory negligence requiring a trial. Here, there is no such problem. There is no issue of negligence or contributory negligence in this action brought pursuant to Labor Law § 240. And there is no factual dispute as to how the accident happened. Plaintiff and his employer are both alive and their sworn testimony is before the court.

Thus it is plain and undisputed that plaintiff fell and sustained the injuries and damages for which he sues because a portion of the scaffold on which he was standing while working broke in two, causing him to fall to the ground. Labor Law § 240 imposes a non-delegable duty on the general contractor which imports absolute liability. In pertinent part, Labor Law § 240 provides:

"1. All contractors and owners and their agents, in the erection, * * * repairing, altering * * * of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding * * * and other devices which shall be so constructed placed and operated as to give proper protection to a person so employed."

"3. All scaffolding shall be so constructed as to bear four times the maximum weight required to be dependent therefrom or placed thereon when in use."

In light of the history of the statute and its antecedents, it is too late now to argue, as does the defendant, that plaintiff's participation in the erection of the scaffold entitles the defendant to rely either on contributory negligence or comparative negligence. In enacting Labor Law § 240, "the legislature imposed * * * a flat and unvarying duty", a non-delegable duty for breach of which absolute liability flows (Koenig v. Patrick Constr. Corp., 298 N.Y. 313, 318, 83 N.E.2d 133, 135).

In that case the plaintiff had placed a ladder against a wall. While he was working atop the ladder it slipped and hurled him to the floor. The court held that any negligence on his part was not a defense. To the same effect is Haimes v. New York Telephone Company, 46 N.Y.2d 132, 412 N.Y.S.2d 863, 385 N.E.2d 601, where the plaintiff's decedent was a self-employed independent contractor to whom the owner was held absolutely...