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Casanova v. Midtown West B LLC

Supreme Court, New York County

November 20, 2013

Mario Casanova, Plaintiff,

Unpublished Opinion

Attorneys for Plaintiff Devon Reiff, Esq. Sacks & Sacks, LLP

Attorneys for Defendants Leon R. Kowalski, Esq.

Jeffrey K. Oing, J.

On June 2, 2009, plaintiff Mario Casanova ("Casanova") commenced this action against defendants, Midtown West B LLC ("Midtown") and Rockrose Development Corp. ("Rockrose") (collectively referred to as "defendants") to recover for injuries he allegedly sustained while working at a Manhattan construction site located at 505 West 37th Street. In his complaint, he asserts claims for violations of Labor Law §§ 240[1], 241[6], and 200, and common law negligence.

Defendants move, pursuant to CPLR 3212, for an order granting them summary judgment dismissing the complaint.

Factual Background

Defendant Midtown owned the subject property where the accident occurred. On March 1, 2007, Midtown hired Rockrose GC MWB LLC to serve as general contractor in the construction of, among other projects, a building on the subject property consisting of apartments with ancillary retail/commercial space and amenities (General Contractor Agreement, Reiff Affirm., Ex. 3). Rockrose agreed to provide "construction administration and management services" (Id. at § 1.1) and "administer and supervise the Work and coordinate the Project on behalf of Owner during construction" (Id. at § 2.1). In addition, Rockrose undertook the obligation to "prepare and/or enter into agreements between itself and each subcontractor or vendor of material" and "supervise the furnishings of all labor and materials required by such agreements" (Id. at § 2.4).

Rockrose's Construction Superintendent at the site, Peter DePalma, testified at his Examination Before Trial ("EBT") that his duties were to "schedule, monitor and coordinate the daily activities of all on-site subcontractors" (DePalma 4/1/2011 EBT at pp. 6, 15). Throughout each day he would "walk through the [site], mak[ing] sure everybody was doing what they were supposed to be doing" (Id. at pp. 15-16). DePalma relied on Total Safety, Inc., a consultant hired by Rockrose for the project, to implement safety procedures created by the general contractor on the work site (Id. at pp. 33-34). In addition, DePalma had authority to stop or correct any unsafe working practices he saw or cordon off areas in which unsafe conditions, including unguarded holes, existed (Id. at pg. 16-17). He exercised this authority regularly (Id.). In daily conversations with the foremen, DePalma would discuss areas that needed to be cleaned because other trades were beginning work in that area (Id. at p. 25). DePalma also held a foremen's meeting once a week in which he noted what needed to be done in the following week and any safety issues that needed to be addressed (Id. at pp. 29-30).

Rockrose hired non-party Sorbara Construction as a subcontractor on the site (Id. at pp. 16-17). Sorbara employed Casanova as a cement and concrete laborer (Casanova 3/9/10 EBT at p. 22). Casanova had no interaction with anyone from Rockrose beyond exchanging greetings (Casanova 3/9/10 EBT at p. 39). No Rockrose employee gave Casanova any direction or instruction as to how to perform his work (Id.).

On February 24, 2009, Casanova sustained an injury while working in the northwest corner of the 30th floor of the building. At the time of his injury, Casanova was laying out "reshores" (Casanova 3/9/10 EBT at p. 46). Reshores are wooden 4x4s, approximately 9 feet long and 40-50 pounds, used to support concrete after it is poured (Id. at pp. 47-48, 54). While carrying two reshores on his right shoulder, Casanova "stepped on some debris" made up of cardboard boxes containing materials used by plumbers or electricians, as well as coffee cups, wires, and plastic bottles with his left leg (Id. at pp. 58-59, 65-66, 69). This debris obscured an uncovered 18-inch by 24-inch hole in the floor (Id. at pp. 69-70; DePalma 4/1/2011EBT at pp. 89, 108). He then fell into the hole up to his left knee (Casanova 3/9/10 at pp. 69-71). As he fell, the reshores pushed against Casanova's neck (Id. at p. 72), and he twisted his upper body to the left to push the reshores away from him, to the right (Id. at p. 71). As he twisted he "felt a pop" in his back and saw a mass the size of a baseball distended from his stomach (Id. at pp. 71, 79).

This hole was one of approximately ten duct openings Sorbara left in the floor, at Rockrose's instructions, for future electrical wiring and plumbing (DePalma 4/1/2011 EBT at pp. 89, 95, 108). Sorbara was responsible for covering each of these openings until the floor was "swept clean, " at which point the cover on the hole would be removed and reinstalled by the carpentry contractor (Id. at pg. 109). DePalma testified that one of the "common dangers" at construction sites was "coverings coming off or being removed and not being replaced properly" (Id. at pp. 17-18), and that covering and securing "pass-through" holes on the floors and in the shaft area of the site was frequently discussed in safety meetings (Id. at pp. 69-70).Had DePalma or an employee of Rockrose or Total Safety noticed an improperly covered hole they would have immediately directed Sorbara to fix it (Id. at p. 109).

Preliminary Issues

Plaintiff opposes only that portion of defendants' motion that seeks dismissal of plaintiff's causes of action under Labor Law § 200 and common-law negligence, and Labor Law § 241[6] claim predicated upon violations of Industrial Code 12 NYCRR 23-1.7(b)(1), (b)(2), (e)(1), and (e)(2).

Accordingly, defendants' motion for summary judgment dismissing plaintiff's claims under section 240[1], OSHA Article 1926, and the other violations of the Industrial Code with respect to section 241[6] is granted without opposition, and those claims are dismissed.

In support of their motion, defendants point to a discrepancy in two separate accident reports wherein plaintiff allegedly stated that he sustained his injury when he was picking up wood, and not as testified in his EBT (Kowalski Affirm., ¶ 5). Other than pointing out such alleged discrepancy, defendants make no further argument about this issue. To the extent defendants are relying on this alleged discrepancy to support their motion for summary judgment dismissing the complaint, such reliance for the following reasons is misguided.

With respect to the "ACCIDENT REPORT" (Kowalski Affirm., Ex. D), which plaintiff signed, he testified that when he went back to work the day after the accident someone at the safety office had him sign a blank piece paper and that, although he described how the accident occurred, he was not given the opportunity to put down on that paper such description (Casanova 3/9/10 EBT at pp. 88-89). Indeed, plaintiff testified that he "had to go back to work because I was afraid I was going to lose my job" (Id. at p. 88). Concerning the other report, "Employer's Report of Work- Related Injury/Illness" (Kowalski Affirm., Ex. E), plaintiff testified that he did not recognize it (Casanova 3/9/10 EBT at p. 90). Indeed, a careful review of that document demonstrates that plaintiff did not prepare that document.

Defendants next argue that all claims against Rockrose Development Corp. should be dismissed because Rockrose GC MWB LLC was the general contractor for Midtown, and Rockrose GC MWB has no connection with ...

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