|Claimant short name:||NAZIR|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||RICHARD E. SISE|
|Claimant's attorney:||SACKS & SACKS, LLP
BY: David H. Mayer, Esq.
|Defendant's attorney:||CARTAFALSA, TURPIN & LENOFF
BY: Lesley Siskind, Esq.
|Third-party defendant's attorney:|
|Signature date:||September 28, 2020|
|See also (multicaptioned case)|
The following papers were read on Claimant's motion for summary judgment and defendant's motion for summary judgment:
1. Notice of Motion filed March 18, 2020;
2. Affirmation of David H. Mayer affirmed March 17, 2020 with Exhibits annexed;
3. Memorandum of Law dated March 17, 2020;
4. Notice of Motion filed June 29, 2020;
5. Affirmation of Lesley Siskind affirmed June 17, 2020 with Exhibits A-E annexed;
6. Memorandum of Law dated June 17, 2020;
7. Affirmation of David H. Mayer affirmed July 17, 2020 with Exhibits 1-2 annexed;
8. Affirmation of Lesley Siskind affirmed July 30, 2020.
Filed papers: Claim, Answer
On May 29, 2018, claimant, a journeyman bridge painter, was injured while performing work as part of a contract between Ahern Painting Contractors, Inc., his employer, and the State of New York. At his deposition, claimant testified that as of the time of the accident he had worked for Ahern in the same capacity since 2012. On the day of the accident, he was assigned to the South Street Viaduct project in the Borough of Manhattan. The project involved removing paint and rust from steel columns and then painting the steel. He had been working on the project for six or seven months and had been assigned to work as one of eight sandblasters. The work was done using a hose and nozzle attached to a diesel powered unit that supplied pressurized material, in this case steel grit, to multiple hoses. There was a switch on each nozzle that, when released, would cut off the flow of grit. However, the amount of time it took for the switch to stop the flow of material through the nozzle varied, depending on the distance from the power unit. Claimant testified that it could be anywhere from instantly to two minutes before the blasting ended.
On the day of the accident, claimant was working on a column about 20 feet in height and was wearing a sandblasting hood, which served as a hard hat and provided eye protection and air flow. He also wore blast gloves, work boots and three layers of clothing on his legs. The column was surrounded by a containment unit consisting of a wood box covered with metal sheeting and a tarp. Inside the containment unit was a pipe scaffold with wood-plank platforms. Claimant had begun blasting this particular column from ground level earlier that day and then moved up one level, six feet off the ground. The space he was working in was cramped, with about a foot and a half of space on each side. He had to squat because he is taller than the six foot space provided between levels. As he was blasting, the plank under his left foot shifted and he fell from the scaffold. As he fell, with the blasting nozzle in his hand, the metal grit ripped into his left thigh and he tumbled to ground level. Claimant was treated by EMS at the scene and taken to Bellevue Hospital.
As a consequence of his injuries claimant brought this action against the State of New York in which he alleges violations of Labor Law §§ 200, 240 (1) and 241 (6). Claimant has now moved for summary judgment on the issue of liability under section 240 (1) and has withdrawn the claim under section 200. In response, defendant moved for summary judgment dismissing the claims under sections 200, 240 (1) and 241 (6).
"A party moving for summary judgment must demonstrate that the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in the moving party's favor (CPLR 3212 [b]). Thus, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. This burden is a heavy one and on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party. If the moving party meets this burden, the burden then shifts to the non-moving party to establish the existence of material issues of fact which require a trial of the action" (Jacobsen v NY City Health & Hosps. Corp., 22 NY3d 824, 833  [citations and internal quotation marks omitted]).
"Liability under Labor Law § 240 (1) depends on whether the injured worker's task creates an elevation-related risk of the kind that the safety devices listed in section 240 (1) protect against" (Eddy v John Hummel Custom Bldrs., Inc., 147 AD3d 16, 22 [2d Dept 2016] [citation and internal quotation marks omitted]). "[T]he single decisive question is whether the [claimant's] injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 ). In this instance claimant's job was to remove paint and rust from a 20 foot steel column and at the time of the accident he was working at a height of six feet, a sufficient elevation to trigger the protection of the statute (Harrison v State of New York, 88 AD3d 951 [2d Dept 2011]). He was provided a scaffold, a device listed in the statute, to allow him to carry out the work. However, according to his deposition testimony, the scaffold platform shifted beneath him and he fell. As such, the scaffold was not so constructed as to provide proper protection, particularly considering, as claimant testified, that balance while using a pressurized nozzle is inherently precarious. In addition, claimant's statement that the injury to his leg occurred as he was falling with the hose still in his hand draws a direct line from the unstable platform to his injury.
In responding to the motion, defendant argues that claimant has not offered proof that the State is the owner of the property where the accident occurred and therefore, has not established a prima facie case. However, there is sufficient proof in the record, by way of the deposition testimony of Frank Forti, defendant's engineer-in-charge on the project, along with a copy of the contact between Ahern and the State, to show that the State contracted to have the work performed for its benefit and as such, had a sufficient interest in the property to qualify as an "owner" within the meaning of section 240  (see Zaher v Shopwell, Inc., 18 AD3d 339 [1st Dept 2005]).
Defendant also argues that the issue of whether any enumerated safety device, in this case the scaffold, provided proper protection presents a question of fact and thus precludes summary judgment. However, an exception to that rule exists when "the device collapses, moves, falls, or otherwise fails to support the plaintiff and his or her materials" (Melchor v Singh, 90 AD3d 866, 868 [2d Dept 2011]). Here, claimant's testimony, that one of the wooden planks, utilized to create a platform, moved beneath his foot causing him to fall. This factor brings the issue within the exception and consequently, the issue may be resolved as a matter of law.
Also unpersuasive is defendant's argument that summary judgment should be denied because claimant was the only witness to the accident and his testimony, as to how the accident happened, is contradicted by other evidence. Where, as here, the injured party is the sole witness to an accident an issue of fact may exist where they provide an inconsistent account of the accident, their account of the accident is contradicted by other evidence, or their credibility is otherwise called into question with regard to the accident (Smigielski v Teachers Ins. & Annuity Assn. of Am., 137 AD3d 676 [1st Dept 2016]). Here, defendant, to show contradictory evidence, points to the New York Presbyterian Hospital EMS record, the Bellevue Hospital record and the record of a visit to a Northwell Health Emergency Department. The statement noted in the EMS record indicates that the device claimant was using failed and injured him. The entry, however, is attributed to a safety officer and therefore, does not qualify as an inconsistent statement offered by claimant. While hearsay statements, such as this, may be offered in opposition as contradictory evidence (Gonzalez v 1225 Ogden Deli Grocery Corp., 158 AD3d 582 [1st Dept 2018]), uncorroborated hearsay evidence is insufficient to rebut a party's entitlement to summary judgment (Rodriguez v Sit, 169 AD3d 406 [1st Dept 2019] [police accident report containing information offered by an anonymous witness]; cf. U.S. Bank Trust, N.A. v Ellis, 181 AD3d 451 [1st Dept 2020] [unauthenticated business record sufficiently corroborated by other evidence to defeat summary judgment]). As defendant has not offered any corroboration of the entry in the EMS record, it constitutes hearsay and does not qualify as evidentiary proof.
The statements in the Bellevue Hospital record and the Northwell Health facility record, while arguably attributed to claimant, also fail to raise an issue of fact as the statements in these records do not contradict claimant's version of how the accident happened. The Bellevue Hospital entry, Provider Note, recites that claimant was "BIB EMS, initially brought to Team 4, then triaged to the trauma slot and immediately attended to by the ED team in the Trauma Slot. 27 yo M, presents s/p power-tool wound to Left thigh. No head strike or LOC. Jumped down two feet, onto his feet. The tool projects small pieces of steel with high pressure, HD stable en route Denies chest pain, SOB, n/v". (Defendant's motion, Ex. E, Bellevue Hospital Record, p.6). The portion of the entry relied on by defendant, "Jumped down two feet, onto his feet", is devoid of any context beyond the general happening of the accident and fails to provide any insight into how the accident occurred. Consequently, it does not represent contradictory evidence. The Northwell Health entry, made during a visit more than two weeks after the accident, simply indicates that claimant accidently sandblasted his left thigh and also is not at odds with claimant's version of how the accident happened.
Inasmuch as defendant has failed to raise a triable issue of fact in response to claimant's prima facie showing, claimant is entitled to summary judgment on the issue of liability on the cause of action under Labor Law § 240 (1).
"Labor Law § 241 (6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation, or demolition work is being performed. To state a claim under § 241 (6), a plaintiff must identify a specific Industrial Code provision mandating compliance with concrete specifications" (Capuano v Tishman Constr. Corp., 98 AD3d 848, 850 [1st Dept 2012] [citation and internal quotation marks omitted). In addition, "there must be proof that the violation of such provision was the proximate cause of any claimed injury" (Shields v General Elec. Co., 3 AD3d 715, 718 [3d Dept 2004] [citation omitted]; Colon v Lehrer, McGovern & Bovis, Inc., 259 AD2d 417 [1st Dept 1999]).
In his amended bill of particulars, claimant identifies four provisions of the Industrial Code as having been violated by defendant: 12 NYCRR §§ 23-1.5; 23-1.30; 23-5.1 (c) (2); 23-5.1 (h). Defendant argues, however, that the Code provisions relied on are general specifications that will not support a claim. While sections 23-1.5 and 23-5.1 (c) of the Industrial Code have been found to be too general to support a cause of action for violating Labor Law § 241  (Kochman v City of New York, 110 AD3d 477 [1st Dept 2013] [section 23-1.5]; Susko v 337 Greenwich LLC, 103 AD3d 434 [1st Dept 2013] [section 23-5.1 [c]), the other two sections have been held to be sufficiently specific to support a claim under this section of the statute (Murphy v Columbia Univ., 4 AD3d 200 [1st Dept 2004] [12 NYCRR 23-1.30]; Toussaint v Port Auth. of New York and New Jersey, 174 AD3d 42 [1st Dept 2019] [section 23-5.1 [h]).
Defendant further argues that the cause of action should be dismissed because the provisions do not apply to the circumstances of this claim. Section 23-1.30 calls for illumination sufficient for safe working conditions and requires that such illumination be no less than 10 foot candles in any area where persons are required to work. Claimant testified that the containment area where he worked was dark and that he could not see when the dust was flying. However, as defendant points out, there is nothing in his testimony, or elsewhere in the evidence, which suggests that his inability to see was a factor in his losing his balance and falling. Even now, claimant does not contend that the lack of illumination was a factor in causing the accident. Inasmuch as defendant has shown, without contradiction, that the lack of illumination was not a proximate cause of the accident, any claim based on this provision of the Industrial Code is subject to dismissal.
The remaining section, 23-5.1 (h), provides that " [e]very scaffold shall be erected and removed under the supervision of a designated person". Here, defendant has not made an initial showing that the provision was complied with and as claimant's description of the accident raises the condition of the scaffold as a cause of his fall, a question of fact exists as to whether a violation of the regulation was a substantial factor in bringing about his injuries. Consequently, summary judgment is not appropriate for a claim under this provision.
Accordingly, it is
ORDERED, that the cause of action under Labor Law § 200 is dismissed and it is further
ORDERED, that claimant is granted summary judgment on the issue of liability with respect to the claim under Labor Law § 240 (1) and it is further
ORDERED, that the motion by defendant to dismiss the cause of action under Labor Law § 241 (6) is granted except with respect to any claim made for violation of 12 NYCRR § 23-5.1 (h).
September 28, 2020
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims