Opinion
2020-01358 Index No. 52299/17
02-22-2023
Nick CASTANO, appellant, v. ALGONQUIN GAS TRANSMISSION, LLC, et al., respondents, et al., defendants.
Hach & Rose, LLP, New York, NY (Michael A. Rose, David Cheverie, and Harris J. Zakarin, P.C., of counsel), for appellant. Goldberg Segalla, LLP, Buffalo, NY (Meghan M. Brown of counsel), for respondents.
Hach & Rose, LLP, New York, NY (Michael A. Rose, David Cheverie, and Harris J. Zakarin, P.C., of counsel), for appellant.
Goldberg Segalla, LLP, Buffalo, NY (Meghan M. Brown of counsel), for respondents.
COLLEEN D. DUFFY, J.P., REINALDO E. RIVERA, LINDA CHRISTOPHER, HELEN VOUTSINAS, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Maria G. Rosa, J.), dated January 22, 2020. The order, insofar as appealed from, (1) granted that branch of the motion of the defendants Algonquin Gas Transmission, LLC, and Henkels & McCoy, Inc., which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against them, (2) denied the plaintiff's cross-motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1), and (3) denied the plaintiff's separate cross-motion pursuant to CPLR 3025(b) for leave to amend the bill of particulars to allege violations of certain additional sections of the Industrial Code with regard to the cause of action alleging a violation of Labor Law § 241(6).
ORDERED that the order is modified, on the law and in the exercise of discretion, (1) by deleting the provision thereof granting that branch of the motion of the defendants Algonquin Gas Transmission, LLC, and Henkels & McCoy, Inc., which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against them, and substituting therefor a provision denying that branch of the motion, and (2) by deleting the provision thereof denying the plaintiff's cross-motion pursuant to CPLR 3025(b) for leave to amend the bill of particulars to allege violations of certain additional sections of the Industrial Code with regard to the cause of action alleging a violation of Labor Law § 241(6), and substituting therefor a provision granting that cross-motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
On June 2, 2016, the plaintiff allegedly was injured while working on a project to replace a section of an interstate natural gas transmission pipeline underneath the Hudson River. The defendant Algonquin Gas Transmission, LLC (hereinafter Algonquin), was the owner of the pipeline. The defendant Henkels & McCoy, Inc. (hereinafter Henkels), was the general contractor on the project. Henkels hired the plaintiff's employer, nonparty Southeast Directional Drilling (hereinafter Southeast), as a subcontractor.
The plaintiff testified at a deposition that, on the date of the alleged incident, he was unloading pipes, each weighing approximately 1,000 pounds, from a flatbed trailer. The plaintiff testified that he secured one of the pipes with a "choker" strap. Thereafter, as a coworker lifted the pipe using a CAT excavator, the pipe dropped, striking the plaintiff's leg.
The plaintiff commenced this action against, among others, Algonquin and Henkels (hereinafter together the defendants), alleging, inter alia, violations of Labor Law §§ 240(1) and 241(6). The defendants moved, among other things, for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against them. The plaintiff cross-moved for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1). Further, the plaintiff separately cross-moved pursuant to CPLR 3025(b) for leave to amend the bill of particulars to allege violations of certain additional sections of the Industrial Code with regard to the cause of action alleging a violation of Labor Law § 241(6). The Supreme Court, inter alia, granted that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against them and denied the plaintiff's cross motions. The plaintiff appeals.
Labor Law § 240(1) "imposes on owners or general contractors and their agents a nondelegable duty, and absolute liability for injuries proximately caused by the failure to provide appropriate safety devices to workers who are subject to elevation-related risks" ( Saint v. Syracuse Supply Co., 25 N.Y.3d 117, 124, 8 N.Y.S.3d 229, 30 N.E.3d 872 ). " Labor Law § 240(1) applies to both ‘falling worker’ and ‘falling object’ cases" ( Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267, 727 N.Y.S.2d 37, 750 N.E.2d 1085 ). "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’ " ( id. at 267–268, 727 N.Y.S.2d 37, 750 N.E.2d 1085, quoting Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514, 577 N.Y.S.2d 219, 583 N.E.2d 932 ). "[A] plaintiff must show that, at the time the object fell, it was being hoisted or secured, or that the falling object required securing for the purposes of the undertaking" ( Banscher v. Actus Lend Lease, LLC, 103 A.D.3d 823, 824, 960 N.Y.S.2d 183 ; see Simmons v. City of New York, 165 A.D.3d 725, 727, 85 N.Y.S.3d 462 ). A plaintiff must also show that "the object fell ... because of the absence or inadequacy of a safety device of the kind enumerated in the statute" ( Narducci v. Manhasset Bay Assoc., 96 N.Y.2d at 268, 727 N.Y.S.2d 37, 750 N.E.2d 1085 ; see Fabrizi v. 1095 Ave. of the Ams., L.L.C., 22 N.Y.3d 658, 663, 985 N.Y.S.2d 416, 8 N.E.3d 791 ).
"To succeed on a cause of action under Labor Law § 240(1), a plaintiff must establish that the defendant violated its duty and that the violation proximately caused the plaintiff's injuries" ( Roblero v. Bais Ruchel High Sch., Inc., 175 A.D.3d 1446, 1447, 109 N.Y.S.3d 329 ). Where the plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery under Labor Law § 240(1) (see Robinson v. East Med. Ctr., LP, 6 N.Y.3d 550, 553–555, 814 N.Y.S.2d 589, 847 N.E.2d 1162 ; Melendez v. 778 Park Ave. Bldg. Corp., 153 A.D.3d 700, 701, 59 N.Y.S.3d 762 ).
Here, the defendants failed to establish, prima facie, their entitlement to judgment as a matter of law. The evidence submitted in support of their motion, which included the plaintiff's deposition testimony, failed to eliminate all triable issues of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ). Triable issues of fact exist, inter alia, as to whether the plaintiff was the sole proximate cause of his injuries (see Houston v. State of New York, 171 A.D.3d 1145, 98 N.Y.S.3d 620 ), and whether the pipe fell because of the absence or inadequacy of a safety device (see Narducci v. Manhasset Bay Assoc., 96 N.Y.2d at 267–268, 727 N.Y.S.2d 37, 750 N.E.2d 1085 ; Carlton v. City of New York, 161 A.D.3d 930, 932–933, 77 N.Y.S.3d 445 ). Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against them, regardless of the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
The Supreme Court properly denied the plaintiff's cross-motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1), since the plaintiff's submissions similarly failed to eliminate all triable issues of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ).
"[L]eave to amend the pleadings to identify a specific, applicable Industrial Code provision may properly be granted, even after the note of issue has been filed, where the plaintiff makes a showing of merit, and the amendment involves no new factual allegations, raises no new theories of liability, and causes no prejudice to the defendant" ( Ventimiglia v. Thatch, Ripley & Co., LLC, 96 A.D.3d 1043, 1047, 947 N.Y.S.2d 566 [internal quotation marks omitted]; see Palaguachi v. Idlewild 228th St., LLC, 197 A.D.3d 1321, 1322, 153 N.Y.S.3d 585 ; Tuapante v. LG–39, LLC, 151 A.D.3d 999, 1000, 58 N.Y.S.3d 421 ).
Here, the Supreme Court improvidently exercised its discretion in denying the plaintiff's cross-motion pursuant to CPLR 3025(b) for leave to amend the bill of particulars to allege certain additional violations of sections of the Industrial Code with regard to the Labor Law § 241(6) cause of action. The plaintiff made a showing of merit, and the proposed amendment did not prejudice the defendants and did not involve new factual allegations or raise new theories of liability (see Palaguachi v. Idlewild 228th St., LLC, 197 A.D.3d at 1322, 153 N.Y.S.3d 585 ; Matute v. Town of Hempstead, 179 A.D.3d 1047, 1049, 114 N.Y.S.3d 688 ).
DUFFY, J.P., RIVERA, CHRISTOPHER and VOUTSINAS, JJ., concur.