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D'Avila v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
Jun 27, 1994
205 A.D.2d 729 (N.Y. App. Div. 1994)

Summary

holding the city not liable for a wrongful death caused by the NYCTA's own tools, equipment, or method or operation

Summary of this case from Forsee v. Metro. Transp. Auth.

Opinion

June 27, 1994

Appeal from the Supreme Court, Kings County (Hutcherson, J.).


Ordered that the order is reversed insofar as appealed from, on the law, the motion and the cross motion are granted, and the complaint and the third-party complaint are dismissed; and it is further,

Ordered that the appellants are awarded one bill of costs.

The decedent, an employee of the third-party defendant, New York City Transit Authority (hereinafter NYCTA), was killed when a subway train crashed into a crane that he was operating on the subway tracks. The plaintiff, the administrator of the estate of the decedent, brought this action against the City of New York (hereinafter the City), the owner of the premises, alleging violations of Labor Law §§ 200, 240, and 241, as well as common law negligence.

Under the facts of this case, the plaintiff has no cause of action pursuant to Labor Law § 240 Labor Law § 240 was enacted to protect workers against elevation-related risks (see, Smith v New York State Elec. Gas Corp., 82 N.Y.2d 781; Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494; Emanuel v. R.V.J. Constr. Corp., 183 A.D.2d 698; Sandi v. Chaucer Assocs., 170 A.D.2d 663; Rocovich v. Consolidated Edison Co., 167 A.D.2d 524, affd 78 N.Y.2d 509). Labor Law § 240 is not applicable merely because the decedent fell from the crane to the subway tracks as a result of the crash. While the crane was a hoist, and a hoist is one of the safety devices enumerated in Labor Law § 240 (1) that must be "placed" so as to afford the decedent "proper protection" within the meaning of the statute, any improper placement of the crane only risked a collision with an oncoming train.

The plaintiff also has no cause of action pursuant to Labor Law § 200, which is a codification of common-law negligence. The plaintiff failed to rebut the provisions of the lease between the City and the NYCTA which show that the City had relinquished all possession and control of the subway system to the NYCTA and that, therefore, the City had no ability to direct or control the decedent's work (see, Matera v. City of New York, 169 A.D.2d 759). The accident was caused by the NYCTA's own tools, equipment, or method of operation, for which the City is not liable (see, Comes v. New York State Elec. Gas Corp., 82 N.Y.2d 876; Lombardi v. Stout, 80 N.Y.2d 290).

Finally, the cause of action pursuant to Labor Law § 241 (6) must be dismissed because the plaintiff failed to allege a violation of a specific implementing regulation promulgated under that statute (see, Ross v. Curtis-Palmer Hydro-Elec. Co., supra; DeMattia v. Van Westerhaut Mola Social Sport Club, 204 A.D.2d 594; Narrow v. Crane-Hogan Structural Sys., 202 A.D.2d 841).

In light of the foregoing, we need not reach the parties' remaining contentions. Sullivan, J.P., Balletta, Copertino and Santucci, JJ., concur.


Summaries of

D'Avila v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
Jun 27, 1994
205 A.D.2d 729 (N.Y. App. Div. 1994)

holding the city not liable for a wrongful death caused by the NYCTA's own tools, equipment, or method or operation

Summary of this case from Forsee v. Metro. Transp. Auth.
Case details for

D'Avila v. City of New York

Case Details

Full title:ROBERT D'AVILA, Respondent, v. CITY OF NEW YORK, Defendant and Third-Party…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 27, 1994

Citations

205 A.D.2d 729 (N.Y. App. Div. 1994)
613 N.Y.S.2d 435

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