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Levi ESPINAL, Plaintiff, v. 510 FIFTH AVENUE, LLC, 510 Holdings LLC, Elie Tahari, Ltd., Elie Tahari, Wallack Management Co., Inc., Tahl-Propp Equities LLC, JP Morgan Chase & Co., JP Morgan Chase, JP Morgan Chase Bank, N.A. Richter & Ratner Contracting Corp., Defendants. Richter & Ratner Contracting Corp., Third-Party Plaintiff, Arma Scrap Metal Co., Inc., Third-Party Defendant.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion:
Notice of Motion/Cross Motion/Order to Show Cause and Affidavits (Affirmations) Annexed 1
Opposing Affidavits (Affirmations) 2a, 2b, 2c
Reply Affidavits (Affirmations) 3
Upon the foregoing papers, plaintiff, Levi Espinal, moves for an order, pursuant to CPLR § 3212, granting summary judgment in his favor as to those claims arising under Labor Law § 240(1) against defendants 510 Fifth Avenue LLC, 510 Holdings, LLC, Elie Tahari, LTD., Elie Tahari, Wallack Management Co., Inc., and Richter & Ratner Contracting Corp., together with such other and further relief as this Court deems just and proper. Defendants oppose the motion.1
Background & Procedural History
This is an action to recover monetary damages for personal injuries allegedly sustained by the plaintiff, Levi Espinal, on January 11, 2008. Plaintiff commenced this action on January 11, 2011, claiming violations of Labor Law §§ 200, 240(1), and 241(6). Issue was joined on January 10, 2012. The parties engaged in discovery and plaintiff filed the note of issue and certificate of readiness on October 25, 2017.
On January 11, 2011, construction was taking place at 510 Fifth Avenue, New York, New York (the premises). It is a 6-story building with 5 floors.2 The premises is owned by defendant 510 Fifth Avenue, LLC (510). Defendant Elie Tahari, LTD (Tahari) occupied the first, second and fourth floors. Defendant Wallack Management Co., Inc. (Wallack) was the managing agent for the premises.
Tahari contracted with defendant and third-party plaintiff, Richter and Ratner Contracting Corp. (R & R), to renovate the fourth floor of the premises. This renovation included the removal of a vertical ventilation shaft, or heating, ventilation and air conditioning (HVAC) duct, which extended from the fourth floor down to the basement. R & R subcontracted with Integrated HVAC System & Services Inc. (Integrated) to demolish and cap the HVAC duct work. Integrated subcontracted third-party defendant, Arma Scrap Metal Co., Inc. (Arma), plaintiff's employer, to demolish the HVAC duct.
On January 11, 2008, plaintiff and his coworkers were removing the HVAC duct. Plaintiff allegedly sustained personal injuries when he fell after having been lowered into the HVAC duct at the second floor. The HVAC duct was approximately “1 square meter in diameter” (Notice of Motion, Affidavit of Kathleen Hopkins at ¶ 7; see also Notice of Motion, Exhibit I, Espinal EBT p 100, ll 17-23). A Sawzall saw 3 was then lowered into the HVAC duct which plaintiff used to demolish it (id. at p 99, l 2). He cut pieces of the HVAC duct and threw the pieces down the vent, where they were collected and discarded by his coworkers (id. at p 100 l 3).
Plaintiff wore a safety harness around his groin and attached a D-clamp to the back of the harness. A chain block was then attached to the harness by D-clamp (see Reply, Exhibit A, Chain Block Exemplar). This chain block was rigged to a structural beam on the ceiling or roof of the premises. An Arma coworker lifted plaintiff into the HVAC duct and then lowered plaintiff down the HVAC duct using the chain block. Plaintiff testified that he shouted up to his coworker operating the chain block to take a break, when needed. He took regular breaks due to the pain in his groin from hanging by the safety harness. “He would raise me and I would get ten, twelve minutes break, and then I would get back and he would bring me down again” (see Notice of Motion, Exhibit I, Espinal EBT p 92, ll 13-16).
Plaintiff worked on the demolition of the HVAC duct the day before the accident and the morning of the accident. The accident occurred after lunch. Plaintiff testified that when work resumed after lunch, he was lowered down into the HVAC duct to cut it with the Sawzall saw and he then took a break. During the break, plaintiff kept the harness on, but the operator of the chain block removed the chain block from the harness (id. at p 124, ll 13-25; p 125, ll 20-22). After the break, plaintiff's coworker, the chain block operator, hooked his harness to the chain block and plaintiff was lifted into the HVAC duct. “Plaintiff testified that within two seconds he was lifted into the duct by his coworker and then asked the same coworker to hand him the Sawzall saw” (id. at p 130, ll 7-9). “When, as he was lowering me, I said let me borrow the Sawzall, and I didn't know what happened, that is when I fell” (id. at p 130, ll 17-20). “When he started lowering me that is when I felt it get untied and I just felt, and I tried to grab onto something, but I couldn't” (id. at p 126, l 25; p 127, ll 2-4). Plaintiff does not know whether the chain block broke but stated that the harness did not break (see id. at p 189, ll 4-10). Plaintiff's next memory was waking up in the hospital (see id. at p 194, ll 9-17).
The chain block and the harness were owned [and operated] by Arma employees, plaintiff's employer (id. at p 80, ll 15-16). Plaintiff testified that he inspected the harness and “it was in perfect condition” (id. at p 104, ll 15-25). This same hoisting system and harness were used by plaintiff the day before and the morning of the accident (id. at p 104, ll 5-14).
Plaintiff provided an affidavit from Kathleen Hopkins, Certified Site Safety Manager who has experience in safety, health and environmental management and site experience in the construction industry (see Notice of Motion, Affidavit of Kathleen Hopkins at ¶ 1). Ms. Hopkins opines that plaintiff was involved in demolition (id. at ¶ 13). Hopkins further opines that
to a reasonable degree of professional safety certainty, that the Defendants failed to furnish or erect, or cause to be furnished or erected safe and proper scaffolding, safe and proper hoist, slings, hangers, irons, ropes and other devices that were so constructed, placed and operated as to give proper protection to the Plaintiff. The Plaintiff was not provided with a work site that was so equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the Plaintiff
(id. at ¶ 14).
Specifically, a safety harness should only be used to safeguard a fall, not to hoist a person. “[A] safety harness is never to be used after the first stress, or first load, has been put on a harness. The harness is to be discarded, disposed of and never used a second time” (id. at 10). Further, “[a] block chain is never to be used to hoist people. A chain is not manufactured for such a purpose. Chains are also never to be used in lieu of wire rope ․ with a breaking strength of not less than 4,000 pounds. Rather, the appropriate safety device is a Miller DuraHoist DH-1 Confined Space Retrieval System” (id. At 11). Lastly, the defendant failed to provide plaintiff with a “tail line (lanyard”) or a lifeline. When hoisting a person, a life line is to be provided and attached to the lanyard that is attached to the D-ring on a safety harness as fall protection in case the lifting line fails ․ The line must be anchored to another anchorage point other than the hosting line.” (id. at 12).
According to Ms. Hopkins, the Plaintiff falling from the 2nd floor level down to the basement level at the end of the HVAC duct resulting in the plaintiff's injuries was most certainly a gravity-based accident (see Notice of Motion, Affidavit of Kathleen Hopkins at ¶ 16). Ms. Hopkins opined, to a reasonable degree of professional safety certainty, that plaintiff's injuries were caused by defendants' negligence and their violations of Labor Law § 240(1) which “were the substantial and direct proximate causes of the Plaintiff's accident and injuries” (id. at ¶ 19).
Plaintiff contends that the defendant failed to provide plaintiff with a proper hoisting mechanism, a proper suspension device or a lifeline which would have prevented plaintiff's fall from the fourth floor to the basement floor. Plaintiff avers that the failure to provide the proper hoisting, suspension and safety device was the proximate cause of plaintiff's injuries and he is, therefore, entitled to summary judgment as a matter of law under Labor Law § 240(1).
Defendants contend that there is no evidence adduced as to the purported failure of a safety device under Labor Law § 240(1), and therefore, plaintiff fails to make a prima facie showing of entitlement to summary judgment. Defendant argues that plaintiff's testimony fails to specify how he fell or that the accident occurred due to a specific failure of a safety device. Defendant further avers that “the plaintiff does not know what caused him to fall and none of the other deposed parties in this case witnessed the happening of the subject accident” (Affirmation in Opposition, 2b, ¶ 5; see also Affirmation in Opposition, 2, ¶ 4-5). Defendant rejects plaintiff's expert's assertion that the accident occurred when the clip attaching the plaintiff's safety harness to the chain broke resulting in plaintiff falling. To the contrary, defendant relies on plaintiff's testimony that he inspected the chain block and the harness, and they were both functioning properly; he did not see the chain block device fail.
Defendant Wallack is the property management company. Robert Schenk, a property manager for Wallack, testified that Wallack was neither the owner of the premises nor the general contractor of the construction. Further, Wallack did not direct or control plaintiff's work. Schenk went to the premises to collect rent, but he did not monitor the construction work (Affirmation in Opposition, 2c, Exhibit F, p 18-21). Therefore, defendants contend, Wallack is not a proper Labor Law § 240(1) defendant.
“[T]he 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 absence of any material issues of fact” (Stonehill Capital Mgmt., LLC v. Bank of the W., 28 NY3d 439, 68 N.E.3d 683 , citing Alvarez v. Prospect Hospital, 68 NY2d 320, 501 N.E.2d 572  ). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Chiara v. Town of New Castle, 126 AD3d 111, 2 N.Y.S.3d 132 [2 Dept., 2015], citing Vega v. Restani Const. Corp., 18 NY3d 499, 965 N.E.2d 240  ). Once a moving party has made a prima facie showing of its entitlement to summary judgment, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Fairlane Fin. Corp. v. Longspaugh, 144 AD3d 858, 41 N.Y.S.3d 284 [2 Dept., 2016], citing Alvarez v. Prospect Hospital, 68 NY2d 320, supra; see also Hoover v. New Holland N. Am., Inc., 23 NY3d 41, 11 N.E.3d 693  ).
Labor Law § 240
Plaintiff moves for summary judgment as to his claims brought pursuant to Labor Law § 240(1). Labor Law § 240(1) is designed to protect employees on construction sites from elevation-related risks. This section provides that:
All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, 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.
“To prevail on a Labor Law § 240(1) cause of action, a plaintiff must establish that the statute was violated and that the violation was a proximate cause of his or her injuries” (Allan v. DHL Express [USA], Inc., 99 AD3d 828, 833; see Blake v. Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 287).” (Lorde v. Margaret Tietz Nursing & Rehab. Ctr., 162 AD3d 878, ––– N.Y.S.3d –––– [2 Dept., 2018] ).
The Appellate Division, Second Department recently held in Carlton v. City of New York, that
“Labor Law § 240(1) imposes a nondelegable duty ․ to provide safety devices necessary to protect workers from risks inherent in elevated work sites”․“[T]he protections of Labor Law § 240(1) ‘do not encompass any and all perils that may be connected in some tangential way with the effects of gravity’ ”. 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”. “The single decisive question in determining whether Labor Law § 240(1) is applicable is whether the plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” [internal citations omitted] ).
(Carlton v. City of New York, 161 AD3d 930, ––– N.Y.S.3d –––– [2 Dept., 2018] ).
“Although sections 240 and 241 now make nondelegable the duty of an owner or general contractor to conform to the requirement of those sections the duties themselves may in fact be delegated When the work giving rise to these duties has been delegated to a third party, that third party then obtains the concomitant authority to supervise and control that work and becomes a statutory “agent” of the owner or general contractor. Only upon obtaining the authority to supervise and control does the third party fall within the class of those having nondelegable liability as an “agent” under sections 240 and 241 [internal citations omitted]” (Russin v. Louis N. Picciano & Son, 54 NY2d 311, 429 N.E.2d 805  ).
Here, it is undisputed that plaintiff was working at a significant elevation differential at the worksite; he was suspended inside an HVAC duct at the second-floor level, which continued down to the basement of the premises. It is also undisputed that the plaintiff was lifted into the HVAC duct by an employee and was then lowered down the duct hanging from a harness, D-clamp and a block chain that was over an I-beam in the ceiling. Plaintiff took periodic breaks where he was hoisted back up due to the pain in his groin from the harness. So, plaintiff was performing a task that created an elevation-related risk of the kind that the safety devices listed in Labor Law § 240(1) protect against; scaffolding, hoists, stays, slings, hangers, blocks, pulleys, braces, irons, ropes. At issue is whether the plaintiff was provided adequate protection against a risk arising from this physically significant elevation differential.
The plaintiff made prima facie showing of his entitlement to a judgment as a matter of law on the issue of liability as to defendants 510 Fifth Avenue LLC, 510 Holdings, LLC, Elie Tahari, LTD., Elie Tahari and Richter & Ratner Contracting Corp.'s violation of Labor Law § 240(1), through the submission of his deposition testimony. The testimony demonstrated that no safety devices were present on the site for the work being performed, and that this failure was the proximate cause of the injured plaintiff's injuries. Plaintiff testified that after being lifted into the HVAC duct and asking for the Sawzall saw to be lowered to him, he “untied”.
Plaintiff's expert, Hopkins, succinctly stated that a safety harness should only be used to safeguard a fall, not to hoist a person, as it was used in this case. Hopkins noted that a safety harness is never to be used after the first stress has been put on a harness; the harness is to be discarded, disposed of and never used a second time. Plaintiff's testimony confirms that he used the very same harness for a day and a half in the same manner as at the time of the accident. Hopkins further stated that a block chain is never to be used to hoist a person as was the case with plaintiff. “Rather, the appropriate safety device is a Miller DuraHoist DH-1 Confined Space Retrieval System” (see Notice of Motion, Affidavit of Kathleen Hopkins at 11). Plaintiff's expert additionally stated that “when hoisting a person, a life line is to be provided and attached to the lanyard that is attached to the D-ring on a safety harness as fall protection in case the lifting line fails ․ The line must be anchored to another anchorage point other than the hosting line.” (id. at 12). Defendants did not provide these safety devices to the plaintiff.
In opposition, defendant failed to raise a question of fact. Defendants avers that the plaintiff does not know how he fell and there were no witnesses to the accident, therefore plaintiff cannot meet his prima facia burden. They further contend that this Court should not consider the plaintiff's expert affidavit because the expert speculates that the equipment failed. Defendant asserts that this is speculation because the plaintiff testified that the block chain was working, the harness was in perfect condition and, again, because there are no witnesses to the accident.
Although defendant contends that plaintiff failed to establish why he fell, plaintiff testified that he “untied”. This Court rejects the defendants' argument that plaintiff could not specify exactly what caused him to fall and that since the accident was not witnessed, because he was in the HVAC duct, plaintiff cannot meet his burden. “The fact that the accident was not witnessed does not preclude an award of summary judgment to the plaintiff” (Gallagher v. Resnick, 107 AD3d 942, 968 N.Y.S.2d 151 [2 Dept., 2013] ). The Appellate Division, Second Department has held that
The fact that the accident was unwitnessed does not preclude granting summary judgment to the plaintiff (see Klein v. City of New York, 89 NY2d at 834—835, 652 N.Y.S.2d 723, 675 N.E.2d 458; Barr v. 157 5 Ave., LLC, 60 AD3d 796, 797, 875 N.Y.S.2d 228; Rivera v. Dafna Constr. Co., Ltd., 27 AD3d 545, 813 N.Y.S.2d 109). In opposition, the defendants failed to raise a triable issue of fact. The defendants did not offer any evidence, other than mere speculation, that undermined the prima facie case or presented a bona fide issue regarding the plaintiff's credibility as to a material fact (see Klein v. City of New York, 89 NY2d at 835, 652 N.Y.S.2d 723, 675 N.E.2d 458; Barr v. 157 5 Ave., LLC, 60 AD3d at 798, 875 N.Y.S.2d 228; Rivera v. Dafna Constr. Co., Ltd., 27 AD3d at 545—546, 813 N.Y.S.2d 109).
(Inga v. EBS N. Hills, LLC, 69 AD3d 568, 893 N.Y.S.2d 562 [2 Dept., 2010]; see also Gallagher v. Resnick, 107 AD3d 942, supra ).
In the same way, the defendants request that this Court disregard plaintiff's expert's affidavit, alleging that the expert assumed a fact for which there is no evidence; specifically, that the accident occurred when the clip attaching the plaintiff's safety harness to the chain broke resulting in plaintiff falling. This court reiterates that the plaintiff clearly testified that it felt like he untied.
Even assuming this Court disregards the expert affidavit as defendant requests, that does not refute plaintiff's deposition testimony which demonstrates that no safety devices were provided on the worksite. There was a complete failure by the defendants to comply with Labor Law § 240(1). The fact that the plaintiff wore a safety harness does not satisfy the requirement that a safety device be provided here, since the safety harness was used as a means of attaching the plaintiff to the block chain which was used as a hoisting device. Plaintiff was performing a task that involved a gravity related hazard the defendants failed to provide any safety device; and the plaintiff was injured because of a fall from a height which is an activity protected by Labor Law § 240(1).
However, plaintiff failed to make prima facie showing that defendant Wallack became a statutory agent of the owner, and therefore owed a duty to plaintiff. Schenk, an employee of Wallack testified that Wallack was hired by Tahari to be the managing agent for 510. Schenk testified that he did not monitor the construction work at the premises and he was not familiar with Arma. Schenk further testified that he was no involved with negotiations or drafting of contracts with the subcontractors. Schenk only learned of plaintiff's accident when he received an incident report from R & R.
Accordingly, plaintiff's motion for summary judgment pursuant to Labor Law § 240(1) on the issue of liability is granted as to defendants 510 Fifth Avenue LLC, 510 Holdings, LLC, Elie Tahari, LTD., Elie Tahari, and Richter & Ratner Contracting Corp. Plaintiff established that he was subjected to a gravity related hazard; that defendants failed to provide a safety device; and that he was injured because of a fall from a height which is an activity protected by Labor Law § 240(1). Defendant failed to raise a triable issue of fact. Plaintiff's motion for summary judgment pursuant to Labor Law § 240(1) on the issue of liability is denied as to Wallack Management Co., Inc. Anything not decided herein, is denied.
The foregoing constitutes the decision and order of this Court.
1. At the time of oral argument, defendants 510 Fifth Avenue LLC, 510 Holdings, LLC, Elie Tahari, LTD., Elie Tahari, Wallack Management Co., Inc., and Richter & Ratner Contracting Corp. were all represented by Baxter Smith & Shapiro P.C.
2. The second floor has a double high ceiling.
3. According to Wikipedia (https://en.wikipedia.org/wiki/Reciprocating_saw, accessed on June 27, 2018), “a reciprocating saw is a type of machine-powered saw in which the cutting action is achieved through a push-and-pull (“reciprocating”) motion of the blade. The term is commonly applied to a type of saw used in construction and demolition work. This type of saw, also known as a hognose, recip saw, or Sawzall (a trademark of the Milwaukee Electric Tool Company) has a large blade resembling that of a jigsaw and a handle oriented to allow the saw to be used comfortably on vertical surfaces. The typical design of this saw has a foot at the base of the blade, similar to that of a jigsaw. The user holds or rests this foot on the surface being cut so that the tendency of the blade to push away from or pull towards the cut as the blade travels through its movement can be countered.”
Lara J. Genovesi, J.
Response sent, thank you
Docket No: 759/2011
Decided: July 30, 2018
Court: Supreme Court, Kings County, New York.
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