Defendant American Real Estate Holdings, LP (American), an out-of-possession owner, leased the building where plaintiff’s accident occurred to defendant Levitz Furniture Corporation of Queens (Levitz). The building consisted of a furniture showroom, an office and warehouse space. Prior to plaintiff’s accident, Levitz had sold large furniture shelving rack unit, as well as other similar units, to defendant and third-party plaintiff International Storage Systems, Inc. (International). International was in the business of buying, dismantling, selling and then reinstalling large furniture rack systems. Pursuant to an oral agreement, which is reflected in various invoices and purchase orders, International then hired plaintiff’s employer, third-party and second-third party defendant Heatley Installations (Heatley), to disassemble the furniture rack system and transport it to another location.
A Lawyer said that, plaintiff testified that, just prior to his accident he was in the process of disassembling the free-standing furniture rack system while standing on a particle-board deck located on the third level of the rack. As plaintiff was removing beams from the level above, and dropping them onto the deck, the deck broke, causing him to fall and sustain brain injuries.
At the time of his accident, the Staten Island plaintiff was not utilizing an available order selector provided for use in retrieving furniture at higher levels. An order selector is a piece of equipment resembling a forklift, which has a platform upon which a worker can stand. In addition, although he was wearing the safety belt provided to him by his employer, plaintiff had not properly tethered to the order selector, despite having been directed to do so less than one hour before his accident.
Plaintiff then filed an action to recover damages against the defendants, for personal injuries he sustained.
Defendants American and Levitz move, for summary judgment dismissing plaintiff complaint as against them and granting indemnity as against defendant and third-party plaintiff International and third-party defendant and second-third party defendant Heatley.
Plaintiff cross-moves, for an order (1) granting summary judgment in his favor on his Labor Law § 240 (1) claim as against defendants American, Levitz and International; (2) granting a Special Trial Preference in his favor; and (3) directing that plaintiff be entitled to a lower burden of proof due to his cognitive injuries.
Defendant and third-party plaintiff International moves, pursuant to CPLR 3212, for summary judgment dismissing plaintiff’s complaint, as well as all cross claims against it.
Third-party defendant and second-third party defendant Heatley also moves, for summary judgment dismissing the third-party and second third-party actions against it in accordance with Section 23 of the Massachusetts Workers’ Compensation Law which bars all third-party actions against the employer in common law; or, in the alternative, in the absence of a finding of “grave injury,” in accordance with Section 11 of the New York Workers’ Compensation Law. Heatley also moves for summary judgment on the ground that plaintiff’s actions were the sole proximate cause of his injuries.
The issue in this case is whether plaintiff is entitled to summary judgment to recover damages from the defendants, for personal injuries he sustained.
The Court in resolving the motion said that, 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 eliminate any material issues of fact from the case. The burden then shifts to the motion’s opponent to present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact.
Labor Law § 240 (1), also known as the Scaffold Law, provides, in relevant part:
All contractors and owners and their agents in the erection, demolition, repairing, altering, painting … shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists … and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.
Labor Law § 240 (1) was designed to prevent those types of accidents in which the scaffold or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person. To prevail on a section 240 (1) claim, the plaintiff must show that the statute was violated and that this violation was a proximate cause of the plaintiff’s injuries.
Pursuant to a stipulation of discontinuance, plaintiff discontinued his claims as against defendant Levitz. As such, Levitz’s motion to dismiss plaintiff’s claims as against it is denied as moot.
Initially, it should be noted that the furniture rack from which plaintiff fell was a “structure” within the meaning of the Labor Law, as a structure is viewed as `any production or piece of work artificially built up or composed of parts joined together in some definite manner’. In addition, since the furniture rack is to be considered a “structure” for Labor Law purposes, and because plaintiff was directed to dismantle it, plaintiff was engaged in demolition work covered by the Labor Law. Further, testimony in the record indicates that the furniture rack was being used by plaintiff, as well as other workers, as the functional equivalent of a scaffold at the time of plaintiff’s accident.
American moves to dismiss plaintiff’s claims against it on the ground that it was an out-of-possession owner who lacked notice or knowledge of the work being performed at the site.
The Court said that, it is well settled that, to recover under Labor Law §§ 200, 240 and 241 as a member of the special class for whose protection these provisions were adopted, a plaintiff must establish two criteria: (1) that he was permitted or suffered to perform work on a structure and, (2) that he was hired by the owner, the general contractor or an agent of the owner or general contractor
In order for the Labor Law to be applied to an out-of-possession owner, there must be a connection between the defendant and the worker, whether by a lease agreement or grant of an easement, or other property interest.
In the case at bar, a review of the record reveals no proof that defendant American contracted for the work at issue or that it had any notice whatsoever that plaintiff was on its premises until after the accident. In fact, under a triple net lease between American and Levitz, Levitz was responsible for all structural and non-structural repairs, maintenance and costs. American did not employ anyone to supervise any work on the property. As no nexus has been shown to have existed between American and plaintiff in this case, American cannot be charged with the duty of providing the safe working conditions contemplated by Labor Law §§ 240 (1) and 241 (6). Thus, American is entitled to summary judgment dismissing plaintiffs section 240 (1) and 241 (6) claims as against it.
However, as evidence in the record indicates that defendant International not only owned the furniture racks at issue at the time of plaintiffs accident, but that it also contracted with third-party defendant Heatley for their disassembly and removal, International is to be considered an owner of the structure within the meaning of the Labor Law.
Defendant International asserts that plaintiffs Labor Law § 240 (1) claim must be dismissed as against it, as plaintiff’s own negligent actions in not wearing his safety harness, despite being told by his employer that he had to be tied off in order to work, as the sole proximate cause of his head injuries. Where plaintiffs own actions are the sole proximate cause of the accident, there can be no liability under Labor Law § 240 (1).
Here, the Court said that, even if plaintiff was negligent for his failure to properly tether his safety harness, utilize the order picker, or for dropping beams onto the decking, the testimony indicates that such alleged failures were not the sole proximate cause of his head injuries in light of the fact that the particle board shelving that plaintiff was utilizing as a scaffold collapsed. Where the owner or contractor fails to provide adequate safety devices to protect workers from elevation-related injuries and that failure is a cause of plaintiff’s injury, the negligence, if any, of the injured worker is of no consequence. In other words, even if the plaintiff was partially at fault, a worker’s contributory negligence is not a defense to a Labor Law § 240 (1) claim. Neither comparative fault nor assumption of the risk is a defense to a Labor Law § 240 (1) cause of action. Thus, defendant International is not entitled to summary judgment dismissing plaintiff’s Labor Law § 240 (1) claim against it, however plaintiff is entitled to summary judgment on the issue of liability under Labor Law § 240 (1) as against defendant International.
With regard to the claim for common-law indemnification, defendants American and Levitz move for summary judgment in their favor on their cross claims for common-law indemnification as against International and Heatley. In addition, Heatley moves for summary judgment dismissing International’s third-party action for indemnification on the ground that, under Massachusetts Workers’ Compensation Law § 23, all third-party actions against the employer in common law are barred.
The Court in resolving the claim of the defendants said that, to establish a claim for common-law indemnification, the one seeking indemnity must prove not only that it was not guilty of any negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident. In the absence of any negligence, a claim for common-law indemnity may be established upon a showing that the proposed indemnitor had the authority to direct, supervise, and control the work giving rise to the injury.
Here, defendants American and Levitz have not been shown to be guilty of any negligence. In addition, although vicariously liable for plaintiff’s brain injuries under Labor Law § 240 (1), such liability is not tantamount to negligence. Moreover, defendant International did not exercise a degree of control over plaintiffs work so as to predicate liability based on common-law negligence. In fact, a review of the record indicates that plaintiff’s work was supervised solely by his employer, Heatley.
The Court held that, general supervisory authority is insufficient to constitute supervisory control; it must be demonstrated that the contractor controlled the manner in which the plaintiff performed his or her work, i.e., how the injury-producing work was performed.
Thus, defendants American and Levitz are not entitled to summary judgment in their favor on their cross claim for common-law indemnification as against defendant and third-party plaintiff International. In addition, International is entitled to summary judgment dismissing American and Levitz’s cross claim for indemnification against it.
Moving forward to plaintiff’s cross-motion for lesser burden of proof, the Court said that, a plaintiff who suffers amnesia as a result of a defendant’s acts is not held to as high a degree of proof in establishing his right to recover for head injury as a plaintiff who can describe the events. “It is only where the memory loss has effectively prevented a plaintiff from describing the occurrence that invocation of the rule of Schechter v. Klanfer is warranted”.
In the case of Schechter v. Klanfer (supra), wherein the plaintiff, who was injured while operating a motorboat, was unable to recall the events of his accident, the Court noted:
The danger is, of course, that amnesia is easily feigned. The dangers may be ameliorated. Plaintiff has the burden of proof on the issue of amnesia as on other issues. A jury should be instructed that before the lesser burden of persuasion is applied, because of the danger of shamming, they must be satisfied that the evidence of amnesia is clear and convincing, supported by the objective nature and extent of any other physical injuries sustained, and that the amnesia was clearly a result of the accident.
In the absence of expert evidence establishing a loss of memory and its causal relationship to defendant’s fault, the jury may not consider the question or apply a lesser degree of proof in evaluating plaintiff’s claim. On this record, it is clear that plaintiff, although he suffers from a memory defect caused by his accident, is not entitled to application of this rule. When plaintiff was asked if, other than taking medication, there was any reason that he was not able to testify in his deposition, plaintiff replied in the negative. Thus, as in this case, where the parties are on equal footing insofar as accessibility to the facts there is no need to afford preferential treatment.
The Court in resolving plaintiff’s cross-motion for trial preference, stated CPLR 3403 (a) (3) allows for a trial preference in an action in which the interests of justice will be served by an early trial. Under the circumstances of this case, and in light of evidence of plaintiff’s indigency, plaintiff’s application for a trial preference is granted in the interests of justice. Plaintiff testified that he currently resides in a homeless shelter in Chicago, which provides food to him. Plaintiff, who has not worked since his accident, also testified that he does not know if he can care for himself. Plaintiff also stated that he receives no workers’ compensation and does not have a bank account.
In addition, in his medical report, Dr. Schuster concurs that, as a result of plaintiff’s brain injury, plaintiff is indigent and existing in a city shelter. Kim Allen, the manager of the facility where plaintiff currently resides, stated that at the time that plaintiff was referred to the facility, plaintiff had been wandering the streets in Chicago for several days. She also maintained that, other than cashing his Social Security Disability checks, plaintiff does not manage his own finances. Thus, plaintiff is entitled to trial preference in this action.
Hence, in view of the foregoing, the Court ordered that the part of American’s motion, for summary judgment dismissing plaintiff’s complaint against it is granted; and the complaint is severed and dismissed as to this defendant.; and it is further ordered that defendant Levitz motion, for summary judgment dismissing plaintiff’s complaint against it is denied as moot; and it is further ordered defendant and third-party plaintiff International’s motion, for summary judgment dismissing plaintiff’s Labor Law §§ 240 (1) and 241 (6) claims predicated on violations of Industrial Code 12 NYCRR §§ 23-1.11 (a), 23-1.22 (c) (1) and 23-5.1 (c) (1), (f) and (g) as against it are denied; and it is further ordered that the parts of International’s motion, pursuant to CPLR 3212, for summary judgment dismissing plaintiff’s common-law negligence and Labor Law § 200 claims, as well as American and Levitz’s cross claims for indemnification as against it, are granted; and it is further the parts of plaintiff’s cross motion, for summary judgment in his favor on his Labor Law § 240 (1) claim as against defendants American and Levitz and directing that plaintiff be entitled to a lower burden of proof due to his cognitive injuries are denied; and it is further ordered that plaintiff’s cross motion, for summary judgment in his favor on his Labor Law § 240 (1) claim as against International, and granting a Special Trial Preference in his favor are granted.