Gigantino v. Turner Construction Company et al

Filing 83

MEMORANDUM AND ORDER: For the reasons stated herein, Turner and Delta's motion for reconsideration (Doc. No. 56 ) is denied. Gigantino's objections to Magistrate Judge Reyes's discovery orders (Doc. Nos. 68 , 80 ) are denied. Ordered by Judge Roslynn R. Mauskopf on 8/16/2017. (Taronji, Robert)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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JOSEPH GIGANTINO ,
Plaintiff,

MEMORANDUM AND ORDER
14-CV-36 19 (RRM) (RER)

-againstTURNER CONSTRUCTION COMPAN Y; and
DELTA AIRLINES, INC.,
Defendants.

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ROSL YNN R. MAUSKOPF, United States District Judge.
On June 9, 20 14, plaintiff Joseph Gigantino commenced this action against defendants
Turner Construction Company ("Turner") and Delta Airlines, Inc. ("Delta"), alleging violations
ofNew York Labor Law§§ 240( 1), 240(6), and 200. (Comp!. (Doc. No. 1).) Turner and Delta
moved for summary judgement, (Mot. Summ. J. (Doc. No. 39)), and Gigantino opposed the
motion and cross-moved for partial summary j udgment. (Opp' n to Mot. for Summ. J. (Doc. No.
48).) The Court denied the parties' cross-motions for summary judgment. (Mem. and Order
(Doc. No. 55).) Turner and Delta now move for reconsideration of the Court's denial of
summary judgment. 1 (Mot. Recon. (Doc. No 56).) For the reasons stated herein, defendants'
motion for reconsideration is denied.

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Separate ly, G igantino moves pursuant to Federa l Ru le of C ivil Procedure 72(a), ( Doc. Nos. 68, 80), objecting to
two of Magistrate Judge Reyes's d iscovery orders. (See Order of 2/22/ 17; Order of 6119/20 l 7 .) Specifica lly,
Gigantino objects to Judge Reyes granting defendants' motion to exclude rebuttal expert testimony and granting a
protective orde r against plaintiffs requests fo r admi ssion. (Id.) Under Rule 72(a), when a magistrate j udge ru les on
a non-dispositi ve matter, " (t]he district judge in the case must consider ti me ly objections and modify or set aside any
part of the order that is clearly erroneous or contrary to law." Fed .R. C iv. P. 72(a). Under this standard o f review,
"a magistrate j udge 's dec ision is contrary to law only where it runs counter to controlli ng authority." Pall Corp. v.
Entegris, Inc. , 655 F. Supp. 2d 169, 172 (E. D.N. Y. 2008) (citation omitted). Here, Gigantino fails to point to any
contro lling authority contrary to Judge Reyes's discovery orders. Accord ingly, "[p]ursuant to this h ighly defere ntia l
standard o f rev iew," Giganti no has failed to meet the " heavy burden" req uired to displace Judge Reyes's discovery
orders. Garcia v. Benjamin Grp. Entm 't Inc., 800 F. Supp. 2d 399, 403 (E.D.N.Y. 20 l l) ( inte rna l c itations omitted).

ST AND ARD OF REVIEW

Reconsideration is "an extraordinary remedy to be employed sparingly in the interests of
fi nality and conservation of scarce judicial resources." Bullo v. Colleclo Inc., 845 F. Supp. 2d
49 1, 494 (E.D.N.Y. 20 12) (quoting Trans-Pro Logistic Inc. v. Coby Electronics Co1p., No. 05CV-1 759 (CLP), 20 I 0 WL 4065603, at * 1 (E. D .N. Y. Oct. 15, 2010) (internal quotation marks
and citation omitted)). Under Federal Rule of Civi l Procedure 59(e) and Local Rule 6.3, "[a]
motion for reconsideration should be granted only where the moving party demonstrates that the
Court has overlooked factual matters or controlling precedent that were presented to it on the
underlying motion and that would have changed its decision." In re N. Y Cmty. Bancorp, Inc.,

Secs. Lilig., 244 F.R.D. 156, 159 (E. D.N.Y. 2007); see also Shrader v. CSX Transp., Inc., 70
F.3d 255, 257 (2d Cir. 1995). "The maj or grounds justifying reconsideration are an intervening
change in controlling law, the availability of new evidence, or the need to correct a clear error or
prevent manifest inj ustice." Webb v. City of New York, No. 08-CV-5145 (CBA), 20 11 WL
5825690, at * I (E.D.N .Y. Nov. 17, 20 11) (internal quotation marks and citation omitted). It
" may not ... be used as a vehicle fo r reliti gating issues already decided by the Court," id., at* 1
(internal quotation marks and citation omitted), and " [a] moving party may not merely reiterate
or repackage an argument previously rejected by the court," In re N. Y Cmty. Bancorp, 244
F.R.D. at 160. In other words, a motion fo r reconsideration " is not an opportunity for a second
bite at the apple." Id. (in terna l citation and quotation marks omitted).
DISCUSSION

In support of their motion for reconsideration, Turner and Del ta argue that the Court
made tlu·ee errors in denying their motion for summary judgment. (See generally Mot. Recon.)
However, Turner and Delta fa il to point to any overlooked controlling law or facts. As such,

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defendants' arguments amount to nothing more than an attempted "second bite at the apple." Jn

re N. Y Cmty. Bancorp, 244 F.R.D. at 160. Accordingly, the motion for reconsideration is
denied.
I.

Adequate Safety Device under§ 240(1)

Labor Law § 240( 1) imposes non-delegable, strict liability upon commercial property
owners and general contractors to provide safety devices to protect workers from elevationrelated risks. Godoy v. Neighborhood P 'ship Housing Dev. Fund Co., Inc., 104 A.D. 3d 646
(N.Y. App. Div. 2013). Specifically:
A ll 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, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces,
irons, ropes, and other devices which shall be so constructed, placed and operated
as to give proper protection to a person so employed.
N.Y. Lab. Law§ 240 (McKinney). "[L]iability under§ 240(1) is 'absolute' insofar as a plaintiff
who demonstrates that a violation of the statute was the proximate cause of his injury, cannot
have his recovery reduced by a claim that the plaintiff was also partially responsible for the
injury." Wojcik v. 42ndSt. Dev. Project, 386 F. Supp. 2d 442, 450 n.8 (S.D.N.Y. 2005)
However, an injured worker must show, at a minimum, that a relevant safety device was absent
or defective and that such absence or defect was a proximate cause of a gravity-related injury.

See Narducci v. Manhasset BayAssocs., 96 N.Y.2d 259, 267-68 (N.Y. 2001).
In their motion for reconsideration, Turner and Delta argue that the bench from which
Gigantino fell provided him with proper protection, and that Gigantino ' s actions were the sole
cause of his injury. (Mot. Recon. at I 0.)2 In support of this argument, Turner and Delta point to
the testimony of expert witness John Tomich asserting that the bench was an adequate safety

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For ease of reference, citations to Court documents utilize the Electronic Case Filing System ("ECF") pagination.
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device, and that "recreations" of the accident "proved Gigantino was afforded proper protection."
(Id at 10-11 .) However, Turner and Delta made these exact arguments in their initial motion for
summary judgment. (See Mem. and Order at 6- 7.) The Court found that material disputes of
fact remain as to whether the bench provided adequate protections under § 240(1), and whether
Gigantino lost his balance when straining to reach the wall or if he simply " walked off' the
bench. (Id at 7.) Turner and Delta point to no overlooked facts or controlling case law. Rather,
they " merely reiterate or repackage an argument previously rejected by the court." Jn re N. Y

Only. Bancorp, 244 F.R.D. at 160. Accordingly, defendants ' motion is denied with respect to§
240(1).

II.

Industrial Code Violations under§ 241(6)

Labor Law §24 I (6) states,
All areas in which construction, excavation or demolition work is being performed
shall be so constructed, shored, equipped, guarded, arranged, operated and
conducted as to provide reasonable and adequate protection and safety to the
persons employed therein or lawfully frequenting such places. The commissioner
may make rules to carry into effect the provisions of thi s subdivision, and the
owners and contractors and their agents for such work, except owners of one and
two-family dwellings who contract for but do not direct or control the work, shall
comply therewith.
N.Y. Lab. Law§ 24 1 (McKinney). In order to recover under Labor Law§ 241(6), Gigantino
must establish a violation of an applicable Industrial Code provision. See, e.g., Cun-En Dn v.

Holy Family Monuments, 18 A.D.3d 800, 802 (2d Dep' t 2005). Turner and Delta challenge this
Court' s determination that material disputes of fact remain with respect to 12 NYCRR §§ 23-5.1
and 23-5.2.
Industrial Code§ 23-5 .1(e)(5)(i) allows bench scaffolds "not less than nine inches in
width" to be used where "the working platforms are not more than 24 inches above the floor or
other supporting surface. " The minimum width of scaffolds more than 24 inches high is eighteen

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inches. 12 NYCRR § 23-5. l (e)(5). Turner and De lta argue that this provision is inapplicable,
because the parties agree that the bench was exactly nine inches wide. (Mem. and Order. at 9.)
However, whi le the parties agree that the bench was nine inches wide, material issues of fact
remain regarding the height of the bench at the time of Gigantino's fall. (Id.) If the bench was
higher than 24 inches, then use of the bench may have vio lated Labor Law § 241 (6). In their
motion for reconsideration, Turner and Delta ignore the differing height requirements and argue
that the Code "is not applicable on its fac[e]" because the bench was nine inches wide. (Mot. for
Recon. at 10). T hey point to no overlooked controlling case law or facts.
In turn, Industrial Code§ 23-5.2 provides that " [t)he use of any scaffold of a type not
named, specified or described in thi s Part (rule) is prohibited unless such scaffo ld has been
granted a special approval. " 12 NYCRR § 23-5.2. T urner and Delta argue that no special
permission was required under this provision, because the bench at issue "was identified and

described in § 23-5.l(e)(5)(i)." (Mot. for Recon. at 15 (emphasis in original).) However,§ 23 5.l(e)(5)(i) does not approve of a scaffold nine inches in width fo r use over 24 inches off the
ground. Material disputes of fact remain with respect to the height of the bench. (Mem. and
Order at 9.) If the nine inch bench was at a height greater than 24 inches, special permission
would have been required under§ 23 -5.2. Turner and Delta point to no overl ooked facts or
controll ing law to the contrary. Accordingly, defendants' moti on to reconsider is denied with
respect to § 24 1(6).
III.

Co mmon-law Negligence Und er § 200

Labor Law § 200 requires that employers ensure that workplaces "prov ide reasonable and
adequate protection [for] the lives, health and safety of all persons employed therein or lawfully
frequenting such places." N.Y. Lab. Law§ 200 (McKinney). Section 200 applies only to

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owners and contractors who actually exercise control or supervision over the work and had
actual or constructive notice of the unsafe condition that caused the plaintiffs injury. See Russo

v. Hudson View Gardens, Inc., 9 1 A.D.3d 556, 557 (! st Dep't 20 12). In other words, an owner
or general contractor can be held liable under§ 200 if the owner either created the dangerous
condition that caused the accident or had actual or constructive notice of the dangerous
condition. Ortega v. Pucda, 57 A.D.3d 54, 61 (1st Dep't. 2008).
Here, this Court previously determined that "there are questions of fact as to whether
defendants had the authority to supervise or control the work that resulted in Gigantino ' s injury"
and "as to whether the installation of a toilet constituted an unsafe condition that Jed to
Gigantino's injury and whether defendants had notice of this alleged unsafe condition." (Mem
and Order at 11 .) Specifically, the parties agree that Turner employees had the general
responsibility fo r ensuring the site' s compliance with safety regulations, and that Delta had a
safety plan fo r the worksite, inspected the work as it was completed, and marked areas of
concern that needed to be fixed. (Id.) Giganti no also introduced evidence - disputed by Turner
and Delta - that Turner's employees regularly directed subcontractors on how to do their work
and prevented them from using particular kinds of scaffo lds. (Id.)
In their motion for reconsideration, Turner and Delta rehash old arguments and assert in
conclusory fashion that Turner' s supervision "did not qualify as the direction and control
intended by the legislature." (Mot. for Recon. at 16 (emphasis in original).) However, they fail
to point the Court to any overlooked facts or controlling case law contrary to the Court's denial
of summary judgment. For example, Turner and Delta repeated ly cite generally to Robinson v.

County ofNassau , 84 A.D. 3d 919 (2d Dep' t 20 11 ) for the proposition that general supervisory
work is insufficient to maintain a § 200 claim. (See, e.g. , Mot. for Recon. at 11; Reply (Doc. No.

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60) at 4.) However, Robinson fai ls to shed any light on whether in this case the extent of Turner
and Delta's control and supervision was sufficient to implicate § 200. Robinson, 84 A.D.3d at
920 ("The defendants established their prima facie entitlement to judgment as a matter of law by
demonstrating that the plaintiffs accident arose from the means and methods of hi s work, that
the plaintiff's wo rk was directed and controlled exclusively by hi s emp loyer, and that they had no
authority to exercise supervisory control over his work."). Material disputes of fact with respect
to Turner and Delta's control and supervisory capacity remain. Accordingly, Turner and Delta
have fai led to meet the exacting burden to sustain a motion for reconsideration.

CONCLUSION
For the reasons stated herein, Turner and Delta's motion for reconsideration (Doc. No.
56) is denied. Gigantino's objections to Magistrate Judge Reyes's discovery ord ers (Doc. Nos.
68, 80) are denied.
SO ORDERED.

Dated: Brooklyn, New York
lh~
,2017

/(,

s/Roslynn R. Mauskopf
ROSLYNN R. MAUSKOPF
United States District Judge

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