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Corey v. Gorick Construction Company Inc.

Appellate Division of the Supreme Court of New York, Third Department
Apr 27, 2000
271 A.D.2d 911 (N.Y. App. Div. 2000)

Summary

affirming summary judgment where plaintiff was injured by beam dropped to the ground because hoisting and clamping equipment did not malfunction and served their core objective

Summary of this case from Guenther v. Modern Continental Companies

Opinion

April 27, 2000.

Appeals (1) from an order of the Supreme Court (Monserrate, J.), entered June 24, 1999 in Broome County, which, inter alia, granted defendants' cross motion for partial summary judgment dismissing the Labor Law § 240 Lab. (1) cause of action, and (2) from an order of said court, entered July 26, 1999 in Broome County, which granted plaintiff's motion for reargument and, upon reargument, adhered to its prior order.

Coughlin Gerhart (Peter H. Bouman of counsel), Binghamton, for appellant.

Levene, Gouldin Thompson (John L. Perticone of counsel), Binghamton, for Gorick Construction Company Inc., respondent.

Hinman, Howard Kattell (James L. Chivers of counsel), Binghamton, for Sunstream Corporation, respondent.

Before: MERCURE, J.P., PETERS, SPAIN, CARPINELLO and GRAFFEO, JJ.


MEMORANDUM AND ORDER


In November 1997, Steven Corey (hereinafter decedent) was fatally injured at the site of a building which had been destroyed by fire which was owned by defendant Green Peace Environmental Services Inc. in the City of Binghamton, Broome County. Green Peace had contracted with defendant Gorick Construction Company Inc. to demolish the building. Gorick subcontracted with third-party defendant Sunstream Corporation, decedent's employer, to remove asbestos-contaminated debris from the site.

On the day of the accident, Gorick's site supervisor was operating a Caterpillar 235 excavator backhoe equipped with a hydraulic clamp to remove large steel beams from the basement area of the former building; the backhoe was positioned at street level. To complete this task, the operator, using the hydraulic clamp, lifted each beam out of the basement approximately 8 to 10 feet above the ground, moved the beam away from the basement area, and then released the beam at the designated area. The beams were dropped from that height so that attached debris would be shaken loose upon impact in order to prepare the beams for salvage. Decedent, who was involved with the task of removing debris from the demolition site, entered the "swing area" of the backhoe's arm unbeknownst to the operator, where he was struck by a beam released by the operator.

Plaintiff, individually and as the executor of decedent's estate, commenced this action in February 1998 asserting, inter alia, a claim under Labor Law § 240 Lab. (1). Following discovery, plaintiff moved for partial summary judgment on the issue of liability under Labor Law § 240 Lab. (1), prompting defendants and Sunstream to cross-move for partial summary judgment seeking dismissal of this claim. Supreme Court denied plaintiff's motion, granted the cross motions and subsequently adhered to its position on plaintiff's motion to reargue, finding Labor Law § 240 Lab. (1) inapplicable to the facts at issue. We affirm.

Initially, plaintiff appeals from the order issued upon her reargument motion. Supreme Court stated in its order that it was denying reargument and, of course, no appeal would lie as of right from such an order (see, Matter of Town of Poestenkill v. New York State Dept. of Envtl. Conservation, 229 A.D.2d 650; see also, CPLR 2221 [d]); however, we interpret the court's decision and order — which addressed the merits of plaintiff's claim — as having granted reargument and adhered to its prior order, which is appealable as of right to this court (see, Besicorp Group v. Enowitz, 268 A.D.2d 846, 847-848, 702 N.Y.S.2d 421, 423; see also, CPLR 5701 [a] [2] [viii]; Siegel, N Y Prac § 254, at 414 [3d ed]).

Turning to plaintiff's Labor Law § 240 Lab. (1) claim, it was incumbent on plaintiff in moving for summary judgment to establish that decedent's injuries were caused by the type of elevation-related hazard contemplated by this absolute liability statute. Notably, the special hazards encompassed by the statute "are limited to such specific gravity-related accidents as falling from a height or being struck by a falling object that wasimproperly hoisted or inadequately secured" (Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501 [emphasis supplied]; see, Stang v. Garbellano, 262 A.D.2d 853, 854; Diamond v. Reilly Homes Constr. Corp., 245 A.D.2d 763, 764). Injuries resulting from other types of hazards are not covered by this statute. In this regard, liability does not attach for any and all gravity-related perils at a construction or demolition site (see, Ross v. Curtis-Palmer Hydro-Elec. Co., supra, at 501) and a violation of this statute is not automatically established from the fact that injuries resulted from falling objects at such a site (see, Rodriguez v. Margaret Tietz Center for Nursing Care, 84 N.Y.2d 841; Bailey v. Young Men's Christian Assn. of the Capital Dist., 267 A.D.2d 642, 699 N.Y.S.2d 565;Vestal v. Yonkers Contr. Co., 257 A.D.2d 946; McGuire v. Independent Cement Corp., 255 A.D.2d 646; Klimowicz v. Furer, 246 A.D.2d 330; Nitz v. Gusmer Corp., 245 A.D.2d 929; Vornfett v. Port Auth. of N.Y. N.J., 238 A.D.2d 134; Carringi v. International Paper Co., 184 A.D.2d 137, 140). It is manifest that "a violation of the statute cannot 'establish liability if the statute is intended to protect against a particular hazard, and a hazard of a different kind is the occasion of the injury'" (Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513, quoting DeHaen v. Rockwood Sprinkler Co., 258 N.Y. 350, 353).

Here, the descending beam which struck decedent had been purposefully released from the backhoe by the operator at the designated location as part of the demolition and salvage project. Critically, as Supreme Court correctly emphasized, the beam did not fall as a result of an improper or defective mechanism in the backhoe's hoisting and clamping equipment; rather, the backhoe and its hoisting mechanism performed as intended to complete the task at hand, permitting the beam to be purposefully released so that it would forcefully fall to the ground and shed any debris (compare, Jiron v. China Buddhist Assocs., 266 A.D.2d 347, 698 N.Y.S.2d 315;Stang v. Garbellano, supra, at 854; Powell v. Sodus Cold Storage Co., 258 A.D.2d 904; Baker v. Barron's Educ. Servs. Corp., 248 A.D.2d 655; Panattoni v. Inducon Park Assocs., 247 A.D.2d 823;Diamond v. Reilly Homes Constr. Corp., supra, at 764-765; Gill v. Samuel Kosoff Sons, 229 A.D.2d 824). In fact, the hoisting and clamping equipment did not malfunction during the hoisting maneuver but, rather, they served their core objective under Labor Law § 240 Lab. (1) of preventing the beam from being unintentionally or prematurely released (see, Nieves v. Five Boro Air Conditioning Refrig. Corp., 93 N.Y.2d 914, 916; see also, Ross v. Curtis-Palmer Hydro-Elec. Co., supra, at 501).

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 Lab. (1). Labor Law § 240 Lab. (1) does not require that a particular methodology be employed to move materials or equipment at a construction/demolition site and, indeed, plaintiff's suggested method of placing the beams in the salvage pile would not have accomplished the debris removal objective. In our view, "[t]he protective equipment envisioned by [this] statute is simply not designed to avert the hazard [decedent] encountered here" (see,Melber v. 6333 Main St., 91 N.Y.2d 759, 763) and the absence of additional safety or securing devices was not the proximate cause of plaintiff's injuries (see, Rocovich v. Consolidated Edison Co.,supra, at 514; cf., Felker v. Corning Inc., 90 N.Y.2d 219, 224-225).

Inasmuch as it is undisputed that the equipment employed here functioned properly, plaintiff's Labor Law § 240 Lab. (1) claim must fail notwithstanding the fact that this accident was gravity related (see, Ross v. Curtis-Palmer Hydro-Elec. Co., supra, at 501;Murphy v. Broadway 48-49th St. Assocs., 246 A.D.2d 392; compare,Stang v. Garbellano, supra, at 229; Panattoni v. Inducon Park Assocs., supra, at 823-824; Diamond v. Reilly Home Constr. Corp.,supra, at 765). As tragic as this accident certainly was, "not every hazard or danger encountered in a construction [or demolition] zone falls within the scope of Labor Law § 240 Lab. (1)" (Misserritti v. Mark IV Constr., 86 N.Y.2d 487, 490). We therefore affirm the order denying partial summary judgment to plaintiff. Finally, we perceive no error in Supreme Court's order, upon reargument, adhering to its prior order.

ORDERED that the orders are affirmed, with costs.


Summaries of

Corey v. Gorick Construction Company Inc.

Appellate Division of the Supreme Court of New York, Third Department
Apr 27, 2000
271 A.D.2d 911 (N.Y. App. Div. 2000)

affirming summary judgment where plaintiff was injured by beam dropped to the ground because hoisting and clamping equipment did not malfunction and served their core objective

Summary of this case from Guenther v. Modern Continental Companies

In Corey v. Gorick Constr. Co. (271 A.D.2d 911), the Appellate Division determined that even though the trial court had denied reargument, that court had really granted reargument, reconsidered the facts and adhered to its prior decision. Under CPLR 2221, the adherence to a decision by a trial court, after reconsideration, would be appealable (see also, Rubeo v. National Grange Mut. Ins. Co., 93 N.Y.2d 750, 755).

Summary of this case from Matter of Shaw

In Corey v. Gorick Constr. Co. (supra), decided by this Court after Supreme Court rendered its decision in this case, we held that Labor Law § 240 (1) was inapplicable where a descending beam struck the plaintiff after it had been purposefully released to a targeted site from a backhoe in accordance with a demolition plan.

Summary of this case from Roberts v. General Electric Company
Case details for

Corey v. Gorick Construction Company Inc.

Case Details

Full title:CAROLYN COREY, Individually and as Executor of the Estate of STEVEN COREY…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Apr 27, 2000

Citations

271 A.D.2d 911 (N.Y. App. Div. 2000)
706 N.Y.S.2d 512

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