Opinion
31049/2008
09-12-2011
Joaquim Duarte and MARIA DUARTE, Plaintiffs, v. The City of New York, NEW YORK CITY DEPARTMENT OF TRANSPORTATION, NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATION SERVICES, THE URBAN GROUP, LTD., and REGIONAL SCAFFOLDING & HOISTING CO., INC., Defendants.
Plaintiff Attorney Brencher, Fishman, Paternack, Walsh, Tilker & Ziegler, P.C. Charles Nolet, Esq. Defendants Attorney Hardin, Hundla, McKeon & Poletto Stephen J. Donahue, Esq.
Plaintiff Attorney Brencher, Fishman, Paternack, Walsh, Tilker & Ziegler, P.C. Charles Nolet, Esq.
Defendants Attorney Hardin, Hundla, McKeon & Poletto Stephen J. Donahue, Esq.
Wayne P. Saitta, J.
Defendants, THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF TRANSPORTATION, NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATION SERVICES, THE URBAN GROUP, LTD., and REGIONAL SCAFFOLDING & HOISTING CO., INC., (hereinafter "the Defendants"), move this Court for an Order pursuant to CPLR §3212 for Summary Judgment dismissing the complaint, and the Plaintiffs cross-move this Court for an Order pursuant to CPLR § 3212 for partial Summary Judgment on their Labor Law §240(1) and §241(6) claims.
Upon reading the Notice of Motion by Stephen J. Donahue, Esq., Attorney for THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF TRANSPORTATION, NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATION SERVICES, THE URBAN GROUP, LTD., and REGIONAL SCAFFOLDING & HOISTING CO., INC., dated December 10th, 2010, together with the Affirmation of Stephen J. Donahue, Esq., dated December 10th, 2010, and all exhibits annexed thereto; the Affirmation in Opposition of Charles Nolet, Esq., Attorney for Plaintiffs JOAQUIM DUARTE and MARIA DUARTE, dated March 7th, 2011 and all exhibits annexed thereto; the Notice of Cross-Motion for Partial Summary Judgment of Charles Nolet, Esq., dated March 7th, 2011, together with the Affirmation in Support of Charles Nolet, Esq., and all exhibits annexed thereto; the Affirmation in opposition of Stephen J. Donahue, Esq., dated March 21st, 2011 and all exhibits annexed thereto; the Reply Affirmation of Stephen J. Donahue, Esq., dated March 22nd, 2011 and all exhibits annexed thereto; the Reply Affirmation of Charles Nolet, Esq., dated April 6th, 2011 and all exhibits annexed thereto; and after argument of counsel and due deliberation thereon, both Defendants motion, and Plaintiffs' cross motion is granted in part and denied in part for the reasons set forth below.
FACTS
This action arises from a construction accident which took place on September 27, 2007 at Cadman Plaza in Brooklyn, NY. Plaintiffs seek to recover for injuries sustained when an iron bar struck Plaintiff JOAQUIM DUARTE in the face. Plaintiff was employed by P & T Contracting Corp., ("P & T"), as a carpenter. At the time of the accident JOAQUIM DUARTE, (hereinafter "Plaintiff"), was working with other P & T employees pursuant to a contract with the City to remove curbstones and install handicapped ramps.
The procedure to remove the curbstones began with the excavation around the curbstones. Then a backhoe bucket was used to lift one end of the curbstone.
Plaintiff states that iron bars were then to be placed under the stone by two workers, one on either side, while another worker placed a chain or a nylon strap around the middle of the stone. The chain or strap was then to be attached to the backhoe arm and the stone was to be maneuvered by the backhoe onto the sidewalk.
Plaintiff was on the roadside of the curbstone using a five foot iron bar to hold the hoisted curbstone in place while the chain or strap was placed around it. Just prior to the accident, the backhoe had lifted one end of the curbstone which was resting on the bucket of the backhoe. Plaintiff was bracing the stone with an iron bar.
It is in dispute as to whether Plaintiff's co-worker placed the chain around the stone prior to Plaintiff stepping backwards, away from the curbstone. Plaintiff states that the chain had been placed around the stone. He states that the other end of the chain was attached to the rear of the backhoe.
Defendants submit two affidavits of witnesses to the accident.
Carlos DeCastro, the foreman of the crew on which Plaintiff was working, states that the nylon strap typically used to hoist curbstones in their removal had not yet been placed. Mario Santos, a co-worker of Plaintiff's who witnessed the accident, describes the incident stating he used the backhoe to dig an excavation next to the curbstone, and then used it to lift one end of the curbstone. He said the curbstone then fell off the bucket and onto the iron bar, causing the iron bar to pop up and strike Plaintiff in the face. Santos makes no mention of the placement of any chain or nylon strap.
It is also disputed as to whether Plaintiff was holding the bar or whether the bar was lying on the street when the curbstone fell upon it.
ARGUMENTS
Defendants argue that any elevation related risk was too minimal to make out a claim pursuant to Labor Law section 240(1).
Defendants note that the curbstone fell from a height of three feet according to the Plaintiff, or eighteen inches according to Plaintiff's co-workers. They argue that this minimal elevation differential, and the fact that Plaintiff was not struck by the falling curbstone itself, takes the accident out of the protections of Labor Law 240(1).
Defendants also argue that the Industrial Code provisions cited by the Plaintiff are insufficiently specific to constitute a violation of Labor Law §241(6) and are inapplicable to this case as the curbstone was not being hoisted at the time of the accident.
Defendants argue that Plaintiffs' Labor Law 200 claim and common law claims must be dismissed as Defendants neither exercised control over Plaintiff's work, nor did they have notice of any hazardous condition on the work site.
Plaintiffs oppose Defendants' motion and cross move for summary judgment on their Labor Law sections 240(1) and 241(6) claims.
Plaintiffs argue that given the weight of the curbstone, the relatively short descent is still sufficient to sustain a violation pursuant to Labor Law section 240(1).
Plaintiffs further argue that Defendants violated 12 NYCRR 23-9.4(e)(1) and (2) which govern the manner in which loads are attached when lifting by a backhoe in that the load was not properly suspended by the required wire rope, and that the rope was not properly connected to the backhoe.
Plaintiffs argue that the Defendant City had an Inspector onsite who witnessed the unsafe manner in which the work was progressing but failed to take action to prevent Plaintiff's accident, and therefore the Defendants should be held liable for violations of Labor Law 200 and the common law.
ANALYSIS
Both Defendants and Plaintiffs seek summary judgment on Plaintiffs' Labor Law 240(1) claim.
Labor Law §240(1), known as the "scaffold" law, was enacted to impose non- delegable, strict liability upon property owners and general contractors for injuries which result from construction activities involving a significant risk due to elevation. "To establish liability under Labor Law §240(1), a plaintiff must demonstrate a violation of the statute and that such violation was a proximate cause of his or her injuries", Reinoso v. Ornstein Layton Mgt., Inc., 19 AD3d 678 (2005). A plaintiff must show that they were subject to particular risk because of "the relative elevation at which the task [had to] be performed or at which materials or loads [had to] be positioned or secured". Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 (1991).
The Court of Appeals' decision in Runner v. New York Stock Exchange, Inc., 13 NY3d 599, 922 N.E.2d 865 (2009), holds that the extent of the elevation must be viewed together with the weight of the object in determining whether the height differential is deminimis or not. In Runner, the plaintiff and co-workers had been holding the loose end of a rope wrapped around a metal rod in an attempt to control the descent of a heavy spool of wire. The attempt failed and the plaintiff was pulled into the bar, injuring his hands as they jammed against it. In Runner, rather than use a pulley or hoist system, workers tried to control the descent of the spool by holding one end of a rope while other workers lowered the spool. When this makeshift procedure failed, the weight of the falling reel dragged the plaintiff into the bar, injuring him.
The Runner Court held that "[t]he elevation differential here involved cannot be viewed as de minimis, particularly given the weight of the object and the amount of force it was capable of generating, even over the course of a relatively short descent. And, the causal connection between the object's inadequately regulated descent and plaintiff's injury was, as noted, unmediated—or, demonstrably, at least as unmediated as it would have been had plaintiff been situated paradigmatically at the rope's opposite end." Runner v. New York Stock Exchange, Inc., 13 NY3d 599, 922 N.E.2d 865 (2009).
Here, the fact that it was the bar propelled by the falling curbstone that struck Plaintiff, rather than the falling curbstone itself, does not require a different result. In Runner the plaintiff was not struck by a falling object but pulled into a pole. It was the fact that the injury was the result of the difference in elevation between the worker and the descending spool that brought the accident within Labor Law 240(1). Here, although the impact of the curbstone on the bar caused the injury, it was the unmediated, if short, descent of the curbstone which put the bar into motion.
In Apel v City of New York, 73 AD3d 406, 901 N.Y.S.2d 183 (1st Dept 2010), the Court found that where a crane failed, causing an 8- foot long anchor rod to drop while plaintiff was inserting a toggle pin to secure the anchor, the plaintiff's injury resulting from being struck by the toggle pin was covered by Labor Law section 240(1). That Court quoted Runner, supra, finding the risk to be guarded against "arose from the force of the very heavy object's unchecked, or insufficiently checked, descent", and that an adequate safety device had not been used to guard against that risk. Similarly in Luongo v. City of New York, 72 AD3d 609, 899 NYS2d 235 (1st Dept 2010), plaintiff was holding steel spacers on top of a jack to give the jack more height. The jack was holding a steel girder and when the jack failed, the spacers struck plaintiff, causing him injuries. The Court found that "the enormous weight of the steel girder caused the jack and plates to fall or shift while being . . . secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute'". Id., quoting Narducci v. Manhasset Bay Assoc., 96 NY2d 259, 268 (2001). Emphasis in original.
Defendants' reliance on this Court's decision in DeGabriel v. Strong Place Realty, LLC, 29 Misc 3d 908 907 NYS2d 633 (Kings Cty 2010) for the proposition that the mass of an object or the force it might cause, if falling, is not enough to find a violation of Labor Law 240(1), is misplaced.
In DeGabriel, the I-beam which injured the Plaintiff was not being lowered or hoisted, nor was it knocked over by an item being hoisted or lowered. It was a stationary object, in a stack, on the floor. Since the beam was not being hoisted or lowered, it comes within the line of cases governing when failure to secure an object which later falls constitutes a violation of §240(1). This turns on whether the beam was sufficiently elevated in relation to Plaintiff that it constituted a hazard and therefore should have been secured.
Runner does not stand for the proposition that any heavy object capable of generating significant force as the result of gravity must be secured. The Runner decision was inapplicable to the situation in DeGabriel as the I-beam which caused injury was not being hoisted or lowered.
Here, the curbstone was being hoisted. Even though only one end had been resting on the bucket of the backhoe, once one end had been lifted off of the ground the process of hoisting had commenced. In Runner, the force of gravity on the spool caused the injury. It was the force of gravity on the curbstone which caused the injury by propelling the iron bar into the Plaintiff.
The curbstone was hoisted either without being secured or without being properly secured. The iron bar was caused to strike the Plaintiff because of the absence or failure of a safety device specifically to properly secure the curbstone to the backhoe, and therefore Plaintiff is entitled to summary judgment on his Labor Law 240(1) claim.
Labor Law 241(6)Both Defendants and Plaintiffs seek summary judgment on Plaintiffs' Labor Law 241(6) claim. Plaintiff alleges a violation of 12 NYCRR 23-9.4(e)(1) and (2).
Those sections provide,
Section 23-9.4. Power Shovels and Backhoes Used for Material Handling (e) Attachment of load. (1) Any load handled by such equipment shall be suspended from theAs discussed above, once one end of the curbstone was lifted off of the ground, the hoisting process had begun.
bucket or bucket arm by means of wire rope having a safety factor of four.(2) Such wire rope shall be connected by means of either a closed shackle or a safety hook capable of holding at least four times the intended load.
In support of the §241(6) cliams, Plaintiffs submit the affidavit of Kathleen Hopkins who states that the proper procedure to hoist the stone would have been to excavate around the stone so that a wire rope could have been threaded under the stone, and secured with the proper shackle before lifting one end of the curbstone. Then the loops should have been attached to a loop on the arm of the backhoe. She opines that the manner in which the stone was lifted was not in compliance with Code. In his deposition, Edgar Rubio, the Engineer in charge of the project for the City, describes seeing a different curbstone secured and lifted by this procedure. Ms. Hopkins' affidavit and Rubio's testimony is sufficient to raise a question of fact as to whether the curbstone was hoisted in compliance with the Industrial Code.
There also is a question of fact as to whether the curbstone had been secured by a strap or a chain to the backhoe. Plaintiff's foreman, Carols DeCastro, stated in his affidavit that the raised end of the curbstone fell off of the bucket of the backhoe before a strap had been tied around the curbstone. However, Plaintiff stated that the chain had been placed around the curbstone and was attached to the backhoe, behind the bucket, before the curbstone fell.
These questions preclude granting summary judgment on the Section 241(6) claim to either Plaintiff or Defendant.
Labor Law 200 and common law
The common law and Labor Law §200 impose a duty upon employers to provide their employees with a safe place to work. They apply to owners, contractors, or their agents, who had control over, or supervised the work, or who created the dangerous condition and had actual or constructive notice of it. Kim v. Herbert Construction. Co., 275 AD2d 709, 713 NYS2d 190 (2nd Dept 2000).
Where the dangerous condition is created by a contractors methods the owner can not be held liable unless they supervised or controlled the work. Zavesky v Decato 223 AD2d 642, 636 NYS2d 419 (2nd Dept 1996)
However, where an accident is caused not by the method of work, but by a condition of the workplace, a plaintiff need not prove that the owner or construction manager supervised or controlled the work, only that they had notice of the dangerous condition. Griffin v NYCTA, 16 AD3d 202 , 791 NYS2d 98 (1st Dept 2005).
In this case the accident was the result of methods which the contractor, Plaintiff's employer, used in hoisting the curbstone.
Defendants submit the affidavit of Edgar Rubiano, the Engineer in Charge for the project for the City. Rubiano states he did not supervise, direct or otherwise control the manner in which P & T or the Plaintiff their work, nor was he present at the time of the accident.
Plaintiffs have offered no evidence to rebut this evidence that Plaintiff was only supervised by his employer, P & T.
The fact that Rubiano had witnessed other contractors remove curbstones in a different manner does not establish that he supervised or directed Plaintiff's work, particularly where he was not present at the time of the accident.
As the accident was the result of the contractors methods, and Plaintiff fails to provide any evidence that the City's Inspector directed or controlled Plaintiff's work, his Labor Law 200 and common law negligence claims must fail.
WHEREFORE, Defendants' motion for summary judgment is granted as to Plaintiff's Labor Law section 200 and common law claims; and denied as to Section 240(1) and 241(6); and Plaintiffs' motion for partial summary judgment is granted as to Labor Law section 240(1) and denied as to Labor Law 241(6); and it is therefore
ORDERED that Plaintiffs are granted summary judgment on their Labor Law section 240(1) claim and Plaintiffs' claims pursuant to Labor Law section 200 and common law are dismissed.
The foregoing shall constitute the decision and order of the court.
ENTER,
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J S C