Opinion
15073/04.
Decided October 10, 2006.
DiJoseph, Portegello Schust, Arnold E. DiJoseph, Esq., New York, NY, Attorney for Plaintiff.
Molod Spitz DeSantis PC, New York, NY, Attorney for Defendants.
The motion by defendants, Trustees of the Methodist Episcopal Church of Glen Cove, Glen Cove Trust Company and Carpenter Memorial United Methodist Church of Glen Cove (collectively referred to herein as the "Church"), for an Order of this Court, pursuant to CPLR 3212, granting summary judgment dismissal of the plaintiff's, Franklin Hansen ("Hansen"), complaint on the grounds that his claims are not covered under Labor Law § 200, § 240(1), or § 241(6) or the common law is GRANTED.
This is an action for personal injuries sustained by the plaintiff, Franklin Hansen, as a result of claimed Labor Law violations emanating out of a work site accident in Glen Cove, New York on August 31, 2003. Plaintiff, Franklin Hansen, alleges that on August 31, 2003, while under the employ of the defendant, Church, "sections of the roof and sofit [sic] of the [Church] fell on [him] thereby causing him to sustain serious personal injuries" ( see Bill of Particulars, ¶ 6).
The following facts are not in dispute. Plaintiff was a full time employee at Stop Shop. Plaintiff was hired by Shirley Paschier, a board member of the Church, to remove and replace the existing roof, the rotted soffit under the roof and the gutter ( see Plaintiff's EBT, pp. 21-22). Hansen agreed to perform these various jobs for the church "on a handshake" ( Id. at 18). Prior to commencing work, Hansen inspected the property and stated to Reverend William Wendler that "[t]his has got to be fixed, it might fall on somebody" ( Id. at 26). He testified that both the soffit and the gutter appeared to be in imminent danger of collapse ( Id. at 27). Reverend Wendler, at his EBT, denied ever meeting with Hansen or ever discussing with him the work that was to be performed ( Wendler EBT, p. 16).
On the morning of August 31st, plaintiff and his friend, Manuel Aguillera, arrived at the job site with two twenty or twenty-five foot aluminum extension ladders to perform their work. There was no one at the church when they arrived on the morning of the accident. Sorenson Lumber delivered the materials to the job site on that day. It is undisputed that although the plaintiff was given a key for the fence to enter the premises ( Plaintiff's EBT, pp. 36-37), the church did not provide him with any safety equipment at any time ( Reverend Wendler's EBT, p. 20).
On the morning of the accident, Hansen and Aguillera first inspected the area by climbing onto the roof to make sure it was stable. After performing their initial inspection, their plan was to remove the rotted portion of the soffit, a little section at a time — whatever could be taken down safely by using a hammer and pry bar ( Plaintiff's EBT, pp. 37-38).
Aguillera was on the roof assisting with the removal while Hansen was underneath standing on the ladder ( Id. at 39). On the morning of the accident, Hansen went up and down the ladder a couple of times to get different tools in order to do the job ( Id. at 41). At the time of the accident, after removing approximately ten feet of the roof which was sixty feet long ( Id. at 38), Hansen was back on the ground when he "[h]eard a crack and I saw the — it started to peel, and it was pulling everything with it, so I ran" ( Id. at 45, lines 6-9). Plaintiff was trying to run away from the building when the soffit and everything that was inside the deteriorated soffit fell on him ( Id. at 39-40, 44) injuring his left leg. Plaintiff confirmed at his EBT that the section of the soffit which fell on him was not a section that either he or Aguillera had yet worked on. Specifically he stated, as follows:
Q:Neither you or Mr. Aguillera had done any work around the second section either the roof, or the gutters, or the soffits before it happened?
A:No. That's why I am saying it collapsed, actually collapsed not where we were working, it collapsed from, I would say, three, four feet from where he was standing towards me. This was untouched because I was really concerned about what was by the road that it wouldn't fall, and that was the first section.
( See Plaintiff's EBT, pp. 46-47).
Labor Law § 200 codifies the common law duty of an owner or employer to provide employees a safe place to work ( Comes v. New York State Elec. Gas Corp. , 82 NY2d 876, 877, 631 NE2d 110, 609 NYS2d 168; Jock v. Fien , 80 NY2d 965, 605 NE2d 365, 590 NYS2d 878; Yong Ju Kim v. Herbert Construction Co. , Inc. , 275 AD2d 709, 713 NYS2d 190 [2nd Dept., 2000]). However, this duty is not absolute; it does not protect against an obvious danger, neither is it applicable where the work itself creates the hazard ( Schwartz v. U.S. , 229 F. Supp. 485 [Dist. Ct. N.D. 1962] citing Mullin v. Genesee County El. L., P. Gas Co. , 202 NY 275, 95 N.E. 689). The common law duty of an employer, as codified by Labor Law § 200 does not extend to hazards which are part of or inherent in the very work which the contractor is to perform ( Mullin v. Genesee County Elec. Light, Power Gas Co. , supra), or where the workmen are engaged for the specific purpose of repairing the defect ( Kowalsky v. Conreco Co. , 264 NY 125, 190 N.E. 206 rearg. den. 264 NY 674, 191 N.E. 620; Brugnano v. Merrill Lynch Co., Inc. , 216 AD2d 18, 627 NYS2d 635 [1st Dept., 1995]; Senkbeil v. Board of Ed. of City of NY , 23 AD2d 587, 256 NYS2d 831 [1st Dept., 1985] aff'd 18 NY2d 789, 221 NE2d 813, 275 NYS2d 273).
In this case, it is uncontroverted that the Church was not actively involved in any aspect of the repairs. Plaintiff argues, however, that defendants' actual knowledge of the dangerous condition of the soffit, as evidenced by plaintiff's deposition testimony, precludes their right to summary judgment under Labor Law § 200. This Court disagrees.
It is uncontroverted that the defendant Church did, in fact, have actual knowledge and notice of the unsafe condition, i.e., the rotting soffit, that allegedly caused the accident.
However, it is equally clear that replacing and repairing this rotted roof and soffit was precisely the work that the plaintiff was hired to perform ( see Plaintiff's EBT, pp. 21-22). The common law duty of the Church cannot possibly extend to the hazards which are part of and inherent in the very work which was to be performed ( see Gasper v. Ford Motor Co. , 13 NY2d 104, 192 NE2d 163, 242 NYS2d 205; see also Decker v. C S Wholesale Grocers, Inc. , 13 AD3d 573, 786 NYS2d 328 [2nd Dept., 2004]; Cannon v. State of New York , 232 AD2d 444, 648 NYS2d 349 [2nd Dept., 1996] lv. app. den. 89 NY2d 810, 679 NE2d 642, 657 NYS2d 403). As such, dismissal of plaintiff's Labor Law § 200 and common law negligence claims against it is granted.
Additionally, "[n]ot every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections 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" ( see Ross v Curtis-Palmer Hydro-Elec. Co. , 81 NY2d 494, 501, 601 NYS2d 48).
Labor Law § 240 (1) applies to both "falling worker" and "falling object" cases. The Court of Appeals in Narducci v. Manhasset Bay Associates , 96 NY2d 259, 727 NYS2d 37 (2001) stated, in pertinent part, as follows:
With respect to falling objects, Labor Law § 240(1) applies where the falling of an object is related to "a significant risk inherent in . . . the relative elevation . . . at which materials or loads must be positioned or secured" (citation omitted). Thus, for section 240(1) to apply, a plaintiff must show more than simply that an object fell causing injury to a worker. A plaintiff must show that the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute (citations omitted [emphasis added]). See Narducci v. Manhasset Bay Associates , supra at 267-268.
In this case that plaintiff was on the ground when the soffit fell on him. The soffit was not being hoisted or secured when it fell; nor is there any evidence (or allegation) in the record that plaintiff's injury was caused " because of the absence of a safety device ." The part of the soffit that collapsed injuring the plaintiff was part of the work site; it was part of the roof that required replacement. This is not a situation where a hoisting or securing device would have been necessary or even expected ( Narducci v. Manhasset Bay Associates , supra). In other words, the absence of a necessary hoisting or securing device did not cause the soffit to fall. This was simply a general hazard of the workplace ( Misseritti v. Mark IV Constr. Corp. , 86 NY2d 487, 657 NE2d 1318, 634 NYS2d 35, rearg.den. 87 NY2d 969, 664 NE2d 1260, 642 NYS2d 197). Thus, Labor Law § 240 (1) simply does not apply to the facts at hand and plaintiff has no prima facie claim under section 240. As such defendant's motion for summary judgment dismissal of plaintiff's Labor Law § 240(1) claim is granted.
Finally, Labor Law § 241(6) imposes liability on owners and general contractors for failure to comply with provisions of the industrial code, "even in the absence of control or supervision of the worksite" ( see Rizzuto v. Wenger Contr. Co. , 91 NY2d 343, 348-349, 693 NE2d 1068, 670 NYS2d 816). In this case, to the extent that plaintiff has failed to cite even one Industrial Code provision in his bills of particulars that the Church allegedly violated ( Delmar v. TerraStruct Corp. , 249 AD2d 259, 670 NYS2d 915 [2d Dept., 1998]; Sisu v. Wolinetz , 200 AD2d 663, 606 NYS2d 763 [2d Dept., 1994]), and insofar as plaintiff does not offer any opposition to the dismissal of his Labor Law § 241(6) claim ( O'Connor v. Lincoln Metrocenter Partners, L.P. , 266 AD2d 60, 698 NYS2d 632, [1ST Dept,. 1999]), defendants' motion for summary judgment dismissal of plaintiff's Labor Law § 241(6) claim is herewith granted.
This shall constitute the Decision and Order of this Court.