Opinion
100053/12
04-13-2015
Anthony Cicillini, Plaintiff, v. The New York City Transit Authority and METROPOLITAN TRANSIT AUTHORITY, Defendants.
For Plaintiff: Clifford J. Stern, LLC By: Jocelyn Kelly, Esq. 777 Third Avenue, 35th Fl New York, NY 10017 (212) 813-1515 For Defendants: Pillinger Miller Tarallo, LLP By: Stephen B. Kahn, Esq. 570 Taxter Road Suite 275 Elmsford, NY 10523 (914) 703-6300
For Plaintiff:
Clifford J. Stern, LLC
By: Jocelyn Kelly, Esq.
777 Third Avenue, 35th Fl
New York, NY 10017
(212) 813-1515
For Defendants:
Pillinger Miller Tarallo, LLP
By: Stephen B. Kahn, Esq.
570 Taxter Road Suite 275
Elmsford, NY 10523
(914) 703-6300
Michael D. Stallman, J.
In this action alleging violations of Labor Law § 200, 240 (1) and 241 (6), plaintiff, a drill runner, alleges that, on June 23, 2011, he was struck by a falling blasting mat weighing between 1.5 and 4 tons, which an operating engineer, using a caterpillar excavator, had deliberately "knocked off" or "swatted off" a pile of mats. Plaintiff Anthony Cicillini now moves for partial summary judgment in his favor as to liability on his Labor Law § 240 (1) claim against defendants the New York City Transit Authority (the NYCTA) and the Metropolitan Transportation Authority (the MTA), sued herein as Metropolitan Transit Authority. Defendants oppose the motion. Defendants assert that plaintiff did not follow instructions to stay out of the area when the mat at issue was being removed from the stack of blasting mats.
I.
On June 23, 2011, plaintiff, an employee of Yonkers Contracting Company, Inc. (Yonkers), was working at "Site J", as part of the extension of the Number 7 subway line. MTA, "acting by the New York City Transit Authority", had contracted with plaintiff's employer, Yonkers, to perform various excavation/construction work at Site J, pursuant to a contract known as MTACC Contract Number C-26510 (the Contract). (See Kelly Affirm., Ex G).
Plaintiff submitted excerpts of the Contract in his initial motion papers; a copy of the complete, fully-executed Contract was submitted in reply. (Kelly Reply Affirm., Ex A.)
A.
The "Information for Bidders Data Sheet" of the Contract states that Site J is "located in the Borough of Manhattan at the eastside of 11th Avenue between West 33rd Street and West 34th Street, within Block 705, Lot[s] 1, 5, and 54." (Contract, at i.)
According to an Easement Agreement made as of October 12, 2010, Strategic/Extell 34th Street LLC owns the parcel designated as Block 705, Lot 1 on the Tax Map of the Borough of Manhattan, County and State of New York; West 33rd Street LLC owns the parcel designated at Block 705, Lot 5, and part of Lot 54. (Kelly Affirm., Ex I, at 1.) Pursuant to the Easement Agreement, Strategic/Extell 34th Street LLC and West 33rd Street LLC (collectively, Extell) granted permanent, temporary, and interim easements to the City of New York "at, above, under, and through the subsurface of the Property for the construction and operation" of the extension of the Number 7 subway line. ( Id. at 2.)
Sections 1 and 3 of the Easement state, in pertinent part:
"1. Grant of Permanent Easement; Grantor Reservations (a) Exclusive Permanent Easement. "Extell and the respective successors and assigns of both entities comprising Extell (collectively, Grantor'), for the benefit and use of the City, including any department, bureau . . . or instrumentality thereof, the City's corporate successors and Permitted Assignees' (as hereinafter defined) (collectively, Grantee'), as well as for the benefit and use of Grantee's licensees, lessees, contractors, agents, invites, and designees, including, without limitation, the MTA (collectively, Grantee's Designees'), do hereby grant, establish, create and declare an exclusive perpetual easement as more particularly described below (the Permanent Easement'), for the sole purposes of construction, installation of the Subway improvements, and passenger use thereof (the "Subway Uses"). ***
3. Grants of Temporary Easement and Interim Easement (a)Grant of Temporary Easement. Grantor, for the benefit and use of Grantee, as well as for the benefit and use of Grantee's Designees, does hereby grant, establish, create and declare an exclusive, temporary easement (the Temporary Easement') at, above, and under and through the entire Property (the Temporary Easement Area') during the Term' (as hereinafter defined), solely for purposes of the Subway Uses and for construction of the segment of Hudson Park and Boulevard between West 33rd and West 34th Streets This grant of Temporary Easement is made by Grantor and accepted by Grantee expressly subject to all the terms and conditions of this Agreement. (i)The Temporary Easement shall have an initial term (the Initial Term') commencing on the effective date of this Agreement and expiring on December 31, 2014." (Kelly Affirm., Ex I, at 2, 5.)
Under a 1953 lease agreement between the City of New York and the New York City Transit Authority, the City "relinquished possession and control of all of its transit facilities to the [NYCTA]." (McGuire v City of New York, 211 AD2d 428, 429 [1st Dept 1995].) Article II, Section 2.1 of the 1953 lease agreement provides, in relevant part:
"The City hereby leases to the Authority all of the transit facilities now owned or hereafter acquired or constructed by the City and any other materials, supplies, and property incidental to or necessary for the operation of such transit facilities" (Bromfeld Second Suppl. Affirm., Ex A, , at 3.) Article VI, Section 6.9 of the 1953 lease agreement states:
"[The NYCTA] covenants that title to all transit facilities and other property acquired by [the NYCTA] for its use during the term of this Agreement . . . will be taken in the name of the City, and the City covenants that all such transit facilities and other property shall be deemed leased to [the NYCTA], pursuant to the terms of this Agreement" (Id. at 13.) Defendants admit that the 1953 lease agreement was in effect on the date of plaintiff's alleged accident. (Bromfeld Second Suppl. Affirm., Ex C.)
B.
As discussed above, defendants contracted with plaintiff's employer, Yonkers, to perform various excavation/construction work at Site J.At his deposition, plaintiff testified, "We did the excavating through blasting from street level to subway." (Kelly Affirm., Ex E [Cicillini EBT], at 30.) According to plaintiff, he was working as a drill runner, a person who "drill[s] with machines to prepare dynamite blasting." (Id. at 19.) Plaintiff stated, "Dynamite would be put into the holes, they would wire the dynamite from hole to hole . . . and clear the job site" (id. at 38).
Plaintiff testified that blasting mats were used to muffle or contain the blast. (Id. at 38.) Plaintiff described the blasting mats, as follows:
"Blasting mats are used from tires, rubber tires, and they're used to form a pretty thick mat with steel cables and a ring so it could be hoisted. And they weigh probably anywhere between six and eight thousand pounds each depending on the size of the mat. Some are bigger, some are smaller." (Id.) Plaintiff stated that the blasting mats were placed and positioned over the holes using a hook and chain which connected the mats to the bucket of a caterpillar excavator, so that the mats could be "dragged or lifted" by the bucket. (Id. at 39).
Plaintiff testified that Tom Cambone was the Yonkers supervisor on site on the date of the alleged incident. (Cicillini EBT, at 36.) Plaintiff stated that Cambone "was moving the mats," and "I had gotten clearance to grab the chains and bring them over" towards Cambone (Id. at 95-96.) According to plaintiff, "I started to drag them over, and that was the last thing that happened." (Id. at 96.) Plaintiff testified as follows:
Cambone's name is spelled in Cicillini's EBT transcript as "Tom Corbone (phonetically)." (Cicillini EBT, at 36.) Thomas Cambone testified at his deposition that he was a drilling and blasting superintendent employed by Yonkers until he was laid off in September 2012, and that Cicillini was on the blasting crew on the date of the accident. (Kelly Affirm., Ex H [Cambone EBT], at 19, 26.)
"Q. After grabbing the chains and walking back toward Mr. [Cambone], what is the next thing that you remember?
A. I just saw black.
Q. But what is the next thing you remember?
A. Screaming on the floor.
Q. And why were you screaming on the floor?
A. I was scared.
Q. Well, did something into contact with you?
A. The mat.
Q. What part of your body did the mat come into contact with?
A. In between my left elbow and shoulder.
Q. Did the mat come into contact with any other portion of your body?
A. It landed on top of me from the waist down." (Cicillini EBT, at 99-100.) When asked about the height of the stack of blasting mats, plaintiff answered, "It was over my head, so I would say twelve feet, maybe fourteen." (Id. at 98.)
At his deposition, Cambone described blasting mats as follows:
"A. Blasting mat is usually made up of pieces of rubber tire, that are tied to together, by strands of wire rope, usually in the configuration of a square or a rectangle, varying in sizes.
Q. What is the range of sizes of these mats?
A. They could be ten by ten. They could be
Q. This feet?
A. Correct, sir.
Q. Ten by ten feet and what do they go up to? What are the largest ones?
A. I didn't use larger than probably ten by 14, and, maybe, perhaps a little larger. I'm not sure.
Q. What does the ten by ten mat weigh, roughly?
A. Could be in and around 3,000 to 6,000 pounds. I'm not sure of the exact weight.
Q. And the ten by 14?
A. Proportionate.
Q. So, up to 8,000 pounds?
A. Perhaps." (Cambone EBT, at 40-41.)
According to Cambone, immediately prior to Cicillini's accident, mats were being slid off a stack by an operating engineer with an excavator. (Cambone EBT, at 45, 51.) Cambone stated,
"To my recollection, I saw Anthony walk, from my left side, to what I would believe to be to go get the chain. I saw him pass, within the area of the work zone, without being recognized by the operator.
I saw the function that the operator was doing, unaware of the man being there, being facilitated. I saw the mat, and Anthony in the work zone he was not supposed to be in.
I called to him, to my recollection, to get out of the way, and then I saw the mat come down and strike him in the back of the leg. That's the best of my record [sic]." * * *
I recall Mr. Cicillini moving into the work area that he wasn't supposed to be in. I recall the operator moving the mat into position in front of him, which would have been from his — which would have been from twelve to ten (indicating), per se.
I recall seeing Mr. Cicillini in the work zone he should not have been in. I recall the mat being folded. I recall watching the mat unfurl, if that's a term I could use, right, and I recall the piece coming down and striking him in the back of the leg (indicating)." (Cambone EBT, at 59, 65-66.) When Cambone was asked, "Did you try to get in contact with the operator?", he answered, "I was unable to contact him, because he was doing a function, and I did not belong in that area." (Cambone EBT, at 64.)
When Cambone was asked about the height of the stack of blasting mats, he testified as follows:
"A. I don't remember.
Q. Was it higher than ten feet?
A. I don't remember?
Q. Your best recollection, was it higher than ten feet, lower than ten feet, or something else?
A. Lower than ten feet, to my best recollection." (Cambone EBT, at 47.) Cambone estimated the weight of the mat that struck and covered plaintiff was about "Four to 6,000 pounds." (Cambone EBT, at 79.)
At his deposition, Cambone stated that a seven-page document, marked as Plaintiff's Exhibit 1, "was created the day after the incident. " (Cambone EBT, at 8.) Cambone testified that the information came from "[m]y own records. My own observation." (Id. at 11.) The "Injury Report Form" contains a section called "Witness Report Form", which names the witness as Tom Cambone. That section states, in relevant part,
"I INSTRCUTED [sic] SOMEONE TO GO GET THE CHAIN TO LIFT THE CRANE MATS, THE OPERATOR WAS REMOVING THE RUBBER BLAST MATS THAT WERE STACKED ATOP THE WOODEN CRANE MATS, AS THE OPERATOR WAS REMOVING THEM WITH THE BUCKET. MR CICILLNI WALKED AROUND THE REAR OF THE MACHINE WHILE IT WAS IN MOTION. THE LAST MAT THAT THE OPERATOR WAS REMOVING WAS FOLDED OVER AND WHEN IT CAME OFF THE PILE OF CRANE MATS IT UNFOLDED AND STRUCK MR CICILLINI AS HE CAME FROM THE REAR OF THE MACHINE." (Kelly Affirm., Ex H.)
C.
According to plaintiff, there were complaints about how the mats were being moved. Plaintiff testified as follows:
"[N]ormally they're stacked like pancakes. And what would happen is the operating engineer would come over with a bucket, no hook, and he would need the bigger ones on the bottom of the pile. So to expedite the matter, instead of lifting each one up, he would use the bucket and slap them off the top one by one and shoot them to the floor.
Q. In other words, just knock them off the pile?
A. Correct, to get to the bottom, which is not a good idea when you have two shifts crossing paths. So yes, lots of complaints.
Q. When were these complaints made?
A. As it was happening, during, after.
MR. STERN: Is this before or after your accident?
THE WITNESS: This is even right before my accident. As a matter of fact, I made a complaint along with everybody else." (Cicillini EBT, at 47.) According to Cicillini, no written complaint was ever filed, but complaints were made at a safety meeting in 2011, from "[m]ost likely one of the operating engineers" (Id. at 49-50.)
According to plaintiff, on the day of the accident, me complained to Cambone about the manner in which the mats were moved:
"Well, that was the pancake theory where he was moving everything. We had two shifts there still working, so it was a lot of people. I saw that he was moving them improperly, and because of the way he was punching them off the top with the machine, he definitely could have killed somebody with that. There was too many people around. So I expressed myself.
Q. To whom?
A. To Tom [Cambone], the super, and asked him to go get the proper equipment which were the chains and the hook.
Q. Did Mr. [Cambone] respond to your complaints?
A. He said yes'. * * *
Q. So after you made the complaint and Mr. [Cambone] said yes', what did you do?
A. I turned, I went to grab the chains, and I brought them over. And I was bringing them over, I don't remember what happened next. I got hit by a mat and I looked up and it was on top of me and I was underneath it." (Id. at 52.)
Cambone testified that, prior to plaintiff's accident, he observed operating engineers slide the blasting mat off the stack. (Cambone EBT, at 45.) When asked, "Is it a normal and accepted procedure in your business?", Cambone answered, "Yes." (Id. at 46.) According to Cambone, the mat lands and lies flat on the ground, or could bounce. He stated,
"Usually, the operator will keep the bucket on that to make sure that it is a controlled bounce.
Q. How do they do that?
A. While sliding the mat, they will keep pressure on it, so when it hits the ground, it is in a form that doesn't go all over the place. Please keep in mind, sir, you are dealing with something that is probably, as we expressed before, it's three to 5,000 pounds. It doesn't bounce like a tennis ball." (Id. at 50.)
Cambone also testified that he has seen an operating engineering using a "hook-and-ring method" to take the mat of the stack as well. (Id. at 50.) According to Cambone, each mat has a metal ring, and that if one wanted to transport the mat using the ring, "I would either use the tooth, on the bucket of the excavator, to move it into place, or I would or could use a chain to do the same." (Id. at 44.) Cambone testified as follows:
"Q. What makes a determination as to which procedure one would use; meaning, either sliding it off or picking it up and taking it off?
A. Site conditions.
Q. What do you mean by that?
A. The area, that you are working in, the accessibility for the operator to reach what he is working one. I really can't speak for the operator." ( Id . at 50-51.)
According to Cambone,
"Standard operating procedures, in construction, is that, before anyone is to move around a piece of machinery, you are to make eye contact with the operator, to make sure that the function that they are doing, at the time, is completed, as not to allow them to go into the path of the work that they are doing." (Id. at 54.)
When asked if anyone commented to him about the safety of the procedure of sliding the mats off the stack, Cambone answered, "I did not hear anyone complain, to the best of my memory." (Cambone EBT, at 47.) When asked why he had asked plaintiff to get the chain and hook, Cambone answered, "Because we were preparing to set the mats." (Id. at 52.)
II.
The standards for summary judgment are well-settled.
"On a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party. Summary judgment is a drastic remedy, to be granted only where the moving party has tender[ed] sufficient evidence to demonstrate the absence of any material issues of fact, and then only if, upon the moving party's meeting of this burden, the non-moving party fails to establish the existence of material issues of fact which require a trial of the action. The moving party's [f]ailure to make [a] prima facie showing [of entitlement to summary judgment] requires a denial of the motion, regardless of the sufficiency of the opposing papers." (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012] [internal citations and quotation marks omitted].)
Plaintiff moves for partial summary judgment in his favor as to liability on the Labor Law §240 (1) claim against defendants. Labor Law § 240 (1), also known as the Scaffold Law, provides, in relevant part:
"All contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."
Labor Law § 240 (1) "imposes liability only on contractors, owners or their agents." (Blake v Neighborhood Hous. Servs. of New York City, Inc., 1 NY3d 280, 293 [2003].) "A plaintiff moving for partial summary judgment must establish that § 240(1) was violated and that the violation was a proximate cause of his or her injuries." (Soriano v St. Mary's Indian Orthodox Church of Rockland, Inc., 118 AD3d 524, 526 [1st Dept 2014].)
A.
"The meaning of owners' under Labor Law § 240 (1) has not been limited to titleholders but has been held to encompass a person who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his benefit.'" (Kwang Ho Kim v D & W Shin Realty Corp., 47 AD3d 616, 618 [2d Dept 2008] quoting Copertino v Ward, 100 AD2d 565, 566 [2d Dept 1984]; see also Lacey v Long Is. Light. Co., 293 AD2d 718, 718-719 [2d Dept 2002].) "Owner" withing the meaning of Labor Law § 240 (1) includes the holder of an easement where the accident occurred. (Copertino, 100 AD2d at 566.)
Here, plaintiff has made a prima facie showing that defendants are "owners" withing the meaning of Labor Law § 240 (1). As indicated on the accident report, the accident occurred on "Site J" of the extension of the Number 7 line subway train. (Kelly Affirm., Ex H.) According to the Contract, Site J is located on Block 705, Lots1, 5, and 54 (Contract, at i), and Extell granted permanent, temporary and interim easements on those parcels to the City and its designees, pursuant to the Easement Agreement. Contrary to defendants' argument, defendants are also holders of the easements that Extell granted. The Easement Agreement specifically mentions the "MTA" as a designee of the City, and according to the recitals of the Easement Agreement, "MTA" collectively refers to the Metropolitan Transportation Authority, the New York City Transit Authority, and non-party Metropolitan Transportation Authority Capital Construction. (Kelly Affirm., Ex I, at 1-3.)
Moreover, any easement interests acquired by the City became leased to the NYCTA, by operation of the 1953 lease agreement between the City and the NYCTA.
As evidenced by the Contract, defendants contracted with plaintiff's employer, Yonkers, and thus "fulfilled the role of owner by contracting to have work performed for [their] benefit" ( Copertino, 100 AD2d at 566.)
Contrary to defendants' assertion, plaintiff has sufficiently established that the accident occurred on Site J. Although defendants point out that the accident report is unsigned, Cambone stated that the accident report "was created the day after the incident", that he provided the information to Russ Turner, the safety officer for Yonkers, in the job trailer on site, and that the information on the report came from "[m]y own records. My own observation." (Cambone EBT, at 8-11.) Cambone testified that he requested the copy of accident report from Turner. (Id. at 13.)Thus, defendants are "owners" within the meaning of Labor Law § 240 (1).
B.
Plaintiff testified that the mat that struck him was removed from a stack of blasting mats that was "twelve feet, maybe fourteen" feet high. (Cicillini EBT, at 98.) Cambone did not initially remember the height of the stack, but after additional questioning stated that the height was "[l]ower than ten feet, to my best recollection." (Cambone EBT, at 47.) The height from which the blasting mat fell presents the threshold issue of whether plaintiff was exposed to elevation-related risks covered under Labor Law § 240 (1).
"Whether a plaintiff is entitled to recovery under Labor Law § 240 (1) requires a determination of whether the injury sustained is the type of elevation-related hazard to which the statute applies." (Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 7 [2011].)
"Beginning in Rocovich [v Consolidated Edison Co., 78 NY2d 509 (1991)], we stated that section 240 (1)'s contemplated hazards are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured' (78 NY2d at 514).'" (Id.)
An elevation differential "cannot be viewed as de minimis, particularly given the weight of the object and the amount of force it was capable of generating, even over the course of a relatively short descent." ( Runner v New York Stock Exch., Inc., 13 NY3d 599, 605 [2009].) Thus, Labor Law § 240 (1) applied where a slab weighing more than one ton fell just three feet ( Harris v City of New York, 83 AD3d 104 [1st Dept 2011]). In Marrero v 2075 Holding Co., LLC (106 AD3d 408, 409 [1st Dept 2013]), the Appellate Division, First Department ruled that, although the record did not specify the height, Labor Law § 240 (1) applied where steel beams weighing a total of 1,000 pounds fell "a short distance" onto the plaintiff's leg, because of "the force they were able to generate during their descent ."
Here, plaintiff and Cambone gave differing accounts as to the height of the stack of blasting mats and different estimates as to the weight of the mat that struck plaintiff. However, these differences do not raise material issues of fact as to whether plaintiff was exposed to an elevation-related risk. Assuming the truth of Cambone's testimony, the blasting mat that struck plaintiff weighed between 4,000 and 6,000 pounds. (Cambone EBT, at 79.)
Even if height of the stack is not known, given the force that would be generated by the substantial weight of the falling blasting mat (Marrero, 106 AD3d at 409), plaintiff was exposed to an elevation-related risk within the contemplation of Labor Law § 240 (1).
C.
It is undisputed that, at the time of the accident, the method used to retrieve blasting mats from the stack entailed intentionally slapping or sliding it off the stack, and then allegedly allowing it to free-fall to the ground. Plaintiff was injured when the mat, which was "slap[ped]" off the stack of mats by the bucket of a caterpillar excavator, struck plaintiff as it free-fell to the ground. (Cicillini EBT, at 47.)
"In order to prevail on summary judgment in a section 240 (1) falling object' case, the injured worker must demonstrate the existence of a hazard contemplated under that statute and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein'. Essentially, the plaintiff must demonstrate that at the time the object fell, it either was being hoisted or secured', or required securing for the purposes of the undertaking.'" (Fabrizi v 1095 Ave. of Ams., L.L.C., 22 NY3d 658, 662-63 [2014] [internal citations omitted].) The 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 NY2d 259, 268 [2001].)
Plaintiff contends that the mat should have been secured for the purpose of the undertaking, and that other safer methods of lowering the mat existed that could have and should have been used. According to plaintiff, had the mat been hoisted to the ground using a hook and chain, or even controlled by the caterpillar's bucket during its descent, rather than haphazardly swatted from a stack of other mats and allowed to free-fall, the accident could have been prevented.
In opposition, defendants argue plaintiff is not entitled to summary judgment in his favor, because the alleged violation is not the cause of the accident; rather, defendants maintain that plaintiff's failure to follow standard operating procedure caused the accident. Cambone testified at his deposition that whatever the method of mat removal, for safety reasons, persons "shouldn't be in the area. They have been instructed not to be." (Cambone EBT, at 49.) He further explained that it was standard operating procedure that no worker was to move within the work zone of the machine unless and until the operating engineer made eye contact with the worker.
Because the mat that struck plaintiff was being deliberately slid off the stack to free-fall, the Court must also consider whether a judicially created exception to the Labor Law § 240 (1) applies in this case. Some courts have held that Labor Law § 240 (1) is inapplicable when the falling object is deliberately dropped or thrown, apparently as part of the method of the work. (See Roberts v General Elec. Co., 97 NY2d 737, 738 [2002] [no Labor Law § 240 (1) protection where the plaintiff, an employee of an asbestos removal company, was injured when a piece of asbestos, which had been cut and deliberately dropped from above him, fell on him]; Fried v Always Green, LLC, 77 AD3d 788, 789 [2d Dept 2010] [no Labor Law § 240 (1) liability where the plaintiff was injured when a laborer tossed a bag of construction debris from the roof of the building onto the plaintiff's head]; Solano v City of New York, 77 AD3d 571, 572 [1st Dept 2010]; Harinarain v Walker, 73 AD3d 701, 702 [2d Dept 2010] [no Labor Law § 240 (1) liability where the plaintiff was struck with a piece of plywood which was either thrown, or fell from, the hole in the roof]; Isabel v U.W. Marx, Inc., 299 AD2d 701, 702 [3d Dept 2002] [no Labor Law § 240 (1) liability where the beam that struck the plaintiff was "deliberately dropped to accomplish the task of flipping it"]; Belcastro v Hewlett-Woodmere Union Free School Dist. No. 14, 286 AD2d 744, 745-746 [2d Dept 2001] [piece of wood that allegedly struck the plaintiff in the head was not a material in need of securing where it was allegedly thrown from the roof].)
In these "deliberate dropping" cases, the courts reasoned that the deliberate dropping or throwing of an object is "simply not a situation where a hoisting or securing device [or an additional device] of the kind enumerated in the statute would have been necessary or even expected.'" (Isabel v U.W. Marx, Inc., 299 AD2d at 702, quoting Narducci, 96 NY2d at 268.) In Corey v Gorick Construction Company, Inc. (271 AD2d 911, 913 [3d Dept 2000]), the Appellate Division, Third Department stated,
"Nor are we persuaded, under the circumstances of this case, that the methodology employed to relocate the beam—deliberately releasing the beam and allowing it to fall rather than securing it with a steel cable and mechanically lowering it until it rested on the ground—gives rise to a cause of action under Labor Law § 240 (1). Labor Law § 240 (1) does not require that a particular methodology be employed to move materials or equipment at a construction/demolition site." (Corey, 271 AD2d at 913.)
However, the Appellate Division, First Department recently ruled in Mora v Sky Lift Distributor Corporation ( AD3d , 2015 WL 1292988, 2015 NY App Div LEXIS 2427 [1st Dept 2015]) that Labor Law § 240 (1) applied in a situation where a falling object had been intentionally dropped. In Mora, a general contractor's employee was injured when he was struck by a falling fan cowl cover on a cooling tower. At the time of the accident, the cooling tower had been removed from the roof of a building and placed on a flatbed truck. An employee of the Skylift Contractor Corp. began to remove the fan cowl cover off the tower, to prevent it from hitting the traffic lights during transport. The employee pushed the fan cowl cover off the tower, and the falling cover, which weighed 250 pounds, bounced off the flatbed truck and struck the plaintiff, who was standing in the street and directing traffic.
The plaintiff cross-moved for summary judgment in his favor as to liability on his Labor Law § 240 (1) claim against the owner of the building; the building owner cross-moved for summary judgment dismissing the Labor Law § 240 (1) claim. The motion court rejected the building owner's argument that Labor Law § 240 (1) was inapplicable, stating:
"Further, this matter is distinguishable from the cases cited by the defendants holding that Labor Law § 240 (1) is inapplicable where a plaintiff is injured by a deliberately-dropped object. In those cases, it was determined that the object was not something that was being hoisted or a material that had to be positioned or secured Here, the record reflects that the fan cowl cover was being pushed off of the top of the cooling tower and onto the bottom of a flat-bed truck, where it would be transported away from the job site. It is therefore evident that this was a material that constituted a load that required securing for the purposes of an undertaking' (Narducci v. Manhasset Bay Assoc., 96 NY2d 259 [2001]; Quattrocchi v. F.J. Sciame Constr. Copr., 11 NY3d 757 [2008])." (Mora v Skylift Distr. Corp., Sup Ct, Bronx County, Jan. 6, 2014, Brigantti-Hughes, J., index No. 305640/2009, at 7.)
On appeal, the Appellate Division, First Department affirmed the motion court, stating:
"The court correctly declined to dismiss the Labor Law § 240(1) claim as against 1200 Fifth and granted plaintiff's motion for summary judgment on the issue of 1200 Fifth's liability under that statute. Moreover, the 250-pound fan cowl cover constituted a load that required securing for the purposes of the undertaking' (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 268 [2001])." (Mora, AD3d , 2015 WL 1292988, 2015 NY App Div LEXIS 2427.)
Mora is similar to the instant case. Like the fan cowl cover in Mora, which weighed 250 pounds, plaintiff here was struck by a very heavy falling object weighing between 3,000 and 8,000 pounds. Like the fan cowl cover that bounced off the flatbed truck, the mat in this case, which had been folded under the bucket, unfurled as it hit the ground. Thus, like the fan cowl cover in Mora, the falling mat that struck plaintiff here constituted "a load that required securing for the purposes of the undertaking." ( Narducci, 96 NY2d at 268.)
Plaintiff testified that blasting mats "weigh probably anywhere between six and eight thousand pounds each depending on the size of the mat." (Cicillini EBT, at 38.) that the 10-by-10 feet blasting mats weigh between 3,000 and 6,000 pounds, and that the 10-by-14 feet blasting mats weigh 8,000 pounds. (Cambone EBT, at 40-41.) When asked if the blasting mats bounced, Cambone stated that the blasting mats weigh between 3,000 and 5,000 pounds. (Id. at 50.)
Runner (13 NY3d 599) is also instructive. There, the plaintiff and his co-workers were moving a large reel of wire, weighing some 800 pounds, down a set of about four stairs. The workers were instructed to tie one end of a 10—foot length of rope to the reel and then to wrap the rope around a metal bar placed horizontally across a door jamb on the same level as the reel. As it descended, the reel pulled the plaintiff and his co-workers, acting as counterweights, toward the metal bar. The plaintiff was drawn into the bar, injuring his hands as they jammed against it, because "[t]he expedient of wrapping the rope around the bar proved ineffective to regulate the rate of the reel's descent." (Runner, 13 NY3d at 602.) Experts testified at trial that a pulley or hoist should have been used to move the reel safely down the stairs and that the jerry-rigged device actually employed was inadequate.
The Court of Appeals ruled that Labor Law § 240 (1) applied, stating, "the causal connection between the object's inadequately regulated descent and plaintiff's injury was, as noted, unmediated or, demonstrably, at least as unmediated as it would have been had plaintiff been situated paradigmatically at the rope's opposite end." (Id. at 605.)
Given all of the above, this Court is persuaded that, under the circumstances of this case and under Mora and Runner, the unmediated descent of a blasting mat weighing between 1½ and 4 tons gives rise to a cause of action under Labor Law § 240 (1). As in Runner, where the Court of Appeals concluded that a safety device should have been used to regulate the descent of the 800 pound reel of wire, this Court similarly concludes that a safety device should have been used to regulate the descent of the blasting mat. The methodology (or rather, the lack of methodology) employed here—deliberately swatting mats and allowing them to free-fall, rather than securing the mats using a "hook-and-ring method" to regulate their descent—constitutes a violation of Labor Law § 240 (1).
The applicability of Labor Law § 240 (1) in this case is consistent with the underlying purpose and policy behind the enactment of Labor Law § 240 (1).
"The legislative purpose behind this enactment is to protect workers by placing ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor' (1969 NY Legis Ann, at 407), instead of on workers, who are scarcely in a position to protect themselves from accident'" ( Rocovich , 78 NY2d at 513 [internal citations omitted]). "As we have repeatedly recognized, Labor Law § 240(1) is for the protection of workers from injury and undoubtedly is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed." ( Melber v 6333 Main St., Inc ., 91 NY2d 759, 762 [1998] [internal quotation marks, citations, and emendation omitted].)
Although one might argue that requiring the mat to be secured while being lowered might increase construction time (and consequently increase construction costs), commercial expediency does not trump the protective purpose of the Labor Law. (See Runner, 13 NY3d at 602 "[t]he expedient of wrapping the rope around the bar proved ineffective to regulate the rate of the reel's descent"].)
In conclusion, plaintiff has met his prima facie burden of demonstrating a violation of Labor Law § 240 (1), based on the absence of a safety device to regulate the descent of the blasting mat. Because it is undisputed that the falling blasting mat struck plaintiff, the violation of Labor Law § 240 (1) was a substantial factor in causing plaintiff's injuries, as matter of law.
D.
Defendants maintain that, as part of standard operating procedure, plaintiff was instructed to stay out of the area when the subject mat removal method was underway. Defendants argue that plaintiff's failure to follow standard operating procedure was the sole proximate cause of the accident.
Defendants' sole proximate cause argument fails. First, "an instruction to avoid an unsafe practice is not a sufficient substitute for providing a worker with a safety device to allow him to complete his work safely" (Vasquez v Cohen Bros. Realty Corp., 105 AD3d 595, 598 [1st Dept 2013]; Luna v Zoological Socy. of Buffalo, Inc., 101 AD3d 1745, 1746 [4th Dept 2012] [although the defendant put forth evidence that the plaintiff violated instructions not to work in a particular area, plaintiff was not "a recalcitrant worker whose own actions were the sole proximate cause of the accident", because "Labor Law § 240 (1) is not met merely by providing safety instructions but by furnishing, placing and operating such [safety] devices so as to give [a worker] proper protection").
Moreover, as discussed above, plaintiff demonstrated, as a matter of law, a violation of Labor Law § 240 (1). "It is absolutely clear that if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it'" (Hernandez v Bethel United Methodist Church of NY, 49 AD3d 251, 253 [1st Dept 2008], quoting Blake, 1 NY3d at 290). Where "the owner or contractor fails to provide adequate safety devices to protect workers from elevation-related injuries and that failure is a cause of plaintiff's injury, the [n]egligence, if any, of the injured worker is of no consequence." (Tavarez v Weissman, 297 AD2d 245, 247 [1st Dept 2002] [internal quotation marks and citations omitted].)Plaintiff's alleged failure to follow instructions would be, "at most, comparative negligence, which is not a defense under § 240(1)." (Dias v City of New York, 110 AD3d 577, 578 [1st Dept 2013]).
Thus, plaintiff is granted partial summary judgment in his favor as to liability on the Labor Law § 240 (1) claim.
CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that plaintiff Anthony Cicillini's motion, pursuant to CPLR 3212, for partial summary judgment in his favor as to liability on his Labor Law § 240 (1) claim against defendants the New York City Transit Authority and the Metropolitan Transit Authority is granted; and it is further
ORDERED that the remainder of the action shall continue.
DATED:April 13, 2015
NEW YORK, NY
ENTER:
________/s/_____________
J.S.C.