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Pak v. Key Construction Management Corp.

March 31, 2009

KWANGUK PAK, APPELLANT,
v.
KEY CONSTRUCTION MANAGEMENT CORP., NICKOLAS POLYZOPOULOS, INDIVIDUALLY AND D/B/A BUDGET, HE GIN LEE, AND HE GIN LEE ARCHITECT, P.C., DEFENDANTS, AND DO SANG KWON AND KEUM JA KWON, RESPONDENTS.



Appeal from a judgment of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered July 19, 2007. The judgment, insofar as appealed from as limited by the brief, upon a jury verdict on the issue of liability, dismissed plaintiff's claims against defendants Do Sang Kwon and Keum Ja Kwon. The appeal from the judgment brings up for review, inter alia, so much of an order as denied the branch of plaintiff's motion pursuant to CPLR 4404 (a) seeking to direct judgment in favor of plaintiff on the issue of liability.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.

PRESENT: PESCE, P.J., WESTON PATTERSON, and STEINHARDT, JJ

Judgment, insofar as appealed from, reversed without costs, so much of the order as denied the branch of plaintiff's motion pursuant to CPLR 4404 (a) seeking to direct judgment in favor of plaintiff on the issue of liability vacated, said branch of plaintiff's motion granted, and matter remanded for trial on the issue of damages.

The instant case proceeded to trial, on a claim pursuant to Labor Law § 240 (1), only against defendants Do Sang Kwon and Keum Ja Kwon. At trial, plaintiff testified through an interpreter that he had been employed as a stucco contractor in connection with a renovation job. Some wood extruding from a window obstructed the job site. Plaintiff had previously requested that the carpenter trim the wood, but this had not yet been done as of plaintiff's first morning on the job. Plaintiff testified that, in preparation for his work on the stucco exterior, he decided to perform a single test to determine whether he could cut the wood, and then to go with his assistant to get scaffolding. Plaintiff found a six-foot-high wooden ladder at the job site, which he positioned on some plywood beneath a window. There was no scaffold, netting or other safety device in place. He mounted the ladder carrying a hand grinder that was intended for cutting cement or metal rather than trimming wood. As plaintiff leaned towards the window from which the wood extruded and turned on the grinder, the ladder shifted and fell. Plaintiff fell too, and, as he fell, the grinder slipped out of plaintiff's grip, became caught on his glove, and cut three of his left fingers and his left hand extending from the palm to the wrist.

Plaintiff's employee also testified, confirming plaintiff's statement. The only other witness was defendant He Gin Lee, the architect for the renovation, who was also the principal of defendant Key Construction Management Corp., the general contractor on the job. He testified concerning the noncompliance of wooden ladders with City codes and modern standards, and denied any responsibility for supervising plaintiff.

The clarity of the testimony at trial was somewhat obscured, possibly due to the fact that it was conducted through interpreters. Upon cross-examination of plaintiff, counsel for defendants Do Sang Kwon and Keum Ja Kwon highlighted inconsistencies between plaintiff's deposition testimony that he climbed the ladder facing backwards, and his trial testimony that he climbed the ladder facing forwards. Also, plaintiff testified that he was the individual responsible for bringing scaffolding to the work site, and that the pieces of wood extruding from the windows would not have interfered with the erection of scaffolding.

At the close of trial, plaintiff's motion for a directed verdict and a motion by defendants Do Sang Kwon and Keum Ja Kwon to dismiss the complaint were both denied.

Over plaintiff's objection, the trial court declined to charge the jury on burden of proof, and plaintiff took exception to the ruling. In its charge to the jury, the court instructed the jury on the Labor Law, without objection, in pertinent part as follows:

"If you find that the scaffolding, ladder, or other devices was [sic] not so constructed, or placed operated and or maintained as to give proper protection to plaintiff in the performance of the work and that the construction, or placement, or operation, or maintenance of the scaffolding, ladder or other devices was a substantial factor to causing plaintiff's injury, you will find for plaintiff on this issue. If you conclude that plaintiff's action was the only substantial factor on bringing about the injury, you will find for the defendant on this issue."

The court gave the jury two interrogatories, to which both parties assented:

"Question 1: Did the defendant violate section 240 (1) of the Labor Law in failing to furnish scaffolding or ladders or other devices for the performance of plaintiff's work so as to give him proper protection. Question 2: Was the defendant's violation a substantial factor in causing the occurrence."

The jurors answered the first question in the affirmative and the second in the negative. Plaintiff's posttrial motions in the alternative for judgment in favor of plaintiff on liability based upon the jury's answer to the first question, or for judgment "notwithstanding the finding" or to set aside the verdict were denied. Following trial, judgment was entered in favor of defendants Do Sang Kwon and Keum Ja Kwon.

Section 240 (1) of the Labor Law, also known as the Scaffold Law, was written to protect workers from dangers related to the effect of gravity (see Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]), and "was designed to place the responsibility for a worker's safety upon the owner and contractor rather than on the worker" (Felker v Corning Inc., 90 NY2d 219, 224 [1997], citing Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520 [1985]). Liability under the statute is predicated upon the existence of a gravity-related hazard within the class contemplated by the statute and the absence of or inadequacy of a safety device (see Narducci v Manhattan Bay Assoc., 96 NY2d 259, 266 [2001]). The third element required for a finding of liability ...


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