Silva v. FC Beekman Assocs., LLC

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: REINALDO E. RIVERA
• Citation: Silva v. FC Beekman Assocs., LLC, 92 A.D.3d 754, 938 N.Y.S.2d 583, 2012 N.Y. Slip Op. 1236 (N.Y. App. Div. 2012)
• Decision Date: 14 February 2012
• Parties: Antonio SILVA, plaintiff-respondent, v. FC BEEKMAN ASSOCIATES, LLC, et al., defendants third-party plaintiffs-appellants-respondents;Gotham Safety Services Corp., third-party defendant-appellant.

2012 N.Y. Slip Op. 01236

92 A.D.3d 754

938 N.Y.S.2d 583

Antonio SILVA, plaintiff-respondent,

v.FC BEEKMAN ASSOCIATES, LLC, et al., defendants third-party plaintiffs-appellants-respondents;Gotham Safety Services Corp., third-party defendant-appellant.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 14, 2012.

London Fischer, LLP, New York, N.Y. (Daniel Zemann, Jr., of counsel), for defendants third-party plaintiffs-appellants-respondents.

Nicoletti Hornig & Sweeney, New York, N.Y. (Michael F. McGowan of counsel), for third-party defendant-appellant.

Block O'Toole & Murphy, New York, N.Y. (David L. Scher of counsel), for plaintiff-respondent.REINALDO E. RIVERA, J.P., DANIEL D. ANGIOLILLO, ARIEL E. BELEN, and SHERI S. ROMAN, JJ.

In an action to recover damages for personal injuries, the defendants third-party plaintiffs appeal from so much of an order of the Supreme Court, Queens County (Kitzes, J.), dated December 10, 2010, as granted the plaintiff's motion for summary judgment on the issue of liability with respect to the cause of action alleging a violation of Labor Law § 240 (1), and the third-party defendant appeals, as limited by its brief, from so much of the same order as denied that branch of its cross motion which was for summary judgment dismissing the third-party causes of action for common-law indemnification and contribution.

ORDERED that the order is reversed insofar as appealed from by the defendants third-party plaintiffs, on the law, and the plaintiff's motion for summary judgment on the issue of liability with respect to the cause of action alleging a violation of Labor Law § 240(1) is denied; and it is further,

ORDERED that the order is affirmed insofar as appealed from by the third-party defendant; and it is further,

ORDERED that one bill of costs is awarded to the defendants third-party plaintiffs payable by the plaintiff and third-party defendant.

The plaintiff alleged that he was injured on October 22, 2007, while employed by nonparty Urban Foundation Engineering, LLC, and working in an elevator pit on a construction project at a residential high-rise building in Manhattan, when he fell approximately 14 feet from a scaffold.

The plaintiff commenced this action against FC Beekman Associates, LLC, the owner of the subject premises, and Kreisler Borg Florman General Construction Company, the general contractor on the construction project (hereinafter together the defendants), alleging that the defendants were negligent and violated, inter alia, Labor Law § 240(1). The defendants commenced a third-party action asserting causes of action for, inter alia, common-law indemnification and contribution against Gotham Safety Services Corp. (hereinafter Gotham), the site safety representative whose duties included performing a daily safety inspection of the site and advising the contractors of any needed corrective action, such as the need to use railings for fall protection.

Labor Law § 240(1) provides, in relevant part, that “[a]ll contractors and owners and their agents ... in the erection, demolition, repairing, altering, ... 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” (Labor Law § 240[1] ).

The plaintiff made a prima facie showing of entitlement to judgment as a matter of law based on his testimony that he fell approximately 14 feet from an elevated scaffold, which was positioned two feet from a wall and was not equipped with railings or surrounded with netting, and that he was not provided with a personal safety device, such as a harness or lifeline ( see Moran v. 200 Varick St. Assoc., LLC, 80 A.D.3d 581, 582, 914 N.Y.S.2d 307; Chlebowski v. Esber, 58 A.D.3d 662, 663, 871 N.Y.S.2d 652; Madalinski v. Structure–Tone, Inc., 47 A.D.3d 687, 687–688, 850 N.Y.S.2d 505). In opposition, the defendants raised triable issues of fact. The defendants proffered the affidavit of the plaintiff's co-employee and foreman, James Kern. Kern asserted, in relevant part, that the plaintiff was working with Kern and another laborer maneuvering a steel lintel into place around the top of a vault box while a site safety representative from Gotham was watching from the east side of the vault box. Although Kern stated that he did not witness the accident, he asserted that the scaffold was equipped with railings on at least two sides.

The Supreme Court erred in refusing to consider any portion of Kern's affidavit in opposition to the plaintiff's motion for summary judgment as inadmissible hearsay. Although hearsay evidence is insufficient to defeat a motion for summary judgment if it is the only evidence submitted ( see Roche v. Bryant, 81 A.D.3d 707, 708, 916 N.Y.S.2d 185; Roldan v. New York Univ., 81 A.D.3d 625, 627, 916 N.Y.S.2d 162; Stock v. Otis El. Co., 52 A.D.3d 816, 816–817, 861 N.Y.S.2d 722), Kern's statement that the scaffold was equipped with two railings was based on his personal observation and was not hearsay.

We disagree with our dissenting colleague's description and characterization of Kern's affidavit. In his affidavit, Kern expressly averred that “[t]he scaffold was equipped with railings on at least two sides, including the side off [of] which [the] [p]laintiff allegedly fell.” The fact that this statement was not followed by the words “at the time of the accident” is not dispositive. When Kern's affidavit is read in proper context and in its totality, it is sufficiently clear that Kern was referring to the time of the subject accident.

“It is not the court's function on a motion for summary judgment to assess credibility” ( Ferrante v. American Lung Assn., 90 N.Y.2d 623, 631, 665 N.Y.S.2d 25, 687 N.E.2d 1308). There is no basis to conclude that the issues presented are not genuine or to determine, as a matter of law, in effect, that Kern is lying. Accordingly, Kern's assertions raise triable issues of fact as to whether the defendants violated Labor Law § 240(1) and, if so, whether the violation was a proximate cause of the plaintiff's injuries, requiring the denial of the plaintiff's motion for summary judgment on the issue of liability with respect to the cause of action alleging a violation of Labor Law § 240(1) ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572; Wiener v. Rosmarin, 282 A.D.2d 449, 449–450, 722 N.Y.S.2d 409; Golaszewski v. Cadman Plaza N., 136 A.D.2d 596, 597, 523 N.Y.S.2d 581).

The Supreme Court properly denied that branch of Gotham's motion which was for summary judgment dismissing the third-party causes of action for common-law indemnification and contribution. Based on its authority as the site safety consultant, its ability to stop imminently dangerous work from continuing, and the evidence that a Gotham representative observed the plaintiff working on the scaffold prior to the accident, without taking any action, Gotham failed to make a prima facie showing of its entitlement to judgment as a matter of law, as it failed to make a prima facie showing that it was free from negligence in the happening of the accident ( see Alvarez v. Prospect Hosp., 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572; Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718; Weitz v. Anzek Constr. Corp., 65 A.D.3d 678, 681, 885 N.Y.S.2d 314; Goodleaf v. Tzivos Hashem, Inc., 19 Misc.3d 1104(A), 2008 N.Y. Slip Op. 50555(U), 2008 WL 724730, affd. 68 A.D.3d 817, 889 N.Y.S.2d 478).

RIVERA, J.P., ANGIOLILLO and ROMAN, JJ., concur.

BELEN, J., dissents in part and concurs in part, and votes to affirm the order appealed from, with the following memorandum.

I respectfully dissent, in part, because I disagree with my colleagues' determination to reverse the order insofar as appealed from by the defendants third-party plaintiffs and to deny the plaintiff's motion for summary judgment on the issue of liability with respect to the cause of action alleging a violation of Labor Law § 240(1).

The plaintiff alleged that on October 22, 2007, while employed by nonparty Urban Foundation Engineering, LLC (hereinafter Urban), and working on a scaffold erected inside an elevator pit during a construction project at a residential high-rise building in Manhattan, he fell from a height of approximately 10 to 14 feet into an approximately two-foot wide gap between the scaffold and the elevator pit wall. At the time, the plaintiff was working with two coworkers, including Urban's foreman, both of whom were standing outside the elevator pit to install steel lintels, which were approximately six feet by twelve feet long, over the top of the next elevator pit. The plaintiff commenced this action against the premises owner, FC Beekman Associates, LLC (hereinafter FC Beekman), and the project's general contractor, Kreisler Borg Florman General Construction Company (hereinafter KBF and together with FC Beekman, the defendants), respectively, seeking to recover damages for common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6).

Labor Law § 240(1) imposes liability upon property owners and contractors who violate the statute by failing to provide or erect safety devices necessary to give proper protection to workers exposed to elevation-related hazards, where such failure constitutes a proximate cause of the accident ( see Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 39, 790 N.Y.S.2d 74, 823 N.E.2d 439; Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487, 490–491, 634 N.Y.S.2d 35, 657 N.E.2d 1318; Balzer v. City of New York, 61 A.D.3d 796, 797, 877 N.Y.S.2d 435; Chlebowski v. Esber, 58 A.D.3d 662, 663, 871 N.Y.S.2d 652). A scaffold without guardrails or other protective devices to prevent a worker...