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Gigantino v. Turner Construction Co.

United States District Court, E.D. New York

August 16, 2017

JOSEPH GIGANTINO, Plaintiff,
v.
TURNER CONSTRUCTION COMPANY; and DELTA AIRLINES, INC., Defendants.

          MEMORANDUM AND ORDER

          ROSLYNN R. MAUSKOPF, United States District Judge.

         On June 9, 2014, plaintiff Joseph Gigantino commenced this action against defendants Turner Construction Company ("Turner") and Delta Airlines, Inc. ("Delta"), alleging violations of New York Labor Law §§ 240(1), 240(6), and 200. (Compl. (Doc. No. 1).) Turner and Delta moved for summary judgement, (Mot. Summ. J. (Doc. No. 39)), and Gigantino opposed the motion and cross-moved for partial summary judgment. (Opp'n to Mot. for Summ. J. (Doc. No. 48).) The Court denied the parties' cross-motions for summary judgment. (Mem. and Order (Doc. No. 55).) Turner and Delta now move for reconsideration of the Court's denial of summary judgment.[1] (Mot. Recon. (Doc. No 56).) For the reasons stated herein, defendants' motion for reconsideration is denied.

         STANDARD OF REVIEW

         Reconsideration is "an extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources." Bui to v. Collecto Inc., 845 F.Supp.2d 491, 494 (E.D.N.Y. 2012) (quoting Trans-Pro Logistic Inc. v. Coby Electronics Corp., No. 05-CV-1759 (CLP), 2010 WL 4065603, at*] (E.D.N.Y. Oct. 15, 2010) (internal quotation marks and citation omitted)). Under Federal Rule of Civil Procedure 59(e) and Local Rule 6.3, "[a] motion for reconsideration should be granted only where the moving party demonstrates that the Court has overlooked factual matters or controlling precedent that were presented to it on the underlying motion and that would have changed its decision." In re N.Y. Cmty. Bancorp, Inc., Sees. Litig., 244 F.R.D. 156, 159 (E.D.N.Y. 2007); see also Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). "The major grounds justifying reconsideration are an intervening change in controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Webb v. City of New York, No. 08-CV-5145 (CBA), 2011 WL 5825690, at *1 (E.D.N.Y. Nov. 17, 2011) (internal quotation marks and citation omitted). It "may not. . . be used as a vehicle for relitigating issues already decided by the Court, " id, at * 1 (internal quotation marks and citation omitted), and "[a] moving party may not merely reiterate or repackage an argument previously rejected by the court, " In re N.Y.Cmty. Bancorp, 244 F.R.D. at 160. In other words, a motion for reconsideration "is not an opportunity for a second bite at the apple." Id. (internal citation and quotation marks omitted).

         DISCUSSION

         In support of their motion for reconsideration, Turner and Delta argue that the Court made three errors in denying their motion for summary judgment. (See generally Mot. Recon.) However, Turner and Delta fail to point to any overlooked controlling law or facts. As such, defendants' arguments amount to nothing more than an attempted "second bite at the apple." In re N.Y.Cmty. Bancorp, 244 F.R.D. at 160. Accordingly, the motion for reconsideration is denied.

         I. Adequate Safety Device under § 240(1)

         Labor Law § 240(1) imposes non-delegable, strict liability upon commercial property owners and general contractors to provide safety devices to protect workers from elevation-related risks. Godoy v. Neighborhood P"ship Housing Dev. Fund Co., Inc., 104 A.D.3d 646 (N.Y.App.Div. 2013). Specifically:

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 be so constructed, placed and operated as to give proper protection to a person so employed.

N.Y. Lab. Law § 240 (McKinney). "[Liability under § 240(1) is 'absolute' insofar as a plaintiff who demonstrates that a violation of the statute was the proximate cause of his injury, cannot have his recovery reduced by a claim that the plaintiff was also partially responsible for the injury." Wojcik v. 42ndSt. Dev. Project, 386 F.Supp.2d 442, 450 n.8 (S.D.N.Y. 2005) However, an injured worker must show, at a minimum, that a relevant safety device was absent or defective and that such absence or defect was a proximate cause of a gravity-related injury. See Nardncci v. Manhasset Bay Assocs., 96 N.Y.2d 259, 267-68 (N.Y. 2001).

         In their motion for reconsideration, Turner and Delta argue that the bench from which Gigantino fell provided him with proper protection, and that Gigantino's actions were the sole cause of his injury. (Mot. Recon. at 10.)[2] In support of this argument, Turner and Delta point to the testimony of expert witness John Tomich asserting that the bench was an adequate safety device, and that "recreations" of the accident "proved Gigantino was afforded proper protection." (Id. at 10-11.) However, Turner and Delta made these exact arguments in their initial motion for summary judgment. (See Mem. and Order at 6-7.) The Court found that material disputes of fact remain as to whether the bench provided adequate protections under § 240(1), and whether Gigantino lost his balance when straining to reach the wall or if he simply "walked off the bench. (Id. at 7.) Turner and Delta point to no overlooked facts or controlling case law. Rather, they "merely reiterate or repackage an argument previously rejected by the court." In re N.Y. Cinty. Bancorp, 244 F.R.D. at 160. Accordingly, defendants' motion is denied with respect to § 240(1).

         II. Industrial Code Violations under § 241(6)

         Labor Law §241(6) states,

All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners ...

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