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United States District Court, S.D. New York

June 8, 2004.

DELORES BENTON, as Administratrix of the Estate of JAMES BENTON, Decedent, and DELORES BENTON, Individually, Plaintiffs,

The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge

Memorandum Opinion and Order

Procedural Background

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 principles.

  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 employed.
  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 the project. See Ross, 81 N.Y.2d at 502; Cosban v. N.Y. City Transit Auth., 227 A.D.2d 160, 160-61 (1st Dep't 1996). As such, the liability imposed by the statute is absolute. See Blake, 1 N.Y.3d at 287; Zimmer, 65 N.Y.2d at 519; see also Ramos v. Markusue Realty Corp., 586 F. Supp. 488, 490 (S.D.N.Y. 1984).

  Taking into account the stringent standard of review, previously discussed, that confines a court's evaluation of motions for summary judgment, Plaintiffs must prove that § 240(1) was violated as a matter of law, and that the violation of the statute was a proximate cause of the accident. See Palen v. ITW Mortgage Invs. III, Inc., 2003 WL 1907980, at *3 (S.D.N.Y. April 17, 2003); Agric. Ins. Co., Inc., 214 F. Supp.2d at 417; Meade v. Rock-McGraw, Inc., 307 A.D.2d 156, 159 (1st Dep't 2003). Plaintiffs can establish a prima facie case that the statute was violated by showing that no safety devices were provided, see Rooney v. Port Auth. of N.Y. & N.J., 875 F. Supp. 253, 254 (S.D.N.Y. 1995); Smith v. Xaverian H.S., 270 A.D.2d 246, 247 (2d Dep't 2000), or that those that were provided collapsed or otherwise failed to protect the workers. See Dos Santos v. State of N.Y., 300 A.D.2d 434, 434 (2d Dep't 2002); Squires v. Robert Marini Builders, Inc., 293 A.D.2d 808, 809 (3d Dep't 2002); Aragon v. 233 W. 21st St., Inc., 201 A.D.2d 353, 354 (1st Dep't 1994). Plaintiffs' may also set forth a prima facie case of violation by showing that the risk of injury to the workers from the Defendants' conduct was foreseeable. See Felker, 90 N.Y.2d at 225; Gordon, 82 N.Y.2d at 562.

  Not every accident or fall, however, gives rise to § 240(1) liability. Simply demonstrating that an accident occurred is not enough to trigger the statute's rigorous liability. Blake 1 N.Y.3d at 288. Rather, Plaintiffs must also establish that the violation of § 240(1) was a proximate cause of the accident. See Agric. Ins. Co., Inc., 214 F. Supp.2d at 417; Felker, 90 N.Y.2d at 224; Musselman v. Charles A. Gaetano Constr. Corp., 277 A.D.2d 691, 692 (3d Dep't 2000).

  Plaintiffs contend that the Defendants failed to provide the decedents with any safety devices and thereby failed to meet their responsibilities under § 240(1). In particular, Plaintiffs believe Defendants had a responsibility under the statute to provide the workers with choker cables and tie-ons to support the elevator car and life lines to attach to themselves. According to the Plaintiffs, Defendants did not provide any of these safety devices. Had Defendants provided these safety devices, or at least one of them, Plaintiffs claim the workers deaths could have been prevented. Thus, following Plaintiffs' reasoning, Defendants' violation of § 240(1) was a proximate cause of their husbands' deaths.

  Defendants counter by claiming that they did provide the workers with safety devices. The Turner Defendants argue that "the hoist was equipped with `other safety devices' which included guardrails to protect them while they worked atop the hoist and, hoist brakes, to protect them in the event the hoist cable broke." Turner Mem. in Opp. to Mot. for S.J., at p. 7. In addition, they claim Atlantic-Heydt provided the decedents with safety harnesses, lanyards and lifelines to wear while jumping the hoist. Id. This argument is not supported by evidence strong enough to overcome the prima facie case for violation of the statute created by the simple fact that these safety devices failed to protect the workers from crashing to their deaths. See Dos Santos, 300 A.D.2d at 434; Squires, 293 A.D.2d at 809; Aragon, 201 A.D.2d at 354.

  A separate argument offered by the Brookfield defendants, and adopted by the Turner defendants during oral argument, is that Defendants provided the decedents with three fist grip clips and four Crosby clips. According to the affidavits of experts offered by the Brookfield defendants, any one of those seven clips would have been strong enough to secure the elevator car and prevent it from falling if properly secured and tightened. Furthermore, Defendants have offered the report of an expert they retained to inspect the clips used during the accident which purports that the clips were not defective. Defendants claim, therefore, that the decedents were provided with safety devices and decedents own negligence was the cause of the accident.

  Two issues are raised by the Defendants assertion: (1) are the fist grips and Crosby clips safety devices within the meaning of § 240(1); and (2) if the clips are not safety devices, does decedents' alleged negligence absolve Defendants of liability? With respect to the first issue, Plaintiffs insist that the clips cannot be considered to be safety devices within the meaning of the statute. Plaintiffs point to the fact that clips are not among the safety devices enumerated in § 240(1). Moreover, the clips are part of the actual machinery used to accomplish the task of jumping the hoist. As such, the clips cannot be considered safety devices. Defendants, however, argue that the statute contains the catch-all phrase "and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed." Because the clips, if properly fastened, would have provided the workers with proper protection, Defendants believe they should be deemed safety devices consistent with this clause of § 240(1).

  Although the Court finds the Defendants argument difficult to swallow, it does potentially have merit. In light of the catch-all phrase it is at least possible that the clips can be deemed to be a safety device. In order to determine whether the clips are or are not safety devices, the Court would have to make a finding on a strenuously disputed question of fact. That, however, is beyond the Court's authority on a motion for summary judgment.

  Regarding the second issue raised by Defendants' argument, Defendants imply that even if they were to concede that the clips are not safety devices and the statute was violated they would still be entitled to summary judgment based on the fact that the accident was the result of the decedents' own negligence. Defendants claim that the workers were negligent in failing to properly fasten and tighten the clips. Had they not been negligent, Defendants contend, the elevator car would not have plunged to the ground and the workers would not have died.

  That a worker's own negligence played a part in contributing to an accident is not a defense. Mere contributory, or comparative, negligence is not a defense when confronted with absolute liability. As the New York Court of Appeals recently stated in Blake, "Since [1897] we have steadfastly held that contributory negligence will not exonerate a defendant who has violated the statute and proximately caused a plaintiff's injury." 1 N.Y.3d at 286; see also Rocovich, 78 N.Y.2d at 513; Sharp v. Scandic Wall Ltd. P'ship, 306 A.D.2d 39, 40 (1st Dep't 2003). If, however, the worker's actions are the sole and proximate cause of the accident, the workers negligence is a viable defense. Weininger v. Hagedorn & Co., 91 N.Y.2d 958, 960 (1998); Meade, 307 A.D.2d at 160. The reason for this is that if the worker's actions were the sole and proximate cause of the accident, logic dictates that the statutory violation could not also be a proximate cause of the accident. If the violation was not a proximate cause of the accident, one of the required elements for invoking § 240(1) liability would not be satisfied. See Blake, 1 N.Y.3d at 290. Recognizing that a reasonable fact finder might — or might not — find that the decedents' conduct was the sole and proximate cause of the accident, neither Plaintiffs nor Defendants are entitled to summary judgment with respect to the claim for § 240(1) liability. See Weininger, 91 N.Y.2d at 960; Heffernan v. Bais Corp., 294 A.D.2d 401, 403 (2d Dep't 2002); Tate v. Clancy-Cullen Storage Co., Inc., 171 A.D.2d 292, 296 (1st Dep't 1991).

  Defendants' Motion to Dismiss Plaintiffs' § 241(6) Claim

  As with § 240(1), the purpose of Labor Law § 241(6) is to protect workers by placing the burden of absolute liability on owners and contractors who can best ensure the safety of those workers. See Zimmer, 65 N.Y.2d at 520; Haimes v. N.Y. Tel. Co., 46 N.Y.2d 132, 136 (1978). To accomplish this goal, the drafters of § 241(6) mandated that owners and contractors comply with the specific safety rules and regulations set forth by the Commissioner of the Department of Labor. See Ross, 81 N.Y.2d at 501-02. Similar again to § 240(1) liability, § 241(6) liability is nondelegable, see Rizzuto v. L.A. Wenger Contracting Co., 91 N.Y.2d 343, 348 (1998); Dugandzic v. N.Y. City School Constr. Auth., 665 N.Y.S.2d 831, 835 (Sup.Ct. 1997), and whether either the owner or contractor retained supervision and control of the project is not relevant. See id.; Ross, 81 N.Y.2d at 502.

  "Under New York case law, in order to prevail on a claim under this section, a plaintiff must prove (a) that the defendant violated a safety regulation that set forth a specific standard of conduct, and (b) that the violation was the proximate cause of his injuries." Wilson, 89 F.3d at 38. Critical to claiming a violation of § 241(6) is identifying a specific regulation of the Industrial Code ("Code"), 12 NYCRR 23, et seq., that was violated. See Vernieri v. Empire Realty Co., 219 A.D.2d 593, 597 (2d Dep't 1995). Simply alleging general safety standard violations is not adequate. See Comes v. N.Y. State Elec. & Gas Corp., 82 N.Y.2d 876, 878 (1993); Ross, 81 N.Y.2d at 502.

  The Defendants seek to have the Plaintiffs' § 241(6) cause of action dismissed on the basis that Plaintiffs failed to allege a specific violation of the Code. The Plaintiffs did, however, include a specific allegation in their response to Defendants' motion for summary judgment. Plaintiffs contend that the Defendants failed to adhere to the requirements of 12 NYCRR 236.1(d). This provision of the Code provides certain protections that must be undertaken when workers are engaged in material hoisting. New York courts have held that an alleged violation of 12 NYCRR § 23-6.1(d) is sufficient to support a cause of action pursuant to § 241(6). Plaintiffs seek to amend their Complaints to clarify that § 23-6.1(d) is the Code provision alleged to have been violated.

  Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend is to be "freely given when Justice so requires." See also Ellis v. Chao, 336 F.3d 114, 127 (2d Cir. 2003). The only restraints on providing a plaintiff this relief are the possibility of prejudice to the defendant and futility. In this case the Court does not believe the Defendants would be prejudiced by allowing the Plaintiffs to amend their Complaints to include a reference to § 23-6.1(d). Defendants have had ample warning that this is the Code section that the Plaintiffs believe was violated, and Defendants would not need to conduct any new discovery. Nor would allowing Plaintiffs to amend be an exercise in futility. As stated, Courts have deemed this Code provision sufficient to support a § 241(6) claim. Defendants claim that two cases, Hawkins v. City of N.Y., 275 A.D.2d 634 (1st Dep't 2000) and Smith v. Homart Dev. Co., 237 A.D.2d 77 (3d Dep't 1997), requiring the plaintiff worker to have been using a material hoist at the time of the accident render an amendment futile. It is their contention that the decedents were not using the hoist in a manner consistent with the provisions of § 23-6.1(d). The facts in the cases cited by Defendants are significantly different from those of the instant matter. Whether the section applies depends in part on a question of fact as to whether the elevator car that crashed can be deemed to have been carrying a load. Thus, allowing Plaintiffs to amend would not necessarily be futile.

  For these reasons, Defendants' request to dismiss Plaintiffs' § 241(6) claim is denied. Plaintiffs are hereby directed to amend and serve their respective Complaints by no later than July 1, 2004.

  Defendants' Motion to Dismiss Plaintiffs' § 200 Claim

  Section 200 of the Labor Law is a codification of the common law duty of owners and general contractors to provide construction workers with a safe workplace. See Ross, 81 N.Y.2d at 505; Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 316-17 (1981). Unlike the liability imposed by § 240(1) and § 241(6), the liability imposed by § 200 is delegable. As such, whether the owner or general contractor retained any powers of supervision or control over the project is a factor in assessing § 200 liability. See Rizzuto, 91 N.Y.2d at 352; Lombardi v. Stout, 80 N.Y.2d 290, 295 (1992); see also Palen, 2003 WL 1907980, at *5. Merely retaining general or abstract supervisory powers is insufficient to provide a basis for § 200 liability. See Tambasco v. Norton Co., 207 A.D.2d 618, 621 (3rd Dep't 1994). In order for § 200 liability to be triggered, the plaintiff must demonstrate that the defendant had authority and control over the plaintiff's specific work. See Ryder v. Loretto Nursing Home, Inc., 290 A.D.2d 892, 894 (3rd Dep't 2002).

  In addition to retaining a measure of actual supervision and control over the worker's project, the owner or general contractor must also have notice of the alleged unsafe condition that caused the accident. Canning v. Barneys N.Y., 289 A.D.2d 32, 33 (1st Dep't 2001); Cruz v. Toscano, 269 A.D.2d 122, 123 (1st Dep't 2000). Notice can be either actual or constructive, but "must be of the specific condition and of its specific location." Canning, 289 A.D.2d at 33.

  Defendants argue that they lacked supervision and control over the decedents work. According to the Defendants, decedents' employer, Atlantic-Heydt, supervised and controlled their work. Both Brookfield and Turner claim to have delegated all responsibility for the extension of the hoist to Atlantic-Heydt and to have trusted it to ensure that its employees were safe. Plaintiffs contest this argument by pointing out that the Defendants, through Turner, employed both a private safety consulting company and an "in-house" safety expert to oversee safety at the site. Defendants concede having employed safety directors, but contend their action amounts to no more than just retaining general supervisory control.

  In Freitas v. New York City Transit Authority, 249 A.D.2d 184 (1st Dep't 1998), the court held that the owner and general contractor's employment of a safety director who was stationed at the work site, inspected the site daily and had the authority to stop work to correct unsafe work practices satisfied the supervision and control requirement. Plaintiffs believe the instant situation is analogous to that in Freitas. Defendants, however, disagree, citing powers the owner and contractor had in the Freitas case that they contend Brookfield and Turner did not possess. The Court agrees with the Defendants that the situations are not exactly the same, but does believe that the Plaintiffs have raised an issue of fact as to whether or not the safety directors employed by the Defendants possessed the requisite power necessary to imbue them with supervision and control over the project.

  The Defendants argue that even if the Court concludes that they retained the requisite supervision and control, Plaintiffs cannot possibly prove that the Defendants had notice of the dangerous situation confronting the decedents. Underlying the Defendants argument is their belief that the workers death was caused by their own negligence. As discussed during consideration of the § 240(1) cause of action, whether the accident was caused solely by the worker's own negligence is a question of fact on which the Court cannot, at this time, pass. If in fact, the Court or some other finder of fact were, at the appropriate time, to find that the workers' actions were not the sole and proximate cause of their deaths, it might also find that the conditions leading to the accident were known to the Defendants. By way of example, if it were found that the lack of choker cables was the cause of the accident, it might not take a Hank Greenbergesque stretch to find that Defendants were aware of the lack of choker cables. For these reasons, dismissing Plaintiffs' § 200 claim on a motion for summary judgment is not appropriate.

  Defendants' Motion to Dismiss Plaintiffs' Request for Punitive Damages

  Punitive damages are intended both to serve as a warning to others and society as a whole that certain conduct will not be tolerated and to punish abhorrent behavior characteristic of criminal conduct. See Home Ins. Co. v. Am. Home Prods. Corp., 75 N.Y.2d 196, 203 (1990). To substantiate an award of punitive damages, the defendant's conduct must be found to be "egregious in nature and directed both at the plaintiff and the general public." Nat'l Broad. Co., Inc. v. Fire Craft Servs., Inc., 287 A.D.2d 408, 408-09 (1st Dep't 2001). With respect to a personal injury action, the defendant's conduct must be so wanton and reckless as to manifest a disregard for the plaintiff's safety. See Santiago v. Pyramid Crossgates Co., 294 A.D.2d 789, 791 (3rd Dep't 2002). Simply committing a tort is not enough to warrant imposing punitive damages. See Prozeralik v. Capital Cities Communications, Inc., 82 N.Y.2d 466, 479 (1993).

  This action is not one that warrants an award of punitive damages. Although the events of August 23, 2002 that claimed Mr. Benton and Mr. Scarpati's lives were nothing short of tragic, they were also accidental. The Defendants are not guilty of the type of wanton disregard for the decedents' safety or egregious conduct that would justify punitive damages. As Defendants' note in their reply papers, the multiple safety violations claimed by Plaintiffs in support of their request for punitive damages occurred at another construction site and chiefly involved a party that is not a defendant in this action. For this reason, the Defendants' motion to dismiss Plaintiffs' request for punitive damages is granted.

  Defendants' Motion to Dismiss Portions of Benton's Claims for Loss of Pecuniary Support

  Defendants seek to strike the claims for loss of pecuniary support and parental guidance made by the step-child and step-grandchildren of plaintiff-decedent Benton. Ravin Mitchell-Benton ("Mitchell-Benton") is the daughter of Delores Benton. Ms. Mitchell-Benton was never formally adopted by the decedent, James Benton. Ms. Mitchell-Benton was born to Delores and a man named Larry Foreman. Ms. Mitchell-Benton has two children of her own, Xavien and Yukari Benton. The Defendants argue that the New York Estates Powers and Trusts Law does not deem step-children who are not adopted to be the "issue" of the decedent. For this reason, Defendants do not believe that Ms. Mitchell-Benton and her children possess the right to file a wrongful death action.

  Ms. Mitchell-Benton and her children resided with the decedent and were financially dependent on him. Each of the claimants the Defendants seek to exclude shared the decedents surname, and the decedent referred to them as his children. In fact, James Benton is listed as the father on Yukari Benton's birth certificate. All three were annually listed on Mr. Benton's tax returns as "dependents." The grandchildren were covered persons on Mr. Benton's health insurance plan.

  Based on the facts as presented, there is little doubt that the decedent considered the claimants to be his children. That none were actually of his blood or formally adopted does not mean that Mr. Benton did not view them as his issue. To argue otherwise is to advance style over substance and elevate labels over conduct. Moreover, it would require ignoring the practical realities of the society in which we live today. The case law on which Defendants rely, DeLuca v. Gallo, 287 A.D.2d 222 (2d Dep't 2001) and Alberino v. Long Island Jewish-Hillside Med. Ctr., 87 A.D.2d 217 (2d Dep't 1982), involve facts and claims that are clearly distinguishable from those of the instant action. For that reason, DeLuca and Alberino are not controlling legal precedent. Thus, Ms. Mitchell-Benton and her children will be permitted to advance their claims for loss of pecuniary support and it will be up to the trier of fact to decide whether they have demonstrated that they have suffered a loss for which they are entitled to recovery.

  Defendants' Motion to Dismiss Claims for Pain and Suffering

  The Defendants seek to have the Plaintiffs' request for damages relating to conscious pain and suffering post-impact dismissed. The sum and substance of their argument is that the workers died instantly upon impact and, therefore, did not experience any pain and suffering. In support of this argument they cite the testimony of a medic who attended to the workers at the accident site somewhere between two to three minutes after the crash and did not detect any signs of life.

  The Plaintiffs contest the notion that the workers deaths were instantaneous by noting that the same medic cited by the defendants did not pronounce Mr. Benton dead at the scene, despite having the authority to do so and having examined him. Instead, Mr. Benton's death certificate states that he died an hour after the fall at Bellevue Hospital. Plaintiffs also cite an eyewitness who claims Mr. Benton "moaned and groaned" after his fall, and a pathologist's report finding that Benton lived for 5 to 7 minutes after impact.

  The Court finds that there is a legitimate dispute as to whether the workers experienced any post-impact pain and suffering. This dispute can only be resolved by a finding of fact, and therefore, cannot be resolved by summary judgment. The Defendants' motion to dismiss the claim is denied and the Plaintiffs' may submit the question to the appropriate trier of fact.


  For the reasons set forth herein, the Plaintiffs' motion for partial summary judgment is hereby denied. With the exception of Defendants' motion to dismiss Plaintiffs' claim for punitive damages which is granted, Defendants' motion for summary judgment is denied. All discovery having been completed and the motions for summary judgment having been largely denied, a ready for trial date of October 25, 2004 is hereby set.



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