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Moleon v Kreisler Borg Florman General
Construction Company, Inc.
2003 NY Slip Op 30013(U)
September 22, 2003
Supreme Court, New York County
Docket Number: _300121/9782
Judge: Michael D. Stallman
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Index No.:
Plaintiff,                                                                                                Decision and Order
- against -
Kreisler Borg Florman General Construction Company, Inc.,
Century Contracting Corp., the City of New York,
New York City Health and Hospitals Corporation, the
City of New York Department of Design and Construction,
The Administration for Childrens Services,
Third-party Plaintiff,                                                                                    Index No.:
- against -
AMG Construction, Inc., and Utica First Insurance Company,
In this personal injury action arising from a workplace accident, third-party defendant Utica
First Insurance Company (Utica) moved for summary judgment for a declaration that it is not
obligated to indemnify third-party plaintiff Sentry Contracting, Inc. (Sentry), or, in the alternative,
for an order severing Sentry's third-party action (motion sequence number 007). That motion is
withdrawn as moot.                                                                                        letter of            counsel dated April 8, 2003.'  Plaintiff Moleon cross-
moves for partial summary judgment finding all co-defendants liable under Labor Law $240 (1).
In their opposition, Sentry and Kreisler ask that the Court search the record and  award summary
judgment in their favor.
The Appellate Division, First Department granted the declaration sought by Utica, mooting
the instant motion. Order, April 3,2003.




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BACKGROUND
Plaintiff alleges that on July 26,2000 he was injured when he fell off of the roof of a building
where he was employed as a bricklayer and stonemason. That building, located at 428 First Avenue,
is known both at the Bellevue Kids Center at Bellevue Hospital and the New Children’s Center (the
Bellevue building).  Defendant City of New York owns the Bellevue building, and through its
Department of Design and Construction, had contracted to renovate it for occupation by the
Administration for Children’s Services (collectively, the City, or the City defendants).  The City
hired co-defendant Kreisler Borg Florman General Construction Company, Inc. (KBF) as the
construction                                                                                              contractor for the renovation project, and                         subcontracted with co-
defendant Sentry Contracting,                                                                             (Sentry) to perform masonry work. Sentry, in turn, subcontracted
with AMG Construction, Inc. (AMG), Moleon’s employer, to perform all of the exterior restoration
on the Bellevue building. Utica is                                                                        insurance carrier.
At his deposition, plaintiff stated that his job duties included re-pointing the bricks and re-
surfacing the stones on the sloped roof on the fourth floor of the Bellevue building. T. at 46, 68.
Moleon testified that it was raining lightly on the morning of July 26,  2000, and that, as a
consequence, he and a helper had to secure a blue rubber tarp between the fourth floor window
through which they exited onto the Bellevue building’s roof, and a scaffold which had been erected
outside, before he could begin his work.                                                                  at                                                                 Moleon further testified that, on that
day, he had been instructed to resurface the stones on that part of the roof, and that he had gotten as
far as mixing the surfacing cement for the job.                                                           at 68-69.  He stated that, at that point, other
In its answer, Sentry explains that it is sued here as “Century Contracting Corp.,” although
that name is incorrect.
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workers were supposed to have cleaned the stones so that he could apply the surfacing cement.
at 70. Moleon testified that there were no other workers on the roof at that time, so he stepped off
of the scaffold, on which he had prepared the surfacing cement, and onto the roof in order to call to
the courtyard below for them to come up.                                                                 at 71-72, 163, 168-170. Moleon alleges that while
trying to do so, he slid down the sloped roof in a standing position and fell to the courtyard below.
Moleon commenced this action on October 18,2000. His complaint alleges negligence on
the part of all of the named co-defendants, and his bill of particulars cites the common-law standard,
Labor Law                                                                                                                                                    200,240 (1) and 241                                                                      and Industrial Code                                                                                   23-1.7 (d) &(e),
                                                                                                                                                                                                                                                      23-1.17 and 23-1.24, as the bases for imposing liability. His cross-motion, however, only seeks
                                                                                                                                                             partial summaryjudgment finding the co-defendants liable under Labor Law                                                                                                                       240 (1).
                                                                                                                                                                                                                                                      When seeking summary judgment, the moving party bears the burden of proving, by
                                                                                                                                                             competent, admissible evidence, that no material and triable issues of fact exist. See
                                                                                                         v New York Univ. Med. Ctr., 64                                                                                                                                                                                                                     85 1 (1 985); Sokolow. Dunaud. Mercadier   Carreras LLP
v                                                                                                        299                                                                                                                                          64 (1  Dept 2002). Once this showing has been made, the burden shifts to the
                                                                                                                                                                                                                                                      party opposing the motion 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                                                                                                              Zuckerman v City
                                                                                                         of New York, 49                                                                                                                              557 (1980); Pemberton v New York City Trans. Auth., 304                                               340
                                                                                                                                                                                                                                                      Dept 2003).  Because it deprives the litigant of his or her day in court, summary judgment is
                                                                                                                                                                                                                                                      considered a drastic remedy which should be employed only when there is no doubt as to the absence
                                                                                                         of such triable issues. See                         Andre v Pomerov, 35                                                                                                                                                                            361 (1 974); Pirrelli v Long Island R.R.,
226                                                                                                      166                                                 Dept 1996).
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Moleon’s cross-motion seeks partial summary judgment finding the City defendants,
and Sentry liable under Labor Law                                                                         240 (1). That statute provides that:
All contractors and owners and their agents, * * *, 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, * * *,    and other devices which shall be so constructed, placed and
operated as to give proper protection to a person so employed.
The Court of Appeals has repeatedly held that this provision “imposes absolute liability on owners,
contractors and their agents for any breach of the statutory duty that proximately causes a plaintiffs
injury.” See                                                                                              Panek v                                  of Albany, 99                                 452,457 (2003). This liability specifically
applies to any hazardous activity which is:
* * * related to the effects of gravity where protective devices are called for either
because of a difference between the elevation level of the required work and a lower
level or a difference between the elevation level where the worker is positioned and
the higher level of the materials or load being hoisted or secured.
See John v Baharestani, 281                                                                               1 14, 118                                Dept 2001) (worker fell through a makeshift
scaffold composed of planks which had been lain between a third floor external balcony and a pallet
on a raised forklift where bricks had been stored);                                                       Rocovich v Consolidated Edison Co., 78
509, 514 (1991). Moleon argues that he was injured as a result of a height-related risk, for
which the statute imposes absolute liability on both the City defendants, as owners, and on the
remaining defendants, as contractors.                                                                     Notice of Cross-Motion,                  11-12. Defendants have
raised three arguments in opposition to the cross-motion.
and the City defendants argue that Moleon has failed to either allege or sufficiently
demonstrate that the absence of safety devices at the job site was a “proximate cause” of his injuries.
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Additionally,                                                                                            and the City defendants argue that it was not foreseeable that Moleon
would enter onto the roof from which he fell and was injured. They assert that an independent,
intervening act may constitute a superceding cause which will negate the required element of
proximate causation in a plaintiffs Labor Law                                                            240 (1) claim.
Finally, Sentry separately joins with                                                                    and the City’s opposition, and also raises the
that, as a subcontractor, it was not obligated to provide Moleon with any safety equipment.
Plaintiff has not met his burden of demonstrating as a matter of law each of the elements
required for a Labor Law 240 claim.  Conversely, upon a search of the record reverse summary
judgment in favor of defendants is not warranted, particularly given the factual questions discussed.
The record before    Court does not indicate that any party is entitled to judgment as a matter of law
at this time.
Based on the submission before the Court, it is unclear whether plaintiff was supposed to do
his assigned work exclusively while on the scaffold or whether it was to be done, in part, while
standing on the surface of the roof. It is also not clear whether plaintiff was directed to put up the
tarpaulin and, if so, in what manner, or whether he himself chose to do it. It also cannot be said as
a matter of law on these papers, that alighting from the scaffold and going to the roof was his only
available means of asking others to help.
It is not clear from these submissions exactly how or where plaintiff was supposed to perform
his assigned work on the date in question. Moreover, it cannot be determined from these papers as
a matter of law that a safety belt or harness would have been necessary or appropriate for plaintiffs
assigned job duties if performed in the manner in which he was instructed. Another factual issue
presented that cannot be resolved here is whether and to what extent, plaintiff, by his own actions,
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getting off scaffold onto the apparently sloped roof while alone) caused or contributed to the
accident. In sum, it cannot be said, as a matter of law on this record, that the statutory duty was
breached or that such a breach was a substantial factor causing plaintiffs accident.
Accordingly, for the foregoing reasons it is hereby
ORDERED that the motion of third-party defendant Utica First Insurance Company for
summaryjudgment dismissing the third-party complaint, pursuant to CPLR 3212, is withdrawn as
moot; and it is further
ORDERED that plaintiffs cross-motion for partial summaryjudgment is denied.
This constitutes the decision and order of the Court.
Dated: New York, New York                                                                             ENTER
September
HON. MICHAEL D.                                                                                       J.S.C.
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