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,
BROOKFIELD PROPERTIES CORPORATION, BROOKFIELD FINANCIAL PROPERTIES, L.P., BFP 300 MADISON II, LLC, BFP 300 MADISON I, LLC, BFP 300 MADISON A, LLC, BFP 300 MADISON B, LLC, BFP 300 MADISON M, LLC, and TURNER CONSTRUCTION COMPANY, Defendants. DEBORAH SCARPATI, as Administratrix of the Estate of GEORGE SCARPATI, deceased, and DEBORAH SCARPATI, Individually, Plaintiffs, v. BROOKFIELD PROPERTIES CORPORATION, BROOKFIELD FINANCIAL PROPERTIES, L.P., BFP 300 MADISON II, LLC, BFP 300 MADISON I, LLC, BFP 300 MADISON A, LLC, BFP 300 MADISON B, LLC, BFP 300 MADISON M, LLC, and TURNER CONSTRUCTION COMPANY, Defendants.
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 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.
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
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
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  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
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,
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
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
Defendants' Motion to Dismiss Plaintiffs' Request for Punitive
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
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.
© 1992-2004 VersusLaw Inc.