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Albericci v. Port Authority of New York and New Jersey

Supreme Court, Bronx County

March 16, 2017

Antonio Albericci, Plaintiff(s),
Port Authority of New York and New Jersey, 1 WORLD TRADE CENTER, LLC, AND TISHMAN CONSTRUCTION CORPORATION, Defendant(s).

          Plaintiff's Counsel: Sacks & Sacks

          Defendants' Counsel:Conway, Farrell, Curtin & Associates

          Ben R. Barbato, J.

         In this action for personal injuries arising from, inter alia, violations of Labor Law §200, § 240(1), and § 241(6), plaintiff moves seeking an order granting him partial summary judgment with respect to liability on his claims premised on Labor Law § 240(1) § 241(6). Plaintiff claims that insofar as he slipped and fell through an opening when its cover failed. Plaintiff's allege that the foregoing accident constitutes a violation of 12 NYCRR 23.1(b)(i) and, therefore, a violation of Labor Law § 241(6). Defendants oppose plaintiff's motion asserting that insofar as plaintiff was provided with a lanyard, was required to and failed to use it, plaintiff's conduct was the sole proximate cause of his fall. Based on the foregoing, defendants' cross-move seeking an order granting them summary judgment and dismissal of plaintiff's claims pursuant to Labor Law § 240(1) and § 241(6). Defendants also seek summary judgment dismissal of plaintiff's claim premised on common law negligence and Labor Law § 200 asserting that plaintiff's accident arose from the means employed by plaintiff's employer, over whom defendants exercised neither supervision nor control. Plaintiff opposes defendants' cross-motion only to the extent summary judgment is sought on his claims pursuant to Labor Law § 240(1) and 241(6). Saliently, plaintiff contends that his failure to use his lanyard was not the sole proximate cause of his accident and that since it is undisputed that the cover over the opening through which he fell failed, summary judgement in his favor is, therefore, warranted.

         For the reasons that follow hereinafter plaintiff's motion is granted, in part and defendants' cross-motion is denied.

         The instant action is for alleged personal injuries arising from, inter alia, alleged violations of the Labor Law. A review of plaintiff's complaint establishes, in relevant part, the following: On June 26, 2013, while working within premises located 1 World Trade Center, New York, NY, plaintiff sustained injury. Specifically, plaintiff, an employee of DCM Erectors (DCM), fell through an opening which was improperly covered. It is alleged that defendant PORT AUTHORITY OF NEW YORK AND NEW JERSEY (PANYNJ) owned the premises, defendant 1 WORLD TRADE CENTER, LLC (1 WTC) leased the premises, that defendant TISHMAN CONSTRUCTION CORP. (Tishman) was retained by PANYNJ and 1 WTC to perform work at the premises, and that defendants retained DCM to perform work. It is further alleged that defendants were negligent in failing to keep the premises reasonably safe and that they violated Labor Law § 200, § 240(1), and § 241(6); said negligence causing plaintiff's accident and the injuries resulting therefrom.

         Standard of Review

         The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v Prospect Hospital, 68 N.Y.2d 320, 324 [1986]; Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). Thus, a defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof (Mondello v DiStefano, 16 A.D.3d 637, 638 [2d Dept 2005]; Peskin v New York City Transit Authority, 304 A.D.2d 634, 634 [2d Dept 2003]). There is no requirement that the proof be submitted by affidavit, but rather that all evidence proffered be in admissible form (Muniz v Bacchus, 282 A.D.2d 387, 388 [1st Dept 2001], revd on other grounds Ortiz v City of New York, 67 A.D.3d 21, 25 [1st Dept 2009]). Notably, the court can consider otherwise inadmissible evidence, when the opponent fails to object to its admissibility and instead relies on the same (Niagara Frontier Tr. Metro Sys. v County of Erie, 212 A.D.2d 1027, 1028 [4th Dept 1995]).

         Once movant meets his initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman at 562). It is worth noting, however, that while the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. As noted by the Court of Appeals, [t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing summary judgment' in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must 'show facts sufficient to require a trial of any issue of fact.' Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case (Friends of Animals v Associated Fur Manufacturers, Inc., 46 N.Y.2d 1065, 1067-1068 [1979] [internal citations omitted]). Accordingly, generally, if the opponent of a motion for summary judgment seeks to have the court consider inadmissible evidence, he must proffer an excuse for failing to submit evidence in inadmissible form (Johnson v Phillips, 261 A.D.2d 269, 270 [1st Dept 1999]).

         Moreover, when deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v Talman (278 A.D.2d 811, 811 [4th Dept 2000]), [s]upreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial (see also Yaziciyan v Blancato, 267 A.D.2d 152, 152 [1st Dept 1999]; Perez v Bronx Park Associates, 285 A.D.2d 402, 404 [1st Dept 2001]). Accordingly, the Court's function when determining a motion for summary judgment is issue finding not issue determination (Sillman v Twentieth Century Fox Film Corp., 3 N.Y.2d 395, 404 [1957]). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact (Rotuba Extruders v Ceppos, 46 N.Y.2d 223, 231 [1978]). When the existence of an issue of fact is even debatable, summary judgment should be denied (Stone v Goodson, 8 N.Y.2d 8, 12 [1960]).

         Plaintiff's Motion

         Labor Law § 240(1)

         Plaintiff's motion seeking summary judgment on the issue of defendants' liability on his claim pursuant to Labor Law § 240(1) is granted. On this record, which demonstrates that the plywood cover over the opening through which plaintiff fell failed, plaintiff establishes a violation of Labor Law § 240(1) and, thus, entitlement summary judgment.

         Labor Law §240(1) requires that

[a]ll contractors and owners and their agents who contract for but do not direct or control the work, in 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), applies where the work being performed subjects those involved to risks related to elevation differentials (Gordon v Eastern Ry. Supply, 82 N.Y.2d 555, 561 [1993]; Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 514 [1991]). Specifically, the hazards contemplated by the statute "are those related to the effects of gravity where protective devices are called for... because of a difference between the elevation level of the required work and a lower level" (Gordon at 561 [internal quotation marks omitted]). Since Labor Law § 240(1) is intended to prevent accidents where ladders, scaffolds, or other safety devices provided to a worker prove inadequate so as to prevent an injury related to the forces of gravity (id.), it applies equally to injuries caused by falling objects and falling workers (Narducci v Manhasset Bay Assoc., 96 N.Y.2d 259, 267-268 [2001]).

         For purposes of liability, a violation of the statute which proximately causes an employee to sustain injury gives rise to absolute liability (Blake v Neighborhood Hous. Servs. of NY City, 1 N.Y.3d 280, 287 [2003]; Gordon at 559). Notably, under Labor Law § 240(1), a complete failure to provide the safety devices promulgated by the statute constitutes a violation thereof, and is, in and of itself, conclusive proof of proximate causation (Zimmer v Chemmung County Performing Arts, Inc., 65 N.Y.2d 513, 519 [1985]). Hence, if the evidence demonstrates that the defendants failed to provide any safety devices at all, the statute has been violated as a matter of law (id.). By contrast, when a defendant does provide safety equipment and an accident nevertheless occurs, the adequacy, functionality, and placement of said device must be assessed in order to determine whether there has been a violation of the Labor Law (Narducci at 267 ["liability is contingent upon the existence of a hazard contemplated in section 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein."]). When a defendant provides some, but not all the safety devices required by the statute, Labor Law § 240(1) is nonetheless violated if a defendant fails to provide plaintiff with the safety devices intended to protect the plaintiff from each and every height related risk associated with the particular work being performed (Felker v Corning Incorporated, 90 N.Y.2d 219, 224 [1997] (Court held that plaintiff was exposed to two different elevation related risks, the first for which defendant provided an adequate safety device; the second, for which defendant did not. Defendant, thus violated Labor Law § 240(1).]; Barnaby v A & C Properties, 188 A.D.2d 958, 959-960 [3d Dept 1992 ["Although plaintiff was provided with a safety device intended to protect him from the risk inherent in having to work at a height of up to 8 1/2 feet above the floor level, he was provided with no device to protect him from the risk inherent in working in a window opening some 15 to 20 feet above the ground. Because no device was provided to protect plaintiff from this elevation-related risk, the order granting plaintiff's motion for summary judgment on the liability issue should be affirmed."). Thus, the relevant inquiry is whether given the particular risk involved a safety device intended to protect against each and every risk was provided (Felker at 224; Barnaby at 959-960).

         To be sure, in Barnaby, plaintiff was tasked with framing windows inside a building (id. at 959). At the time of the accident, the work was being performed indoors and plaintiff was provided with a ladder to access the windows which extended some ten feet above the floor (id.). As plaintiff worked atop the ladder, he stumbled and fell through the window and to the ground outside the building, some 15-20 feet below (id.) In granting plaintiff partial summary judgment on the issue of liability, the court found that while defendant satisfied the statute in providing a ladder to plaintiff for the work on the windows inside the building, by failing ...

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