Opinion
No. 306659/09.
2012-08-10
Yuriy KONDEREVYCH, Plaintiffs, v. COMPARE FOODS, INC. and LDB Properties LP, Defendants.
Stuart M. Rissof, Esq., Garden City, NY, for Plaintiff. Michael J. Mahon, Esq., Mahon Vanhaaster LLP, Nyack, NY, for Defendants.
Stuart M. Rissof, Esq., Garden City, NY, for Plaintiff. Michael J. Mahon, Esq., Mahon Vanhaaster LLP, Nyack, NY, for Defendants.
Kenneth L. Thompson Jr., J.
Plaintiff's motion for an Order pursuant to CPLR § 3212 granting summary judgment on his Labor Law claims and Defendants' cross-motion for an Order pursuant [Slip Op. 2]to CPLR § 3212 granting summary judgment and dismissing Plaintiff's Labor Law claims are consolidated for Decision herein.
Plaintiff's motion is DENIED.
Defendants' cross-motion is GRANTED.
Plaintiff was a laborer for Empire Refrigeration on September 3, 2003. He was helping his supervisor, Dmitry, remove and replace refrigerator compressors in the basement of Defendant COMPARE FOODS, INC's store, which was located in a building owned by Defendant LDB PROPERTIES LP. The electrical power had to be shut off before this removal and replacement could be done, which required overhead hanging wires to be cut. Dmitry stepped up onto a milk crate to cut these wires with a pair of pliers not knowing that they had not been “de-energized.” The jolt caused Dmitry to lose his balance, which in turn caused him to hit an overhead pipe with the pliers in his hand. This uninsulated pipe burst and spewed Freon gas into the space they were working. Dmitry instructed Plaintiff to take hold of the pipe until he could shot off the flow. Plaintiff was wearing cloth gloves but both of his hands were burned by the Freon gas. Plaintiff brought suit alleging, among other things, violations of Labor Law §§ 200, 240 and 241(6). All parties are now seeking summary judgment on these claims.
Plaintiff's injuries did not flow from the application of the force of gravity. The proximate cause of his injuries was his supervisor's instruction to grab the leaking pipe, coupled with his acquiescence to that instruction. The alleged statutory violations are either irrelevant or not the proximate cause of Plaintiff's injuries. There is no evidence that Defendants supervised or controlled Plaintiff's work or had notice of a dangerous condition in the basement. Summary judgment
The 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. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, however, 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 of the action.
Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324.
Labor Law § 240(1)Scaffolding or staging more than twenty feet from the ground or floor, swung or suspended from an overhead support or erected with stationary supports, except scaffolding wholly within the interior of a building and covering the entire floor space of any room therein, shall have a safety rail of suitable material properly attached, bolted, braced or otherwise secured, rising at least thirty-four inches above the floor or main portions of such scaffolding or staging and extending along the entire length of the outside and the ends thereof, with only such openings as may be necessary for the delivery of materials. Such scaffolding or staging shall be so fastened as to prevent it from swaying from the building or structure.
Labor Law § 240(1).
“Labor Law § 240(1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person.” Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 501. (emphasis in opinion). “Where there is no statutory violation, or where the plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery under Labor Law § 240(1).” Treu v. Cappelletti, 71 AD3d 994, 997.
There was no duty to provide a ladder to Plaintiff, who was the “injured worker,” because he was not the one required to work at an elevation. See Salazar v. Novalex Contr. Corp., 18 NY3d 134, 139 (stating that “[l]iability ... depends on whether the injured worker's “task creates an elevation-related risk of the kind that the safety devices listed in Labor Law § 240(1) protect against”) (citations omitted).Defendants' purported failure to provide Plaintiff's supervisor with a ladder “merely furnished the condition or occasion for the occurrence of the event but was not one of its causes.” Panico v. Key Food Stores Coop., 275 A.D.2d 312 (citations omitted). Plaintiff's injuries occurred as a direct result of grabbing the leaking pipe after being instructed to do so by his supervisor. Refusing to grab the pipe may not have redounded to his benefit but the result of his compliance cannot reasonably be imputed to the Defendants.
Labor Law § 241(6)All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements: ... All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.
Labor Law § 241(6).
“To prevail under Labor Law § 241(6), the plaintiff is required to establish a violation of an implementing regulation that sets forth a specific standard of conduct as opposed to a general reiteration of common-law principles.” Collucci v. Equitable Life Assurance Society of US, 218 A.D.2d 513, 517. This violation must also be the proximate cause of Plaintiff's injuries. See, e.g., Ortiz v. 164 Atl. Ave., LLC, 77 AD3d 807;Treu v. Cappelletti, 71 AD3d 994, 998;Silvas v. Bridgeview Invs., LLC, 79 AD3d 727, 732.
Plaintiff relies on 12 NYCRR § 23–1.13(b)(2)–(5), (c) & (c)(5) and 23–1.8(c)(4). (S.M. Rissof Aff Supp at ¶¶ 11–17.) These provisions relate to Electrical Hazards and corrosive substances, respectively. Plaintiff was not exposed to an electrical hazard that the Industrial Code was mandated to cover, his supervisor was. Plaintiff's injuries did not result from his supervisor's exposure to any alleged electrical hazard but from his supervisor's instruction to grab the leaking pipe and his obedience. Plaintiff claims that “Freon and other coolants are known to be dealt with in the removal and installation of refrigeration and condenser units,” ( id. at ¶ 18), but provides no evidence that he was “required to use or handle [these] substances or chemicals,” 12 NYCRR § 23–1.8(c)(4).
Labor Law § 200“To establish liability for a violation of Labor Law § 200 and for common-law negligence, a plaintiff must demonstrate that the defendants exercised supervision and control over the work performed, or had actual or constructive notice of an allegedly unsafe condition.” Pilch v. Bd. Of Educ., 27 AD3d 711, 713. The statute “applies to owners, contractors, or their agents who have the authority to exercise supervision and control over the work bringing about the injury to enable it to avoid or correct an unsafe condition.” Everitt v. Nozkowski, 285 A.D.2d 442, 443.
Plaintiff has failed to proffer any evidence that the “employees” he encountered in the basement “exercised supervision and control over the work performed.” Indeed, he concedes that he worked for Empire Refrigeration and that Dmitry, a business partner of the owner of Empire, was his supervisor. It is irrelevant whether or not these “employees” had notice that “the floor was uneven and a milk crate was used as a ladder” since those conditions were not the proximate cause of Plaintiff's injuries.
The foregoing shall constitute the decision and order of this Court.