Rolle v JCDecaux St. Furniture N.Y., LLC

2024 NY Slip Op 30474(U)

February 13, 2024

Supreme Court, Kings County

Docket Number: Index No. 508333/2017

Judge: Patria Frias-Col ó n
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.SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF KINGS Part 20

X

Lamont Rolle

,

P LAINTIFF S

,

- against

JCDecaux Street Furniture New York, LLC, CEMUSA NY, LLC., The City of New York

, MTA Bus Company, MABSTOA, The New York City Transit Authority, The New York City Department of Transportation and Metropolitan Transportation Authority.

DEFENDANTS

. X

**HON. PATRIA FRIAS**

**- COLÓN, J.S.C.**  Index # 50833 3 / 2017

Cal. # s 14 & 15 Mot

. Seq. # s 5 & 6

**DECISION/ORDER**

Recitation as per CPLR §§ 2219(a) and/or 3212(b) of papers considered on review of

this motion : NYSCEF Doc # s 115

- 135 ; 155

- 158 by Plaintiff

NYSCEF Doc #s 136

- 150 by Defendants JCDecaux, CEMUSA, and City Defendants

Upon the foregoing cited papers and after oral argument on November 8 , 2023, pursuant to

CPLR § 3212

, Plaintiff’s Motion for Summary Judgement is DENIED and Defendant s J CDecaux Street Furniture New York, LLC ( “ JCDeceaux ” 1 ), The City of New York and New York City Department of Transportation’s (“City Defendants”) Cross

- Motion for S ummary J udgment i s GRANTED as to City Defendant s and DENIED as to Defendant JCDecaux/CEMUSA

.

**BACKGROUND**

This personal injury action ar ose from a May 12, 2016 accident

. Plaintiff alleges that w hile

power

- washing a bus shelter on the corner of Smith and Livingston Street s in Kings County, a glass panel fell on his head causing him to fall and become unconscious . When Plaintiff regained consciousness, he was being transported to the hospital.

Pursuant to Labor Law §§200, 240 (1) and 241 (6), Plaintiff assert s entitle ment to summary judgment because had it not been for the unsafe work conditions created by Defendants

, he would not have been injured. The City Defendants and Defendant JC D ec aux oppose Plaintiff’s motion and cross

move for summary judgement contend ing Plaintiff has no claim against the m p ursuant to Labor Law §§ 200, 240 (1) and 241 (6 )

. Defendants MTA Bus Company, MABSTOA, The New York City Transit Authority, and M etropolitan Transportation Authority (“Transit”) did not take a position

.

**DISCUSSION**

**Although Labor Law**  **§ 200**  **is not**  **applicable to**  **the City**  **Def endant**  **s it**  **is applicable to Defendant**

**JCDeceaux**

**.**

O n a motion for summary judgement

, t he moving party has the burden to make a prima facie

1 Defendant JCD ecaux was formerly known as CEMUSA

. 

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2 showing of entitlement to judgment as a matter of law and tender sufficient evidence to demonstrate the absence of any material issues of fact. Voss v. Netherlands Ins. Co ., 22 N.Y.3d 728 (2014) (citing Alvarez v Prospect Hosp

., 68 N.Y.2.d 320 [1986]). If a moving party fails to meet their burden, summary judgment must be denied “regardless of the sufficiency of the opposing papers.” Id . (citing Vega v. Restani Constr. Corp ., 18 N.Y.3d 499 [2012]). Summary judgment is a “ drastic remedy” that should not be granted where there is any doubt about the existence of triable fact or an arguable issue

. Marino v. Jamison , 189 A.D.3d 1021 (2d Dept. 2020).

For L abor L aw § 200 to apply

, a plaintiff must show that the owner of a property or t he general contractor working at a property supervised said property or had actual or constructive notice of an

unsafe condition

. Ross v Curtis

- Palmer Hydro

- Elec. Co.

, 81 NY2d 494 1993

. Here, Plaintiff failed to
show that Labor Law §240 (1) is applicable to the City Defendant s as they d o not directly supervise

the maintenance of bus shelters 2

. Such maintenance is left to the general contractor and the sub

contractor 3

. A ddition ally

, the City Defendant s were not on notice (actual or constructi ve) regarding

any defect of the subject bus shelter 4

. Generally, any d efects in bus shelter s are directly reported by

the subcontractor to the contractor 5

. Here, t he City Defendant s neither directly supervised nor were aware of a defect prior to the Plaintiff ’ s alleged accident

.

Labor Law § 200 may be applicable toward Defendant J C Deceaux. Plaintiff put forth sufficient

evidence to e stablish that there are genuine triable issues of fact regarding whether Defendant

J C Deceaux played a supervisory role in the maintenance and cleaning of the subject bus shelter

. Since Labor Law §2 00 does not apply to the City Defendant s, Plaintiff’s Labo r Law § 200 complaint and all

crossclaims are dismissed with prejudice as to them

. Plaintiff’s Labor Law § 200 complaint shall proceed against Defendant s JCDecaux/CEMUSA.

**Defendants did not**  **Violate Labor Law**  **§240 (1)**

**.**

Labor Law §240 (1) mandates that “ [a] ll contractors and owners and their agents, except

owners of one and two

- family dwellings who contract for but do not direct or control the work, 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, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operate d as to give proper protection to a person so employed”.

F or §240 (1) apply, P laintiff must demonstrate he was engaged in protected work and that D efendants

expos ed him to an elevation height risk without implementing add itional safeguards meant to prevent workplace injury.

Plaintiff ’s reliance on Zimmer v Chemung County Performing Arts, Inc.

, 65 NY2d 513 (1985)

to support his position that Labor Law § 240 (1) app lies in the instant matte r is misplace d

. The Zimmer plaintiff was entitled to recover damages because

, as required by Labor Law §240 (1)

, he f e ll from a height while engaged in protected work and was not provided with additional protective gear. I n Rocovich v Consol. Edison Co.

, 78 NY2d 509 (1991), the Court of Appeals c it ed to the l egislative

h istory fro m Labor Law §240 (1)

, when it found Defendant liab le pursuant to this statute because

2 NYS C EF D o c. # 144 at 71:23

- 7 1 :27

. 3 Id. at 25:3

- 12 and NYS C EF Doc. # 145 at 11:21

- 12:9

. 4 NYS C EF Doc. #145 a t 40:13

- 41:12

. 5 Id . At 29: 6

- 11

. 

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3 plaintiff was working in a protected environment and safety devices were not provided

. The instant

case is distinguishable from Zimmer and Rocovich . Here, Plaintiff was performing routine

maintenance 6 at street level 7

. When a plaintiff “ cannot show that he was exposed to the usual and ordinary dangers of a construction site, and not the extraordinary elevatio n risks envisioned by Labor Law §240 (1), the plaintiff cannot recover under the statute

. Toefer v Long Is. R.R ., 4 NY3d 399, 405 (2005) citing Rodriguez v Margaret Tietz Ctr. for Nursing Care, Inc., 84 N.Y.2d 841, 843 (1994).

Since Plaintiff cannot de monstrate that he was working in a protected environment with a heightened

elevation risk

, h e cannot recover against under Labor Law § 240 (1 ). Therefor e, this branch of Plaintiff’s summary judgment motion is denied.

**Labor Law §**  **241 (6) is not**  **applicable in this**  **case**

**.**

Labor Law §241 (6) requires that “ [a ] ll areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arrange d, operated and conducted as to provide reasonable an d adequate protection and safety to the persons employed therein or lawfully frequenting such places.” “ Labor Law §241 (6) imposes a nondelegable duty of reasonable care upon owners and contractors to provide reasonable and adequate protection and safety t o persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed

. ” Sheldon v Weinstein Enters., Inc.

, 2018 NY Slip Op 32459[U] Sup. Ct, Kings County (2018) citing De Jesus v Metro

- North Commuter R.R.

, 159 AD3d 951 2d Dept. (2018).

Contrary to the Plaintiff’s assertion , Defendant s here were not required to ensure additional safety measures were in place prior to Plaintiff power

- washing the bus shelter . The glass panel that

fell to the ground was no higher than eight feet, and no harness or securing was necessary because the

power

- washing was being performed at street level 8

. Plaintiff relie d on Rivas

- Pichardo v 292 Fifth

Ave. Holdings, LLC

, 198 AD3d 826 2d Dept ( 2021) to support his assertion that the heightened risk from elevated portions of the subject bus shelter necessitated the use of specialized equipment which was not provided to him. That case is distinguishable from the instant facts because the Rivas plaintiff

w as struck by bricks that were being thrown down a chute that had been placed in an elevator shaft,

from higher floors ; a height much more than the 8

- foot maximum 9 height of the subject bus shelter

. , T he bricks i n Rivas descended from multiple floors above the p lai ntiff

, where as Plaintiff here was hit by a glass pane at ground level and not higher than 8 feet from the ground. As a result, Plaintiff’s

branch of motion pursuant to Labor Law §241 (6) is denie d

.

**Defendant s Motion is**  **not time**  **barred.**

Plaintiff filed his Note of Issue on May 17, 2023 10 . Defendants filed their Cross

- Motion s on September 6, 2023 11 , 112 days after the Note of Issue was filed . CPLR §3212 (a) allows a Cross

Motion to be filed no later than 120 days after the filing of a N ote of I ssue. 112 days falls within that timeframe, consequently Defendants’ cross

- motion for summary judgment was not untimely

.

6 NYS C EF Doc. # 143 at 14:23

- 19, 105:14

- 106:2

. 7 Id . At 88:13

- 21.

8 NYS C EF doc 150, https://www.nycstreetdesign.info/furniture/bus

- stop

- shelter

. 9 Id

. 10 NYS C EF Doc. # 135

. 11 NYS C EF Doc. # 137

. 

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4 All other relief not expressly addressed herein is denied.

This constitutes the Decision and Order of the C ourt.

Date: February 13, 2024

___________________________ Brooklyn, New York Hon. Patria Frias

- Colón, J.S.C. 

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NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 02/13/2024

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