Velez-Tejada v. 4525-4555 Apartments Corp.
| Decision Date | 19 January 2018 |
| Docket Number | 24467/2013E |
| Citation | 94 N.Y.S.3d 541 (Table),58 Misc.3d 1216 (A) |
| Parties | Luis VELEZ–TEJADA, Plaintiff, v. 4525–4555 APARTMENTS CORP., et al., Defendants. |
| Court | New York Supreme Court |
Counsel for Plaintiff: Block, O'Toole, & Murphy, LLP (Michael J. Hurwitz, Esq.)
Counsel for Defendants Spring Scaffolding, LLC: Landman, Corsi, Ballaine & Ford, P.C. (Andrew P. Keaveney, Esq.)
Counsel for Defendants 4525–4555 Apartments Corp. and Skyline Restorations, Inc.: Marshall, Dennehey, Warner, Coleman, & Goggin (Seth A. Frankel, Esq.)
The following papers numbered 1 to 14 read on the below motions noticed on June 19 and July 28, 2017 and duly submitted on the Part IA15 Motion calendar of September 8, 2017 :
Upon the foregoing papers, the plaintiff Luis Velez–Tejada ("Plaintiff") moves for an order granting him summary judgment pursuant to CPLR 3212 on the issue of liability against defendants 4525–4555 Apartments Corp. ("Apartments"), Skyline Restorations, Inc. ("Skyline"), and Spring Scaffolding, LLC. ("Spring")(collectively, "Defendants") for their alleged violations of Labor Law § 240(1). Defendants oppose the motion.
Separately, defendant Spring moves for an order granting it summary judgment pursuant to CPLR 3212, dismissing Plaintiff's complaint and all cross-claims and counter-claims. Plaintiff opposes the motion. Apartments and Skyline (collectively, "Apartments") partially oppose the motion.
In the interest of judicial economy, these two motions are consolidated and disposed of in the following Decision and Order.
This matter arises out of an alleged accident that occurred on May 10, 2013, on the site of an ongoing construction project located at 4555 Henry Hudson Parkway in the Bronx, New York. The site's owner, Apartments, hired Skyline, an exterior building restoration company, as the general contractor for the project. Skyline hired Spring to, among other things, deliver and install exterior scaffolding. Spring then subcontracted with Plaintiff's employer, third-party and second third-party defendant Dynamic Hoisting Scaffolding, Inc. ("Dynamic") to deliver the scaffolding materials to laborers who were working at the construction site.
On the date of this incident, Plaintiff was driving a large flatbed truck loaded with various materials to erect the scaffolding, including metal frames and stairs. Plaintiff arrived on the site and was allegedly directed by his foreman Gheorge Radulescue ("Jimmy") to park in the rear of the building on an inclined location where the rear of the truck was pitched downward. Plaintiff allegedly voiced concerns to his foreman and another supervisor concerning this parking spot, but nevertheless he parked the truck as directed.
The scaffolding material had been loaded onto the truck in an upright position in two bundles consisting of approximately 60 pieces each. Plaintiff testified that each piece of scaffolding weighed about 40–50 pounds, and each bundle was secured with metal bands. Once he arrived at the parking spot, Plaintiff intended to unload the materials and pass them to other workers. Plaintiff testified that he was attempting to unload the second bundle of metal scaffolding frames when this accident occurred. Plaintiff managed to break off two of the metal bands that were securing the bundle, when due to the pressure caused by the weight of the materials, the other two metal bands suddenly popped opened by themselves. Because the truck was parked on an incline, the scaffold frames then fell onto Plaintiff, causing him to fall backwards and strike his head on the metal stairs behind him.
Plaintiff thereafter commenced this action against the above-named Defendants asserting causes of action for inter alia , violations of Labor Law §§ 240(1), 241(6), and 200. Plaintiff now moves for summary judgment on the issue of Defendants' liability under Labor Law § 240(1). Plaintiff argues that he was engaged in a protected activity at the time of his accident, the accident occurred as a result of an elevation-related risk, and his injuries were caused by an inadequate or non-existent safety device. Specifically, Plaintiff alleges through an expert affidavit that he should have been provided with ropes, slings, chains, or a pulley system to maintain the bundle of frames in position. In addition to the metal straps, the frames should have been bundles with additional canvas straps that would have enabled workers to slowly release the tension in a controlled manner. The expert further states that because the truck was parked on an incline, the Plaintiff should have been provided proper devices to control the frames from falling down due to the force of gravity.
In opposition to the motion, Defendants' assert that this matter does not fall within the scope of Labor Law § 240(1). Specifically, Defendants allege that this matter did not involve an elevation or gravity-related hazard. The metal scaffolding frame bundles that slipped or fell over and onto Plaintiff did not fall from a height, and Plaintiff was never exposed to an elevation-related risk. Defendants further contend that Plaintiff is not entitled to the protections of Labor Law § 240 because delivering materials to a construction site is not a covered activity under the statute. In the event that this Court finds that Labor Law § 240 is applicable to these facts, Defendants assert that the motion must nevertheless be denied because Plaintiff's conduct constituted the sole proximate cause of this accident. Defendants allege that Plaintiff alone decided to park on an incline, and Plaintiff voluntarily cut the metal straps that released the scaffold frames and caused injuries. Defendant Spring alleges that there is no evidence that the straps actually failed, and in fact there is evidence that the metal frames were supported by additional straps, and Plaintiff's own self-serving testimony should not be considered. Spring further argues that there is no evidence, aside from Plaintiff's own contentions, that the truck was parked on an incline.
Spring moves for summary judgment, relying on the above contentions, and also arguing that it is not an entity subject to Labor Law §§ 240(1) or 241(6) liability. Spring asserts that it was neither the owner or general contractor of the project, and it cannot be considered a statutory agent of either because it lacked supervisory control or authority over Plaintiff's work. Spring also asserts that because it had no control over the work, it cannot be liable under Labor Law § 200. Spring further argues that Plaintiff's Labor Law § 241(6) claims are inapplicable to these facts. Finally, Spring asserts that Dynamic's cross-claims or counter-claims for contribution and indemnification must be dismissed.
Apartments partially opposes Spring's summary judgment motion and asserts that Spring may be a statutory agent for purposes of Labor Law liability. Specifically, Apartments cites to the Skyline-Spring subcontract which stated inter alia , that Spring was given the authority to supervise its own work, and that Spring was responsible for taking reasonable safety precautions with respect to performing under the subcontract. Plaintiff essentially joins in this argument in opposition to Spring's motion.
In further support of his own motion, Plaintiff refutes Defendants' contentions that the Labor Law is inapplicable to these circumstances, and further asserts that Defendants' opposition papers fail to raise issues of fact.
The remaining party contentions found in reply papers will be addressed infra if necessary.
To be entitled to the "drastic" remedy of summary judgment, the moving party "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact from the case." ( Winegrad v. New York University Medical Center , 64 NY2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ; Sillman v. Twentieth Century–Fox Film Corp. , 3 NY2d 395, 165 N.Y.S.2d 498, 144 N.E.2d 387 [1957] ). The failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers. (Id. , see also Alvarez v. Prospect Hosp. , 68 NY2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ). Facts must be viewed in the light most favorable to the non-moving party ( Sosa v. 46th Street Development LLC. , 101 AD3d 490, 955 N.Y.S.2d 589 [1st Dept. 2012] ). Once a movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact ( Zuckerman v. City of New York , 49 NY2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility ( Vega v. Restani Constr. Corp. , 18 NY3d 499, 942 N.Y.S.2d 13, 965 N.E.2d 240 [2012] ). If the trial judge is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied. ( Bush v. Saint Claire's Hospital , 82 NY2d 738, 602 N.Y.S.2d 324, 621 N.E.2d 691 [1993] ).
Labor Law § 240(1) imposes a duty of protection of employees upon owners, contractors and their agents "in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure." The duty consists in providing "scaffolding, hoists, stays, ladders,...
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