Opinion
32490/07.
Decided March 5, 2010.
Plaintiff was represented by Seth M. Katz, Esq. of Baron Associates, P.C. Defendant 26-26 Jackson Avenue, LLC was represented by Susan B. Boland, Esq. of Mulholland, Minion Roe.
The Verified Complaint of plaintiff Luke Dane Maximin alleges causes of action pursuant to Labor Law §§ 200, 240 (1), and 241 (6), seeking damages for personal injuries allegedly sustained on July 10, 2007, during construction of a building at 2626 Jackson Avenue, Queens, premises owned by defendant 26-26 Jackson Avenue, LLC. Plaintiff moves for an order, pursuant to CPLR 3212, granting him summary judgment on liability as to his Labor Law §§ 240 (1) and 241 (6) causes of action. Defendant 26-26 Jackson moves, also pursuant to CPLR 3212, for summary dismissal of the Verified Complaint in its entirety.
Many material facts are not in dispute, at least as they relate to Plaintiff's claims pursuant to Labor Law §§ 240 (1) and 241 (6). Plaintiff was employed as a laborer by defendant E. Guy's Construction Corporation, which has not appeared in this action. On the day of his accident, he was bringing cement and concrete cinder blocks from storage locations on the premises to an elevator shaft equipped with a device — variously described as a lift, bucket, or tray — that, with the aid of an electric hoist, carried the materials to upper floors at the site. Other than the hoist, the only protective devices supplied to Plaintiff were a hard hat and gloves.
While Plaintiff was at the bottom of the shaft, bending to remove debris from the lift, a concrete cinder block fell from above, and struck his back. The fallen cinder block had previously been hoisted four stories above, where, with other blocks in the load, it was stacked at the edge of the shaft, one on top of the other, two or three high. The fallen block was either dropped by a coworker, or tipped over from the stack, as the coworker was moving the blocks for installation.
Labor Law § 240 (1) provides that "[a]ll contractors and owners and their agents, . . . in the erection . . . of a building or structure shall furnish 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." "[A] violation of section 240 (1) . . . creates absolute liability." ( Zimmer v Chemung County Performing Arts, 65 NY2d 513, 522; see also Blake v Neighborhood Hous. Servs. of NY City , 1 NY3d 280 , 287.)
"[T]o establish a prima facie case pursuant to Labor Law § 240 (1), a plaintiff must demonstrate that the risk of injury from an elevation-related hazard was foreseeable, and that the absent or defective protective device of the type enumerated in the statute was a proximate cause of the injuries alleged." ( Shipkoski v Watch Case Factory Assocs., 292 AD2d 587, 588 [2d Dept 2002]; see also Balladares v Southgate Owner Corp. , 40 AD3d 667 , 699-70 [2d Dept 2007].) The plaintiff is not "required to present evidence as to which particular safety devices would have prevented his injury." ( See Noble v AMCC Corp., 277 AD2d 20, 21 [1st Dept 2000]; see also Cody v State of New York , 52 AD3d 930 , 931 [3d Dept 2008].)
Defendant 26-26 Jackson contends in the first instance that it cannot be liable for a violation of Labor Law § 240 (1) because "[t]hat section requires that the defendant contractors and owners and their agents' must have actual authority to control or supervise the activity bringing about the plaintiff's harm." (Affirmation, ¶ 23.) Although authority to supervise or control is material to a determination as to whether a particular defendant is a "contractor" or "agent" of the owner for purposes of § 240 (1) liability ( see Balthazar v Full Circle Constr. Corp., 268 AD2d 96, 98 [1st Dept 2000]; Ortega v Catamount Constr. Corp., 264 AD2d 323, 323-24 [1st Dept 1999]), it is immaterial to the liability of the acknowledged owner of the premises. "The duty imposed by Labor Law § 240 (1) is nondelegable and . . . an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work." ( Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500.)
Defendant's primary contentions with respect to Plaintiff's Labor Law § 240 (1) claim is that "[t]his section only protects workers against objects that fall while being hoisted or secured because of the inadequacy of a safety device enumerated in the statute" (Affirmation, ¶ 34); here, "[t]he cinder block was not in process of being hoisted . . . nor was the cinder block caused to fall because of the inadequacy or absence of a safety devise [ sic]" ( id., ¶ 35); and "[n]o safety devise [ sic] present in the facts of this case could have prevented the accident" ( id., ¶ 36.)
Where the plaintiff's prima facie showing is based upon the absence of safety devices, a defendant's "argument that failure to provide an adequate safety device was either impracticable under the circumstances or would not have prevented the accident is unavailing." ( See Pichardo v Urban Renaissance Collaboration LP , 51 AD3d 472, 472 [1st Dept 2008]; see also Zimmer v Chemung County Performing Arts, 65 NY2d at 519.) In any event, Defendant presents no evidence that "[n]o safety devise [ sic] could have prevented the accident." Indeed, at his deposition, Defendant's witness testified to "safety gates" at the opening to elevator shafts on at least some floors. (Affirmation, ¶ 10.)
"[F]alling object' liability under the statute is not limited to objects that are in the process of being hoisted or secured . . ., but extends also to objects that require[d] securing for the purposes of the undertaking'." ( Lucas v Fulton Realty Partners, LLC, 60 AD3d 1004, 1006 [2d Dept 2009] [ quoting Outar v City of New York , 5 NY3d 731 , 732 (2005)]; see also Quattrocchi v F.J. Sciame Constr. Corp. , 11 NY3d 757 , 758-59; Novak v Del Savio , 64 AD3d 636 , 638 [2d Dept 2009]; Vargas v City of New York , 59 AD3d 261 , 261 [1st Dept 2009]; Boyle v 42nd St. Dev. Project, Inc. , 38 AD3d 404 , 406-07 [1st Dept 2007]; Portillo v Roby Anne Dev., LLC , 32 AD3d 421 , 421 [2d Dept 2006]; Coque v Wildflower Estates Developers, Inc. , 31 AD3d 484 , 487-88 [2d Dept 2006]; Bornschein v Shuman , 7 AD3d 476, 478 [2d Dept 2004]; Sheehan v Fordham Univ., 259 AD2d 328, 329 [1st Dept 1999].)
Most recently, the Court of Appeals has held that "the applicability of the statute in a falling object case . . . does not . . . depend upon whether the object has hit the worker." ( See Runner v NY Stock Exch., Inc., 2009 NY Slip Op 9310, * 4 [Dec 17, 2009].) "The relevant inquiry . . . is rather whether the harm flows directly from the application of the force of gravity to the object." ( Id.) Where a falling object has hit the worker, the question is whether the object "was part of a load that required securing'." ( See Coque v Wildflower Estates Developers, Inc., 31 AD3d at 488 [ quoting Narducci v Manhasset Bay Assoc., 96 NY2d 259, 268 (2001)].) "What is essential to a conclusion that an object requires securing is that it present a foreseeable elevation risk in light of the work being undertaken." ( Buckley v Columbia Grammar Preparatory , 44 AD3d 263 , 269 [1st Dept 2007]; see also Lucas v Fulton Realty Partners, LLC, 60 AD3d at 1006 ["there was a significant risk that the unsecured sheet metal would fall, and cause injuries to workers . . . Accordingly, the [owner] was obligated under Labor Law § 240 (1) to use appropriate safety devices to secure the load."].)
Here, there is no dispute that Plaintiff's injury "flow[ed] directly from the application of the force of gravity" to the cinder block ( see Runner v NY Stock Exch., Inc., 2009 NY Slip Op 9310, at * 4.) Nor can there be dispute that there was a foreseeable, significant risk that a cinder block would fall down the elevator shaft while the lift was at ground level, unavailable to provide any overhead protection to the workers below, such that the cinder block "was part of a load that required securing'." ( See Coque v Wildflower Estates Developers, Inc., 31 AD3d at 488 [ quoting Narducci v Manhasset Bay Assoc., 98 NY2d at 268].)
In addition, however, to showing that the fallen object "required securing" ( see id.), "[t]heplaintiff must show that the object fell because of the absence or inadequacy of a safety device of the kind enumerated in the statute'." ( See Novak v Del Savio, 64 AD3d at 638 [ quoting Narducci v Manhasset Bay Assoc., 96 NY2d at 268].) Here, the only evidence on how it happened that the cinder block fell down the shaft comes from the deposition testimony of a non-party witness, Eldon Moncherry, a coworker located on the fourth floor, from where the cinder block fell. Mr. Moncherry observed another coworker remove the cinder blocks from the lift and stack them next to the shaft. Although the parties agree that, according to Mr. Moncherry, the coworker caused the cinder block to fall down the shaft, they differ in their characterization of Mr. Moncherry's testimony as to the mechanism of causation.
According to Plaintiff, "the cinder blocks were stacked one on top of the other, and were stacked 3 or 4 high when one of them tipped over and fell down the elevator shaft." (Affirmation in Support, ¶ 8.) According to Defendant, "[t]he coworker had one load of blocks lined up near the shaft and was attempting to spread them around to where they were needed; when one fell." (Affirmation, ¶ 11.) Defendant contends that Plaintiff was injured "because a coworker allegedly dropped a cinder block down an elevator shaft as he was moving the cinder blocks." ( Id., ¶ 35.)
Mr. Moncherry's testimony is not crystal-clear on the point, in part because so much was provided by the questioning attorney.
"A.So by the time Dane put the blocks in the thing, he try and grab the two blocks and one —
Q.Fell over?
A. — fell in the hole.
Q.Did you actually see this?
A.I see this. I see it. I see when the block going down.
Q.Did you see the guy grabbing the block before it fell —
A.I see everything, I see.
. . .
Q.When the man had lined up or piled up the blocks by the side of the shaft, was it only one load or did he still have bricks from a previous load?
A.Only one load, one load he had there already.
Q.So had he already dispersed some of the other earlier loads?
A.Yeah, he was spreading, before that accident he was spreading. But I guess he was trying to do it faster, different ways, so I guess he do it wrong.
Q.When he tried to pull the cinder blocks and one fell, had he moved some of those cinder blocks to where they belonged or had he just started to move them?
A.He just started to move them.
. . .
Q.Do you know if out of the pile of cinder blocks, was it the top block that fell or was it one of the ones in the middle?
A.Maybe one in the middle.
Q.Do you know what he was trying to grab when that block fell; was he trying to grab a top block or —
A.Not the top one, because he had two blocks in his hands when the other one fell back.
. . .
A.The guy who was doing it, he didn't even see. I tell him. I tell him he killed somebody downstairs. He didn't see.
Q.He didn't know?
A.He didn't know. Because he was trying to move the block and by the time he move his head, another block fall (indicating). And he is the one that, because I was on top" (Examination Before Trial of Eldon Moncherry at 34-35, 37-38, 39-40, 41 [emphasis added].)
Defendant's contention that the coworker "dropped [the] cinder block down [the] elevator shaft" (Affirmation, ¶ 35) cannot fairly be gleaned from this testimony. Even if, however, the coworker dropped the cinder block down the shaft, there would be a statutory violation since the blocks were required to be secured in a manner that would have prevented a cinder block from falling down the shaft.
"[R]egardless of the precise manner in which the accident occurred, a defendant is not absolved from liability where . . . a plaintiff's injuries are at least partially attributable to the defendant's failure to provide protection as mandated by the statute." ( Cammon v City of New York , 21 AD3d 196 , 201 [1st Dept 2005]; see also Ray v City of New York , 62 AD3d 591 , 592 [1st Dept 2009] ["Since plaintiff's injuries were attributable at least in part to defendants' failure to provide proper protection as mandated by the statute, his motion for summary judgment on the issue of liability thereunder should have been granted."].) A defendant will only be absolved of liability if the conduct of a third party creates "a separate hazard unrelated to the risk which brought about the need for the safety device in the first instance" ( see Nieves v Five Boro Air Conditioning Refrig. Corp., 93 NY2d 914, 916), "of such an extraordinary nature or so attenuated from the defendant['s] conduct that responsibility for the injury should not reasonably be attributed to [the defendant]." ( See Gordon v Eastern Ry. Supply, 82 NY2d 555, 562.)
The governing principles are the same where the act or omission of a coworker is said to have been the proximate cause of the injury. ( See Van Eken v Consolidated Edison Co. of NY, 294 AD2d 352, 353 [2d Dept 2002]; De Sousa v Dayton T. Brown, Inc., 280 AD2d 447, 448 [2d Dept 2001].) And so, where a "coworker who was removing pieces of steel that were temporarily welded to [a] structure, intended to prevent the pieces from falling by using his hand and . . . [the] piece of steel that struck plaintiff fell when the coworker failed to catch it," the court said that "the fall occurred because of the absence . . . of a safety device of the kind enumerated in the statute'." ( See Petteys v City of Rome , 23 AD3d 1123 , 1123-24 [4th Dept 2005]; see also Tylutki v Tishman Techs. , 7 AD3d 696 , 696 [2d Dept 2004].)
Here, as in that case, a "securing device of the kind enumerated in the statute would have been necessary or even expected" ( see Petteys v City of Rome, 23 AD3d at 1124 [ quoting Narducci v Manhasset Bay Assoc., 98 NY2d at 268]) because of the clearly foreseeable elevation-related risk of an object falling and causing injury to a worker, "regardless of the precise manner" ( see Cammon v City of New York, 21 AD3d at 201) of the object's fall. Here, as there, a coworker's failure to manually prevent the object from falling was within the scope of the foreseeable risk that compliance with the statute would have ameliorated.
A plaintiff "establishe[s] . . . prima facie entitlement to judgment as a matter of law on the issue of liability on [a] cause of action alleging a violation of Labor Law § 240 (1) with evidence that the plaintiff was not provided with any adequate or appropriate safety devices, and that such failure was the proximate cause of [the plaintiff's] injuries." ( See Triola v City of New York , 62 AD3d 984 , 985-86 [2d Dept 2009] ["falling worker" case]; see also Tylutki v Tishman Techs., 7 AD3d at 696 ["falling object" case].) Here, Plaintiff establishes the absence of an safety device to secure the cinder blocks after they were unloaded from the lift, as well as the inadequacy of the safety device with which he was provided, a hard hat, in preventing his injury.
Defendant fails to raise a triable issue as to any element of Plaintiff's prima facie showing, and, as noted above, submits no competent evidence that "the provision of any other safety measures would not have prevented" the cinder block's fall, as might be material to proximate cause. ( See Kok Choy Yeen v NWE Corp. , 37 AD3d 547 , 549 [2d Dept 2007].)
Plaintiff's motion for summary judgment on his cause of action pursuant to Labor Law § 240 (1) is, therefore, granted; Defendant's motion for summary dismissal of that cause of action is, accordingly, denied.
Labor Law § 241 (6) creates a "duty to comply with the Commissioner's regulations [that] is nondelegable," and a plaintiff "need not show that [the] defendant[ ] exercised supervision or control over his worksite." ( See Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 502.) Only "provisions of the Industrial Code mandating compliance with concrete specifications . . . give rise to a nondelegable duty" ( see id. at 505); but once the violation is proven, the contractor or owner is "vicariously liable without regard to his or her fault," and is not absolved "by reason of its absence of control or lack of personal notice for an opportunity to cure the dangerous condition" ( see Rizzuto v L.A. Wegner Contracting Co., Inc., 91 NY2d 343, 350.) Defendant's contention here that "[a] plaintiff claiming a violation of [Labor Law § 241 (6)] . . . must establish that the defendant had the authority to supervise or control the activity giving rise to the plaintiff's alleged harm" (Affirmation, ¶ 25) is clearly wrong.
Plaintiff alleges violation of Industrial Code § 23-1.7 (a) ( 12 NYCRR § 23-1.7 [a], "Protection from general hazards," "Overhead hazards"), and Industrial Code § 23-2.5 (b) ( 12 NYCRR § 23-2.5 [b], "Protection of persons in shafts," "Protection of persons in elevator shafts.") As to Industrial Code § 23-1.7 (a), defendant contends only that the provision is "too general to sustain a Labor Law 241 (6) claim" (Affirmation, ¶ 27.) Here, again, Defendant is clearly wrong. ( See Clarke v Morgan Contr. Corp. , 60 AD3d 523 , 523-24 [1st Dept 2009]; Portillo v Roby Anne Dev., LLC, 32 AD3d at 422.)
On the other hand, Plaintiff fails to establish prima facie that Defendant violated § 23-1.7 (a), in that, at the least, "there is no evidence to support the section's requirement that the area in which the plaintiff was injured was one where workers are normally exposed to falling objects" ( see id.; see also Mercado v TPT Brooklyn Assoc., LLC, 38 AD3d 732, 733-34 [2d Dept 2007].)
Neither party, therefore, is entitled to summary judgment as to Industrial Code § 23-1.7 (a) as a predicate for liability pursuant to Labor Law § 241 (6.)
As to Industrial Code § 23-2.5 (b), Defendant addresses paragraph (3) of subsection (b), as cited in Plaintiff's Supplemental Bill of Particulars, contending that it is inapplicable to the facts. Although Defendant fails to establish with the deposition testimony cited that there was no "adjacent operable elevator or counterweight" ( see 12 NYCRR § 23-2.5 [b] [3]) where Plaintiff was injured, it is clear that any violation of the provision could not have been a proximate cause of Plaintiff's injury. The provision specifies protection to persons working in an elevator shaft "from contacting any adjacent operable elevator counterweight" ( id.)
Plaintiff's acknowledgment that his citation to paragraph (3) of subsection (b) was in error is insufficient to create triable issues. Defendant is entitled to assume that Plaintiff's claim is as stated in his pleadings, particularly as to alleged violations of Code provisions that are a predicate for liability, and particularly after Plaintiff files his note of issue. In any event, Plaintiff does not establish prima facie the applicability of paragraph (1) of subsection (b), which is the paragraph Plaintiff now seeks to rely upon. (Affirmation in Support, ¶ 31.)
As to Labor Law § 241 (6), therefore, Plaintiff's motion for summary judgment on liability is denied in its entirety. Defendant's motion is granted only to the extent that Plaintiff cannot establish liability by reason of a violation of Industrial Code § 23-2.5 (b) (3).
"Labor Law § 200 is a codification of the common-law duty imposed on owners and contractors to provide workers with a safe place to work." ( Gasques v State of New York , 59 AD3d 666 , 667 [2d Dept 2009].) "To be held liable under Labor Law § 200 and for common-law negligence when the method and manner of the work is at issue, it must be shown that the party to be charged had the authority to supervise or control the performance of the work'." ( Id. at 667-68 [ quoting Ortega v Puccia , 57 AD3d 54 , 61 (2d Dept 2008)].) "[T]he right to generally supervise the work, stop the contractor's work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Labor Law § 200 or for common-law negligence." ( Id. at 668.)
In support of its motion to dismiss the Labor Law § 200 claim, Defendant relies primarily on the deposition testimony of Jeffrey Marcus, Defendant's Project Manager at the construction site. Assuming that Mr. Marcus's testimony would be sufficient prima facie to establish that he did not have the authority to supervise or control the performance of the work, it is not sufficient to establish that no representative of the owner had that authority. Mr. Marcus testified that Erez Nisanov was employed by Defendant as a "foreman" at the site (Examination Before Trial of Jeffrey Marcus at 32-33.) Mr. Marcus does not say that he supervised Mr. Nisanov or that Mr. Nisanov reported to him, nor does he describe any other basis for personal knowledge as to Mr. Nisanov's authority, or as to whether Mr. Nisanov in fact exercised supervision or control over the work, or as to any agreement or understanding between Defendant and Plaintiff's employer concerning Defendant's authority.
Defendant has the burden on its motion "to make a prima facie showing that it did not have the authority to control the manner in which the plaintiff's work was performed." ( See Gasques v State of New York, 59 AD3d at 668.) There is no affidavit of Mr. Nisanov or any officer of Defendant, and no document in evidence as to the relationship between Defendant and Plaintiff's employer.
Defendant has failed to establish prima facie that it is entitled to summary dismissal of Plaintiff's cause of action pursuant to Labor Law § 200.
In sum, Plaintiff's motion for summary judgment on liability on its cause of action pursuant to Labor Law § 240 (1) is granted, but the motion is otherwise denied. Defendant's motion for summary dismissal of the Verified Complaint is granted to the extent that Plaintiff cannot rely on Industrial Code § 23-2.5 (b) (3) as a predicate for a violation of Labor Law § 241 (6), but is otherwise denied.