Vdokakes v John Sam LLC

1

2021 NY Slip Op 33844(U)

Vincent Vdokakes Plaintiff, v. John Sam LLC, Yakky Enterprises, Inc., MZ Builders LLC, Michael Harris, and Pilku Construction Services Inc., Defendants.

Index No. 517307/2017, NYSCEF Doc. No. 131, Motion Sequence #7

Supreme Court, Kings County

May 6, 2021

Unpublished Opinion

DECISION AND ORDER

CARL J. LANDICINO, 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 96-109

Opposing Affidavits (Affirmations) 114-125

Reply Affidavits (Affirmations) 126

Upon the foregoing papers defendants John Sam LLC (John Sam) Yakky Enterprises, Inc.,(Yakky) and MZ Builders (MZ) (collectively defendants) move (motion sequence #7), for an order pursuant to CPLR § 3212, granting summary judgment dismissing plaintiff, Vincent Vdokakes,' Labor Law §§ 240 (1), 241 (6), 200 and common law negligence causes of action.

Background and Procedural History

Yakky is the owner of property located at 246 Johnson Avenue, in Brooklyn (the "Property" or the "Site"). John Sam leased the Property from Yakky. John Sam entered into a construction agreement related to the Property which involved the demolition of existing structures and the construction of a new 30 unit residential apartment building. "A Real Advantage" was a subcontractor hired to install a new sidewalk and repair the roadway around the Property. Plaintiff was employed by A Real Advantage as a foreman.

On the morning of March 20, 2017, plaintiff and his co-workers reported to the A Real Advantage yard and received instruction from a supervisor named Larry. He directed them to go to the Property and remove a wooden construction barrier fence and the six to eight foot high steel posts that had secured the wood fence in the ground, in order to prepare for the sidewalk concrete installation. The record reveals that plaintiff and his co-workers brought jack hammers, pry bars, sledgehammers, picks and a Bobcat (compact sized construction vehicle) to the site. This was plaintiff s first day on the Site. When he arrived at the Site plaintiff spoke with a man he purportedly believed to be working for the owner. The man instructed plaintiff to have the workers begin working on the Johnson Avenue side and wind around to the other side of the building. He also instructed where the posts were to be placed after being removed, and that he wanted the Site cleaned up, informing plaintiff where the debris should be placed. Plaintiff supervised his coworkers as they removed all of the wood panels. They were unable to manually remove the metal posts from the dirt as these were embedded in the ground.

As plaintiff was speaking with the owner's representative one of the workers from A Real Advantage, Milton, drove the Bobcat into a post in an attempt to remove it. Plaintiff testified that he was standing approximately 30 feet away from where the post was located. As Milton struck the post with the Bobcat, the post cracked at the base and fell striking plaintiffs forehead under his hard hat, and his right hand. Plaintiff further testified that he had not instructed Milton to drive into the post with the Bobcat and that this was the first post that Milton had attempted to remove. Plaintiff sustained various injuries.

Plaintiff commenced this action by filing of a summons and complaint on or about September 7, 2017. Defendants John Sam and MZ filed an answer on December 6, 2017. Plaintiff filed a supplemental summons and amended complaint on or about September 25, 2018. John Sam and MZ filed an answer to the supplemental summons and amended complaint on December 13, 2018. Yakky served an answer to the supplemental summons and amended complaint on or about April 4, 2019. The action against defendant Pilku Construction Services, Inc,, has been discontinued without prejudice and defendant Michael Harris is apparently in default. Plaintiff served several Bills of Particulars and depositions and a medical examination has been conducted. Plaintiff filed his note of issue on May 12, 2020, and the instant motion was timely filed on or about June 18, 2020.

Discussion

Defendants move for summary judgment dismissing plaintiffs complaint in its entirety. Specifically they argue that plaintiffs Labor Law § 240 (1) claim should be dismissed as this matter does not involve an elevation related risk; that he fails to allege a specific, applicable Industrial Code provision to support his Labor Law§ 241 (6) cause of action; and that his common law negligence and Labor Law § 200 causes of action must be dismissed as the incident did not involve a defective condition and none of the defendants controlled the means and methods of plaintiffs work. The court addresses each in turn.

Labor Law § 240 (1) Claim

Defendants argue that plaintiffs Labor Law § 240 (1) claim should be dismissed as plaintiff, who was standing at ground level was directing his co-workers in the removal of a metal post that was also located at ground level, at the time of the accident. Thus, they maintain that there was no elevation related risk because the post was not in the process of being hoisted or secured and both plaintiff and the post were at ground level and approximately the same height. Moreover defendants contend that it would be illogical to require a protective device to prevent the post from falling, where as here, the post was in the process of demolition and its fall from its position was the goal of the work being performed. Finally, defendants maintain that plaintiffs own actions, as the foreman directing the removal of the posts, was the sole proximate cause of the accident.

In opposition, plaintiff argues that defendants have failed to establish entitlement to summary judgment dismissing his Labor Law § 240 (1) claim. The Plaintiff maintains that he was injured due to the force of gravity acting on the metal post as it fell because no safety devices were utilized to prevent it from striking him. As such, he contends that a material question of fact exists regarding whether an applicable safety device should have been provided, and whether the failure to provide such safety device was a substantial factor in causing his injury. Plaintiff maintains that the moving defendants fail to address the force of gravity on the post.

In support of his opposition, plaintiff submits an affidavit frm Andrew Yarmus, a professional engineer, licensed by the State of New York. Mr. Yarmus affirms that he reviewed the Verified Bill of Particulars, the Summons and Verified Complaint; as well as the depositions of all parties. He opines that the selected method of removing the fence posts was unsafe and ill advised as the fence post was embedded into a concrete footing below grade level and was likely to fracture and cause the detached and unsecured post to strike an individual working at the site. Mr. Yarmus further opines that the accident would have been prevented if the fence post had been adequately secured against breaking off. Mr. Yarmus contends that the workers should have excavated the fence post footing and then removed the fence post from the ground. Moreover, he states that a Bobcat should not have used to strike the fence post.

In reply, defendants argue that plaintiff cannot maintain his Labor Law § 240 (1) cause of action because there was no elevation related risk involved but rather ordinary construction activity occurring at ground level involving an object that was in the process of demolition. They contend that Mr. Yarmus fails to even opine that Labor Law§ 240 (1) was violated, and in fact, his opinion supports their argument that it was the action of plaintiff and his coworkers in utilizing a Bobcat, rather than the other tools they brought to the site, that was the sole proximate cause of the accident.

Labor Law § 240 (1), states, in relevant part, that:

All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, 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 ...

The purpose of Labor Law § 240 (1) is to protect workers "from the pronounced risks arising from construction work site elevation differentials" (Runner v New York Stock Exch., Inc., 13 N.Y.3d 599, 603 [2009]; see also Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 514 [1991]; Ross v Curtis-Palmer Hydro-Elec Co., 81 N.Y.2d 494, 501 [1993]). Consequently, Labor Law § 240 (1) applies to accidents and injuries that directly flow from the application of the force of gravity to an object or to the injured worker performing a protected task (see Gasques v State of New York, 15 N.Y.3d 869 [2010]; Vislocky v City of New York, 62 A.D.3d 785, 786 [2d Dept 2009], lv dismissed 13 N.Y.3d 857 [2009]). Accordingly, "[t]he purpose of the statute is to protect against 'such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured'" (Ross v DD 11th Ave., LLC, 109 A.D.3d 604, 604-605 [2d Dept 2013], quoting Ross, 81 N.Y.2d at 501). "In determining whether the plaintiff is entitled to the extraordinary protection of that strict liability statute, 'the single decisive question is whether [the] plaintiffs injuries were the direct consequence of a failure to provide adequate protection against a...