Supreme Court, Kings County, February 14, 2019

Sacks and Sacks, L.L.P., New York City (Edward W. Ford of counsel), for plaintiffs.

Ropers Majeski Kohn & Bentley, New York City (Douglas Miller of counsel), for defendants.

Plaintiffs, Wayne and Sharice White, in this personal injury action brought pursuant to Labor Law § 240 (1) (the Scaffold Law) and Labor Law § 241 (6), move by August 7, 2018 notice of motion for a CPLR 3212 order granting summary judgment and setting the matter down for an "inquest" to assess damages. Defendants 855 MRU LLC and Gotham Construction Company LLC (Gotham) cross-moved on that same day for summary judgment pursuant to CPLR 3212 finding that plaintiffs cannot establish liability, and dismissing the action. Plaintiffs and defendants respectively submitted December 13, 2018 and December 11, 2018 affirmations in opposition to each other's motions, both mislabeled as affirmations "in reply." Neither party submitted actual reply affirmations or affidavits.

After issue was joined and discovery completed, the material undisputed facts are as follows. During the summer of 2014, plaintiff, Wayne White, was a union lather employed by nonparty Cross Country Construction LLC (Cross Country), which had its own [*2]general foreman and deputy foreman on the underlying accident site. White does not recall the accident itself, but his basic understanding was that a wooden beam fell from the top floor directly above him into the area where he was working, somehow striking him. Significantly, White testified that the only workers working in the area above him were fellow Cross Country employees.

As to the relationship between the named defendants, 855 MRU owned the underlying property at the time of the accident. White testified that only his employer, Cross Country, directed his work or controlled the area of the work site; however, Gotham was Cross Country's "construction manager," and was generally responsible for coordinating all trades pertaining to the construction.

Contrary to defendants' claim that no witness had personal knowledge of exactly how the underlying accident occurred, White's witness, Marouisse Wren, testified that he witnessed the accident firsthand. Wren's unrefuted testimony is that at about 8:45 a.m. on the date in question, he was working on the same floor as White when "one of the carpenters working above them was cutting wood and the piece he was cutting fell through a hole in the floor above them and fell approximately seven feet and hit [White] in the head."

Wren further testified, and it is unrefuted, that there was no netting or any other protective devices to prevent any objects{**63 Misc 3d at 462} from falling onto the floor where White and he were working at the time of the accident, and Gotham's "safety manager," Richard Agresta, acknowledged that "either Cross Country or Gotham or both would need to have some sort of procedure or protocol which would keep a worker below safe."

In analyzing the two competing summary judgment motions, it is initially noted that section 240 (1) of the Labor Law provides:

"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."

Section 241 (6) of the Labor Law similarly requires that all contractors and owners and their agents comply with the requirement that all work areas "be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places."

It is well settled that the liability of an owner, or a general contractor, is absolute upon proof that a worker's injuries were proximately caused by violation of their obligations under the Scaffold Law. (See e.g. Haimes v New York Tel. Co., 46 NY2d 132 [1978]; Silvers v E. W. Howell, Inc., 129 AD2d 694 [2d Dept 1987]; Santos v Sure Iron Works, 166 AD2d 571 [2d Dept 1990].)

Moreover, in Ross v Curtis-Palmer Hydro-Elec. Co. (81 NY2d 494 [1993]), the Court of Appeals further noted that the Scaffold Law duties are nondelegable, and that an owner or contractor who breaches that duty may be held liable regardless of whether it actually exercised supervision or control over the work. (See e.g. Haimes v New York Tel. Co., 46 NY2d 132, 136-137 [1978].) The Court further opined that the Scaffold Law " 'is to be construed as liberally as may be for the accomplishment of the purpose [*3]for which it was . . . framed' " (Koenig v Patrick Constr. Corp., 298 NY 313, 319 [1948]).

In the landmark decision, De Haen v Rockwood Sprinkler Co. (258 NY 350, 353 [1932]), in an opinion by Chief Judge Cardozo, the Court of Appeals recognized that a hazard arising{**63 Misc 3d at 463} from violation of a statute would not, in and of itself, establish liability if the plaintiff's injury was the result of a "hazard of a different kind"; however, the Court allowed that plaintiff to recover for the death of her decedent, who was killed by a radiator that fell into an unprotected hoistway, even though the applicable statute, former Labor Law § 241 (5), was designed to protect workers from the hazard of falling into a shaftway. Judge Cardozo wrote for the majority that recovery should be allowed where the injury sustained was not specifically covered but was nonetheless within the statute's "zone of apprehension." (Id. at 354.)

In understanding the foregoing "zone of apprehension" with respect to the Scaffold Law, the Court of Appeals more recently clarified in Rocovich v Consolidated Edison Co. (78 NY2d 509 [1991]) that the Scaffold Law is only aimed at "elevation-related" hazards and that injuries resulting from other types of hazards are not compensable under that statute, even if proximately caused by the absence of adequate scaffolds or other required safety devices. Thus, in Rocovich, the Court concluded that, although that plaintiff's injury was proximately caused by a "slip and fall" on an oil-covered area, and was severe, it was not the kind of harm typically associated with elevation-related hazards, despite the injury being "related to the effects of gravity." (Id. at 514.) The Rocovich Court further opined that the Scaffold Law evinces a clear legislative intent to provide "exceptional protection" for workers against the "special hazards" that arise when the work site either is itself elevated or is positioned below the level where "materials or load [are] hoisted or secured," and that the "special hazards" referred to therein do not encompass any and all perils that may be connected in some tangential way with the effects of gravity, but rather are limited to such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured. (Id.)

In Fabrizi v 1095 Ave. of the Ams., L.L.C. (22 NY3d 658, 662, 663 [2014]), the Court of Appeals further clarified that in order for a plaintiff to prevail on summary judgment in a section 240 (1) "falling object" case, the injured worker must demonstrate both the existence of a hazard contemplated under that statute, and that at the time the object fell, it either was being "hoisted or secured," or "required securing for the purposes of the undertaking."

{**63 Misc 3d at 464}In the case at hand, while defendants alleged that neither Cross Country nor the New York City Department of Buildings were able to confirm where the piece of wood that struck plaintiff came from or exactly how the accident occurred, in reality, plaintiff's unrefuted witness established that the injury was proximately caused by a piece of wood falling from Cross Country's overhead carpentry work area.

Accordingly, it is this court's opinion that plaintiffs have established that ongoing carpentry work involving loose lumber pieces that are foreseeably heavy enough to cause serious injury if they fell on workers below constitutes a special hazard anticipated by the Scaffold Law, and that whereas here a falling piece proximately caused plaintiff's injury, the plaintiffs have established a prima facie, albeit rebuttable presumption of the defendants' nondelegable liability for such "falling objects" under the Scaffold Law, as opposed to an "inadequate safety design" scenario which would require a different analysis, and that such prima facie showing renders defendants' arguments as to whether or not such lumber was being "hoisted" at the time that it fell moot, and shifts the burden of proof to defendants to offer factual evidence rebutting such prima facie rebuttable presumption. (Estate of Zimmerman v Mitsubishi Motors Credit of Am., Inc., 34 [*4]AD3d 628 [2d Dept 2006].) This court finds that defendants failed to adequately rebut the foregoing presumption, and defendants' liability under the Scaffold Law is established as a matter of law. (See Outar v City of New York, 5 NY3d 731 [2005]; Santos v Sure Iron Works, 166 AD2d 571 [2d Dept 1990]; Humphrey v Park View Fifth Ave. Assoc. LLC, 113 AD3d 558 [1st Dept 2014]; Mercado v Caithness Long Is. LLC, 104 AD3d 576 [1st Dept 2013].)

To the extent that defendants argue that the First Department cases cited by plaintiffs are "inconsistent" with the Court of Appeals and Appellate Division, Second Department, and that such First Department cases are "nonbinding" within the Second Department, it is defendants' foregoing arguments that are misguided. First, this court is not at liberty to disregard higher courts' precedents, merely because they are from different departments, unless such precedents directly conflict with precedents from this Department. More importantly, however, defendants have not revealed any such incongruity among the cases cited, and have merely failed to reconcile them.

Thus, for example, in Millette v Tishman Constr. Corp. (144 AD3d 1113, 1115 [2d Dept 2016]), relied upon heavily by defendants,{**63 Misc 3d at 465} the plaintiff therein relied upon an unsworn statement by the plaintiff's coworker that the falling plywood therein, when a worker accidentally stepped on a piece of plywood that was being used, without hoists, to "frame a wall," was located "beyond it[s] normal designated spot." The Millette Court found that such unsworn statement failed to demonstrate that the falling plywood was required to be secured for purposes of the undertaking, namely "framing a wall," and concluded that such unsworn statement was insufficient to establish the plaintiff's entitlement to judgment as a matter of law. The Millette Court was further guided by that plaintiff's own supervisor's sworn affidavit admitting that the area where he was working was not normally exposed to falling material or objects.

Moreover, defendants' reliance upon the Fabrizi case further demonstrates defendants' failure to distinguish between such "falling objects" cases and "inadequate device" cases. The Fabrizi case was not a falling objects case, as presented here, but rather an "inadequate device" case in which the Court of Appeals found that a device therein, which was not created for the purpose of preventing falling objects, was not covered by the statute in the event of a purely isolated, random object that happened to fall. That analysis is different from those cases analyzing ongoing risks of falling objects where, as here, no safety device is present, but one should have been present.

Thus, where, as here, in a falling objects case, plaintiffs rely upon sworn affidavits, rather than unsworn statements, and such sworn affidavits attest to ongoing overhead carpentry work involving heavy lumber, and the absence of any safety device, and falling lumber does in fact fall and proximately injure a worker below, there is a rebuttable presumption that such lumber should be secured to avoid such injury to workers below. Here, defendants have not submitted an affidavit or evidence rebutting that presumption, for example, attesting that such carpentry work was for a singular quick repair, that such work was being done in an abnormal location, or that the plaintiff was working in an area not normally exposed to falling material or objects.

Defendants did submit evidence that it was Cross Country's policy to secure lumber for storage consistent with section 23-2.1 (a) (1) of the Industrial Code (12 NYCRR), but not while such lumber was in use; however, that point would appear to go more to the issue of comparative or contributory negligence,{**63 Misc 3d at 466} as opposed to the issue of defendants' nondelegable obligations under [*5]the Scaffold Law. No factual findings or legal rulings are made with respect to any issues involving comparative negligence of any parties, or nonparties.

Finally, defendants' reliance upon a case involving a hammer that accidentally slipped out of a worker's hand as opposed to ongoing overhead heavy lumber carpentry work is no more analogous to the current case, and punctuates defendants' failure to at least assume the possibility that the cases may be distinguishable, rather than inconsistent.

Wherefore, it is hereby ordered and adjudged that defendants' motion for summary judgment is granted solely to the extent of dismissing plaintiff's claims as to defendant, Durst Fetner, in view of defendants' unrefuted affidavit that such entity has no relationship to the construction site at issue; and it is further ordered and adjudged that defendants' said motion is denied in all other respects; and it is further ordered and adjudged that plaintiffs' motion for summary judgment is granted, solely to the extent of finding that plaintiffs have established the remaining defendants' nondelegable liability pursuant to Labor Law §§ 240 (1) and 241 (6). Plaintiffs may apply, on notice, for a "trial" date, as opposed to the requested "inquest," on the issue of damages, after first scheduling a pretrial conference with respect to any anticipated motions in limine.