Widdecombe v. Consol. Edison Co. of N.Y., Inc.
| Decision Date | 27 October 2021 |
| Docket Number | Index No. 151809/2016 |
| Citation | 74 Misc.3d 351,160 N.Y.S.3d 748 |
| Parties | Michael WIDDECOMBE, Plaintiff v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., and EGK Realty, LLC, Defendants. |
| Court | New York Supreme Court |
For Plaintiff, Glenn P. Dolan Esq., Morgan Levine Dolan, P.C., 18 East 41st Street, New York, NY 10017
For Defendant Consolidated Edison Company of New York, Inc., Melissa Callender Esq., Fabiani Cohen & Hall, LLP, 570 Lexington Avenue, New York, NY 10022
For Defendant EGK Realty, LLC, Alan Russo Esq. and Matthew J. Shock Esq., Russo & Gould, LLP, 33 Whitehall Street, New York, NY 10004
Lucy Billings, J. Plaintiff sues to recover damages for personal injuries sustained August 6, 2015, when he struck the back of his head and neck on an overhead plywood board as he ascended a basement staircase on premises owned by defendant EGK Realty, LLC, while he was working on a project to repair a gas leak. Defendant Consolidated Edison Company of New York, Inc., was the general contractor for the project and subcontracted work to plaintiff's nonparty employer.
Defendant EGK Realty moves for summary judgment dismissing plaintiff's claims for negligence and violation of New York Labor Law § 200. C.P.L.R. § 3212(b) and (e). Plaintiff cross-moves for summary judgment on both defendants’ liability for violation of Labor Law §§ 240(1) and 241(6). Consolidated Edison moves for summary judgment dismissing plaintiff's claims for violation of Labor Law §§ 240(1) and 241(6).
Although plaintiff cross-moved against Consolidated Edison before it served its motion, the court may disregard plaintiff's mislabelling his otherwise timely motion for summary judgment a "cross-motion" as a mere irregularity that did not prejudice defendants. C.P.L.R. § 2001 ; JP Morgan Chase Bank, N.A. v. White , 182 A.D.3d 469, 471, 122 N.Y.S.3d 296 (1st Dep't 2020). Neither defendant opposes the court's consideration of the cross-motion as a motion for summary judgment against both defendants.
EGK Realty separately moves for summary judgment dismissing plaintiff's Labor Law §§ 240(1) and 241(6) claims and any cross-claims, but provides no justification for the second motion for summary judgment. Landis v. 383 Realty Corp. , 175 A.D.3d 1207, 1207, 109 N.Y.S.3d 293 (1st Dep't 2019) ; Maggio v. 24 W. 57 APF, LLC , 134 A.D.3d 621, 625, 24 N.Y.S.3d 1 (1st Dep't 2015) ; Amill v. Lawrence Ruben Co., Inc. , 117 A.D.3d 433, 433, 985 N.Y.S.2d 52 (1st Dep't 2014) ; Ferolito v. Vultaggio , 99 A.D.3d 19, 29, 949 N.Y.S.2d 356 (1st Dep't 2012). Although EGK Realty claims that "law office failure" under C.P.L.R. § 2005 excuses EGK Realty's delay in moving for summary judgment dismissing plaintiff's additional claims and any cross-claims, that provision applies only to motions pursuant to C.P.L.R. § 3012(d) or § 5015(a), not to motions pursuant to C.P.L.R. § 3212. Moreover, the infirmity in this motion is not that it is late, but that it is a successive motion for summary judgment by EGK Realty.
Even were law office failure a cognizable justification, EGK Realty fails to explain what its attorney's "law office failure" was or how that failure prevented EGK Realty from initially moving for summary judgment dismissing plaintiff's Labor Law §§ 240(1) and 241(6) claims and any cross-claims along with his § 200 and negligence claims. In fact, EGK Realty admits that it intentionally omitted its defenses against the §§ 240(1) and 241(6) claims from its first motion for summary judgment without further explanation. Therefore the court denies EGK Realty's second motion for summary judgment.
Labor Law § 200 codifies an owner's duty to maintain construction site safety.
Rizzuto v. L.A. Wegner Contr. Co. , 91 N.Y.2d 343, 352, 670 N.Y.S.2d 816, 693 N.E.2d 1068 (1998) ; Comes v. New York State Elec. & Gas Corp. , 82 N.Y.2d 876, 877-78, 609 N.Y.S.2d 168, 631 N.E.2d 110 (1993). Pursuant to principles of liability for ordinary negligence and under Labor Law § 200, EGK Realty owed plaintiff a duty to provide him a safe work environment. If a dangerous condition arising from plaintiff's work caused his injury, EGK Realty may be liable for negligently permitting that condition and violating Labor Law § 200, if the owner supervised or exercised control over the activity that caused plaintiff's injury. Rizzuto v. L.A. Wegner Contr. Co. , 91 N.Y.2d at 352, 670 N.Y.S.2d 816, 693 N.E.2d 1068 ; Comes v. New York State Elec. & Gas Corp. , 82 N.Y.2d at 877, 609 N.Y.S.2d 168, 631 N.E.2d 110 ; Maggio v. 24 W. 57 APF, LLC , 134 A.D.3d at 626, 24 N.Y.S.3d 1 ; Cappabianca v. Skanska USA Bldg. Inc. , 99 A.D.3d 139, 144, 950 N.Y.S.2d 35 (1st Dep't 2012). See Ocampo v. Bovis Lend Lease LMB, Inc. , 123 A.D.3d 456, 457, 998 N.Y.S.2d 340 (1st Dep't 2014) ; Francis v. Plaza Constr. Corp. , 121 A.D.3d 427, 428, 994 N.Y.S.2d 74 (1st Dep't 2014). If a dangerous condition on the work site caused plaintiff's injury, liability depends on EGK Realty's creation or actual or constructive notice of the condition. Armental v. 401 Park Ave. S. Assocs., LLC , 182 A.D.3d 405, 407, 121 N.Y.S.3d 259 (1st Dep't 2020) ; DeMercurio v. 605 W. 42nd Owner LLC , 172 A.D.3d 467, 467, 100 N.Y.S.3d 12 (1st Dep't 2019) ; Prevost v. One City Block LLC , 155 A.D.3d 531, 534, 65 N.Y.S.3d 172 (1st Dep't 2017) ; Maggio v. 24 W. 57 APF, LLC , 134 A.D.3d at 626, 24 N.Y.S.3d 1.
Plaintiff's injuries arose from a dangerous condition on the premises: a plywood board affixed overhead and projecting into a stairwell. EGK Realty insists it is entitled to summary judgment dismissing plaintiff's negligence and Labor Law § 200 claims because plaintiff has not established EGK Realty's negligence. To succeed on its motion for summary judgment, however, EGK Realty bears the burden to establish prima facie that the work site was not dangerous. Although EGK Realty emphasizes that the plywood board was open and obvious, the dangerous condition's visibility obviates only EGK Realty's duty to warn of the danger, not its duty to maintain safe premises. Matos v. Azure Holdings II, L.P. , 181 A.D.3d 406, 407, 121 N.Y.S.3d 51 (1st Dep't 2020) ; Farrugia v. 1440 Broadway Assoc. , 163 A.D.3d 452, 454-55, 82 N.Y.S.3d 1 (1st Dep't 2018) ; Derix v. Port Auth. of NY & N.J. , 162 A.D.3d 522, 522, 79 N.Y.S.3d 146 (1st Dep't 2018) ; Polini v. Schindler El. Corp. , 146 A.D.3d 536, 536, 43 N.Y.S.3d 900 (1st Dep't 2017). No evidence establishes that EGK Realty maintained reasonably safe premises. EGK Realty also insists that it lacked notice of the plywood board, but its owner Edmond Kolndreu testified at his deposition that he personally installed the board. Aff. of Matthew J. Shock Ex. G, at 37.
Moreover, in opposition, plaintiff demonstrates the danger that the plywood board posed through his deposition testimony and the opinion of his construction engineer, Scott Silberman. Because EGK Realty admits it created the condition that caused plaintiff's injury and fails to show that the condition was safe, and plaintiff demonstrates that the condition was in fact unsafe, the court denies EGK Realty summary judgment dismissing plaintiff's negligence and Labor Law § 200 claims. C.P.L.R. § 3212(b).
Based on the absence of any evidence that EGK Realty was not negligent by installing and maintaining the dangerous board projecting down into the stairwell, no factual issue precludes summary judgment on EGK Realty's liability to plaintiff for negligence and violation of Labor Law § 200. Although plaintiff did not move for summary judgment on these claims, the court may search the record and grant summary judgment in his favor because both claims are the subject of EGK Realty's motion for summary judgment. C.P.L.R. § 3212(b) ; Otto v. Otto , 192 A.D.3d 517, 518, 140 N.Y.S.3d 414 (1st Dep't 2021). See Dunham v. Hilco Constr. Co. , 89 N.Y.2d 425, 429-30, 654 N.Y.S.2d 335, 676 N.E.2d 1178 (1996). Therefore the court grants plaintiff summary judgment on EGK Realty's liability for negligence and violation of Labor Law § 200. C.P.L.R. § 3212(b) and (e).
Labor Law § 240(1) requires that all building owners and general contractors:
in the erection, demolition, repairing, altering, painting, cleaning 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.
The statute imposes absolute liability on the owner and general contractor of a construction site if they fail to provide adequate protection against an elevation-related risk, and that failure is the proximate cause of plaintiff worker's injury. Nicometi v. Vineyards of Fredonia, LLC , 25 N.Y.3d 90, 97 [7 N.Y.S.3d 263, 30 N.E.3d 154] (2015) ; Rivas v. Nestle Realty Holding Corp. , 188 A.D.3d 430, 431 (1st Dep't 2020) ; Landi v. SDS William St., LLC , 146 A.D.3d 33, 37 (1st Dep't 2016).
Plaintiff claims that defendants are liable under Labor Law § 240(1) because they failed to provide him an adequate safety device: a safely constructed stairway to travel to and from the basement while performing work covered by the statute. He maintains that, although defendants provided the stairway, three dangerous defects rendered it inadequate as a safety device. (1) The stairway step that plaintiff stepped up to when he struck the board was excessively high in comparison to the surrounding steps. (2) The plywood board with sharp edges that EGK Realty installed projected down into the stairwell, impeding ascent and descent. (3) The stairway lacked handrails for plaintiff to use to arrest his fall.
Defendants insist that plaintiff's tasks classify as routine maintenance not protected by Labor Law § 240(1) and that the stairway,...
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