ADDITIONAL CASES Consolidated Edison Company of New York, Inc., Bond Brothers, Inc. Plaintiff v. Certa-Cote, Inc., Defendant; Third-Party 595694/2017 Consolidated Edison Company of New York, Inc., Bond Brothers, Inc., Plaintiff v. Certa-Cote, Inc., Defendant; Second Third-Party 595272/2019 The following e-filed documents, listed by NYSCEF document number (Motion 002) 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 164, 167, 170, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 202, 203, 205 were read on this motion to/for JUDGMENT — SUMMARY. The following e-filed documents, listed by NYSCEF document number (Motion 003) 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 165, 168, 171, 173, 174, 175, 201 were read on this motion to/for JUDGMENT — SUMMARY. The following e-filed documents, listed by NYSCEF document number (Motion 004) 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 166, 169, 172, 195, 196, 197, 198, 199, 200, 204 were read on this motion to/for JUDGMENT — SUMMARY. DECISION + ORDER ON MOTION This action arises out of an incident that occurred at a construction site located on Longwood Avenue between Kelly Street and Beck Street, Bronx, New York on June 21, 2016, between 7:00 am and 7:30 am, resulting in severe injuries to Plaintiff Anthony Robustelli. Defendants, Consolidated Edison Company of New York, Inc. (Con Edison) and Bond Brothers, Inc. (Bond Bros), move for summary judgement as against Plaintiff to dismiss all claims pursuant to Labor Law §§240(1), 241(6), 200 and common law negligence (motion seq. 003). During oral argument the parties stipulated that the only remaining claim at issue is Labor Law §240(1). Plaintiff separately moves for summary judgment as against Defendants on the Labor Law §240(1) claim (motion seq. 004). Defendants commenced a third-party common law indemnity and contribution claim against sub-contractor Certa-Cote, Inc., plaintiff’s employer. Third-party defendant Certa-Cote now moves for summary judgement as against defendants/third-party plaintiff Con Edison and Bond Bros, on their claim pursuant to §11 of the Workers’ Compensation Law of the State of New York (motion seq. 002). For the reasons set forth below, third-party defendant’s motion is granted, defendants’ motion is denied, and plaintiff’s motion is granted. Background Con Edison contracted with Bond Bros to perform multiple jobs on the construction site located at Kelly Street and Beck Street, Bronx, New York. Bond Bros hired Certa-Cote as the subcontractor to coat underground gas mines with tar. Plaintiff Robustelli was hired by Certa-Cote to work on the project. On the morning of June 21, 2016, Robustelli drove the Certa-Cote truck to the construction site. The truck contained a large kettle with half full of tar, weighing between 1,100 and 1,200 pounds. After parking the truck on the construction site, Robustelli and his workmate Robert Escalera began unloading the truck and moving the kettle to its unfolded liftgate. Before Escalera had the chance to chock the kettle’s wheels, the kettle, which sat on the liftgate, fell off and pushed Robustelli off the liftgate, and then fell on top of him, causing severe injuries. Summary Judgment Standard It is a well-established principle that the “function of summary judgment is issue finding, not issue determination.” Assaf v. Ropog Cab Corp., 153 AD2d 520, 544 [1st Dept 1989]. As such, the proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to entitlement to judgment as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320, 501 [1986]; Winegrad v. New York University Medical Center, 64 NY 2d 851 [1985]. Courts have also recognized that summary judgment is a drastic remedy that deprives a litigant of his or her day in court. Therefore, the party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted. Motion 002 Certa-Cote’s Motion Third-party defendant Certa-Cote filed a summary judgement motion against third-party plaintiffs Con Edison and Bond Bros, claiming that §11 of Workers’ Compensation Law bars the common law contribution and indemnification claim raised in the verified third-party complaint because Plaintiff Anthony Robustelli did not sustain a “grave injury” as defined by the Workers’ Compensation Law. It is well settled that “an employer shall not be liable for contribution or indemnity to any third person based upon liability for injuries sustained by an employee acting within the scope of his or her employment for such employer unless such third person proves through competent medical evidence that such employee has sustained a ‘grave injury”‘. See N.Y. Workers’ Comp. Law §11 (Consol.) The concept of “grave injury” is narrowly defined, “which shall mean only one or more of the following: death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability.” Id. Here, Certa-Cote conceded that when the accident happened on June 21, 2016, plaintiff was an employee, and it is uncontested that plaintiff was acting within the scope of his employment at the time of the accident. The four depositions given by the plaintiff and the independent medical examination (IME) conducted on 7/28/2020 reveal that: 1) plaintiff is still able to drive after the accident and maintains a car registration under his name. See NYSCEF Doc. No. 108 at p. 50: 14-21 and NYSCEF Doc. No. 105 at p. 7: 8-18; 2) plaintiff drove himself to and from physical therapy appointment after the accident. See NYSCEF Doc. No. 106 at p. 277: 1-21; 3) plaintiff is right-handed and can still write with his right hand. See NYSCEF Doc. No. 106 at p. 253: 16-18 and p. 255: 14-16; 4) plaintiff can use his cellphone after the accident, including sending/receiving texts, making/answering phone calls and using apps on his phone. See NYSCEF Doc. No. 107 at p. 355: 13-25 and p. 356: 1-4; and 5) plaintiff sustains no facial deformities or disfigurement from the accident. See NYSCEF Doc. No. 114 at p. 7. Moreover, third-party defendant has submitted unrebutted expert testimony establishing that plaintiff has not suffered a grave injury. Consequently, Certa-Cote has established a prima facie entitlement to summary judgment and neither plaintiff nor third-party plaintiff has raised a triable issue of fact. Motions Seqs. 003 & 004 Labor Law §240(1) It is well established law that an accident alone does not establish a Labor Law §240 (1) violation or causation. (Blake v. Neighborhood Hous. Servs. of N.Y. City, Inc., 1 N.Y.3d 280 (2003), Rudnik v. Brogor Realty Corp., 45 A.D.3d 828, 847, Forschner v. Jucca Co., 63 A.D.3d 996 (2d Dept. 2009)). Rather, plaintiff must show that proper protection was not provided, and the violation is a contributing cause of his injury in order to establish liability pursuant to §240(1). See Blake at 287. Plaintiff contends that there was no other procedure than chocking the wheels to secure the kettle during the unloading process. Wood wedges were the only safety devices provided to him to restrain the kettle from rolling around. Plaintiff also claimed that he had never received any training on unloading the truck parked on an incline. NYSCEF Doc. No. 105 at page 68, lines 12-21; page 69, lines 10-13. NYSCEF Doc. No. 135 at page 157, lines 3-14. Defendants argue that trucks owned by Certa-Cote came equipped with ropes and chains, in addition to chocks, to secure the kettle while the truck was unloaded. Defendants also claimed that Plaintiff had been trained to know how to properly use ropes to restrain the kettle and it was solely Plaintiffs negligence caused the accident. NYSCEF Doc. No. 134 at page 13, lines 16-25; page 14, lines 2-4. NYSCEF Doc. No. 133 at page 48, lines 9-12; page 14, lines 24-25; page 15, lines 2-12; page 89-90. The depositions cited by the defendants, however, do not clarify any of the following issues: the standard procedure of unloading the kettle when the truck is parked on a slight incline; whether there was a truck available to Plaintiff on the day of the accident that was equipped with the ropes and chains dedicated to restraining the kettle from moving around as claimed by the defendants; and whether Plaintiff ever received any formal training on the standard procedure of unloading the kettle while the truck was parked on a slight incline, even if all the necessary devices were provided to him as claimed. Although at some points defendants contend that ropes and chains would be sufficient safety devices, deposition testimony provided by Robert Escalera, Plaintiff’s coworker and eyewitness to the accident, seems to suggest that the ropes in the trucks were only used to lower the buckets into a deep hole. See NYSCEF Doc. No. 134 at page 13, lines 16-25; page 14, lines 2-4. In the same deposition, Escalera also claimed no other devices were provided to secure the kettle while it was moved from inside the truck to the liftgate. See NYSCEF Doc. No. 159 at page 66, lines 16-19. Another murky question would be the standard procedure to unload the kettle when the truck is parked on a slight incline. Plaintiff claims that the procedure is the same as the one used if the truck is parked on a level ground and no special procedure for him to follow, once the kettle is put down, only the wheels should be chocked. See NYSCEF Doc. No. 106 at page 198, lines 2-6. Deposition from Glenn Mazzella, President of Certa-Cote, seems to support the claim since his immediate response to the accident was asking Escalera: “Did you chock the wheels?” The utterance seems to suggest chocking the wheels is the utmost and sole step to take when you are unloading the truck on a slope. If so, it would be rational to deduce restraining the kettle with ropes and chains is not part of the standard unloading procedure. See NYSCEF Doc. No. 133 at page 51, lines 7-11. The Court of Appeals cases cited by defendant do not solve the issue here because in both Robinson and Montgomery, the necessary safety device was provided and “readily available” to the employee who chose to ignore it and voluntarily took an unsafe step causing the injury. See Robinson v. East Med. Ctr., LP, 6 NY3d 550; Montgomery v. Fed. Express Corp., 4 NY3d 805. The Cahill case also missed the point because defendants haven’t sufficiently established that a formal training or oral instructions had been given to plaintiff on how to unload the kettle with the aid of ropes and chains and it was the “recalcitrant” plaintiff who chose to ignore those instructions and caused the accident. See Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35. Based on Mazzella’s testimony, there had been no formal training and using ropes and chains to restrain the kettle should come as a “common sense” for his employees. See NYSCEF Doc. No. 133 at page 17, lines 17-23. Conversely, Plaintiff has established his prima facie case against defendants for their violation of §240(1) of the Labor Law. First, Plaintiff has cited testimony from Michael Galloway, a Con Edison employee responsible for environmental health and safety, and Dan Foppiano, regional VP of Bond Bros to establish the following facts: there were no safety engineering controls in place, such as a braking system or a winch that could have stopped the kettle from coming down. See NYSCEF Doc. No. 156 at page 58, lines 12-15; those devices could have been installed inside the truck. Id. at page 41, lines 9-12; the winch, if properly installed and attached to the kettle, could have avoided the accident. Id. at page 37, lines 20-25; and there was no chain or any other restraining devices inside the truck. Id. at page 51, lines 9-15. Further, the testimony establishes that Mazzella, president of Certa-Cote, said he would take Galloway’s advice and install the remedial measures. Id. at page 63, lines 12-15. Bond Bros required Certa-Cote to either retire the truck used in the accident or install restraining devices in the truck before using it again. See NYSCEF Doc. No. 162 at page 30, lines 20-25. Robert Escalera claimed that no other devices were provided than the chocks to secure the kettle while it was moved from inside the truck to the liftgate. See NYSCEF Doc. No. 159 at page 66, lines 16-19. The cited testimony establishes that necessary safety devices were not provided and that they could have been installed inside the truck to prevent the accident. It satisfies both prongs of the test ascertaining the §240(1) liability established by the Court of Appeals, that states, “that liability is contingent on a statutory violation” and “plaintiff [is] obligated to show that the violation was a contributing cause”. See Blake at 287. Here, failure to provide the winch or any other restraining devices is a violation of §240(1) because installation of such devices could have avoided the accident and given a better and proper protection to Plaintiff. “[F]ailure to provide any safety devices is such a violation” and the appellate court has long held that “this statute is one for the protection of work[ers] from injury and undoubtedly is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed.” Id. at 289 and 292 (internal citation omitted). Defendant’s emphasis on plaintiff’s alleged negligent conduct, such as parking the truck on the incline without reversing it, misses the point because contributory negligence cannot defeat the Plaintiff’s claim. Therefore, even if those allegations are true, plaintiff’s §240(1) claim can still stand provided he has established a prima facie case. In sum, the court finds that plaintiff has established that his injuries were proximately caused by defendants’ failure to provide adequate protection required by §240(1) of the Labor Law. The record does not support defendants’ contention that they have met their burden of proof that no triable issues of fact exist concerning their liability under Labor Law because the evidence adduced at bar is clear that plaintiff was not the sole proximate cause of his injury and defendants’ failure to provide a safety device was the cause of this accident. Accordingly, it is hereby ORDERED that third-party defendant Certa-Cote, Inc. summary judgment motion against defendants/third-party plaintiff Consolidated Edison Company of New York, Inc. and Bond Brothers, Inc. is granted, and the third-party action is dismissed; and it is further ORDERED that plaintiff’s motion for summary judgment as against defendants Consolidated Edison Company of New York, Inc. and Bond Brothers, Inc., as to Labor Law §240(1) is granted; and it is further ORDERED that the motion by defendants Consolidated Edison Company of New York, Inc. and Bond Brothers, Inc. for summary judgment is denied as to Labor Law §240(1) but granted without opposition as to all other claims, and all claims other than the Labor Law §240(1) claim are dismissed. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED DENIED X GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: March 14, 2023
