Opinion
2011-11-1
In re EAST 51ST STREET CRANE COLLAPSE LITIGATION.John Della Porta, et al., Plaintiffs–Respondents,v.East 51st Street Development Company, LLC, et al., Defendants–Appellants.New York Crane & Equipment Corporation, et al., Defendants.[And A Third Party Action].Denise C. Bleidner, etc., Plaintiff–Respondent,v.East 51st Street Development Company, et al., Defendants–Appellants,New York Crane & Equipment Corp., et al., Defendants.[And a Third Party Action].Rosalie Stephens, etc., Plaintiff–Respondent,v.The City of New York, et al., Defendants,East 51st Street Development Company, LLC, et al., Defendants–Appellants.[And a Third Party Action].Susan Jendersee, etc., Plaintiff–Respondent,v.East 51st Street Development Company, LLC, et al., Defendants–Appellants.New York Crane & Equipment Corp., et al., Defendants.[And A Third Party Action].Jessica Gallone, etc., Plaintiff–Respondent,v.East 51st Street Development Company, LLC, et al., Defendants–Appellants,New York Crane & Equipment Corp., et al., Defendants.[And A Third Party Action].Thalia M. Mazza, etc., Plaintiff–Respondent,v.East 51st Street Development Company, LLC, et al., Defendants–Appellants,New York Crane & Equipment Corp., et al., Defendants.[And A Third Party Action].Catherine M. Cohen, etc., Plaintiff–Respondent,Michael J. Cohen, etc., et al., Plaintiffs,v.East 51st Street Development Company, LLC, et al., Defendants–Appellants,Joy Contractors, et al., Defendants.[And A Third Party Action].
O'Melveny & Myers LLP, New York (Brad Elias of counsel), for East 51st
Street Development Company, LLC, appellant.Gallo Vitucci and Klar, LLP, New York (Kimberly A. Ricciardi of counsel), for Reliance Construction Group and RCG Group, Inc., appellants.Sullivan Papain Block McGrath & Cannavo P.C., New York (Brian J. Shoot of counsel), for Della Porta respondents.
Order, Supreme Court, New York County (Karen S. Smith, J.), entered July 29, 2010, which granted the Della Porta plaintiffs' motion for partial summary judgment on the issue of defendants East 51st Street Development Company, LLC, Reliance Construction Group and RCG Group, Inc.'s (defendants) liability under Labor Law § 240(1), unanimously affirmed, with costs. Appeals from orders, same court, Justice and entry date, insofar as they granted the Bleidner, Stephens, Jendersee, Gallone, Mazza and Cohen plaintiffs' motions for partial summary judgment on the issue of liability under Labor Law § 240(1), unanimously withdrawn in accordance with the terms of the stipulations of the parties.
Where, as here, it is undisputed that plaintiff John Della Porta was injured as a result of the collapse of a crane, a prima facie case of liability under Labor Law § 240(1) is established ( see Thompson v. St. Charles Condominiums, 303 A.D.2d 152, 154, 756 N.Y.S.2d 530 [2003], lv. dismissed 100 N.Y.2d 556, 763 N.Y.S.2d 814, 795 N.E.2d 40 [2003] ; Cosban v. New York City Tr. Auth., 227 A.D.2d 160, 161, 641 N.Y.S.2d 838 [1996] ). Plaintiffs' alleged reliance on inadmissible reports is of no moment, given the undisputed facts.
Defendants have failed to raise an issue of fact as to whether they violated Labor Law § 240(1) and whether such violation proximately caused plaintiff John Della Porta's injuries ( see Cosban, 227 A.D.2d at 161, 641 N.Y.S.2d 838). The alleged failure of plaintiff's coworker to provide adequate safety devices, such as slings, does not raise an issue of fact. The existence of unused safety devices at the work site can bar recovery only if the devices were readily available at the work site; plaintiff knew that they were available and that he was expected to use them; he chose not to use them “for no good reason”; and such choice caused the accident ( Gallagher v. New York Post, 14 N.Y.3d 83, 88, 896 N.Y.S.2d 732, 923 N.E.2d 1120 [2010]; Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 40, 790 N.Y.S.2d 74, 823 N.E.2d 439 [2004] ). Here, there was no evidence that plaintiff knew where to find the safety devices that defendants argue were readily available, or that he knew he was expected to use them but chose not to do so ( see Auriemma v. Biltmore Theatre, LLC, 82 A.D.3d 1, 11, 917 N.Y.S.2d 130 [2011] ). The rigging contractor's alleged failure to properly rig the crane also fails to raise an issue of fact. Indeed, the rigger's conduct was not “so far removed from any conceivable violation of the statute” as to constitute a superseding cause of the accident ( Hajderlli v. Wiljohn 59 LLC, 71 A.D.3d 416, 416, 897 N.Y.S.2d 37 [2010], lv. denied 15 N.Y.3d 713, 912 N.Y.S.2d 578, 938 N.E.2d 1013 [2010] ).
Contrary to defendant property owner's contention, Labor Law § 240(1) holds owners and general contractors absolutely liable for any breach of the statute even if they do not have a continuing duty to supervise the use of safety equipment ( see McCarthy v. Turner Constr., Inc., 17 N.Y.3d 369, 374, 929 N.Y.S.2d 556, 953 N.E.2d 794 [2011] ). We reject defendant construction manager's argument that it is not an owner or general contractor and thus cannot be held liable under the statute. Pursuant to its contract with the property owner, the construction manager had supervisory authority and control over the project and thus is vicariously liable as
an agent of the owner ( see Castellon v. Reinsberg, 82 A.D.3d 635, 636, 920 N.Y.S.2d 62 [2011]; Minorczyk v. Dormitory Auth. of the State of N.Y., 74 A.D.3d 675, 675, 904 N.Y.S.2d 383 [2010] ). Summary judgment is not premature. Defendants have not shown that additional discovery is necessary ( see Duane Morris LLP v. Astor Holdings Inc., 61 A.D.3d 418, 418, 877 N.Y.S.2d 250 [2009] ). We have considered defendants' remaining contentions and find them unavailing.
MAZZARELLI, J.P., MOSKOWITZ, ACOSTA, RENWICK, DeGRASSE, JJ., concur.