| Silvas v Bridgeview Invs., LLC |
| 2010 NY Slip Op 09120 [79 AD3d 727] |
| December 7, 2010 |
| Appellate Division, Second Department |
| Isaac Silvas et al., Appellants, v Bridgeview Investors, LLC, etal., Respondents, et al., Defendants. (And a Related Action.) |
—[*1] Milber Makris Plousadis & Seiden, LLP, Woodbury, N.Y. (Lorin A. Donnelly of counsel), forrespondents Bridgeview Investors, LLC, and 36 BDWY, LLC. Traub Lieberman Straus & Shrewsberry, LLP, Hawthorne, N.Y. (Sheryl A. Bruzzese of counsel),for respondents T.F.N. Development Corp. and East Coast Construction Group, Inc. Meltzer, Lippe,Goldstein & Breitstone, LLP, Mineola, N.Y. (Richard M. Howard of counsel), for defendant CapitalInteriors Construction Corp.
In an action, inter alia, to recover damages for wrongful death, the plaintiffs appeal, as limited bytheir brief, from (1) so much of an order of the Supreme Court, Kings County (Ruchelsman, J.),entered May 19, 2009, as granted that branch of the motion of the defendants Bridgeview Investors,LLC, East Coast Construction Group, Inc., and T.F.N. Development Corp. which was for summaryjudgment dismissing the cause of action alleging a violation of Labor Law § 240 (1) insofar asasserted against the defendants Bridgeview Investors, LLC, and East Coast Construction Group, Inc.,and that branch of the cross motion of the defendant 36 BDWY, LLC, which was for summaryjudgment dismissing that cause of action insofar as asserted against that defendant, and (2) so much ofan order of the same court dated October 15, 2009, as, upon reargument, in effect, adhered to thedetermination in the order entered May 19, 2009, granting that branch of the motion of the defendantsBridgeview Investors, LLC, East Coast Construction Group, Inc., and T.F.N. Development Corp.which was for summary judgment dismissing the cause of action alleging a violation of Labor Law§ 240 (1) insofar as asserted against the defendants Bridgeview Investors, LLC, and East CoastConstruction Group, Inc., and granting that branch of the cross motion of the defendant 36 BDWY,LLC, which was for summary judgment dismissing that cause of action insofar as asserted against thatdefendant, and vacated the determination in the order entered May 19, 2009, denying that branch ofthe motion of the defendants Bridgeview Investors, LLC, East Coast Construction Group, Inc., andT.F.N. Development Corp. which was for summary judgment dismissing so much of the cause of actionalleging a violation of Labor Law § 241 (6) as was predicated on a violation [*2]of Industrial Code (12 NYCRR) § 23-1.22 (c) (2) insofar asasserted against the defendants Bridgeview Investors, LLC, and East Coast Construction Group, Inc.,and denying that branch of the cross motion of the defendant 36 BDWY, LLC, which was for summaryjudgment dismissing that portion of the cause of action insofar as asserted against that defendant, andthereupon granted those branches of the motion and cross motion.
Ordered that the appeal from so much of the order entered May 19, 2009, as granted that branchof the motion of the defendants Bridgeview Investors, LLC, East Coast Construction Group, Inc., andT.F.N. Development Corp. which was for summary judgment dismissing the cause of action alleging aviolation of Labor Law § 240 (1) insofar as asserted against the defendants BridgeviewInvestors, LLC, and East Coast Construction Group, Inc., and granted that branch of the cross motionof the defendant 36 BDWY, LLC, which was for summary judgment dismissing that cause of actioninsofar as asserted against it, is dismissed, as those portions of the order were superseded by the orderdated October 15, 2009, made upon reargument; and it is further,
Ordered that the order dated October 15, 2009, is reversed insofar as appealed from, on the law,and, upon reargument, the determination in the order entered May 19, 2009, granting that branch of themotion of the defendants Bridgeview Investors, LLC, East Coast Construction Group, Inc., and T.F.N.Development Corp. which was for summary judgment dismissing the cause of action alleging a violationof Labor Law § 240 (1) insofar as asserted against the defendants Bridgeview Investors, LLC,and East Coast Construction Group, Inc., and granting that branch of the cross motion of the defendant36 BDWY, LLC, which was for summary judgment dismissing that cause of action insofar as assertedagainst it is vacated, and those branches of the motion and the cross motion are denied, and thedetermination in the order entered May 19, 2009, denying that branch of the motion of the defendantsBridgeview Investors, LLC, East Coast Construction Group, Inc., and T.F.N. Development Corp.which was for summary judgment dismissing so much of the cause of action alleging a violation of LaborLaw § 241 (6) as was predicated on a violation of Industrial Code (12 NYCRR) §23-1.22 (c) (2) insofar as asserted against the defendants Bridgeview Investors, LLC, and East CoastConstruction Group, Inc., and denying that branch of the cross motion of the defendant 36 BDWY,LLC, which was for summary judgment dismissing that portion of the cause of action insofar asasserted against it is adhered to; and it is further,
Ordered that one bill of costs is awarded to theplaintiffs, payable by the defendants Bridgeview Investors, LLC, East Coast Construction Group, Inc.,T.F.N. Development Corp. and 36 BDWY, LLC.
The decedent and a coworker were stacking pieces of plywood debris on a sixth floor balcony of acondominium building under construction when the decedent lost his balance and fell to his death. It isundisputed that on the date of the accident, the subject balcony had not yet been equipped with arailing. Although barricades of some type had been erected in front of the openings to all of theunguarded balconies in the building, the barricade in front of the subject balcony had been removedprior to the decedent's fall.
Following the accident, the plaintiffs commenced this action against, among others, the buildingowners, Bridgeview Investors, LLC (hereinafter Bridgeview), and 36 BDWY, LLC (hereinafter 36BDWAY), and the general contractor, East Coast Construction Group, Inc. (hereinafter East Coast;collectively the defendants), alleging, inter alia, violations of Labor Law § 240 (1) and §241 (6). After depositions had been conducted, Bridgeview and East Coast, among others, moved forsummary judgment, among other things, dismissing the complaint insofar as asserted against thosedefendants, and 36 BDWY cross-moved for the same relief. In support of their respective motions, thedefendants argued that the plaintiffs' cause of action alleging a violation of Labor Law § 240 (1)should be dismissed because the decedent's actions were the sole proximate cause of the accident. Insupport of their contention, the defendants claimed that the decedent and his coworker had disregardedexplicit instructions to stockpile wood in front of the barricaded balconies, and had instead taken itupon themselves to remove a barricade in front of a sixth floor balcony and to venture out onto thatbalcony. The defendants also argued that the plaintiffs' cause of action alleging a violation of Labor Law§ 241 (6) should be dismissed because the [*3]various IndustrialCode safety regulations upon which that cause of action was predicated were either too general tosustain a section 241 (6) claim or were inapplicable to the circumstances of the accident. In oppositionto the motions, the plaintiffs argued that the defendants had offered no admissible evidentiary proof thatthe decedent and his coworker had removed the barricade in front of the subject balcony, or that theyhad disregarded explicit instructions by stacking plywood debris on the balcony. The plaintiffs furtherargued that the evidence suggested that it was necessary for the decedent and his coworker to stackthe plywood debris on the balcony so that it could be removed by a lull machine equipped with aforklift. The plaintiffs also contended that the absence of railings on the balcony, where the workerswere stacking plywood debris for removal, violated Industrial Code (12 NYCRR) § 23-1.22 (c)(2). In an order entered May 19, 2009, the Supreme Court, inter alia, awarded summary judgment tothe defendants dismissing the plaintiffs' cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against each of them, concluding that the decedent's actions in removing thebarricade blocking access to the subject balcony was the sole proximate cause of the accident. TheSupreme Court also granted those branches of the respective motions which were for summaryjudgment dismissing the plaintiffs' cause of action alleging a violation of Labor Law § 241 (6)insofar as asserted against the defendants, except to the extent that cause of action was predicatedupon Industrial Code (12 NYCRR) § 23-1.22 (c) (2).
The plaintiffs moved for leave to reargue, and the defendants separately cross-moved for leave toreargue. In an order dated October 15, 2009, the Supreme Court, inter alia, upon reargument, adheredto its original determination dismissing the Labor Law § 240 (1) claim insofar as asserted againstthe defendants, and vacated the determination in the order entered May 19, 2009, denying summaryjudgment to the defendants dismissing so much of the Labor Law § 241 (6) claim as waspredicated on Industrial Code (12 NYCRR) § 23-1.22 (c) (2) insofar as asserted against eachof them, thus effectively dismissing the plaintiffs' cause of action alleging a violation of Labor Law§ 241 (6) in its entirety. The Supreme Court reasoned that since the decedent's conduct inremoving the barricade protecting him from the unguarded balcony was the sole proximate cause of theaccident, no Industrial Code violation contributed to the accident. We reverse the order dated October15, 2009, insofar as appealed from.
Labor Law § 240 (1) imposes a nondelegable duty upon owners and general contractors toprovide safety devices to protect workers from elevation-related risks (see Ross v Curtis-PalmerHydro-Elec. Co., 81 NY2d 494 [1993]; Barr v 157 5 Ave., LLC, 60 AD3d 796 [2009]). "To impose liabilitypursuant to Labor Law § 240 (1), there must be a violation of the statute and that violation mustbe a proximate cause of the plaintiff's injuries" (Tama v Gargiulo Bros., Inc., 61 AD3d 958, 960 [2009]; see Blake v Neighborhood Hous. Servs. of N.Y.City, 1 NY3d 280, 287 [2003]). "Where there is no statutory violation, or where the plaintiffis the sole proximate cause of his or her own injuries, there can be no recovery under Labor Law§ 240 (1)" (Treu v Cappelletti, 71AD3d 994, 997 [2010]).
Here, the defendants failed to demonstrate their prima facie entitlement to judgment as a matter oflaw dismissing the plaintiffs' cause of action alleging a violation of Labor Law § 240 (1) insofar asasserted against them on the ground that the decedent's conduct was the sole proximate cause of theaccident. Contrary to the Supreme Court's determination, the defendants offered no admissibleevidence that either the decedent, or the individual with whom the decedent was working at the time ofthe accident, removed the barricade in front of the subject balcony. Although East Coast's formerproject superintendent submitted an affidavit in which he alleged that the decedent and a coworkerremoved the barricade, his affidavit contained no indication that he witnessed the removal of thebarricade, and did not set forth a factual basis for his conclusion that the barricade was removed by thedecedent and his coworker. Thus, the superintendent's conclusory assertion that the decedent and hiscoworker removed the barrier was without probative value (see Morales v Westchester Stone Co., Inc., 63 AD3d 805, 806[2009]). The superintendent's affidavit was also insufficient to establish, prima facie, that the decedentwas a recalcitrant worker who ventured out onto the balcony in disobedience of any immediate,specific instructions given to him (see Ortiz v164 Atl. Ave., LLC, 77 AD3d 807 [2010]; Zong Mou Zou v Hai Ming Constr. Corp., 74 AD3d 800, 801 [2010];Santo v Scro, 43 AD3d 897, 898[2007]; cf. Cahill v Triborough Bridge &Tunnel Auth., 4 NY3d 35, 39-40 [2004]). In addition, the statements attributed to thedecedent's coworker in a report prepared by a safety consultant constituted inadmissible hearsay (see Cheul Soo Kang v Violante, 60 AD3d991, 992 [2009]; Hochhauser v ElectricIns. Co., 46 AD3d 174, 181-183 [2007]; Hatton v Gassler, 219 AD2d 697[1995]). Under these circumstances, the defendants failed to make a prima facie showing that thedecedent's actions were the sole proximate cause of the accident, and the Supreme Court [*4]should not have awarded summary judgment to the defendants dismissingthe cause of action alleging a violation of Labor Law § 240 (1) insofar as asserted against them.
The defendants also failed to make a prima facie showing that Industrial Code (12 NYCRR)§ 23-1.22 (c) (2) was inapplicable to the circumstances of this action, or that their allegedviolation of this provision was not a proximate cause of the accident (see Ortiz v 164 Atl. Ave., LLC, 77 AD3d807 [2010]; Treu v Cappelletti, 71 AD3d at 998). Accordingly, upon reargument, theSupreme Court should not have vacated its original determination denying summary judgment to thedefendants dismissing so much of the plaintiffs' cause of action alleging a violation of Labor Law§ 241 (6) as was predicated on a violation of Industrial Code (12 NYCRR) § 23-1.22(c) (2) insofar as asserted against them. Skelos, J.P., Eng, Belen and Hall, JJ., concur.