Opinion
27628 2008
03-07-2011
Daniel Covaci, et al., Plaintiffs v. Whitestone Construction Corp., Defendant
, J.
This is an action to recover for personal injuries plaintiff Daniel Covaci (Covaci) allegedly sustained due to violations of Labor Law §§ 200, 240 (1), and 241 (6), and common-law negligence. Covaci has alleged that on October 20, 2008, defendant was acting as the general contractor for construction work being performed at premises known as the Murray Bergtraum High School (the subject premises), located at 411 Pearl Street in the County of New York. Covaci was an employee of nonparty Metropolitan Enterprises, Inc. (Metropolitan), a subcontractor that was hired to erect scaffolding at the premises, and he has further alleged that while he was working at the subject premises, he slipped and fell from a scaffold. Covaci's wife, plaintiff Angela Covaci, has a derivative cause of action for loss of society.
Plaintiffs have moved for partial summary judgment only with regard to their claim brought under Labor Law § 240 (1), while defendant has also moved for summary judgment dismissing this claim. Plaintiffs have argued that defendant's failure to provide Covaci with proper protection under section 240 was the proximate cause of his injuries, while defendant has argued that Covaci's actions were the sole proximate cause of his injuries.
Labor Law § 240 (1) provides that contractors, owners and their agents "shall furnish or erect, or cause to be furnished or erected . . . scaffolding . . . ladders . . . and other devices which shall be so constructed, placed and operated as to give proper protection" to workers employed on the premises. In order to impose liability on a defendant pursuant to Labor Law § 240 (1), there must be a violation of the statute which was a proximate cause of the plaintiff's injuries (see Martinez v Ashley Apts. Co., LLC, 80 AD3d 734, 735 [2011]; Leconte v 80 E. End Owners Corp., 80 AD3d 669, 670 [2011]; Wnetrzak v V.C. Vitanza Sons, Inc., 79 AD3d 939 [2010]). "Where there is no statutory violation, or where the plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery under Labor Law § 240(1)" (Treu v Cappelletti, 71 AD3d 994, 997 [2010]; see Wnetrzak v V.C. Vitanza Sons, Inc., 79 AD3d at 939).
Although defendant has argued that Covaci's affidavit submitted in support of his motion is inadmissible, the affidavit states that it was translated from English to Romanian for Covaci by his wife, Angela Covaci, and it contained the requisite translator's attestation from Angela Covaci. Therefore, Covaci's affidavit was in admissible form (CPLR 2101 [b]). Covaci's affidavit and his deposition testimony reflected that his foreman, Radu Amisculesei (Amisculesei), instructed him to perform work on the scaffold on the second level above ground level, that there were no wooden planks installed on the scaffold on the first or second level to be used for standing or walking, and that in order to get to the place on the scaffold where he had to work, he climbed on a metal cross bar. Covaci further stated that the cross bar where he placed one of his feet was oily, that he slipped and fell approximately 10 to 12 feet to the ground, and that while he was wearing a safety harness at the time of the accident, his safety harness was not attached to a lifeline because no lifeline was provided to him.
The record also contains Amisculesei's affidavit, in which he stated that he supervised Covaci on the date of the incident and that workers were not permitted to stand on the cross bars of the scaffold. Amisculesei further stated that he instructed Covaci to place parts of the scaffold in the locations where they were going to be attached to the scaffold, that he did not instruct Covaci to install those parts on the scaffold, and that Covaci was no more than three feet off of the ground when he slipped and fell. Based upon the conflicting evidence in the parties' submissions, neither party has satisfied its prima facie burden of demonstrating the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Gurung v Arnav Retirement Trust, 79 AD3d 969, 970 [2010]; Ramsey v Leon D. DeMatteis Constr. Corp., 79 AD3d 720, 722 [2010]). Therefore, summary relief is precluded on the claim brought under Labor Law § 240 (1).
Defendant has also moved for summary judgment dismissing plaintiffs' claim brought under Labor Law § 241 (6). Under Labor Law § 241 (6) all contractors and owners must provide workers engaged in "construction, excavation or demolition work" with "reasonable and adequate protection and safety" in areas where such work is being performed. "In order to establish liability under Labor Law § 241 (6), a plaintiff must demonstrate that . . . defendant[s'] violation of a specific rule or regulation [promulgated by the Commissioner of the Department of Labor], was a proximate cause of the accident" (Mercado v TPT Brooklyn Assoc., LLC, 38 AD3d 732, 733 [2007]; see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 [1993]). Plaintiff has predicated his section 241 (6) claim upon alleged violations of various sections of the Industrial Code, including 12 NYCRR 23-1.5, 23-1.5 (a), 23-1.5 (c), 23-1.7, 23-1.7 (d), 23-1.16, 23-1.21, 23-1.21 (b) (3).
Defendant has argued that 12 NYCRR 23-1.5 and 1.5 (a) and (c) merely set forth general safety standards. Alleged violations of 12 NYCRR 23-1.5 and 23-1.5 (a) and (c) have been found to be insufficient to support a cause of action under section 241 (6) because they merely establish general safety standards (see Spence v Island Estates at Mt. Sinai II, LLC, 79 AD3d 936, 937 [2010]; Pereira v Quogue Field Club of Quogue, Long Is., 71 AD3d 1104, 1105 [2010]; Greenwood v Shearson, Lehman & Hutton, 238 AD2d 311, 312 [1997]).
12 NYCRR 23-1.21 provides general specifications for ladders and ladderways while 12 NYCRR 23-1.21 (b) (3) provides specifications for the maintenance and replacement of ladders. Defendant has argued that 12 NYCRR 23-1.21 and 23-1.21 (b) (3) are inapplicable to the facts of the instant case because these sections pertain to ladders and ladderways. Covaci has alleged that he slipped and fell off of a scaffold and he has not alleged that his injuries were related to the use of any ladders or ladderways. Therefore, inasmuch as defendant has satisfied its initial burden with regard to 12 NYCRR 23-1.5, 23-1.5 (a) and (c), 23-1.21, and 23-1.21 (b) (3), and since plaintiffs have failed to oppose the branches of defendant's motion relating to these sections, defendant is entitled to dismissal of these sections (see Kronick v L.P. Thebault Co., Inc., 70 AD3d 648, 649 [2010]).
Defendant has also argued that 12 NYCRR 23-1.16 is inapplicable to the facts of the instant case because Covaci was not provided with a tail line or lifeline at the premises, and, thus, his injuries were not proximately caused by the failure of such devices. Plaintiffs have argued that defendant's failure to provide a tail line or life line was, in itself, a violation of this section. It is undisputed that Covaci was not provided with a tail line or lifeline on the date of the accident. Therefore, defendant has satisfied its initial burden by demonstrating that this section is inapplicable to the facts of the instant case (see Clavijo v Universal Baptist Church, 76 AD3d 990, 991 [2010]; Forschner v Jucca Co., 63 AD3d 996, 998-999 [2009]). In opposition, plaintiffs have failed to raise a triable issue of fact. Thus, defendant is entitled to dismissal of this section.
With regard to 12 NYCRR 23-1.7, defendant has argued that this section is inapplicable to the facts of the instant case. 12 NYCRR 23-1.7 provides for protection from general hazards, including overhead hazards, falling hazards, drowning hazards, and tripping and other hazards. Since Covaci has not alleged that his injuries were proximately caused by an overhead hazard, tripping hazard, drowning hazard, or by a hazardous opening or that it was related to bridge or highway overpass construction under the section relating to falling hazards, defendant has demonstrated that sections 23-1.7 (a), (b), (c), and (e) are inapplicable in the instant case. In opposition, plaintiffs have failed to raise a triable issue of fact. Therefore, defendant is entitled to dismissal of these sections.
12 NYCRR 23-1.7 (d) provides for protection from slipping hazards and states that "[e]mployers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing." Despite defendant's argument that the cross bar of the scaffold on which Covaci allegedly slipped was not a work surface, 12 NYCRR 23-1.7 (d) is applicable in the instant case because it provides that workers shall not be permitted to work on a scaffold which is in a slippery condition. However, based upon the conflicting evidence in the parties' submissions regarding the circumstances that occasioned Covaci's climbing on a cross bar of the scaffold in order perform his work, an issue of fact exists, at least, as to whether the cross bar of the scaffold which Covaci slipped on was a work surface within the definition of 12 NYCRR 23-1.7 (d). Therefore, neither party is entitled to summary relief with regard to this section.
Defendant has moved for summary judgment dismissing the claim brought under Labor Law § 200 and has argued that it did not direct or control Covaci's work. Labor Law § 200 "is a codification of the common-law duty of an owner or general contractor to provide workers with a safe place to work" (Ortega v Puccia, 57 AD3d 54, 60 [2008]). Claims brought under § 200 are generally brought in two possible categories, those where workers were injured as a result of dangerous or defective conditions on a work site and those involving the manner in which the work was performed (LaGiudice v Sleepy's Inc., 67 AD3d 969, 972 [2009]). Where a claim arises out of the methods or materials of the work, an owner may be liable if it is shown that the owner had the authority to supervise or control the work (see LaGiudice v Sleepy's Inc., 67 AD3d at 972; Ortega v Puccia, 57 AD3d at 61).
In the instant case, plaintiffs' cause of action brought under Labor Law § 200 has been based on the methods and manner of the work performed. Covaci testified and stated in his affidavit that his foreman, Amisculesei instructed him on how to perform his work and that he took instruction only from Amisculesei. Timothy Scolpini, defendant's supervisor, testified at his deposition that he did not direct or control the work performed by Metropolitan or its employees. In light of this evidence, defendant has demonstrated that it did not direct or control Covaci's work (see Capolino v Judlau Contr., Inc., 46 AD3d 733, 735 [2007]). In opposition, plaintiffs have failed to raise a triable issue of fact (id.). Therefore, defendant is entitled to the relief sought on this branch of its motion.
Accordingly, the branch of plaintiffs' motion for partial summary judgment on the claim brought under Labor Law § 240 (1) is denied. The branch of defendant's motion for summary judgment on the claim brought under Labor Law § 240 (1) is denied. The branch of defendant's motion for summary judgment dismissing the claim brought under Labor Law § 241 (6) is denied to the extent that this claim has been predicated upon an alleged violation of 12 NYCRR 23-1.7 (d), and it is granted in all other respects. The branch of defendant's motion for summary judgment dismissing the claim brought under Labor Law § 200 is granted.
J.S.C.