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Reis v. Realty

October 9, 2007

ADEILSON DOS REIS, PLAINTIFF,
v.
VANNATTA REALTY, DEFENDANT.



The opinion of the court was delivered by: Stephen C. Robinson, United States District Judge

MEMORANDUM DECISION AND ORDER

Plaintiff Adeilson Dos Reis, a citizen of Brazil, brought this suit under New York Labor Law, against Defendant Vannatta Realty, a citizen of Pennsylvania. Plaintiff alleges he was injured while working on a property owned by Defendant, and brings suit under New York Labor Law §§ 200, 240(1), 241(6) and common law negligence. The parties cross-move for summary judgment, and plaintiff moves for supplemental discovery. For the reasons stated below, the parties' motions are granted in part and denied in part.

I. Factual Background

The relevant facts are straightforward. On February 18, 2004, plaintiff, an illegal immigrant, was working on the sloped roof of a two-story structure owned by defendant. Plaintiff, along with his brother, had installed water-proof tar paper on the roof. Plaintiff's brother tripped on the tar paper and fell towards Plaintiff. Plaintiff caught his brother, stopping the fall. Thereafter, plaintiff attempted to stand, at which time he slipped on the paper himself and fell off the roof to the ground below. Plaintiff alleges severe injuries, primarily to his hip.

Plaintiff further states that at the time of the incident, Defendant had not installed safety equipment required by New York law. There were no other witnesses to the accident that day, and defendant alleges that it did not even find out about the accident until approximately a week later when it was investigating why the work on the roof had not been completed.

II. Analysis

A. Summary Judgment Standard

Summary judgment is appropriate only if "there is no genuine issue as to any material fact[.]" Fed. R. Civ. P. 56(c). Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." Id.

The initial burden falls on the moving party who is required to "demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets its burden, the burden shifts to the party opposing summary judgment to set forth "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The non-moving party "may not rely simply on conclusory allegations or speculation to avoid summary judgment, but instead must offer evidence to show that 'its version of the events is not wholly fanciful.'" Morris v. Lindau, 196 F.3d 102, 109 (2d Cir. 1999) (quoting D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998)).

B. New York Labor Law §240(1)

Plaintiff moves for summary judgment on his N.Y. Labor Law §240(1) claim. That statute, otherwise known as the "Scaffolding Law", provides that:

"All contractors and owners and their agents, except owners of one and two-family dwellings 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, hoists, 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."

N.Y. Labor Law §240(1).

The requirements of § 240(1) are non-delegable, and contractors and owners are absolutely liable for injuries caused by their violations. Affordable Hous. Found. v. Silva, 469 F.3d 219, 224 (2d Cir. 2006). Plaintiff and his brother testified that they were provided with no safety devices on the day in question. This constitutes the only evidence in the record with regards to whether plaintiff was provided with an appropriate safety device pursuant to ยง 240(1). Defendant's opposition to summary judgment consists almost entirely of speculation that plaintiff might be lying, and therefore his credibility is at issue. This speculation is based on the fact that plaintiff is an illegal immigrant who lied on employment documents, and also on an argument that plaintiff provided incorrect testimony at his deposition. However, defendant provides no evidence that plaintiff is lying with respect to whether or not the appropriate safety devices were provided to him at the time of the accident. Nor does defendant provide any evidence that plaintiff was in fact provided with the appropriate safety device at the time of the accident other than evidence that plaintiff was provided with the appropriate safety device at another construction site, on another day. While summary judgment is only appropriate where there are no material facts in ...


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