Perez v. 147 Green St. LLC
| Decision Date | 04 April 2022 |
| Docket Number | Index 505066/16 |
| Citation | 2022 NY Slip Op 31064 (U) |
| Parties | Marcos Nicholas Deleon Perez, a person adjudged to be incompetent by his appointed Guardian, Vera Institute of Justice, The Guardianship Project, Plaintiff, v. 147 Green Street LLC and Aida Building Co, Inc., Defendants. 147 Green Street LLC and Aida Building Co, Inc., Third-Party Plaintiff, v. Eastern Elevator Company, Inc., Third-Party Defendant. |
| Court | New York Supreme Court |
HON KAREN B. ROTHENBERG J. S. C.
The following e-filed papers read herein:
NYSCEF Nos.:
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed
Opposing Affidavits (Affirmations)
124-129, 130-135, 137-139
Affidavits/ Affirmations in Reply
Plaintiff moves in M.S. 9 for an order pursuant to CPLR 3212, granting him partial summary judgment on the issue of Labor Law § 240 (1) liability against defendant owner 147 Green Street LLC (147 Green).
147 Green was the owner of the subject premises located at 147 Green Street in Brooklyn. 147 Green retained Aida Building Co, Inc. (Aida), to serve as the general contractor for a project that involved the construction of a new five story building with a cellar. 147 Green retained Eastern Elevator Company Inc., (Eastern) to install a passenger elevator at the site. Plaintiff was employed by Eastern as a mechanic involving various aspects of elevator installation. Plaintiff, along with his brother Juan Jose Deleon Perez (Juan) and another employee "Keith", were working at the premises in February 2016 to install the elevator. They had already installed approximately 16-20 rails inside the elevator shaft and had set up the "sling" which would ultimately become the finished elevator cab. The sling frame fit inside the rails and could be moved up and down the shaft using a chain hoist located at the top of the shaft. The sling, consisting of a makeshift plywood floor and metal clamps that served as the platform's safety brakes was assembled in the basement on or about February 14, 2016.
Juan testified that the workers tested it by attaching the chain hoist to the sling's crosshead beam, raising it up to the first floor, and then setting the brakes. The sling assembly's platform, with the brakes engaged, aligned with the first floor and remained in that position until February 16, 2016. Plaintiff, Juan, and Keith began work at around 8:30 a.m. on February 16th and planned to hoist the elevator's motor, weighing approximately 1, 800 pounds into its overhead position. The motor was on a dolly on the first floor as they wheeled it over to the sling's platform. In order to move the dolly and motor onto the platform, the workers unhooked and moved the chain hoist's chain from the upper crossbar of the sling's frame. Plaintiff remained on the platform with the motor while Juan went to the second floor to move the hoist's chain to its proper position. Juan testified that he looked down from the shaft above as plaintiff connected the chain to the motor and activated the hoist, causing the chain to begin moving. Juan testified that he then left the elevator shaft and was in the process of replacing the shaft barricade on the second floor when he heard (NYSCEF doc. no. 113, Juan deposition tr at p. 77, lines 21-24). He looked down the shaft and observed that the platform, the motor, and plaintiff had all fallen down to the bottom of the shaft in the basement or cellar level. He observed that the chain had detached from the motor and the hook between the motor and chain had broken. Juan ran down to the cellar and found plaintiff unconscious and bleeding from the head. Plaintiff was taken by ambulance to Bellevue Hospital where he remained in a medically induced coma for approximately 23 days. He suffered a severe brain injury and was ultimately adjudged incompetent, and a conservator was appointed to protect his interests.
Plaintiff moves for an order granting him partial summary judgment on the issue of liability against 147 Green, pursuant to Labor Law § 240 (1).
Labor Law § 240 (1) Standard
Labor Law § 240 (1), states, in relevant part, that:
All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed . . .
The purpose of Labor Law § 240 (1) is to protect workers "from the pronounced risks arising from construction work site elevation differentials" (Runner v New York Stock Exch., Inc., 13 N.Y.3d 599, 603 [2009]; see also Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 514 [1991]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501 [1993]). Consequently, Labor Law § 240 (1) applies to accidents and injuries that directly flow from the application of the force of gravity to an object or to the injured worker performing a protected task (see Gasques v State of New York, 15 N.Y.3d 869 [2010]; Vislocky v City of New York, 62 A.D.3d 785, 786 [2d Dept 2009], lv dismissed 13 N.Y.3d 857 [2009]). Accordingly, "[t]he purpose of the statute is to protect against 'such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured'" (Ross v DD 11th Ave., LLC, 109 A.D.3d 604, 604-605 [2d Dept 2013], quoting Ross, 81 N.Y.2d at 501). "In determining whether the plaintiff is entitled to the extraordinary protection of that strict liability statute, 'the single decisive question is whether [the] plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential'" (Christie v Live Nation Concerts, 192 A.D.3d 971, 972 [2d Dept 2021], quoting Runner, 13 N.Y.3d at 603; see Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d 1 [2011]). The duty to provide the required "proper protection" against elevation- related risks is nondelegable; therefore, owners, contractors and their agents are liable for the violations even if they have not exercised supervision and control over either the subject work or the injured worker (see Zimmer v Chemung County Performing Arts, Inc., 65 N.Y.2d 513, 521 [1985] [owner or contractor is liable for Labor Law § 240 (1) violation "without regard to . . . care or lack of it"]; see Roblero v Bais Ruchel High Sch., Inc., 175 A.D.3d 1446, 1447 [2d Dept 2019]). "To succeed on a cause of action under Labor Law § 240 (1), a plaintiff must establish that the defendant violated its duty and that the violation proximately caused the plaintiff's injuries" (id.). "A worker's comparative negligence is not a defense to a claim under Labor Law § 240 (1) and does not effect a reduction in liability" (Roblero, 175 A.D.3d at 1447, citing Blake v Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 286 [2003]; see also Garzon v Viola, 124 A.D.3d 715, 716-717 [2d Dept 2015]).
Plaintiff argues that 147 Green, as the owner of the premises, is strictly liable as his injuries were the result of a Labor Law § 240 (1) violation and that his accident occurred when he was performing work covered under the statute. Specifically, that he was not provided with adequate equipment to ensure that the elevated platform he was working on would not collapse and fall, and further that the sole chain hoist was inadequate to prevent the motor, that was being hoisted, from falling. Plaintiff acknowledges that it cannot be definitively determined if he sustained his injuries as a result of the platform's collapse or from being struck by either the falling motor or the chain hoist's hook. In any event his injuries were the result of a failure to protect him from the application of the force of gravity during the failed hoisting operation.
In support of his motion, plaintiff submits an affidavit from Michael Sena, who affirms that he has over 34 years of relevant experience in the vertical transportation field, including all aspects of maintenance, service, repair, and consulting for vertical transportation equipment including elevators, escalators, moving walks, lifts, dumbwaiters, and other vertical transportation equipment. Mr. Sena states that he has spent the last 11 years, in the field of accident investigation and reconstruction and code research and interpretation with respect to vertical transportation equipment. Mr. Sena avers that he performed a site inspection of the scene of the accident on April 19, 2016, and took photographs which he attaches to his affirmation. He reviewed Juan's deposition, and the plaintiff's Verified Bill of Particulars. In addition, he consulted the 2015 edition of the Elevator Industry Field Employees' Safety Handbook (the Handbook), which he contends is widely used in the elevator industry.
Mr Sena opines, to a reasonable degree of mechanical vertical transportation certainty, that plaintiff and the workers at this site were not provided adequate and necessary safety equipment to secure the elevated platform and to protect themselves in the event of a fall. He points out that the unguarded platform, when located at the...
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