Surko v. 56 Leonard LLC
| Decision Date | 27 October 2021 |
| Docket Number | Index 156246/2016 |
| Citation | 2021 NY Slip Op 32123 (U) |
| Parties | WILLARD SURKO, Plaintiff, v. 56 LEONARD LLC, LEND LEASE (US) CONSTRUCTION LMB INC. AND LEND LEASE (US) CONSTRUCTION INC., Defendants. |
| Court | New York Supreme Court |
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 003) 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER) .
Upon the foregoing documents, it is ordered that defendants' motion for summary judgment dismissing plaintiff's Labor Law §§ 200, 240(1) and 241(6) causes of action dismissing plaintiff's common law negligence claims, dismissing plaintiff's claims made under New York State Industrial Code, and Occupational Health and Safety Administration (OSHA), and dismissing all claims against construction manager Lend Lease (US) Construction LMB, Inc. and Lend Lease (US) Construction Inc. ("Lend Lease"), as it is an improper Labor Law defendant, and plaintiff's cross motion for an order pursuant to CPLR 3212 and Labor Law §§ 240 (1), 240(6) granting plaintiff's partial summary judgment against defendants 56 Leonard LLC and Lend Lease, Labor Law §200 granting plaintiff partial summary judgment against defendant Lend Lease (US) Construction LMB Inc; and dismissing defendants' affirmative defenses based upon plaintiff's alleged comparative fault and culpable conduct are determined as follows:
BACKGROUND
Plaintiff Willard Surko commenced the instant action to recover for injuries he allegedly sustained on March 7, 2016, while working as a tile setter for V.A.L Floors Inc. ("VAL") on a construction project located at 56 Leonard Street, New York. Plaintiff claimed that he was injured while he was working on a scaffold that was improperly planked, placed, situated, and constructed. The plaintiff alleged that he was moving from the left side of the scaffold to the right side and attempted to step around his co-worker who was sitting on the scaffold, when he twisted his right foot. Plaintiff contends that but for the two-by-six that he placed on the scaffold, he would have fallen off the scaffold.
Defendant, 56 Leonard LLC, as owner, retained co-defendant Lend Lease the construction manager for the project at 56 Leonard Street. Lend Lease in turn hired subcontractor VAL, plaintiff's employer, to perform the tile work.
Plaintiff testified at his deposition that he worked for VAL as a tile setter for approximately a year and a half prior to his accident. Plaintiff stated that his accident occurred in the west end or west side of the lobby. He further averred that on the date of the accident, his supervisor was Mark Molinaro from VAL. Plaintiff stated that he received instructions from Molinaro the day prior to his accident. Plaintiff was working on a "tubing" scaffold which was blue, had a plank and scissors on the side to hold it together. He stated that "we were tiling the walls going up" and then would "lift the plank and go to the next one (level)." The plank of the scaffold plaintiff was standing on was "about 18 inches wide" away from the wall, and about 14 feet above the ground. The scaffold was described as six feet long, eight feet high, and five feet wide Plaintiff stated that he had not used a similar scaffold like this one on other projects. He stated that this scaffold had one plank and that he had requested more from Molinaro but did not receive any. When he started the job, plaintiff was working at 14 feet, and had he continued the work, he would have been at 30 feet and would have needed wider planks. He stated that the scaffold was previously erected by VAL when he arrived at work. He stated that Molinaro gave direction at the site and he did not receive direction from anyone else.
He explained that on the date of the accident, he was working with his partner David LoMonaco, who was also employed by VAL. He explained that LoMonaco was assigned to him 15 minutes prior to the accident. At the time of the assignment the plaintiff was putting three by 24-inch elongated oval tiles on the edges of the wall with cement going from the right to left and from top to the bottom. The plaintiff stated that LoMonaco was pulling out spacers between the tiles while sitting on the plank. He further testified that ten seconds before the accident, he just stopped putting tile up and was regrouping and repositioning to the other side to step around LoMonaco. The plaintiff was asked how he was able to get up on the plank and he explained that there are ladders on each side of the scaffold. He was then asked if there was anything that could have prevented him from going down the ladder on the left-hand side of the scaffold or walking across and going up the ladder on the other side. The plaintiff responded that he did not think the scaffold was positioned to climb that way.
When plaintiff stepped around LoMonaco, LoMonaco was positioned right between the plaintiff's legs. The plaintiff testified that he was unable to step over him and had to go around him. When the plaintiff attempted to step around him, he caught the edge of the scaffold with his right foot, lost his balance, and almost fell off the scaffold. The plaintiff stated that if not for the two-by-six staging plank that he placed on the scaffold, he probably would have fallen off. He twisted his foot on the edge of the board and felt the scaffold shake. Plaintiff averred that the purpose of the two-by-six staging plank was to absorb some of the bending that he had to do. Instead of placing a bucket on the platform, there was a staging platform there to hold Thinset mortar and tiles. The plaintiff stated that he did not fall off the scaffold as a result of the two-by-six staging plank. In fact, although he lost his footing, he, nor the scaffold, nor any of the planks actually fell.
In plaintiff's affidavit, he further testified and added to his account that at the time of the accident, he was working on a mobile scaffold with wheels on the bottom.
Defendants in opposition to plaintiff cross-motion assert that plaintiff's affidavit "contains some minor alterations to plaintiff's deposition testimony regarding the accident mechanism." Defendants herein explain that during plaintiff's deposition testimony, he was asked what other type of scaffold he used during his other tasks on that project, and plaintiff stated, "I was on bakers, sheetrock, bakers, orange, with wheels on the bottom when we're doing the bathrooms." Plaintiff, however, was not specifically asked at his deposition whether the scaffold he was working on had wheels. However, defendants state that plaintiff contradicts his testimony in his affidavit when he stated that the scaffold, he was using on the date of the accident was a mobile scaffold "with wheels on the bottom." The defendants claim that plaintiff makes a distinction of working on "a bakers scaffold with wheels" and differentiates that scaffold from the pipe/pole scaffold involved in the alleged accident.
It is well settled that a party cannot successfully oppose summary judgment by offering an affidavit which reverses his or her prior deposition testimony for the purpose of avoiding the consequences of that testimony (see Colucci v AFC Constr., 54 A.D.3d 798 [2d Dept 2008]; Israel v Fairharbor Owners, Inc., 20 A.D.3d 392 [2d Dept 2005]; Smith v Taylor, 279 A.D.2d 566 [2d Dept 2001], lv denied 96 N.Y.2d 711 [2001]; Bloom v La Femme Fatale of Smithtown, Inc., 273 A.D.2d 187 [2d Dept 2000]). But this rule does not apply where the affidavit is not directly contradictory of the prior deposition testimony (see O'Leary v Saugerties Cent. School Dist., 277 A.D.2d 662 [3d Dept 2000]), amplifies the prior testimony (Castro v New York City Tr. Auth., 52 A.D.3d 213 [1st Dept 2008], or provides a potentially meritorious explanation for any inconsistency (see Mickelson v Babcock, 190 A.D.2d 1037 [4th Dept 1993]).
As noted above, plaintiff was not asked at his deposition whether or not the scaffold he was working on at the time of the accident had wheels. Defendant is incorrectly using the answer to the question of what other types of scaffolds he used at his job to suggest that the type of scaffold he utilized on the date of the accident was different. It cannot be indisputably inferred from this prior answer to a separate question in which plaintiff referred to a bakers scaffold as mobile, and that this "tubing" scaffold was not on wheels. Moreover, it is not inherent to the nature of a "tubing" scaffold that it cannot be on wheels or mobile. Therefore, the court will consider plaintiff's affidavit in support of plaintiff's cross motion.
Deposition testimony of Antonio Corso (Employee of Lend Lease)
Antonio Corso is the superintendent for Lend Lease U.S. Construction. He has been employed by Lend Lease on and off for fifteen years. Corso was superintendent for two months, and prior to that he was site safety manager for seven years. In 2016, he was the site safety manager and his daily duties included walking the site to make sure that the subcontractors and the site were operating within the Department of Buildings, OSHA regulations, and Lend Lease standards. He reported to Marty Trank, a superintendent employed by Lend Lease. Trank's responsibilities included coordination of the subcontractors onsite, managing the construction, and coordinating between contractors working in the same area. In Corso's training as a site safety manager, he learned how to "recognize a safely built scaffold or what a safely built scaffold should look like." With respect to mobile scaffolds, h...
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