Opinion
12775/01.
Decided January 4, 2005.
the motion (No. 1715) of defendant Alstom Signaling, Inc. (hereinafter "Alstom") for summary judgment dismissing the complaint is granted with respect to those causes of action pleaded under Labor Law §§ 200 and 240(1); the balance of the motion and plaintiff's cross motion (No. 2038) for partial summary judgment on the issue of liability under Labor Law § 240(1) are denied. That branch of defendant's motion which sought common-law indemnification against third-party defendant T. Moriarty Sons, Inc. has been withdrawn without prejudice pursuant to a stipulation dated July 8, 2004.
This is an action to recover damages for personal injuries allegedly sustained by plaintiff on February 6, 1999. Plaintiff, an electrician, was employed by Mass Electric, which had been hired by defendant Alstom, the general contractor on a construction project which involved the installation of new signaling equipment on a train line. Third-party defendant T. Moriarty Sons, Inc. (hereinafter "Moriarty") was the subcontractor responsible for excavation at the work site.
At the time of plaintiff's accident, he was walking across a wooden plank which was covering a trench four-to-five feet deep at the construction site. While walking along the plank, which plaintiff alleges was wet and slippery, he fell into the trench and sustained injuries.
Insofar as applicable, Section 200 of the Labor Law represents a codification of the common-law duty imposed upon owners and general contractors to provide construction workers with a safe place to work ( Comes v. New York State Elec. Gas Corp., 82 NY2d 876, 877; see Rizzuto v. Wenger Constr. Co., 91 NY2d 343, 352). "An implicit precondition to this duty to provide a safe place to work is that the party charged with that responsibility have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition" ( Russi v. Picciano Son, 54 NY2d 311, 317). Thus, "[w]here the alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law § 200" ( Comes, 82 NY2d at 877).
Here, Alstom has met its initial burden of establishing its entitlement to summary judgment dismissing the cause of action predicated on Labor Law § 200 through the submission of plaintiff's deposition testimony indicating that no one other than the foremen of his employer, Mass Electric, would tell him what to do on the job ( see Defendant's Exhibit "G", p. 44). In addition, "Alstom" was able to establish though the EBT testimony of Larry Latone, its manager of New York City Field Operations, that not only were there no Alstom laborers on the job, but that third-party defendant Moriarty was the excavation contractor hired by Mass Electric to dig all of the trenches at the site ( see Defendant's Exhibit "J", p. 43). Thus, it is undisputed on these papers that digging the trenches was Moriarty's responsibility. Moreover, plaintiff has presented no evidence to refute the affidavit of Robert Perras, another employee of Mass Electric ( see Defendant's Exhibit "M"), which specifically states that Moriarty was also responsible for covering the temporary trenches.
Although Alstom, as general contractor, exercised a general supervisory role over the entire job site, for purposes of common-law negligence and Labor Law § 200, no triable issues of fact have been raised suggesting that Alstom exercised actual supervision and control over plaintiff's activities or had any actual or constructive knowledge of the allegedly unsafe condition which caused the accident ( see Mitchell v. New York University, 784 NYS2d 104 [1st Dept 2004]). Accordingly, plaintiff's Labor Law § 200 cause of action must be dismissed.
In his cross motion for partial summary judgment under Labor Law § 240(1), plaintiff asserts that his fall from the wet plank was the result of a gravity-related special hazard for which proper protection was not provided ( see Rocovitch v. Consolidated Edison Co., 78 NY2d 509). More specifically, plaintiff states that there were no railings, barricades or other protective devices or structures to protect him from falling into the trench.
In opposition to plaintiff's cross motion and in support of its own motion to dismiss the cause of action based upon Labor Law § 240(1), Alstom notes that "[n]ot every worker who falls at a construction site . . . gives rise to the extraordinary protection of Labor Law § 240(1). Rather liability is contingent upon the existence of a hazard contemplated in section 240(1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" ( Narducci v. Manhasset Bay Assocs., 96 NY2d 259, 267). This, the defendant asserts, is not such a case.
Here, plaintiff has clearly and unequivocally taken the position that "the plank was [being] used as a passageway to allow [him] and [his] fellow worker access from the area where their wire was kept to the area where it was to be installed". Thus, it is uncontroverted that the plank "was not being utilized as a ladder, scaffold, hoist or other safety device for the benefit of [plaintiff] in his work" as an electrician. "Rather, it was used as a passageway for laborers to transport materials . . . at the work site and, as such, did not come within the purview of Labor Law § 240(1) ( Straight v. McCarthy Bros. Co., 222 AD2d 775, 776 [3rd Dept 1995] [citations omitted]). While this Court recognizes the factual similarities between the case at bar and Jenkins v. Board of Mgrs. of Southhampton Meadows Condominium ( 269 AD2d 427 [2nd Dept 2000]), the Court also recognizes that no case decided subsequent to Narducci has cited Jenkins, and that the only case to rely upon it, i.e., Reisch v. Amaduri Constr. Co. ( 273 AD2d 855 [4th Dept 2000]), involved a readily distinguishable circumstance — i.e., a "plank" being used as a ramp which "served the function of a ladder, permitting plaintiff to climb onto [a] bridge abutment from level ground" ( id. at 856). More recently, the Fourth Department in Paul v. Ryan Homes, Inc., ( 5 AD3d 58), has specifically analyzed the difference between a plank employed as a scaffold, ladder or other device ( see Missico v. Tops Mkts., 305 AD2d 1052 [4th Dept 2003]); Reisch v. Amadori Constr. Co., 273 AD2d at 856) and a plank serving as a passageway ( see Straight v. McCarthy Bros. Co., 222 AD2d at 776), and concluded that in the latter circumstance, section 240(1) of the Labor Law has no application. Given the undisputed use of the plank at bar as a "passageway", this Court finds the Jenkins decision to be contrary to the weight of authority ( see Cochran v. New York City Employees' Retirement Sys., 131 AD2d 351 [1st Dept 1987]) and declines to follow it. Since the plank in this case was clearly employed solely as a passageway, this is not, even under the most liberal reading of the statute, the type of accident intended to be covered by Labor Law § 240(1), and the cause of action predicated thereon must be dismissed ( see also DeStefano v. Amtad NY, 269 AD2d 227 [1st Dept 2000]).
Further, in that plaintiff was not working on a ladder or at an elevated job site but at ground level, scaffolding, hoists, ladders and other protective devices required under Labor Law § 240(1) were not required. (see, Miller v. Weeden 7 AD3d 684 (2nd Dept. 2004) an uncovered septic pump hole two feet wide by three feet deep did not fall under the purview of Labor Law § 240(1); Mancini v. Pedra Construction, 293 AD2d 453 (2nd Dept. 2002). Finally, while Labor Law § 241(6) similarly "imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers" ( Comes v. New York State Elec. Gas Corp., 82 NY2d at 878), it, unlike section 240(1), requires a plaintiff seeking to prevail thereunder to (1) set forth the specific provisions of the State Industrial Code which were allegedly violated to proximately cause the injury, and (2) demonstrate that the rule allegedly breached mandated "concrete" safety standard rather than a general duty of care ( see Rizzuto v. Wenger Contr. Co., 91 NY2d 343).
In this case, the Court finds that the cited regulations, i.e., those incorporated into 12 NYCRR 23-1.7(b)(1), (d) and (e)(1), are specific enough to support plaintiff's cause(s) of action based on Labor Law § 241(6).
As applicable, NYCRR 23-1.7(b)(1), entitled "Hazardous openings", requires that every hazardous opening into which a person may fall to be guarded by either a substantial cover fastened in place or a safety railing ( see Alvia v. Teman Elec. Contr., 287 AD2d 421 [2nd Dept 2001]). In this regard, defendant asserts in support of dismissal that the trench into which plaintiff fell was not a "hazardous opening" as contemplated by the statute. The Court disagrees.
While the regulation does not define a "hazardous opening", pertinent case-law suggests that it is per se inapplicable only where the opening is not large enough for the worker to fall through ( see e.g. Rice v. Board of Education of City of NY, 302 AD2d 578 [2nd Dept 2003]; Alvia v. Teman Elec. Contr., 287 AD2d at 421). Accordingly, since it is undisputed that the trench at bar was large enough for plaintiff's entire body to enter, defendant's claim that the cited regulation is inapplicable in this case must be rejected.
Somewhat similarly, since 12 NYCRR 23-1.7(d) provides that "employers shall not suffer or permit any employees to use a floor, passageway, walkway, scaffold, platform or other elevated working surface in a slippery condition", the regulation in question appears facially applicable to plaintiff's situation. While Howard Edelson, defendant's safety expert, states in his affidavit that the location of this accident, which he describes as a "track bed", does not constitute a "passageway" under 12 NYCRR 23-1.7(d) ( see Defendant's Exhibit "N"), it is clear from all of the evidence before the Court that the "plank" covering the trench into which plaintiff fell was being used as a passageway to transport materials at the time of the injury ( see Beltrone v. City of New York, 299 AD2d 306 [2nd Dept 2002]). As a consequence, plaintiff's allegation that he slipped on the wet plank while attempting to get wire to the job site is sufficient to support a Labor Law § 241(6) cause of action based upon an alleged violation of 12 NYCRR 23-1.7(d), appropriately entitled "Slipping hazards".
Nevertheless, the Court agrees with defendant that 12 NYCRR 23-1.7(e)(1), which requires that "passageways" be kept free from accumulations of debris and other obstructions or conditions which could cause tripping, does not apply to the within situation. There is absolutely no evidence that this plaintiff tripped on any accumulation of dirt, debris or other obstruction before falling into the trench ( cf. Castillo v. Starrett City, Inc., 4 AD3d 320 [2nd Dept 2004]).
Accordingly, it is hereby
ORDERED that so much defendant's motion for summary judgment as is for dismissal of the causes of action in the complaint which are predicated upon alleged violations of Labor Law §§ 200 and 240(1) is granted; and it is further
ORDERED that the remainder of defendant's motion for summary judgment is granted to the extent of dismissing that branch of plaintiff's cause of action under Labor Law § 241(6) which is predicated on 12 NYCRR 23-1.7(e)(1); and it is further
ORDERED that the balance of said motion is denied; and it is further
ORDERED that plaintiff's cross motion for partial summary judgment on its Labor Law § 240(1) cause of action is denied as academic; and it is further
ORDERED that the Clerk shall enter judgment accordingly.