Opinion
1103902001
Decided June 22, 2005.
In this action, plaintiff Desmond Wallace seeks to recover for injuries he sustained on April 26, 2000, while he and other co-workers were lowering a statue from the top of a 10 story building owned by defendant Dormitory Authority of the State of New York (DASNY).
Before this court are two motions and a cross motion for summary judgment, pursuant to CPLR 3212 (Motion Seq. Nos. 004 and 005). Plaintiff also cross-moves for partial summary judgment as to liability against DASNY on his Labor Law § 240 (1) claim, and to strike DASNY's first affirmative defense. This decision addresses all such motions and cross motions.
BACKGROUND
Plaintiff was an employee of T.A. Ahern Contractors Corp. (Ahern), which was the general contractor for a portion of the construction project at a 10 story building known as Shepherd Hall, which belongs to DASNY. On April 26, 2000, plaintiff was utilizing a hoist and rope to lower a statue atop Shepherd Hall. One end was attached to the statue, while plaintiff and two other men held the other end. As the workers who were on top of the building moved the statue off its perch, it allegedly went into a free fall. The rope allegedly flew through plaintiff's hands and cut through his work gloves as the statue fell towards the ground. Plaintiff allegedly suffered a fractured wrist, second degree burns on both hands, and permanent scarring. According to plaintiff, the two men holding his end of the rope had let go of the rope before the statue was lowered.
DISCUSSION
DASNY's Motion for Summary Judgment
The standards for summary judgment are well settled.
"[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. 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 NY2d 320, 324 [internal citations omitted]).
DASNY argues that plaintiff's cause of action under Labor Law § 200 should be dismissed because it did not supervise or control plaintiff's work. As to plaintiff's Labor Law § 240 (1) claim, DASNY contends that the statute does not apply because the accident does not involve elevation-related hazards. Finally, DASNY maintains that the Industrial Code provisions upon which plaintiff bases his Labor Law § 241 (6) claims are either general or inapplicable to this accident.
Labor Law § 200 codifies "the common-law duty imposed upon an owner or general contractor to maintain a safe construction site" ( Rizzuto v. L.A. Wenger Contr. Co., 91 NY2d 343, 352). Where the alleged defect or dangerous condition arises from the contractor's methods, no liability attaches under either the common law or under Labor Law § 200 if there was no supervision or control over the contractor's work ( Comes v. New York State Elec. Gas Corp., 82 NY2d 876, 877). However, supervision is not required to establish liability if plaintiff's injuries were caused by a dangerous condition on the premises of which the owner or general contractor had actual or constructive notice ( See Murphy v. Columbia Univ., 4 AD3d 200, 202 [1st Dept 2004]; Dalton v. New Water St. Corp., 284 AD2d 213, 214 [1st Dept 2001]).
Labor Law § 200 (1) provides, in relevant part: All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons.
Here, DASNY establishes a prima facie case that it did not supervise or control plaintiff's work. Plaintiff testified at his deposition that he received the assignment to lower the statue from his supervisor, Kevin McGinty, an employee of Ahern (Mullholland Affirm., Ex D [Wallace Dep.], at 25, 31). All the men working on lowering the statue were Ahern employees ( id. at 29). At the job site, plaintiff never met anyone from DASNY ( id. at 99).
In opposition, plaintiff cites the deposition testimony of DASNY's project manager, Nazar Saif. Saif conducted weekly walk throughs of the site and checked the progress, quality, and safety of the work (Ashman Opp. Affirm., Ex B [Saif Dep.] at 37, 44). Saif also stated that DASNY approved the shop drawings that indicated that statues would be removed by a hoist or pulley mechanism ( id. at 86-87). However, neither retention of inspection privileges nor a general power to supervise alone constitutes control sufficient to impose liability ( Brown v. New York City Econonomic Dev. Corp., 234 AD2d 33 [1st Dept 1996]).
Therefore, plaintiff's causes of action for violations of Labor Law § 200 and common-law negligence are dismissed as against DASNY.
Labor Law § 240 (1) imposes a nondelegable duty upon owners and general contractors to furnish proper safety devices and protection, so as to ensure the safety of workers exposed to elevation-related risks during the construction, repair, demolition, painting, and alteration of a building or structure ( see Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 499-500). "'[T]his statute is one for the protection of [workers] from injury and undoubtedly is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed'" ( Blake v. Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 292 [citation omitted]). However, "[t]he extraordinary protections of Labor Law § 240 (1) extend only to a narrow class of special hazards, and do 'not encompass any and all perils that may be connected in some tangential way with the effects of gravity'" ( Nieves v. Five Boro Air Conditioning Refrig. Corp., 93 NY2d 914, 915-916 [quoting Ross, 81 NY2d at 501]).
DASNY argues that the statute does not apply because plaintiff did not fall, and nothing fell onto him. Plaintiff contends that the weight of the statue attached to the pulley's rope created the gravity-related, elevation differential risk covered under the statute. Plaintiff argues that it is not necessary for the falling object to actually strike the plaintiff for the statute to apply.
In the court's view, Labor Law § 240 (1) applies to this case. Labor Law § 240 (1) provides, in pertinent part:
All contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.
(emphasis supplied). "For the statute to apply, a worker need not be injured by a falling object actually striking him. It is enough that the injury was 'a foreseeable consequence of defendants' failure to provide and place a proper protective device where one was called for'" ( Kollbeck v. 417 FS Realty LLC, 4 AD3d 314, 314 [1st Dept 2004] [citation omitted]). Thus, injuries covered under the statute are not limited to those injuries resulting only from the impact of a fall. "[P]laintiff is within the protection of the statute if his injury was proximately caused by the risk, i.e., defendant's act or failure to act as the statute requires 'was a substantial cause of the events which produced the injury'" ( Gordon v. Eastern Railway Supply, Inc., 82 NY2d 555, 561-562 [citation omitted]).
In Kollbeck ( 4 AD3d 314, supra), the plaintiff injured his back while holding onto a chain hoist to prevent an object from falling. The Court held that "[p]laintiff's injury while trying to prevent the object from falling was an activity arguably entitled to protection under the statute" ( id. at 314). Like the plaintiff in Kollbeck, plaintiff here was holding onto the rope to prevent the statue from falling. Therefore, the injury to plaintiff's hands should similarly be covered under the statute.
Furthermore, the statute applies when proper operation of the pulley could have prevented the statue's free fall to the ground when the workers lost control of the statue ( cf. Melber v. 6333 Main St., Inc., 91 NY2d 759, 763 [Labor Law § 240 (1) does not apply if device could not have prevented the hazard]).
However, whether plaintiff should have been the only person allegedly holding his end of the rope ( see Wallace Dep., at 47) and whether he had the ability to exert enough force, by himself, to keep the statue from falling, however, may be, inter alia, factual issues in this case. Nor does the record indicate whether the hoist had any locking mechanism to stop or slow the rope from running through Whether such a mechanism has yet to be devised is not a defense to liability under the statute ( see Petterson v. Museum Tower Corp., 151 AD2d 403, 406 [1st Dept 1989]).
The cases that DASNY cites in support are inapposite. In Toth v. Cargill, Inc., Nutrena Feeds Div., ( 236 AD2d 707 [3rd Dept 1997]), the plaintiff's hands were drawn into a pulley, not because of the force of gravity, but by the action of a motor belt that plaintiff grabbed onto to keep himself from falling. No elevation-related risks were involved in Thompson v. Ludovico ( 246 AD2d 642 [2nd Dept 1998]) and Maracle v. DiFranco ( 197 AD2d 877 [4th Dept 1993]). In Thompson, plaintiff fell from a "minuscule height" ( 246 AD2d at 643). In Maracle, the wall that fell upon plaintiff was at the same level as the work site ( 197 AD2d at 878]). Unlike Thompson and Maracle, in the within case, it is undisputed that the statue was about 10 stories above the ground before it began its free fall (Wallace Aff.; Wallace Dep., at 33).
Therefore, DASNY's motion for summary judgment dismissing the complaint is denied as to plaintiff's cause of action under Labor Law § 240 (1).
"Labor Law § 241 (6) requires contractors and owners to provide 'reasonable and adequate protection and safety' to employees working in, and persons lawfully frequenting, 'all areas in which construction, excavation, or demolition work is being performed'" ( Jock v. Fien, 80 NY2d 965, 968). In order to support a claim under this section, a plaintiff must allege violations of specific, applicable sections of the Industrial Code ( see Comes, 82 NY2d at 878; Ross, 81 NY2d at 503-505). Here, plaintiff alleges that DASNY violated 12 NYCRR 23-1.4, 23-1.7 (a) (1), 23-1.33 (a) (1) (2), 23-6.1 (b), 23-6.1 (c) (1) (2), 23-6.1 (f) (1), 23-6.2 (a) (2) (ii), and 23-8.1 (a) (k).
As DASNY points out, some of these provisions are inapplicable. 12 NYCRR 23-1.4 merely sets out definitions. "12 NYCRR 23-1.33 (a) (1) (2) apply to persons passing by construction operations and not to workers, such as plaintiff, on a construction site" ( Lawyer v. Hoffman, 275 AD2d 541, 542 [3rd Dept 2000]). 12 NYCRR 8.1 (a) (k) apply to a mobile crane, tower crane, or derrick, and the wire rope used therein, which is not the case here. Finally, 12 NYCRR 6.1 (b) and 6.1 (c) (1) are not sufficiently specific to support a violation of Labor Law § 241 (6) ( see Barrick v. Palmark, Inc., 9 AD3d 414 [2nd Dept 2004]; Sharrow v. Dick Corp., 233 AD2d 858, 861 [4th Dept 1996]).
However, DASNY has not met its burden for summary judgment dismissing plaintiff's Labor Law § 241 (6) claim based on the remaining Industrial Code provisions: 12 NYCRR 23-1.7 (a), 23-6.1 (f) (1), and 23-6.2 (a) (2) (ii). DASNY submits no authority indicating that these provisions are too general. Nor does the record show that, as a matter of law, these provisions do not apply.
Plaintiff's Cross Motion
Plaintiff's cross motion is denied. Plaintiff did not meet his burden of establishing that a violation of Labor Law § 240 (1) was the proximate cause of his injuries ( see Blake, 1 NY3d at 289). Plaintiff's arguments are devoted only to demonstrating the applicability of the statute, which as indicated above, has been established. Further, to support his motion plaintiff does not claim that the hoist may not have been properly operated or may have lacked a locking mechanism.
The branch of plaintiff's cross motion seeking to dismiss the first affirmative defense, alleging plaintiff's culpable conduct, is denied. That defense is not directed at any particular cause of action of the complaint, and is a valid defense for all the causes of action. As it applies to plaintiff's cause of action under Labor Law § 240 (1), the defense can be read to plead plaintiff's culpable conduct as the sole proximate cause of the accident, as opposed to alleging plaintiff's contributory negligence, which is not a defense to liability under the statute ( see at Blake, 1 NY3d at 289-90).
Bey Contracting, Inc.'s Motion for Summary Judgment
Bey Contracting, Inc.'s motion for summary judgment dismissing the complaint and any cross claims against it is granted without opposition. Its senior project manager testified at his deposition that it had contracted with DASNY to perform work at Harris Hall, not Shepherd Hall ( see Fumo Affirm., Ex E [Lambrakis Dep.], at 10; see also Fumo Affirm., Ex F).
The City's Cross Motion
The City's cross motion is granted without opposition. The City demonstrates that it did not own the premises at the time of plaintiff's accident. The City transferred the land to the State of New York in 1982, which later conveyed it to DASNY ( see Famulari Affirm., Ex B [Garfinkle Dep.], at 18, 20; see id., Ex C).
Accordingly, it is hereby
ORDERED that the motion for summary judgment by defendant Dormitory Authority of the State of New York (Motion Seq. No. 004) is granted in part as follows: 1) the first and second causes of action of the complaint are dismissed as against this defendant; 2) the fourth cause of action is dismissed as to violations of Labor Law § 241 (6) based on 12 NYCRR 23-1.4, 23-1.33 (a) (1) (2), 23-6.1 (b), 23-6.1 (c) (1), and 23-8.1 (a) (k), and the motion is otherwise denied; and it is further
ORDERED that plaintiff's cross motion for summary judgment is denied; and it is further
ORDERED that the motion for summary judgment by defendant Beys Contracting, Inc. (Motion Seq. No. 005) and the cross motion for summary judgment by defendant City of New York are granted as follows: 1) the complaint is severed and dismissed as against these defendants, and the Clerk is directed to enter judgment in favor of these defendants, with costs and disbursements as taxed by the Clerk, upon proof of service of a copy of this decision/order upon all parties with notice of entry; and 2) the cross claims of defendants Dormitory Authority of the State of New York, the City University of New York, the City College of New York, and the City University Construction Fund for indemnity or apportionment against these defendants are dismissed; it is further
ORDERED that the remainder of the action shall continue; and it is further
ORDERED that within 30 days of entry of this decision/order, defendant DASNY shall serve a copy upon all parties with notice of entry.