Santos v. Avalon Bay Cmtys.
| Decision Date | 06 April 2022 |
| Docket Number | Index 157906/2017 |
| Parties | CARLOS SANTOS, Plaintiff, v. AVALON BAY COMMUNITIES, INC., AVALON GREAT NECK, LLC, Defendant. Motion Seq. No. 002 |
| Court | New York Supreme Court |
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 002) 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106 were read on this motion to/for JUDGMENT - SUMMARY.
Plaintiff commenced this action seeking damages for personal injuries he alleges were incurred when he fell from a ladder at a construction site during the course of his employment. Avalon Bay Communities, Inc. (Avalon Bay) and Avalon Great Neck, LLC (Avalon) are the owners of the premises located at 140 East Shore Road, Great Neck, New York (Subject Premises). Defendants retained Nova Concrete Contractors, Inc. (Nova) to work on the project. Plaintiff was employed by Nova.
Avalon Bay entered into an agreement with Nova to perform work at the Subject Premises, involving the construction of a new mid-rise residential building.
On March 4, 2016, plaintiff, a cement worker employed by Nova, was working at the Subject Premises, when he fell from a ladder and sustained injuries. Plaintiff had been working at the site for approximately 4-5 months prior to the day of the accident. On the date of the accident, the building had "three levels." That day, the workers were preparing to pour concrete to put up iron on the third level.
However, before that work began, snow removal had to be performed at the site because there were several inches of snow on the ground that morning. So, the Nova workers cleared snow at the site. After performing snow removal, the Nova workers organized the concrete forms and were then sent to tie long pieces of rebar together to be able to pour the concrete. Plaintiff had a special tool to tie the wire, which he had left on the third level of the building. Plaintiff alleges there were approximately three extension ladders set up to gain access to the third floor. Plaintiff was never advised not to use any particular ladder to access the third floor.
Plaintiff used ladder that was closest to the area where he was working; The subject extension ladder had already been in place in this location when plaintiff arrived on the site. Although, generally, ladders at the site would be secured, plaintiff did not see any wire tying the subject ladder to the third level prior to the accident. Prior to this accident, plaintiff had used the same ladder to climb every day for at least a week.
In addition, the subject extension ladder did not extend above the third level. The accident occurred when plaintiff went to step off the ladder onto the third floor and the ladder moved under his other foot, causing him to fall to the ground. Plaintiff did not see the ladder after the accident and did not know if the ladder also fell in addition to moving under him.
There were no witnesses to the accident.
John Siragusa (JS), the senior lead superintendent for Avalon Bay, received a call notifying him of the accident. By the time JS arrived at the scene, plaintiff had already been taken to the hospital. JS did not speak to plaintiff but spoke with a foreman Paul who told him which ladder he believed plaintiff had fallen from. The ladder JS inspected was secured to the second floor. JS testified that all extension ladders at the site should have been secured to the area of the work being done.
JS testified that the ladder he observed and photographed after the accident was secured to the second floor and extended approximately five feet beyond the second level. JS testified that the extension ladder he observed was extended about 15 feet from bottom to top. The ladder extended to, but did not go higher than the third level, which had plywood flooring. JS testified that an extension ladder is supposed to be placed with two rungs of the ladder above the higher level, and that all extension ladders at the site should have been secured to the area of the work being done. JS further testified that workers were not required or expected to use a harness to climb an extension ladder.
Defendants allege that the ladder was not intended to access the third floor of the Subject Premises and there were several other ladders available to the plaintiff with access to the third floor that plaintiff was aware of and had previously used. Plaintiff alleges that there was no indication that plaintiff was expected to use another ladder to access the third floor and the ladder slipped while plaintiff was using it.
Plaintiffs expert Herbert Heller, Jr, P.E., opined, that the subject ladder that moved as plaintiff was climbing it was a violation of Labor Law §240(1) and proximately caused the subject accident. Mr. Heller further attested that, even if defendants were to claim that the ladder was only intended for the second level and not the third level, it was still a §240(1) violation because there should have been signs and warnings not to use the ladder to reach the top floor, given that it was in a position where it could be used to reach that floor. Mr. Heller also attested that the failure to secure the ladder at the third level and the failure to position the ladder where it extended two feet above the top level violated construction site safety standards as well as rules and regulations including the Industrial Code, rule 23-1.21(b)(4), which he asserted was a predicate for a Labor Law §241(6) violation that was a proximate cause of the subject accident.
On July 13, 2021, plaintiff moved for summary judgment as to liability, and on September 22, 2021, defendants cross-moved for summary judgment and dismissal of the complaint. The motions are consolidated herein for disposition and granted to the extent set forth below.
It is well established that CPLR § 3212 authorizes the grant of summary judgment if it can be shown that no issues of material fact exist which require a trial. Sillman v Twentieth Century Fox Film Corp., 3 N.Y.2d 395, 404 (1957). See also Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974) (). To establish entitlement to judgment as a matter of law, the movant must make & prima facie showing by tendering sufficient evidence to eliminate any material issues of fact from the case. Penthouse Terraces, Inc. v. McGrath, 163 A.D.2d 144 (1st Dep't 1990). Once the moving party demonstrates its entitlement to summary judgment, the burden then shifts to the opposing party to present facts demonstrating that genuine, triable issues of fact exist, which would preclude the granting of summary judgment. Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980).
The duty to provide a safe worksite imposed upon owners, general contractors and their agents is based upon supervision and control. "The purpose of the [Labor Law] is to protect workers by placing the "ultimate responsibility' for worksite safety on the owner and general contractor instead of the workers themselves." Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500; Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513. Labor Law § 200 is the codification of the common-law duty of owners, general contractors and their agents to protect the health and safety "of all persons employed therein or lawfully frequenting such places." Allen v. Cloutier Constr. Corp., 44 N.Y.2d 290, 299(1978). An implicit precondition of this duty "is that the party charged with that responsibility has the authority to control the activity bringing about the injury." Russin v. Picciano & Son, 54 N.Y.2d 311, 317 (1981).
Labor Law § 200 applies where workers are injured as a result of dangerous or defective premises conditions at a worksite or where a worker is injured by the manner in which the work is performed. When a premises condition is at issue, the owner may be held liable for a violation of the statute if the owner created the condition that caused the accident or had actual or constructive notice of the dangerous condition. See, Azadv. 270 5th Realty Corp., 46 A.D.3d 728, 730 (2d Dep't 2008); Kerins v. Vassar Coll., 15 A.D.3d 623, 626 (2d Dep't 2005).
In Cody v. State of New York, 82 A.D.3d 925, 927 (2nd Dept. 2011), the Appellate Division, Second Department held that cases fall into the "means and methods of the work" category if the object which caused the alleged injury "had been a product of ongoing construction work..." Id. Where the material that caused plaintiffs injury was being used by the plaintiff or his co-workers, then the case falls into the "means and methods of the work" category. See, Gomez v. City of New York, 56 A.D.3d 522, 523 (2d Dept. 2008); Mas v Koehn, 283 A.D.2d 616 (2d Dept. 2001). When the action involves the manner in which work is performed liability will not attach to the owner based solely on notice of the allegedly unsafe manner in which work was performed. Dennis v. City of New York, 304 A.D.2d 611, 612 (2nd Dept. 2003). Rather, "[t]o impose liability under section 200, it is necessary to show authority and control over plaintiffs 'work.'" Bell v. Bengomo Realty, Inc., 36 A.D.3d 479, 481 (1st Dept. 2007). Specifically, where the alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no...
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