Violette v. Cricket Valley Energy Ctr.

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2023 NY Slip Op 31156(U)

RICHARD VIOLETTE, Plaintiff, v. CRICKET VALLEY ENERGY CENTER, LLC, BECHTEL INFRASTRUCTURE AND POWER CORPORATION, and BECHTEL CONSTRUCTION COMPANY, Defendants.

Index No. 151503/2021, MOTION SEQ. No. 003

Supreme Court, New York County

April 11, 2023

Unpublished Opinion

PRESENT: HON. JOHN J. KELLEY Justice.

DECISION + ORDER ON MOTION

JOHN J. KELLEY JUDGE.

The following e-filed documents, listed by NYSCEF document number (Motion 003) 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66 68, 69, 70 were read on this motion to/for SUMMARY JUDGMENT.

In this action to recover damages for personal injuries arising from alleged common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6), the defendants Cricket Valley Energy Center (Cricket), Bechtel Infrastructure and Power Corporation, and Bechtel Construction Company (BCC) move pursuant to CPLR 3212 for summary judgment dismissing the complaint insofar as asserted against each of them. The plaintiff opposes the motion. The motion is granted to the extent that the defendants are awarded summary judgment dismissing Labor Law §§ 240(1) and 241(6) causes of action, and the motion is otherwise denied.

On September 26, 2019, the plaintiff was employed by non-party F.P.I. Mechanical Contracting Company (F.P.I.) as a steam fitter in connection with the construction of the Cricket Valley power plant, located at 2241 Route 22, Dover, New York (the premises). Cricket owned the premises, BCC was the construction manager, and F.P.I was a plumbing and steam fitting subcontractor. The plaintiff's duties were to monitor the oil heating lines for leaks and temperature issues. The plaintiff received his daily work assignments from an F.P.I. foreman, named Derrick, and reported to him if he had any questions or issues. The plaintiff attended weekly safety meetings and "toolbox" talks. On the day of the accident, the plaintiff attended a toolbox talk where the general discussion involved advising workers to "be safe out there." Thereafter, the plaintiff proceeded to work on his tasks for the day. The plaintiff was on a platform, approximately 20 feet above the ground, that was equipped with railings that extended horizontally roughly 75 to 100 feet. The plaintiff walked approximately 30 to 40 feet before reaching a job box on his right-hand side, which was 8 feet long, 4 feet wide, and 6 feet tall. On the opposite side of the job box was a permanently installed pipe extending up vertically from the floor, veering left at a level slightly above the platform, and continuing into another room. While walking between the job box and the pipe, the plaintiff caught his left foot on the pipe and fell forward onto the platform, suffering injuries to his right knee.

On February 11, 2021, plaintiff commenced this action by filing a summons and complaint (see CPLR 304[a]). The defendants served and filed their answer on March 11, 2021. On March 19, 2021, the plaintiff served an amended complaint discontinuing all claims against Bechtel Power Corporation and naming Bechtel Infrastructure and Power Corporation as a new defendant. On April 12, 2021, the defendants served an answer to the amended complaint. On April 27, 2021, the plaintiff served his bill of particulars. On December 22, 2021, the plaintiff served a supplemental bill of particulars. On July 29, 2022, the plaintiff filed the note of issue and certificate of compliance. On September 27, 2022, the defendants timely made the instant motion.

In his amended complaint, the plaintiff alleged that the defendants were negligent and violated Labor Law §§ 200, 240(1), and 241(6), as well as the New York State Building Code, inter alia, by failing to provide him with a safe place to work, causing and/or permitting him to trip and fall and be injured while working on the premises, failing properly to control and coordinate equipment and construction activities, failing to perform proper clean-up operations, and failing to provide a safe access way. In his bill of particulars, the plaintiff alleged that the defendants violated Industrial Code (12 NYCRR) § 23-1.7(d) and (e). The plaintiff also alleged that the defendants had both actual and constructive notice of the condition that caused his fall.

In support of their motion, the defendants submitted the pleadings and the deposition transcripts of the plaintiff and Bechtel Infrastructure and Power Corporation's Project Environmental Safety and Health Manager, Michael Corllier. In opposition, the plaintiff did not submit his own exhibits, or his own affidavit, but instead relied on the defendants' submissions.

It is well settled that the movant on a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985] [citations omitted]). The motion must be supported by evidence in admissible form (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980]), as well as the pleadings and other proof such as affidavits, depositions, and written admissions (see CPLR 3212). The facts must be viewed in the light most favorable to the non-moving party (see Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012]). In other words, "[i]n determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility" (Garcia v. J.C. Duggan, Inc., 180 A.D.2d 579, 580 [1st Dept 1992]). Once the movant meets his or her burden, it is incumbent upon the non-moving party to establish the existence of material issues of fact (see Vega v. Restani Constr. Corp., 18 N.Y.3d at 503). A movant's failure to make a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see id.; Medina v. Fischer Mills Condo Assn., 181 A.D.3d 448, 449 [1st Dept 2020]).

"The drastic remedy of summary judgment, which deprives a party of his [or her] day in court, should not be granted where there is any doubt as to the existence of triable issues or the issue is even 'arguable'" (De Paris v. Women's Natl. Republican Club, Inc., 148 A.D.3d 401, 403404 [1st Dept 2017]; see Bronx-Lebanon Hosp. Ctr. v. Mount Eden Ctr., 161 A.D.2d 480, 480 [1st Dept 1990]). Thus, a moving defendant does not meet his or her burden of affirmatively establishing entitlement to judgment as a matter of law merely by pointing to gaps in the plaintiff's case. He or she must affirmatively demonstrate the merit of his or her defense (see Koulermos v. A.O. Smith Water Prods., 137 A.D.3d 575, 576 [1st Dept 2016]; Katz v. United Synagogue of Conservative Judaism, 135 A.D.3d 458, 462 [1st Dept 2016]).

"Labor Law § 240(1) imposes on owners, general contractors and their agents a nondelegable duty to provide safety devices to protect against elevation-related hazards on construction sites, and they will be absolutely liable for any violation that results in injury regardless of whether they supervised or controlled the work" (Ragubir v. Gibraltar Mgt. Co., Inc., 146 A.D.3d 563, 564 [1st Dept 2017]). It is well settled that, to succeed on a Labor Law § 240(1) cause of action, the plaintiff "must establish that the statute was violated and that such violation was a proximate cause of his [or her] injury" (Barreto v. Metropolitan Transp. Auth., 25 N.Y.3d 426, 433 [2015]). The defendants established that the injury in the case at bar did not arise from an elevation-related risk and, hence, that Labor Law § 240(1) was inapplicable (see Wendell v. Sylvan Lawrence Co., 279 A.D.2d 383, 383 [1st Dept 2001] [plaintiff's fall over pipes was not a gravity-related accident within the ambit of Labor Law § 240(1)]; see also Natale v. City of NY, 33 A.D.3d 772, 774 [2d Dept 2006]; Vicari v. Triangle Plaza II, LLC, 16 A.D.3d 672, 673 [2d Dept 2005]; Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 268 [2001] Fairchild v. Servidone Constr. Corp., 288 A.D.2d 665, 666-667 [3d Dept 2001]; Allen v. Hodorowski & DeSantis Bldg. Contrs., 220 A.D.2d 959, 960-961 [3d Dept 1995]). Since the plaintiff failed to raise a triable issue of fact in opposition to the defendants showing in this regard, the defendants are entitled to summary judgment dismissing the Labor Law § 240(1) claim.

Labor Law § 241(6) imposes a nondelegable duty upon owners and general contractors "to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed" (Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 348 [1998] [citation and internal quotation marks omitted]; see Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494 [1993]). To sustain a Labor Law § 241 (6) cause of action, it must be shown that the defendant violated a specific, "concrete" implementing regulation of the Industrial Code, rather than generalized regulations for worker safety (see id. at 505). Labor Law § 241 (6) also requires a plaintiff to show that the safety measures actually employed on a job site were unreasonable or inadequate, that the violation of the Industrial Code constituted negligence (see Baptiste v. RLP-East, LLC, 182 A.D.3d 444, 445 [1st Dept 2020] ["violation of a provision of the Industrial Code is only evidence of negligence, and Labor Law § 241(6) requires the additional finding that the violation showed a lack of reasonable care"]), and that the violation was a proximate cause of his or her injuries (see Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513 [1985]).

Here the plaintiffs asserted that the defendants violated 12 NYCRR 23-1.7(d) ...