[*1]
Monioudis v City of New York
2009 NY Slip Op 51921(U) [24 Misc 3d 1248(A)]
Decided on September 9, 2009
Supreme Court, Kings County
Miller, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on September 9, 2009
Supreme Court, Kings County


Symeon Monioudis, Plaintiff,

against

The City of New York, Defendant.



The City of New York, Third-Party Plaintiff,

against

Modine Contracting Corp., Third-Party Defendant.




37192/03

Robert J. Miller, J.



Upon the foregoing papers, plaintiff Symeon Monioudis (Monioudis) moves for an order, pursuant to CPLR 3211, granting him summary judgment under Labor Law § 240 (1) on the issue of liability in this action.

BACKGROUND FACTS AND PROCEDURAL HISTORY


Monioudis commenced this action seeking damages for injuries allegedly sustained on August 22, 2002 when he fell from a ladder during the course of employment for Modine Contracting Corp. (Modine Contracting). At the time of the alleged accident, Monioudis was working on a ladder in a third-floor courtroom of the Central Court House located at 120 Schermerhorn Street in Brooklyn, New York. The building was owned by defendant the City of New York (the City), which also served as the general contractor for the work being performed. Monioudis was spackling and performing plaster work in preparation for [*2]painting when the ladder allegedly collapsed, causing him to fall. As a result of the accident, he allegedly sustained various injuries, including of the spine, shoulder, and extremities, and has since been unable to return to work full time.

Plaintiff filed and served a Notice of Claim upon the City on or about November 20, 2002. He subsequently commenced the instant action on October 8, 2003. On or about May 16, 2007, the City commenced a third-party action against Modine under index number 75500/07.

THE PARTIES' CONTENTIONS


Plaintiff claims that the City failed to ensure that he had a safe place to work because the ladder he was provided was a "weak, shaky, broken, old A-frame ladder." Plaintiff alleges that he is entitled to summary judgment on the issue of liability given such failure to provide him with a safe and secure ladder on which to work or any required safety devices to protect him from elevation-related work hazards. Specifically, he avers that the City breached its duty to provide proper protection while he was engaged in an activity protected under Labor Law § 240 (1). Plaintiff also cites multiple violations of the Industrial Code as evidence of failure to provide required safety devices in support of his Labor Law § 240 (1) claim.

Defendant opposes the motion by arguing that an issue of fact exists as to plaintiff's credibility regarding whether the alleged accident actually occurred, given Modine's payroll records, which do not reflect that plaintiff worked at all on the date of the accident. It also avers that plaintiff has failed to meet his prima facie burden of establishing a violation of Labor Law § 240 (1) or that such a violation was the sole proximate cause of plaintiff's injuries. In particular, the City argues that no evidence exists that plaintiff's ladder was an inadequate safety device and that a jury could find that plaintiff's own actions were the sole proximate cause of his injuries.

In reply, plaintiff argues, among other things, that the unsworn documents submitted by the City in opposition to plaintiff's motion are not in admissible form and should be disregarded. Plaintiff also contends that the Notice of Decision issued by the Workers' Compensation Board collaterally estops the City from contesting the judicial determination that plaintiff in fact worked on the date of the alleged accident.[FN1] Finally, plaintiff submits an "Employer's Statement of Wage Earnings" showing that he indeed worked on the date of the alleged accident. Defendant, however, insists that the collateral estoppel argument is improperly raised and that the Employer's Statement is improperly submitted, as it is a document from the Workers' Compensation Board that was not exchanged during discovery.

DISCUSSION


Summary judgment should only be granted where there are no triable issues of fact (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). The moving party on a motion for summary judgment has the burden of demonstrating "a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact [*3]from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852 [1985]). Once the movant has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which require a trial (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The evidence presented on summary judgment must be scrutinized in the light most favorable to the party opposing the motion (Goldstein v Monroe County, 77 AD2d 232, 236 [1980]). Accordingly, "[i]f there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied" (Celardo v Bell, 222 AD2d 547, 547 [1995]).

Labor Law § 240 (1), commonly called the "Scaffolding Law," provides in pertinent part that:

"All contractors and owners and their agents . . . 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 statute imposes a non-delegable duty upon owners, contractors, and their agents to provide adequate safety measures at the work site and is liberally construed to accomplish its purpose of placing the ultimate responsibility for safety practices on the owner and general contractor rather than on individual workers who are "scarcely in a position to protect themselves from accident" (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520 [1985] [internal citation and quotation marks omitted], rearg denied 65 NY2d 1054 [1985]). This duty is "nondelegable and . . . an owner is liable for a violation of the section even though the job was performed by an independent contractor over which it exercised no supervision or control" (see Gordon v Eastern Ry. Supply, 82 NY2d 555, 559 [1993] [internal citation and quotation marks omitted]).

Building owners and contractors under this provision are absolutely liable when a violation of Section 240 (1) proximately causes a worker's injuries attributable to falls from ladders, scaffolding, or other elevation devices that do not provide proper protection against such "harm directly flowing from the application of the force of gravity to an object or person" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993] [internal citation and quotation marks omitted]). A plaintiff thus must prove that the statute was violated and that the violation was a proximate cause of the injuries sustained (see Camilca v Hansson, 40 AD3d 796, 797 [2007]; Zimmer, 65 NY2d at 519).

It is well-settled that a plaintiff cannot prevail on a summary judgment motion for liability under Labor Law § 240 (1) if a jury could find that defendant's violation was not a proximate cause of plaintiff's accident (see Zimmer, 65 NY2d at 524). Summary judgment must also be denied when there are factual questions whether a plaintiff's own actions were the sole proximate cause of the accident (see Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998], rearg denied 92 NY2d 875 [1998]; see also Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 290 [2003]). Proximate cause is established only where a "defendant's act or failure to act as the statute requires was a substantial cause of the events which produced the plaintiff's injuries" (Gordon, 82 NY2d at 561-562 [internal citation and quotation marks omitted]; Ekere v Airmont Indus. Park, 249 AD2d [*4]104, 105 [1998]; Rodriguez v Forest City Jay St. Assoc., 234 AD2d 68, 69 [1996]). In addition, although a plaintiff's alleged contributory or comparative negligence is not a defense to a cause of action under Labor Law § 240 (1) (see Zimmer, 65 NY2d at 521), such a cause of action will not stand where the plaintiff's own conduct was the sole proximate cause of his or her injuries (see Blake, 1 NY3d at 289-290; see also Tweedy v Roman Catholic Church of Our Lady of Victory, 232 AD2d 630, 630 [1996], lv denied 90 NY2d 810 [1997]).

Courts have consistently held that a fall in and of itself does not establish that proper protection was not provided (see Delahaye v Saint Anns School, 40 AD3d 679, 682 [2007]; Basmas v J.B.J. Energy Corp., 232 AD2d 594, 594-595 [1996]). However, a plaintiff may be granted summary judgment on the issue of liability under Labor Law § 240 (1) "when the device collapses, moves, falls, or otherwise fails to support the plaintiff and his materials" (Nelson v Ciba-Geigy, 268 AD2d 570, 572 [2000]). Although no showing that the ladder was defective is necessary, if the plaintiff is claiming that the ladder failed to provide proper protection, he must show that failure to secure the ladder was a substantial factor leading to his injuries (see Williams v Dover Home Improvement, 276 AD2d 626, 627 [2000]). It is enough for a plaintiff to present evidence that the ladder was unsecured and that he fell and sustained injuries because of the ladder's failure (see Chlap v 43rd St.-Second Ave. Corp., 18 AD3d 598 [2005]; Granillo v Donna Karen Co., 17 AD3d 531 [2005]; Basmas, 232 AD2d at 594; Whalen v Sciame Constr. Co., 198 AD2d 501 [1993]).

The Court finds that plaintiff has successfully demonstrated a prima facie case for recovery under Labor Law § 240 (1). It is undisputed that no other safety devices which might have prevented the accident were provided for plaintiff's performance of the work at the elevated site. He submits his own testimony that "the [A-frame ladder on which he was standing] broke and [he] fell backwards" (Transcript of Symeon Monioudis, Nov. 12, 2008, annexed as Exhibit D to plaintiff's moving papers herein, at 18). He also called the ladder "a little wobbly" (Id. at 50) and testified that "[the ladder] didn't seem to be very steady . . . [because of] the clip that kept it open" and "[the ladder] clamped [and] broke that way and I fell backwards" (Id. at 20, 22). During his statutory hearing pursuant to General Municipal Law section 50-h, plaintiff additionally testified that while working on the ladder "suddenly [he] heard a cracking sound, and that's the only thing [he could] remember" (Transcript of Monioudis, Feb. 12, 2003, annexed as Exhibit B to defendant's opposition papers herein, at 22). Plaintiff's evidence satisfies the requirement notwithstanding the fact that he was working alone in the room and was the sole witness of the accident (see Rivera v Dafna, 27 AD3d 545, 545 [2006]). He has therefore met his prima facie burden of entitlement to summary judgment through his deposition testimony that the sole proximate cause of his injuries was the ladder, which was not an adequate safety device, and because no other safety devices were provided.

The burden then shifts to defendant to raise questions of fact as to whether plaintiff is entitled to prevail on liability under the Labor Law § 240 (1) claim (see Alvarez, 68 NY2d at 324; Zuckerman, 49 NY2d at 562). A defendant may defeat plaintiff's summary judgment motion only if there is "a plausible view of the evidence—enough to raise a fact question—that there was no statutory violation and that plaintiff's own acts or omissions were the sole cause of the accident (Blake, 1 NY3d 280, 288-289). However, the City fails to raise triable issues of fact with evidence that plaintiff did not work on August 22, 2002, the date plaintiff alleges the accident occurred. Specifically, the City submits Modine's payroll records, which do not reflect that plaintiff worked [*5]on that date.[FN2] It asserts that such evidence precludes summary judgment by calling into question plaintiff's credibility regarding the details of the alleged accident and/or how it occurred. As plaintiff correctly contends, however, the unsworn payroll records are in inadmissible form and defendant has failed to meet his burden of "laying bare" its proof (see Simms v North Shore Univ. Hosp., 192 AD3d 700 [1993]; Hurst v Hilgenfeldt, 189 AD2d 855 [1993]). The unsworn payroll records are therefore insufficient to rebut the presumption of defendant's liability (see Lucas v Fulton Realty Partners, LLC, 60 AD3d 1004, 1006 [2009]; Reed v New York City Tr. Auth., 299 AD2d 330, 332 [2002]).[FN3]

Defendant also fails to raise any triable issues of fact regarding whether plaintiff made a prima facie showing that the ladder used was an inadequate safety device. "In cases involving ladders or scaffolds that collapse or malfunction for no apparent reason, . . . plaintiffs [are aided] by a presumption that the ladder or scaffolding device was not good enough to afford proper protection" (Blake, 1 NY3d at 289). "[Defendants are] charged with the responsibility of seeing that the ladder is properly placed and erected" (Rigopoulos v State, 159 Misc 2d 1109, 1113 [1994]).The fact that plaintiff's employer, rather than the City, provided the ladder does not diminish defendant's obligation or liability for failing to provide adequate safety devices (see e.g., Haimes v New York Tel. Co., 46 NY2d 132 [1978] [where the court found no significance in the fact that the decedent himself provided the ladder, the collapse of which caused his death]). There is also no evidence, contrary to defendant's assertions, that the ladder plaintiff was using at the time of the alleged accident was too short for the work being performed.

The City cites two cases, Egan v Monadnock Constr. Co. (43 AD3d 692 [2007]) and Montgomery v Federal Express Corp. (4 NY3d 805 [2005]), to support its contention that the ladder's alleged failure was not the sole proximate cause of plaintiff's fall given his awareness of the ladder's wobbly condition and knowledge that he should have used other available ladders. However, in Egan and Montgomery, in which the plaintiffs' own actions were found to be the proximate causes of their respective accidents, the plaintiffs improperly utilized the safety devices in ways they were not intended to be used. Here, the record does not indicate any misuse by plaintiff of the ladder in question.

Where, as here, defendant failed to provide any safety devices to prevent plaintiff's fall and "failed to offer any evidence, other than mere speculation, that undermined the prima facie case or presented a bona fide issue regarding plaintiff's credibility as to a material fact," summary judgment should be granted to plaintiff (Rivera, 27 AD3d at 545-546; see also Reinoso v Ornstein Layton Mgt., Inc., 19 AD3d 678 [2005]). Accordingly, it is

ORDERED that plaintiff's motion for an order granting summary judgment on the issue of liability under Labor Law § 240 (1) is granted.

The foregoing constitutes the decision, order, and judgment of the court. [*6]

ENTER,

J.S.C.

Footnotes


Footnote 1: Plaintiff avers that the Notice of Decision, issued after his February 25, 2003 hearing regarding his worker compensation benefits, declared that he sustained a work-related injury on August 22, 2002; was employed by Modine at the time he was injured; was engaged in the course of employment at the time he was injured; and was disabled as of the day after the occurrence.

Footnote 2: The City annexed Modine's payroll records for the month of August 2009 to its Second Supplemental Response to Plaintiff's Notice for Discovery and Inspection, dated March 3, 2009. According to those records, the last date plaintiff worked during the month of August was August 20, 2009.

Footnote 3: As an aside, because defendant failed to put plaintiff's credibility into contention, the Court need not consider the parties' arguments regarding whether plaintiff, in reply to defendant's opposition papers, properly raised his collateral estoppel argument or properly submitted the Employer's Statement of Wage Earnings.