Somereve v. Plaza Construction Corp. ( 2016 )


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  • Order, Supreme Court, New York County (Anil C. Singh, J.), entered January 16, 2014, which granted plaintiffs’ motion for partial summary judgment on the Labor Law § 240 (1) cause of action, affirmed, without costs.

    The injured plaintiff testified that on the day of the alleged accident, he was operating a prime mover, which resembles a mini-forklift, to hoist a load of bricks onto a scaffold 5V2 to 6 feet high. Plaintiff testified that the forks had to be about four to six inches away from the edge of the scaffold as he raised them to place the load on the scaffold; if the forks were too close, plaintiff would not be able to lift the load because the forks would hit the scaffold. Once the forks had cleared the top of the planks, plaintiff would drive forward and rest the load on the scaffold.

    On the day of the alleged accident, two of plaintiff’s colleagues were standing on top of the scaffold, with one of them watching to assure that the forks were properly placed in relation to the height of the scaffold. The colleague verbally or through hand signals informed plaintiff that the forks were clear of the scaffold; thus, plaintiff understood that he would *538be able to safely raise the load and deposit the bricks on the scaffold. However, when the load was approximately five feet off the ground, the prime mover flipped forward and plaintiff was ejected off the back of the machine and onto the concrete floor.

    Defendant’s project superintendent, Charles J. Krammer, whom defendant produced for deposition, did not actually see the alleged accident occur, but rather, arrived at the scene soon afterward. According to Krammer’s testimony, plaintiff stated that the prime mover threw him and that he “flew over the handlebars” of the machine. Further, Krammer testified that although he saw two laborers standing at the site of plaintiff’s alleged accident, neither one of them informed Krammer that they had witnessed the events. Nor did anyone else at the site so inform Krammer.

    Defendant subpoenaed two other people who had been at the site — Luis Caratini, a laborer who plaintiff said had witnessed the alleged accident, and Michael Catalano, a supervisor— intending to take their depositions. But before those depositions could proceed, plaintiffs moved for partial summary judgement on the issue of liability on the Labor Law § 240 (1) claim.

    We agree with the motion court that plaintiff is entitled to summary judgment on his Labor Law § 240 claim. Plaintiff was using the prime mover to hoist a load; if the prime mover pitched forward due to the force of gravity, it failed to offer adequate protection and Labor Law § 240 (1) applies (see Potter v Jay E. Potter Lbr. Co., Inc., 71 AD3d 1565, 1566-1567 [4th Dept 2010]; see also Runner v New York Stock Exch., Inc., 13 NY3d 599, 603-604 [2009]; Penaranda v 4933 Realty, LLC, 118 AD3d 596, 597 [1st Dept 2014]). Similarly, if the accident occurred because either the prime mover or scaffold could not support the weight of the brick load, the accident also resulted from the application of the force of gravity to the load during the hoisting operation, and Labor Law § 240 (1) applies (see Runner, 13 NY3d at 603-604; Bilderback v Agway Petroleum Corp., 185 AD2d 372, 373 [3d Dept 1992], lv dismissed 80 NY2d 971 [1992]).

    Furthermore, despite defendant’s (and the dissent’s) contention otherwise, no further discovery or depositions are necessary on the Labor Law § 240 (1) issue; on the contrary, under any version of the events surrounding the accident, plaintiff is entitled to summary judgment on that claim. Defendant advances two theories in opposition to plaintiff’s summary judgment motion: first, that the prime mover, which plaintiff *539himself loaded, may have been carrying too much weight; and second, that the bricks on the prime mover may have come into contact with the scaffold as plaintiff was raising the load, thus causing the prime mover to tip forward. But even were we to accept the arguments that defendant advances, our decision would be no different.

    Even assuming for the sake of argument that the outstanding depositions shed light on either one of these theories, the testimony would at most touch on the issue of comparative negligence, which is not a defense to a Labor Law § 240 (1) claim (see Zimmer v Chemung County Performing Arts, 65 NY2d 513, 523 [1985]; Stankey v Tishman Constr. Corp. of N.Y., 131 AD3d 430 [1st Dept 2015]). Accordingly, given plaintiffs account of the events surrounding the alleged accident, further testimony would not change the outcome of the decision on plaintiffs’ motion.

    At any rate, defendants have never made any showing that Caratini was available to testify; defendant apparently served the subpoena and the deposition was noticed for July 2013, but it never took place. Even if Caratini were available, defendant offered nothing more than speculation about what his testimony might prove. However, a mere hope that further discovery will provide evidence to defeat summary judgment is insufficient to defeat a summary judgment motion (Flores v City of New York, 66 AD3d 599, 600 [1st Dept 2009]). As for Catalano, he not only provided an affidavit supporting defendant, but also made clear in that affidavit that he did not witness the alleged accident, but arrived on the scene only afterward; thus, further testimony from him would shed no light on the matter.

    The dissent also fails to properly characterize the nature of plaintiff’s alleged accident. Plaintiff did not simply “f[a]ll from the platform of the prime mover situated eight inches off the floor,” as the dissent states. Similarly, plaintiff was not simply “alighting” from the prime mover. The testimony in the record shows instead that the prime mover tipped forward, with a resulting “catapult-type effect” on plaintiff. The prime mover then ejected plaintiff upward, causing him to hit the ductwork or the ceiling before he was “slammed” onto the concrete floor of the site. Certainly, it is appropriate to characterize this sequence of events as a gravity-related accident (see Potter, 71 AD3d at 1566).

    Likewise, despite our dissenting colleague’s suggestion otherwise, there is no viable argument that plaintiff was the sole proximate cause of this accident. The record presents no evidence that plaintiff failed or refused to use an available *540safety device or that he disregarded a supervisor’s instructions regarding use of the prime mover, nor does the dissent point to any. Rather, the record establishes simply that the prime mover pitched forward when plaintiff raised the forks (see Amante v Pavarini McGovern, Inc., 127 AD3d 516 [1st Dept 2015]; Nacewicz v Roman Catholic Church of the Holy Cross, 105 AD3d 402, 402-403 [1st Dept 2013]; see also Vasquez-Roldan v Two Little Red Hens, Ltd., 129 AD3d 828, 830 [2d Dept 2015]).

    What is more, “[t]he Labor Law does not require a plaintiff to have acted in a manner that is completely free from negligence” (Kielar v Metropolitan Museum of Art, 55 AD3d 456, 458 [1st Dept 2008] [internal quotation marks omitted]). On the contrary, that plaintiff may have negligently lowered the pallet, as the dissent posits, makes no possible difference to the outcome here, as “[n]egligence, if any, of the injured worker is of no consequence” (Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]). Rather, the law is clear that “if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it” (Kielar, 55 AD3d at 458 [internal quotation marks omitted]; see Orellano v 29 E. 37th St. Realty Corp., 292 AD2d 289, 291 [1st Dept 2002]). Here, the failure to provide a proper hoisting device to protect plaintiff violated Labor Law § 240 (1).

    Concur — Sweeny, Moskowitz and Gische, JJ.

Document Info

Docket Number: 15085 150136-12

Judges: Tom, Andrias, Sweeny, Moskowitz, Gische

Filed Date: 2/18/2016

Precedential Status: Precedential

Modified Date: 11/1/2024