Opinion
No. 23004–2011.
01-13-2015
Cecilio VENTURA, Plaintiff, v. SMI CONSTRUCTION MANAGEMENT, INC., et., al., Defendants.
Opinion
Upon the following papers numbered 1 through 68 read on these motions: by defendant SMI Construction Management Inc., for summary judgment dismissing plaintiff's Labor Law § 200 and common law negligence claims and for summary judgment against third party defendant Coffey Contracting Inc., on its claim for contractual indemnification and for attorney fees in connection with the defense of this action; by plaintiff for summary judgment against the defendant SMI Construction Management on his claims pursuant to Labor Law § 240(1) and Labor Law § 241(6) ; and by third party defendant for summary judgment dismissing plaintiff's claims pursuant to Labor Law §§ 240(1) and 241(6) and dismissing third party plaintiff's claims for common law indemnification and contribution:
| PAPERS | NUMBERED |
|---|---|
| Notice of Motion/Affirmation–Exhibits/Memorandum | 1–18 |
| Affirmation Opposition | 19–20 |
| Affirmation in Opposition | 21–22 |
| Reply | 23–24 |
| Reply | 25–26 |
| Notice of Motion/Affirmation–Exhibits/Memorandum | 27–38 |
| Affirmation in Opposition/Memorandum | 39–41 |
| Affirmation in Opposition | 42–43 |
| Reply | 44–45 |
| Notice of Motion/Affirmation–Exhibits/Memoradum | 46–60 |
| Affirmation Opposition | 61–63 |
| Reply/Memorandum | 64–68 |
This is an action in which plaintiff is seeking to recover for personal injuries sustained when he was struck by a chain from a hoist/pulley. At the time of the accident plaintiff, an employee of third party defendant, was attempting to lower a drill from the first floor of the building to the basement floor. The drill was attached to a hoist/pulley and chain. The testimony of the parties is that the hoist/pulley was attached to an I-beam approximately two feet above plaintiff's head and approximately 6–8 feet above the first floor and 24–28 feet above the basement floor. During the process of lowering the drill the hoist/pulley detached from the I-beam. Plaintiff contends the chain struck him and wrapped around his hand causing injuries to his hand and shoulder.
Both the I-beam and the hoist/pulley were installed by the third party defendant Coffey Contracting Inc., and the defendant SMI Construction Management Inc., was the general contractor on the project. There appears to be a dispute as to the weight of the drill. There is some testimony that it weighed between 250–300 pounds and there is other testimony that it weighed between 600–800 pounds.
Plaintiff moves for summary judgment against the defendant SMI Construction Management on his claims pursuant to Labor Law § 240(1) and Labor Law § 241(6).
Defendant, SMI Construction Management contends that plaintiff is not entitled to summary judgment on his claim pursuant to Labor Law § 240(1) and Labor Law § 241(6) since questions of fact exists as to the mechanism of plaintiff's accident and since plaintiff has failed to demonstrate that his injury occurred as a result of a violations of an Industrial Code section.
Third party defendant Coffey Contracting, Inc., opposes plaintiff's motion and moves for summary judgment dismissing plaintiff's claims pursuant to Labor Law § 240(1) and § 241(6). Third party defendant contends that Labor Law § 240(1) does not apply since the height differential between the hoist and plaintiff is de minimus and contends that Labor Law § 241(6) does not apply since plaintiff cannot demonstrate that his injury occurred as a result of a violations of an Industrial Code section.
In cases where the elevation differential is viewed as minimal, the elevation differential is not de minimus where the weight of the object and the amount of force it can generated is significant. Runner v. New York Stock Exchange, 13 NY3d 599 (2009).
In Runner the plaintiff acted as a counter-weight to an 800 pound reel of wire that was being pushed down a flight of stairs. The Court of Appeals held that since the reel had to be moved from a height to a lower elevation, the danger to be guarded against arose from the force the reel's descent and Labor Law § 240(1) was applicable, Id. In Runner, the Court of Appeals repeated it's holding in Ross v. Curtis–Palmer and stated that “Labor Law § 240(1) was designed to prevent the type of accidents in which a scaffold, hoist, stay 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 a person, Id., at 604, citations omited. Runner is similar to the facts herein in that equipment of a certain weight was being lowered to the basement level and the hoist provided failed.
The statutory requirement that workers be provided with proper protection extends not only to the hazards of building materials falling from the hoist as they are being conveyed to the top of the structure, but also to the hazard of a defective hoist, or portion of the hoist, falling from an elevated level to the ground, Jiron v. China Buddhist, 266 A.D.2d 347 (2nd Dept., 1999).
In the case at bar, the hoist failed in that it did not remain attached to the I-beam. The court finds that Labor Law § 240(1) applies and plaintiff is entitled to summary judgment. Accordingly, it is
ORDERED that the branch of plaintiff's motion for summary judgment against the defendant SMI Construction Management Inc., on his claim pursuant to Labor Law § 240(1) is granted and the branch of third party defendant's motion to dismiss plaintiff's claim pursuant to Labor Law § 240(1) is denied.
With regard to plaintiff's motion for summary judgment against defendant SMI Construction Management Inc., on his Labor Law § 241(6) cause of action plaintiff alleges violations of Industrial Code 23–6 .1 and 23–6.2. Industrial Code 23–6.2(d)(1) provides that “chains shall not be used as slings in hoisting operations except for the raising or lowering of wooden piles, large timbers large pieces of masonry or large stones” and Industrial Code 23–6.1 provides in part a hoist should not be loaded in excess of the load for which is was designed and that hoist machines should be constructed installed and secured so as to prevent tripping or dislodgment.
Plaintiff must make a prima facie showing that the defendant violated a specific Industrial Code and that the violation was a proximate cause of plaintiff's injury in order to recover under Labor Law 241(6), Ross v. Curtis–Palmer, 81 NY2s 484, 505 (1993).
Based upon the evidence presented, the court finds there are questions of fact as to whether the defendant violated any section of the Industrial Code and whether such a violation was the proximate cause of plaintiff's injury. Accordingly, it is
ORDERED that the branch of plaintiff's motion for summary judgment against the defendant SMI Construction Management Inc., on his claim pursuant to Labor Law § 241(6) is denied and the branch of third party defendant's motion to dismiss plaintiff's claim pursuant to Labor Law § 241(6) is denied.
Defendant SMI Construction Management Inc., contends that it is entitled to summary judgment dismissing plaintiff's Labor Law § 200 and common law negligence claims since it did not direct, supervise, instruct or control the performance of the work and did not create or have notice of a dangerous condition.
Liability may not be imposed upon a general contractor under Labor Law § 200 or common law negligence who only has the general authority to supervise all work at a job site, stop a subcontractor's work if a safety violation is noted, or ensure compliance with safety regulations and contract specification, Mancuso v. MTA New York, 80 AD3d 577, 578(2nd Dept., 2011).
Both plaintiff and third party defendant contend that defendant SMI Construction Management Inc., had much more than a general supervisory authority over the plaintiff's work. In support of their contention, they cite the testimony of SMI Construction Management Inc.'s supervisor on the job site who looked over the hoist to make sure it was working properly and “probably” pulled the chain. Additionally, it appears that defendant SMI Construction Management Inc., went over plans and instructed third party on how to perform its work and provided plaintiff with a dust mask and goggles.
The court finds there is a question of fact as to whether defendant SMI Construction Management Inc., had more than a general supervisory authority over the performance of the work. Accordingly, it is
ORDERED that the branch of Defendant SMI Construction Management Inc.'s motion for summary judgment dismissing plaintiff's Labor Law § 200 and common law negligence claims against it is denied.
Defendant SMI Construction Management Inc., also moves for summary judgment against third party defendant Coffey Contracting Inc., on its claim for contractual indemnification and for attorney fees in connection with the defense of this action. The indemnification provision in the contract provides that third party defendant Coffey Contracting Inc., must defend, indemnify and hold harmless SMI Construction Management Inc., from any claims arising in whole or in part and in any manner from the acts, omissions, breach or default in connection with the performance of any work of Coffey Contracting Inc. However, defendant SMI Construction Management Inc., cannot be indemnified for it's own negligence, (See, Rizzuto v. Wenger, 91 N.Y.2d 343 [1998] ). Since there is a question of fact regarding defendant SMI Construction Management Inc ., negligence, the court cannot grant summary judgment for contractual indemnification. Accordingly, it is
ORDERED that defendant SMI Construction Management Inc.'s motion for summary judgment against third party defendant Coffey Contracting Inc., on its claim for contractual indemnification and for attorney fees in connection with the defense of this action is denied as premature. And it is further,
ORDERED that the branch of third party defendant's motion for summary judgment dismissing SMI Construction Management Inc.'s claims for common law indemnification and contribution based upon the grounds that Worker's Compensation Law § 11 bars such relief is granted without opposition.