Opinion
2021-04103 Index 159259/17
06-29-2021
Samuel Hayek et al., Plaintiffs-Appellants, v. Metropolitan Transportation Authority, et al., Defendants-Respondents. Appeal No. 14140 Case No. 2020-04257
Sacks & Sacks, LLP, New York (Scott N. Singer of counsel), for appellants. Smith Mazure, PC, New York (Louise M. Cherkis of counsel), for respondents.
Sacks & Sacks, LLP, New York (Scott N. Singer of counsel), for appellants.
Smith Mazure, PC, New York (Louise M. Cherkis of counsel), for respondents.
Before: Manzanet-Daniels, J.P., Kern, Mazzarelli, Shulman, JJ.
Order, Supreme Court, New York County (Suzanne J. Adams, J.), entered August 10, 2020, which denied plaintiffs' motion for partial summary judgment as to liability under Labor Law §§ 240(1) and 241(6) against defendants Metropolitan Transportation Authority, The New York City Transit Authority, Metropolitan Transit Authority (Capital Construction Company) and Tutor Perini Building Corp., unanimously reversed, on the law, without costs, and the motion granted.
Plaintiff Samuel Hayek demonstrated prima facie entitlement to summary judgment on his Labor Law § 240(1) claim, where the undisputed evidence showed that he was injured when struck by an improperly hoisted or inadequately secured load of L-shaped steel rebar weighing between 2000 and 3000 pounds, while doing construction work at defendant Metropolitan Transportation Authority's Eastside Access project, below Grand Central Terminal (see Gallegos v Bridge Land Vestry, LLC, 188 A.D.3d 566, 567-568 [1st Dept 2020]; Fraser v City of New York, 158 A.D.3d 428, 428 [1st Dept 2018]; McLean v Tishman Constr. Corp., 144 A.D.3d 534, 534-535 [1st Dept 2016]; Ray v City of New York, 62 A.D.3d 591 [1st Dept 2009]).
In opposition, defendants failed to raise a triable issue as to the statutory violation and whether plaintiff was the sole proximate cause of his injury. Given the undisputed evidence that plaintiff was following the directions of his foreman at the time of his injury, plaintiff cannot be the sole proximate cause of his injuries (see Vucetic v NYU Langone Med. Ctr., 173 A.D.3d 527, 527 [1st Dept 2019]; Harris v City of New York, 83 A.D.3d 104, 111 [1st Dept 2011]; Fernandez v BBD Developers, LLC, 103 A.D.3d 554, 555-556 [1st Dept 2013]).
Plaintiff is also entitled to partial summary judgment as to liability under Labor Law § 241(6) (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501-502 [1993]), as the evidence is undisputed that no spreader bars were in place when hoisting the load of rebar, despite it being approximately 20 feet in length, in violation of Industrial Code § 23-8.1 (e)(3); and that the load was not boxed, in violation of Industrial Code § 23-8.1(e)(4). Moreover, it is undisputed that the load of rebar suddenly accelerated and fell on top of plaintiff, in violation of Industrial Code § 23-8.1(f)(2)(i); and the load was not properly secured and balanced, in violation of Industrial Code § 23-8.1(f)(1)(iv). We note that these Industrial Code sections have been held to be sufficiently specific to support a section 241(6) claim (see Mulhern v Manhasset Bay Yacht Club, 22 A.D.3d 470, 471 [2d Dept 2005]; Harris, 83 A.D.3d 104, 111; Albano v Cornell Tech, 2020 NY Slip Op 31107[U] [Sup Ct, NY County 2020]).