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BENTON v. BROOKFIELD PROPERTIES CORPORATION

June 8, 2004.

DELORES BENTON, as Administratrix of the Estate of JAMES BENTON, Decedent, and DELORES BENTON, 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. 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

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.

  Facts

  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.

  Discussion

  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 ...


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