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concluding that 12 N.Y.C.R.R. 23-1.7 requiring use of planks to regulate overhead hazards was sufficiently specific but finding no evidence that it applied
Summary of this case from Jimenez v. New York City School Const.Opinion
February 10, 1999
Appeal from Order of Supreme Court, Niagara County, Fahey, J. — Summary Judgment.)
Present — Denman, P. J., Green, Hayes, Wisner and Callahan, JJ.
Order unanimously reversed on the law without costs, motion denied and cross motions granted. Memorandum: Plaintiff was working on the erection of a temporary tube column in conjunction with the construction of an addition to a building. The column had been set into place with a crane, and plaintiff was bolting the base of the column. The column was equipped at the top with an adjustable steel lug or "angle clip" that was used to hold bar joists to the roof. The angle clip slipped about 15 feet down the column, to which it was attached at all times, and struck plaintiff on the hand. Plaintiff commenced this action alleging causes of action for violations of Labor Law §§ 200 Lab., 240 Lab. (1) and § 241 Lab. (6), and common-law negligence. Supreme Court granted plaintiff's motion for summary judgment on the Labor Law § 240 Lab. (1) claim, denied the cross motion of defendants Niagara County Industrial Development Agency (IDA) and Benderson Development Company, Inc. (Benderson) for summary judgment dismissing the complaint against the IDA and the Labor Law § 240 Lab. (1) and § 241 Lab. (6) claims against Benderson, and denied the cross motion of third-party defendant, Apollo Steel Corporation (Apollo), for summary judgment dismissing the Labor Law § 240 Lab. (1) and § 241 Lab. (6) claims against it.
The court erred in granting plaintiff's motion for summary judgment and in denying those parts of the cross motions with respect to the Labor Law § 240 Lab. (1) claim. The angle clip was secured to the column at all times and thus was an "integral part of the ground-level structure" that plaintiff was erecting ( Amato v. State of New York, 241 A.D.2d 400, 401, lv denied 91 N.Y.2d 805). Plaintiff was exposed to the "type of peril a construction worker usually encounters on the job site" ( Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487, 491, rearg denied 87 N.Y.2d 969).
The court also erred in denying those parts of the cross motions with respect to the Labor Law § 241 Lab. (6) claim. Although the regulation relied on by plaintiff, 12 NYCRR 23-1.7 (a) (1), is sufficiently specific ( see, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 502-504), it does not apply to the facts of this case. There is no proof that the worksite was "normally exposed to falling material or objects" ( 12 NYCRR 23-1.7 [a] [1]). Finally, the court erred in denying that part of the cross motion of the IDA and Benderson dismissing the Labor Law § 200 Lab. claim and common-law negligence cause of action against the IDA. The IDA established that it did not direct, control or supervise plaintiff's work ( see, Comes v. New York State Elec. Gas Corp., 82 N.Y.2d 876, 877).