Agelou v Direct TV Group, Inc. (2010 NY Slip Op 50725(U))

Agelou v Direct TV Group, Inc.

2010 NY Slip Op 50725(U) [27 Misc 3d 1213(A)]

Decided on April 6, 2010

Supreme Court, Broome County

Lebous, 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This opinion is uncorrected and will not be published in the printed Official Reports.

Plaintiffs, Constantinos Agelou and Diane Agelou, move for summary judgment on the issue of liability on their Labor Law § 240 (1) cause of action.

Defendant, Halsted Communications, LTD, opposes the motion and cross-moves for summary judgment dismissing plaintiffs' negligence and Labor Law §§ 200 and 241(6) causes of action.

Defendant, The Direct TV Group, Inc, also opposes plaintiffs' motion and cross-moves for summary judgment dismissing plaintiffs' negligence and Labor Law §§ 240 (1) and 241(6) causes of action.

Defendant, Eastern Sales, LLC, did not appear or submit papers in opposition to this motion.^[FN1]

Plaintiffs oppose all defense cross-motions with respect to their negligence and Labor Law §§ 240 (1) and 241(6) causes of action. However, during oral argument, plaintiffs conceded that their Labor Law § 200 cause of action lacked merit.

Defendant Halsted entered into a written contract with defendant Direct TV to install and service satellite television equipment sold and/or rented by Direct TV (Plaintiffs' Exhibit F). Defendant Halsted thereafter subcontracted with non-party ARJ One Corporation d/b/a KT Installations (hereinafter "ARJ One"), pursuant to a separate written contract, to perform the [*2]installation work on Halsted's behalf (Plaintiffs' Exhibit G). Plaintiff, Constantinos Agelou,^[FN2] was employed as a satellite television installer/technician by ARJ One.

B.The Accident

On January 15, 2005, at approximately 12:30 p.m., plaintiff was sent by ARJ One for an installation job at residential property located at 7 King Street, Binghamton, New York (hereinafter "Subject Premises"). This particular job involved a so-called triple installation meaning that plaintiff would install one satellite dish with three receivers (for three televisions). Plaintiff had successfully installed and grounded the dish and was in the process of running cable wires to the bedrooms. Plaintiff intended to use the ladder to climb onto the roof to drill a hole near the bottom of the second floor window and then drill another hole for the third floor window (Plaintiff's EBT, pp 96-97).

During this process, plaintiff placed his 28-foot aluminum ladder on the asphalt driveway and up against the front porch (Plaintiff's EBT, p 108). Plaintiff stated that there had been 6-7 inches of snow the previous night but that the driveway had been cleaned presumably by the homeowner (Plaintiff's EBT, pp 102-110). More specifically, plaintiff describes the accident as follows:

AHolding the — the wire. And as - - as soon as I stepped off the ladder with my left foot onto the roof, my ladder kicked out and I fell, and that was it.

QWhen your ladder kicked out, did it - - how did it kick out, did it slide from the top or from the bottom?

QThe bottom of the ladder slid out or kicked out from the bottom, away from the house?

AAway, yeah, away, it was a ways from the house.

(Plaintiff's EBT, pp 102-103).

When the ladder slipped and kicked out plaintiff fell approximately 10-20 feet from the front porch roof onto and became impaled on the post of a chain link fence.

[*3]C.The Action

This action was commenced on September 13, 2005. The Summons and Complaint allege a common law negligence cause of action, as well as violations of Labor Law §§ 200, 240 (1) and 241 (6).

Defendant Direct TV interposed an answer with various affirmative defenses, together with cross-claims against co-defendants Halsted and Eastern Sales, LLC.

Defendant Halsted interposed an answer with various affirmative defenses, together with cross-claims against co-defendants Direct TV and Eastern Sales, LLC.

The court heard oral argument from counsel on February 19, 2010 on all pending motions and cross-motions.

Labor Law § 200 is "[a] codification of the common-law duty of an owner or contractor to exercise reasonable care to provide workers with a safe place to work [citations omitted]" (Miller v Wilmorite, Inc., 231 AD2d 843, 843 [4th Dept 1996]). It is well-settled that "[g]eneral supervisory authority at the work site for the purpose of overseeing the progress of the work and inspecting the work product has been found insufficient to establish a cause of action under Labor Law § 200 [citations omitted]" (Riccio v Shaker Pine, 262 AD2d 746, 748 [3rd Dept 1999], lv denied 93 NY2d 1042 [1999]). Moreover, the fact of "[m]ere retention of contractual inspection privileges or a general right to supervise does not amount to control sufficient to impose liability, and that where the injury is due to the method of work, Labor Law § 200 and common law negligence claims must be dismissed in the absence of proof of the owner's actual control, notwithstanding the existence of questions of fact regarding an owner's contractual right of control [citations omitted])" (Brown v New York City Economic Dev. Corp., 234 AD2d 33, 33 [1st Dept 1996]; emphases in original).

Defendant Halsted argues plaintiff's common law negligence and Labor Law § 200 claims should be dismissed because it did not exercise any actual control and/or supervision over plaintiff's work. In support of this position, defendant Halsted argues that plaintiff obtained a work order from his employer, ARJ One, and that it is undisputed that plaintiff arrived at the Subject Property alone and was unassisted in his work on the day of this accident. Based upon the foregoing, the court finds that defendant Halsted has met its initial burden establishing that no one from defendant Halsted was present on the date of this accident or supervised plaintiff's work in any manner and, thus, did not exercise actual control or supervision of plaintiff's work.

In opposition, plaintiff has failed to come forward with any proof establishing defendant Halsted exercised any actual control or supervision of plaintiff's work beyond a contractual right to do so. In fact, plaintiff's opposing papers do not even address this portion of the cross-motion.

Moreover, as noted, during oral argument, plaintiff conceded the lack of merit of the Labor Law [*4]§ 200 cause of action. To the extent that plaintiff attempted to argue the existence of a common law negligence cause of action based upon a lack of proper training the court finds nothing in the record supporting this argument.

Consequently, the court finds no proof that plaintiff ever received instructions from any of defendant Halsted's employees regarding how or where to conduct his work. Accordingly, defendant Halsted's motion for summary judgment dismissing plaintiff's common law negligence and Labor Law § 200 cause of action is granted. Although defendant Direct TV did not affirmatively move with respect to these causes of action, the court finds summary judgment in favor of defendant Direct TV is proper as well for the same reasons set forth above.

II.LABOR LAW § 240 (1)

A.DIRECT TV

With respect to the Labor Law § 240 (1) cause of action, the court will start with Direct TV's argument that it is not a general contractor within the meaning of Labor Law § 240 (1).^[FN3]

It is well-settled that Labor Law liability runs to a general contractor who is responsible for the coordination and execution of all the work at the work site (Rauls v Direct TV, Inc., 60 AD3d 1337 [4th Dept 2009]; Feltt v Owens, 247 AD2d 689 [3rd Dept 1998]). The court has reviewed the contract between Direct TV and Halsted (Plaintiff's Exhibit F). The court finds that the terms of said contract expressly state that Halsted, not Direct TV, is "solely responsible for the methods, techniques, sequences and procedures", as well as the furnishing of "all necessary materials, labor, tools, and equipment" in connection with installation services (Plaintiff's Exhibit F, ¶¶ 1 [f] & 3[a]). Based upon the foregoing, the court finds that Direct TV has established its entitlement to judgment as a matter of law that it is not an owner or contractor within the meaning of Labor Law § 240 (1).

In opposition, plaintiff argues that there are portions of the Direct TV and Halsted contract which suffice to hold Direct TV in as a general contractor. For instance, plaintiff argues that the provisions regarding training, vehicles and uniforms indicate that Direct TV retained sufficient supervision and control of subcontractors to deem it to be a general contractor within the meaning of Labor Law § 240 (1) (Alexander Responding Affirmation dated February 17, 2010, ¶ 9). Additionally, plaintiff argues that the deposition testimony of Robert Jones, a Direct TV senior manager, demonstrates that Direct TV exercised supervision and control over its contractor Halsted, as well as its subcontractor, ARJ One.

The court finds plaintiff's arguments insufficient to raise a triable issue of fact. The court finds the two trial decisions cited by Direct TV to be instructive. In Figueroa v DirecTV, Inc., 13 Misc 3d 1209(A) (Erie County 2006), under similar circumstances as here, Direct TV's cross-motion for summary judgment was granted upon a demonstration that it lacked involvement in plaintiff's work methods. In Aviles v Halsted Communications, Ltd., 24 Misc 3d 1227(A) [*5](Queens County 2009), the court dismissed Labor Law causes of action against Direct TV on the basis that it was not an owner or contractor within the meaning of the Labor Law.

In view of the foregoing, the court finds that Direct TV was neither an owner or general contractor within the meaning of the Labor Law nor did it control, supervise or direct the work performed by plaintiff. Consequently, plaintiff's motion for summary judgment on the issue of liability on Labor Law § 240 (1) is denied with respect to Direct TV. Defendant Direct TV's cross-motion for summary judgment dismissing plaintiff's Labor Law § 240 (1) cause of action is granted.

B.HALSTED

The court will now address plaintiff's motion for summary judgment on the issue of liability on his Labor Law § 240 (1) cause of action in relation to defendant Halsted.

Labor Law § 240 (1) was enacted "[i]n recognition of the exceptionally dangerous conditions posed by elevation differentials at work sites...for workers laboring under unique gravity-related hazards [citation omitted]" (Misseritti v Mark IV Constr. Co., 86 NY2d 487, 491 [1995], rearg. denied 87 NY2d 969 [1996]). Labor Law § 240 (1) states, in pertinent part, that:

[a]ll 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.

Quite simply, plaintiff argues that the ladder - which was the only safety device provided - failed to provide proper protection as a matter of law. Whether the provided safety device afforded proper protection to a worker within the meaning of Labor Law § 240 is ordinarily a question of fact (Beesimer v Albany Ave./Rte. 9 Realty, 216 AD2d 853, 854 [3rd Dept 1995]; Ball v Cascade Tissue Group-N.Y., Inc., 36 AD3d 1187, 1188 [3rd Dept 2007]). However, "[w]here the device collapses, slips or otherwise fails to perform its function of supporting the worker...", a prima facie entitlement to partial summary judgment is established (Squires v Marini Bldrs, 293 AD2d 808, 808-809 [3rd Dept 2002], lv denied 99 NY2d 502 [2002], quoting Beesimer, 216 AD2d at 854; Nimirovski v Vornado Realty Trust Co., 29 AD3d 762, 762-762 [2nd Dept 2006]).

Here, plaintiff's deposition testimony establishes that the ladder was not secured to the house, the foot of the ladder slipped from beneath plaintiff, and plaintiff was not provided with any other safety device to prevent his fall (Plaintiff's EBT transcript annexed as Halsted Exhibit 1, pp 107-108). Based upon this proof alone, the court finds that plaintiff has established his prima facie entitlement to partial summary judgment on liability under Labor Law § 240(1) (Danielewski v Kenyon Realty Co., 2 AD3d 666, 667 [2nd Dept 2003]).

Thus, the burden shifts to defendant Halsted "[w]ho may defeat plaintiff's motion for [*6]summary judgment 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 [citations omitted]" (Morin v Machnick Bldrs., 4 AD3d 668, 670 [3rd Dept 2004]; emphasis added).

In opposition, defendant Halsted argues that there is no evidence that the ladder itself was defective which in and of itself, should create questions of fact as to whether the ladder provided proper protection precluding summary judgment on this cause of action (Olberding v Dixie Contr., 302 AD2d 574 [2nd Dept 2003]; Taglioni v Harbor Cove Assoc., 308 AD2d 441 [2nd Dept 2003]).^[FN4] The court disagrees. There is no dispute that this ladder either slipped or kicked out - the difference of which is irrelevant for these purposes - and that such movement equates to a violation of the statute (Nimirovski, 29 AD3d 762). Further, plaintiff's deposition testimony established that the only elevation-related safety device in his possession was the subject ladder and that no ropes or ties or other devices were available (Halsted Exhibit A, pp 107-108). Defendant Halsted offers nothing to contradict this testimony.

To the extent that defendant Halsted argues that plaintiff's actions were a proximate cause of the accident by placing the ladder on a snow covered surface, even if true, such allegations would only form the basis for comparative negligence which is not a defense under this statute (Morin, 4 AD3d at 670). As previously stated by the Third Department, and equally applicable here, "[p]laintiffs have established a statutory violation and defendants have failed to produce sufficient evidence to create a question of fact. Under these circumstances, any alleged contributory negligence attributable to plaintiff is irrelevant [citation omitted] and, as the statutory violation has been established as a proximate cause of plaintiff's injury, his negligence cannot be the sole proximate cause [citation omitted]" (Ball, 36 AD3d at 1189;emphases added).

Defendant Halsted also argues that the fact that this was an unwitnessed accident serves to create questions of fact. To the contrary, the fact that the accident was unwitnessed does not provide a basis on which defendant may defeat plaintiff's motion as there is no bona fide issue of fact concerning how the accident happened (Ewing v ADF Constr. Corp., 16 AD3d 1085, 1086-1087 [4th Dept 2005]; Barr v 157 5 Ave., LLC, 60 AD3d 796, 797-798 [2nd Dept 2009]). In sum, defendant Halsted has failed to raise a question of fact as to whether there was no statutory violation and that plaintiff's own acts or omissions were the sole cause of the accident.

Again, "[i]t is conceptually impossible for a statutory violation (which serves as a proximate cause for a plaintiff's injury) to occupy the same ground as a plaintiff's sole proximate cause of the injury. Thus, if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it. Conversely, if the plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation" (Blake v Neighborhood Hous. Servs. [*7]of NY City, 1 NY3d 280, 290 [2003]). In view of the foregoing, the court finds that plaintiff is entitled to summary judgment on liability against defendant Halsted with respect to the Labor Law § 240 (1) cause of action.

III.LABOR LAW § 241 (6)

For the same reasons set forth above, the court finds that defendant Direct TV was neither an owner or general contractor within the meaning of the Labor Law § 241 (6). Thus, defendant Direct TV's cross-motion for summary judgment dismissing plaintiff's Labor Law § 241 (6) cause of action is granted. Accordingly, the remaining discussion on Labor Law § 241 (6) relates solely to defendant Halsted.

Labor Law § 241 (6) mandates owners and contractors provide reasonable and adequate protection and safety for workers by requiring them to comply with specific safety rules and regulations promulgated by the Commissioner of the Department of Labor, as opposed to general safety standards regulations (Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 501-502, [1993]). The Commissioner's rules, known as the State Industrial Code, are contained in Title 12 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("NYCRR"). A plaintiff must establish that the violation of the specific safety regulation was a proximate cause of the accident (Ares v State of New York, 80 NY2d 959 [1992]).

Plaintiff's Verified Bill of Particulars cited Industrial Code § 23-1.21 et seq. in support of his Labor Law 241 (6) cause of action, but his opposing papers here focus only on Industrial Code § 23-1.21 (b) (4) (iv) and (v). In the first instance, the court notes that these provisions are sufficiently specific so as to support a Labor Law § 241 (6) cause of action (Vargas v New York City Tr. Auth., 60 AD3d 438 [1st Dept 2009]).

Industrial Code § 23-1.21 (b) (4) (iv) and Industrial Code § 23-1.21 (b) (4) (v) state as follows, respectively:

(iv)When work is being performed from ladder rungs between six and 10 feet above the ladder footing, a leaning ladder shall be held in place by a person stationed at the foot of such ladder unless the upper end of such ladder is secured against side slip by its position or by mechanical means. When work is being performed from rungs higher than 10 feet above the ladder footing, mechanical means for securing the upper end of such ladder against side slip are required and the lower end of such ladder shall be held in place by a person unless such lower end is tied to a secure anchorage or safety feet are used.

(v)The upper end of any ladder which is leaning against a slippery surface shall be mechanically secured against side slip while work is being performed from such ladder.

The court finds that Industrial Code § 23-1.21 (b) (4) (iv) and (v) apply only when work [*8]is being performed from a ladder (Arigo v Spencer, 39 AD3d 1143, 1145 [4th Dept 2007]). Here, plaintiff testified that he was in the process of stepping from the ladder to the roof when the ladder kicked out and fell. Consequently, the court finds that Industrial Code § 23-1.21 (b) (4) (iv) and (v) do not apply to the facts of this case. Thus, defendant Halsted's motion for summary judgment dismissing plaintiff's Labor Law § 241 (6) cause of action is granted.

5.Defendant Direct TV's cross-motion for summary judgment dismissing plaintiff's Labor Law §§ 240 (1) and 241(6) causes of action is GRANTED.

This Decision & Order does not address the defendants' cross-claims as those issues were not argued or briefed.