Davila v. The City of New York

2022 NY Slip Op 34491(U)

Christopher Davila, Plaintiff, v. The City of New York, New York City Board of Education, New York City Department of Education, New York City School Construction Authority, and E.W. Howell Co., LLC, Defendants,

Index No. 517326/17

Supreme Court, Kings County

November 4, 2022

Unpublished Opinion

At an IAS Term, Part 35 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse at 360 Adams Street, Brooklyn, New York, on the 4^th day of November, 2022.

PRESENT: HON. KAREN B. ROTHENBERG, Justice.

The following e-filed papers read herein: NYSCEF Doc. Nos.:

Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed 72-74, 76, 105-106, 108

Opposing Affidavits (Affirmations) 115

Affidavits/ Affirmations in Reply 119, 121, 122, 123

Upon the foregoing papers, defendants The City of New York (City) New York City Board of Education, New York City Department of Education, New York City School Construction Authority (SCA) and E.W. Howell Co., LLC, (E.W. Howell) move for an order pursuant to CPLR 3212, granting them summary judgment dismissing the complaint (M.S. 4). Plaintiff Christopher Davila cross moves for an order, pursuant to CPLR 3212, granting him partial summary judgment with respect to liability on his Labor Law §§ 240 (1) and 241 (6) causes of action and summary judgment dismissing defendants' first and fifth affirmative defenses premised on assumption of risk and comparative fault (M.S. 5).

Defendants' motion is granted to the extent that plaintiff's causes of action premised on Labor Law §§ 240 (1) and 241 (6) are dismissed and plaintiff's common-law negligence and Labor Law § 200 causes of action are dismissed to the extent that they are premised on a means and methods theory of liability. Defendants' motion is otherwise denied.

Plaintiff's cross motion is granted only to the extent that defendants' first and fifth affirmative defenses are dismissed to the extent that they are premised on assumption of the risk.^[1] Plaintiff's cross motion is otherwise denied.

Background

In this action plaintiff alleges that he was injured on January 24 2017 when a "duct lift" tipped onto him while he and two coworkers were attempting to roll the duct lift down a short plywood ramp that traversed, in essence, a single step located in an interior area of a school (P.S./I.S. 338) that was being constructed in Brooklyn. The parties do not address who owned the project site or the relationship amongst the defendants other than to indicate that the SCA hired E.W. Howell as general contractor for the project and that E.W. Howell, in turn, hired non-party AWL to perform HVAC and duct work for the project. At the time of the accident, plaintiff was employed as an apprentice sheet-metal worker by AWL.

According to plaintiff's testimony at his General Municipal Law § 50-H hearing and his deposition, on the date of the accident plaintiff's supervisors directed him to assist in preparing for the duct/welding work that was to be performed. As part of this preparation, plaintiff assisted his supervisor, Adam, and a co-worker, Jessie, in moving a "duct lift". The duct lift was approximately six to seven feet high, weighed approximately 400 pounds, and had four wheels upon which it could be rolled. Their path required the use of a plywood ramp to move the duct lift down a 10 to 12 inch elevation differential. Plaintiff held onto the left fork of the lift and Jessie did the same on the right side of the lift. Adam held and pushed the handle at the back of the lift. As they started down the ramp in this manner, the ramp shifted towards Jessie, which caused the lift to topple onto plaintiff and cause his injuries. Plaintiff did not fall to the ground and his coworkers were able to push the lift off of plaintiff and push it upright and back onto the higher portion of the floor.^[2] Based on how the accident occurred, plaintiff believed that the ramp was not properly secured.

Discussion

Labor Law§ 240 (1)

Labor Law § 240 (1) imposes absolute liability on owners and contractors or their agents when they fail to protect workers employed on a construction site from injuries proximately caused by risks associated with falling from a height or those associated with falling objects (see Wilinski v 334 E. 92nd Housing Dev. Fund Corp., 18 N.Y.3d 1, 3 [2011]; Narducci v Manhasset Bay Assoc., 96 N.Y.2d 259 267-268 [2001]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500 [1993]). For a defendant to be held liable under Labor Law § 240 (1), a plaintiff's injuries must be "the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Runner v New York Stock Exch., Inc., 13 N.Y.3d 599, 603 [2009]; see Wilinski, 18 N.Y.3d at 10). Where the accident involves a falling object, the "plaintiff must show more than simply that an object fell causing injury to a worker" (Narducci, 96 N.Y.2d at 268; see also Fabrizzi v 1095 Ave. of Ams., L.C.C., 22 N.Y.3d 658, 663 [2014]). Rather, a plaintiff must show that, at the time the object fell, it was "being hoisted or secured" (Narducci, 96 N.Y.2d at 268) or "required securing for the purposes of the undertaking" (Outar v City of New York, 5 N.Y.3d 731, 732 [2005]; see Quattrocchi v F.J. Sciame Constr. Corp., 11 N.Y.3d 757, 758 [2008]) and that the object fell "because of the absence or inadequacy of a safety device of the kind enumerated in the statute" (Narducci, 96 N.Y.2d at 268; see Fabrizzi, 22 N.Y.3d at 663).

Applying this law to the facts here, this court finds that the 10 to 12 inch elevation differential traversed by the ramp is not a physically significant elevation differential for purposes of section 240 (1) (see Eliassian v F.F. Constr., Inc., 190 A.D.3d 947, 949 [2d Dept 2021]; Jackson v Hunter Roberts Constr. Group, LLC, 161 A.D.3d 666, 667 [1st Dept 2018]; Sawcyszyn v New York Univ., 158 A.D.3d 510, 511 [1st Dept 2018]; Torkel v NYU Hosps. Ctr., 63 A.D.3d 587, 590 [1st Dept 2009]; DeMayo v 1000 N. of N.Y. Co., 246 A.D.2d 506, 507 [2d Dept 1998]; see also Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 514-515 [1991]; cf. Kandatyan v 400 Fifth Realty, LLC, 155 A.D.3d 848, 850851 [2d Dept 2017] [plaintiff pushing heavily loaded cart on a four-to-five-foot-high ramp]). Additionally, under the circumstances, the court finds that there is no section 240 (1) safety device which would have been expected or needed based on the apparent stability of the duct lift (see Miles v Buffalo State Alumni Assn., Inc., 121 A.D.3d 1573, 1574 [4th Dept 2014]; Grygo v 1116 Kings Highway Realty, LLC, 96 A.D.3d 1002, 1003 [2d Dept 2012], lv denied 20 N.Y.3d 859 [2012]; cf. Wilinski, 18 N.Y.3d at 10-11). The court notes that the Appellate Division, Second Department, in cases addressing accidents involving heavy objects falling from carts or pallet jacks, has generally granted defendants summary judgment based on findings that the accidents were not gravity related and/or that they did not involve a failure to provide a section 240 (1) device (see Chuqui v Amna, LLC, 203 A.D.3d 1018, 1020-21 [2d Dept 2022]; Simmons v City of New York, 165 A.D.3d 725, 726-727 [2d Dept 2018]; Grygo, 96 A.D.3d at 1003; see also Parrino v Rauert, 208 A.D.3d 672, 673-674 [2d Dept 2022]). In addition, the conclusory assertions of plaintiff's engineer are insufficient to demonstrate the applicability of section 240 (1) (see Nicola v United Veterans Mut. Hous. No. 2, Corp., 178 A.D.3d 937, 940 [2d Dept 2019]). Defendants are thus entitled to summary judgment dismissing the Labor Law § 240 (1) cause of action and plaintiff's cross motion in this respect must be denied.

Labor Law § 241 (6)

Regarding plaintiff's Labor Law § 241 (6) cause of action, under that section, an owner, general contractor or their agent may be held vicariously liable for injuries to a plaintiff where the plaintiff establishes that the accident was proximately caused by a violation of an Industrial Code section stating a specific positive command that is applicable to the facts of the case (Rizzuto v L.A. Wenger Contr. Co., Inc., 91 N.Y.2d 343, 349-350 [1998]; Honeyman v Curiosity Works, Inc., 154 A.D.3d 820, 821 [2d Dept 2017]). Here, plaintiff, in his bill of particulars, alleges, in support of his section 241 (6) cause of action, that defendants violated Industrial Code sections 12 NYCRR 23-1.7 (f) and 231.22. Initially, this court rejects defendants' assertion that plaintiff's failure to specify the Industrial Code sections that were violated in his notice of claim requires dismissal (see Matute v Town of Hempstead, 179 A.D.3d 1047, 148 1049 [2d Dept 2020]; Baker v Town of Niskayuna, 69 A.D.3d 1016, 1017 [3d Dept 2010]; see also Se Dae Yang v New York City Health &Hosps. Corp., 140 A.D.3d 1051, 1052 [2d Dept 2016]). Nevertheless, the court finds that section 23-1.7 (f) and 23-1.22 are inapplicable to the facts herein.

12 NYCRR 23-1.7 (f) states that "[v]ertical passage. Stairways, ramps or runways shall be provided as the means of access to working levels above or below ground except where the nature or the progress of the work prevents their installation in which case ladders or other safe means of access shall be provided." This provision is inapplicable here because the ramp traversing the different levels in the room covering a vertical distance of a foot or less, "did not provide access to an above- or below-ground working area within the meaning of the regulation" (Sawczyszyn, 158 A.D.3d at 511-512 quoting Torkel, 63 A.D.3d at 590; see Johnson v Lend Lease Constr. LMB, Inc., 164 A.D.3d 1222, 1223 [2d Dept 2018]; Francescon v Gucci Am., Inc., 105 A.D.3d 503,...