Summary
finding liability under Labor Law § 240 even though the falling object did not strike the worker because the object required securing for the purposes of the undertaking
Summary of this case from Foyze v. Maximum Sec. Prods. Corp.Opinion
2012-05-30
Dino J. ANDRESKY, appellant, v. WENGER CONSTRUCTION CO., INC., respondent.
Edmond C. Chakmakian, P.C., Hauppauge, N.Y. (Anne Marie Caradonna of counsel), for appellant. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Gregory A. Cascino of counsel), for respondent.
Edmond C. Chakmakian, P.C., Hauppauge, N.Y. (Anne Marie Caradonna of counsel), for appellant. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Gregory A. Cascino of counsel), for respondent.
DANIEL D. ANGIOLILLO, J.P., PLUMMER E. LOTT, SHERI S. ROMAN, and ROBERT J. MILLER, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Adams, J.), dated April 13, 2011, which denied his motion for summary judgment on the issue of liability on the cause of action alleging violation of Labor Law § 240(1).
ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability on the cause of action alleging violation of Labor Law § 240(1) is granted.
The plaintiff was shoveling concrete out of a container which had been placed on the planks of a scaffold. The container had been raised onto the scaffold by a coworker using a forklift. The plaintiff observed that about one-third of the container hung over the edge of the planks of the scaffold, but the container did not exhibit any instability prior to the accident. After the plaintiff had removed about 15 shovelfuls of concrete from the container in the presence of his foreman, the container tipped off the edge of the scaffold. The plaintiff, who was just removing his shovel from the container when it tipped over, was pulled down with it, and allegedly was injured. The tipping container also pushed the unsecured planks off the metal piping of the scaffold so that they, too, fell to the ground.
The plaintiff commenced this action against the defendant alleging violations of, among other statutes, Labor Law § 240(1). The plaintiff moved for summary judgment on the issue of liability on that cause of action. The defendant opposed the motion, contending that there was a triable issue of fact as to whether the defendant violated Labor Law § 240(1) or, even if there was a violation, whether any such violation was a proximate cause of the accident. The Supreme Court denied the plaintiff's motion. The plaintiff appeals, and we reverse.
“ ‘[F]alling object’ liability under Labor Law § 240(1) is not limited to cases in which the falling object is in the process of being hoisted or secured” ( Quattrocchi v. F.J. Sciame Constr. Corp., 11 N.Y.3d 757, 758–759, 866 N.Y.S.2d 592, 896 N.E.2d 75;see Sung Kyu–To v. Triangle Equities, LLC, 84 A.D.3d 1058, 1059–1060, 923 N.Y.S.2d 628;Vargas v. City of New York, 59 A.D.3d 261, 261, 873 N.Y.S.2d 295). Rather, liability may be imposed where an object or material that fell, causing injury, was “a load that required securing for the purposes of the undertaking at the time it fell” ( Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 268, 727 N.Y.S.2d 37, 750 N.E.2d 1085;see Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514, 577 N.Y.S.2d 219, 583 N.E.2d 932;Sung Kyu–To v. Triangle Equities, LLC, 84 A.D.3d at 1059–1060, 923 N.Y.S.2d 628;Portillo v. Roby Anne Dev., LLC, 32 A.D.3d 421, 421, 819 N.Y.S.2d 566). The Court of Appeals has recognized that “the applicability of the statute in a falling object case ... does not ... depend upon whether the object has hit the worker” ( Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 604, 895 N.Y.S.2d 279, 922 N.E.2d 865). “The relevant inquiry ... is rather whether the harm flows directly from the application of the force of gravity to the object” ( id. at 604, 895 N.Y.S.2d 279, 922 N.E.2d 865).
Here, the plaintiff established, prima facie, that the container of concrete constituted a load that required securing and that the defendant's failure to use an appropriate safety device to secure it was a proximate cause of his injury ( id.; see Outar v. City of New York, 5 N.Y.3d 731, 732, 799 N.Y.S.2d 770, 832 N.E.2d 1186;De Haen v. Rockwood Sprinkler Co., 258 N.Y. 350, 353–354, 179 N.E. 764;Harrison v. State of New York, 88 A.D.3d 951, 951–952, 931 N.Y.S.2d 662;Castillo v. 62–25 30th Ave. Realty, LLC, 47 A.D.3d 865, 866, 850 N.Y.S.2d 616;Coque v. Wildflower Estates Developers, Inc., 31 A.D.3d 484, 487–488, 818 N.Y.S.2d 546;Orner v. Port Auth. of N.Y. & N.J., 293 A.D.2d 517, 517–518, 740 N.Y.S.2d 414;see also Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 562, 606 N.Y.S.2d 127, 626 N.E.2d 912;Quinteros v. P. Deblasio, Inc., 82 A.D.3d 861, 862, 918 N.Y.S.2d 526;Mooney v. PCM Dev. Co., 238 A.D.2d 487, 488, 656 N.Y.S.2d 655).
In opposition, the defendant failed to raise a triable issue of fact as to whether the plaintiff was provided with appropriate safety devices or whether the plaintiff was the sole proximate cause of his alleged injuries ( see Gallagher v. New York Post, 14 N.Y.3d 83, 88–89, 896 N.Y.S.2d 732, 923 N.E.2d 1120;McCallister v. 200 Park, L.P., 92 A.D.3d 927, 939 N.Y.S.2d 538;Quinteros v. P. Deblasio, Inc., 82 A.D.3d at 862, 918 N.Y.S.2d 526;Coque v. Wildflower Estates Developers, Inc., 31 A.D.3d at 487–488, 818 N.Y.S.2d 546;see also Rico–Castro v. Do & Co N.Y. Catering, Inc., 60 A.D.3d 749, 750, 874 N.Y.S.2d 576;Brandl v. Ram Bldrs., Inc., 7 A.D.3d 655, 655–656, 777 N.Y.S.2d 511). Accordingly, the Supreme Court should have granted the plaintiff's motion for summary judgment on the issue of liability on the cause of action alleging violation of Labor Law § 240(1).