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DeClercq v. WWP Office, LLC

Supreme Court of New York, New York County

September 24, 2013

Marlon DECLERCQ, Plaintiff,
v.
WWP OFFICE, LLC, Defendant. No. 100677/11.

Editorial Note:

This decision has been referenced in a table in the New York Supplement.

Hach & Rose, LLP, New York, for Plaintiff.

Hoey King Epstein Prezioso, New York, for Defendant.

DORIS LING-COHAN, J.

Plaintiff Marlon Declercq commenced this action to recover damages he sustained, as foreman for First Quality Maintenance (FQM), a building maintenance company, when he fell from a ladder while working at Worldwide Plaza, located in 825 Eighth Avenue, New York, New York, a building owned by defendant WWP Office, LLC. Plaintiff now moves, pursuant to CPLR 3212(c), for partial summary judgment as to liability on his New York Labor Law § 240 claim. Defendant opposes and cross-moves, pursuant to CPLR 3212, for summary judgment dismissing plaintiff's complaint.

BACKGROUND

The following facts are undisputed. On August 7, 2010, plaintiff and two other FQM workers, Mike Caruso and Oscar Munoz, met at the subway station located in Worldwide Plaza at approximately 7:45 a.m., to set up the work area for cleaning. The walls and window ledges of the subway station to be cleaned were divided into 4 sections, with each section to be cleaned in succession. For each section, plaintiff would use a ladder to apply a cleanser on the walls and window ledges, which would soak for 15 minutes. Plaintiff would then use the ladder to hose down the walls and window ledges. The excess water would be vacuumed or swept up, and this process would be repeated for each section. Eric Weaver, another FQM worker, was present during plaintiff's accident but was not involved in such cleaning.

Plaintiff's accident occurred during the cleaning of the last section. Plaintiff testified that he was standing on an aluminum extension ladder hosing down the wall when the ladder kicked out from underneath him, causing him to fall approximately 20 feet to the floor and sustain injuries.

Thereafter, plaintiff commenced this action by summons and complaint seeking monetary damages. Plaintiff now moves for partial summary judgment on liability, and defendant cross-moves for summary judgment to dismiss the complaint.

DISCUSSION

"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" . Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 (1986). Once the movant has made such a showing, the burden shifts to the party opposing the motion to produce evidence in admissible form sufficient to establish the existence of any material issues of fact requiring a trial of the action. Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980).

Labor Law § 240(1), also known as the Scaffold Law (Ryan v. Morse Diesel, Inc., 98 A.D.2d 615, 615 [1st Dep't 1983] ), provides in relevant part:

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.

"Labor Law § 240(1) was designed to prevent those types of accidents in which the scaffold ... or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person" . John v. Baharestani, 281 A.D.2d 114, 118 (1st Dep't 2001) (internal quotations omitted). The Scaffold Law does not apply merely because work is performed at elevated heights, rather, it applies where the work itself ...


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