The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge
Memorandum Opinion and Order
Presently before the Court are two separate actions in which
plaintiffs claim defendants are guilty of negligence and
violating New York State labor statutes thereby causing the
wrongful death of their relatives. In the first filed action, 02
Civ. 6862 (JFK), Plaintiff Delores Benton commenced the action as
the administratrix of the estate of her deceased husband, James
Benton, and on her own behalf against Brookfield Properties
Corporation, Brookfield Financial Properties, L.P., BFP 300
Madison I, LLC, BFP 300 Madison II, LLC, BFP Madison A, LLC, BFP
300 Madison B, LLC, BFP 300 Madison M, LLC, (collectively
"Brookfield") and Turner Construction Company ("Turner"). In the
second action, 02 Civ. 8947 (JFK), Deborah Scarpati, commenced
the action as the administratrix of the estate of her deceased
husband, George Scarpati, and on her own behalf against the
Brookfield and Turner defendants. Both the Benton and the
Scarpati actions arise from the same accident. The Court,
therefore, has agreed to treat them as related cases.
Subject matter jurisdiction in each case is predicated upon
diversity of citizenship, 28 U.S.C. § 1332. The Benton plaintiffs
are citizens of Pennsylvania. The Scarpati plaintiffs are
citizens of New Jersey (hereinafter "Plaintiffs" refers to both
the Benton plaintiffs and the Scarpati plaintiffs). Each of the defendants are New York entities. Currently facing the Court
are motions for partial summary judgment offered by each of the
plaintiffs and cross-motions for summary judgment filed by the
Brookfield and Turner defendants (hereinafter "Defendants" refers
to both the Brookfield defendants and Turner). In light of the
fact that the arguments in each of the 4 motions are nearly
identical, the Court will treat Plaintiffs' motions as one motion
and Defendants' motion as a single motion.
These matters arise out of a tragic accident that occurred on
August 23, 2002 at a construction site located at 300 Madison
Avenue in New York City. The Plaintiffs' decedents, James Benton
and George Scarpati were carpenters employed by Atlantic-Heydt
Corporation ("Atlantic-Heydt"), a subcontractor working on the
site. Defendant BFP 300 Madison II, LLC is and was the site
owner. Co-defendant Turner was the site's Construction Manager.
On the day of the accident Mr. Benton and Mr. Scarpati were
working on the material hoist located outside of the building.
The hoist was essentially a steel mast tower and two elevator
cars that ran along the east and west sides of the mast. The cars
were driven by a cable connected to the third floor of the
building then being constructed. At the time of the accident Mr.
Benton and Mr. Scarpati were working approximately 280 feet above
41st Street. The two men were engaged in the process of
"jumping the hoist," otherwise known as "raising the cathead." This is a
process by which additional hoist track or mast is added to the
existing mast to allow the hoist to travel to newly constructed
upper floors. Mr. Benton and Mr. Scarpati, along with two
co-workers, were attempting to jump the hoist from the 17th
floor to the 21st floor of the building. Mr. Benton was
inside the elevator car positioned along the west side of the
mast and Mr. Scarpati was working atop the same car when the car
suddenly slipped from its perch next to the building's 19th
floor. The car fell all the way to the ground, killing both Mr.
Benton and Mr. Scarpati.
Plaintiffs allege that Defendants' negligence and their failure
to comply with certain sections of the New York State Labor Law
caused their husbands' deaths. Defendants deny that they acted
negligently and counter that the decedents own negligence was the
sole and proximate cause of their death.
This Court may grant summary judgment only if the moving party
is entitled to judgment as a matter of law because there is no
genuine dispute as to any material fact. See Silver v. City
Univ. of New York, 947 F.2d 1021, 1022 (2d Cir. 1991); Montana
v. First Fed. Sav. & Loan Ass'n, 869 F.2d 100, 103 (2d Cir.
1989); Knight v. U.S. Fire Insur. Co., 804 F.2d 9, 11 (2d Cir.
1986). The role of the Court on such a motion "is not to resolve disputed issues of fact but to assess whether there are any
factual issues to be tried, while resolving ambiguities and
drawing reasonable inferences against the moving party."
Knight, 804 F.2d at 11; see also First Fed. Sav. & Loan
Ass'n, 869 F.2d at 103 (stating that to resolve a summary
judgment motion properly, a court must conclude that there are no
genuine issues of material fact, and that all inferences must be
drawn in favor of the non-moving party).
The movant bears the initial burden of informing the court of
the basis for its motion and identifying those portions of the
"pleadings, depositions, answers to interrogatories, and
admissions to file, together with affidavits, if any," that show
the absence of a genuine issue of material fact. Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). If the movant meets this
initial burden, the party opposing the motion must then
demonstrate that there exists a genuine dispute as to the
material facts. See id.; Silver, 947 F.2d at 1022.
The opposing party may not solely rely on its pleadings, on
conclusory factual allegations, or on conjecture as to the facts
that discovery might disclose. See Gray v. Darien,
927 F.2d 69, 74 (2d Cir. 1991). Rather, the opposing party must present
specific evidence supporting its contention that there is a
genuine material issue of fact. See Celotex Corp., 477 U.S.
at 324; Twin Lab. Inc. v. Weider Health & Fitness,
900 F.2d 566, 568 (2d Cir. 1990). To show such a "genuine dispute," the opposing
party must come forward with enough evidence to allow a
reasonable jury to return a verdict in its favor. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986); Cinema North Corp. v. Plaza at Latham Assocs.,
867 F.2d 135, 138 (2d Cir. 1989). If "the party opposing summary judgment
propounds a reasonable conflicting interpretation of a material
disputed fact," then summary judgment must be denied. Schering
Corp. v. Home Insur. Co., 712 F.2d 4, 9-10 (2d Cir. 1983). The
Court will analyze the instant motion in accordance with these
Plaintiffs' Attempt to Impose Absolute Liability
Plaintiffs contend that they are entitled to a finding of
absolute liability on the part of the Defendants as a result of
their failure to comply with New York Labor Law § 240(1). In
pertinent part, Section 240(1) states:
All contractors and owners and their agents . . . who
contract for but do not direct or control the work,
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, 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
This section, commonly referred to as the "scaffold law," was
first enacted in 1885 in response to a significant number of deaths and injuries to employees working at heights in the
construction trades. See Blake v. Neighborhood Hous. Servs. of
N.Y. City, Inc., 1 N.Y.3d 280, 285 (2003). The statute was
intended by lawmakers to ensure safer working conditions by
exposing employers to the threat of civil and criminal penalties.
Over the years the scaffold law has been redrafted to more
squarely affix liability for violations of its requirements. It
now unqualifiedly places liability on the shoulders of owners and
contractors and their respective agents. See Haimes v. N.Y.
Tel. Co., 46 N.Y.2d 132, 136 (1978).
Section 240(1)'s purpose is clear: protect tradesmen working at
height from elevation-related risks by placing responsibility for
providing safety devices meant to protect workers on contractors
and owners. See Wilson v. City of N.Y., 89 F.3d 32, 36 (2d
Cir. 1996); Felker v. Corning Inc., 90 N.Y.2d 219, 224 (1997);
Zimmer v. Chemung County Performing Arts, Inc., 65 N.Y.2d 513,
520 (1985). In order to ensure that § 240(1)'s purpose is
achieved, Courts are instructed to afford it as liberal an
interpretation as needed. See Agric. Ins. Co., Inc. v. Ace
Hardware Corp., 214 F. Supp.2d 413, 417 (S.D.N.Y. 2002);
Rocovich v. Consol. Edison Co., 78 N.Y.2d 509, 513 (1991);
Carpio v. Tishman Constr. Corp. of N.Y., 240 A.D.2d 234, 235
(1st Dep't 1997). Because the intent is to place the burden
of protecting workers on the entities most capable of bearing it,
the liability created by § 240(1) is nondelegable. See Wilson, 89 F.3d at
36; Gordon v. E. Ry. Supply, Inc., 82 N.Y.2d 555, 559 (1993);
Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500
(1993). This is true regardless of whether the owner and
contractor retain any control or power of supervision over ...