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Schumann v. 250 East 57TM Street, LLC

Sup Ct, New York County

March 27, 2013

ROBERT SCHUMANN, Plaintiff,
v.
250 EAST 57™ STREET, LLC and GOTHAM CONSTRUCTION COMPANY, Defendants. Index No. 102481/2011

Unpublished Opinion

DECISION and ORDER

EILEEN A. RAKOWER

Plaintiff brings this action to recover for injuries allegedly sustained when he was performing construction work at 250 East 57th Street, New York, New York ("the Premises") which is owned by 250 East 57th Street, LLC. Gotham Construction Company LLC ("Gotham") was hired by 250 East 57th Street, LLC to act as a general contractor and construction manager of the premises. Gotham entered into a steel subcontract with AJ. McNulty for work on the premises. Plaintiff was employed by A.J. McNulty. He had been sent to the job by his union hall to act as a signal man for the raising gang. Throughout the job, plaintiff was on the ground or the derrick floor, performing his duties as a signal man.

On February 19, 2011, several members of A.J. McNulty's gang did not show up, and they were shorthanded. Plaintiff was ordered by A.J. McNulty's supervising foreman, Sean Kenny, to act as a connector on that day. As a steel connector, plaintiff had brought to the jobsite his own harness which he wore throughout the day. Initially, the gang was told to shake out structural steel for erection. After the steel was shaken out, several columns were lifted up so that the steel beams could be connected into them. Thereafter, Plaintiff and his connecting partner, Anthony Molina, climbed the columns and got into place to connect the structural steel at about 12-15 feet above the tenth floor below which was filled with corrugated decking.

The steel was initially connected at the perimeter of the building and the connectors worked their way into the middle of the building. When the steel was being connected on the perimeter of the building, the steel beams had static lines going across the bottom flanges so that the connector could tie a belt into it for a connection point.

At the time of the accident, plaintiff and his partner were connecting beams on the interior of the building in a hallway area. The beams were shorter, stemming anywhere from 7-10 feet in length, and had a 1-inch steel tube prefabricated on top of the beam which made it difficult to maneuver. Plaintiff asserts that the smaller beams did not have any safety cables or tie off points, and therefore, he could not tie off.

Just before the accident, plaintiff made a connection on the steel beam, but his partner was having difficulty making a connection on his end. Accordingly, plaintiff walked across the beam to help his partner. During the course of the walk over, plaintiff slipped off the beam and fell to the derrick floor, about 12-15 feet below.

The complaint specifically alleges:

defendants, their contractors, agent and employees failed to provide plaintiff with proper protection; further, failed to provide life-lines, stanchions, high-lines, tie-lines and other safety devices to prevent a fall from an elevated work-site, further, failed to provide scaffolding that was properly constructed, placed, operated and maintained, failed to provide welded stachions, tie-lines, life-lines and other devices to utilize a safety-belt; further, failed to provide man-lifts and other devices thereat; further, allowed dangerous and hazardous tripping hazards to be and remain on thereat, further, violated Section §200, §240 and §241(6) of the Labor Laws of the State of New York.

Plaintiff Robert Schumann moves for summary judgment on the Labor Law §240(1) claim, pursuant to CPLR §3212. 250 East 57th Street, LLC and Gotham Construction Company, LLC ("collectively, "defendants") cross-move for summary judgment on the Labor Law §200 and Labor Law §241(6) claims, pursuant to CPLR §3212. Both sides oppose the other's motions for summary judgment.

In support of its motion, plaintiff annexes: the affidavits of Sean Kenny and James Sweeney, safety foremen at the site of the accident, , the pleadings, a preliminary conference order dated June 21, 2011, the deposition of Richard Agresta a supervisor for Gotham Construction Company, the Construction Management Agreement between 250 East 57lh Street, LLC and Gotham Construction Company, LLC for 250 East 57th Street, dated April 9, 2010, and the deposition of Plaintiff Robert Schumann.

In opposition, and in support of its cross-motion, Defendants provide: the Affirmation of David Persky, attorney for defendant, and a photograph of the incident location.

The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law. That party must produce sufficient evidence in admissible form to eliminate any material issue of fact from the case. Where the proponent makes such a showing, the burden shifts to the party opposing the motion to demonstrate by admissible evidence that a factual issue remains requiring the trier of fact to determine the issue. The affirmation of counsel alone is not sufficient to satisfy this requirement. (Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]). In addition, bald, conclusory allegations, even if believable, are not enough. (Ehrlich v. American Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 255 [1970]). (Edison Stone Corp. v. 42nd Street Development Corp., 145 A.D.2d 249, 251-252 [1st Dept. 1989]).

Labor Law §240(1)

Section §240(1) of the Labor Law ("Scaffolding and other devices for use of employees") provides, in pertinent part as follows:

All contractors and owners and their agents 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 ...

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