Coyne v. Consol. Edison Co. of N.Y., Inc.

Full title: COLLIN COYNE, Plaintiff, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.…

Court: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

Date published: Jul 10, 2014

2014 N.Y. Slip Op. 32016 (N.Y. Sup. Ct. 2014)

Opinion

Index No. 150183/10 Third-Party Index No. 591040/10

07-10-2014

COLLIN COYNE, Plaintiff, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendant. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Third-Party Plaintiff, v. KIEWIT CONSTRUCTORS INC., Third-Party Defendant.

Mills, J.

:

Motion sequence numbers 002 and 003 are hereby consolidated for disposition.

This is an action to recover damages for personal injuries sustained by a laborer on December 9, 2009, while he was working at the construction site known as the M29 Harlem River Tunnel, located at 4135 9^th Avenue, New York, New York (the premises).

In motion sequence number 002, plaintiff Collin Coyne moves, pursuant to CPLR 3212, for partial summary judgment in his favor as to liability on the Labor Law § 240 (1) claim against defendant Consolidated Edison Company of New York, Inc. (Con Ed).

In motion sequence number 003, defendant Con Ed moves, pursuant to CPLR 3212, for summary judgment dismissing plaintiff's common-law negligence and Labor Law § 200 claims against it.

BACKGROUND

On the day of the accident, nonparty Kiewit Constructors Inc. (Kiewit) served as the general contractor on a project which entailed constructing a tunnel for owner Con Ed under the Harlem River to bring power to the Academy Substation in the Bronx (the project). Plaintiff was employed as a laborer by Kiewit.

Plaintiff's Deposition Testimony

Plaintiff testified that his work for Kiewit included "[p]rimarily concrete work, installing rebar and pouring concrete" (plaintiff's notice of motion, exhibit 5, plaintiff's tr at 29). Plaintiff testified that, while on the project, "[his] directions [came] from [his] foreman, that's the correct channels to go through" (id. at 31). Except for an instance where he was asked to install a ladder, plaintiff could not remember a specific time that he received direction from defendant Con Ed.

Plaintiff explained that, at the time of the accident, a water pump located at the bottom of a 200-foot-deep shaft (the shaft), as well as 20-30 feet of electrical cable that fed power to the pump was in the process of being replaced (the cable). A rope was used to hold the coiled up cable in place at the top of the shaft. Plaintiff explained that while he and his Kiewit co-workers were in the process of installing a safety net over the shaft, the rope which supported the heavy cable snapped, causing the cable to begin to spool into the shaft. At this time, plaintiff's left foot was standing within one of the loops of cable. Plaintiff testified that the loop of cable then "grabbed [his] leg, pulled [him] up to the rail, in the concrete block at the end of the shaft and broke both the bones of [his] leg and [his] ankle" (id. at 46). Plaintiff maintained that he did not attempt to stop the cable from spooling into the net with his foot.

Plaintiff also testified that he never filled out an accident report regarding the accident, and that no one ever asked him any questions for that purpose.

Plaintiff's Affidavit

In plaintiff's affidavit, dated October 7, 2013, plaintiff stated that "the accident happened when a power cable weighing roughly 1,000 pounds, which extended from the surface to a pump at the bottom of one of the tunnel shafts, broke loose, began to fall down the shaft, and wrapped around [his] ankle" (plaintiff's notice of motion, plaintiff's aff). Plaintiff further stated that the accident was the result of the cable becoming improperly entangled in the net. Plaintiff explained that, as "the crane started to lift the net, it also inadvertantly lifted the cable, causing a rope tied to the cable to break" (id.). When the rope broke, the cable began to fall into the shaft under its own weight, and "[a] loop in the cable grabbed [his] foot" (id.).

Plaintiff explained that three Kellum grips, which had routinely been used "as braces to hold the cable in place," were not in place at the time of the accident (id. at 3). These grips "were routinely used to evenly distribute the cable's weight: one at the top of the cable, a second in the middle, and a third at the bottom" (id.). Therefore, "once the rope broke, nothing prevented the cable from falling down the shaft" (id.).

Deposition Testimony of Adam Ouattara (Con Ed's Chief Construction Inspector)

Adam Ouattar testified that he served as Con Ed's chief construction inspector on the day of the accident. He stated that Kiewit was the general contractor on the project, which entailed constructing a tunnel for Con Ed under the Harlem River to bring power to the Academy Substation in the Bronx. As chief construction inspector, Ouattara's duties included inspecting Kiewit's work to make sure that it was performed in accordance with its contract with Con Ed (the contract), and for purposes of making progress payments.

Ouattara described the shaft at issue in this case as having a diameter of approximately 36 feet and a depth of approximately 150 feet. The shaft was surrounded by a three-foot in diameter concrete shaft collar (the collar). Safety netting was used to cover the shaft at night to prevent people from falling in. In order to install the safety netting, a crane would lift the netting over the shaft, and then the workers would tie it down to the structure. Ouattara noted that it required a crane to lift the net in order to place it over the shaft. Outtar also noted that, although the contract required a hard cover or roof to cover the shaft, netting was used instead.

Ouattara also testified that Kiewit performed pump and cable installations for the project. He noted that Con Ed was not responsible for safety at the site, but that Kiewit had a safety representative on site. At his deposition, Ouattara testified, as follows:

Q. Who from Kiewit would be responsible for the placing of the netting back over the shaftway?



A. The workers.



Q. Would they be supervised by somebody?



A. While placing the netting?



Q. Yes. Who would tell them when to place the netting, how to - - would anyone direct them as it was going on, someone directed the crane?



A. Those are the workers, once they come, sandhog, they have those sandhog would come out . . . as soon as they come out they just spreading the netting"

(Con Ed's opposition, exhibit E, Ouattara's tr at 46).

When Ouattara was asked specifically "do you know if anyone from Kiewit would supervise them while they were placing the netting?" Ouattara replied, "I know they have a supervisor on site, but doing, putting netting and supervisor standing there I don't know" (id.). When Ouattara was asked if he ever supervised any employees covering the shaft with the net, Ouattara replied, "I don't supervise Kiewit employees" (id. at 113). When Ouattara was asked if, other than himself, "[were] there any other [Con Ed] employees on the job site at the time that this accident occurred, Ouattara replied, "No" (id. at 52).

Affidavit of Sean Menge, Kiewit's Project Manager

In his affidavit, Sean Menge stated that he was Kiewit's project manager on the day of the accident. He also stated that Kiewit served as the general contractor on the project pursuant to the contract," and that Kiewit hired and directed the work of plaintiff. In addition, Kiewit also "determined the means and methods by which its employees performed their work" (Con Ed's affirmation in opposition, exhibit A, Menge aff).

Menge stated that plaintiff's union shop steward, Richard Riordan, told him that "the accident happened when plaintiff attempted to stop the cable from feeding into the shaft by stepping on it" (id.). Menge opined that "had plaintiff not attempted to step on the cable, the accident would not have occurred" (id.).

Con Ed's Injury Report

The following description of the accident was noted in Con Ed's injury report, dated December 9, 2009:

"At the end of the second shift, the employee was assisting the crew install the safety net on top of the Manhattan shaft. The employee positioned his left leg within a coil of cable used to power the dewatering pumps. A rope securing the cable to the concrete ring collar broke causing the cable to spool down into the shaft. The employee's leg became pinned between the cable and the concrete,

violated and that this violation was a proximate cause of the plaintiff's injuries (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287 [2003]; Felker v Coming Inc., 90 NY2d 219, 224-225 [1997]; Torres v Monroe Coll., 12 AD3d 261, 262 [1^st Dept 2004]).

Initially, Con Ed argues that plaintiff failed to meet his summary judgment burden in that he submitted only his attorney's affirmation and no other evidence to support his contention that the accident happened because of the absence and/or failure of certain safety devices covered by Labor Law § 240 (1), such as an expert affidavit. However, in fact, plaintiff sustained his burden by putting forth evidence which includes the transcripts of plaintiff's and Ouattara's depositions, plaintiff's affidavit, photographs of the accident scene and Con Edison's own accident report and daily log book.

Moreover, expert testimony is required only when the subject matter is "beyond the ken of the typical juror," or when the issues involved are of "such scientific or technical complexity as to require the explanation of an expert in order for the jury to comprehend them" (Hendricks v Baksh, 46 AD3d 259, 260 [1^st Dept 2007]). Here, Con Ed has not sufficiently established that the subject matter and issues involved in the case at bar are such that expert testimony is necessary.

Con Ed also contends that Labor Law § 240 (1) does not apply to the facts of this case, because plaintiff was not struck by a falling object. However, in the case of Runner v New York Stock Exch., Inc. (13 NY3d 599, 604 [2009]), the Court of Appeals explicitly held that "the applicability of the statute in a falling object case . . . does not . . . depend upon whether the object has hit the worker." Rather, "[t]he relevant inquiry - one which may be answered in the affirmative even in situations where the object does not fall on the worker - is rather whether the harm flows directly from the application of the force of gravity to the object" (id.).

In Runner, the plaintiff and several of his co-workers were instructed to move a large reel of wire, which weighed approximately 800 pounds, down a set of about four stairs. To prevent the reel from rolling freely down the stairs, the workers tied one end of a ten-foot length of rope to the reel and then wrapped the rope around a horizontally-placed metal bar which was positioned horizontally across a door jamb at the same level of the reel. The plaintiff and his coworkers held the loose end of the rope while two other workers began to push the reel down the stairs. As the reel began to descend, it pulled the plaintiff and his co-workers, who were acting as counterweights, toward the metal bar. The plaintiff injured both his hands when they were jammed into the bar (id. at 602).

In finding that the plaintiff was entitled to recovery under Labor Law § 240 (1), the Court of Appeals reasoned:

"Here, as the District Court correctly found, the harm to plaintiff was the direct consequence of the application of the force of gravity to the reel. Indeed, the injury to plaintiff was every bit as direct a consequence of the descent of the reel as would have been an injury to a worker positioned in the descending reel's path. The latter worker would certainly be entitled to recover under section 240 (1) and there appears no sensible basis to deny plaintiff the same legal recourse"

(id. at 604; see Harris v City of New York, 83 AD3d 104, 110 [1^st Dept 2011]; Apel v City of New York, 73 AD3d 406, 407 [1^st Dept 2010]). Here, like the plaintiff in Runner, plaintiff's injury was the direct consequence of the application of force to the cable, and thus, he is entitled to recovery under Labor Law § 240 (1).

In opposition, Con Ed further argues that, in order for Labor Law § 240 (1) to apply, the hazard must have arisen out of an appreciable differential in height between the object that fell and the work, and that the work site itself must be elevated above, or position below, the area where the object is being secured or hoisted (see Melo v Consolidated Edison Co. of N.Y., 92 NY2d 909, 911 [1998]; Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]). Con Ed argues that, as such, plaintiff is not entitled to judgment under Labor Law § 240 (1), because plaintiff testified that his leg was pulled only two to three feet into the collar.

However, as set forth by the Court of Appeals in the more recent case of Wilinski v 334 East 92^nd Hous. Dev. Fund Corp. (18 NY3d 1, 7 [2011]), a height differential cannot be considered de minimis if the heavy weight of the object that fell makes it capable of generating an extreme amount of force, even though it traveled only a short distance (see also Harris v City of New York, 83 AD3d at 110 [where "the slab weighed more than one ton . . . [its] rapid descent of just three feet was capable of generating a significant amount of force"]; Runner v New York Stock Exch., 13 NY3d at 605 [the elevation differential at issue could not "be viewed as de minimis, particularly given the weight of the object and the amount of force it was capable of generating, even over the course of a relatively short descent"]; Marrero v 2075 Holding Co., LLC, 106 AD3d 408, 409 [1^st Dept 2013] ["(g)iven the beams' total weight of 1,000 pounds and the force they were able to generate during their descent, the height differential was not de minimis"]). Here, in light of the substantial weight of the cable and the speed in which it pulled plaintiff's leg into the collar as it spooled into the shaft, it cannot be said that the height differential was de minimis.

In addition, Con Ed puts forth that plaintiff must show more than simply that an object fell causing injury to a worker, he must show that the object fell, while being hoisted or secured, because of some absence or inadequacy of a safety device of the kind enumerated in the statute. However, as argued by plaintiffs, case law supports the notion that a falling object need not be in the process of being hoisted or secured in order for the accident to be covered under Labor Law § 240 (1). It is enough that said object simply needed securing "'for the purposes of the undertaking,'" such as the cable in the instant case (Moncayo v Curtis Partition Corp., 106 AD3d 963, 964 [2d Dept 2013], quoting Outar v City of New York, 5 NY3d 731, 732 [2005] [Labor Law § 240 (1) applicable where plaintiff was struck by an unsecured dolly, which was being stored on top of a bench wall, and thus, it was not in the process of being hoisted or secured at the time that it fell on the plaintiff]; see also Narducci v Manhasset Bay Assoc., 96 NY2d at 268; Quattrocchi v F.J. Sciame Constr. Corp., 11 NY3d 757, 758-759 [2008]; Vargas v City of New York, 59 AD3d 261, 261 [1^st Dept 2009]; Boyle v 42^nd St. Dev. Project, Inc., 38 AD3d 404, 405 [1^st Dept 2007]; Portillo v Roby Anne Dev., LLC, 32 AD3d 421, 421 [2d Dept 2006] [Labor Law § 240 (1) liability imposed where the steel beam that fell on plaintiff needed to be secured for the purposes of the undertaking]; Bush v Gregory/Madison Ave., 308 AD2d 360, 361 [1^st Dept 2003] [issue of fact as to whether a security device would have been necessary to shield worker from falling iron angle that was inadequately secured]; Orner v Port Auth. of N.Y. & N.Y., 293 AD2d 517, 518 [2d Dept 2002]).

Con Ed further argues that plaintiff did not meet his burden of showing that Con Ed failed to provide an adequate safety device of the kind enumerated in section 240 (1) that could have prevented his fall (see Broggy v Rockefeller Group, Inc., 8 NY3d 675, 681 [2007] ["(t)he burden of showing that an elevation-related risk exists, and that the owner or contractor did not provide adequate safety devices falls upon the plaintiff"]). However, in fact, plaintiff put forth sufficient evidence in the form of photographs and testimony that the accident occurred because the rope that was holding the cable in place failed under the tension of the falling cable. Thus, the rope was not an adequate safety device. Moreover, as set forth in plaintiff's affidavit annexed to his motion, plaintiff stated that three Kellum grips, which had routinely been used "as braces to hold the cable in place," were not in place at the time of the accident (plaintiff's notice of motion, plaintiff's aff). These grips "were routinely used to evenly distribute the cable's weight: one at the top of the cable, a second in the middle, and a third at the bottom" (id.). Therefore, "once the rope broke, nothing prevented the cable from falling down the shaft" (id.). It should also be noted that if Gon Ed had used a hard cover instead of the net, as required in the contract, it is likely that the cable would not have become entangled in the net in the first place.

Further, contrary to Con Ed's argument, in order to make out a Labor Law § 240 (1) claim, plaintiff does not have to establish that it was foreseeable that the subject cable was in need of securing by an enumerated device strong enough to stop the force of the crane. Plaintiff need only establish that he was injured "when an elevation-related safety device failed to perform its function to support and secure him from injury" (Ortega v City of New York, 95 AD3d 125, 128 [1^st Dept 2012], citing Morin v Machnick Bldrs., 4 AD3d 668, 670 [3d Dept 2004]).

"Indeed, it has been firmly established that in order to make out a valid claim under Labor Law § 240, a 'plaintiff need not demonstrate that the precise manner in which the accident happened or the injuries occurred was foreseeable; it is sufficient that he demonstrate that the risk of some injury from defendants' conduct was foreseeable'"

(id., quoting Gordon v Eastern Ry. Supply, 82 NY2d 555, 562 [1993]).

Finally, in opposition, Con Ed argues that plaintiff is not entitled to judgment in his favor, because evidence exists to support the notion that plaintiff caused his accident when he stepped on the cable to prevent it from spinning into the shaft. Therefore, Con Ed argues that a question of fact exists as to whether plaintiff was the sole proximate cause of his accident. "When the defendant presents some evidence that the device furnished was adequate and properly placed and that the conduct of the plaintiff may be the sole proximate cause of his or her injuries, partial summary judgment on the issue of liability will be denied because factual issues exist" (Ball v Cascade Tissue Group-N.Y., Inc., 36 AD3d 1187, 1188 [3d Dept 2007]; Robinson v East Med. Ctr., LP, 6 NY3d 550, 554 [2006] [where a plaintiff's own actions are the sole proximate cause of the accident, there can be no liability under Labor Law § 240 (1)]; Montgomery v Federal Express Corp., 4 NY3d 805, 806 [2005]; Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39 [2004] [where an employer has made available adequate safety devices and an employee has been instructed to use them, the employee may not recover under Labor Law § 240 (1) for injuries caused solely by his violation of those instructions]; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d at 290).

In his moving papers, plaintiff asserts that the accident was caused when the rope securing the cable broke, causing the cable to spool down the shaft. Plaintiff, whose foot was positioned within a coil of the cable, was injured when his leg became pinned between the shaft guard rail and the collar. Notably, plaintiff specifically testified that he did not "attempt to stop the cable from spooling into the net with [his] foot" (plaintiff's notice of motion, exhibit 5, plaintiff's tr at 60). In opposition, defendants offer no evidence, other than mere speculation, to refute plaintiff's showing or to raise a bona fide issue as to how the accident occurred (see Pineda v Kechek Realty Corp., 285 AD2d 496, 497 [2d Dept 2001]; Hauff v CLXXXII Via Magna Corp., 118 AD2d 485, 486 [1^st Dept 1986]).

To that effect, Con Ed puts forth the affidavit of Sean Menge, Kiewif s project manager, as well as the Incident Alert Report prepared by Menge, wherein he states that plaintiff's union shop steward, Richard Riordan, told him that "the accident happened when plaintiff attempted to stop the cable from feeding into the shaft by stepping on it" (Con Ed's opposition, exhibit A, Menge aff). Menge opined that "had plaintiff not attempted to step on the cable, the accident would not have occurred" (id.).

However, importantly, in his affidavit, Menge does not explicitly state that Riordan, or anyone else that he spoke to about the accident, actually witnessed the events of plaintiff's accident, nor does Menge provide any other factual basis for Riordan's conclusion regarding the cause of plaintiff's accident. As such, Menge's statements concerning the cause of the accident contained in his affidavit should not be given any probative force (see Amatulli v Delhi Constr. Corp., 77 NY2d 525, 533-534 n 2 [1991]; Silas v Bridgeview Invs., LLC, 79 AD3d 727, 731 [2d Dept 2010] [evidence contained in project superintendent's affidavit, in which he alleged that the plaintiff and his coworker removed a barricade, deemed without probative value, where "his affidavit contained no indication that he witnessed the removal of the barricade, and did not set forth a factual basis for his conclusion that the barricade was removed by the (plaintiff) and his coworker"]; Jones v City of New York, 32 AD3d 706, 707 [1^st Dept 2006]).

In any event, plaintiff's alleged conduct in attempting to step on the cable to prevent it from falling into the shaft goes to the issue of comparative fault, and comparative fault is not a defense to a Labor Law § 240 (1) cause of action, because the statute imposes absolute liability once a violation is shown (Bland v Manocherian, 66 NY2d 452, 460 [1985]; Velasco v Green-Wood Cemetery, 8 AD3d 88, 89 [1^st Dept 2004] ["Given an unsecured ladder and no other safety devices, plaintiff cannot be held solely to blame for his injuries"]). "[T]he Labor Law does not require a plaintiff to have acted in a manner that is completely free from negligence. It is absolutely clear that 'if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it'" (Hernandez v Bethel United Methodist Church of N.Y., 49 AD3d 251, 253 [1^st Dept 2008], quoting Blake v Neighborhood Hous. Servs. of N.Y., 1 NY3d at 290).

Where "the owner or contractor fails to provide adequate safety devices to protect workers from elevation-related injuries and that failure is a cause of plaintiff's injury, the negligence, if any, of the injured worker is of no consequence [internal quotation marks and citation omitted]" (Tavarez v Weissman, 297 AD2d 245, 247 [1^st Dept 2002]; see Ranieri v Holt Constr. Corp., 33 AD3d 425, 425 [1^st Dept 2006] [Court found that failure to supply plaintiff with a properly secured ladder or any other safety devices was a proximate cause of his fall, and there was no reasonable view of the evidence to support defendants' contention that plaintiff was the sole proximate cause of his injuries]; Lopez v Melidis, 31 AD3d 351, 351 [1^st Dept 2006]; Torres v Monroe Coll., 12 AD3d at 262 [Court noted that even if another cause of the accident was plaintiff's own improper use of an unopened A-frame ladder leaned against the wall from atop the scaffold, defendant's failure to ensure that the scaffold plaintiff needed to use to perform his assigned task provided proper protection, and was properly secured and braced, constituted a proximate cause of the accident]).

Importantly, Labor Law § 240 (1) "is designed to protect workers from gravity-related hazards . . . and must be liberally construed to accomplish the purpose for which it was framed [internal citations omitted]" (Valensisi v Greens at Half Hollow, LLC, 33 AD3d 693, 695 [2d Dept 2006]). "As has been often stated, the purpose of Labor Law § 240 (1) is to protect workers by placing responsibility for safety practices at construction sites on owners and general contractors, 'those best suited to bear that responsibility' instead of on the workers, who are not in a position to protect themselves" (John v Baharestani, 281 AD2d at 117, quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 500).

Thus, plaintiff is entitled to partial summary judgment on the issue of liability under Labor Law § 240 (1) against defendant Con Ed.

Plaintiff's Common-law Negligence and Labor Law § 200 Claims Against Con Ed (motion sequence number 003)

Labor Law § 200 is a "'codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work' [citation omitted]" (Cruz v Toscano, 269 AD2d 122, 122 [1^st Dept 2000]; see also Russin v Louis N. Picciano & Son, 54 NY2d 311, 316-317 [1981]). Labor Law § 200 (1) states, in pertinent part, as follows:

"1. All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons."

There are two distinct standards applicable to section 200 cases, depending on the kind of situation involved: when the accident is the result of the means and methods used by the contractor to do its work, and when the accident is the result of a dangerous condition (see McLeod v Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Sts., 41 AD3d 796, 797-798 [2d Dept 2007]).

"Where an existing defect or dangerous condition caused the injury, liability [under Labor Law § 200] attaches if the owner or general contractor created the condition or had actual or constructive notice of it" (Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139, 144 (1^st Dept 2012); Murphy v Columbia Univ., 4 AD3d 200, 202 [1^st Dept 2004] [to support a finding of a Labor Law § 200 violation, it was not necessary to prove general contractor's supervision and control over plaintiff's work, because the injury arose from the condition of the work place created by or known to contractor, rather than the method of the work]).

It is well-settled that, in order to find an owner or his agent liable under Labor Law § 200 for defects or dangers arising from a subcontractor's methods or materials, it must be shown that the owner or agent exercised some supervisory control over the injury-producing work (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993] [no Labor Law § 200 liability where the plaintiff's injury was caused by lifting a beam and there was no evidence that the defendant exercised supervisory control or had any input into how the beam was to be moved]).

Moreover, "general supervisory control is insufficient to impute liability pursuant to Labor Law § 200, which liability requires actual supervisory control or input into how the work is performed" (Hughes v Tishman Constr. Corp., 40 AD3d 305, 311 [1^st Dept 2007]; see also Bednarczyk v Vornado Realty Trust, 63 AD3d 427, 428 [1^st Dept 2009] [Court dismissed common-law negligence and Labor Law § 200 claims where the deposition testimony established that, while the defendant's "employees inspected the work and had the authority to stop it in the event they observed dangerous conditions or procedures," they "did not otherwise exercise supervisory control over the work"]; Burkoski v Structure Tone, Inc., 40 AD3d 378, 381 [1^st Dept 2007] [no Labor Law § 200 liability where the defendant construction manager did not tell subcontractor or its employees how to perform subcontractor's work]; Smith v 499 Fashion Tower, LLC, 38 AD3d 523, 524-525 [2d Dept 2007]).

Here, the accident was caused as plaintiff was assisting with the installation of the safety net on top of the shaft. As discussed previously, the accident occurred when a rope securing the cable broke. The failure of this anchor system caused the cable to spool down the shaft, causing plaintiff, whose foot became caught in the cable, to become injured. Therefore, contrary to plaintiff's argument in his opposition, plaintiff was injured, not because of any inherently dangerous condition of the property itself, but rather, as asserted by Con Ed, because of "'a defect in the subcontractor's own plant, tools and methods, or through negligent acts of the subcontractor occurring as a detail of the work'" (Lombardi v Stout, 178 AD2d 208, 210 [1^st Dept 1991], affd as mod 80 NY2d 290 [1992], quoting Persichilli v Triborough Bridge & Tunnel Auth., 16 NY2d 136, 145 [1965]; see also Cappabianca v Skanska USA Bldg. Inc., 99 AD3d at 146 ["Since defendants could not control the activity that continuously produced the water, namely, the operation of the wet saw, they lacked any ability to correct the unsafe condition and thus were not liable under section 200 or for negligence (citation omitted)"]; McCormick v 257 W. Genesee, LLC, 78 AD3d 1581, 1582 [4^th Dept 2010] [tripping hazard created by pin, which was stored on a wooden form and was to be inserted into a form to hold it together during a concrete pour, was created by the manner in which plaintiff's employer performed its work, rather than an unsafe premises condition]; Dalanna v City of New York (308 AD2d 400, 400 [1^st Dept 2003] [protruding bolt was not a defect inherent in the property, but instead, its presence was the result of the manner in which the plaintiff's employer performed its work]). Therefore, in order to find Con Ed liable under Labor Law § 200, it must be shown that it exercised some supervisory control over the installation of the safety net over the shaft.

As argued by Con Ed, Con Ed cannot be held liable pursuant to common-law negligence and Labor Law § 200 or common-law negligence theories, because plaintiff, as well as the other Kiewit workers, only received instruction and direction regarding the installation of the safety netting from Kiewit employees. As set forth previously, at his deposition, Ouattara, Con Ed's chief construction inspector on the project, testified that Kiewit was responsible for the placing the net over the shaft. He also testified that the Kiewit was responsible for supervising how the net was to be placed.

In addition, in his affidavit, Menge stated that Kiewit hired and directed the work of plaintiff, and that Kiewit "determined the means and methods by .which its employees performed their work" (Con Ed's affirmation in opposition, exhibit A, Menge aff). Further, plaintiff also testified that "[his] directions come from [his] foreman" (plaintiff's notice of motion, exhibit 5, plaintiff's tr at 31). Except for an instance where he was asked to install a ladder, plaintiff could not remember a specific time that he received direction from Con Ed.

Thus, defendant Con Ed is entitled to summary judgment dismissing plaintiff's common-law negligence and Labor Law § 200 claims against it.

CONCLUSION AND ORDER

For the foregoing reasons, it is hereby

ORDERED that plaintiff Collin Coyne's motion (motion sequence number 002), pursuant to CPLR 3212, for partial summary judgment in his favor as to liability on the Labor Law § 240 (1) claim against defendant Consolidated Edison Company of New York, Inc. (Con Ed) is granted; and it is further

ORDERED that defendant Con Ed's motion (motion sequence number 003), pursuant to CPLR 3212, for summary judgment dismissing plaintiff's common-law negligence and Labor Law § 200 claims against it is granted, and these claims are severed and dismissed; and it is further

ORDERED that the remainder of the action shall continue. DATED: 7/10/14

ENTER:

/s/_________

J.S.C.