DOUGLAS v. Empire State Carpenters, Defendant. (2022)

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about August 10, 2021, which to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment as to liability on his Labor Law §§ 240(1) and 241(6) claims against defendants Tishman Construction Corporation and BOP NE LLC, sued herein as BOP NE Tower Lessee LLC (BOP, and together with Tishman, defendants), and granted defendants’ cross motion for leave to amend their answers to assert an affirmative defense based on collateral estoppel and thereupon dismissed plaintiff's claims that his injuries included traumatic brain injury and cognitive disorder, unanimously modified, on the law, to deny plaintiff's motion for summary judgment on liability on his Labor Law § 241(6) claim, and otherwise affirmed, without costs.

Plaintiff was injured on a construction project when he was struck by a wooden door form.  At the time, plaintiff worked as a lather for Navillus Contracting, a concrete subcontractor on the project.

Upon a search of the record (CPLR 3212[b]) the motion court correctly found that defendants BOP and Tishman are both subject to liability under Labor Law §§ 240(1) and 241(6) (see Santos v. Condo 124 LLC, 161 A.D.3d 650, 653, 78 N.Y.S.3d 113 [1st Dept. 2018]).  BOP admitted in its answer, it was a lessee of the property where the construction was taking place, and therefore is deemed to have been property owner for purposes of liability under article 10 of the Labor Law (see Kane v. Coundorous, 293 A.D.2d 309, 311, 739 N.Y.S.2d 711 [1st Dept. 2002]).  Tishman, the construction manager of the work site, hired Navillus to complete the concrete work under a contract that set forth Tishman's safety guidelines.  Thus, Tishman had the authority to exercise control over the work that brought about plaintiff's injuries, subjecting it to vicarious liability as an agent of the property owner (see Walls v. Turner Constr. Co., 4 N.Y.3d 861, 863–864, 798 N.Y.S.2d 351, 831 N.E.2d 408 [2005];  Badzio v. East 68th St. Tenants Corp., 200 A.D.3d 591, 592, 161 N.Y.S.3d 32 [1st Dept. 2021];  Tuccillo v. Bovis Lend Lease, Inc., 101 A.D.3d 625, 628, 958 N.Y.S.2d 86 [1st Dept. 2012]).

Plaintiff's testimony, that the wooden door form (15 to 20 feet high and 8 feet wide) which Navillus carpenters had leaned against the rebar cage, fell and struck him, causing him to fall off a ledge around three feet high, established prima facie entitlement to summary judgment on his Labor Law § 240(1) claim against defendants (see Viruet v. Purvis Holdings LLC, 198 A.D.3d 587, 587, 156 N.Y.S.3d 25 [1st Dept. 2021]).  In opposition, defendants failed to raise a triable issue of fact as to whether plaintiff's conduct was the sole proximate cause of the accident, as a statutory violation – namely, the failure to secure the door form with an adequate safety device – was a proximate cause of plaintiff's injury (see Blake v. Neighborhood Hous. Servs. of N.Y. City, Inc., 1 N.Y.3d 280, 290, 771 N.Y.S.2d 484, 803 N.E.2d 757 [2003]).

Supreme Court should have denied plaintiff's motion for summary judgment with respect to Labor Law § 241(6), which was based on an expert affidavit submitted in reply.  The affidavit, which constituted the first time plaintiff asserted violations of 12 NYCRR 23–2.2(a) and (b), was not addressed to the arguments made in defendants’ opposition, and instead sought to assert new grounds for the motion (see Keneally v. 400 Fifth Realty LLC, 110 A.D.3d 624, 624, 973 N.Y.S.2d 632 [1st Dept. 2013]).

Plaintiff is collaterally estopped from litigating his allegation that he sustained traumatic brain injury and cognitive disorder, since the allegation was previously raised and conclusively decided against him in a Workers’ Compensation Board proceeding, where plaintiff had a full and fair opportunity to litigate the issue (see Vega v. Metropolitan Transp. Auth., 133 A.D.3d 518, 519, 21 N.Y.S.3d 19 [1st Dept. 2015]).