|Claimant short name:||STEPHENS|
|Footnote (claimant name) :|
|Defendant(s):||THE CITY UNIVERSITY OF NEW YORK, THE CITY UNIVERSITY OF NEW YORK AT QUEENS COLLEGE and THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Law Firm of Eleanor Vale
By: Eleanor Vale, Esq.
|Defendant's attorney:||Hoffman & Roth, LLP
By: Jayne F. Monahan, Esq.
|Third-party defendant's attorney:|
|Signature date:||October 20, 2009|
|See also (multicaptioned case)|
Claimant Karen Stephens moves for summary judgment in her favor on the issue of liability. Ms. Stephens' claim arises from a November 13, 2003 incident which occurred at Queens College where she was a student. She alleges that as she was walking down a pathway toward Razran Hall, a "temporary fence, which consisted of numerous metal poles attached to a chain-linked metal fencing fell and struck me on the right side of my head." See ¶2 of the June 13, 2009 affidavit of Karen Stephens.
The temporary fence had been erected in connection with a project to renovate Razran Hall. The owner of the property, for the purposes of financing the project, was the Dormitory Authority of the State of New York ("DASNY"), although Queens College retained rights of possession and use. DASNY had contracted with USA General Contractors Corp. ("USA") as general contractor on the project, and USA had contracted with subcontractors.
Claimant also has an action against DASNY, USA and the subcontractors in Supreme Court, Queens County, and simultaneously with the making of this motion, made a motion for summary judgment on liability against the Supreme Court defendants, on the theory that they and the Court of Claims defendants are jointly and severally liable.
In support of her motion, claimant submits the affidavit of engineer Anthony Mellusi, who states that "[t]he fence was in clear gross violation in failing to provide adequate fencing and protecting the safety of all persons and property affected thereby. The method used in supporting the vertical posts was shoddy, not solid . . . [and left] the unnecessarily tall 10' poles with a high center of gravity subject to falling over in the event of a strong gust of wind." See ¶14.A of the June 4, 2009 affidavit of Anthony Mellusi (the "Mellusi Aff."), annexed to claimant's moving papers as exhibit D. Mr. Mellusi states that the bases of the fence did not adequately support the vertical posts, and that the posts "should have been sunk into the ground . . . by 30." See ¶14.D of the Mellusi Aff. He further maintains that the fence violates the New York State Labor Law and the New York City Building Code.
Defendants oppose claimant's motion on various grounds, arguing, among other things, that: (1) CUNY did not have any involvement in the decision to renovate the building, to hire a particular contractor, to requests bids or to inspect or approve the construction; (2) there was no constructive notice; (3) neither New York State Labor Law nor the cited New York City Building Code sections are applicable to the facts of this case; and (4) Mr. Mellusi is not qualified as an expert witness and did not visit the scene of the accident.
"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. . ." Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985). Negligence cases "do not generally lend themselves to resolution by summary judgment, since that remedy is appropriate only where the negligence or lack of negligence of the defendant is established as a matter of law . . ." Chahales v Garber, 195 AD2d 585 (2d Dept 1993).
Claimant essentially argues that defendants were negligent as a matter of law, i.e., per se, because they violated the New York State Labor Law and the New York City Building Code.
As to the New York State Labor Law, aside from the fact that claimant does not explain how defendant violated such statute, a pedestrian such as claimant is not within the class of persons entitled to protection under the Labor Law. See Mordkofsky v V.C.V. Development Corp., 76 NY2d 573, 577 (1990), in which the Court of Appeals held that to invoke §200 or 241 of the Labor Law, a plaintiff must demonstrate that at the time of the accident, he was working on a building or structure, and that he had been hired by someone to do so.
Claimant also contends that defendants violated various provisions of the New York City Building Code. Specifically, in his affidavit, Mellusi states that defendants violated: §26-228, which is a general safety provision; §27-1009, which requires a sign identifying the general contractor; and §27-1021, requiring, inter alia, fences of at least eight feet in connection with the construction or demolition of buildings of certain heights. Mellusi's annexed report also refers to §26-229, which requires adequate fencing on all sides of an excavation.
Defendants dispute that these provisions apply.(1)
In any event, while the violation of a standard or regulation such as the New York City Building Code may provide some evidence of negligence, it does not, in and of itself prove that such violation proximately caused claimant's injury, which is an issue for the trier of fact. See Elliott v City of New York, 95 NY2d 730, 734 (2001). Thus, even had claimant demonstrated on this motion that defendants had violated a provision or provisions of the New York City Building Code, issues of fact remain for trial as to whether any such violation proximately caused her injury.
In view of the foregoing, having reviewed the submissions(2) , IT IS ORDERED that motion no. M-76949 be denied.
October 20, 2009
New York, New York
Alan C. Marin
Judge of the Court of Claims
1. For example, as to §27-1021 and the requirement of an 8-foot fence, defendants argue that the project did not involve the construction or demolition of a building (it apparently involved asbestos abatement and roof renovation). Defendants also maintain that §26-229 is not applicable because it refers to safety requirements during excavation, and there was no excavation at the site.
2. The following were reviewed: claimant's notice of motion with affirmation in support, affidavits A though D, exhibits 1 through 10, and memorandum of law; defendants' affirmation in opposition with exhibits A through F; and "[Claimant's] Response to Defendants['] Opposition and Further Support of Summary Judgment" with affidavit E and exhibits 11, 12, 12a and 13.