United States District Court, E.D. New York
MEMORANDUM AND ORDER
ROSLYNN R. MAUSKOPF, United States District Judge.
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. (Mot. Recon. (Doc. No 56).) For the
reasons stated herein, defendants' motion for
reconsideration is denied.
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).
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.
Adequate Safety Device under § 240(1)
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
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).
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.) 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).
Industrial Code Violations under § 241(6)
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 ...