Wojcik v. 42ND Street Development Project

• Citation: 386 F.Supp.2d 442
• Decision Date: 26 August 2005
• Docket Number: No. 02 Civ. 7019(CSH).,02 Civ. 7019(CSH).
• Parties: Stanley WOJCIK, Plaintiff, v. 42ND STREET DEVELOPMENT PROJECT, INC. and Turner Construction Co., Defendants.
• Court: U.S. District Court — Southern District of New York

386 F.Supp.2d 442

Stanley WOJCIK, Plaintiff, v. 42ND STREET DEVELOPMENT PROJECT, INC. and Turner Construction Co., Defendants.

No. 02 Civ. 7019(CSH).

United States District Court, S.D. New York.

August 26, 2005.

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Sacks and Sacks, New York City (Kenneth Sacks, of counsel), for plaintiff.

London Fischer, LLP, New York City (John E. Sparling, of counsel), for defendants.

MEMORANDUM OPINION AND ORDER

HAIGHT, Senior District Judge.

This diversity case removed from a state court is now before this Court on the motion of defendants 42^nd Street Development Project, Inc. and Turner Construction Co., ("defendants")¹ for summary judgment on plaintiff Stanley Wojcik's² claims based upon New York Labor Law §§ 240(1), 241(6), 200, and common law negligence.³ For the reasons explained herein, I deny defendants' motion as to plaintiff's Labor Law § 240(1) and § 241(6) claims, but grant their motion as to plaintiff's Labor Law § 200 and common law negligence claims.

I. Preliminary

Before I proceed to a recitation of the circumstances underlying this action, I address a preliminary issue. Plaintiff, represented by counsel, has wholly failed to submit a statement complying with Local Rule 56.1 statement. The consequences of that failure must be considered.

District courts have the discretion to adopt local rules which they deem necessary to carry out the conduct of their business. Frazier v. Heebe, 482 U.S. 641, 645, 107 S.Ct. 2607, 96 L.Ed.2d 557 (1987) (citing 28 U.S.C. §§ 1654, 2071; Fed. R. Civ. Pro. 83). Pursuant to Local Civil Rule 56.1(a) adopted in this District, a motion for summary judgment must have annexed to it a short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no issue to be tried. Local Civil Rule 56.1(a). Here, defendants, as the moving party, included such a statement with their motion for summary judgment. Defendants' statement contains eighty-two separate paragraphs with citations to the record.

In addition, Rule 56.1(b) imposes a parallel mandate on the party opposing summary judgment. "The papers opposing a motion for summary judgment shall include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party." Local Civil Rule 56.1(b) (emphasis added). Counsel⁴ for plaintiff has filed an affidavit in opposition (the "Sacks Affidavit") which contains a desultory assortment of factual allegations. But these allegations — contained in thirty-three numbered paragraphs — merely recite the asserted facts underlying plaintiff's case. Counsel for plaintiff has not submitted the statement in opposition required by Rule 56.1(b). In that circumstance, Local Rule 56.1(c) provides as follows:

Each numbered paragraph in the statement of material facts set forth in the statement required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party.

Local Civil Rule 56.1(c) (emphasis added); Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir.2003). ("If the opposing party then fails to controvert a fact so set forth in the moving party's Rule 56.1 statement, that fact will be deemed admitted."); Gubitosi v. Kapica, 154 F.3d 30, 31 (2d Cir.1998) (same).

However, "[t]he local rule does not absolve the party seeking summary judgment of the burden of showing that it is entitled to judgment as a matter of law, and a Local Rule 56.1(a) statement is not itself a vehicle for making factual assertions that are otherwise unsupported in the record." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 74 (2d Cir.2001). Further, Rule 56.1(b) allows the opposing party to "include ... additional paragraphs containing a separate short and concise statement of additional material facts as to which it is contended that there exists a genuine fact to be tried." Local Civil Rule 56.1(b). As described above, the Sacks Affidavit does contain various factual allegations, many of which expressly dispute the allegations in defendants' 56.1 Statement. Although neither short nor concise, insofar as plaintiff's allegations contained in the affidavit are properly supported by citations to the record, I will consider the Sacks Affidavit as proffering additional material facts as to which plaintiff contends that there exists a genuine fact to be tried.

Based upon the foregoing, and for the purpose of adjudicating defendants' motion for summary judgment, I will be guided by two principles. First, any fact alleged in defendants' Rule 56.1 statement, supported in fact by the record, and not specifically and expressly contradicted by properly supported allegations in the Sacks Affidavit, will be deemed admitted by plaintiff. Second, any fact alleged in defendants' Rule 56.1 statement, supported in fact by the record, but which is specifically and expressly controverted by facts contained in the Sacks Affidavit which are supported in the record, will not be deemed admitted by plaintiff.⁵

II. Background

This action is the result of a construction accident which occurred on June 28, 2002 at the Times Square Tower Project at Seven Times Square in New York (the "project"), a property in which defendant 42^nd Street Development Project, Inc. ("42^nd St. Development") has an ownership interest. Defendants' 56.1 Statement, ¶¶ 1-3. Plaintiff was an ironworker employed by Canron Construction Corp. ("Canron"), a subcontractor of defendant Turner Construction Co. ("Turner"), which was hired to provide steel erection services to the project. Id. at ¶ 6.

Plaintiff began working at the project site in April 2002 and was part of a detail gang which assisted in a variety of different construction tasks. Wojcik Aff., pp. 25-26 in Sparling Aff., Ex. C. The foreman of plaintiff's detail gang was Canron employee Michael O'Donnell. Defendants' 56.1 Statement, ¶ 39. According to the plaintiff, on the morning of the accident he was initially working in a subbasement at ground level when he was instructed by O'Donnell to move to a higher level to remove part of the Q-deck floor — a form of temporary flooring — in order to create a hole through which elevator motors could be lowered. Sacks Aff., ¶ 5; Defendants' 56.1 Statement, ¶ 43. While removing the Q-deck, plaintiff fell approximately thirteen feet through the hole in the floor which he had created, onto the concrete floor below, injuring himself. Sparling Aff., Ex. AA; Defendants' 56.1 Statement, ¶ 64; Wojcik Aff., p. 70 in Sparling Aff., Ex. C.

Plaintiff contends that his request, prior to his fall, that scaffolding be erected under his new work site was denied by O'Donnell. Sacks Aff., ¶ 5. Moreover, he claims that the working conditions on C-1 were openly dangerous: to wit, the decking was wet and strewn with debris and the lighting was poor. Sacks Aff., Ex. C., pp. 34-37; Sacks Aff., ¶¶ 5-7. Plaintiff asserts that he was not provided with a safety harness, referred to as a "Personal Fall Arrest System" or "PFAS," and that no PFAS was available to him in Canron's "gang box" which contained the equipment. Sacks Aff., ¶ 5. Moreover, plaintiff claims that because no safety lines were erected in the area of his fall, even if he had been given a PFAS, he would not have had any place to tie-off.⁶ Wojcik Aff., ¶ 10 in Sacks Aff., Ex. A.

Defendants respond that "Canron provided every ironworker at the Seven Times Square Tower Project with a PFAS," as well as instructions on how to use the PFAS, and weekly reminders to use it. Defendant's 56.1 Statement, ¶¶ 17, 24. In fact, according to defendants, plaintiff received exactly such a reminder less than one hour before his accident. Id. at ¶ 38. Defendants further contend that the accident and eyewitness reports demonstrate that when plaintiff fell, he was actually wearing the PFAS, though he had not "tied off to an adequate anchorage point," Id. at ¶ 77 (quoting Scuola Aff., ¶ 7), despite the presence of two such points which were readily available to him. Id. at ¶¶ 56-61.

On July 24, 2002, plaintiff commenced this action in the Supreme Court of New York, New York County. Plaintiff's complaint alleges violations of New York Labor Law §§ 200, 240(1), 241(6) (and concomitant Industrial Code violations), common law negligence, and violation of Occupational Safety and Health Administration (OSHA) standards, and requests damages in the amount of $20 million. The case was removed by the defendants to this Court on September 4, 2002.⁷ Defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

Defendants claim that they are entitled to summary judgment on plaintiff's Labor Law § 240(1) claim on two grounds: (i) plaintiff's conduct was the sole proximate cause of his injuries, and (ii) plaintiff was a "recalcitrant worker" as that term is defined by the New York courts. Defendants claim that they are entitled to summary judgment on plaintiff's Labor Law § 241(6) claim because plaintiff's cannot allege any violation of the New York Industrial Code. Finally, defendants claim that they are entitled to summary judgment on plaintiff's Labor Law § 200 and common law negligence claims on three grounds: (i) defendants did not supervise or control plaintiff's work; (ii) defendants did not have notice of the alleged unsafe condition; and (iii) the hole in the flooring was an open and obvious condition, created by the plaintiff himself.

For the reasons that follow, I deny defendants' summary judgment motion in part and grant it in part.

III. Discussion

A. Standard of Review on Motion for Summary Judgment Pursuant to Rule 56

Rule 56 of the Federal Rules of Civil Procedure provides that a court shall grant a motion for summary judgment "if the pleadings, depositions, answers to...