| Silva v FC Beekman Assoc., LLC |
| 2012 NY Slip Op 01236 [92 AD3d 754] |
| February 14, 2012 |
| Appellate Division, Second Department |
| Antonio Silva, Respondent, v FC Beekman Associates,LLC, et al., Defendants/Third-Party Plaintiffs-Appellants-Respondents. Gotham Safety ServicesCorp., Third-Party Defendant-Appellant. |
—[*1] Nicoletti Hornig & Sweeney, New York, N.Y. (Michael F. McGowan of counsel), forthird-party defendant-appellant. Block O'Toole & Murphy, New York, N.Y. (David L. Scher of counsel), forplaintiff-respondent.
In an action to recover damages for personal injuries, the defendants/third-party plaintiffsappeal from so much of an order of the Supreme Court, Queens County (Kitzes, J.), datedDecember 10, 2010, as granted the plaintiff's motion for summary judgment on the issue ofliability with respect to the cause of action alleging a violation of Labor Law § 240 (1), andthe third-party defendant appeals, as limited by its brief, from so much of the same order asdenied that branch of its cross motion which was for summary judgment dismissing thethird-party causes of action for common-law indemnification and contribution.
Ordered that the order is reversed insofar as appealed from by the defendants/third-partyplaintiffs, on the law, and the plaintiff's motion for summary judgment on the issue of liabilitywith respect to the cause of action alleging a violation of Labor Law § 240 (1) is denied;and it is further,
Ordered that the order is affirmed insofar as appealed from by the third-party defendant; andit is further,
Ordered that one bill of costs is awarded to the defendants/third-party plaintiffs payable bythe plaintiff and third-party defendant.
The plaintiff alleged that he was injured on October 22, 2007, while employed by nonpartyUrban Foundation Engineering, LLC, and working in an elevator pit on a construction project ata residential high-rise building in Manhattan, when he fell approximately 14 feet from a [*2]scaffold.
The plaintiff commenced this action against FC Beekman Associates, LLC, the owner of thesubject premises, and Kreisler Borg Florman General Construction Company, the generalcontractor on the construction project (hereinafter together the defendants), alleging that thedefendants were negligent and violated, inter alia, Labor Law § 240 (1). The defendantscommenced a third-party action asserting causes of action for, inter alia, common-lawindemnification and contribution against Gotham Safety Services Corp. (hereinafter Gotham),the site safety representative whose duties included performing a daily safety inspection of thesite and advising the contractors of any needed corrective action, such as the need to use railingsfor fall protection.
Labor Law § 240 (1) provides, in relevant part, that "[a]ll contractors and owners andtheir agents . . . in the erection, demolition, repairing, altering, . . . orpointing of a building or structure shall furnish or erect, or cause to be furnished or erected forthe 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 togive proper protection to a person so employed" (Labor Law § 240 [1]).
The plaintiff made a prima facie showing of entitlement to judgment as a matter of law basedon his testimony that he fell approximately 14 feet from an elevated scaffold, which waspositioned two feet from a wall and was not equipped with railings or surrounded with netting,and that he was not provided with a personal safety device, such as a harness or lifeline (see Moran v 200 Varick St. Assoc.,LLC, 80 AD3d 581, 582 [2011]; Chlebowski v Esber, 58 AD3d 662, 663 [2009]; Madalinski v Structure-Tone, Inc., 47AD3d 687, 687-688 [2008]). In opposition, the defendants raised triable issues of fact. Thedefendants proffered the affidavit of the plaintiff's co-employee and foreman, James Kern. Kernasserted, in relevant part, that the plaintiff was working with Kern and another laborermaneuvering a steel lintel into place around the top of a vault box while a site safetyrepresentative from Gotham was watching from the east side of the vault box. Although Kernstated that he did not witness the accident, he asserted that the scaffold was equipped withrailings on at least two sides.
The Supreme Court erred in refusing to consider any portion of Kern's affidavit in oppositionto the plaintiff's motion for summary judgment as inadmissible hearsay. Although hearsayevidence is insufficient to defeat a motion for summary judgment if it is the only evidencesubmitted (see Roche v Bryant, 81AD3d 707, 708 [2011]; Roldan vNew York Univ., 81 AD3d 625, 627 [2011]; Stock v Otis El. Co., 52 AD3d 816, 816-817 [2008]), Kern'sstatement that the scaffold was equipped with two railings was based on his personal observationand was not hearsay.
We disagree with our dissenting colleague's description and characterization of Kern'saffidavit. In his affidavit, Kern expressly averred that "[t]he scaffold was equipped with railingson at least two sides, including the side off [of] which [the] [p]laintiff allegedly fell." The factthat this statement was not followed by the words "at the time of the accident" is not dispositive.When Kern's affidavit is read in proper context and in its totality, it is sufficiently clear that Kernwas referring to the time of the subject accident.
"It is not the court's function on a motion for summary judgment to assess credibility"(Ferrante v American Lung Assn., 90 NY2d 623, 631 [1997]). There is no basis toconclude that the issues presented are not genuine or to determine, as a matter of law, in effect,that Kern is lying. Accordingly, Kern's assertions raise triable issues of fact as to whether thedefendants violated Labor Law § 240 (1) and, if so, whether the violation was a proximatecause of the plaintiff's injuries, requiring the denial of the plaintiff's motion for summaryjudgment on the issue of liability with respect to the cause of action alleging a violation of LaborLaw § 240 (1) (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986];Wiener v Rosmarin, 282 AD2d 449, 449-450 [2001]; Golaszewski v Cadman PlazaN., 136 AD2d 596, 597 [1988]).
The Supreme Court properly denied that branch of Gotham's motion which was for summaryjudgment dismissing the third-party causes of action for common-law indemnification andcontribution. Based on its authority as the site safety consultant, its ability to stop imminently[*3]dangerous work from continuing, and the evidence that aGotham representative observed the plaintiff working on the scaffold prior to the accident,without taking any action, Gotham failed to make a prima facie showing of its entitlement tojudgment as a matter of law, as it failed to make a prima facie showing that it was free fromnegligence in the happening of the accident (see Alvarez v Prospect Hosp., 68 NY2d at324; Zuckerman v City of New York, 49 NY2d 557 [1980]; Weitz v Anzek Constr. Corp., 65 AD3d678, 681 [2009]; Goodleaf v Tzivos Hashem, Inc., 19 Misc 3d 1104[A], 2008 NYSlip Op 50555[U] [2008], affd 68 AD3d 817 [2009]). Rivera, J.P., Angiolillo andRoman, JJ., concur.
Belen, J., dissents in part and concurs in part, and votes to affirm the order appealed from,with the following memorandum: I respectfully dissent, in part, because I disagree with mycolleagues' determination to reverse the order insofar as appealed from by thedefendants/third-party plaintiffs and to deny the plaintiff's motion for summary judgment on theissue of liability with respect to the cause of action alleging a violation of Labor Law § 240(1).
The plaintiff alleged that on October 22, 2007, while employed by nonparty UrbanFoundation Engineering, LLC (hereinafter Urban), and working on a scaffold erected inside anelevator pit during a construction project at a residential high-rise building in Manhattan, he fellfrom a height of approximately 10 to 14 feet into an approximately two-foot wide gap betweenthe scaffold and the elevator pit wall. At the time, the plaintiff was working with two coworkers,including Urban's foreman, both of whom were standing outside the elevator pit to install steellintels, which were approximately six feet by twelve feet long, over the top of the next elevatorpit. The plaintiff commenced this action against the premises owner, FC Beekman Associates,LLC (hereinafter FC Beekman), and the project's general contractor, Kreisler Borg FlormanGeneral Construction Company (hereinafter KBF and together with FC Beekman, thedefendants), respectively, seeking to recover damages for common-law negligence and violationsof Labor Law §§ 200, 240 (1) and § 241 (6).
Labor Law § 240 (1) imposes liability upon property owners and contractors whoviolate the statute by failing to provide or erect safety devices necessary to give proper protectionto workers exposed to elevation-related hazards, where such failure constitutes a proximate causeof the accident (see Cahill v TriboroughBridge & Tunnel Auth., 4 NY3d 35, 39 [2004]; Misseritti v Mark IV Constr.Co., 86 NY2d 487, 490-491 [1995];Balzer v City of New York, 61 AD3d 796, 797 [2009]; Chlebowski v Esber, 58 AD3d662, 663 [2009]). A scaffold without guardrails or other protective devices to prevent aworker from falling constitutes a violation of Labor Law § 240 (1) (see Moran v 200 Varick St. Assoc.,LLC, 80 AD3d 581 [2011]; Zengotita v JFK Intl. Air Term., LLC, 67 AD3d 426 [2009]; Madalinski v Structure-Tone, Inc., 47AD3d 687 [2008]).
Here, in support of his motion for summary judgment, the plaintiff established, prima facie,that the defendants violated Labor Law § 240 (1) by directing him to use a scaffold with noguardrails or other protective devices to prevent him from falling into the approximately two-footwide gap between the scaffold and the elevator pit wall, and that such failure constituted aproximate cause of his injuries (seePoracki v St. Mary's R.C. Church, 82 AD3d 1192, 1194-1195 [2011]; Moran v 200Varick St. Assoc., LLC, 80 AD3d at 582; Zengotita v JFK Intl. Air Term., LLC, 67AD3d at 427; Madalinski v Structure-Tone, Inc., 47 AD3d at 687-688). In opposition, thedefendants failed to raise a triable issue of fact.
"Although hearsay evidence may be considered in opposition to a motion for summaryjudgment, it is insufficient to bar summary judgment if it is the only evidence submitted"(Arnold v New York City Hous. Auth., 296 AD2d 355, 356 [2002]; see Stock v Otis El. Co., 52 AD3d816 [2008]; Rodriguez v Sixth President, 4 AD3d 406 [2004]). However, a narrowexception applies to this bar against hearsay if the proponent sets forth the name of the witness,the substance of his or her [*4]testimony, how the proponentbecame aware of the witness's testimony, and how the witness acquired his or her knowledge(see CPLR 3212 [f]; Egleston v Kalamarides, 58 NY2d 682 [1982]; Friendsof Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068 [1979]; Phillips v Kantor& Co., 31 NY2d 307, 312 [1972]; Maniscalco v Liro Eng'g Constr. Mgt., 305 AD2d378, 380 [2003]; Landisi v Beacon Community Dev. Agency, 180 AD2d 1000, 1002[1992]).
The affidavit of Urban's carpentry foreman, James Kern, which was the sole evidencesubmitted by the defendants in opposition to the plaintiff's motion, in pertinent part, admitted thathe did not witness the accident. Instead, Kern averred that he was "later informed" by anunnamed "Gotham Safety representative at the site" that, just before the plaintiff fell, he wasstanding not on the scaffold plank, but outside the scaffold perimeter, with one foot atop theelevator pit wall and the other on a cross brace of the scaffold frame. This statement wasinadmissible hearsay (see Roldan v NewYork Univ., 81 AD3d 625, 627 [2011]; Hochhauser v Electric Ins. Co., 46 AD3d 174, 178 [2007];Schiffren v Kramer, 225 AD2d 757, 758 [1996]). Without more, such hearsay wasinsufficient to raise a triable issue of fact as to the defendants' liability under Labor Law §240 (1) (see Stock v Otis El. Co., 52AD3d 816 [2008]; Rodriguez v Sixth President, 4 AD3d 406 [2004]; Arnold vNew York City Hous. Auth., 296 AD2d at 356). Moreover, Kern's affidavit was bereft of allinformation required to fit within the exception: it did not name the Gotham safety representativewho purportedly told him about the accident, did not state whether the Gotham safetyrepresentative actually witnessed the accident, did not specify when the Gotham safetyrepresentative relayed the information to Kern, and did not set forth the substance of the Gothamsafety representative's anticipated testimony (see Allstate Ins. Co. v Keil, 268 AD2d 545,545-546 [2000]; Schiffren v Kramer, 225 AD2d at 758). Contrary to the defendants'contention, they failed to set forth a reasonable excuse for their failure to submit competentevidence of the accident's occurrence.
I further submit that, while Kern's description of the scaffold as having "railings on at leasttwo sides, including the side off which Plaintiff allegedly fell," was not hearsay, it neverthelessfails to raise a triable issue of fact as to whether the scaffold was equipped with railings at thetime the plaintiff fell. Notably, Kern's affidavit explicitly states that "[a]t the time ofPlaintiff's alleged fall, Plaintiff was installing a metal frame over a Con Edison vault box. . . [which] is essentially a pit, approximately ten (10) feet deep" (emphasis added),and "[a]t the time of his alleged fall, Plaintiff, another Urban laborer (whosename I cannot recall) and myself were maneuvering the metal frame into place around the top ofthe vault box" (emphasis added). In contrast, in describing the scaffold's railings as being located"on at least two sides, including the side off which Plaintiff allegedly fell," Kern pointedly omitsany description that such railings were in place at the time the plaintiff fell. Indeed, Kern did notwitness the plaintiff's fall, and when he last saw the plaintiff, Kern describes him as "standing onthe scaffold plank, inside the scaffold perimeter," with no mention of the alleged railings. Thereis simply no evidence produced by the defendants that shows that there was a railing on thescaffold when the plaintiff actually fell.
Moreover, it is well settled that credibility is generally not considered in a summaryjudgment motion "unless it clearly appears that the issues are not genuine, but feigned" (Glick& Dolleck v Tri-Pac Export Corp., 22 NY2d 439, 441 [1968]). Here, I respectfully submitthat, at best, Kern's bare description that the scaffold was equipped with guardrails raises only afeigned issue of fact designed to avoid the consequences of KBF's photographs of the scaffoldtaken immediately after the plaintiff's accident, which the plaintiff submitted in support of hismotion and which clearly show that the scaffold was not equipped with any guardrails (see Sherman-Schiffman v CostcoWholesale, Inc., 63 AD3d 1031 [2009]; Benedikt v Certified Lbr. Corp., 60 AD3d 798 [2009]; Friedman v Ocean Dreams, LLC, 56AD3d 719 [2008]; Matter of Fisch v Aiken, 252 AD2d 556 [1998]).
The defendants' reliance on Golaszewski v Cadman Plaza N. (136 AD2d 596 [1988])is misplaced. In Golaszewski, the plaintiff, who had fallen from a scaffold, met his primafacie burden of establishing the defendants' liability on the Labor Law § 240 (1) cause ofaction. Notably, the plaintiff did not explain how he fell from the scaffold. In opposition to themotion, the defendants raised a triable issue of fact regarding, inter alia, "whether 1 of the 2guardrails actually came loose, since both rails were in place the next day" (id. at597 [emphasis added]). In contrast, here, the defendants submitted no evidence supporting Kern'sbare statement that the scaffold was equipped [*5]with guardrailsor explaining why KBF's photographs taken immediately after the accident depicted the scaffoldas lacking guardrails.
I further find it significant that Beekman's accident report, completed on the day of theaccident, describes the cause of the accident as follows: "[e]mployee slipped [and] fell offscaffold" and makes no mention of any scaffold guardrails.
In short, because I find that, in opposition to the plaintiff's motion, the defendants failed tosubmit competent evidence sufficient to raise a triable issue of fact, I would affirm the SupremeCourt's order, inter alia, granting the plaintiff's motion for summary judgment on the issue ofliability with respect to the cause of action alleging a violation of Labor Law § 240 (1).[Prior Case History: 2010 NY Slip Op 33567(U).]