Opinion
1154/2003.
Decided March 2, 2006.
Michael J. Skoney, Esq., of Counsel Lewis Lewis, P.C., Attorneys for Plaintiff.
John F. Canale, Esq., Burgio, Kita Curvin of Counsel Bouvier Partnership, LLP, Attorneys for Defendant New York State Electric Gas Corporation.
Steven P. Curvin, Esq., of Counsel Hiscock Barclay, LLP, Attorneys for Defendants Riley.
Michael E. Ferdman, Esq., of Counsel Masterpiece Builders, LLC (incorrectly sued as Barden Homes of Clarence) Attorneys for Defendant/Third-Party Plaintiff.
Ralph Cessario, Esq., of Counsel Law Offices of John Quackenbush Attorneys for Third-Party Defendant Town of Clarence.
This action was commenced in February of 2003. In his Amended Complaint filed in March of 2003, plaintiff alleges causes of action premised in negligence, Labor Law § 200, Labor Law § 240 (1) and Labor Law § 241 (6). A third-party action was commenced in July of 2005. Issue was joined as to all defendants and the third-party defendant by August of 2005.
Defendants, New York State Electric Gas Corporation ("NYSEG"), Masterpiece Builders, LLC (incorrectly sued as Barden Homes of Clarence) ("Masterpiece"), and Robert and Patricia Riley (the "Rileys"), have moved for summary judgment to dismiss the plaintiff's complaint. "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" ( Alvarez v. Prospect Hosp., 68 NY2d 320, 324). Failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v. NY Univ. Med. Ctr., 64 NY2d 851, 853). Once the movant has made this showing, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial ( Zuckerman v. City of New York, 49 NY2d 557, 562).
Labor Law § 240 (1)All of the defendants have moved against this cause of action primarily on the grounds that plaintiff was not injured through the kind of gravity-related hazard that is covered by the statute (see Bond v. York Hunter Constr., Inc., 95 NY2d 883; Rocovich v. Consolidated Edison Co., 78 NY2d 509). Plaintiff was injured on May 1, 2002, while employed by Verizon as a telephone lineman. Plaintiff and his co-worker, Mark Ellington, were dispatched to an area at approximately 5165 Old Goodrich Road in the Town of Clarence. Their work assignment was to alter three wooden utility poles jointly owned by NYSEG and Verizon. The purpose of the work was to assist in establishing the telephone lines between two newly-erected poles and in the removal of a another utility pole obstructing the construction of a driveway for property owned by the Rileys.
Plaintiff testified at his deposition that his job assignment during the time he was injured was to "raise cable and remove a pole." Specifically, plaintiff and his co-worker were to raise the telephone wires between the northernmost and southernmost utility poles and remove the utility pole which was in between. After plaintiff had raised the wires on the southernmost pole and had removed the wires from the middle pole, plaintiff raised the wires on the northernmost pole. He was injured as he was embarking from the aerial bucket. Even after his injury, plaintiff and Ellington finished their job by demolishing the middle pole.
When plaintiff was finished with his alteration work on the northernmost pole, he lowered the aerial basket in which he was located to a position just above the ground. Plaintiff testified at his deposition that he then opened the door to the aerial basket, stepped on the four-inch lip at the exit from the basket with his right foot, and stepped forward outside the basket with this left foot. Plaintiff believed he was stepping out onto the ground. Plaintiff thereupon fell to the ground into a ditch that was, according to his deposition testimony, four feet wide and three feet deep. Plaintiff testified that he did not see the ditch because there was tall grass growing out of it.
In plaintiff's affidavit submitted in opposition to the defendants' motions, plaintiff claims that he fell "approximately ten feet into an uncovered excavation." (¶ 15). To the extent that plaintiff may have thereby contradicted his deposition testimony, the Court will adhere to those Appellate Division decisions which hold that a plaintiff cannot defeat summary judgment by contradicting his earlier sworn accounts of the events which give rise to the suit (see Liberty Mut. Ins. Co. v. General Acc. Ins. Co., 277 AD2d 981, 982 [4th Dept 2000]; Ferber v. Farm Family Cas. Ins. Co., 272 AD2d 747, 749 [3rd Dept 2000]; Kistoo v. City of New York, 195 AD2d 403 [1st Dept 1993]).
Ellington testified at his deposition that he did not see the plaintiff fall, but when he heard plaintiff make a noise after the fall, he looked and saw that the plaintiff's torso was coming out of a hole. The record further reflects that plaintiff completed an accident report for his employer shortly after the incident wherein plaintiff indicated that he: "lowered down the bucket, proceeded to exit bucket on ground, took a few steps forward and fell forward on the ground landing on my left knee and my left arm."
Defendants rely primarily on the Fourth Department's decision in Finch v. Conrail ( 241 AD2d 952 [4th Dept 1997]). There, the Fourth Department reversed the trial court's denial of the defendant's motion for summary judgment and held: "stepping into a concealed hole from the back of a truck does not involve the type of special, elevation-related hazard contemplated by Labor Law § 240 (1)'" ( Finch, 241 AD2d at 953 [citations omitted]). Plaintiff has countered with cases involving falling objects and defective equipment (see Salzler v. New York Tel. Co., 192 AD2d 1104 [4th Dept 1993]); McCloud v. Rochester Gas and Elec. Corp., 203 AD2d 923 [4th Dept 1994]), but this case involves neither such situation. Rather, the facts in Finch are essentially on all fours with this case and is therefore controlling here. Accordingly, defendants have carried their burden on this aspect of the motion and plaintiff's cause of action under Labor Law § 240 (1) is dismissed as against all defendants.
Labor Law § 241 (6)The record before the Court amply demonstrates that neither Masterpiece nor the Rileys were owners or contractors for purposes of the work being performed by the plaintiff at the time he was injured. Neither Masterpiece nor the Rileys contracted for the alteration and demolition work being performed by the plaintiff. Moreover, neither owned the structures which were the subject of plaintiff's job assignment. Thus, they cannot be held liable under Labor Law § 241 (6) ( Silva v. New York Tel. Co., 267 AD2d 634 [3rd Dept 1999]). Further, the Rileys are entitled to the homeowners' exemption specified in the statute as there is no doubt that, at the time plaintiff was injured, the Rileys were in the process of constructing a single-family home ( Putnam v. Karaco Indus. Corp., 253 AD2d 457 [2nd Dept 1998]).
The facts are undisputed that NYSEG is a co-owner of the three structures (i.e., utility poles) which were the subject of plaintiff's work assignment on the day he was injured ( McCloud, 203 AD2d at 923). NYSEG counters that it did not own the telephone wires which were being moved by the plaintiff and that therefore it cannot be held liable under cases such as Fuller v. Niagara Mohawk Power Corp. ( 213 AD2d 986 [4th Dept 1995]). However, the facts reveal that plaintiff's work included drilling holes into and otherwise altering the utility poles which would remain in place and that his work included demolishing the middle utility pole. Under the broad definition of construction work contained in the Industrial Code, plaintiff's work on and in connection with the three structures comes within the ambit of the statute ( Joblon v. Solow, 91 NY2d 457).
Because the context of plaintiff's work at the time he was injured is encompassed by the protections afforded under Labor Law § 241 (6), the Court must look to the specific provisions of the Industrial Code which plaintiff alleges were violated and determine: (1) whether the regulation applies; and (2) whether the regulations are specific enough upon which to base a claim under the statute. Plaintiff relies upon 12 NYCRR Sections 23-1.7 (b), 23-4.2, and 23-9.6 (e). While Section 23-4.2 is specific enough upon which to base a statutory violation ( Gampietro v. Lehrer McGovern Bovis, Inc., 303 AD2d 996, 997 [4th Dept 2003]), that section is not applicable here and thus any claim pursuant to Labor Law § 241 (6) as premised on Section 23-4.2 must be dismissed.
The Fourth Department has held that Sections 23-1.7 (b) and 23-9.6 (e) are specific enough upon which to base a statutory violation ( Mazzu v. Benderson Dev. Co., 224 AD2d 1009, 1011 [4th Dept 1996]; Greenough v. Niagara Mohawk Power Corp., 13 AD3d 1160, 1162 [4th Dept 2004]). Based on the affidavit from plaintiff's expert, there is a material issue of fact as to the applicability of these regulations and whether they were violated. On this basis, and as to these two regulations, plaintiff has raised issues of material fact in dispute and the motion by NYSEG as to the claim under Labor Law § 241 (6) is denied.
Labor Law § 200/Common Law Negligence
All of the moving defendants have "established that they had no authority to supervise or control the work being performed by plaintiff at the time of his accident, that the alleged defect or dangerous condition arose out of the subcontractor's own methods of work, and that they lacked actual or constructive notice of the alleged defect or dangerous condition" ( Bald v. Westfield Academy Cent. School, 298 AD2d 881, 882 [4th Dept 2002]). Plaintiff also has not raised any disputed issues of material fact as to these issues. Accordingly, plaintiff's claims based on Labor Law § 200 and common law negligence are dismissed as against all defendants.
Based on the foregoing, the motions for summary judgment of Masterpiece and the Rileys are granted in all respects. Plaintiff's cross-motion for partial summary judgment on Labor Law § 240 (1) is denied in all respects. The motion for summary judgment by NYSEG is granted in part and denied in part such that any of plaintiff's claims under Labor Law §§ 240 (1), 200 and for negligence are dismissed. Further, any claims against NYSEG for any violation of Labor Law § 241 (6) is granted except the motion is denied as to any claims based on Industrial Code Sections 23-1.7 (b) and 23-9.6 (e). Counsel for the defense should prepare the appropriate Order(s) and settle the Order(s) among fellow counsel.