Joseph v. Memorial Hosp. for Cancer & Allied Diseases
Opinion
Joseph v Memorial Hosp. for Cancer & Allied Diseases 2025 NY Slip Op 30591(U)
February 20, 2025
Supreme Court, New York County Docket Number: Index No. 158336/2021 Judge: Mary V. Rosado
Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.
NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 02/20/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY
PRESENT: HON. MARY V. ROSADO PART 33M Justice
-----------------------X INDEX NO. 158336/2021 CAPIL JOSEPH,
MOTION DATE 02/23/2024 Plaintiff,
MOTION SEQ. NO. 001 - V -
MEMORIAL HOSPITAL FOR CANCER AND ALLIED DISEASES, MEMORIAL SLOAN-KETTERING CANCER CENTER (DAVID H. KOCH CENTER), NEW YORK AMENDED DECISION + ORDER PRESBYTERIAN HEALTHCARE SYSTEM, INC.,AND ON MOTION 1 TURNER CONSTRUCTION COMPANY
Defendant.
---------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 38, 39,40,41,42,43,44,45,46,47,48,49, 50, 51, 52, 53, 54, 55, 56, 57 were read on this motion to/for JUDGMENT - SUMMARY
Upon the foregoing documents, and after oral argument, which took place on September 10, 2024, where Brett Z. Mittler, Esq. appeared for Plaintiff Capil Joseph ("Plaintiff''), and Marc J. Lust, Esq. appeared for Defendants Memorial Sloan Kettering Cancer Center2 ("Memorial Sloan") and Turner Construction Company ("Turner") (collectively "Defendants"), Plaintiffs motion for summary judgment on the issue of liability against Defendants on his Labor Law §§ 241 (6) and 200 claims is granted in part and denied in part. Defendants' cross-motion for summary judgment dismissing Plaintiffs Labor Law § 240(1) claim and Plaintiffs Labor Law § 241 (6) claim is granted in part and denied in part.
1
This Amended Decision and Order supersedes this Court's prior Decision and Order dated January 17, 2025 (NYSCEF Doc. 67) to correct an omission in the decretal paragraph.
2
Memorial Hospital for Cancer and Allied Diseases and Memorial Sloan-Kettering Cancer Center (David H. Koch Center) are improperly named Defendants. The correct name for these entities is Memorial Sloan Kettering Cancer Center.
158336/2021 JOSEPH, CAPIL vs. MEMORIAL HOSPITAL FOR CANCER AND ALLIED DISEASES Page 1 of 6 ET AL
Motion No. 001
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NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 02/20/2025
I. Background
This is an action for Plaintiffs personal injuries allegedly sustained when he slipped on a puddle of water. At the time of his accident, Plaintiff was employed as an ironworker for non-party Greg Beeche Logistics at 530 E. 74th Street, New York, New York (the "Premises"). Turner was the general contractor (NYSCEF Doc. 29 at 34). On the date of his accident, Plaintiff was in the machine room and while trying to exit, he slipped on a puddle of water (NYSCEF Doc. 29 at 37; 54). Plaintiff testified in the area where he slipped, there was no light. Derrick Rueda, a senior project manager with Turner, testified that he learned of Plaintiffs fall at around 7:20 a.m. (NYSCEF Doc. 27 at 92). Mr. Rueda observed water in the area where Plaintiff fell and wrote in the incident report that the lights were off (NYSCEF Doc. 27 at 97; 108; see also NYSCEF Doc. 31).
Plaintiff now moves for summary judgment. He argues that the puddle constituted a slipping hazard pursuant to Industrial Code§ 23-l.7(d), and therefore he is entitled to summary judgment on his Labor Law § 241 (6) claim. Plaintiff also seeks summary judgment on his Labor Law § 241(6) claim predicated on a violation of Industrial Code § 23-1.30 which governs illumination and a violation of§ 23-1. 7( e) which prohibits tripping hazards. Finally, Plaintiff seeks summary judgment on his Labor Law § 200 claim.
Defendants cross-move for summary judgment dismissing Plaintiffs Labor Law 240( 1)
claim and Plaintiffs Labor Law § 241(6) claims predicated on violations of Industrial Code §§ 23-1.5, 1.7, 1.15, 1.24, 2.1, 2.7, and OSHA. Defendants argue that dismissal of Plaintiffs Labor Law§ 241(6) claims predicated on violations oflndustrial Code § l.7(e) is appropriate because Plaintiff did not trip on a sharp projection.
158336/2021 JOSEPH, CAPIL vs. MEMORIAL HOSPITAL FOR CANCER AND ALLIED DISEASES Page 2 of 6 ETAL Motion No. 001
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NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 02/20/2025
II. Discussion
A. Standard
"Summary judgment is a drastic remedy, to be granted only where the moving party has tendered sufficient evidence to demonstrate the absence of any material issues of fact." (Vega v Restani Const. Corp., 18 NY3d 499, 503 [2012]). The moving party's "burden is a heavy one and on a motion for summary judgment, facts must be viewed in the light most favorable to the non- moving party." (Jacobsen v New York City Health and Hasps. Corp., 22 NY3d 824, 833 [2014]). Once this showing is 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 (See e.g., Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
As held by the Court of Appeals, Labor Law § 241 (6) imposes a non-delegable duty upon an owner and general contractor to "respond in damages" if a worker engaged in construction is injured due to inadequate safety and protection, even if the worker sustains an injury because of another party's negligence (Rizzuto v L.A. Wenger Contracting Co., 91 NY2d 343, 350 [1998]). A general contractor is not absolved ofliability for lack of notice of a dangerous condition or for lack of an opportunity to cure the dangerous condition (Gallina v MTA Capital Construction Company, 193 AD3d 414 [1st Dept 2021]).
B. Plaintifr s Motion
Plaintiff's motion for summary judgment on his Labor Law§ 241(6) claim predicated on violations of Industrial Code § 23-1.7(d) is granted. 3 Industrial Code 23-1.7(d) provides that
3
Although Plaintiff did not provide a statement of material facts, and it is certainly always best practice to annex a statement of material facts to the motion papers, Part 33 does not require such a statement and therefore this omission is not fatal to the motion. Moreover, the Court would rather decide the motion on its merits and elects to overlook this technical defect pursuant to CPLR 2001.
158336/2021 JOSEPH, CAPIL vs. MEMORIAL HOSPITAL FOR CANCER AND ALLIED DISEASES Page 3 of 6 ET AL
Motion No. 001
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NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 02/20/2025
"[e]mployers shall not suffer or permit any employee to use a floor. .. which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed ... " The presence of the large puddle on the floor fits squarely within the definition of a violation of Industrial Code 23-1.7(d). Moreover, the mechanical room can be considered a passageway, as it was the only means of exiting onto the roof where Plaintiff had to work.
Industrial Code § 23-1.30 requires "[i]llumination sufficient for safe working conditions shall be provided wherever persons are required to work or pass in construction .... ". Defendants' witness, Mr. Rueda, stated in his affirmation that when he entered the machine room after the accident "I activated the light switch" (NYSCEF Doc. 43 at ,r 10). The affidavit of non-party Tom Cahill likewise states that the light near the roof door was off (NYSCEF Doc. 33). This constitutes a primafacie violation oflndustrial Code 23-1.30 ( Oliveira v Top ShelfElectric Corp., 217 NYS3d 58 [1st Dept 2024]; Capuano v Tishman Const. Corp., 98 AD3d 848 [1st Dept 2012]).
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