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Kim v. Son

July 9, 2007

JANG UK KIM, PLAINTIFF,
v.
HO JEO SON, DEFENDANT.



The opinion of the court was delivered by: VITALIANO, D.J.

MEMORANDUM AND ORDER

Plaintiff Jang Uk Kim ("Kim"), a construction worker, brought this action on March 4, 2005 to recover for injuries he sustained while working at a building owned by defendant Ho Jeo Son ("Ms. Son"). On June 20, 2007, Kim moved for partial summary judgment on his fifth cause of action, a claim brought under New York Labor Law § 240(1). Ms. Son cross-moved for the same relief on the same claim. For the reasons set forth below, the Court grants Kim's motion for summary judgment on liability and denies Ms. Son's cross-motion in its entirety.

Background

On July 16, 2004, Kim was working at a residential structure in Flushing, New York owned by Ms. Son. Kim was finishing the underside of an awning above the home's front door when the scaffolding on which he stood collapsed, throwing him to the ground. At the time of this incident, Kim had been working at the construction site for two weeks consecutively and for a total of approximately four months. More importantly, it is undisputed that the purpose of the construction project at Ms. Son's premises was to convert a single-family residence into a three- family residence. At the time of the scaffolding collapse, the conversion project was nearly complete, and no one disputes that Ms. Son had insured the property as a three-family dwelling, effective June 21, 2004 -- nearly one month before the incident. Ms. Son's husband, Kyung Man Son ("Mr. Son"), who owns a plumbing company, was charged with hiring workers and contractors to perform necessary work. He hired Architect Chon Engineering and Nova Heating and Plumbing -- both owned by Sung Soo Chon, a/k/a Steven S. Chon ("Chon") -- to obtain permits and perform architectural, construction, and renovation work.

The parties disagree about the precise nature of the relationship between Chon and Mr. Son, and specifically, about the role Mr. Son played in the project. Still, it is undisputed that the scaffold which collapsed belonged to Mr. Son and had been maintained on Ms. Son's premises. Kim had erected the scaffold -- he claims, with the assistance of Mr. Son -- so that he could reach the awning above the front door. Leading to the awning/front-door area was a five-step staircase. Two of the scaffold's legs were placed next to the front door, while the other two legs were placed on the second step of the staircase. To level the scaffolding, the legs on the staircase were propped up on cinder blocks. No lifelines, guardrails, or other safety devices were provided to secure the legs of the scaffold.

On the day of the scaffolding collapse, an inspector had come to visit the site, and Mr. Son directed Kim to remove the scaffold's crossbar because it obstructed access to the home's front door. When the inspector left, Mr. Son directed Kim to replace the crossbar and return to work. Kim apparently half-listened, as he returned to work on the scaffold, but failed to replace the crossbar. It is unclear whether Mr. Son, who testified at his deposition through a translator, was aware that Kim returned to work on the scaffold before replacing the crossbar. The scaffold collapsed approximately three to four hours after the inspector left.

Defendant's own expert, Dr. Robert Grunes, has concluded in his expert report that the general contractor, Chon, failed "to have assured a safe workplace" and that this failure "was the cause of the accident" within the meaning of New York State's Labor Law. Stated clearly, "[i]f properly executed, the [general contractor's] obligations would have precluded the accident." Yoon Decl., Exh. C, at 11. Dr. Grunes could not, however, definitively identify the cause of the collapse:

While it is conceivable that there may have been a contribution to lateral instability arising from the removal of the cited crossbar, it is by no means certain that it was the cause. Moreover, alternative explanations bearing on the outer and block supports, inadequately defined, may yield a basis for understanding other problems. Unfortunately, the subject scaffold structure was removed prior to our involvement in this matter . . . . Presumptively, the scaffold collapse resulted from an improper assembly or installation. It is inferred that the crossbar removal, described, contributed to the collapse.

Id. at 7 (emphasis added). Dr. Grunes elaborated that Mr. Son's role on the job site was unclear due to the "stark difference in testimony" between Mr. Son and Kim.

Discussion

I. Standard for Summary Judgment

Under the Federal Rules of Civil Procedure, a court must grant summary judgment upon finding that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In assessing the merits of a summary judgment motion, "the court cannot try issues of fact but can only determine whether there are issues of fact to be tried." Sutera v. Schering Corp., 73 F.3d 13, 16 (2d Cir. 1995) (quoting Katz v. Goodyear Tire & Rubber Co., 737 F.2d 238, 244 (2d Cir. 1984)). The initial burden is on the moving party to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Feingold v. New York, 366 F.3d 138, 148 (2d Cir. 2004). In determining whether the moving party has met this burden, a court must construe all evidence in a light most favorable to the nonmoving party, resolving all ambiguities and inferences in its favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Gibbs-Alfano v. Burton, 281 F.3d 12, 18 (2d Cir. 2002). If the moving party makes a prima facie showing that there are no genuine issues of material fact, the nonmoving party must go beyond the pleadings and put forth "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002). This means that the nonmoving party may not rely on "conclusory statements, conjecture, or speculation." Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996); Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). Ultimately, the court is left to decide "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52.

II. New York Labor Law § 240(1)*fn1

New York Labor Law ยง 240(1), commonly called the "scaffold ...


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