Vega v. Renaissance 632 Broadway, LLC

2011 NY Slip Op 33270

JULIO RICARDO VEGA VEGA, Plaintiff, v. RENAISSANCE 632 BROADWAY, LLC., Defendant.

RENAISSANCE 632 BROADWAY, LLC., Plaintiff, v. SHAIRA CONSTRUCTION CORP., Defendant.

Index No.: 15500/09

Cal. No.: 38

Cal. No.: 39

Seq. No.: 3

Seq. No.: 4

Third-Party Index No.: 350018/10

NEW YORK SUPREME COURT - QUEENS COUNTY IAS PART 11

Motion Date: June 22, 2011

Dated: July 25, 2011

SHORT FORM ORDER

Present: HONORABLE SIDNEY F. STRAUSS

Justice

The following papers numbered 1 to 15 read on the plaintiff Julio Ricardo Vega Vega ("Vega")'s motion for summary judgment pursuant to Labor Law §§ 240 and 241 and defendant Renaissance 632 Broadway, LLC., ("Renaissance")'s motion for summary judgment as against third-party defendant Shaira Construction Corp., ("Shaira") granting contractual and common law indemnity and as against the plaintiff, an order dismissing plaintiff's negligence claims and claims under Labor Law §§ 200 and 241(6).

+-----------------------------------------------------------+
¦                                                  ¦PAPERS  ¦
¦                                                  ¦        ¦
¦                                                  ¦NUMBERED¦
+--------------------------------------------------+--------¦
¦Notice of Motion - Affidavits - Exhibits          ¦1 - 4   ¦
+--------------------------------------------------+--------¦
¦Opposition Affirmation (Defendant - Renaissance   ¦        ¦
+--------------------------------------------------+--------¦
¦- Exhibits                                        ¦        ¦
+--------------------------------------------------¦5 - 6   ¦
¦Memorandum of Law in Partial Opposition           ¦        ¦
+--------------------------------------------------+--------¦
¦to Plaintiff's Motion for Partial Summary Judgment¦        ¦
+--------------------------------------------------+--------¦
¦(Defendant - Renaissance)                         ¦7       ¦
+--------------------------------------------------+--------¦
¦Reply Affirmation (Plaintiff)                     ¦8       ¦
+--------------------------------------------------+--------¦
¦Notice of Cross-Motion - Affidavits - Exhibits    ¦9 - 12  ¦
+-----------------------------------------------------------+

+--------------------------------------------------+
¦Memorandum of Law in Support of                ¦  ¦
¦                                               ¦  ¦
¦Defendant Renaissance Cross-Motion for         ¦  ¦
+-----------------------------------------------+--¦
¦Summary Judgment                               ¦  ¦
+-----------------------------------------------¦  ¦
¦Third-Party Defendant Shaira                   ¦10¦
¦                                               ¦  ¦
¦Affirmation in Partial Support of Defendant    ¦  ¦
+-----------------------------------------------+--¦
¦Renaissance's Cross-Motion                     ¦11¦
+-----------------------------------------------+--¦
¦Third-Party Defendant Shaira Construction      ¦  ¦
¦                                               ¦  ¦
¦Corp.'s Opposition Affirmation to Plaintiff's  ¦  ¦
+-----------------------------------------------+--¦
¦Motion for Summary Judgment                    ¦12¦
+-----------------------------------------------+--¦
¦Plaintiff's Opposition Affirmation to Defendant¦  ¦
¦                                               ¦13¦
¦Renaissance's Cross-Motion                     ¦  ¦
+-----------------------------------------------+--¦
¦Reply Affirmation of Plaintiff to Third-Party  ¦  ¦
+-----------------------------------------------+--¦
¦Defendant Shaira's Opposition Affirmation      ¦14¦
+-----------------------------------------------+--¦
¦Defendant Renaissance's Reply Affirmation      ¦15¦
+--------------------------------------------------+

Upon the foregoing papers it is ordered that the motion and cross-motion are determined as follows:

It is undisputed that the plaintiff Vega was employed by third-party defendant Shaira, as a laborer working on the ground floor and basement levels of a building owned by defendant Renaissance. Furthermore, Vega's duties and responsibilities consisted of helping two other workers by cleaning the work area and removing fallen pipe from the basement. The plaintiff had been in the employ of Shaira, without any negative employment history, for approximately one year, and had been assigned to this particular work-site for approximately four days. On the date of the accident, while cutting overhead pipe for purposes of demolition, plaintiff was struck by a piece of pipe that had swung free, causing plaintiff to fall from the ladder he was using.

The plaintiff acknowledges in his moving papers that third-party defendant Shaira's testimony, through Balwinder Singh, completely contradicts the testimony of the plaintiff. The conflicting deposition testimony as to whether or not the plaintiff was working pursuant to the direction and supervision of his employer as opposed to Shaira's testimony, that the plaintiff undertook the task of climbing the ladder and cutting the pipe without authority and/or direction from his employer, fails to establish a prima facie case for judgment as a matter of law. The evidence raises triable issues of fact as to whether the plaintiff was the sole proximate cause of the accident. (See Franzese v. Consolidated Dairies, Inc., 83 A.D.3d 775 [2d Dept. 2011]; Kolivas v. Kirchoff, 14 A.D.3d 493 [2d Dept. 2005].)

Summary judgment is a drastic remedy that "should only be employed when there is no doubt as to the absence of triable issues" (See Andre v Pomeroy, 35 NY2d 361, 364 [1974].) The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist. (See Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280 [2003]; Weininger v. Hagedorn & Co., 91 N.Y.2d 958, 960 [1998], see also, Pollack v. Margolin, 84 A.D.3d 1341 [2d Dept. 2011]; Franzese v Consolidated Dairies, Inc. , supra, citing, Kolivas v Kirchoff, supra; Scott v Long Is. Power Auth., 294 AD2d 348 [2d Dept. 2002].) To prevail on a Labor Law §240(1) cause ofaction, a plaintiff must demonstrate that there was a violation of the statute and that the violation was a proximate cause of the accident. However, where a plaintiff's actions are the sole proximate cause of his injuries, liability under this provision does not attach. Plaintiff's argument that the issue of whether his own misuse of the ladder could at best be considered contributorily negligent, and therefore, cannot stand in the way of a § 240(1) claim is defeated by the basic premise that the contradictory testimony by the parties indicates that the underlying question of fact is whether or not plaintiff should have been performing the task he became injured trying to accomplish, in the first place. (See Robinson v. East Medical Center, LP, 6 N.Y.3d 550 [2006].) The court cannot determine, as a matter of law, whether or not strict liability can be imposed. (see, Blake v Neighborhood Hous. Servs., supra ; Vouzainas v Bonasera, 262 AD2d 553 [2d Dept. 1999].)

Plaintiff's motion for summary judgment pursuant to Labor Law § 240(1) is denied. Defendant Renaissance's cross-motion for summary judgment dismissing plaintiff's cause of action pursuant to Labor Law § 240(1) as against it is also denied accordingly.

The court next turns to the branch of plaintiff's motion for summary judgment pursuant to Labor Law § 241(6). To recover under Labor Law § 241(6), a plaintiff must demonstrate the violation of an Industrial Code provision that is applicable given the circumstances of the accident and set forth specific safety standards. (See Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993].) In the bill of particulars, as well as the supplemental bill of particulars, plaintiff herein alleges violations of 12 NYCRR 23-1.7, 12 NYCRR 23-1.8, 12 NYCRR 23-1.16 12 NYCRR 23-1.21(a)-(f) [particularly (b)(3) and (b)(4)(ii) and (iv)], 12 NYCRR 23-2.1, 12 NYCRR 23-3.2, 12 NYCRR 23-3.3 (a)-(m) [particularly, (b)(3) and (c)], 12 NYCRR 23-5.1, 12 NYCRR 23-5.18, and 12 NYCRR 23-5.3.

The specific safety standards set forth in 12 NYCRR 23-1.7 and 1.8, which relate to protection from general hazards and specific safety standards, respectively, do not apply since the underlying action does not involve work to be performed above plaintiff's head with planking to provide access to the pipes. The court notes that 12 NYCRR 23-1.7 is not applicable to the facts of this case, as that regulation applies to safety devices for hazardous openings, and not to an elevated hazard. (see 12 NYCRR 23-1.7[b][1]; Rau v Bagels N Brunch, Inc., 57 A.D.3d 866[2d Dept. 2008]; Kwang Ho Kim v. D & W Shin Realty Corp., 47 A.D.3d 616 [2d Dept. 2008].) Particularly, plaintiff was required to work in the exposed area, therefore, provisions requiring barricades, fencing and or safety railing and therefore planking, life nets, safety belts, etc. are also not applicable. As to the provision in 12 NYCRR 23-1.7 which requires that owners and contractors maintain working areas free from tripping hazards, also does not apply to the facts of this case. The court finds that, after reviewing all the evidence submitted thus far, it would be highly probable that, due to the ceiling height of the basement from floor to ceiling, the implementation of the overhead protections required by subsection 23-1.7(a) would have made the demolition of the overhead pipes impossible to accomplish (Steinman v. Morton Intern., Inc.,756 F.Supp.2d 314 [2010].

With respect to the remaining sections of 23-1.7 and the entire provision of 23-1.8, plaintiff's claim does not include air contamination, lack of oxygen or exposure tocorrosive/toxic substances, therefore, those provisions which relate to safety and equipment for such issues are also not applicable. Plaintiff's injuries do not involve eyes, or breathing, therefore, the provisions...