Stevenson v. Joseph
| Decision Date | 12 March 2021 |
| Docket Number | Index 2018-594 |
| Citation | 2021 NY Slip Op 33180 (U) |
| Court | New York Supreme Court |
| Parties | HAROLD STEVENSON, Plaintiff, v. JAMES F. JOSEPH, JAMES F. JOSEPH REVOCABLE TRUST, HOTTENROTH & JOSEPH ARCHITECTS and JAMES F. JOSEPH, JR., Individually, and as Trustee of the JAMES F. JOSEPH REVOCABLE TRUST, Defendants. |
Unpublished Opinion
MICHAEL C. CONWAY, Esq.
HARRIS, CONWAY & DONOVAN, PLLC
Attorney for Plaintiff
BRIAN D. CASEY, Esq.
Cabaniss Casey LLP
Attorney tor Defendants
Adam W. Silverman, Judge Before the Court is Plaintiffs Motion for Partial Summary Judgment as to liability pursuant to Labor Law § 240 (1) and Defendants[1] Cross Motion for Summary Judgment dismissing various causes of action asserted by Plaintiff. Summary judgment is a drastic remedy that must denied when a substantial question of credibility raises an issue of fact.
On May 30, 2018, Plaintiff was injured by falling from an unsecured ladder while working on a roof replacement project at a two-story residential rental property owned by Defendants, as a laborer for nonparty JBM Property Maintenance, Inc.. Plaintiff testified at his deposition that he was bringing a box of nails up a ladder to the roof at the request of another employee when, while lifting his left foot up, the ladder kicked out from under him. Plaintiff sustained injuries requiring a month of hospitalization.
On June 27, 2018, Plaintiff commenced an action by filing a Summons and Complaint alleging negligence and Labor Law violations against Defendants. After two amendments to the complaint, which are not relevant to this Motion, Defendants joined issue by filing an Answer on or around April 1, 2019.
Currently before the Court is Plaintiffs Motion seeking partial summary judgment. Plaintiff alleges that there is no question of fact that Defendants, as owner of the worksite, breached their nondelegable duty, pursuant to Labor Law § 240 (a), to provide Plaintiff with elevation-related safety devices to prevent his fall.
Defendants oppose Plaintiffs Motion and cross-moved for partial summary judgment dismissing Plaintiffs Labor Law § 200 and negligence causes of action with prejudice. Defendants assert that Plaintiffs Motion must be denied because 1.) a ladder, which is among the safety devices specified in the statute, was present at the job site and utilized by Plaintiff, raising a question of fact; 2.) a question of fact is presented with respect to how the incident occurred - specifically if Plaintiff simply fell 3.) a question of fact is presented with respect to how the incident occurred - specifically if Plaintiff intentionally staged his own injury.
Summary judgment is a drastic remedy which will be granted only when the moving party has established prima facie entitlement to judgment as a matter of law by presenting competent evidence that there is no doubt as to the absence of a triable issue of fact (see Alvarez v Prospect Hospital, 68 N.Y.2d 320, 324 [1986]; McDay v State, 138 A.D.3d 1359, 1359 [3d Dept 2016]). "The court's function on amotion for summary judgment is issue finding not issue determination" (Gadani v Dormitory Auth of State of N.Y., 43 A.D.3d 1218, 1219 [3d Dept 2007]; see Lacasse v Sorbello, 121 A.D.3d 1241, 1242 [3d Dept 2014]), and this Court "must view the evidence in the light most favorable to the nonmoving party and accord such party the benefit of every reasonable inference that can be drawn therefrom" (Aretakis v Cole's Collision, 165 A.D.3d 1458, 1459 [3d Dept 2018]; see Healthcare Professionals Ins. Co. v Parentis, 165 A.D.3d 1558, 1565 [3d Dept 2018]).
The burden then shifts to the nonmoving party to establish by admissible proof, the existence of genuine issues of fact (see Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]; Davis v EAB-TAB Enters., 166 A.D.3d 1449, 1450 [3d Dept 2018]). However, in opposing a motion for summary judgment, the nonmoving party "must produce evidentiary proof in admissible form ... or must demonstrate acceptable excuse for his [or her] failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v City of New York, 49 N.Y.2d at 562; accord Miller v Lu-Whitney, 61 A.D.3d 1043, 1047 [3d Dept 2009]; see Banco Popular North America v Victory Taxi Management, Inc., 1 N.Y.3d 381, 383 [2004] ["[A]verments merely stating conclusions, of fact or of law, are insufficient" to "defeat summary judgment"]).
"Labor Law § 240 (1) imposes a nondelegable duty and absolute liability upon owners and contractors for failing to provide safety devices necessary for workers subjected to elevation-related risks in circumstances specified by the statute" (Soto v J. Crew Inc., 21 N.Y.3d 562, 566 [2013], citing Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 513 [1991]; see Salzer v Benderson Dev. Co., LLC, 130 A.D.3d 1226, 1227 [3d Dept 2015]; Miranda v Norstar Bldg. Corp., 79 A.D.3d 42, 46 [3d Dept 2010]). To recover, the plaintiff must have suffered an injury as "the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Runner v New York Stock Exch., Inc., 13 N.Y.3d 599, 603 [2009]; accord Scribner v State of New York, 130 A.D.3d 1207, 1208 [3d Dept 2015]).
Notably, "the fact that plaintiff was injured while working above ground does not necessarily mean that the injury resulted from an elevation-related risk contemplated by" Labor Law § 240 (1) (Salzer v Benderson Dev. Co., LLC, 130 A.D.3d at 1227-1228).
Therefore, to prevail upon a motion for summary judgment, "plaintiff [is] required to establish that [adequate] safety devices were not provided and that his [or her] injuries were proximately caused by this violation of the Labor Law" (Burhmaster v CRM Rental Mgt., Inc., 166 A.D.3d 1130, 1131-1132 [3d Dept 2018]; see Cahill v Triborough Bridge & Tunnel Auth, 4 N.Y.3d 35, 39 [2004]; Portes v New York State Thruway Auth., 112 A.D.3d 1049, 1050 [3d Dept 2013] [], lv dismissed 22 N.Y.3d 1167 [2014]).
A defendant may "raise a factual issue by presenting evidence that a safety device furnished was adequate and properly placed and that the conduct of the plaintiff may be the sole proximate cause of his or her injuries" (Burhmaster v CRM Rental Mgt., Inc., 166 A.D.3d at 1132-1133 [internal quotation marks, brackets and citation omitted]; see Ball v Cascade Tissue Group-New York, Inc., 36 A.D.3d 1187, 1188 [3d Dept 2007]). "A plaintiff is the sole proximate cause of his or her injuries where it is shown that he or she had adequate safety devices available; that he or she knew both that they were available and that he or she was expected to use them; that he or she chose for no good reason not to do so; and that had he or she not made that choice he or she would not have been injured" (Griffin v AVA Realty Ithaca, LLC, 150 A.D.3d 1462, 1465 [3d Dept 2017] [internal quotation marks, brackets and citation omitted]; see Georgia v Urbanski, 84 A.D.3d 1569, 1570 [3d Dept 2011]).
However, "comparative fault... is not a defense under the statute" (Salzer v Benderson Dev. Co., LLC, 130 A.D.3d at 1228; see Williams v Town of Pittstown, 100 A.D.3d 1250, 1251-1252 [3d Dept 2012]; McGill v Qudsi, 91 A.D.3d 1241, 1243-1244 [3d Dept 2012], appeal dismissed 19 N.Y.3d 1013 [2012]). (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d280, 290 [2003]; see DeRose v Bloomingdale's Inc., 120 A.D.3d 41, 45 [1st Dept 2014] []).
In support of his Motion, Plaintiff submits, as relevant here his own deposition testimony, as well as the deposition transcripts of Joseph B. Murell, David Mosher, and Robert Pulver.
Plaintiff testified that the date of the accident was his first or second day on the books, though he had previously worked for Murell under the table, and that he rode to the worksite with Mosher, his supervisor with JBM Property Maintenance. According to Plaintiff, there were two or three other employees working at the site. Plaintiff stated that, prior to his fall, he had carried supplies up the ladder to the workers on the roof multiple times that morning. Plaintiff further testified that he believed it was Mosher who instructed him to bring the supplies up the ladder. Regarding the fall, Plaintiff testified that he "was getting off of the ladder [and] ... lifted [his] left foot up to get onto the roof and the ladder kicked out" from under him. When asked to elaborate on what he meant by "kicked out", Plaintiff explained that He stated that his left foot was touching the roof when the ladder slid towards the chimney and he fell. Plaintiff went on to describe sitting on the ground in pain and numbness until Mosher came down. He further stated that Murell...
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