Ramnarine v. Staten Island Supreme Court

2024 NY Slip Op 50231(U)

Mahabir Ramnarine and THERESA RAMNARINE, Plaintiff(s), v. Staten Island Supreme Court, CRIMINAL COURT OF THE CITY OF NEW YORK COUNTY OF RICHMOND, STATEN ISLAND COURTHOUSE, CITY OF NEW YORK, DEPARTMENT OF CITYWIDE ADMINITRATIVE SERVICES OF THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF DESIGN AND CONSTRUCTION, JACOBS PROJECT MANAGEMENT CO., ABBCD, LLC and DBBCD, LLC., Defendants.

JACOBS PROJECT MANAGEMENT CO., Third-Party Plaintiff, v. ATLAS ROLL-OFF CORPORATION, Third-Party Defendant.

ATLAS ROLL-OFF CORPORATION, Second Third Party Plaintiff, v. BETONS FABRIQUE DU LAC, INC. Second Third-Party Defendant.

Index No. 101455/14

Supreme Court, Richmond County

March 5, 2024

Unpublished Opinion

Orlando Marrazzo, J.

Hon Orlando Marrazzo, J.S.C.

The Court marked the following e-filed documents associated with motion sequence 0013. 0014 and 0015 fully submitted on November 22, 2023

E-Filed Document #:

Plaintiff's Notice of Motion for Summary Judgment dated September 5 2023; Affirmation In Support dated September 5, 2023 Statement of Material Facts dated September 5, 2023 and annexed Exhibits 206-209 Defendants CONY, DCAS; NYC DEPARTMENT OF DESIGN & CONSTRUCTION Notice of Cross Motion dated November 10, 2023, for Summary Judgment Affirmation In Support of Cross Motion and In Opposition to Plaintiff's Motion dated November 10, 2023, Statement of Material Facts dated November 10, 2023, Memorandum of Law dated November 10, 2023 and annexed Exhibits 212-224

Defendant and Third-Party Plaintiff JACOBS PROJECT MANAGEMENT CO. Notice of Cross-Motion for Summary Judgment dated November 15, 2023, Affirmation in Support of Cross-Motion and in Opposition to Plaintiff's Motion dated November 15, 2023.and annexed Exhibits 235-241

Second Third-Party Defendant BETONS FABRIQUE DU LAC INC. Affirmation in Opposition to Plaintiff's Motion for Summary Judgment dated November 27, 2023, Response to Statement of Material Facts dated November 17, 2023 242-243

Plaintiff's Affirmation in Opposition to Defendants' Cross- Motions and Reply dated November 20, 2023 245-248

Defendant CONY, DCAS; NYC DEPARTMENT OF DESIGN & CONSTRUCTION Affirmation in Reply dated November 21, 2023 249

Upon the forgoing papers, Plaintiff's motion (No.0013) for summary judgment on the sole issue of liability pursuant to Labor Law 240(1) is granted; defendants, CITY OF NEW YORK (hereinafter referred to as CONY), DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES OF THE CITY OF NEW YORK and the CITY OF NEW YORK DEPARTMENT OF DESIGN AND CONSTRUCTION cross-motion (No.0014) for summary judgment dismissing plaintiffs' claims pursuant to Labor Law sections 240, 241(6) 200 and common law negligence as well as summary judgment dismissing the crossclaims for common law indemnification and contribution asserted by co-defendant JACOBS PROJECT MANAGEMENT CO is denied and co-defendant, JACOBS PROJECT MANAGEMENT CO cross-motion (No. 0015) seeking summary judgment dismissing plaintiff's Amended Verified Complaint pursuant to Labor Law 240, 241(6) 200 and common law negligence and any all cross-claims against said co-defendant is denied.

This action arises as a result of a construction accident that occurred on September 3, 2013 during the construction of the Staten Island Courthouse wherein plaintiff MAHABIR RAMNARINE, an employee of Third-Party Defendant and Second Third Party Plaintiff Atlas Roll-Off Corporation, was alleged to be injured when a concrete slab being lifted fell onto plaintiff's left foot. Plaintiff claims violations of the Labor Law sections 240(1) as well 241(6) 200 and common law negligence.

The procedural history of the instant action has been thoroughly outlined by counsels and for judicial economy, this Court need not repeat same.

PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

It is well settled law that the proponent of a summary judgment bears the burden of proof by submitting evidence in admissible form to establish entitlement to judgment as a matter of law. (CPLR 3212[b]; Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986]; Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]; Viviane Etienne Med. Care, P.C. v. Country-Wide Ins. Co., 25 N.Y.3d 507 [2015]). Once a prima-facie showing is made, the burden of proof shifts to the party opposing the motion to demonstrate the existence of genuine triable issues of fact through admissible evidence. (See Alvarez, Zuckerman, supra.). Should a plaintiff fail to meet its burden of proof, the motion must be denied, regardless of the sufficiency of opposing papers. (Winegrad v. New York Univ. Med., 64 N.Y.2d 851 [1985]).

It is also well established that Labor Law 240(1) imposes a nondelegable duty upon all contractors and owners and their agents to provide safety devices necessary to protect a worker from risks inherent in elevated work sites, "regardless of whether they supervise or control the work. (Ochoa v. JEM Estate Co., LLC., __ A.D.3d __, 2024 NY App. Div. LEXIS 181). The statute is one of absolute liability upon owners, contractors and its agents who fail to provide or provide inadequate safety devices. To be successful on a motion for summary judgment pursuant to Labor Law 240(1), a plaintiff must establish that the statute was violated, and such violation was a proximate cause of plaintiff's accident. (Estrella v. ZRHLE Holdings LLC., 218 A.D.3d 640 [2nd Dept., 2023]). While such statute is commonly referred to as the "Scaffold Law, it is also applicable to failing objects. (Simmons v. City of New York, 165 A.D.3d 725 [2D Dept., 2018]; Narducci v. Manhassett Bay Assoc., 96 N.Y.2d 259 [2001]). Where it is claimed that a falling object caused the injury/ injuries, the plaintiff must establish that object fell due to the absence or inadequate safety device(s) as listed in the statute. (Fabrizi v. 1095 Ave. of the Ams., L.L.C., 22 N.Y.3d 658 [2014]). It is "designed to prevent those types of accident in which the scaffold, hoist, stay, ladders and other protective devices prove inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person". (Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494 [1993]; Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599 [2009]). Further, a differential in elevation will not be considered "de minimus, particularly given the weight of the object and the amount of force it [is] capable of generating, even over a relatively short descent." (Runner, supra.). While contributory and comparative negligence are not defenses under Labor Law 240(1), where plaintiff's action is proven to be the sole proximate cause of the accident and resultant injury, no recovery can be afforded to plaintiff pursuant to Labor Law 240(1). (Bascombe v. West 44th St. Hotel, LLC., 124 A.D.3d 812 [2d Dept., 2015]; Roblero v. Bais Ruchel High Sch., Inc. 175 A.D.3d 1446 [2d Dept., 2019]; Ochoa, supra.; Ross, supra.), Counsel for plaintiff contends that that plaintiff was a covered worker pursuant to Labor Law 240(1) employed by Third-Party Defendant and Second Third Party Plaintiff Atlas Roll-Off Corporation, (hereinafter referred to as ATLAS) during the construction of the Staten Island Courthouse Project. Plaintiff alleges that on September 3, 2013 while so employed, plaintiff was stuck by a failing object while being lifted as a result of the failure by the owner, general contractor and/or its agents to provide proper protection equipment as listed in the statute and that the violation of this statute was a proximate cause of his accident and resultant injuries. Counsel further contends that the defendant THE CITY OF NEW YORK (hereinafter referred to as CONY owned the property where plaintiff's accident occurred and that co-defendant JACOBS PROJECT MANAGEMENT CO. (hereafter referred to as JACOBS), although named the "construction manager" was a "de facto general contractor" and statutory agent of the owner and as such both defendant CONY and JACOBS are strictly liable pursuant to Labor Law 240(1).

In support of its motion for summary judgement, plaintiff submits the following: deposition transcripts of plaintiff; plaintiff's co-worker Puran Ramkissoon; plaintiff's employer, Thomas Poliselli; defendants JACOBS employee William Gove; Second Third Party defendant BETONS employees Sylvain LaPointe and Mario Minier; a copy of a two (2) contracts between non-party defendant the Dormitory Authority of the State of New York (hereinafter referred to as DASNY) and defendant JACOBS and a copy of defendant CONY response to plaintiff's Notice to Admit.

A review of plaintiff's deposition reveals that on September 3, 2013 he was employed by Third Party defendant/Second Third Party plaintiff ATLAS and was asked by his foreman co-worker Puran Ramkissoon, to assist in transporting pre cast concrete slabs which were to be installed to the exterior staircase being constructed for the Courthouse. Pursuant to his testimony the slab weighed approximately 1,200 pounds was approximately 3-4 feet, 12-14 inches thick with one end shorter than the other, not a square; at the time he was 5'6 inches and weighed approximately 145-150 pounds. He further testified that the precast concrete slab had pre-cut holes on four corners which did not go completely through the slab. To secure this slab for lifting he used a threaded bolt/rod approximately 15 to 18 inches long and screwed one side into the precut hole while another co-worker threaded and screwed the bolt/rod into the opposite side of the pre-cut hole in the concrete slab. He took the nylon strap attached to the bucket of the machine being used to lift the concrete slab and looped it around the bolt/stud and placed the screw into the bolt/rod. ^[1] Upon completing this task, his co-worker who was operating the...